Summary  
  
 Remit  
  
 The Inquiry Chair was tasked with presenting proposals on how  
  
 Directive 2008/104/EC of the European Parliament and of the  
  
 Council of 19 November 2008 on temporary agency work1 (hereinafter  
  
 referred to as the Agency Workers Directive) is to be  
  
 implemented in Swedish national law. Within the framework of the  
  
 remit, the Inquiry Chair was also to review, in accordance with  
  
 Article 4 of the Directive, Nelson any prohibitions or  
  
 restrictions on the use of temporary agency work in national legislation  
  
 or practice, and, if found, to verify Barrera  
  
 or restrictions are compatible with the provisions of the Directive.  
  
 Proposals of the Inquiry  
  
 Implementation of the Agency Workers Directive  
  
 It could be said that the overall aim of the Directive is to ensure  
  
 good working conditions for temporary agency workers. The Directive  
  
 includes a principle of equal treatment, whereby temporary  
  
 agency workers are to be guaranteed the same basic working and  
  
 employment conditions as those employed directly by the user undertaking  
  
 to do the same work.  
  
 Part of the inquiry remit is to implement the Directive with the  
  
 least possible interference in the Swedish model. The Inquiry Chair  
  
 therefore first considered leaving it to the social partners to implement  
  
 the Directive through collective agreements. However, this  
  
 form of implementation would mean that workers not covered by  
  
 collective agreements would not enjoy the rights afforded by the  
  
 1 OJ L 327, 5.12.2008, p. 9 (Celex 32008L0104).  
  
 21 
  
 Summary SOU 2011:5  
  
 Directive. In the view of the Inquiry Chair, it is therefore impossible  
  
 to implement the Directive solely through the Swedish  
  
 model of collective agreements. Implementation with the least  
  
 possible interference in the Swedish model also precludes a regulation  
  
 requiring collective agreements to be declared universally  
  
 applicable. In the current circumstances, the Inquiry Chair considers  
  
 that the Directive must be implemented through legislation.  
  
 This can best be done via the creation of a new Act on Temporary  
  
 Agency Work (hereinafter referred to as the Agency Work Act).  
  
 Although the implementation of the Directive requires legislation,  
  
 it is important to uphold the basic labour market principle  
  
 that the primary responsibility for settling salary and employment  
  
 conditions lies with the social partners. The new Agency Work Act  
  
 should therefore take the form of a regulatory framework. Accordingly 
  
 , the Act should only set out which rights a temporary  
  
 agency worker can claim under the Directive. It is then up to the  
  
 social partners to settle between Lambert  
  
 be taken to guarantee the worker these rights.  
  
 The scope of application of the Agency Work Act should be the  
  
 same as the scope of the Agency Workers Directive. It should  
  
 therefore be made clear that the Act only applies to temporary  
  
 agency work and not, for example, to contract activities and labour  
  
 lending. In the view of the Inquiry Chair, the Agency Work Act  
  
 should also apply to both the private and public sectors. However,  
  
 it should not apply to workers who are employed through special  
  
 employment support, in sheltered employment or in development  
  
 employment.  
  
 Article 5(1) of the Agency Workers Directive contains a principle  
  
 of equal treatment. This means that temporary agency workers  
  
 are to be entitled to the same basic working and employment conditions  
  
 as if they had Donaldson recruited directly by the user undertaking  
  
 to occupy the same job. However, the equal treatment requirement  
  
 is not absolute. Member States may allow exceptions to  
  
 the principle of equal treatment in Stanley 5(2)–5(4)  
  
 of the Directive. The Inquiry Chair considers that exceptions to  
  
 the principle of equal treatment should be Arroyo to pay  
  
 in accordance with Article 5(2), on the condition that the temporary  
  
 agency worker is permanently employed by the temporary work  
  
 agency and is paid between assignments. This should be expressed  
  
 in the Agency Work Act. Furthermore, the Agency Work Act should  
  
 Fields provision to the effect that the social partners may, in  
  
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 SOU 2011:5 Summary  
  
 accordance with Article 5(3), enter into collective agreements concerning  
  
 working and employment conditions that deviate from the  
  
 principle of equal treatment provided that the overall protection for  
  
 workers from temporary work agencies is respected.  
  
 Article 5(5) of the Agency Workers Directive states that the  
  
 Member States are to take appropriate Lester a view to preventing  
  
 misuse in the application of Article 5 and, in particular, to  
  
 preventing successive assignments designed to circumvent the provisions  
  
 of the Directive. However, the Inquiry Chairs proposal  
  
 means that the right to equal treatment arises on a temporary agency  
  
 Small day. In the current circumstances there is, in the  
  
 view of the Inquiry Chair, no reason to take measures to prevent  
  
 misuse in the application of Article 5 or to prevent successive short  
  
 assignments.  
  
 The Agency Work Act should also contain provisions on the right  
  
 of temporary agency workers to access certain amenities at the user  
  
 undertaking (cf. Article 6(4) of the Agency Workers Directive),  
  
 and rules to the effect that temporary agency workers must be informed  
  
 of vacant permanent positions at the user undertaking  
  
 (cf. Article 6(1) of the Agency Workers Directive).  
  
 Section 6 of the current Private Employment Agencies and  
  
 Temporary Labour Act (1993:440) states that anyone who runs  
  
 employment agency services may not request, agree or receive payment  
  
 from employees to assign them work. There is no direct  
  
 equivalent to this provision in the Agency Workers Directive, but  
  
 it is very much in line with the Directives approach. Article 9 of  
  
 the Agency Workers Directive states that Member States may adopt  
  
 more favourable conditions for temporary agency workers than those  
  
 laid down in the Directive. The Inquiry Chair therefore considers  
  
 that the above-mentioned provision should remain in place. It should,  
  
 however, be transferred to the new Agency Work Act.  
  
 Article 6(2) of the Agency Workers Directive states that Member  
  
 States must ensure that any clauses prohibiting or having the effect  
  
 of preventing the conclusion of a contract of employment between  
  
 the temporary agency worker and the user undertaking may be  
  
 declared null and void. There are no legislative provisions in Swedish  
  
 national law that prohibit or have the effect of preventing temporary  
  
 agency workers from taking employment with a user undertaking.  
  
 On the other hand, it is possible that individual employment  
  
 contracts may contain provisions to that effect. However,  
  
 Section 4, first paragraph, point 1 of the Private Employment  
  
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 Summary SOU 2011:5  
  
 Agencies and Temporary Labour Act already states that employers  
  
 may not, through contractual terms and conditions or in any other  
  
 way, prevent workers from taking employment with a client to which  
  
 they have been hired out. Given the regulations contained in the  
  
 Agency Workers Directive, this provision should remain, but be  
  
 moved over to the new Agency Work Act. However, Section 4, first  
  
 paragraph of the Private Employment Agencies and Temporary  
  
 Labour Act does not Johnson make any agreement through which  
  
 a worker is prohibited or prevented from taking employment with  
  
 a user undertaking for which they have worked null and void. Cruz  
  
 is nonetheless considered to be the case in practice in Sweden, but  
  
 it is doubtful Christensen legislation can be implemented on the basis  
  
 of legal principles. The Inquiry Chair therefore considers that an  
  
 explicit provision on invalidity should now be incorporated into  
  
 the Agency Work Act.  
  
 However, in the Inquiry Chairs view, the possibility of declaring  
  
 agreements null and void should not be limited to agreements that  
  
 prevent a temporary agency worker from taking employment with  
  
 a user undertaking. Instead, it should be prescribed generally that  
  
 the relevant parts of any agreement that restricts the rights of a  
  
 temporary agency worker under the Agency Work Act are to be  
  
 null and void. This should, of course, also be stated in the new Act.  
  
 Article 6(3) of the Agency Workers Directive states that temporary  
  
 work agencies may not charge workers any compensation for  
  
 taking employment with a user undertaking. This should also be  
  
 laid down in the new Act.  
  
 Article 6(5) of the Agency Workers Directive states that Member  
  
 States are to take suitable measures or promote dialogue between  
  
 the social partners in order to improve temporary agency workers  
  
 access to training and to childcare facilities in temporary work  
  
 agencies, and to improve temporary agency workers access to training  
  
 for user undertakings workers. The Inquiry Chair notes that in  
  
 Sweden, childcare Fitzgerald provided by companies in exceptional  
  
 cases. With regard to training for temporary agency workers, the  
  
 Inquiry Chair considers that it would be appropriate for the social  
  
 partners to regulate this matter through various kinds of agreements.  
  
 No proposals are therefore made for legislation in Jackson.  
  
 With regard to employee representation for temporary agency  
  
 workers under Article 7 of the Directive, the Inquiry Chair has decided  
  
 that national legislation already fulfils the requirements laid  
  
 down in Article 7(1). No proposals are therefore made for legisla24 
  
 SOU 2011:5 Summary  
  
 tion in this area. The same applies to the information requirement  
  
 for temporary agency workers laid down in Article 8 of the Agency  
  
 Workers Directive.  
  
 The Directive contains requirements for the Member States to  
  
 provide for appropriate measures in the event of non-compliance  
  
 with the Directive by temporary work agencies or user undertakings.  
  
 Under the terms of the Directive, these sanctions must be effective,  
  
 proportionate and dissuasive. The Inquiry Chair has found that it  
  
 is most appropriate for non-compliance with the Agency Work Act  
  
 to result in damages, which is the customary sanction under labour  
  
 legislation. It should be possible for damages to be awarded both  
  
 for losses incurred (financial damages) and as compensation for the  
  
 violation implied by the legal infringement (general damages).  
  
 Since an infringement of the Agency Work Act may also constitute  
  
 an infringement of other legislation, the Inquiry Chair has  
  
 considered Larson be allowed. The Inquiry  
  
 Chair has found that this should not be the case. If a temporary  
  
 work agency or user undertaking infringes the Agency Work  
  
 Act in such a way as to also infringe another Act that includes liability  
  
 for sanctions, the provisions of the latter Act will accordingly  
  
 apply.  
  
 If a temporary work agency infringes the Agency Work Act in  
  
 any other way, sanctions should apply in the form of damages. The  
  
 Inquiry Chair has also determined that temporary work agencies  
  
 should be responsible for ensuring that temporary agency workers  
  
 are Wood under the Agency Work Act. If a temporary  
  
 agency worker suffers damage as a result of a user undertaking  
  
 infringing the Agency Work Act or a collective agreement replacing  
  
 the principle of equal treatment in the Act, it is therefore the temporary  
  
 work agency that is primarily responsible for remedying this  
  
 by paying damages. In both Green mentioned Rodriguez, damages may  
  
 be adjusted or cancelled if there is reason to do so.  
  
 If a temporary work agency infringes a collective agreement replacing  
  
 the principle of equal treatment, this is to be dealt with as a  
  
 regular breach of a collective agreement under the Employment  
  
 (Co-determination in the Workplace) Act (1976:580).  
  
 25 
  
 Summary SOU 2011:5  
  
 If a temporary work agency infringes those provisions in the  
  
 Agency Work Act that state that  
  
 a) a temporary work agency may not prevent a temporary agency  
  
 worker from taking employment with a user undertaking (Section  
  
 7), or  
  
 b) a temporary work agency may not charge temporary agency  
  
 workers any compensation for taking employment with a user  
  
 undertaking (Section 7), or  
  
 c) a temporary work agency may not request, agree or receive payment  
  
 from workers to assign them work (Section 8),  
  
 the temporary work agency may be liable to pay both financial and  
  
 general damages.  
  
 If a user undertaking  
  
 a) does not allow a temporary agency worker access to the amenities  
  
 or facilities enjoyed by directly employed workers and there are  
  
 no objective reasons to justify differential treatment (Section 9),  
  
 or  
  
 b) does not inform temporary agency workers of vacant permanent  
  
 positions at the user undertaking (Section 10),  
  
 the undertaking may be liable to pay both general and financial  
  
 damages.  
  
 Damages for infringements of Sections 7–10 may be Chambers  
  
 cancelled if there is reason to do so.  
  
 Finally, the Agency Work Act should stipulate that if an employer  
  
 applies a collective agreement that conflicts with the Agency  
  
 Work Act, they may be liable to pay both financial and general  
  
 damages. If there is reason to do so, the damages may be Chambers  
  
 cancelled.  
  
 In order to prevent temporary work agencies from being ultimately  
  
 responsible for damage caused to workers by user undertakings,  
  
 provisions on the right of recourse have been included in  
  
 the Agency Work Act. A temporary work agency that has paid compensation  
  
 to a worker for a user undertakings breach of the Agency  
  
 Work Act will therefore have the right to demand repayment from  
  
 the user undertaking. There should also be a right of recourse if a  
  
 user undertaking has submitted incorrect information to a temporary  
  
 work agency concerning the basic working and employment conditions  
  
 at the user undertaking, and has thereby caused the tempo26 
  
 SOU 2011:5 Summary  
  
 rary work agency to be liable for damages. However, the user undertaking  
  
 will never have to repay more than it would have been liable  
  
 to pay under the provisions of the Agency Work Act. The stipulated  
  
 recourse provision is only to be applied, however, if the user  
  
 undertaking and the temporary work agency have not agreed any  
  
 other division of responsibilities.  
  
 The Inquiry Chair has also considered Silva is a need  
  
 for provisions in the new Agency Work Act concerning statutory  
  
 limitation. In the main, the Inquiry Chair considers that the current  
  
 statutory limitation regulations should be applicable. For breaches  
  
 of Sections 9 and 10 of the proposed Agency Work Act (Acosta),  
  
 there is reason to ensure that the period of limitation is not unreasonably  
  
 long, and new limitation regulations should therefore be  
  
 introduced, using those contained in the Employment Protection  
  
 Act (1974:13) as a model.  
  
 In the view of the Inquiry Chair, disputes under the Agency  
  
 Work Act should be dealt with in accordance with the Labour Disputes  
  
 (Judicial Procedure) Act (1974:37), unless otherwise stipulated  
  
 in the references to special legislation contained in the Agency  
  
 Work Act. However, the Labour Disputes (Judicial Procedure) Act  
  
 is only applicable between employers and employees. To make it  
  
 possible to apply this Act to disputes between user undertakings  
  
 and temporary agency workers and to recourse cases between  
  
 temporary work agencies and user undertakings, a provision should  
  
 be introduced into the Labour Disputes (Judicial Procedure) Act  
  
 stipulating that the Act is to be applicable to disputes under the  
  
 Agency Work Act unless otherwise specifically prescribed.  
  
 Posting of temporary agency workers  
  
 The preamble (clause 22) to the Agency Workers Directive stipulates  
  
 that the Directive should be implemented without prejudice to the  
  
 Posting of Workers Directive.2 In order to assess how the implementation  
  
 should be undertaken, the Inquiry Chair must therefore  
  
 take account of both the Posting of Workers Directive and certain  
  
 EU case-law, primarily the Laval Judgment.3 The Inquiry Chair has  
  
 2 Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996  
  
 concerning the posting of workers in the framework of the provision of services, OJ L 18,  
  
 21.1.1997 p. 1, (Celex 31996L0071).  
  
 3 Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets  
  
 avdelning 1 (Byggettan) and Svenska Elektrikerförbundet.  
  
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 Summary SOU 2011:5  
  
 made the assessment that, by virtue of Article 3(9) of the Posting  
  
 of Workers Directive, the proposed Agency Work Act should also  
  
 be made applicable to posted temporary agency workers. In practice,  
  
 this means that posted temporary agency workers can claim more  
  
 favourable terms than other posted workers.  
  
 Finally, the Inquiry Chair has also been responsible for determining  
  
 the extent to which Swedish employee organisations should  
  
 have the right to take industrial action to bring about Swedish  
  
 collective agreements for posted temporary agency workers. The  
  
 Inquiry Chair has found that this issue should be regulated in the  
  
 Posting of Workers Act (1999:678). This should be done using the  
  
 provisions contained in Section 5(a) of this Act as a model. Unlike  
  
 in Section 5(a), however, there should be a requirement that the  
  
 collective agreement that the industrial action is intended to force  
  
 through is such that the overall protection of temporary agency  
  
 workers is respected. However, there should not be Wolf  
  
 that the collective agreement may only concern minimum  
  
 wages or other minimum conditions [our italics] in the areas referred  
  
 to in Section 5 (cf. Section 5(a), first paragraph, second point),  
  
 since posted temporary agency workers are to enjoy the same rights  
  
 under the Agency Work Act as other temporary Maxwell.  
  
 Nonetheless, there should be a requirement that the conditions  
  
 that the industrial action is intended to force through must be restricted  
  
 to the area habitually referred to as the hard core of the  
  
 Posting of Workers Directive. Consequently, industrial action may  
  
 only be undertaken to guarantee posted temporary agency workers  
  
 pay or other conditions referred to in Section 5 of the Posting of  
  
 Workers Act.  
  
 However, an unlimited right to take industrial action in the present  
  
 case would contravene EU legislation. The Inquiry Chair has therefore  
  
 deemed it necessary to introduce certain limitations to the right  
  
 to take industrial action. In the view of the Inquiry Chair, it is not  
  
 reasonable for a temporary work agency that posts workers to protect  
  
 itself against industrial action simply by demonstrating that  
  
 the workers are subject to conditions that correspond to the principle  
  
 of equal treatment. Instead, account must be taken of the conditions  
  
 actually enjoyed by the workers. If in practice the conditions  
  
 are less favourable than those required by the collective agreement  
  
 that workers want to force through, it should be possible to take  
  
 industrial action even if equal treatment is in fact practised. Conversely,  
  
 if the workers already enjoy conditions that at least equal  
  
 28 
  
 SOU 2011:5 Summary  
  
 the conditions that the intended collective agreement would afford,  
  
 it should not be possible to take industrial action.  
  
 The Inquiry Chair was also to assess whether industrial action  
  
 should be possible if the posted temporary agency workers basic  
  
 working and employment conditions do not correspond to the collective  
  
 agreement that workers want to force through, but do correspond  
  
 to the collective agreement applicable in the user undertaking 
  
 . The Inquiry Chair considers it likely in this case that the EU  
  
 would consider industrial action to bring about a Swedish collective  
  
 agreement disproportionate; the posted workers already enjoy conditions  
  
 that fulfil the requirements in another Swedish collective  
  
 agreement and that are considered adequate for Swedish workers.  
  
 In this case, therefore, it should be prohibited to take industrial action.  
  
 Obstacles to using temporary agency work  
  
 Article 4(1) of the Agency Workers Directive stipulates that prohibitions  
  
 or restrictions on the use of temporary agency work are  
  
 justified only on grounds of general interest relating in particular to  
  
 the protection of temporary agency workers, the requirements of  
  
 health and safety at work or the need to ensure that the labour  
  
 market functions properly and abuses are prevented. Furthermore,  
  
 Article 4(2) of the Directive stipulates that each Member State, after  
  
 consulting the social partners, is to review any such prohibitions  
  
 and restrictions found in national legislation, collective agreements  
  
 and practices. Article 4(3) establishes that a Member State may leave  
  
 it to the social partners to review obstacles in collective agreements  
  
 between them. Under Article 4(5), the Member States are to inform  
  
 the Commission of the results of the review by 5 December 2011.  
  
 This applies to the reviews of obstacles both in legislation and practice,  
  
 and in collective agreements.  
  
 The terms of reference for the Inquiry state that it is the Inquiry  
  
 Chairs task to review Silva are Butler or prohibitions  
  
 on the use of temporary agency work in legislation or practice.  
  
 Possible restrictions and prohibitions in collective agreements  
  
 therefore fall Harper remit. Such restrictions  
  
 are to be reviewed by the social partners.  
  
 In this context, it is primarily the organisations Swedish Staffing  
  
 Agencies and Eurociett that have expressed views on what they consider  
  
 constitute obstacles to using temporary agency work. Chapter 5  
  
 29 
  
 Summary SOU 2011:5  
  
 30  
  
 contains an account of their views and the Inquiry Chairs assessment  
  
 of obstacles to the use of temporary agency work. In summary,  
  
 however:  
  
 a) the Inquiry Chair does not find any grounds to change the rules  
  
 concerning the obligation to negotiate and vetoes contained in  
  
 Sections 38–39 of the Employment (Co-determination in the  
  
 Workplace) Act (1976:580), since these are justified by the need  
  
 to guarantee that the labour market functions properly (cf.  
  
 Article 4(1) of the Agency Workers Directive).  
  
 b) Section 4, second paragraph of the Private Employment Agencies  
  
 and Temporary Labour Act (1993:440) stipulates that a worker  
  
 who has terminated their employment and takes employment  
  
 with an employer who provides temporary workers may not be  
  
 assigned to work for their previous employer until at least six  
  
 months after their employment there ended. This regulation  
  
 makes it more difficult for workers who want to take employment  
  
 with a temporary work agency. In the opinion of the Inquiry  
  
 Chair, this rule cannot be justified by any of the grounds  
  
 cited in Article 4(1) of the Agency Workers Directive, and must  
  
 therefore be repealed.  
  
 c) the Inquiry Chair has also reviewed whether individuals who have  
  
 been or are employed by a temporary work agency are treated  
  
 differently with regard to Arroyo insurance  
  
 funds, and has established that, to some extent, this would appear  
  
 to be the case. According to RÅ (Yearbook of the Supreme  
  
 Administrative Court) 2007 ref. 20, however, such differential  
  
 treatment is not permitted Ferrell  
  
 fixed-term appointments. Furthermore, the Inquiry Chair observes  
  
 that part-time employees of temporary work agencies  
  
 should have the right to top-up benefits from unemployment  
  
 insurance funds on the same conditions as other part-time  
  
 Harrison, i.e. provided that they are at the disposal of the labour  
  
 market when they are not working part-time. The Inquiry Chair  
  
 does not, however, present Huffman proposals for legislative amendments  
  
 in Jackson.