UEAPME S Position Paper on the Proposal for a Directive Concerning the Working Conditions

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UEAPME’s position paper on the proposal for a directive concerning the working conditions of temporary agency workers

UEAPME notes the proposal for a directive on the working conditions of temporary agency workers, which was prepared following the failure of negotiations between the interprofessional social partners at European level, and wishes to make a certain number of comments.

General comments:

Temporary agency work represents a very specific type of employment, which responds to the need for flexibility both of enterprises and SMEs in particular, and of workers, and it should continue to fulfil this role, which facilitates the adaptability of resources in a constantly changing economy. Furthermore, it facilitates the entry and the re-entry into the labour market for many job-seekers.

The aim of the proposed directive is to create a minimum level of protection for interim workers at European level, through the principle of non-discrimination. UEAPME reiterates its commitment to the principle of non-discrimination with regard to temporary agency workers, but this principle, as it is defined in the current proposal, risks making the use of interim work more difficult, and more costly both for small user enterprises, and for small temporary agencies.

Comments on the content of the directive:

Articles 1 to 3: field of application and definitions

UEAPME opposes the general principle used by the European Commission to define the comparable worker, which in the first instance regards the comparable worker as a worker of the user enterprise, for the basic working conditions, and in particular with reference to pay.

UEAPME regrets the fact that, in determining the general principle of non-discrimination, the Commission has not taken account of the positions defended by the employers and UEAPME in the negotiations.

UEAPME regards it as essential to leave the definition of the comparable worker either as a worker of the interim agency, or as that of the user enterprise, open, owing to the very different situations existing in the Member States, particularly in terms of the types of contract existing between agencies and temporary workers, the differences in the system of collective agreements and the importance of the sector of temporary agency work.

UEAPME agrees that the principle of equal treatment and the statute of the temporary workers have to be clarified, but it has to be organised and decided at the Members states level.

Article 3 (b)

UEAPME also considers it necessary to integrate a third criterion for the definition of the comparable worker, namely, - seniority, qualifications and skills - and “the length of service in the enterprise”.

Article 3 (d)

In principle, and in accordance with the Treaty (Art. 137.6), UEAPME considers that it is not within the Community -level competenceies to deal with "pay" and therefore should be not included in the elements defining "the basic working and employment conditions" taken into account for the comparison of temporary workers.

Nevertheless, if "pay" were toould be maintained for the comparison in the list relating to "basic working and employment conditions" for the comparison, it would be necessary to limit the reference to the minimum wage level, as it was adopted in the directive 96/71/EC concerning the posting of workers "the minimum rates of pay, including overtimes rate; this point does not apply to supplementary occupational retirement pension schemes".

Article 4: Re-examination of the bans or restrictions

UEAPME welcomes the periodic revision of bans and restrictions by the Member States, and hopes that these revisions will lead to an enhanced contribution of interim work to job creation.

Article 5: Principle of non-discrimination

UEAPME repeats once again its commitment to the respect of the principle of non-discrimination with regard to temporary agency workers, but would like to have seen the principle of the choice of the comparable worker left to the decision of the Member States.

Art 5 - Paragraph 2:

UEAPME considers that the possibility of derogation foreseen in the case of permanent contracts, when the temporary agency worker continues to be paid in the period in between two assignments, should only be based on the criteria of continued remuneration between the assignments, without distinguishing between the type of contract linking the temporary agency worker and the interim agency. This is particularly in order to cover for situations such as holiday relief.

Art 5 – Paragraph 4:

The Member States can derogate from the general principle of non-discrimination for "an assignment or series of assignments with the same user enterprise in a post which, due to its duration or nature, can be accomplished in a period not exceeding 6 weeks".

UEAPME regards it as important not to necessarily make a link between the duration and the nature of a mission:

• Concerning the nature, Members States may derogate from the principle on grounds of the nature of the task, without any limit to the duration.
• Concerning duration, this period is much too short in order to really address the needs of small user enterprises, as well as those of small interim work agencies. Furthermore, it will create unnecessary supplementary administrative burden on small businesses (temporary agencies and user enterprises).

UEAPME insists that this possibility for derogation should go far beyond a period of 6 weeks, and should particularly take account of the needs of enterprises dealing with seasonal activities.

UEAPME recommends that this decision on the length has to be taken at national level, in order that this type of derogation allows interim work to make the most of its advantages of flexibility and adaptable usage according to the country and the different systems in place.

Art. 6- Paragraph 1

Paragraph 1 concerning the information on any vacant posts in the user undertaking, does not take into account the fact that certain temporary workers have, as permanent workers of the user enterprise, permanent contracts with the temporary agency. This type of working contract ensures a permanent job even it is a temporary one.

Temporary workers with fixed-term contracts should be given priority with regard to information on vacancies in the user enterprise.

Art6 - Paragraph 5

UEAPME disagrees with the general principle tof improvingo improve temporary workers' access to all training measures provided by the user enterprise. Training is a long- term investment in human resources which pays-offhas a pay-off for the enterprise over time, and consequently largely concernsespecially for its the permanent employed staff.

Therefore access to training for interim workers should remain the sole responsibility of the employers, in this case the interim work agency.

UEAPME can foresee an exception in the access of temporary workers's Aaccess to training

within the user enterprise is necessary particularly regardingwheretraining on health and safety is concerned, since this may betraining, which is necessary for carrying out a specific and - potentially hazardous- work task.

, which, whilst being a responsibility of the employer (in this case, the interim work agency), could also be carried out by the user enterprise).

Article 7:

UEAPME supports the principle of integrating temporary agency workers in the staff of the interim work agency. This principle is justified particularly by the fact that the interim work agency is the employer.

Regarding the possibility for derogation for the integration of temporary workers in the staff of the user enterprise, which has been left to the Member States, UEAPME’s opinion is that this possibility risks creating vast confusion in the calculation of staff numbers at national level with regard to the legislation concerning the thresholds for worker representation.

Whatever the case, UEAPME considers that if this derogation is retained, it should not include interim workers carrying out short assignments. This derogation should only apply to long-term temporary agency workers.

Brussels, 18th June28th Ma 2002