Agency Workers Directive

The Agency Workers Directive [http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52002PC0149:EN:HTML COD 2002/0149] is a proposed EU Directive which seeks to guarantee people who get jobs through employment agencies equal pay and conditions with those in the business who do the same work. It is the third piece of legislation in the European Union's employment law package to protect atypical working (the others being for part-time workers and fixed-term workers). Though it was proposed in 2002, the British and German governments have been blocking its enactment.

The latest reports disclose that European employment ministers are discussing revitalising the directive, with a partial "opt out" for the United Kingdom, perhaps to raise the time period to 12 weeks before equal rights to kick in. The Confederation of British Industry has hypothesised that such a measure would not cover half of all agency workers, and is therefore content for the measure to go ahead. [Personnel Today, [http://www.personneltoday.com/articles/2008/05/27/46007/agency-worker-rights-could-kick-in-even-earlier-warns-expert.html 'Agency Worker Rights Could Kick In Even Earlier Warns Expert'] (27.5.2008)]

Provisions

The core of the directive is equal rights on "basic working and employment conditions". Under Art.3(1)(d) These are,

*the duration of working time, rest periods, night work, paid holidays and public holidays
*pay
*work done by pregnant women and nursing mothers, children and young people
*action taken to combat discrimination on the grounds of sex, race or ethnic origin, religion or beliefs, disabilities, age or sexual orientation.

There is a 6 week qualification period in the Directive, for which the UK government lobbied hard, before the equal treatment rights click in (Art. 5(4)). There are currently talks between EU employment ministers in progress about securing an opt-out for the UK to raise that period to 12 weeks.

What the Directive does not offer, and does not do for those countries - like the UK - who exclude agency workers from the scope of normal employment rights, is create rights to any reasonable notice before dismissal, redundancy, a right to request flexible working time, time off for leave for child rearing, or a self standing unfair dismissal right (as exist in the UK under the Employment Rights Act 1996).

Purpose

As with all EU Directives, the purpose of the Agency Worker Directive is to harmonise the law across the common market. The economic function this serves is to prevent unfair competition between different member states. Sometimes called social dumping, the idea is that, for example, if Finland has loose employment protection and Ireland has strong employment protection, companies will shift their operations to the Finland - not because Finland is a more efficient country to do business and Ireland is inefficient - just because they can pay less. Harmonised laws prevent a "race to the bottom" where every country tries to deregulate to attract business, and, theoretically, all end up losing. The social function is to ensure a higher standard of living and quality of life, consistent with the aims of the Treaty of the European Union. [see, Art.3 TEU and "Defrenne v. Sabena (No.2)" where the European Court of Justice holds that Europe is not just an economic union, but intended also for social development.]

Background

The original proposal for a directive was made in 2002, but was itself shelved, because of the UK government's consistent opposition to agency regulation, in the interests of labour market flexibility. According to newspaper reports, [see, Carl Mortished, ‘UK turns against EU merger law in deal with Germany,’ "The Times", 19 May 2003. According to the report, "The Commission is hoping to have the Takeover Directive passed with Mediterranean support but Germany wants a compromise to strip the law of key articles that prevent management using takeover defences and poison pills without prior authorisation. The UK Cabinet is believed to have abandoned support for the free market principle and, instead, formed an alliance with Germany in return for its support in wrecking the Temporary Agency Workers Directive. "The Brits have sold the City down the river," a source close to the talks said. Britain has been fighting a desperate battle to prevent the introduction of rules that give temps the same employment rights as full-time workers."] the UK got the backing of Germany to torpedo the draft Directive in return for the UK to help sink the Takeover Directive (Germany has comprehensive agency work regulation under its [http://de.wikipedia.org/wiki/Arbeitnehmer%C3%BCberlassungsgesetz "Arbeitnehmerüberlassungsgesetz"] and its Civil Code, esp §622, and the UK has strong Takeover Regulation, especially Rule 21 of the City Code). [for interesting discussion, see David Kershaw, [http://journals.cambridge.org/production/action/cjoGetFulltext?fulltextid=1535604 'The Illusion of Importance'] (2007) 56 "ICLQ" 267]

ee also

*UK agency worker law
*Temporary and Agency Workers (Equal Treatment) Bill 2008

Notes

External links

* [http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52002PC0149:EN:HTML Full text of the proposed Directive] (COD 2002/0149) with introductory text laying out its aims.