The Commission presents a report on the application of Directive 2008/104/EC on temporary agency work.

To recall, the purpose of this text is to ensure the protection of temporary agency workers and to improve the quality of temporary agency work by ensuring that the principle of equal treatment is applied to temporary agency workers, and by recognising temporary-work agencies as employers , while taking into account the need to establish a suitable framework for the use of temporary agency work with a view to contributing effectively to job creation and to the development of flexible forms of working.

In particular, the Directive:

establishes the principle of equal treatment in user undertakings, while allowing for certain limited derogations under strict conditions; provides for a review by the Member States, during the transposition period, of restrictions and prohibitions on the use of agency work; improves agency workers’ access to permanent employment, to collective facilities in user undertakings and to training; includes provisions on the representation of agency workers.

Objectives of the report : the aim of this report is twofold:

it provides an overview of how Member States have implemented the Directive and highlights key problems; it examines whether experience gained in applying the Directive, two years after the end of its transposition period, may justify any amendments to the text currently in force.

State of transposition : t he report was drawn up on the basis of the Commission’s examination of Member States’ provisions implementing the Directive. Member States were under a duty to transpose the Directive into national law by 5 December 2011.

The report notes that all Member States have transposed the Directive but that in a number of cases, transposition occurred late and only after the Commission had launched infringement proceedings . In early 2012, the Commission sent letters of formal notice for non-communication of transposition measures to 15 Member States. Later that year, reasoned opinions were sent to three Member States. In the Member State that was the last to transpose the Directive, the implementing legislation entered into force on 1 July 2013. Transposition was carried out in a variety of different ways. This is linked to the fact that before the Directive became applicable, temporary agency work was regulated by law in some Member States, mainly through collective agreements in others, or by a combination of both. Some Member States did not have a legal framework applicable to temporary agency work, so they specifically regulated this form of work for the first time while transposing the Directive.

The analysis presented in the report shows that, in general, the provisions of the Directive seem to have been correctly implemented and applied . However, the analysis has also shown that the twofold goal of the Directive has not yet been fully fulfilled . On one hand, the extent of the use of certain derogations to the principle of equal treatment may, in specific cases, have led to a situation where the application of the Directive has no real effects upon the improvement of the protection of temporary agency workers .

On the other hand, the review of restrictions and prohibitions on the use of temporary agency work has served, in the majority of cases, to legitimate the status quo, instead of giving an impetus to the rethinking of the role of agency work in modern, flexible labour markets .

The Commission will continue to closely monitor the application of the Directive, taking into account further developments in the fields of labour law and temporary agency work, to ensure that its goals are adequately achieved and that its provisions are completely and correctly transposed in all Member States. In this context, the Commission will work in close contact with the Member States and the social partners within the working group that will follow the application of the Directive, as well as in other for a.

In addition, the Commission intends to tackle any problems in the implementation of the Directive with the appropriate means, including infringement proceedings where necessary. Complaints lodged with the Commission against Member States, petitions and preliminary questions to the Court of Justice may also constitute an important source of information as to national measures or practices that would be incompatible with the Directive.

Review of the Directive is not necessary : the Commission acknowledges the significant work that has been carried out on transposition of the Directive, in particular in Member States where there was either no legislation specifically regulating temporary agency work, or where the principle of equal treatment was recognised in national law for the first time.

As regards possible amendments to the Directive, the Commission states that more time is needed to accumulate experience in its application and to determine whether it has fully reached its objectives. There is as yet no case law of the Court of Justice on its application.

In that context and in the light of the Commission’s own assessment of the application of the Directive, taking into account views expressed by Member States and European social partners during the consultation process for this report, the Commission takes the view that no amendments are necessary at this stage .

PURPOSE: to provide a minimum EU-wide level of protection to temporary agency workers.

LEGISLATIVE ACT: Directive 2008/104/EC of the European Parliament and of the Council on temporary agency work.

CONTENT: the aim of this Directive is to ensure the protection of temporary agency workers and to improve the quality of temporary agency work by ensuring that the principle of equal treatment, as set out in the text, is applied to temporary agency workers, and by recognising temporary work agencies as employers, while taking into account the need to establish a suitable framework for the use of temporary agency work with a view to contributing effectively to the creation of jobs and to the development of flexible forms of working.

Scope: the Directive applies to workers with a contract of employment or employment relationship with a temporary work agency who are assigned to user undertakings to work temporarily under their supervision and direction. It applies to public and private undertakings which are temporary-work agencies or user undertakings engaged in economic activities whether or not they are operating for gain. Member States may, after consulting the social partners, provide that this Directive does not apply to employment contracts or relationships concluded under a specific public or publicly supported vocational training, integration or retraining programme.

Review of restrictions or prohibitions : prohibitions or restrictions on the use of temporary agency work must be 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. By 5 December 2011, Member States shall, after consulting the social partners in accordance with national legislation, collective agreements and practices, review any restrictions or prohibitions on the use of temporary agency work in order to verify whether they are justified on the grounds mentioned in the text.

The principle of equal treatment : the basic working and employment conditions of temporary agency workers shall be, for the duration of their assignment at a user undertaking, at least those that would apply if they had been recruited directly by that undertaking to occupy the same job.

As regards pay, Member States may provide that an exemption be made to the principle of equal treatment where temporary agency workers who have a permanent contract of employment with a temporary-work agency continue to be paid in the time between assignments.

In addition, Member States must specify whether occupational social security schemes, including pension, sick pay or financial participation schemes are included in the basic working and employment conditions. Such arrangements shall also be without prejudice to agreements at national, regional, local or sectoral level that are no less favourable to workers.

The directive sets out provisions on access to employment, collective facilities and vocational training , as well as provisions on the representation of temporary agency workers.

Review by the Commission : by 05/12/2013, the Commission must review the application of the Directive with a view to proposing, where appropriate, the necessary amendments.

ENTRY INTO FORCE: 05/12/2008.

IMPLEMENTATION: 05/12/2011.

The European Parliament adopted a legislative resolution approving the Council’s common position for adopting a directive of the European Parliament and of the Council on temporary agency work. The recommendation for second reading (under the codecision procedure) had been tabled for consideration in plenary by Harlem DESIR (PES, FR) on behalf of the Committee on Employment and Social Affairs.

The Committee on Employment and Social Affairs adopted a report drafted by Harlem DESIR (PES, FR) and approved the Council common position for adopting a directive of the European Parliament and of the Council on temporary agency work.

The Commission states that a number of European Parliament's amendments, taken into account fully, partly or in spirit in the Council's common position and the Commission's amended proposal.

Recitals: specifying the links between this proposal and Directive 1999/70 of 28 June 1999 on fixed-term work; adding a provision stipulating that temporary agency workers may not replace striking workers in the user undertaking.

Scope: rewording the scope to illustrate more clearly the triangular nature of temporary agency work; confirming that both user undertakings and temporary work agencies are covered by the Directive.

Aim: reinforcing the balanced aims of the Directive.

Definitions: deleting the definition of a comparable worker from the definitions in Article 3; adding the definition of a temporary agency; adding the definition of a user undertaking; an amendment stipulating that it is up to the Member States to define pay and specifying workers who cannot be excluded from the scope of the Directive.

Review of restrictions or prohibitions: extending the obligation on the Member States to review restrictions or prohibitions pertaining only to certain categories of workers or certain branches to include all restrictions or prohibitions; extending the scope of justifications for prohibitions/restrictions; specifying that national requirements concerning the registration and monitoring of temporary work agencies are not prohibitions or restrictions within the meaning of the Directive.

The principle of equal treatment: acceptance of the part rewording the principle of non-discrimination; restricting the exemption to remuneration and requiring consultation of the social partners; acceptance of the part on prior consultation of the social partners and enabling them to uphold existing collective agreements.

Access to employment, collective facilities and vocational training: amendment specifying how information on vacancies may be made public; arrangements whereby temporary work agencies may be recompensed for services rendered to user enterprises; specifying the scope of the prohibition on charging fees to workers; specifying the scope of the amenities and collective facilities in the user enterprise to which temporary agency workers should be afforded access.

Representation of temporary workers: taking account of the fact that workers' representation may be determined by collective agreements.

Other amendments which have been accepted by the Commission, but not adopted in the common position aim to: specify that implementation of Article 5 (principle of equal treatment) through an agreement between the social partners should be in line with national practice; restrict exemption to pay in the case of short-term contracts; leave the choice to workers as to whether to pursue direct action or action through their representatives where the provisions of the Directive are not being complied with.

Whilst the common position does not reflect all of the amendments proposed by Parliament and incorporated into the Commission's amended proposal, the majority of Parliament's amendments have nonetheless been adopted either in whole, in part or in spirit. In general it should be stressed that the common position considerably enhances the text of the initial proposal and responds to the European Parliament's desire to ensure that the principle of equal treatment, as regards basic working and employment conditions, between temporary agency workers and the workers directly recruited by user companies should have effect as of day one of their assignments. Progress has been made on several issues such as; the direct application of the principle of equal treatment for agency workers from the first day of an assignment without any exception for short-term assignments (so-called "grace period"), the clarification of definitions, and either consultation with, or involvement of, the social partners as a condition applying to the various derogations that permit some deviation from the equal treatment principle.

Prohibitions or restrictions on the use of temporary agency work can only be maintained after the implementation of the Directive if they are justified on grounds of general interest. At that stage, any continuing prohibitions or restrictions must be subject of review and made the subject to a report to the Commission. In the interests of subsidiarity, differing national practices as regards labour market conditions and industrial relations practice among the Member States can be accommodated through affording scope for derogation from the principle of equal treatment by collective agreement or - under specific conditions - by agreement between the national social partners.

The Council adopted, by qualified majority, a common position with a view to the adoption of an amended proposal for a Directive of the European Parliament and the Council on temporary agency work. The Belgian, Hungarian, Maltese and Portuguese abstained.

The common position includes a majority of the amendments (26 in total) resulting from Parliament's first reading of the Commission's proposal.

The general structure of the common position is in line with the general structure of the Commission's amended proposal. Specifically, the Council accepted an amendment to the title of the Directive, three amendments to the recitals as well as a number of amendments to the following articles: Article 1 on the scope, Article 2 on the aim of the Directive, Article 3 on definitions, Article 4 on the review of restrictions and prohibitions, Article 5 on the principle of equal treatment, Article 6 on access to employment, collective facilities and vocational training and Article 7 on the representation of temporary agency workers.

The main differences from the Commission's amended proposal are as follows:

Review of restrictions and prohibitions on the use of temporary workers (Article 4) : while essentially following the spirit of the Parliament's amendment, the Council added a new paragraph concerning the review of agreements negotiated by the social partners. The Council considered that, in order to respect their autonomy, the social partners should themselves review whether the restrictions and prohibitions negotiated by them were justifiable on the grounds set out in the first paragraph of Article 4. The Council did not consider it necessary to retain an explicit reference to the discontinuation of unjustified restrictions and prohibitions.

Principle of equal treatment (Article 5) : while generally following the Commission's amended proposal, the Council modified the text. The Council also considered that the principle of equal treatment from day one should be the general rule. Any treatment of temporary agency workers differing from that principle should be agreed by the social partners, either through collective bargaining or through social partner agreements concluded at national level. In the light of the modifications made to the text, a specific exemption for short-term contracts (six weeks or shorter), as envisaged in the Commission's amended proposal, was therefore no longer considered necessary or appropriate.

The common position reflects those of the Parliament's amendments which stress the importance of the role of social partners in negotiating arrangements on working and employment conditions. It also echoes the Parliament's concerns in relation to the prevention of misuse.

Penalties (Article 10) : the common position includes a new paragraph concerning measures the Member States are expected to take in order to ensure compliance with the Directive by temporary work agencies and user undertakings.

Implementation (Article 11) : the Council considered that the Member States would need three years to implement the Directive, while the Commission had proposed a two-year implementation period.

In addition, a number of recitals have been updated and modified, in order both to explain the modifications introduced by the Council to the Commission's amended proposal and to describe developments since the amended proposal was published in 2002. For example, references to the relaunch of the Lisbon Strategy, in 2005, and to the agreed common principles of flexicurity, endorsed by the European Council in December 2007, were included in the recitals.

Following the Commission's amended proposal, the Council did not accept the amendment which would have extended the possibility of not applying the Directive to employment contracts or relationships concluded under specific training programmes without any public support.

It also rejected an amendment calling for a comprehensive review of national legislations concerning temporary agency workers. The Council considered that this would be outside the scope of the Directive. Another two amendments to Article 5 were considered to be superfluous, one on non-discrimination and the other on safety and health at work and on safety training.

The Council sought to reach political agreement on the draft Directive aimed at establishing working conditions for temporary agency workers.

Already, in July, the Presidency announced that it would consult with different Member States in order to evaluate the conditions for balanced solutions concerning the legislative files under discussion in the (EPSCO) Council.

After extensive bilateral consultations with different Member States and the Commission, the Presidency decided to present compromise proposals for the Directive “temporary agency workers” as well as the Directive on “working time” (see COD/2004/0209 ). Both draft directives had been discussed separately, but the Presidency considered they were linked since they deal with central aspects of the regulation of contemporary labour markets.

Given the difficulties in finding separate solutions for each of the files, the Presidency decided that there would be added value in working on a simultaneous and integrated solution, thus allowing Member States to find a balance between the two directives that would be acceptable from the political point of view.

This joint approach was widely accepted by a large majority of Member States, in the Council. The connection between the two directives, and more specifically the proposals presented by the Presidency, was considered a solid and viable basis for negotiation towards an agreement on both.

The Presidency explored different solutions, within the balanced framework underlying the proposals, to reach an enlarged consensus that would be politically desirable.

Bearing in mind the fact that this linked proposal was still very recent, as well as the sensitive nature of these directives for some Member States and the importance of exploring all attempts to reach as broad an agreement as possible before the final decision was taken, the Council agreed that the best option at this moment was to postpone a decision , in order to further pursue the dialogue.

Nevertheless, the Presidency noted that a vast majority of Member States had spoken in favour of an integrated solution for the directives , building an overall equilibrium between the two. Thus, and respecting the dominant orientation within the Council, the Presidency stressed that this openness to dialogue and consensus sought only to strengthen the conditions for a solution that reflected the position of a clear and strong majority. The proposals presented are a major step forward, because they now open up an appropriate way of reaching a solution on these files. There is a real margin for political decision in 2008 , building on the solid basis for progress that the Council has just established. The forthcoming presidencies and the Commission might proceed with efforts to achieve a positive and final outcome on both directives, given the importance of the issues at stake and the specific needs of many Member States.

Progress on the “temporary agency workers” Directive: the draft Directive aims to establish, at European level, a common legal framework to regulate temporary agency work. It seeks to strike a balance between flexibility and job security, while completing a package of measures aimed at regulating working conditions for so-called "atypical" workers. It will, in its turn, be complemented by Directive 91/383/EEC of 25 June 1991, supplementing the measures to encourage improvements in safety and health at work.

The draft Directive would apply to workers who have an employment relationship with a temporary agency and who would perform temporary work under the supervision and direction of a user undertaking. It aims to ensure the protection of temporary agency workers and to improve the quality of agency work by ensuring, in particular, that the principle of equal treatment – in relation to workers recruited by the user undertaking to occupy the same job – is applied. Temporary agencies would be recognised as employers.

The main outstanding issues may be summarised as follows:

– prohibitions and restrictions on temporary agency work, in particular, their review or removal;

– the principle of equal treatment, possible exceptions to that principle and the maximum length of assignments to which such exceptions can apply.

The Council held a policy debate on the draft directive. Discussion focused mainly on the outstanding issue of equal pay and conditions for temporary workers. It was recognised that further efforts would be needed to enable the Council to reach and acceptable compromise for all delegations. Accordingly, the Presidency undertook to pursue its reflections as a matter of urgency, taking especially into account the link which the European Parliament has established between this proposal and the recent Working Time proposal. The draft directive aims at striking a balance between flexibility and job security. It completes a package of measures aimed at regulating working conditions for so-called "atypical" workers. Temporary work is seen as a key factor in meeting the requirements of the reform strategy laid down by the Lisbon European council in March 2000, as it allows for both the growth of employment and increased competitiveness.