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Europe – Eurociett welcomes EU Court’s recommendation to lift restrictions on agency work

21 November 2014

On 20 November 2014 in a case referred to the European Court of Justice (ECJ) by the Finnish Court, brought by Finnish Labour Union AKT against Shell Aviation, centred on the interpretation of Article 4(1) of the EU Temporary Agency Work Directive (AWD) and whether different treatment of Agency Workers is allowed under a Collective Labour Agreement (CLA).  

The Advocate General has published his Conclusions on the case, which will be taken into account by the Court in its ruling expected in early 2015.

To-date, the ECJ has followed the Advocate General’s Conclusions in 80% of cases. 

The European Confederation of Private Employment Agencies (Eurociett) has welcomed the interpretation of the AWD, as it appears in the Advocate General’s Conclusions.

The Conclusions underline that article 4(1) of the AWD prohibits maintaining or introducing restrictions on agency work, and holds a material obligation to not just review, but to actually lift restrictions on agency work. The Advocate General underlines that the only justified restrictions on agency work are those that serve the “general interest”.

According to Eurociett, this is significant, as – if taken on by the Judges in their Ruling – this could provide the legal basis the European Commission has been missing with regards to the member states.

The Conclusions highlight the importance of the dual goal of the AWD: the protection of workers as well as the promotion of agency work as an important tool to deliver flexibility to labour markets and create jobs. The Advocate General concludes that the AWD is an instrument to create a well regulated agency work industry with good protection for workers.

Finally, the Conclusions give an interpretation of the temporal nature of agency work.

This notion does not, however, reflect the full spectrum of contracts needed and available in today’s labour market. It needs to be extended since temporary agency work in a series of member states; such as the Netherlands, Sweden, Germany, the UK, or France, also encompasses permanent and/or open-ended employment relations between a worker and an agency. The option to do so is also explicitly mentioned in the AWD itself, and can in fact be a ground to derogate from the equal pay principle. 

Annemarie Muntz, President of Eurociett, commented: “We welcome the conclusions by the court’s Advocate General. It clearly shows that unjustified restrictions on agency work need to be removed. His conclusions note the contribution that agencies make to labour markets and states that they are good for employment. This is precisely why the Agency Work Directive was put in place.”

“Agency Work is proven to contribute to well-functioning labour markets and to maintaining high levels of labour market participation. Ensuring that agency workers have access to jobs will help to reduce unemployment in Europe and support economic recovery.”

“These conclusions support us in our quest to urge Governments of European member states to fully implement the Agency Work Directive, lift restrictions, and allow our industry to play a positive role on the labour market,” Ms Muntz concluded.