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Europe - Fixed-term Work Directive does not apply to temporary agency workers

17 May 2013

A recent European Court of Justice ruling has provided important clarification that EU legislation protecting fixed-term workers does not apply to temporary workers supplied by an employment agency to an end-user company or organisation according to the Ius Laboris alliance of Employment law practitioners.

The case (Della Rocca v Poste Italiane SpA, C-290/2012), which originally came before the Naples District Court, concerned a temporary agency worker who had been supplied on a series of fixed-term contracts to an end user (the Italian postal service). When his assignment came to an end, he argued that the EU Fixed-term Work Directive (No.99/70) applied to him, with the result that he was now in an open-ended employment relationship with the end user. The Naples Court referred the matter to the ECJ for a preliminary ruling on the legal position.

In line with the defence submitted on behalf of the end user (represented by Toffoletto De Luca Tamajo e Soci), the ECJ clearly confirmed that the Fixed-term Work Directive should be interpreted as applying neither to the fixed-term employment relationship between a temporary worker and an employment agency, nor to the employment relationship between such a worker and an end-user organisation. The ECJ made clear, in addition, that the directive does not regulate commercial contracts between temporary employment agencies and end users.

According to the ECJ, it is apparent from the wording of the Fixed-term Work Directive that its scope does not extend to fixed-term workers placed by temporary employment agencies at the disposal of end users. The court was influenced by the fact that such workers are separately protected by the specific provisions of the EU Temporary Agency Workers Directive (No. 2008/104).

In light of this judgment, it is now clear that the Agency Workers Directive is not just aimed at regulating commercial contracts between employment agencies and end users, but rather concerns the general regulation of the tripartite relationships involved in temporary agency work. In contrast, the Fixed-term Work Directive applies only to workers who enter into an employment contract directly with an employer, which clearly excludes agency workers.

This clarification, while it may seem slightly obvious, is in fact a highly valuable development in the context of Italian employment law — particularly as national judges tend to subject commercial contracts for the supply of temporary staff to the same safeguards as fixed-term employment contracts.


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