CWS 3.0: December 17, 2014

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EU: Restrictions on temporary agency work must be lifted

In a recent case referred to the European Court of Justice, the advocate general issued an opinion that European Union member states must remove restrictions on temporary agency work in national legislation and collective agreements. “The case will be heard in early 2015 but such opinions are usually followed in 80% of cases," says Fiona Coombe, director of legal and regulatory research, Staffing Industry Analysts. “Whilst he acknowledges the value of temporary work, he also recognizes that restrictions on temporary work may be justified.”

At question is whether Article 4 of the Agency Workers Directive obliges member states to remove restrictions on temporary agency work in national legislation and collective agreements.

In AKT v. Shell Aviation Finland, Finnish transport workers union AKT filed suit against Shell Aviation for breach of a clause in a collective agreement that limited companies’ use of temporary agency workers, according to the European Legs and Regs Advisor. Specifically, the clause stated companies should limit use of temporary agency workers to tasks limited in time or nature, for reasons of urgency or the need for specialist skills that could not be carried out by their own staff. AKT challenged Shell’s use of interim staff as drivers delivering fuel to 18 airports, saying it was in breach of the agreement as they worked alongside Shell’s employees.

While Shell said it used the temporary agency workers in question as replacements to cover holiday and sick leave, it also argued the restrictions in the collective agreement were contrary to Article 4 of the Directive.

The advocate general agreed the provisions in the collective agreement amounted to restrictions Article 4 was meant to address. He noted the prohibition on the use of temporary workers alongside permanent employees for long periods of time might be justified on grounds of general interest, he added member states were obliged to assess the necessity and proportionality of such restrictions.

Annemarie Muntz, president of Eurociett, which represents the employment and recruitment industry in Europe, welcomed the court’s conclusion. “[The advocate general’s] 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.”

The AWD went into effect in 2011, and in March, Eurociett called its implementation “imbalanced.” Muntz said at the time, “While equal treatment for agency workers is in place in all EU member states, unjustified restrictions on temporary agency work still exist.”