Temporary agency work- derogations from the principle of equal treatment

On 14 July, Advocate General Collins delivered his Opinion in TimePartner Personalmanagement GmbH (C-311/21, EU:C:2022:581).

Article 5 Directive 2008/104 (Temporary Agency Work Directive) provides for the principle of equal treatment:

1. 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.

3.      Member States may, after consulting the social partners, give them, at the appropriate level and subject to the conditions laid down by the Member States, the option of upholding or concluding collective agreements which, while respecting the overall protection of temporary agency workers, may establish arrangements concerning the working and employment conditions of temporary agency workers which may differ from those referred to in paragraph 1.

In the case at hand, the Federal Labour Court of Germany seeks to clarify inter alia:

  • the extent of the arrangements concerning the working and employment conditions of temporary agency workers by means of collective agreements (notably in what the pay is concerned), in relation to the concept of overall protection of temporary agency workers
  • whether the overall protection of temporary agency workers must be assessed from the perspective of the collective agreement that establish derogatory arrangements, or by comparing the working and employment conditions of those workers, with those applicable to comparable workers who are directly recruited by the user undertaking
  • whether national courts may review collective agreements that establish arrangements concerning the working and employment conditions of temporary agency workers which derogate from the principle of equal treatment (to ascertain if the derogations have been established while respecting the overall protection of temporary agency workers)

The Federal Labour Court of Germany emphasises two different interpretations:

  • overall protection “refers to the general statutory requirements applicable to all workers, regardless of whether they are directly recruited by a user undertaking or are temporary agency workers”
  • Directive 2008/104 grants temporary agency workers a specific form of protection

In what pay is concerned, the AG relies on the report from the Expert Group on the transposition of Directive 2008/104, notably on the principle of “appropriate countervailing benefits for the temporary agency workers”.

In simple words, if a collective agreement made under Art 5(3) Directive 2008/104 derogates from the principle of equal treatment by setting a lower rate of pay, such collective agreement must counterbalance that lower rate of pay, proportionally, by other provisions relating to the basic working and employment conditions, in favour of temporary agency workers.

As regards the assessment of the overall protection of temporary agency workers (i.e., beyond pay), relying on the text of Articles 5(1) and 5(3) Directive 2008/104, the AG takes the view that derogating collective agreements must be compared to the working and employment conditions applicable to comparable workers who are directly recruited by the user undertaking, and the same principle of “countervailing benefits” applies.

As regards the possibility to subject collective agreements concluded by social partners to judicial review, the AG observes that “Notwithstanding the requisite respect for the margin of discretion afforded to the social partners, there is no presumption that collective agreements conform with EU law.

Or collective agreements concluded on grounds of national provisions transposing EU law, must comply with EU law.

It follows that “collective agreements concluded by the social partners may be subject to judicial review by national courts in order to ensure that such collective agreements respect the overall protection of temporary agency workers required by Article 5(3) of Directive 2008/104.

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