Brussels, 09/09/2014 (Agence Europe) - With the arguments of the interested parties on Tuesday 9 September, the Court of Justice of the European Union began, for the first time, a legal debate on the scope and application of the directive on temporary agency work (2008/104/EC). May the use of agency workers for a lengthy period in the ordinary work of an undertaking alongside the undertaking's own employees be defined as a prohibited use of agency labour? These are the questions on which the judges will rule, matters all the more import in the current context, where the number of permanent jobs has stagnated in the EU over recent years and the majority of jobs created have been with part-time or temporary contracts. The Advocate General will give his opinion on 20 November.
A Finnish court referred a number of preliminary questions to the European Court of Justice (case C-533/13). The claimant party in the proceedings at issue was the Finnish trade union AKT, which represents workers in the transport sector, while the defending party is the oil sector company Shell Aviation Finland Oy. The European judges will have to address three questions, all related to the first paragraph of Article 4 in the directive, which stipulates that “prohibitions or restrictions on the use of temporary agency work shall 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”. How should this be interpreted? Should the national agreements signed by the social partners be overseen in light of this directive? If this is the case, what means do the national courts have to enforce this? Finally, must the directive be interpreted as precluding a national provision under which the use of temporary agency labour is permitted only in the cases specially listed, such as to cope with peak periods of work or for work which cannot be given to an undertaking's own employees to do? For the Finnish employers, this article can be interpreted in the sense that it requires removal of restrictions or prohibitions involving the use of temporary agency workers but this view is obviously not shared by the unions. The directive defines a temporary agency worker as a person who has a work contract or work relationship with a temporary work agency, with a view to being made available to a user company, so that the worker can be employed there temporarily in the employ of the company in question. This common framework throughout the EU attempts to introduce a balance whose objective is to guarantee an effective level of protection for temporary agency workers, whilst making the temporary agency work sector a flexible option for employers and workers. It is a fragile balance that is now the main issue in this case.
During the arguments on Tuesday 9 September, representatives from four member states intervened: Finland, Sweden, Germany and Norway. They all defended the same position and argued that the legal basis of the directive does not force member states to remove the bans or restrictions on the use of temporary agency workers agreed at a national level. The European Commission's position was more or less the same. The draft directive could be interpreted in this way but the final version in force today throughout the EU does not provide for it, according to the Commission representative, as the legal adviser for the European Trade Union Confederation, Wiebke Warneck, who attended the hearings, told EUROPE.
Given the considerable stakes at play in this EU labour law case, it is hardly surprising that the ETUC is also involved in the affair. According to the ETUC, the interpretation proposed by the Finnish employers is misleading and could lead to an increase in part-time jobs, to the detriment of full-time employment, according to a press release published on Monday 8 September. The ETUC said that temporary agency workers had less job security, lower salaries and less access to social benefits and training opportunities provided by companies. The objectives sought by the employers would therefore be to simply reduce their costs and increase their profits to the detriment of the workers. Addressing the court, the Finnish lawyer representing AKT, based his arguments less on the directive than on the EU's Charter of Fundamental Rights and its Article 28 on negotiating rights and collective action. (JK)