Interim work, a major challenge

The European Council meeting of 14 December 2007 (16616/1/07 REV 1) approved the agreement on common principles on flexicurity concluded at the Council on 5 and 6 December 2007.

Flexicurity involves the deliberate combination of flexible and reliable contractual arrangements, comprehensive lifelong learning strategies, effective active labor market policies and modern, adequate and sustainable social protection systems.” (Council of the European Union, 6 December 2007, 16201/07).

In accordance with the preamble (11) of Directive 2008/104, “Temporary work responds not only to the flexibility needs of companies but also to the need of employees to reconcile professional and private life. It thus contributes to job creation and to labor market participation and integration..”

How to reconcile flexibility and security in temporary work?

Below is a brief overview of recent cases in which the European Court of Justice (ECJ) is called upon to rule on issues related to temporary work:

Raad van bestuur van de Sociale verzekeringbank (C-713/20)

The case concerns the social security legislation applicable to temporary workers residing in a Member State other than that in which they work.

The preliminary question submitted to the ECJ concerns the periods between temporary work assignments (when no temporary work is carried out, and the employment relationship with the temporary work agency is terminated).

The referring court seeks to establish whether the legislation of the Member State in which the worker exercises the activity as an employed person is applicable -Art 11.3(a) Regulation 883/2004, or the legislation of the Member State of residence -Art 11.3 (e) said settlement.

The ECJ is called upon to rule on the notion of “exercise a salaried activitywithin the meaning of art 11 of regulation 883/2004, to practically determine whether this concept encompasses periods during which the employment relationship is not suspended (for example, unpaid leave), but terminated.

A possible affirmative answer raises the question of the duration of a temporary interruption resulting in the continuity of coverage in the country of employment.

Under discussion, the application to the present case of the judgments of the CJEU in the cases of Franzen (C-382/13, EU:C:2015:261) and Van den Berg and others (joined cases C-95/18 and C -96/18, EU:C:2019:76).

AG Pitruzzella will deliver its opinion on March 17.

NP v Daimler AG, Mercedes-Benz Werk Berlin (C-232/20)

The case concerns the interpretation of Directive 2008/104/EC on temporary work.

The Higher Labor Court of Berlin-Brandenburg, Germany, referred to the ECJ questions relating to: i) the concept of temporality in Article 1(1) of Directive 2008/104, and, ii) the compatibility with Directive 2008/104 of section 19(2) Temporary Employment Act (AÜG) and, iii) the existence of a right to a permanent employment contract between a user company and a temporary worker, stems directly from that directivein the event of successive transfers to the same user company and, iv) the compatibility with the said directive of the option left to the parties to a collective agreement to extend the maximum duration of transfer otherwise provided for by law.

Recalling the judgment of the Court of Justice of 14 October 2020 in the KG case (C-681/18, EU:C:2020:823) and the conclusions delivered by AG Szpunar in the AKT case (C-533/ 13, EU:C:2014:2392), AG Tanchev concluded that (opinion delivered on 9 September 2021 EU:C:2021:727):

  • word ‘temporarily’ in Article 1(1) of Directive 2008/104, it concerns only the period of secondment of the temporary worker in question to the user companyrather than the post to which he is assigned, and therefore permanent jobs and jobs which are not exercised “to ensure coverage” are not automatically excluded from the scope of Directive 2008/104
  • when applying the “test of abusive recourse to temporary work” of KG (i.e. “to determine if a employment relationship of indefinite duration was hidden behind successive temporary contracts intended to circumvent the objectives of Directive 2008/104, and in particular the temporary nature of temporary work.”), account should be taken of the nature of the work carried out for the user company (“including whether or not it is a permanent position”)
  • a temporary worker is not entitled, under Directive 2008/104, to the establishment of a permanent employment relationship with a user undertaking in the event of a finding of abuse of temporary work under Article 5 , paragraph 5, of Directive 2008/104’however, unless counter-legem interpretation of the law of the Member State, the national court cannot disregard the obligations arising from that directive
  • the application of Article 19(2) AÜG to the present case is incompatible with Article 5(5) of Directive 2008/104 (however, in a horizontal action between two private parties, the provisions of the law of a Member State which infringe EU law, can only be removed if this does not oblige contra Legem interpretation of the law of the Member States)
  • without prejudice to a possible misuse of temporary work within the meaning of Directive 2008/104 as interpreted by the case law of the CJEU, the extension of the maximum duration of the assignment may be left to the discretion of the parties to an agreement collective

The CJEU will deliver its judgment on March 17.

TimePartner Personalmanagement GmbH (C-311/21)

The case concerns the interpretation of the principle of equal treatment enshrined in Article 5 of Directive 2008/104 on temporary work, in particular the right of Member States to give social partners “the possibility of maintaining or concluding collective agreements which, while respecting the overall protection of temporary workers”derogating from the principle of equal treatment.

On May 18, 2021, the Bundesarbeitsgericht (Federal Labor Court of Germany) referred several issues to the ECJ arising from a horizontal action between a temporary work agency and a temporary worker.

The latter was granted the remuneration provided for by the collective agreement concluded between the Association representing the interests of German temporary work agencies and the Unified Union of the service sector, which provides for a derogation from the principle of equal treatment.

The AÜG allows derogation from the principle of equal treatment by means of a collective agreement, provided that this is not lower than the minimum hourly wage rates set in a regulation under Article 3a, paragraph 2 of the AÜG. Such minimum rates did not exist during the disputed period and the hourly rate paid on the basis of the collective agreement was lower than that received by comparable permanent employees of the user company.

As regards collective agreements containing provisions derogating from the principle of equal treatment, the referring court seeks to clarify: (i) the interpretation to be given to the concept of “comprehensive protection of temporary workers” of Article 5, paragraph 3, Directive 2008/104 and, ii) what criteria must be taken into account to ensure compliance with this comprehensive protection and, iii) the extent of the autonomy granted to the social partners in the event of derogation from the principle of equal treatment (in german law, collective agreements enjoy in principle a presumption of fairness) and, iv) whether the 2017 AÜG amendment limiting derogations through collective agreements, is sufficient to grant comprehensive protection to agency workers and, v) the extent to which national courts can review whether such collective agreements respect the overall protection of agency workers.

The principle of equal treatment enshrined in Article 5 of Directive 2008/104 is the subject of another request for a preliminary ruling from the Tribunal Judicial da Comarca de Braga – Juízo do Trabalho de Barcelos, Portugal, on 10 September 2020 (Luso Temp, C-426/20).

ALB SON KLINIKEN (C-427/21)

The case concerns the interpretation of the scope of Directive 2008/104.

By its first question, the Federal Labor Court of Germany (Bundesarbeitsgericht) seeks to clarify whether the “provision of personnel” (in the sense of outsourcing) falls within the scope of Directive 2008/104 on the temporary work.

The referring court first noted that only undertakings falling within the scope of Directive 2008/104 should comply with the rules governing temporary work.

To assess whether the case falls within the scope of Directive 2008/104, the referring court examined:

  • the notion of temporality which represents an intrinsic part of the definition of a temporary work agency (see among others judgment of October 14, 2020, JH v. VG, C-681/18, EU:C:2020:823 item 61)
  • the recruitment of the employee by the alleged temporary work agency: “The employment relationship was therefore definitely not concluded, as provided for in Article 3(1)(c) of Directive 2008/104, for the purpose of assigning the worker to a user undertaking

By its second question, the referring court essentially asks whether the exclusion of the ‘secondment of personnel’ from the scope of Directive 2008/104 (in the present case) is compatible with the protective purpose of that guideline.

The Federal Labor Court of Germany observed among others that the “existing conditions of employment continue to apply and the typical risks of hiring staff, in particular a high degree of job insecurity and constant assignment to different sites, are not present.”

Insofar as the CJEU rules that the “secondment of personnel” does not fall within the scope of Directive 2008/104, the case in question would be deemed to represent a situation of secondment of workers authorized by law. national, practically, the intention of the legislator and adopted text (AÜG-§1(3)2b).

On the contrary, the question will be answered whether the exclusion provided for by national law is compatible with Article 2 of that directive.


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