Temporary work – derogations from the principle of equal treatment

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

Article 5 of Directive 2008/104 (directive on temporary work) provides for the principle of equal treatment:

1. The basic working and employment conditions of temporary workers are, for the duration of their mission in a user company, at least those which would apply if they had been recruited directly by this company to occupy the same job. .

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

In this case, the Federal Labor Court of Germany seeks to clarify among others:

  • the extent of arrangements concerning the working and employment conditions of temporary workers by means of collective agreements (particularly in terms of remuneration), in relation to the notion of comprehensive protection for temporary workers
  • if the comprehensive protection for temporary workers must be assessed from the angle of the collective agreement which establishes derogatory regimes, or by comparing the working and employment conditions of these workers with those applicable to comparable workers who are directly recruited by the user company
  • whether national courts can review collective agreements which establish arrangements concerning the terms and conditions of employment of temporary agency workers which derogate from the principle of equal treatment (to check whether the derogations have been established in compliance with the comprehensive protection for temporary workers)

The Federal Labor Court of Germany emphasizes two different interpretations:

  • comprehensive protection”refers to the general legal requirements applicable to all workers, whether they are recruited directly by a user company or are temporary workers”
  • Directive 2008/104 grants temporary workers a specific form of protection

In terms of remuneration, the AG relies on the report of the group of experts on the transposition of Directive 2008/104, in particular on the principle of “appropriate compensatory benefits for temporary workers”.

Simply put, if a collective agreement concluded under Article 5(3) of Directive 2008/104 derogates from the principle of equal treatment by setting a lower rate of pay, that collective agreement must compensate for this lower rate of payproportionally, by other provisions relating to the basic conditions of work and employment, in favor of temporary workers.

With regard to the assessment of the comprehensive protection for temporary workers (i.e. beyond remuneration), relying on the text of Articles 5(1) and 5(3) of Directive 2008/104, the AG considers that exceptional collective agreements must be compared to the working and employment conditions applicable to comparable workers who are directly recruited by the user enterprise, and the same principle of “compensatory benefits» applies.

With regard to the possibility of subjecting collective agreements concluded by the social partners to judicial review, the AG observes that “Notwithstanding the required respect for the margin of appreciation left to the social partners, there is no presumption that collective agreements comply with Union law.

However, collective agreements concluded on the basis 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 these collective agreements respect the comprehensive protection of temporary workers required by Article 5(3) of the 2008 Directive /104.

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