Explanatory Memorandum to COM(2002)149 - Working conditions for temporary workers - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2002)149 - Working conditions for temporary workers. |
|---|---|
| source | COM(2002)149  |
| date | 20-03-2002 |
The knowledge-based economy is founded on innovation and human capital and requires undertakings and workers to be able to adapt to change more readily. In order to make a success of the transition towards this economy, the cooperation of the social partners must be enlisted in a bid to promote more flexible forms of work organisation and reform the regulatory, contractual and legal environment so as to better reconcile flexibility and job security and create more and better jobs. It is with this in mind that the 2001 employment guidelines i and the broad economic policy guidelines for 2001 i recommend developing various flexible forms of employment and employment contracts.
These measures will help to implement the strategy adopted by the European Council in Lisbon in March 2000, which is intended to make the Union the most competitive and dynamic knowledge-based economic in the world capable of sustained economic growth with more and better jobs and greater social cohesion. The Union will thus put itself in a position to achieve full employment, i.e. a rate of employment of 70% overall, at least 60% for women and 50% for older workers, by 2010.
As the Social Agenda proposed by the Commission and the guidelines adopted by the European Council in Nice recommend, the Union must make use of all the available instruments to stimulate the creation of quality jobs, diversify forms of employment and reconcile flexibility and security.
One of the courses of action to achieve this priority aim was to build on the negotiations between the social partners on temporary work, and, after the break down of negotiations, to define a framework comparable to that which already applies to fixed-term and part-time work.
Contents
- 2. THE COMMUNITY DIMENSION OF TEMPORARY WORK
- 1. Overall view of the temporary sector in the European Union
- 2. National legislation
- 3. Temporary work and job quality
- 3. JUSTIFICATION FOR THE INITIATIVE
- 1. Previous initiatives
- A. First moves by the Commission
- B. Consultation of the social partners
- C. Transnational situations
- 2. ILO Convention C 181 1997 concerning private employment agencies
- 3. Subsidiarity
- 4. The principle of proportionality
- 4. LEGAL BASIS
- 5. THE MAIN ELEMENTS OF THE PROPOSAL
- 1. Overall description of the directive
- 2. Description article by article
- 1. Articles 1 to 3: Scope and definitions
- Chapter II: Employment and working conditions
- Chapter III Final provisions
According to a recent study i carried out by the European Foundation for the Improvement of Living and Working Conditions and based on a study i by the International Confederation of Temporary Work Companies (CIETT), the share of temporary work in Europe has been increasing steadily for ten years, with an annual rate of growth estimated at 10% between 1991 and 1998, even though its share of overall employment still remains small (averaging 2.1 million people (expressed in full-time jobs), or 1.4% of total employment in Europe in 1998).
There are four main reasons for this rapid growth which make temporary work a key element in boosting the capacity of the labour market, undertakings and workers to adapt:
* Generally speaking, undertakings have seen an increased need for flexibility in managing their labour force, particularly because of the more rapid and greater fluctuations in their order books. Temporary work can thus help to cope with a shortage of permanent staff or a temporary increase in workload, which is particularly important for SMEs, as they are more sensitive than other undertakings to the costs of recruiting and laying off permanent staff. But the benefits accruing from temporary work may be curtailed if the sector suffers from poor social standing and job quality. Undertakings, especially SMEs, have an increasing need for qualified workers with a wide range of skills and need them on a temporary basis too. Quality temporary work can thus provide a more effective response to today's economy's need for flexibility.
* From the point of view of the temporary workers themselves, this form of employment is often a means of gaining access or returning to the labour market, especially for young people. Depending on the Member States, between 24 and 52% of people who became temporary workers for the first time were not in gainful employment beforehand, because they were either unemployed or still undergoing basic training.
* More recently, undertakings have been using temporary work because they are short of staff with certain qualifications, especially in occupations related to information technologies. This phenomenon is symptomatic of a widespread European shortage of these qualifications which the action plan on skills and mobility, to be presented to the European Council in Barcelona by the Commission, is intended to remedy.
* Finally, the legislative framework has become far more flexible: today, the majority of the Member States have put this form of employment on their statute books and many have made their regulations more flexible, whereas just a few years ago it was prohibited in some Member States.
Despite its overall growth, temporary work has spread very unevenly in the Union. According to the above-mentioned study, around 80% of temporary workers in 1999 were employed in four Member States: the Netherlands, France, Germany and the United Kingdom. And its share in total employment differs too: in the Netherlands, temporary workers account for 4.0% of the working population, followed by Luxembourg (3.5%), France (2.7%), , the United Kingdom (2.1%), Belgium (1.6%), Portugal (1%), Spain and Sweden (0.8%), Austria, Germany and Denmark (0.7%), Ireland and Finland (0.60%), and Italy (0.2%).
These differences are mirrored by differences in the structure of the jobs in question, even though all sectors of activity use temporary work. In the United Kingdom, for example, 80% of the activities of temporary agencies are in the services sector and the public sector, whilst in France 75% are in manufacturing industry and in construction and public works.
The basic common feature of all temporary work is a 'three-way relationship' between a user undertaking, an employee and an agency. Although this applies everywhere, the legal situation varies considerably from one Member State to another. In many Member States, the conditions governing the employment of temporary workers and the activities of temporary agencies are strictly regulated. In others, such as the United Kingdom and Ireland, the legislative and regulatory framework is very flexible.
The type of provisions which apply also differ from one Member State to another. In some cases, such as in Germany, the sector is regulated almost exclusively by legislation. Very frequently there is a combination of legislative and agreement-based provisions but there are also situations in which it is codes of conduct that govern such activity.
- Broadly speaking, the Member States can be classified in three categories:
1. Those in which there are no definitions of temporary agency work or which have a very limited specific regulation: Denmark, Finland, Ireland and the United Kingdom.
2. Those which have specific definitions of and regulations for temporary work, mainly covering the relationship between the temporary agency, the user undertaking and the worker: Germany, Austria, Spain, Luxembourg, the Netherlands and Sweden.
3. Those which have drafted specific definitions of and regulations for temporary work covering not only the relationship between the temporary agency, the undertaking and the worker but also the status of the temporary worker: Belgium, France, Italy, Portugal and Greece.
- Although there are many differences in the way working conditions are regulated, some common features can be identified:
- The temporary agency is generally regarded as the employer of the temporary worker, who is therefore an employee. The United Kingdom and Ireland are the exceptions here: in some cases, the temporary agencies explicitly guarantee the persons they recruit the status of employees, in others temporary workers are regarded as being self-employed. Finally, some decisions made by the courts suggest that temporary workers are bound by a special contract because they are not employees of the temporary agency or the user undertaking.
- In its capacity as the employer, the temporary agency is bound to meet all the obligations this entails. However, the three-way relationship peculiar to temporary work frequently involves a sharing of responsibilities with the user undertaking, which sometimes has to guarantee payment of salaries and social contributions and has to apply health and safety rules. However, it is generally at the temporary agency that temporary workers can enforce their collective rights, although in some Member States (Austria, France and the Netherlands) they can enforce their rights in both under certain conditions.
- Temporary workers are recruited on the basis of a fixed-term contract. In Germany and Sweden, by contrast, permanent contracts are the norm. In some States, particularly Italy and the Netherlands, fixed-term contracts are converted to permanent contracts under certain conditions. In the Netherlands, for example, as soon as a temporary worker has been employed for over 18 months by the same user undertaking or more than 36 months by the same temporary agency, the contract between the agency and the worker is regarded as permanent.
- Temporary workers receive pay at least equal to that which a permanent worker in the undertaking carrying out identical or similar tasks would receive. A similar principle can also be identified in the provisions of legislation, agreements or codes of conduct governing the sector in Austria, the Netherlands, Belgium, France, Italy, Portugal, Spain, Luxembourg and Greece.
- An employee who is on strike may not be replaced by a temporary worker. This principle is very often enshrined in the legislation, collective agreements or codes of conduct.
- Access to the social services of the undertaking is very often provided for by the relevant legislation.
The 'Lisbon strategy' calls upon Europe to create more and better jobs. Temporary work is a key factor to meeting both these requirements:
- it enables the overall number of jobs to be increased, since it is particularly suited to the increased demands for flexibility in today's economy;
- however, it will not be able to provide a permanent source of jobs unless it is sufficiently attractive for workers and jobseekers, i.e. if it does not offer quality jobs despite its temporary nature (which does not prejudice the employment relationship between the agency and the workers). Demand for quality will steadily become more pressing in the coming years, especially as there will be a decline in the working population (9 million persons fewer in the Union between 2000 and 2025).
To determine job quality, the working conditions for a temporary worker and for a worker in the user undertaking carrying out similar tasks, who is, for example, helped or replaced by the temporary worker during his posting, need to be compared. The conclusions of the European Council in Stockholm i, which were fleshed out and clarified by the Communication from the Commission on 'Social and employment policies: a framework for investing in quality' i, identified various aspects of the concept of quality enabling this comparison to be made.
The first thing we should realise is that many of the aspects which determine the intrinsic quality of a job under a temporary contract are linked not with the employment relationship but with the sector of activity or the type of work carried out. According to a study by the European Foundation for the Improvement of Living and Working Conditions i, whilst the proportion of temporary workers in 1996 who thought that there were health and safety problems at work was 70%, the figure for workers with fixed-term contracts was the same and only slightly different for workers with permanent contracts (73%). The gap is greater with regard to the work content, which 76% of workers with permanent contracts say is interesting compared with 70% of temporary workers, but here the differences between the two categories (particularly seniority in the labour market) need to be taken into account too.
The main difference in terms of intrinsic quality seems to be related to pay. No data on the ratio between the pay of temporary workers and comparable workers in user undertakings exist. However, a number of figures which are available do indicate that at least on average agency workers tend to receive lower wages. In the national study for the European Foundation on Austria estimates are mentioned that in some cases the difference between the salary defined by the collective agreement in the user enterprise and the actual salary of agency workers may amount to as much as 30%. In contrast, another study quoted, which compares an agency worker's average gross income per month with the average income in the same line of work estimates that the wage gap may be only around 5%.
Figures contained in an official parliamentary report on the situation of temporary agency work in Germany indicate that agency workers might earn between 22% and 40% less than the average wage received by other workers. However, in Germany agency workers tend to have open-ended contracts and are also paid between two missions, which does not allow a direct comparison between their income and that of other workers.
Sector estimates for Spain (European Industrial relations Observatory, 28/7/99) suggested that before a new law came into force in 1999, which stipulates that wages of agency workers should be equal to the ones laid down in the collective agreement applicable to the user firm, wages paid by agencies may have been between 10% and 15% lower than in user enterprises.
For the UK, figures quoted in the national report for the study of the Dublin Foundation show that the average weekly income of full-time agency workers is 68% of the average weekly income for all employees, whereas the relevant figure for full-time people on fixed-term contracts is 89%.
Finally, willingness to do temporary work varies considerably. Almost a third of temporary workers say that they generally prefer this type of employment because of the flexibility it offers, the freedom to choose an employer and the opportunity to acquire a variety of occupational experience and hence to enhance one's employability.
Temporary workers take part in far less continuing vocational training (approximately 20%) than workers with permanent contracts (36%) or even fixed-term contracts (27%). User undertakings and the temporary agencies themselves have little incentive to give temporary workers vocational training because their posting at the undertaking is, by definition, temporary. However, there are some arrangements for improving access to training for temporary workers which are voluntary (as in the United Kingdom) or obligatory under collective agreements or under the law (such as in France, Belgium, Spain and Italy).
The situation with regard to equality for men and women varies greatly depending on the Member State. In some countries, mainly those where temporary work is most common in industry, construction and public works, such as Austria (87%), Germany (80%), France (74%), Luxembourg (77%), Spain (62%) and Belgium (60%), the sector is dominated by men. In other countries, such as the Netherlands, Portugal and the United Kingdom, there is a fair balance between the sexes. In Finland and in Sweden, however, women are very much in the majority, accounting for some 80% of all temporary workers.
As regards flexibility and job security, temporary work obviously offers undertakings and employees flexibility in managing employment. This is highlighted by the duration of postings, the vast majority of which do not exceed six months. In France and Spain, moreover, 80% of contracts last one month at most. Austria and the Netherlands are the exceptions here, since postings for longer than six months account for 30% and 17% of the total respectively.
The basic question is whether temporary workers can enter more stable and longer employment relationships, which means that a certain amount of job security is being fostered, or whether they remain in an employment relationship which is, by its very nature, insecure and is liable to be so permanently. The figures i give some grounds for optimism: depending on the country, between 29 and 53% of temporary workers find a permanent contract in the year following their recruitment by the temporary agency.
As regards health and safety, the third European survey on working conditions (2000) conducted by the European Foundation for the Improvement of Living and Working Conditions shows that working conditions are worse for temporary workers than for workers on other types of employment contracts. Temporary workers are exposed more to physical hazards (awkward posture, vibration and noise) and have to cope with higher work loads or work rates than workers on fixed-term or permanent contracts.
This Directive is a continuation of a number of proposals for legislation and recent negotiations between the social partners (June 2000 to May 2001) which did not produce an agreement. The Commission saw that these negotiations had enabled a fair amount of common ground to be identified, which suggested that the parties had in fact been very close to a consensus. This is why it wished to propose a directive immediately, incorporating the points agreed upon during the negotiations and formulating provisions to overcome the remaining sticking points.
Since the beginning of the 80s, temporary work has become an important cog in the machinery of the European labour market as undertakings have been seeking greater flexibility in job management.
More than twenty years ago now, the Council and the Parliament responded by adopting resolutions i in which they emphasised the need for Community action to provide a framework for temporary work and to ensure that the workers in question were protected. In 1982, the Commission submitted a proposal for a directive to them to meet this need. The proposal was amended in 1984 but was never adopted.
Subsequently, in 1990, the Commission put forward a set of basic rules to ensure that there was a minimum degree of consistency between the various types of contracts. It proposed three Council directives on atypical employment i covering part-time work, fixed-term contracts and temporary work. This was part of the action programme associated with the Community Charter of the Fundamental Social Rights of Workers, which stated that these new living and working conditions (i.e. work on fixed-term contract, part-time work, temporary work and seasonal work) should be 'harmonised from above'.
Two of the drafts presented by the Commission were intended to provide the employees concerned with a whole series of rights putting them on an equal footing with permanent full-time workers. The third was for temporary workers and was designed to guarantee the same conditions of health and safety as for workers in the user undertaking. Only the last proposal was adopted, taking the form of Council Directive 91/383/EC of 25 June 1991 supplementing measures to encourage improvements in the safety and health of workers at work with a fixed-term or temporary employment relationship.
Since no progress was made in the Council on the initiatives described above, the Commission decided to implement the procedure under Article 3 of the Agreement on Social Policy annexed to the Protocol (No 14) on Social Policy annexed to the Treaty establishing the European Community. On 27 September 1995, it therefore approved consultation of the social partners in accordance with Article 3 i of the said Agreement on flexibility of working hours and safety of workers.
The social partners' response revealed that there was widespread support for the basic guiding principle of non-discrimination of workers involved in these new forms of flexible work and for treatment comparable with full-time workers and workers on permanent contracts. Although opinions differed considerably as to the nature of and the appropriate level at which action was to be taken in this area, the majority of the social partners said they were prepared to play an active part in establishing the principles and in implementing them, mainly by a collective agreement at the appropriate level.
After examining their reactions, the Commission decided that Community action would be advisable and on 9 April 1996 decided to initiate a second round of consultation of the social partners under Article 3 i of the Agreement on Social Policy.
On 19 June 1996, three organisations, the UNICE (Union of Industrial and Employers' Confederations in Europe), the CEEP (European Centre for Public Enterprises) and the ETUC (European Trade Union Confederation) announced their intention to initiate negotiations in this area, dealing with the individual subjects one after another. They started by looking at part-time work and came to an agreement on 6 June 1997, which was implemented by Council Directive 97/81/EC of 15 December 1997.
They then negotiated on fixed-term contracts and reached an agreement on 18 March 1999, which was implemented by Council Directive 1999/70/EC of 28 June 1999.
Finally, in May 2000, the social partners decided to start negotiations on temporary work. However, on 21 May 2001 they had to acknowledge that they were not able to reach an agreement.
Apparently, the real bone of contention is the concept of the 'comparable worker'. The workers' representatives want the point of reference to be a worker in the user undertaking carrying out the same or similar work. The employers disagree, saying that such a comparison would be unjustified in countries where temporary workers have a permanent contract with the agency and are paid even when they are not on a posting. As far as the trade unions are concerned, the point of reference for the essential conditions of employment such as pay, working hours, safety and health, etc. has to be the comparable worker in the user undertaking, as is already the case in the majority of the countries in the Union. However, despite this basic disagreement, which persisted even though both sides were undoubtedly willing to concede some ground, the social partners did come to hold converging views on many other points. For this reason this proposal for a directive is largely based on the points where the negotiators were able to reach a consensus.
Finally, it should be noted that this proposal does meet the expectations of the social partners in the temporary agency sector -- namely Euro-Ciett, the organisation of employers, and Uni-Europa, the workers' organisation -- as expressed in their joint declaration of 8 October 2001 in which the two organisations set out their views on this subject and on the content of a future directive.
On 16 December 1996, the European Parliament and the Council adopted Directive 96/71 concerning the posting of workers in the framework of the provision of services, the prime aim of which was to promote cross-border services. The legislature was fully aware of the fact that this would require fair competition and measures guaranteeing that workers' rights were upheld.
The principle on which the directive is based is that the basic working and employment conditions in force in the host country have to be applied to both national and posted workers if the latter are employees of a undertaking established in another country. Transnational posting of temporary workers therefore comes within the scope of the directive. In practice, this means that temporary work agencies that wish to post their workers to user undertakings established in another Member State are obliged to apply to them the minimum statutory rights in force in the host country. These minimum rights include the conditions for posting of temporary workers.
This proposal for a directive is intended to clarify and harmonise the conditions for posting workers at national level. At the same time, it can be seen as an extension of arrangements already in force for transnational posting of temporary workers. In a proper internal market, it is only logical for the rules for posting temporary workers to be aligned with each other, irrespective of whether a posting is national or transnational.
Finally, it should be made clear that this proposal for a directive does not in any way alter the scope of, or the possibilities for exemptions from, the directive on the posting of workers.
The General Conference of the International Labour Organisation adopted the Convention on private employment agencies on 19 June 1997, one of the aims of which is to protect temporary workers. The Convention specifies the type of measures which States must take in order to guarantee adequate protection of temporary workers. Spain, Finland, Italy and the Netherlands have ratified this Convention.
The proposal for a Directive on working conditions for temporary workers responds to the objectives laid down by Article 136 of the Treaty establishing the European Community, in particular to the improvement of working conditions and the promotion of employment and the social dialogue.
With that in mind, the proposal complements the law of Member States, pursuant to article 137 of the Treaty by laying down a common and flexible Community framework aiming at improving the quality of work of temporary workers and the promotion of the temporary work sector.
The need to undertake Community action in this field is justified on several grounds.
Firstly, there is a need to extend at Community level the principle of non-discrimination between temporary agency workers and comparable workers of user undertakings, already in force in nine Member States. In so doing, the proposal for a directive will provide a stable framework for the development of temporary work. By guaranteeing minimum rights for temporary workers the proposal will make the sector more attractive and enhance its reputation. The greater attractiveness of agency work will give more choice to user firms and allow them to better meet their needs for flexibility, since they will have access to a larger pool of applicants. It will therefore lay the foundations for further expansion of the sector, contribute to fully realising its employment potential and improve the functioning of the labour market.
Secondly, with a view to promoting temporary work, it is necessary to pave the way to eliminate at Community level the existing restrictions and limitations to the use of temporary work which are no longer justifiable on grounds of the general interest and the protection of workers.
Thirdly it is urgent to supplement the exisiting Community law - Council Directives 91/383/EEC, 97/81/EC and 1999/70/EC - which already lay down the principle of non-discrimination as regards non-standard employment relationships, including in the field of health and safety the principle of non-discrimination between agency workers and workers of user undertaking.
Fourthly, a Community legal framework on temporary workers will echo the wishes of the intersectoral social partners at Community level who, launched in May 2000 negotiations in this field with a view to laying such a framework. It will also respond to the expectations of the social partners in the temporary agency sector who, in their joint declaration of 8 October 2001, acknowledged the need for a Community Directive in this field.
To this respect is worth noting that in its contribution to the Barcelona European Council, the International Confederation of Temporary Work Businesses - Euro- Ciett - welcomes a Community Directive on Agency work aiming at striking the right balance between workers protection and employment creation.
The action proposed also complies with the principle of proportionality, since it sets out a minimum level of protection in the Community, leaving it up to the Member States and also the social partners to make any adjustments which may be necessary to take account of national peculiarities.
Within this context, the framework established by the proposal for a directive is flexible. First and foremost, it is eminently suitable for consolidating or reinforcing good practices in the various Member States. It gives the Member States the option of waiving the principle of non-discrimination very extensively whenever temporary workers have a permanent contract. Member States may also delegate to the social partners the task of waiving this principle irrespective of the type of employment contract. Moreover, the proposal requires the Member States to conduct a periodic review of the restrictions which might have been imposed on temporary work. As the basic level of protection of temporary workers improves in the future, it ought to be possible to lift the restrictions hitherto justified by the desire to protect these workers.
Article 137 i of the EC Treaty provides that 'with a view to achieving the objectives of Article 136, the Community shall support and complement the activities of the Member States in the following fields: (...) - working conditions (...)'.
Paragraph 2 of the same article provides that to that end "the Council may adopt, by means of directives, minimum requirements for gradual implementation, having regard to the conditions and technical rules obtaining in each of the Member States. Such directives shall avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings.
The Council shall act in accordance with the procedure referred to in Article 251 after consulting the Economic and Social Committee and the Committee of the Regions".
Article 137 i constitutes the legal basis for this proposal.
The action which is proposed complies with these provisions. The proposal for a directive establishes a common set of minimum rules in order to encourage the spread of temporary work and enhance its quality.
For small and medium-sized undertakings (SMEs), temporary work obviously represents an ideal means of adjusting their labour force to market conditions. They make use of it to cope with temporary increases in activity and seasonal fluctuations or to replace absent workers and seek quality workers with good qualifications and motivation. In as far as the directive improves the image of temporary work by enhancing working conditions for temporary workers, it is likely that more people will be attracted to this type of employment. Temporary agencies will thus be able to offer a wider range of qualifications and provide a highly selective response to user undertakings' needs. Moreover, the proposal for a directive will, by establishing a stable, clear and legible framework, eliminate any blatant discrepancies between the national situations and make it easier for SMEs operating in the internal market.
This proposal for a directive establishes the general principle of non-discrimination of temporary workers, according to which a temporary worker may not be treated worse, in terms of basic working conditions, than a comparable worker who is defined as a worker in the user undertaking in an identical or similar job.
The proposal for a directive provides for one restriction of and two possible exemptions to the principle.
A restriction can be made if there is objective justification for a difference in treatment. This is the case when circumstances dictate that a temporary worker is in a different situation from a normally comparable worker and cannot therefore be treated in the same way.
Exemptions from the principle may also be made, first of all in the wider sense, when temporary workers have a permanent contract with the agency. In this case, and assuming that the temporary workers are still paid when they are between postings, the Member States may permit an exemption from the principle of non-discrimination to be made, given the additional protection enjoyed by the temporary workers.
The Member States may also authorise the social partners, by means of collective agreements, to establish working conditions which deviate from this principle as long as an adequate level of protection is ensured. This is intended to highlight the role of the social partners so that they can tailor the rules as closely as possible to the interests and needs of the parties concerned.
These two exemptions represent a proposal for a flexible response to the point on which negotiations foundered. They are a compromise between the need to create a level playing ground in terms of conditions of work for temporary workers and to make allowances for national legislation and practices.
At the same time, the proposal requests the Member States to review periodically existing restrictions or prohibitions on temporary work. Guaranteeing minimum rights for temporary workers should enable restrictions to be lifted in future that were originally justified by a desire to protect the workers in question, it being understood that any restriction on the freedom to provide services must in any event be necessary and in proportion to the aim of such a measure.
The proposal for a directive provides for an additional set of rules to improve the situation of temporary workers, mainly with a view to enabling them to gain access to permanent employment. To this end, the directive stipulates that temporary workers in a user undertaking must be informed about vacant posts and that any clauses prohibiting or having the effect of preventing the user undertaking from recruiting a temporary worker are null and void.
Temporary workers' material working conditions are also to be improved by enabling them to gain access to the social services of the user undertaking and to increase their employability by providing access to training organised in the temporary agency and in the user undertaking.
Finally, the directive stipulates that temporary workers are counted for the purposes of calculating the threshold above which workers' representative bodies provided for by national and Community legislation may be formed in a temporary agency. It is left up to the Member States whether this is to be extended to the user undertaking itself when the threshold is being calculated there. In any event, the user undertaking must inform its workers' representatives if temporary workers are to be employed.
Chapter I: General provisions
Article 1 defines the scope of the proposal for a directive. The Article includes the concept of 'temporary working relationships' as defined in the Directive of 25 June 1991 supplementing the measures to encourage improvements in the safety and health at work of workers with a fixed-term or temporary employment relationship i. The second paragraph stipulates that the directive is applicable to private and public undertakings.
Paragraph 3 enables the Member States to exclude from the scope of the directive persons who are undergoing a specific public programme for training, integration or vocational retraining or one supported by the public authorities.
Article 2 specifies the directive's aim.
Paragraph 1 of Article 3 defines the concepts of worker, comparable worker, posting and basic working and employment conditions. In paragraph 2 of Article 3, the reader is referred to national law for a definition of the employment contract or relationship; it is specified that a State may not exclude a worker from the scope of the directive on the grounds that he has a fixed-term contract, is working part-time or is on temporary work. The latter clause is intended to end the legal uncertainty which may surround temporary work in some Member States where the very varied interpretation of temporary workers' contracts may deprive them of the protection of labour legislation.
Article 4 stipulates that the Member States must review periodically restrictions or prohibitions on temporary work relating to specific groups of workers or sectors of activity.
Paragraph 1 of Article 5 establishes the principle of non-discrimination and defines the conditions in which it is to be applied. One limitation and two exemptions may be made in respect of this principle, first of all if there are objective reasons which prevent its being applied. Paragraph 2 also authorises the Member States to make an exemption from this principle in the specific case of temporary workers who have a permanent contract which ensures that they are still paid even when they are not on a posting. Paragraph 3 stipulates that the Member States may entrust the social partners with the task of concluding collective agreements which are exempt from this principle. Paragraph 4 provides that, for jobs of less than six weeks duration, Member States may not apply the principle of non-discrimination provided for in paragraph 1. Paragraph 5 sets out what is to be done in the event of a comparable worker not existing. Paragraph 6 specifies the practical arrangements for applying this Article.
Article 6 lays down for a series of provisions to improve the quality of temporary work. In order to give temporary workers the possibility of gaining access to permanent employment, they must be informed about vacant posts and must not face any obstacles if they are given an opportunity to conclude a permanent contract with the user undertaking once their posting has ended (paragraphs 1 and 2). Temporary workers may not be charged any fees (paragraph 3). They must have access to the social services of the user undertaking (paragraph 4). Finally, every effort must be made to improve temporary workers' training both in the temporary agency and in the user undertaking (paragraph 5).
Article 7 stipulates that temporary workers are counted at the temporary agency for the purposes of calculating the threshold above which workers' representations provided for by national and Community legislation may be formed. The Member States are free to extend this for the purposes of calculating the thresholds at the user undertaking.
Article 8 provides that the employees of the user undertaking must be informed of the fact that temporary workers are being employed in their undertaking.
Article 9: Minimum requirements (standard clause)
Article 10: Penalties (standard clause)
Article11: Implementation (standard clause)
Article12: Review by the Commission. This is proposed five years after adoption with a view to presenting any amendments.