The ‘overall protection’ of temporary agency workers, the role of social partners, and the case of Denmark

IF 1.1 Q2 LAW
Natalie Videbæk Munkholm
{"title":"The ‘overall protection’ of temporary agency workers, the role of social partners, and the case of Denmark","authors":"Natalie Videbæk Munkholm","doi":"10.1177/20319525241234434","DOIUrl":null,"url":null,"abstract":"The article analyses the CJEU ruling C-311/21 TimePartner, where the Court interpreted the option provided in the Temporary Agency Work Directive for social partners to derogate from the principle of equal treatment. The CJEU concluded that the term ‘while respecting the overall protection of temporary agency workers’ is a criterion for using the option to derogate, and that a derogating collective agreement must be subject to legal review of fulfilling this criterion, even in Member States where collective agreements are presumed to be correct. Furthermore, the CJEU ruled that in order to respect the overall protection, any disadvantages in basic working conditions, i.e., working time and pay, should be set off against other advantages relating to the basic working conditions for the temporary agency workers. Finally, that the assessment is an in concreto comparison of disadvantages and advantages in terms of the basic working conditions applicable at the specific user undertaking. The article argues that the CJEU, with this approach, at the same time restricts the room for negotiation of national social partners concluding derogating agreements, and directs the legal review of the national judiciaries. This approach may interfere in the national industrial relations systems in some Member States more than others. The article then discusses how the Danish legal framework respects the overall protection of temporary agency workers. Temporary agency workers are addressed in many collective agreements in force at user undertakings with a view to counteracting circumvention of the collective agreement, and likewise, many temporary work agencies are covered by collective agreements. The transposition process in 2013 of the option to derogate is presented. The Danish Supreme Court in 2019 ruled, that the term ‘respecting the overall protection’ in the derogation provision in the Danish Temporary Agency Workers Act constitutes a legal criterion, which can be subject to judicial review, and is not an automatic consequence of a collective agreement. The article discusses how an assessment of the level of protection would be carried out in Danish industrial judiciaries, taking inspiration from earlier industrial case law comparing the overall protection of competing collective agreements. The article finally asserts that the approach of the CJEU in the TimePartner ruling protects temporary agency workers rather than pursuing flexibility in the labour markets, and as such favours one of the dual aims of the Directive. In that light, the approach taken by the CJEU ensures that derogating collective agreements meet certain standards in terms of the basic working conditions of temporary agency workers. At the same time, the ruling does not interfere with other negotiated or legislated working conditions, where the TAW Directive does not in itself require equal treatment or ‘overall protection’. The limitation of the TAW Directive to concern equal treatment only for basic working conditions, and not all working conditions, thus continues to allow a degree of flexibility for employers as well as for temporary agency workers.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":null,"pages":null},"PeriodicalIF":1.1000,"publicationDate":"2024-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"European Labour Law Journal","FirstCategoryId":"1085","ListUrlMain":"https://doi.org/10.1177/20319525241234434","RegionNum":0,"RegionCategory":null,"ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q2","JCRName":"LAW","Score":null,"Total":0}
引用次数: 0

Abstract

The article analyses the CJEU ruling C-311/21 TimePartner, where the Court interpreted the option provided in the Temporary Agency Work Directive for social partners to derogate from the principle of equal treatment. The CJEU concluded that the term ‘while respecting the overall protection of temporary agency workers’ is a criterion for using the option to derogate, and that a derogating collective agreement must be subject to legal review of fulfilling this criterion, even in Member States where collective agreements are presumed to be correct. Furthermore, the CJEU ruled that in order to respect the overall protection, any disadvantages in basic working conditions, i.e., working time and pay, should be set off against other advantages relating to the basic working conditions for the temporary agency workers. Finally, that the assessment is an in concreto comparison of disadvantages and advantages in terms of the basic working conditions applicable at the specific user undertaking. The article argues that the CJEU, with this approach, at the same time restricts the room for negotiation of national social partners concluding derogating agreements, and directs the legal review of the national judiciaries. This approach may interfere in the national industrial relations systems in some Member States more than others. The article then discusses how the Danish legal framework respects the overall protection of temporary agency workers. Temporary agency workers are addressed in many collective agreements in force at user undertakings with a view to counteracting circumvention of the collective agreement, and likewise, many temporary work agencies are covered by collective agreements. The transposition process in 2013 of the option to derogate is presented. The Danish Supreme Court in 2019 ruled, that the term ‘respecting the overall protection’ in the derogation provision in the Danish Temporary Agency Workers Act constitutes a legal criterion, which can be subject to judicial review, and is not an automatic consequence of a collective agreement. The article discusses how an assessment of the level of protection would be carried out in Danish industrial judiciaries, taking inspiration from earlier industrial case law comparing the overall protection of competing collective agreements. The article finally asserts that the approach of the CJEU in the TimePartner ruling protects temporary agency workers rather than pursuing flexibility in the labour markets, and as such favours one of the dual aims of the Directive. In that light, the approach taken by the CJEU ensures that derogating collective agreements meet certain standards in terms of the basic working conditions of temporary agency workers. At the same time, the ruling does not interfere with other negotiated or legislated working conditions, where the TAW Directive does not in itself require equal treatment or ‘overall protection’. The limitation of the TAW Directive to concern equal treatment only for basic working conditions, and not all working conditions, thus continues to allow a degree of flexibility for employers as well as for temporary agency workers.
对临时工的 "全面保护"、社会合作伙伴的作用以及丹麦的案例
文章分析了欧盟法院(CJEU)的第 C-311/21 号裁决(TimePartner),法院在该裁决中解释了《临时代理工作指令》中为社会合作伙伴提供的减损平等待遇原则的选择。欧盟法院的结论是,"同时尊重对临时工的整体保护 "是使用减损选择权的一个标准,即使在推定集体协议正确的成员国,减损集体协议也必须接受符合这一标准的法律审查。此外,欧盟法院还裁定,为了尊重总体保护,基本工作条件(即工作时间和工资)方面的任何不利条件都应与临时机构工人基本工作条件方面的其他有利条件相抵消。最后,评估应具体比较适用于具体用户企业的基本工作条件的劣势和优势。文章认为,欧盟法院采用这种方法,同时限制了国家社会合作伙伴缔结减损协议的谈判空间,并引导国家司法机构进行法律审查。这种做法可能会对某些成员国的国家劳资关系制度造成更多的干预。文章随后讨论了丹麦法律框架如何尊重对临时机构工人的整体保护。用户企业的许多现行集体协议都涉及临时工问题,目的是防止规避集体协议,同样,许多临时工作机构也在集体协议的覆盖范围内。介绍了 2013 年减损选项的转换过程。丹麦最高法院于 2019 年裁定,《丹麦临时机构工人法》减损条款中的 "尊重整体保护 "一词构成一项法律标准,可接受司法审查,而不是集体协议的自动结果。文章讨论了丹麦行业司法机构如何对保护水平进行评估,并从早期的行业判例法中得到启发,对相互竞争的集体协议的整体保护进行了比较。文章最后指出,欧盟法院在 TimePartner 案的裁决中采取的方法是保护临时工,而不是追求劳动力市场的灵活性,因此有利于实现指令的双重目标之一。有鉴于此,欧盟法院采取的方法确保了减损性集体协议在临时机构工人的基本工作条件方面达到一定的标准。同时,该裁决并不干涉其他协商或立法规定的工作条件,因为 TAW 指令本身并不要求平等待遇或 "全面保护"。因此,《临时工指令》只涉及基本工作条件的平等待遇,而不是所有工作条件的平等 待遇,这就继续为雇主和临时工提供了一定程度的灵活性。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
求助全文
约1分钟内获得全文 求助全文
来源期刊
CiteScore
1.60
自引率
28.60%
发文量
29
×
引用
GB/T 7714-2015
复制
MLA
复制
APA
复制
导出至
BibTeX EndNote RefMan NoteFirst NoteExpress
×
提示
您的信息不完整,为了账户安全,请先补充。
现在去补充
×
提示
您因"违规操作"
具体请查看互助需知
我知道了
×
提示
确定
请完成安全验证×
copy
已复制链接
快去分享给好友吧!
我知道了
右上角分享
点击右上角分享
0
联系我们:info@booksci.cn Book学术提供免费学术资源搜索服务,方便国内外学者检索中英文文献。致力于提供最便捷和优质的服务体验。 Copyright © 2023 布克学术 All rights reserved.
京ICP备2023020795号-1
ghs 京公网安备 11010802042870号
Book学术文献互助
Book学术文献互助群
群 号:481959085
Book学术官方微信