Temporary Agency Workers in the European Union - Essay Example

Temporary Workers Introduction One of the fastest growing models of employment includes the formation of the temporary agency work in the European market. Temporary agency workers in the European region especially the United Kingdom, workers are often vulnerable to low paid jobs predominantly in the catering sector, care sector and call centres. Its worth noting that the workforce of the agency is significantly younger that the average. By contrasting with those who are permanently reemployed, the agency workers currently are lower salary earners, lack holidays, no entitlement to rights like parental leave, maternity, paternity leave and most of the time, they are excluded from career development opportunities like trainings and other learning occasions. The proposal for the directive on temporary agency workers was adopted ion the year 2002 after talks between the European commission and social partner failed, the proposal suggest equal treatment of all workers as the main objective ensuring that under thee umbrella of agency, these workers also receive the same salary and the same working conditions as their permanent workers counterparts on the same job or similar assignment. The European Union has however failed to agree on some of the issues in the proposal and the progress is hardly beyond the first reading in the parliament since its introduction in 2002, nonetheless, the union has grown since then seeing ten new member states by the year 2004. Temporary Agency Workers in the European Union Temporary agency work has been on the increase over the past few years in most parts of the European Union covering countries like Italy, Spain, Denmark and Sweden causing the use of temporary agency workers to increase by a five fold while doubling in the other nations1. European foundation to help fight for improved living standards and working conditions is estimated that about 2% of the workers in the old member states of the European union were temporary agency workers on contracts, and every year about 6 million people are reported to have been on the agency at some point or another. This model of working is also on the increase in the new members of the European Union with Slovenia passing a legislation that authorized the temporary work agencies in the year 19982. The enlargement of the European Union saw the increase of opportunities for temporary worker agency workers in all these countries to establish minimum standards to cut down chances of underpayment and also improve their working conditions. many employers can now find workers with the necessary skills specifically as they require at the same time avoiding the staffing and administration expenses, and capitalizes on the temporary workers agency to cut down salary costs and increase their flexibility and hence the recruitment can be done in a very short time3. The international conference of temporary work business, has also affirmed that most firms are now using these agencies to find their recruits estimated at about 27% of the companies workforce. Statistics show that young people of the 25 and below make up the largest percentage of the agency workers. Recruitment arrangements are designed partly to help workers benefit from the companies trainings to gain experience in a given sector and also to enable flexibility y in the working. the nature of jobs offered by the agencies varies from country to country the same way the gender profile of workers does, the united kingdom’s service and public sector is dominated by temporary agency work approximated at about 80%, while in France three quarters of the work is in manufacturing and construction trade4. The gender statistics of the workers show that men are the majority (of the European Union) with very few women workers though in Netherlands and the United Kingdom the ratio of men to women is almost equal. the working conditions for the agency workers is not a good one and its due to his that most of the agency workers are unhappy with their work and the prevailing conditions as compared tot the permanent workers5. The Working of the Model Temporary agency mode of operation involves the use of an intermediary that is a third party usually an agency which works on behalf of the workers connecting them to the company or the firm in question6. Contractual set of laws may vary in different states or nations but in most places, the agency that employs the workforce, leases them to the user firm on a temporary basis as required. Since the impermanent staffs are prone to frequent shifts from one workplace to another, securing a collective representation rights has always been very difficult. Trade unions have been working on these efforts and have concluded national deals in several EU nations Sweden, Spain, France and Netherlands7. Major setbacks Temporary agency has recorded the worst working conditions ever based upon several indicators including dissemination of information to workers about the workplace health hazards and repetitive labour The workers in the temporary agency do not have any control or have very little control over the type of work they do and how they do it because of lack of training of very little training. For the same reasons, temporary agency workers are prone to accidents at their workplaces and they have very little information about the safety regulations and precautions. they cannot tell health hazards and avoid them or correct where possible, on the other hand these workers spend more time at the workplace to complete a very little task or assignment on the job8. Temporary agency working is associated with job insecurity in many of the EU nations, in France, the standard work assignment only lasts a fortnight. The pay that agency employee earns has been a crucial topic for debate especially in comparison tot their permanent counterparts. Most agency workers earn lower salaries and are excluded from benefits and bonuses awarded to their permanent counterparts The proposed temporary agency work directive The need for a legitimate framework to protect temporary agency workers is very obvious as the employees were being exploited by the employers. the European commission acted by giving proposals on a directive highlighting the principle of non discrimination against temporary workers, targeting to minimize the European union standards and generate a level playing ground for firms in different member countries9. The directive states that the temporary agency employee should not be treated discriminatory on basis of lack of skill and hence exploits them in the general working conditions, and salaries as compared to their permanent counterparts fro performing a comparable task in the same company. The foundation The European parliament together with the council supported the resolutions that favoured the safeguarding of the temporary agency workers rights twenty years back with the European commission submitting a draft in 1982 but was never adopted10. The European commission further pushed for implementation of the lowest level of constancy in between different types of contracts and projected regulation in the following areas; temporary job, fixed term contract and part time contract. The stakeholders in the employment together with the European commission launched consultations with European social partners, employer’s and worker’s representatives. In the year 1997 and 1999, the social partners agreed on the part time work and fixed term contracts and the EU directives were made official. Social partner organizations (European trade union confederation-ETUC) instigated negotiations with the temporary agency on temporary work agreement but after a year of negotiations, negotiators realized that the employer could not agree to comply with temporary agency workers conditions to be equal to the permanent staff of the firms. Having failed to reach a consensus on the issue, the commission came up with its own temporary agency work directive in the year 200211. Since then there has never been another agreement despite the efforts by stake holders to find a compromising ground. Regulation of Temporary Work Agency Across Europe In Austria, all temporary workers work contract were permitted if they are indefinite and on he other hand, it would be dictated by the main aims as the reasons for acceptance. The contacts are not limited by the number of renewals, for Belgium, the contracts are restricted to the particular reasons; including substitution of workers not present (restricted to 12 months) with temporary increase in workload for 18 months or extended by united agreement, outstanding work can be extended up to 3 months and that renewal the contracts need some authorization12. the Czech republic has not constraints so far for good employee however those that suffer from physical mental of any other health problem may be restricted like disabled workers and/or the under 18 and recent graduate of apprenticeship. In Denmark temporary work contracts are permitted with no limit of renewal. However the Danish confederation of trade unions states that the law demands a notification of 4 to 5 renewals. Finland has no restrictions, in France, the contracts are restricted to intention situation the maximum time is 18 months but can vary from 9 months to about 24 months. All are permitted in Germany a part from those that are involved in construction renewal of fixed term contract are restricted. Ireland has no restrictions, in Italy the contract can be extended to construction and agricultural sectors and reduced limit fro unskilled employees, technical organization and production plus the replacement of absentee workers. In Netherlands there are not admittance except fro seamen alone. Renewal is allowed after the eight year for three months. Poland allows seasonal tasks or precise projects with temporary replacement of absentee permanent worker, an increase in workload. After a period of three months, the maximum duration of TWA for one worker is 12 months and a new contract starts following a period of waiting for 36 months13. Portugal admittance is limited to objective reasons which include seasonal activity and replacement of absentee permanent employee. Renewal is restricted to certain contracts with permission from labour inspectorate succession of temporary employee is forbidden renewal is after 12 months or 6 depending on an objective. Since the year1994 the restriction to entry is based on objective situation but there is no limit on the duration of substitution and contracts related to a specific task, a period of 6 months is allowed on temporary worker in cases of an increase in workload14. Sweden allows al contractors with the same rules as those for fixed term contractors and duration of the work applying. United Kingdom does not offer any restrictions as well as Switzerland, Canada, and Australia. Norway offers restrictions as those of fixed term contracts and no limits on the renewals as long as an objective reason is given. The Trade Union Confederation TUC supported and still supports the proposals that were laid down in the European Union directive; the union proposes that the agency workers should enjoy the benefits just like the one on fixed term and those on part time15. A study carried out in the UK by European foundation on the improvement of the living standards and the working conditions found that the average weekly salaries of the agency workers was just close to 68% of the average wages of all employees in the united kingdom16. With the DTI regulations and the evaluation of RIA approximated that non biased pay would benefit all employees in the UK a total of 366 million sterling pounds whereas the agency workers would profit from improved holiday pay and yearly leave by 118 million sterling pounds RIA Rich internet application- has also undertaken to improve training for agency workers and enhanced output for customer companies plus improved skills for agency workers resulting in improved rates for agencies. The fact that strong temporary agency worker ruling is developing, minimum standards for the handling of agency workers across the EU would augment quality and develop the skills foundation of the entire labour force making agency smarter proposition for employers and employees as well. Reputable firms that offer unadulterated flexibility and high-quality working conditions will keep on to thriving while scoundrel agencies which take advantage of the existing susceptibility of agency workforce, due to the EU wide set of minimum standards and the resultant increase in the level of playing ground17. The TUC is against employing any qualifying period for the same treatments rights to apply to any employee including for salary and other essential employment circumstances any qualifying period would possibly lead to a levelling, additionally, a qualifying time would work as a get-out that dishonest employers could use to evade providing fundamental rights at workplace according to statistics from the 2004 labour force survey. Temporary Agency Work in European Union Averagely agency workers are found to b younger that other employees, this is according to the European Foundation fro Improvement of living and working conditions (EFILWC) Spain has 84% has agency workers who are below the age of 34 and 47% being younger than 25 years old. The United Kingdom has an average of 32 with over 30% of the employee being younger than 25 years18. The same kind of pattern continues to the rest of the countries like Finland, France, Denmark and Sweden. Employees in the temporary agency worker’s are basically of low education level compared to average workers. Statistics show that about 5.7% of all germen temporary agency workers do not have high school qualifications as compared to 1.5% of those from total workforce19. Of all the agency employees only a staggering 13.2% had attained the university education while in the total workforce of the country the percentage was 20.8%. The Spanish are no different and only 6.8% of all temporary agency labour force had university education while 38% had the elementary education qualification and the trend goes like that in other countries like Finland, Sweden, Netherlands and France20. Agency work has been perceived as the stepping stone into permanent employment but unluckily there is no empirical evidence to prove this. The chief objective as to why people get in to the agency is to be able to find a permanent job, with work life equilibrium or diversity of work being usually of derivative significance. Nevertheless 2004 labour force investigation data from the UK exposed that 28% of agency employees optimistically chose TAW over permanent work. Most of the member countries of the European market have enacted the legislation that gives the agency workers the same salary as the permanent employee on the same job21. There are some temporary agency workers in the eastern European nations that enjoy certain rights and protections compared to their counterparts in the United Kingdom. The rules to give equality at workplaces seem to be still at infancy. Most of the countries in the Eastern Europe having only introduced the agency workers recently. Nations like Slovakia and Czech Republic it was permitted in 2004, with both countries seeking to address the equal treatment for both permanent and agency workers22. The employment agency and the customer firm should make sure that the agency employees working conditions and salary are comparable with those of the customer firm’s employees doing the same work or similar job. In case the agency’s salary or working conditions worsen, the liabilities descend on the agency to produce similar treatment. The agency employees have rights to make compulsory claims if they arise from worse working environment in the employment agency. Employment agencies are responsible for obtaining the licenses from the labour ministry and social affairs and the job seeker will not be charged for those services. Agency workforces are employers of the employment agency and must therefore adhere to the regulation of the agency; the employment agency may not allocate the same employee to perform work for the same customer firm for a period more than 12 consecutive months. Exceptions to this rule are where the organization worker requests to be allocated to carry on beyond 12 months or where the duty is to give maternity or paternity leave23. Agencies contribute social and health insurance contributions for the student employee, work done by students may not contribute to the entitlement to un-employment reimbursement after graduation; workers are entitled to illness benefits, just like in the united kingdom, there are no legitimate requirement that the agency workers should be paid the equivalent salary as employees in comparable jobs at the customer firm and a number of case studies have shown that agencies workforce take home 10% to 20% less than their counterparts on permanent jobs24. Agency workers are employed by the agency on either open ended or fixed contracts neither for which may include a crisis. Case studies Fiona versus FIFE council [2008] IRLR 301: this cases was appealed on basis of unfair dismissal, the claimant who is Fiona Thomson worked for the respondent as a social care employee and as a member of the bank personnel, the case was presented before a tribunal and the findings of the tribunal affirmed that the employee was not employed at the right time citing no evidence of mutuality of obligation25. Evidence given by the claimant is one statutory sick pay that was filled in her absence by some officer at the respondents company showing she had been employed! On the other hand, the appeal tribunal dismissed the case as having no sufficient factors to show the binding mutuality of obligation between the claimant and the respondent. The other case is that of David versus National plc [2004] IRLR 357: the claimant has been working for the same corporation for over nine years after being placed via a large recruitment agency26. Despite several promises of being hired permanently by the company, it has never put these promises to reality. Over the nine years, David has handled several roles within the firm, he has been denied access to training and he actually has been trapped where he is, though David is employed he fills he has a rational case to dispute as a legal employee of the firm ‘albeit without rights and perks’ he has been reluctant to follow up as he may land in trouble as unemployed and unemployable! His job is advertised internally and he is not allowed to apply for it even though the previous records show that he is perfect being an agency worker he cannot argue his case because he can be dropped easily27. He is treated as an agency worker at some time when it suits the company and most of the time the relationship between him and the company can be described as that of servant - master relationship. Carmichael and another versus National plc [2000] IRLR 43; Carmichael is one of the victims of the unfair working conditions and inhuman treatment that agency workers face. The case is seeking to establish by mechanical or judicial efforts to decide whether in certain situations a worker is an employee that is hired on contract of service or self employed that is performing a an obligation under contracts for services. Mrs Carmichael and Mrs Leese has worked for the Blyth power stations as guides directing groups of visitors on tour on casual as required grounds and worked fro up to 25 hours per week with their pay being regulated by the collective agreement and an income tax plus national insurance deductions28. The workers were provided with firms uniforms and vehicle, when the CEGB was floated on the market, the two employees were allowed to apply for shares, they were however not permitted holiday pay, sick pay or other provisions of the firm like pension scheme. Frank versus Reuters [2003] ICR 1166; within the employment rights act of 1996, an appeal was set up by the claimant Mr Raymond Franks, the court ruled that he was not an employee of Reuters limited. Under that law provision, an employee is defined as any person who has entered into or works under or worked under a contract of service, whether the contract is uttered verbally or a written or otherwise implied. Mr Franks was employed by Reuters on temporary basis as a driver in 1993, and as a desk help for First Resort limited, having found the job under an employment agency. In six months time, Mr Franks became a full desk help at Reuters and remained that way until 1997 November when he was appointed to work as a back up at the help desk29. In 1998 he became a permanent employee on the help desk and performed new driving duties. The company as a result increased his hourly pay rate, on 13th august 1999 he was fired and his services were no longer needed at the company, he worked for another month and left in September. With strong grounds to argue out his case, Mr Frank made accusations to the court of redundancy salary, unfair dismissal, and damages for the breach of contract. First resort ltd denied having employed Mr. Frank but offered to continue giving him some assignments. In 2000 a tribunal was presented with the case and after considering his evidence, the manager in charge of operations Reuters and director of First resort claimed that he was not an employee of either of the respondents30. There are a lot of cases that are involving employment agencies in the United Kingdom as well as other countries. Patricia Dacas versus the Brook Street Bureau (UK) ltd [2004] IRLR 358, case is one of the numerous cases of unfair dismissal of agency workers. All the evidence and ruling are usually supported by other cases of similar conditions. The rulings of the divisional court in construction industry training board versus labour force backed the result of the employment tribunal Mrs Dacas was not in any contract binding with Brook Street or the council (Contract of service)31. McMeechan versus secretary of state is not an unfair dismissal case and the applicant was a temporary employee on the books of an employment agency which fell in to insolvent liquidation. He claimed he had a service contract with the agency as the grounds of his application to the secretary of sate under the appropriate service protection legislation for disbursement of money yet to be paid to him in respect of his last engagement. The secretary of state disputed his entitlement on the basis that he was not an agency worker but rather a self employed worker. It was not asserted that the customer of the agency to whom Mr. McMeechan was particularly assigned for four days, was his employer, the end user didn’t participate. This case was applied in the Mrs Dacas case to some degree it holds; even there was no umbrella contract of service, as approved to be the case in this, a contract of service between the temporary employee and the employment agency could be conditional in respect of a single appointment or obligation of the temporary employee by the employment agency to an end user. Mrs Dacas claimed that West Drive was a specified assignment that gave rise to a contract of service between her and Brook Street. Temporary Employment Contract The Equal Employment Opportunity Commission (EEOC) issued a direction that give details on the situation in which a temporary employee agency and their customer company will be accountable for providing realistic accommodation to disabled employees32. For these reason, the employer will need to consider new forms of contracts. In many occasions, a temporary worker is considered an employee of the agency and employer client for EEOC reasons, the agency is liable for the practical accommodation during application process with one exception, which is when the employer customer sends an applicant to the agency to apply for a post then the responsibility is shared33. Employer should share the liability when they know that the agency is not providing sensible accommodations in the application process and did not take action to correct them. Employment agencies can claim undue hardship in complying with the guidance or ADA by indicating that the job came up in a short notice and a sensible accommodation could not be made as fast. Both can claim undue hardship if their resources are not enough to provide for accommodation even when combined34.The employment agency is not to ask the potential employee for the disability matters until the worker receives an offer from an employer35. The agency or the employer can then request to see medical record s and other medical examinations can be done as well as ask disability questions though these medical examinations and disability related questions should be for all the workers. The directive 1999/70/EC states that the temporary agency employee should not be treated discriminatory on basis of lack of skill and hence exploits them in the general working conditions, and salaries as compared to their permanent counterparts fro performing a comparable task in the same company36. Conclusion The European Union and especially the United Kingdom (Britain) is embracing the use of temporary agency workers though UK lags behind. Most of the states have gone further to introduce provisions that would see the agency workers given equal treatment like the permanent workers, at least some conditions are likely to effect if not all. Most of the EU nations are also subject to tough licensing conditions. The EU has however failed to agree on some of the issues in the proposal and the progress is hardly beyond the first reading in the parliament since its introduction in 2002, nonetheless, the union has grown since then seeing ten new member states by the year 2004. In Scandinavian countries where temporary employees are deregulated, there are nationalized lawful enforceable collective agreements that apply to guarantee agency workers substantial income equivalence. Fourteen states out of the twenty EU state have executed the law that allows the temporary agency workers same salary as directly employed employees doing the same kind of assignment. Reference 1. Blanpain R. 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