Summary
Remit
The Inquiry Chair was tasked with presenting proposals on how
Directive 2008/104/EC of the European Parliament and of the
Council of 19 November 2008 on temporary agency work1 (hereinafter
referred to as ‘the Agency Workers Directive’) is to be
implemented in Swedish national law. Within the framework of the
remit, the Inquiry Chair was also to review, in accordance with
Article 4 of the Directive, whether there were any prohibitions or
restrictions on the use of temporary agency work in national legislation
or practice, and, if found, to verify whether such prohibitions
or restrictions are compatible with the provisions of the Directive.
Proposals of the Inquiry
Implementation of the Agency Workers Directive
It could be said that the overall aim of the Directive is to ensure
good working conditions for temporary agency workers. The Directive
includes a principle of equal treatment, whereby temporary
agency workers are to be guaranteed the same basic working and
employment conditions as those employed directly by the user undertaking
to do the same work.
Part of the inquiry remit is to implement the Directive with the
least possible interference in the Swedish model. The Inquiry Chair
therefore first considered leaving it to the social partners to implement
the Directive through collective agreements. However, this
form of implementation would mean that workers not covered by
collective agreements would not enjoy the rights afforded by the
1 OJ L 327, 5.12.2008, p. 9 (Celex 32008L0104).
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Summary SOU 2011:5
Directive. In the view of the Inquiry Chair, it is therefore impossible
to implement the Directive solely through the Swedish
model of collective agreements. Implementation with the least
possible interference in the Swedish model also precludes a regulation
requiring collective agreements to be declared universally
applicable. In the current circumstances, the Inquiry Chair considers
that the Directive must be implemented through legislation.
This can best be done via the creation of a new Act on Temporary
Agency Work (hereinafter referred to as ‘the Agency Work Act’).
Although the implementation of the Directive requires legislation,
it is important to uphold the basic labour market principle
that the primary responsibility for settling salary and employment
conditions lies with the social partners. The new Agency Work Act
should therefore take the form of a regulatory framework. Accordingly
, the Act should only set out which rights a temporary
agency worker can claim under the Directive. It is then up to the
social partners to settle between themselves what measures should
be taken to guarantee the worker these rights.
The scope of application of the Agency Work Act should be the
same as the scope of the Agency Workers Directive. It should
therefore be made clear that the Act only applies to temporary
agency work and not, for example, to contract activities and labour
lending. In the view of the Inquiry Chair, the Agency Work Act
should also apply to both the private and public sectors. However,
it should not apply to workers who are employed through special
employment support, in sheltered employment or in development
employment.
Article 5(1) of the Agency Workers Directive contains a principle
of equal treatment. This means that temporary agency workers
are to be entitled to the same basic working and employment conditions
as if they had been recruited directly by the user undertaking
to occupy the same job. However, the equal treatment requirement
is not absolute. Member States may allow exceptions to
the principle of equal treatment in accordance with Articles 5(2)–5(4)
of the Directive. The Inquiry Chair considers that exceptions to
the principle of equal treatment should be allowed with regard to pay
in accordance with Article 5(2), on the condition that the temporary
agency worker is permanently employed by the temporary work
agency and is paid between assignments. This should be expressed
in the Agency Work Act. Furthermore, the Agency Work Act should
contain a provision to the effect that the social partners may, in
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SOU 2011:5 Summary
accordance with Article 5(3), enter into collective agreements concerning
working and employment conditions that deviate from the
principle of equal treatment provided that the overall protection for
workers from temporary work agencies is respected.
Article 5(5) of the Agency Workers Directive states that the
Member States are to take appropriate measures with a view to preventing
misuse in the application of Article 5 and, in particular, to
preventing successive assignments designed to circumvent the provisions
of the Directive. However, the Inquiry Chair’s proposal
means that the right to equal treatment arises on a temporary agency
worker’s very first day. In the current circumstances there is, in the
view of the Inquiry Chair, no reason to take measures to prevent
misuse in the application of Article 5 or to prevent successive short
assignments.
The Agency Work Act should also contain provisions on the right
of temporary agency workers to access certain amenities at the user
undertaking (cf. Article 6(4) of the Agency Workers Directive),
and rules to the effect that temporary agency workers must be informed
of vacant permanent positions at the user undertaking
(cf. Article 6(1) of the Agency Workers Directive).
Section 6 of the current Private Employment Agencies and
Temporary Labour Act (1993:440) states that anyone who runs
employment agency services may not request, agree or receive payment
from employees to assign them work. There is no direct
equivalent to this provision in the Agency Workers Directive, but
it is very much in line with the Directive’s approach. Article 9 of
the Agency Workers Directive states that Member States may adopt
more favourable conditions for temporary agency workers than those
laid down in the Directive. The Inquiry Chair therefore considers
that the above-mentioned provision should remain in place. It should,
however, be transferred to the new Agency Work Act.
Article 6(2) of the Agency Workers Directive states that Member
States must ensure that any clauses prohibiting or having the effect
of preventing the conclusion of a contract of employment between
the temporary agency worker and the user undertaking may be
declared null and void. There are no legislative provisions in Swedish
national law that prohibit or have the effect of preventing temporary
agency workers from taking employment with a user undertaking.
On the other hand, it is possible that individual employment
contracts may contain provisions to that effect. However,
Section 4, first paragraph, point 1 of the Private Employment
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Summary SOU 2011:5
Agencies and Temporary Labour Act already states that employers
may not, through contractual terms and conditions or in any other
way, prevent workers from taking employment with a client to which
they have been hired out. Given the regulations contained in the
Agency Workers Directive, this provision should remain, but be
moved over to the new Agency Work Act. However, Section 4, first
paragraph of the Private Employment Agencies and Temporary
Labour Act does not explicitly make any agreement through which
a worker is prohibited or prevented from taking employment with
a user undertaking for which they have worked null and void. This
is nonetheless considered to be the case in practice in Sweden, but
it is doubtful whether EU legislation can be implemented on the basis
of legal principles. The Inquiry Chair therefore considers that an
explicit provision on invalidity should now be incorporated into
the Agency Work Act.
However, in the Inquiry Chair’s view, the possibility of declaring
agreements null and void should not be limited to agreements that
prevent a temporary agency worker from taking employment with
a user undertaking. Instead, it should be prescribed generally that
the relevant parts of any agreement that restricts the rights of a
temporary agency worker under the Agency Work Act are to be
null and void. This should, of course, also be stated in the new Act.
Article 6(3) of the Agency Workers Directive states that temporary
work agencies may not charge workers any compensation for
taking employment with a user undertaking. This should also be
laid down in the new Act.
Article 6(5) of the Agency Workers Directive states that Member
States are to take suitable measures or promote dialogue between
the social partners in order to improve temporary agency workers’
access to training and to childcare facilities in temporary work
agencies, and to improve temporary agency workers’ access to training
for user undertakings’ workers. The Inquiry Chair notes that in
Sweden, childcare is only provided by companies in exceptional
cases. With regard to training for temporary agency workers, the
Inquiry Chair considers that it would be appropriate for the social
partners to regulate this matter through various kinds of agreements.
No proposals are therefore made for legislation in these areas.
With regard to employee representation for temporary agency
workers under Article 7 of the Directive, the Inquiry Chair has decided
that national legislation already fulfils the requirements laid
down in Article 7(1). No proposals are therefore made for legisla24
SOU 2011:5 Summary
tion in this area. The same applies to the information requirement
for temporary agency workers laid down in Article 8 of the Agency
Workers Directive.
The Directive contains requirements for the Member States to
provide for appropriate measures in the event of non-compliance
with the Directive by temporary work agencies or user undertakings.
Under the terms of the Directive, these sanctions must be “effective,
proportionate and dissuasive”. The Inquiry Chair has found that it
is most appropriate for non-compliance with the Agency Work Act
to result in damages, which is the customary sanction under labour
legislation. It should be possible for damages to be awarded both
for losses incurred (financial damages) and as compensation for the
violation implied by the legal infringement (general damages).
Since an infringement of the Agency Work Act may also constitute
an infringement of other legislation, the Inquiry Chair has
considered whether double punishment should be allowed. The Inquiry
Chair has found that this should not be the case. If a temporary
work agency or user undertaking infringes the Agency Work
Act in such a way as to also infringe another Act that includes liability
for sanctions, the provisions of the latter Act will accordingly
apply.
If a temporary work agency infringes the Agency Work Act in
any other way, sanctions should apply in the form of damages. The
Inquiry Chair has also determined that temporary work agencies
should be responsible for ensuring that temporary agency workers
are afforded the rights due under the Agency Work Act. If a temporary
agency worker suffers damage as a result of a user undertaking
infringing the Agency Work Act or a collective agreement replacing
the principle of equal treatment in the Act, it is therefore the temporary
work agency that is primarily responsible for remedying this
by paying damages. In both cases mentioned above, damages may
be adjusted or cancelled if there is reason to do so.
If a temporary work agency infringes a collective agreement replacing
the principle of equal treatment, this is to be dealt with as a
regular breach of a collective agreement under the Employment
(Co-determination in the Workplace) Act (1976:580).
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Summary SOU 2011:5
If a temporary work agency infringes those provisions in the
Agency Work Act that state that
a) a temporary work agency may not prevent a temporary agency
worker from taking employment with a user undertaking (Section
7), or
b) a temporary work agency may not charge temporary agency
workers any compensation for taking employment with a user
undertaking (Section 7), or
c) a temporary work agency may not request, agree or receive payment
from workers to assign them work (Section 8),
the temporary work agency may be liable to pay both financial and
general damages.
If a user undertaking
a) does not allow a temporary agency worker access to the amenities
or facilities enjoyed by directly employed workers and there are
no objective reasons to justify differential treatment (Section 9),
or
b) does not inform temporary agency workers of vacant permanent
positions at the user undertaking (Section 10),
the undertaking may be liable to pay both general and financial
damages.
Damages for infringements of Sections 7–10 may be reduced or
cancelled if there is reason to do so.
Finally, the Agency Work Act should stipulate that if an employer
applies a collective agreement that conflicts with the Agency
Work Act, they may be liable to pay both financial and general
damages. If there is reason to do so, the damages may be reduced or
cancelled.
In order to prevent temporary work agencies from being ultimately
responsible for damage caused to workers by user undertakings,
provisions on the right of recourse have been included in
the Agency Work Act. A temporary work agency that has paid compensation
to a worker for a user undertaking’s breach of the Agency
Work Act will therefore have the right to demand repayment from
the user undertaking. There should also be a right of recourse if a
user undertaking has submitted incorrect information to a temporary
work agency concerning the basic working and employment conditions
at the user undertaking, and has thereby caused the tempo26
SOU 2011:5 Summary
rary work agency to be liable for damages. However, the user undertaking
will never have to repay more than it would have been liable
to pay under the provisions of the Agency Work Act. The stipulated
recourse provision is only to be applied, however, if the user
undertaking and the temporary work agency have not agreed any
other division of responsibilities.
The Inquiry Chair has also considered whether there is a need
for provisions in the new Agency Work Act concerning statutory
limitation. In the main, the Inquiry Chair considers that the current
statutory limitation regulations should be applicable. For breaches
of Sections 9 and 10 of the proposed Agency Work Act (see above),
there is reason to ensure that the period of limitation is not unreasonably
long, and new limitation regulations should therefore be
introduced, using those contained in the Employment Protection
Act (1974:13) as a model.
In the view of the Inquiry Chair, disputes under the Agency
Work Act should be dealt with in accordance with the Labour Disputes
(Judicial Procedure) Act (1974:37), unless otherwise stipulated
in the references to special legislation contained in the Agency
Work Act. However, the Labour Disputes (Judicial Procedure) Act
is only applicable between employers and employees. To make it
possible to apply this Act to disputes between user undertakings
and temporary agency workers and to recourse cases between
temporary work agencies and user undertakings, a provision should
be introduced into the Labour Disputes (Judicial Procedure) Act
stipulating that the Act is to be applicable to disputes under the
Agency Work Act unless otherwise specifically prescribed.
Posting of temporary agency workers
The preamble (clause 22) to the Agency Workers Directive stipulates
that the Directive should be implemented without prejudice to the
Posting of Workers Directive.2 In order to assess how the implementation
should be undertaken, the Inquiry Chair must therefore
take account of both the Posting of Workers Directive and certain
EU case-law, primarily the Laval Judgment.3 The Inquiry Chair has
2 Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996
concerning the posting of workers in the framework of the provision of services, OJ L 18,
21.1.1997 p. 1, (Celex 31996L0071).
3 Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets
avdelning 1 (Byggettan) and Svenska Elektrikerförbundet.
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made the assessment that, by virtue of Article 3(9) of the Posting
of Workers Directive, the proposed Agency Work Act should also
be made applicable to posted temporary agency workers. In practice,
this means that posted temporary agency workers can claim more
favourable terms than other posted workers.
Finally, the Inquiry Chair has also been responsible for determining
the extent to which Swedish employee organisations should
have the right to take industrial action to bring about Swedish
collective agreements for posted temporary agency workers. The
Inquiry Chair has found that this issue should be regulated in the
Posting of Workers Act (1999:678). This should be done using the
provisions contained in Section 5(a) of this Act as a model. Unlike
in Section 5(a), however, there should be a requirement that the
collective agreement that the industrial action is intended to force
through is such that the overall protection of temporary agency
workers is respected. However, there should not be any requirements
that the collective agreement may only concern “minimum
wages or other minimum conditions [our italics] in the areas referred
to in Section 5” (cf. Section 5(a), first paragraph, second point),
since posted temporary agency workers are to enjoy the same rights
under the Agency Work Act as other temporary agency workers.
Nonetheless, there should be a requirement that the conditions
that the industrial action is intended to force through must be restricted
to the area habitually referred to as the ‘hard core’ of the
Posting of Workers Directive. Consequently, industrial action may
only be undertaken to guarantee posted temporary agency workers
pay or other conditions referred to in Section 5 of the Posting of
Workers Act.
However, an unlimited right to take industrial action in the present
case would contravene EU legislation. The Inquiry Chair has therefore
deemed it necessary to introduce certain limitations to the right
to take industrial action. In the view of the Inquiry Chair, it is not
reasonable for a temporary work agency that posts workers to protect
itself against industrial action simply by demonstrating that
the workers are subject to conditions that correspond to the principle
of equal treatment. Instead, account must be taken of the conditions
actually enjoyed by the workers. If in practice the conditions
are less favourable than those required by the collective agreement
that workers want to force through, it should be possible to take
industrial action even if equal treatment is in fact practised. Conversely,
if the workers already enjoy conditions that at least equal
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SOU 2011:5 Summary
the conditions that the intended collective agreement would afford,
it should not be possible to take industrial action.
The Inquiry Chair was also to assess whether industrial action
should be possible if the posted temporary agency workers’ basic
working and employment conditions do not correspond to the collective
agreement that workers want to force through, but do correspond
to the collective agreement applicable in the user undertaking
. The Inquiry Chair considers it likely in this case that the EU
would consider industrial action to bring about a Swedish collective
agreement disproportionate; the posted workers already enjoy conditions
that fulfil the requirements in another Swedish collective
agreement and that are considered adequate for Swedish workers.
In this case, therefore, it should be prohibited to take industrial action.
Obstacles to using temporary agency work
Article 4(1) of the Agency Workers Directive stipulates that prohibitions
or restrictions on the use of temporary agency work are
justified only on grounds of general interest relating in particular to
the protection of temporary agency workers, the requirements of
health and safety at work or the need to ensure that the labour
market functions properly and abuses are prevented. Furthermore,
Article 4(2) of the Directive stipulates that each Member State, after
consulting the social partners, is to review any such prohibitions
and restrictions found in national legislation, collective agreements
and practices. Article 4(3) establishes that a Member State may leave
it to the social partners to review obstacles in collective agreements
between them. Under Article 4(5), the Member States are to inform
the Commission of the results of the review by 5 December 2011.
This applies to the reviews of obstacles both in legislation and practice,
and in collective agreements.
The terms of reference for the Inquiry state that it is the Inquiry
Chair’s task to review whether there are any restrictions or prohibitions
on the use of temporary agency work in legislation or practice.
Possible restrictions and prohibitions in collective agreements
therefore fall outside the Inquiry Chair’s remit. Such restrictions
are to be reviewed by the social partners.
In this context, it is primarily the organisations Swedish Staffing
Agencies and Eurociett that have expressed views on what they consider
constitute obstacles to using temporary agency work. Chapter 5
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Summary SOU 2011:5
30
contains an account of their views and the Inquiry Chair’s assessment
of obstacles to the use of temporary agency work. In summary,
however:
a) the Inquiry Chair does not find any grounds to change the rules
concerning the obligation to negotiate and vetoes contained in
Sections 38–39 of the Employment (Co-determination in the
Workplace) Act (1976:580), since these are justified by the need
to guarantee that the labour market functions properly (cf.
Article 4(1) of the Agency Workers Directive).
b) Section 4, second paragraph of the Private Employment Agencies
and Temporary Labour Act (1993:440) stipulates that a worker
who has terminated their employment and takes employment
with an employer who provides temporary workers may not be
assigned to work for their previous employer until at least six
months after their employment there ended. This regulation
makes it more difficult for workers who want to take employment
with a temporary work agency. In the opinion of the Inquiry
Chair, this rule cannot be justified by any of the grounds
cited in Article 4(1) of the Agency Workers Directive, and must
therefore be repealed.
c) the Inquiry Chair has also reviewed whether individuals who have
been or are employed by a temporary work agency are treated
differently with regard to benefits from unemployment insurance
funds, and has established that, to some extent, this would appear
to be the case. According to RÅ (Yearbook of the Supreme
Administrative Court) 2007 ref. 20, however, such differential
treatment is not permitted with regard to several consecutive
fixed-term appointments. Furthermore, the Inquiry Chair observes
that part-time employees of temporary work agencies
should have the right to ‘top-up benefits’ from unemployment
insurance funds on the same conditions as other part-time
workers, i.e. provided that they are at the disposal of the labour
market when they are not working part-time. The Inquiry Chair
does not, however, present any proposals for legislative amendments
in these areas.