Transnational Temporary Agency Work: How Much Equality Does the Equal Treatment Principle Provide?

Abstract

The EU Temporary Agency Work Directive establishes an equal pay/equal treatment principle for agency workers that lays down a specific standard of equality, different from the one applied under anti-discrimination law. The aim of this paper is to examine the meaning of this recent equality principle, especially for transnational agency workers. For this purpose the conciliation of the agency work directive with the Posting of Workers Directive (PWD), providing only a minimum level of employment conditions, is examined. In principle the agency directive appears to apply a more far-reaching standard of equality, allowing transnational agency workers to compare their contractual entitlements with what they would have been entitled to had they concluded an employment contract directly with the user undertaking. This seems to be the result of focusing primarily on the factual aspects of work: equal conditions should be provided for co-workers doing roughly the same work in the same place. The legal status of the actor concluding the relevant contract with the worker does not seem to be decisive in these triangular contractual relationships. But this standard will presumably not be applied on a regular basis as the directive allows for various exceptions. Stretched as widely as possible, those exceptions might have a significant impact on the equal treatment principle. The directive might then be rendered incapable of providing more than the minimum standard guaranteed by the posting directive. However, there remains a chance of avoiding this outcome. The exceptions enshrined in the agency directive contain a safeguard clause guaranteeing 'overall protection' of workers, that could be interpreted in such a way as to disallow any reversion to a mere minimum standard. This paper argues that it is necessary to follow this interpretation in order to maintain a meaningful level of protection.