Bill to Reinforce Position of Temporary Workers
A bill is required to implement the objectives set out in
Directive 2008/104/EC of the European Parliament and of the Council
of 19 November 2008 on temporary agency work (to be referred to
below as: ‘the Temporary Agency Work Directive’) into Dutch
law.
The Temporary Agency Work Directive
The purpose of the Temporary Agency Work Directive is to
ensure equal treatment of temporary agency workers and to improve
the quality of temporary agency work. Article 5 forms the heart of
the Temporary Agency Work Directive. This Article provides that the
basic working and employment conditions of temporary agency workers
shall be, for the duration of their assignment at a user
undertaking, at least those that would apply if they had been
recruited directly by that undertaking to occupy the same job.
Furthermore, rules in force in the user undertaking must be
observed with regard to:
a) protection of pregnant women and nursing mothers and protection
of children and young people; and
b) equal treatment for men and women and any action to combat any
discrimination based on sex, race or ethnic origin, religion,
beliefs, disabilities, age or sexual orientation.
In order to be able to fulfill the purposes of the Temporary
Agency Work Directive, it is necessary to amend the Dutch Placement
of Personnel by Intermediaries Act (Wet allocatie
arbeidskrachten door intermediairs, “WAADI”) and the Dutch
Works Councils Act (Wet op de Ondernemingsraden, “WOR”).
Amendment of the WAADI
In the existing text of Section 8 of the WAADI, the
so-called wage correlation is set out. This arranges the
correlation between the hired workers and the employees who are
directly employed by the user undertaking and are doing similar
work. The wage correlation only relates to wages and other
emoluments and (mainly) serves to prevent that temporary agency
workers will receive lower salaries than employees having a
permanent position, so that employees having a permanent position
in the user undertaking can be replaced by temporary agency
workers. Under Section 8 of WAADI, temporary agency workers were
already entitled to wages and other emoluments conforming to the
wages and the other emoluments paid to the employees working in the
same or equivalent positions in the undertaking where the
assignment takes place. What is new, however, is the extension of
equal treatment to include employment conditions relating to the
duration of the holiday, whether or not working on official
holidays is required, working times, rest times to be observed,
whether or not working at night is required (and if so, the
restrictions in force for such work), the breaks to be observed,
and whether or not overtime work is required (and if so, the number
of overtime hours). Furthermore, the protective provisions in force
at present for pregnant and nursing employees, children and young
employees, and measures to promote equal treatment for men and
women and to prevent discrimination will now also become applicable
to the employees assigned.
A new Section 8a to be included gives substance to the
obligation in the Temporary Agency Work Directive that temporary
agency workers must be given access to the amenities or collective
facilities in the user undertaking, in particular any canteen,
child-care facilities and transport services, under the same
conditions as workers employed directly by the undertaking.
In the new Section 8b to be included, the obligation of the user
undertaking is set out to inform the temporary workers assigned to
it clearly and in good time of any vacant posts in the user
undertaking to give them the same opportunity as other workers in
that undertaking to find permanent employment. Such information
about vacancies may be provided by a general announcement in a
suitable place in the undertaking (e.g. the intranet).
Finally, the ‘ban on obstructions’ that had been abolished in
July 1998 is given a legal basis again. The direct and indirect ban
on obstructions in the new Section 9a implies that the temporary
employment agency may not impose any obstructions on the temporary
agency worker to enter into an employment agreement with the user
undertaking after the end of the assignment period. Any clauses of
this purport will be null and void.
Amendment of the WOR
Section 31b of the WOR will be extended by a third
subsection. Under this new third subsection, the employer will have
to provide written general information about the persons working in
the undertaking under a temporary employment contract at least once
per year to the Works Council for purposes of the general affairs
of the undertaking. In this information, the employer will have to
indicate the expected developments regarding the number of persons
that will be working under a temporary employment contract in the
coming year.
Tips
It is not known yet when the bill will take effect. At the
moment the bill is in the Lower House of Parliament and we still
have to wait and see. Since it concerns the implementation of an EU
Directive, it is in the line of expectations that the bill will
actually be adopted.