3. TEMPORARY WORK
(24066)
15098/02
COM(02) 701
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Amended draft Directive on working conditions for temporary workers.
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| Legal base: | Article 137(2)EC; co-decision; qualified majority voting
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| Department: | Trade and Industry
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| Basis of consideration: | Minister's letter of 4 February 2003
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| Previous Committee Report: | HC 63-vii (2002-03), paragraph 7 (15 January 2003)
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| To be discussed in Council: | 6 March 2003
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| Committee's assessment: | Legally and politically important
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| Committee's decision: | Not cleared; further information requested
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Background
3.1 When we last considered this draft Directive (in
January), we noted that it was proving no easier for the Commission
than it had been for the social partners to secure agreement in
this area. We kept the document under scrutiny, asking to be kept
informed on the progress of negotiations, and raising some questions
with the Minister for Employment Relations and the Regions (Mr
Alan Johnson).
The Minister's letter
3.2 The Minister has now written in response to our questions.
We asked why the revised draft Directive could have an effect
on Community anti-discrimination legislation. The Minister tells
us:
"One of the stated aims of the directive, set out in Article
2, is to ensure that 'the principle of non-discrimination', which
is defined in Article 5, is applied to agency workers.
"Article 5.1 of the revised proposal provides that agency
workers should not be given less favourable working time rights
and pay ('basic working and employment conditions') than would
apply if they had been employed directly by the user undertaking
to do the same work. The second part of the article specifies
that when applying this principle, the rules in force in the user
undertaking on equal treatment for men and women and any action
to combat discrimination based on sex, race or ethnic origin,
religion, beliefs, disabilities, age or sexual orientation, must
be complied with.
"It is possible that this provision could affect the application
of discrimination law, for example the directives on race and
employment agreed under Article 13 of the Treaty (and forthcoming
legislation under this Treaty base) and legislation on equal treatment
of men and women under Article 141 of the Treaty and the Equal
Pay Act. In particular, Article 5.1(ii) of the Commission's revised
proposal could mean that agency workers could make a comparison
between their pay and that of workers in a user undertaking when
relying on Article 13/141 legislation preventing discrimination.
"The EU directives on race and employment, which prevent
discrimination on the grounds of race, sexual orientation, age,
religion and disability and UK legislation preventing discrimination
on the grounds of sex, race and disability all cover agency workers.
Non-discrimination legislation in the UK does not allow agency
workers to make pay comparisons with workers employed by a user
undertaking, although agency workers do have rights not to be
discriminated against by principals (the user undertakings where
they undertake assignments) in relation to matters over which
the user undertaking has control, such as the type of work given.
"The Government is seeking clarification on this issue. The
European Commission and the European Council Legal Services have
stated that they do not believe the directive will have this effect
and that Article 5.1(ii) merely makes clear that existing discrimination
law applies to agency workers."
3.3 We also asked about the current position in the UK
in relation to grievance and disciplinary procedures for agency
workers and whether this would change if the current proposals
were adopted. The Minister informs us that there is at present
no statutory right in the UK to a disciplinary or grievance procedure
for workers, including agency workers. The situation will change,
however, under provisions introduced in the Employment Act 2002
and follow-up regulations that are due to be consulted upon this
summer and introduced at the end of the year, to come into effect
in April 2004. Minimum statutory dismissal and disciplinary procedures
and statutory grievance procedures will be made an implied term
in all contracts of employment. These would only include agency
workers who work under a contract with their agency. However,
the Department of Trade and Industry is currently reviewing employment
status in relation to statutory employment rights. Among the issues
under consideration is whether certain employment rights and procedures
such as the new disciplinary and grievance procedures should apply
to all workers rather than employees only. The Minister tells
us that, in relation to the position of agency workers, he will
take the draft Directive into account although it does not directly
address the issue of disciplinary and grievance procedures.
Conclusion
3.4 We thank the Minister for his prompt response.
However, although we can see how Article 5 of the revised proposal
could affect the application of the Equal Pay Act 1970, we still
find it difficult to understand how it could have an effect on
Community anti-discrimination legislation. If the point is still
germane once the Minister receives the clarification he is seeking
on this issue, we ask him to explain it to us more fully; in any
case, we ask to be informed about the clarification he is seeking.
3.5 We understand that the proposal is to be discussed
at the March meeting of the Employment, Social Policy, Health
and Consumer Affairs Council. We ask the Minister to let us know
the outcome of the discussion. Meanwhile, we will keep the document
under scrutiny.
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