4 Temporary Work
| (24066)
15098/02
COM(02)701
| 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 letters of 16 April and 6 May
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| Previous Committee Reports | HC 63-vii (2002-03), paragraph 7 (15 January 2003) and HC 63-xii (2002-03), paragraph 3 (12 February 2003).
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| To be discussed in Council | 3 June 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
4.1 When we last considered this document (in February), we decided
to keep it under scrutiny until we knew the outcome of the discussion
at the March meeting of the Employment, Social Policy, Health
and Consumer Affairs Council. We also asked the Minister of State
for Employment Relations, Industry and the Regions (Mr Alan Johnson)
for further clarification of his concern about the possible impact
of the revised draft Directive on Community anti-discrimination
legislation.
The Minister's letter of 16 April
4.2 In his letter of 16 April, the Minister reports on the Council
meeting and other developments as follows:
"At the Council of Ministers on 6 March, the Presidency concluded
that there was the political will to reach agreement in June,
but that the dossier was not yet ready for political agreement.
The Presidency concluded that, in reaching agreement, the three
key outstanding issues should be treated as a package. These issues
are: the length of the 'qualifying period' or 'derogation period'
after which equal treatment must apply, in Article 5.4
of the Directive; Article
4, requiring a review of restrictions on the use of agency workers;
and Article 1.3, which allows limited exclusions from the Directive
for retraining and reintegration programmes.
"Since the Commission issued its revised proposal
in November 2002, the Council has agreed a number of technical
changes to the wording. COREPER[5]
has agreed on a specific exclusion from the scope of the Directive
for occupational social security schemes, including occupational
sick pay schemes and occupational pension schemes, and financial
participation schemes. This has yet to be discussed by the Council
of Ministers."
4.3 In response to our request for clarification,
the Minister says:
"As I set out in my letter of 14 February, the
proposal requires that, in applying equal treatment to agency
workers in respect of pay and working time, the rules in force
in the user undertaking on the protection of pregnant women, equality
between men and women and action taken to prevent discrimination
on the grounds of race, religion, disability, sexual orientation
and age must be applied. The UK has been questioning the impact
of this requirement, in particular whether it would allow agency
workers to compare themselves to permanent employees for the purposes
of legislation preventing discrimination on the grounds of sex,
race, disability, religion or belief, age or sexual orientation
in respect of pay and working time. The directive requires that
an agency worker must be paid the salary and have the holidays
and working hours that he/she would have been paid, had he/she
been employed directly by the user undertaking. .
If these terms were discriminatory
on any of the grounds listed above, the effect of the Directive
may be that an agency worker could challenge them. Employers are
already required by law not to discriminate against their workers
on the grounds of sex, race or disability and my Department is
introducing legislation that will outlaw discrimination in employment
on the grounds of religion and sexual orientation later this year
and legislation outlawing discrimination on the grounds of age
in 2006.
"We have been seeking assurances that the provision
described above is not intended to have the effect of extending
European legislation preventing discrimination. The Commission
and the Council Legal Service have expressed their view that the
Directive will not extend the application of EU legislation under
articles 141 and 13, which prevents the categories of discrimination
listed. I am considering the merits of a minute statement,[6]
reiterating this interpretation."
4.4 The Minister further tells us:
"The UK continues to support a directive in
principle, but as I explained to the Committee on 10 July last
year, we take the view that further flexibilities are needed in
order to ensure that the Directive will work in practice in the
UK and elsewhere. The best solution, as I outlined to the Committee,
would be to extend the period after which equal treatment must
apply to agency workers; this is currently six weeks. The UK continues
to seek a longer period, although I am now satisfied that our
objectives of achieving the correct balance between worker protection
and labour market flexibility could be met by a derogation period
of less than 12 months."
The Minister's letter of 6 May
4.5 The Minister has now written again. He explains
that the Greek Presidency has renewed its push for agreement on
the proposal, and it is very possible that it will be voted on
at the Employment, Social Policy, Health and Consumer Affairs
Council on 3 June. He tells us:
"I would therefore want to be in a position
to vote in favour of a proposal which achieved the UK aims of
a directive that struck an appropriate balance between worker
protection and flexibility."
He offers to meet the Committee, if that would be
helpful.
4.6 The Minister continues:
"It is difficult to anticipate at this point
exactly what will be on the table by the June Council. The Presidency
has produced a compromise package based on a longer derogation
period, which would be subject to a review after a certain period
of time, This compromise package would also remove the obligation
on member states to inform the Commission of their review of restrictions
on the use of agency workers and the explicit obligation to remove
unjustified restrictions. It would allow Member States to provide
that the Directive did not apply to agency workers whose employment
was part of a specific public or publicly supported vocational
training, reintegration or retraining programme, including programmes
provided for by legislative measures. This package will be discussed
by COREPER on 7 May."
4.7 The Minister then reports:
"In Council Working Group negotiations, the
Government has successfully secured an exclusion for occupational
pensions and occupational sick pay, which significantly reduces
the burdens the proposal would impose. This change is of course
subject to agreement at the Council of Ministers level.
"I explained in the Explanatory Memorandum [of
6 January ][7] that we
take the view that further flexibilities are needed in order to
ensure that the Directive will work in practice in the UK and
elsewhere. The exclusion for occupational pensions mentioned above
is an extremely important flexibility in this respect. However,
it will also be important to avoid regulatory burdens in making
the comparison between the wages and other conditions of agency
workers and permanent workers which may deter the use of agency
workers. As I outlined to the Committee, the best way to achieve
this would be to extend the period after which equal treatment
must apply to agency workers; the current Commission proposal
is six weeks. The UK continues to seek a significantly longer
period, in order to achieve the correct balance between worker
protection and labour market flexibility."
4.8 The Minister reminds us that in his January Explanatory
Memorandum he reported that the UK had raised the question of
whether a Directive with a treaty base of 137(6) could cover pay.
He continues:
"Since the Nice Treaty came into force earlier
this year, Article 137(6) has become Article 137(5) The Council
Legal Service has advised that Article 137(5) of the treaty would
not preclude Directives agreed under Article 137 from covering
pay in the context of preventing less favourable treatment of
one type of worker as compared to another. This is the aim of
the proposed Directive on temporary agency workers. However, their
advice is that a Directive agreed in accordance with article 137
could not set wage levels, due to the effect of article 137(5).
My officials are considering this advice."
Conclusion
4.9 We thank the Minister for his
letters. As a result of the first, we now have a better understanding
of his concern about the possible extension of European anti-discrimination
legislation, and note that he is considering the merits of a minute
statement[8] on
this issue.
4.10 With regard
to the second, we appreciate that the Minister is doing his best
to keep us informed of the progress of negotiations, and to explain
the UK's stance. It appears that, from the UK's perspective, the
key issues are the exclusion for occupational pensions and the
length of the derogation period after which equal treatment must
apply. We note that the Government is now prepared to accept
a derogation period of less than twelve months, although it still
considers six weeks to be too short.
4.11 Despite the Minister's helpfulness,
we do not feel able to clear the proposal while so many uncertainties
remain. We ask him to write after the 7 May COREPER meeting with
further information. If the Presidency's "compromise package"
becomes an unofficial text, we ask to receive an Explanatory Memorandum
on it as soon as possible.
5 Committee of Permanent Representatives. Back
6
A statement in the Minutes of the Council at which political
agreement is reached. Back
7
See HC 63-vii (2002-03), paragraph 7 (15 January 2003). Back
8
A statement in the Minutes of the Council at which political
agreement is reached. Back
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