SOU 2011:5

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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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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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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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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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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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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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.