The EU Directive on Temporary Agency Work – implementation in Norwegian law from 1 January 2013

New provisions implementing the Directive on Temporary Agency Work at the start of 2013.

New provisions implementing the Directive on Temporary Agency Work at the start of 2013.

The Temporary Agency Work Directive (Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on Temporary Agency Work) was adopted in 2008, and the final date for EU member countries to implement the Directive was 5 December 2011. On 12 June 2012, the Storting adopted statutory amendments to implement the Directive in Norway. Amendments to the Working Environment Act and the Civil Service Act were adopted as well as a minor amendment to the Holidays Act.

Incorporation in the EEA Agreement

On 13 July this year, the EEA Joint Committee decided that the Directive was to be incorporated in the EEA Agreement, and would enter into force for the EFTA countries, Norway, Iceland and Liechtenstein, on 1 January 2013. On this basis, the new provisions on equal treatment in connection with the hiring out of workers by temporary work agencies and the provisions designed to ensure compliance with the requirements will enter into force on 1 January. New provisions on joint and several liability for user undertakings will enter into force on 1 July 2013 since these do not directly implement the requirements of the Directive.

Questions concerning postponement of entry into force

The Ministry has received a number of enquiries concerning possible postponement of entry into force of the new provisions, where a number of undertakings state that they are not yet ready to implement the provisions. The Directive enters into force for Norway on 1 January 2013, and we are thereby obligated under international law to implement it from the same date. Failure to implement the provisions on this date would constitute a breach of the treaty. The date of entry into force adopted by the Royal Decree of 22 June this year will therefore be upheld.

Implications of the statutory amendments and the principle of equal treatment

In the following, we provide a detailed overview of the main amendments to the Working Environment Act. The Temporary Agency Work Directive requires the introduction of a principle of equal treatment for temporary agency workers. This principle entails that workers hired out by temporary work agencies shall at least be ensured the working and employment conditions that would have applied if they had been recruited directly by the user undertaking to perform the same work. It is important to note that equal treatment implies that a temporary agency worker is to be granted conditions equal to those that the worker would himself or herself have been granted as a direct employee of the user undertaking, either as a temporary or permanent employee. Nevertheless, when setting the working and employment conditions of the temporary agency worker, the conditions enjoyed by other employees of the user undertaking shall be taken into account when these employees have comparable duties and qualifications, experience, etc. equivalent to those of the temporary agency worker.

Pursuant to the Working Environment Act, equal treatment shall apply to working hours, overtime, breaks and rest periods, holiday, days off, pay and coverage of expenses. It is the temporary work agency that shall ensure that temporary agency workers receive the equal treatment to which they are entitled. User undertakings shall also henceforth be obliged to provide the temporary work agency with the necessary information to fulfil the equal treatment requirement, cf. the new section 14-12 b, first paragraph, of the Working Environment Act.

The principle of equal treatment also applies to workers posted to Norway from other countries. This follows from section 2, first paragraph, of the Regulations of 16 December 2005 No. 1566 concerning posted workers.

Pay and working conditions – general

The specific conditions to which any given temporary agency worker is entitled depend on those that he or she would have been granted if directly recruited by the user undertaking. When deciding this, the consequences of statutes and regulations, collective agreements, company guidelines and standard practice applying at the user undertaking shall be taken into account.

Working hours

Pursuant to section 14-12 a, first paragraph, (a) of the Act, a temporary agency worker shall be given equal treatment with regard to the length and placement of working hours. The total working hours of a temporary agency worker shall not be longer than would have been the case if he or she had been recruited directly by the user undertaking. Equal treatment of the placement of working hours means that a temporary agency worker shall be granted the same conditions with regard to the time of performance of the work as if he or she had been recruited directly by the user undertaking. The equal treatment requirement is met if, following an overall assessment, the working hours of the temporary agency worker are shown to have been placed in such a way that they do not entail a greater disadvantage than would have been the case if the worker concerned had been directly recruited. In cases where, for example, a temporary agency worker is to stand in for an employee who only works night shifts, it would not be contrary to the principle of equal treatment that the temporary agency worker was required to work night shifts only. On the other hand, it would be contrary to the principle of equal treatment if a temporary agency worker, when taking part in a rota with employees of the user undertaking, was assigned more inconvenient shifts than the undertaking’s employees on account of being a temporary agency worker.

The principle of equal treatment also applies to permission granted to the user undertaking to deviate from the working hours provisions in cases where such permission would have applied to the temporary agency worker if he or she had been directly recruited. The same shall apply to agreements concerning deviating working hour arrangements that apply at the user undertaking and which would have applied to the temporary agency worker if he or she had been directly recruited, cf. section 10-12, fifth paragraph, of the Working Environment Act. The application of equal treatment to both the length and placement of working hours thus entails that the temporary agency worker may be subject to the user undertaking’s working hour arrangements, which, for example, involve calculation of working hours on the basis of a fixed average.

Overtime, breaks, rest periods and nightwork

Furthermore, equal treatment shall be implemented with regard to overtime work. Compensation for overtime work is of particular relevance. The temporary agency worker must not be assigned a disproportionate overtime load on account of being a temporary agency worker.

The equal treatment requirement laid down in the first paragraph (c) applies to the length and placement of rest periods, i.e. the time of day and days of the week. For example, it is a basic assumption that it is an advantage that the weekly rest period is as far as possible fixed to weekends.

The provision in (d) is designed to ensure equal treatment as regards nightwork. Here it would be natural to assess conditions such as compensation for nightwork, both financial and other compensation. The temporary agency worker must not be assigned a disproportionate nightwork load on account of being a temporary agency worker.

Holiday and days off

Equal treatment pursuant to (e) entails that a temporary agency worker is entitled to the same holiday and days off in connection with public holidays as would have applied if the worker had been recruited directly by the user undertaking. The provision applies both to holiday and to earning of holiday pay. The temporary agency worker may during the course of a year be subject to a number of different holiday arrangements, but must always be treated as if he or she had been recruited by the user undertaking, regardless of whether the earned holiday pay fully covers the holiday to which the worker concerned is entitled in any individual assignment.

Equal treatment with regard to days off includes time off on and in connection with movable holidays and other public holidays as well as remuneration in this connection. If, for example, it is decided by the user undertaking that the employees are to have the whole Easter week off, temporary agency workers shall also be entitled to take both working days and holidays off during this week with the same remuneration as has been decided for the employees. In cases where the undertaking is operational and only part of the workforce is given time off or where days off are granted according to a specific “rota”, labour may be hired if the temporary agency workers would, as employees of the undertaking, have had to work during the period. In the event of sick leave among the employees who would normally have worked on a Saturday, Sunday or public holiday, an undertaking may hire stand-ins.

Pay and coverage of expenses

Equal treatment pursuant to (f) with regard to pay and coverage of expenses entails that the temporary agency worker is at least entitled to the pay and coverage of expenses that he or she would have received as a direct employee of the user undertaking. The term “pay” covers all remuneration for work, regardless of how it is paid or earned. This includes fixed supplements on the basis of educational and other personal qualifications when the undertaking has rules, procedures or practice for providing such fixed supplements. This includes irregular pay supplements such as compensation for unfavourable working hours or difficult or unpleasant work. The term “pay” covers remuneration for work regardless of how the pay is earned, and may also include performance-related pay or piece-rate pay if the worker would have earned the pay according to such principles as a direct employee of the user undertaking.

Pursuant to the same provision, equal treatment shall include coverage of expenses in connection with the work, e.g. for working clothes, board and lodging and any other expenses. This means that, if the worker’s expenses would have been covered on recruitment by the user undertaking pursuant to current provisions or practice, he or she is also entitled to cover of the same expenses pursuant to the provisions concerning equal treatment.

Pensions, insurances, etc.

The equal treatment requirement does not apply to the user undertaking’s pension scheme.

A letter to the Ministry asks whether collective insurances fall under the equal treatment provisions. The Ministry assumes that the question concerns arrangements where the employer has entered into an agreement concerning insurances on behalf of or for the benefit of a group of employees and where the insurance premium is generally paid by the employer. In the view of the Ministry, it is not natural to regard collective insurances as “remuneration for work”, as described in the travaux préparatoires of the equal treatment provisions. In the Ministry’s view, such arrangements normally fall outside the term “pay” (as described above) in section 14-12a of the Working Environment Act.

Access to collective amenities and facilities

Temporary agency workers shall be given access to the user undertaking’s collective amenities and facilities on equal terms with direct employees of the user undertaking unless discriminatory treatment is objectively justified. This follows from section 14‑12 a, second paragraph, of the Working Environment Act. It may be somewhat unclear what the term “collective amenities and facilities” includes, but the Temporary Agency Work Directive provides examples such as canteen, child-care facilities and transport services. The Ministry interprets the provision in this connection as referring to access to physical amenities provided by the company to its employees. The provision does not grant temporary agency workers more beneficial rights than the user undertaking’s own employees, and does not preclude that temporary agency workers must accept that much-coveted collective amenities such as child-care facilities are allocated according to conditions such as waiting lists. It is the user undertaking that ensure that the temporary agency worker is given access to collective amenities and facilities.

A letter to the Ministry asks furthermore whether collective insurances fall under the provision ensuring temporary agency workers access to collective amenities and facilities at the user undertaking. In the Ministry’s view, the background and travaux préparatoires of section 14-12 a, second paragraph, indicate that the provision shall primarily apply to access to premises and other physical amenities/facilities at the user undertaking corresponding to the examples given in the text of the Directive and in the travaux préparatoires. In the view of the Ministry, it is not natural to interpret the provision as including collective insurances at the user undertaking.

What shall apply if regulations also exist concerning generally applicable collective agreements?

The new provisions on equal treatment express a principle, and do not impose independent requirements on the level of pay and working conditions that shall be provided in connection with the hiring out of workers by temporary work agencies. Pursuant to the new provisions, a temporary agency worker shall at least be ensured the conditions that he or she would have received as a direct employee of the user undertaking. The specific conditions to which a temporary agency worker is entitled depend on the rules, agreements, internal guidelines and practice that apply at the user undertaking.

In areas where regulations on generally applicable collective agreements also apply, the employees are ensured a certain minimum level of pay and certain other benefits. These may, for example, include pay supplements and coverage of expenses for travel, board and lodging in cases where the work assignment necessitates overnight stays away from home. This currently applies pursuant to the general application regulations for the maritime construction industry, for construction sites and for private cleaning companies.

The principle of equal treatment may result in higher pay than follows from the regulations concerning generally applicable collective agreements. This is because it is generally the collective agreements' minimum rates of pay that are made generally applicable by these regulations, whereas agreements affecting direct employees of the user undertaking usually involve higher rates of pay than the minimum rates laid down in the collective agreement concerned.

In connection with the hiring out of labour by temporary work agencies to undertakings subject to general application regulations, both the regulations and the equal treatment requirement apply. The entitlements resulting from the two sets of provisions may differ.

The general application regulations may be derogated from if other rules or agreements applying to the employment provide the worker with better pay and working conditions. This follows from special provisions in the general application regulations.

The extent to which the equal treatment provisions may result in derogation from general application regulations depends on interpretation of the general application regulations' provision concerning derogation and on the specific conditions.

It is the Tariff Board that issues the regulations concerning general application. It is therefore the Tariff Board that must decide how the provisions of the regulations are to be interpreted. 

Exceptions to the principle of equal treatment

The new provisions do not provide that the parties may directly agree on exceptions to the principle of equal treatment. However, section 14-12 a, third paragraph, provides that the Ministry may in regulations provide that the equal treatment provisions may be derogated from in collective agreements. No such regulations have been issued.

Measures for ensuring compliance

In addition to the new provisions concerning equal treatment, sections 14-12 b and 14-12 c of the Working Environment Act contain provisions concerning measures for ensuring that the new provisions are complied with.

The user undertaking's obligation to provide information to the temporary work agency

When hiring temporary agency workers, the user undertaking must provide the temporary work agency with the information necessary for compliance with the equal treatment requirement. What information is "necessary" is dependent on the specific situation, but it typically consists of statutes and/or regulations, collective agreements or personnel policy guidelines. In the absence of this type of objective criteria, it may, depending on the circumstances, be necessary, for example, to provide information on remuneration practice, etc. for comparable work, etc. or quite simply to provide a subjective assessment of the conditions that would apply in connection with recruitment at the user undertaking. The point is that the temporary work agency must be given a satisfactory basis for independently setting conditions according to the equal treatment requirement. The draft regulations circulated for comment by the Ministry of Labour (see the information below) propose a provision stipulating a time limit for provision of the necessary information to the temporary work agency ("as soon as possible and within 14 days at the latest following conclusion of the hiring agreement between the user undertaking and the temporary work agency, and thereafter in connection with relevant amendments"). Persons who on behalf of the temporary work agency have access to the information received have a duty of confidentiality, and the information may not be used for any purpose other than that of ensuring or investigating compliance with the equal treatment requirement or fulfilling the obligation to provide information to the worker. 

The temporary work agency’s obligation to provide information to the temporary agency worker

When so requested by a temporary agency worker, the temporary work agency must provide the worker with the information necessary to assess whether his or her pay and working conditions comply with the equal treatment requirement. What information is “necessary” is also dependent on the specific situation. Normally, this concerns the information that the user undertaking is required to provide to the temporary work agency as a basis for setting the working and employment conditions. It may also be necessary, inter alia, to provide information concerning any subjective assessments on which the conditions are based.

 

Right for elected employees’ representatives at the user undertaking to request and receive information

When so requested by the employees’ elected representatives at the user undertaking, the user undertaking must provide documentation of the pay and working conditions agreed between a temporary agency worker and that person’s employer. This obligation applies only to conditions as referred to in section 14-12 a, first paragraph. Pursuant to the provision, only local employees’ representatives, i.e. the employees’ representatives employed at the user undertaking, have right of information. The term “employees’ elected representatives” shall be interpreted as otherwise in the Working Environment Act. Employers’ representatives have a duty of confidentiality regarding the information, and the information may not be used for any other purpose than that of ensuring or investigating compliance with the equal treatment requirement.

The temporary work agency’s obligation to provide information to the user undertaking

When so requested by the user undertaking, the temporary work agency shall provide documentation of the pay and working conditions agreed with a worker hired out to the user undertaking. This must be viewed in connection with the provision concerning right of information for employers’ representatives. Persons who have access to the information received on behalf of the user undertaking have a duty of confidentiality, and the information may not be used for any purpose other than that of ensuring or investigating compliance with the equal treatment requirement or fulfilling the obligation to provide information to the employees’ elected representatives.

Joint and several liability for user undertakings for payment of wages, holiday pay and any other remuneration pursuant to the equal treatment requirement. A new provision concerning joint and several liability will enter into force on 1 July 2013

Joint and several liability arises immediately on default of payments due to a worker. The worker is not required to attempt to have his or her claim covered by the employer before invoking joint and several liability. Joint and several liability applies to overdue payment of wages, holiday pay and any other remuneration pursuant to the principle of equal treatment, earned in connection with the hiring concerned. Claims for pay, etc. beyond that which follows from the equal treatment requirement are not subject to joint and several liability. When joint and several liability arises, the user undertaking is also liable for holiday pay earned in connection with the overdue payment. Pursuant to the ordinary law of monetary liability in connection with unconditional guarantees, the jointly and severally liable party may claim recourse against the worker’s employer. The worker must submit his or her claim in writing to the jointly and severally liable party within a time limit of three months after the due date of the claim. The jointly and severally liable party shall pay in accordance with the claim at the latest three weeks after it is received. A separate provision has been included in order to cover clear cases of misuse, which provides that the jointly and severally liable party may refuse to cover the claim if the worker was aware that the condition for the assignment was that wages, etc., pursuant to the principle of equal treatment, should wholly or partly be covered by the jointly and severally liable party. Joint and several liability does not apply when bankruptcy proceedings have been instituted against the temporary work agency.

Draft Regulations concerning hiring out of workers

The Ministry of Labour has circulated for comments draft regulations which, inter alia, make the provisions concerning access to hiring and the provisions concerning equal treatment also applicable to hiring by enterprises without employees. It is furthermore proposed that a time limit be provided for the user undertaking’s duty of information pursuant to the Act and that a provision be included concerning penalties on breach of the duty of confidentiality. The time limit for comments was 6 December 2012. It is aimed that the regulations shall enter into force at the same time as the statutory amendments.

 

See the draft regulations and request for comments: http://www.regjeringen.no/html?id=705924

Travaux préparatoires and Act

 

The Storting’s web page on the Act

http://www.stortinget.no/no/Saker-og-publikasjoner/Vedtak/Beslutninger/Lovvedtak/2011-2012/vedtak-201112-069/