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04 November 2020
Pursuant to a recent European Court of Justice (ECJ) judgment,(1) recourse to a series of successive temporary agency contracts must be justified, as the assignment of a temporary agency worker is, by its very nature, intended to be temporary. This article summarises the judgment and answers FAQs with regard to its impact on Maltese employment law.
On 14 October 2020 the ECJ confirmed that although EU law does not force member states to do the following, they must nonetheless take measures to preserve the temporary nature of temporary agency work:
National laws should include some measure to prevent successive assignments of the same temporary agency worker to the same user undertaking in so far as those successive assignments circumvent the obligations of equal treatment for such workers.
The ECJ emphasised that, based on the definitions provided in the EU Temporary Agency Work Directive (2008/104/EC), "the employment relationship with a user undertaking is, by its very nature, temporary". This must be understood by recalling that temporary agency workers have a right to be informed of any vacant posts in the user undertaking to give them the same opportunity as other workers in that undertaking to find permanent employment. Therefore, if successive assignments of the same temporary agency worker to the same user undertaking result in a period of service with that undertaking which is longer than what can reasonably be regarded as 'temporary', it could be indicative of the misuse of successive assignments. Where, in a given case, no objective explanation is given for the decision of the user undertaking concerned to have recourse to a series of successive temporary agency contracts, the national court must examine whether any of the EU directive's provisions have been circumvented, especially where the series of contracts in question has assigned the same temporary agency worker to the user undertaking.
In arriving at its decision, the ECJ had to interpret Article 5 of the EU Temporary Agency Work Directive, which provides that:
Member States shall take appropriate measures, in accordance with national law and/or practice, with a view to preventing misuse in the application of this Article and, in particular, to preventing successive assignments designed to circumvent the provisions of this Directive. They shall inform the Commission about such measures.
Article 2 of the directive provides that the directive aims to:
The ECJ noted that Article 4 of the directive provides that prohibitions or restrictions on the use of temporary agency work will be justified only on grounds of general interest relating in particular to:
Does this ECJ decision apply to Malta?
Yes, preliminary rulings of the ECJ such as this have an erga omnes effect, to be enforced by member states, including Malta. If a member state's legislation conflicts with EU law as interpreted by the ECJ, the member state should 'disapply' such law.
Does Malta have legislation regulating temporary agency workers?
Yes, the Temporary Agency Workers Regulations (SL 452.106 as amended) transpose the EU Temporary Agency Work Directive and regulate temporary agencies and the employment of temporary agency workers who are employed by agencies but assigned to work with user undertakings under their supervision and direction.
In August 2018 a legal notice seeking to amend SL 452.106 was enacted. However, and despite there being no formal legislative act to this effect, the application of this legal notice was eventually declared to be suspended by a spokesperson for the ministry responsible for employment. The responses in these FAQs are provided on the assumption that this legal notice is in fact suspended.
Does Maltese law impose any limit on the duration of assignments or the successive assignment of the same worker to the same user undertaking?
No, there is no express provision in the law which sets limits on the duration of an assignment or successive assignments.
Does Maltese law impose any obligation to justify the need for the use of temporary agency workers?
No, there is no express provision in the law which requires justification for the use of temporary agency workers.
Does Maltese law impose any measures to combat abuse?
Yes, to an extent. Subject to some exceptions, the Temporary Agency Workers Regulations impose strict obligations of equal treatment for temporary agency workers who are assigned to a user undertaking. Temporary agencies (as employers) must comply with such obligations. This includes an obligation to ensure equal pay for temporary agency workers with comparable employees of the user undertaking.
However, this principle of equal treatment, insofar as it relates to pay, does not apply for the first four weeks of an assignment if that assignment lasts 14 weeks or more. However, to combat abuse, if a temporary agency worker who was not granted equal pay during the first four weeks of their assignment is subsequently replaced, the agency worker assigned as a replacement will benefit from equal treatment regarding pay from the first day of the assignment.
Will the situation be the same in all EU member states?
No, the EU Temporary Agency Work Directive allows member states a degree of flexibility on certain aspects of transposition. For instance, some EU member states (eg, Poland) have implemented limitations on the maximum duration of an assignment of one worker with a single user undertaking. Others (eg, Italy, Poland and France) have introduced restrictive lists of reasons for using agency workers or on the nature of the tasks that may be assigned to agency workers. Others have set quotas limiting the proportion of temporary workers that may be used in an undertaking, while others have required employers to negotiate with workers' organisations prior to using agency workers.
Some EU member states, including Malta, provide for the possibility to derogate from equal pay during assignments for agency workers with an indefinite-term employment contract who are paid between assignments (ie, during periods in which they are out of work).
What other key elements do the Temporary Agency Workers Regulations consider?
There are several elements to consider, including with regard to temporary agency workers' right to:
The law also considers health and safety issues.
Does the ECJ judgment call for amendment to Maltese law?
The ECJ judgment does not expressly mandate any amendments to Maltese law. However, as a result of this judgment, it may be reasonably expected that the local regulations will necessitate amendments to introduce measures restricting the duration of assignments or the use of successive temporary agency assignments.
For further information on this topic please contact Paul Gonzi at Fenech & Fenech Advocates by telephone (+356 2124 1232) or email (email@example.com). The Fenech & Fenech website can be accessed at www.fenechlaw.com.
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