Background:

The respondent, an agency providing temporary work, employed individuals under a fixed-term contract in 2017.  The individuals under that fixed-term contract received €9.23 per hour as a result of a collective agreement.  The issue was that the collective agreement did not allow for equal treatment for temporary agency workers as their pay was less than those who were directly employed who were paid €13.64 under a separate collective agreement. A claim was thus brought for the difference in pay.

Outcome:

The claim was rejected by the national courts before the claimant issued an appeal to the appellate court in Germany.  The German court then felt that it was prudent to seek a preliminary reference from the European Court of Justice (‘ECJ’).  The ECJ examined the protection given to temporary workers under the Temporary Workers Directive.  Under Article 5(3) the meaning of overall protection of temporary agency workers was not seen as requiring any account to be taken of any greater protection than that given to workers in general through national and EU law.  Where there is a difference in treatment with regards basic working and employment conditions to the detriment of temporary agency workers, there must be some corollary advantage to compensate for the differences.  In terms of those countervailing benefits, it was necessary to assess compliance with the obligation for overall protection of the temporary worker by comparing their conditions to those who were directly recruited.  However, national legislation did not need to detail the criteria which collective agreements would have to comply with.  There is a broad discretion to be given to these ‘social partners’ but there must still be compliance with EU law.  It would then fall to the courts to ensure that any collective agreement which did allow for differences between those directly recruited and agency workers is compliant with the Directives.

Practical Guidance for Employers:

The ECJ decision here does not seek to provide an answer to the particular case but rather provide some further insight into the application of the Directive.   In this regard, it was clear that whilst there is discretion to be given where there are collective agreements, it must adhere to the idea that temporary agency workers are still given that ‘overall protection’ as required under the Temporary Workers Directive.  Where there is a difference leading to a detriment there must be some corollary benefit which compensates for that detriment.  This should be taken into account where there are employers who have employees both directly recruited and from an agency.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62021CJ0311