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In the year 2008 the European Union legislated in the area of temporary agency work by issuing Directive 2008/104/EC of the European Parliament and of the Council of November 19, 2008 on Temporary Agency Work. The purpose of this Directive is: To ensure the protection of temporary agency workers and to improve the quality of temporary agency work by ensuring that the principle of equal treatment ... is applied to temporary agency workers, and by recognising temporary work agencies as employers, while taking into account the need to establish a suitable framework for the use of temporary agency work with a view to contributing effectively to the creation of jobs and to the development of flexible forms of working. Thus, the Directive contains a quid pro quo: on the one hand it aims at doing away with existing statutory restrictions. Accordingly, Article 4(1) of the Directive states that:Prohibitions or restrictions on the use of temporary agency work shall be 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. On the other hand, the Directive establishes the so-called principle of equal treatment, “The basic working and employment conditions of temporary agency workers shall be, for the duration of their assignment at a user undertaking, at least those that would apply if they had been recruited directly by that undertaking to occupy the same job.”According to 3(1) no. 3 and 9 no. 2 of the Act on Temporary Agency Work, a temporary agency is, in principle, obliged to grant the agency work “the same basic working conditions including pay ”that apply in the establishment of the hirer-out for the period of assignment to that establishment. However, there were exemptions to the application of this principle from the beginning. Under the old law, the temporary was not obliged to obey the principle of equal treatment if the agency hired a worker who was unemployed immediately before being hired, was at no point of time a worker of the agency, and received a net salary which was at least equivalent to the amount of unemployment benefits which the worker received before (3(1) no. 3 sentence 1 and 9, no. 2 sentence 1of the Act on Temporary Agency Work). This exemption, however, justified the nonapplication of the principle of equal treatment for no longer than six weeks. The according provision was introduced in 2002 in order to provide an incentive to offer jobs to unemployed persons and to mark it easier for such persons to reenter the labor market. In practice, this provision soon proved to be of almost no relevance. As a consequence, it was abolished by the legislature and does not form part of the new Act on Temporary Agency Work anymore. The second, and by far more important, exception applied and still applies to collective bargaining. According to 3(1) no. 3 sentence 2 and 9, no. 2 sentence 2 of the Act on Temporary Agency Work, the principle of equal treatment may be disposed of on the basis of a collective bargaining agreement. As a result, working conditions are fixed by collective agreements instead of being derived from the principle of equal treatment for all temporary agencies and workers who are bound to collective agreements. On the basis of a pure grammatical construction of the law, the power of the parties to a collective agreement to dispose of the principle of equal treatment is not subject to any restrictions, which has been criticized by many from the outset. n21In addition, the Act on Temporary Agency Work allows for so-called references to collective agreements by parties who are not bound to the collective agreement. At a consequence, temporary agencies and workers can dispose of the principle of equal treatment by simply referring to the according collective agreement in their employment contracts (the so-called “reference clause”), the only prerequisite being that the employment relationship falls within the area of the collective agreement's application. As a result of such “reference clause,” the collective agreement becomes an implied term of the employment contract.

목차

Ⅰ. 문제제기
 Ⅱ. 유럽의 파견근로 모델과 유럽연합의 파견근로 입법지침
 Ⅲ. 독일근로자파견법의 균등대우원칙과 그 우회
 Ⅳ. 결론 - 시사점 및 교훈 -
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키워드

파견근로 유럽연합 파견근로자 파견사업주 반대급부 균등대우원칙 사용사업주 단체협약 중요근로조건 준용조항 temporary agency work the European Union temporary agency workers temporary work agencies quid pro quo principle of equal treatment user collective agreements basic working conditions reference clause

저자

• 김희성 [ Kim, Hee Sung | 강원대학교 법학전문대학원 교수 ]

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