Non-Compliance With Temporary Agency Work Regulations: Initial Evidence From Germany

In 2009, the province of Ontario, Canada adopted the Employment Standards Amendment Act (Temporary Help Agencies) partly in response to public concern over temporary agency workers’ limited access to labour protection. This article examines its “new” approach in historical and international context, illustrating that the resulting section of the Employment Standards Act (ESA) reflects continuity through change in its continued omissions and exclusions. The article begins by defining temporary agency work and describing its significance, explaining how it exemplifies precarious employment, partly by virtue of the triangular employment relationship at its heart. Next it traces three eras of regulation, from the early 20th to the early 21st centuries: in the first era, against the backdrop of the federal government’s forays into regulation through the Immigration Act, Ontario responded to abusive practices of private employment agencies, with strict regulations, directed especially at those placing recent immigrants in employment. In the second era, restrictions on private employment agencies were gradually loosened, resulting in modest regulation; in this era, there was growing space for the emergence of “new” types of agencies providing “employment services,” including temporary help agencies, which carved out a niche for themselves by targeting marginalized social groups, such as women. The third era was characterized by the legitimization of private employment agencies and, in particular, temporary help agencies, both in a passive sense by government inaction in response to growing complexities surrounding their operation, and in an active sense by the repeal of Ontario’s Employment Agencies Act in 2000. Despite a consultative process aimed, in the words of Ontario’s then Minister of Labour, at “enhanc [ing] protections for employees working for temporary help agencies,” the new section of the ESA adopted in 2009 reproduces outdated approaches to regulation through its omissions and exclusions; specifically, it focuses narrowly on temporary help agencies rather than including an overlapping group of private employment agencies with which they comprise the employment services industry and its denial of access to protection to workers from a particular occupational group (i.e., workers placed by a subset of homecare agencies otherwise falling within the definition of “assignment employees”). Highlighting the importance of looking back in devising new regulations, the article concludes by advancing a more promising approach for the future that would address more squarely the triangular employment relationship as the basis for extending greater protection to workers.

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Ugovorni odnosi u vezi s privremenim agencijskim radom

Zbornik Pravnog fakulteta Sveučilišta u Rijeci ◽

10.30925/zpfsr.40.3.6 ◽

2020 ◽

Vol 40 (3) ◽

pp. 1101-1127

Author(s):

Darja Senčur Peček ◽

Sandra Laleta ◽

Karla Kotulovski

Keyword(s):

Good Practice ◽

Employment Relationship ◽

Labour Law ◽

Legal Subject ◽

Contractual Relationship ◽

Temporary Agency Work ◽

Contractual Relationships ◽

Workplace Rights ◽

Labour Legislation ◽

The Relationship

This article analyses the contractual relationships concerning temporary agency work: specificities of the employment contract between the agency (as an employer) and worker; contractual relationship between agency and the user undertaking and the factual relationship between the user and agency workers. Concerning the employment relationship between the agency and worker, the analysis focuses on the fact that only legal subject that fulfils specific conditions can operate as an agency; further, on the duration of the employment relationship, the workplace, rights and the termination of the employment relationship. Despite the fact that the agency and the user conclude the commercial contract, those contractual parties are limited by the labour law rules that are the object of the analysis in this article. Thirdly, the article deals with the relationship between the agency worker and user, that is not formalized by the conclusion of the contract, but regulated by the labour legislation, that prescribes the workers’ rights and its impact on the user’s stable workers’ rights. The authors analyse the mentioned contractual relationships as regulated in Croatian and Slovenian labour law, as well as by EU law, giving the examples of good practice used in some European countries.

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