BECTU response to consultation on proposed temporary agency workers directive

BECTU response to the public consultation on the European Commission proposal for a directive on the working conditions of temporary (agency) workers.

1. BECTU's response to the consultation is set out below. The proposed directive has particular relevance to a number of our freelance members working in the film and television sector, who enter into employment relationships with temporary work agencies. Since, however, the numbers so far are limited - and the more typical pattern for those using agencies is to enter an employment relationship with the user enterprise - our comments are restricted to key points only.
2. In general terms we welcome the underlying aims of the directive - especially the principles of non-discrimination and equal treatment for agency workers compared to comparable workers in the companies to which they are assigned.
3. On the scope of the directive, we note in our sector that some agencies appear to hide behind a confusion as to whether they or the user company are the employers of the workers concerned. We hope the directive will prompt agencies and user companies to issue clear and explicit contracts to workers (ie clarifying whether an employment relationship exists or not).
4. On the basic employment conditions covered by the directive, we strongly believe that pay should be included ie the right to equal treatment should apply to pay. For freelances in film and television, working for a wide variety of companies on short contracts, pay is often the employment condition of primary importance. Other employment conditions tied to a longer relationship with particular companies may simply not be applicable. The inclusion of pay is therefore vital if the directive is to be meaningful for these individuals.
5. However, possibly the single most significant issue for the workers we represent is the proposed 6 weeks threshold ie the option for the equal treatment requirement not to apply for assignments of 6 weeks or less. This would have the effect of excluding a large proportion of our members from the provisions of the directive - precisely because, as already indicated, their working patterns may include a large number of short-term contracts, of anything from a single day (on commercials) to 4-6 weeks (in many independent productions). The basic argument is closely related to our concerns about the original 13 week provision within the Working Time Regulations.
6. Further concerns on the 6 week threshold are as follows:
   • Some of our members may not, at the start of an assignment, be clear as to precisely how long it will last eg an assignment which is tied to the completion of a particular project. How could this sort of uncertainty affect the application of the directive?
   • More generally, we believe the imposition of such a threshold is not consistent with established EU law and policy, which provides that equal treatment rights should operate from day one.
   • We are worried that employers - especially given the flexibility in some projects and contracts in or sector - could, by manipulating deadlines, use the threshold as a means of avoiding the equal treatment provisions.
7. On the issue of 'comparable workers' we would wish agency workers to be able to compare their basic employment conditions with workers within the company to which they are assigned ie to apply a user comparator rather than an agency comparator. Members using agencies may work in many different sectors of our industry and, for example, a camera operator working on a big budget commercial should in our view be compared to others engaged on that production rather than another agency camera operator who may be assigned to a much lower budget documentary. Only user comparators will offer meaningful comparisons, given the great disparity of working conditions within our sector.
8. In respect of access to permanent quality employment, we welcome the requirement for agency workers to be informed of permanent vacancies in user companies; we would wish any obstacles to workers finding permanent employment to be prohibited (eg temp to permanent fees, other charges); and we welcome any requirement on user companies to give agency workers access to 'social services' available to comparable workers (such as staff catering and travel allowances).