INTERNATIONAL SEMINAR OF PONTIGNANO XVIII
REPORT OF THE THIRD GROUP
INTERMEDIATION IN THE EMPLOYMENT CONTRACT
 
THE WORK GROUP
Giacomo FONTANA
Pascal LOKIEC
Valerio MAIO
Riccardo MARINI
Chiara SAMMARCO
Felice TESTA
Rosalba VALENZANO
 
Coordinated by
Magdalena NOGUEIRA GUASTAVINO
 
Special thanks to:
Simon DEAKIN
Eva KOCHER
 

SUMMARY:

1. THE CONCEPT OF INTERMEDIATION

2. THE RATIO OF THE PROHIBITION

3. LEGAL AND ILLEGAL FORMS OF INTERMEDIATION

4. THE MODEL OF LEGAL INTERMEDIATION: THE TEMPORARY WORK

a) THE REQUIREMENTS OF AUTHORIZATION

b) DIFFERENT MODELS OF TEMPORARY WORK.

c) POWERS AND OBLIGATIONS OF THE AGENCY AND OF THE USER

5. THE LINKS BETWEEN COMMERCIAL CONTRACT AND EMPLOYMENT CONTRACT

6. THE COLLECTIVE DIMENSION

7. PERSPECTIVES ON JOB CREATION AND ON THE FORM OF EMPLOYER

 

INTERMEDIATION IN THE EMPLOYMENT CONTRACT

 

1. THE CONCEPT OF INTERMEDIATION

 

Our discussion aims at identifying the employer in all the cases in which there is a person between the usual parties to the labour contract.

There is intermediation when we can find another subject between the person that profits from the work activity and the worker. This person is represented by the intermediary.

In other words we could say that there is a formal employer and a real employer: the formal one is the party to the employment contract, the second one is the user and very often the relationship between the two employers is a commercial contract.

 

2. THE RATIO OF THE PROHIBITION

 

This trilateral relationship may undetermine the legal system of workersí protection.

For this reason it has been felt the need to regulate phenomena which aim at evading the growing labour costs and the rigid norms introduced by statute law and collective bargaining.

As a consequence, the ratio of the prohibition is the necessity to avoid eventual frauds.

One of the most common methods used for realizing this illegal aim was in fact that of using intermediaries who, in theory, were employers; while, in practice, it was the customer who actually exploited the workers performance.

Basically a three sided relationship was created, with a customer (who was the real employer), an intermediary (the apparent employer) and the worker, who carried out his working activities under the direction and in the interest of the customer (even though he was formally hired and remunerated by the intermediary).

To repress this phenomenon, some European countries introduced appropriate laws.

 

3. LEGAL AND ILLEGAL FORMS OF INTERMEDIATION

 

The problem is not to check if the intermediation is legal or illegal.

The real question is which forms of intermediation are legal and which are not.

To find out if the contract is lawful we should consider the characteristics of the contractor.

If the contractor is a real entrepreneur, who has his own productive organization (consisting of machines and equipment) and assumes the responsibility for the risks of the service he carries out, the contract is to be considered legal.

On the other hand, if the contractor has no such productive organisation and does not assume the responsibility risk, the contract could be considered illegal.

However, the concept of organization, according to the doctrine (among others Speziale), should not be understood, as the traditional italian jurisprudence does, as only consisting in material elements, but, nowadays, with the development of new technologies, we have to consider know-how as a form of organization.

In other countries, particularly in the United Kingdom, intermediation has never been considered illegal.

 

4. THE MODEL OF LEGAL INTERMEDIATION: THE TEMPORARY WORK

 

Those countries which considered illegal the intermediation of workforce have introduced in different times temporary work as a form of legal intermediation characterized by some guarantees.

The EEC directive n. 91/383 provides a notion of temporary work in terms of a relationship between the agency, which is the employer, and the worker, in which the worker is made available by the employer for and under the control of the user enterprise or establishment.

This directive, however, does not provide any other concepts.

The european context shows some different models. On one hand we can identify the countries which have a high level of guarantees for temporary workers (France, Germany, Italy and Spain). On the other hand we analysed the situation in those countries where there exists a weak protection.

 

a) THE REQUIREMENTS OF AUTHORIZATION

Almost every country have provisions about the authorization to offer temporary work.

Common elements are, then, provisions about health and security; means to guarantee wages and social contribution obligations in favour of temporary workers.

Generally we noticed that most legislations of the countries provide administrative controls on the activity of the agencies and requirements in order to obtain the authorization.

These provisions are intended to ensure efficiency and a high level of occupational qualification.

According to our comparison, we could say that the Italian system seems to have the highest standards of protection, fixing heavy requirements. On the opposite side, British system seems to be the most liberal one, because relatively few special requirements are provided.

b) DIFFERENT MODELS OF TEMPORARY WORK.

To simplify, we found two models:

- the french one that provides only fixed term contract of employment. The agreement expires with the end of the mission;

- the german one that has only permanent contracts of employment with the agency. The worker receives the wage even when he is not at work for the user and he is at disposal of the agency.

However, it is also possible to find a third model. In Spain and in Italy temporary work can be either fixed term or permanent.

The same is true of Britain.

We also found different models about the legal possibilities to use temporary work.

In some countries the cases in which is possible to have a temporary work contract are strictly provided by the law (France, Italy and Spain).

In the legal system of these countries the permanent contract is the general rule while the temporary work is conceived as an exception to it (like the fixed term contract).

Simplifying, we can say that in all these countries, the cases in which temporary work is permitted are, approximately, the same in which it is possible to have fixed term contract.

Particularly, in Italy, the collective agreements signed by the comparatively most representative unions can extend cases in which temporary work is available.

c) POWERS AND OBLIGATIONS OF THE AGENCY AND OF THE USER

The main consequence of the trilateral relationship in temporary work is the splitting of traditional powers and obligations of the employer between the agency and the user.

Concerning the typical employerís powers, the legal systems of the european countries attribute the power of control and direction to the user, while the disciplinary power is up to the agency.

However, we have to stress that itís a generally accepted principle that this power has the main function to repress workerís behaviour which do not satisfy the interest of who utilizes the work activity.

In return, the obligation of health safety at work generally is the responsibility of the user.

The wage and contribution obligations are referred to the agency, which is the formal employer.

The employee, in fact, has an employment contract only with the agency, but he has a relationship with the user too.

The activity of the worker, in fact, is lent in favour of the user and the temporary worker is put into the userís productive organization.

 

5. THE LINKS BETWEEN COMMERCIAL CONTRACT AND EMPLOYMENT CONTRACT

 

We have to make some distinctions here, because it seems that in some countries (France, Italy and Spain) the commercial contract and the labour contract are closely connected to each other

Although there is a strong debate in these countries, each contract seems to be supported by its own cause, so that each contract maintains its own distinctive regulation.

However they are functionally connected to realize the same purpose: (that is to say) to give flexible subordinated work to an entrepreneur that exercizes the typical rights and powers of the employer, even if he/sheís not the formal employer.

In France the law requires similarities in the terms of the labour and the commercial contract.

On the other hand, in Germany, there are no links between the two contracts. This is a consequence of the fact that in this country the labour contract with the agency is permanent.

Consequently, the labour contract is not influenced by the commercial contract because the latest necessarily has a fixed term. So, for example, the breach of the commercial contract canít have any effect on the labour relationship.

In the U.K. there is no regulation on this issue.

In case of breach of the commercial contract, however, it seems that normally the mission also expires. As a consequence, the agency has not to pay the wage anymore. This is not a general rule, it depends in each case on the contents of the individual contract between the agency and the temporary worker.

Some authors say that the labour contract is complex on the subjective side. Doctrine discusses about the effects of breaches of law in the commercial contract on the labour one.

According to general principles of civil law the interdipendence of the two contracts ("negotial link") implies that those breaches cause the breach of the labour contract too.

Some authors affirm that in temporary work it cannot happen, because, in any case, the workersí rights are guaranteed by the provisions of the law about temporary work and other special labour laws.

 

6. THE COLLECTIVE DIMENSION

 

About the collective dimension, Italy seems to be the most protective; in France and in Spain only some collective rights are guaranteed.

In Italy, temporary workers have the same collective rights provided for the userís employees and provisions of the collective bargaining applied by the user is completely extended to them.

This is a principle, but itís not easy to execute, because temporary workers are not able to know very well the rights of the employees of the user, in fact they work for a short time in different companies which apply different collective agreements.

Towards the Agency, then, temporary workers have the rights provided by Title III of WorkersĎ Statute.

In particular the right of assembly can be exercized by the temporary workers both in the agency or in the userís establishment.

In Spain, the workers on mission can use the council workers of the user to claim against for some causes related to the execution of the contract.

Moreover, the temporary workers can use the services of the user.

In Britain the temporary workers canít be encouraged to strike by the unions. They cannot be involved in the strike of the userís employees, but they can exercise a very limited individual right to strike.

The rights and the treatments provided by the collective bargaining are extended to the workers in mission only if itís provided in the individual contract.

In Germany the collective agreement applied by the user is not applicable to the temporary workers.

It is necessary to underline that, in this country (only one in Europe), the userís employees on strike can be substituted with temporary workers.

In France temporary workers are not linked by the collective bargaining of the user, except the clauses about some work conditions.

 

7. PERSPECTIVES ON JOB CREATION AND ON THE FORM OF EMPLOYER

 

Is the agency only a new way to let enter normal people into the labour market or is it an instrument for specific job creation for particular categories of people (like persons with disabilities)?

In Spain there is a proposal about the creation of public no profit temporary work agencies.

These structures, according to some authors, could be a very good instrument to facilitate the entry into the labour market of people that now, in the free market, are often excluded.

This could be possible if governments will encourage these practices with incentives and tax relieves.

Some other authors, maybe more realistically, have conceived the temporary work as an instrument to avoid both the limits to stipulate fixed term contracts and the discipline about dismissals, where it exists.

We have to mention also the opinions of that doctrine who thinks that temporary work is a way to substitute permanent work with precarious one.

In Germany some sociologists consider temporary workers as entrepreneurs of their own workforce. But itís not so in reality, because of their economic weakness in labour market, so they need social protection.

In conclusion, we could state that Temporary Work Agency can have an useful role of job creation only if temporary work is regulated with adequate guarantees for the temporary workers.

About the figure of the employer in temporary work, itís necessary to put on evidence that the work activity is performed in an organisation which is not the one of the agency, so that the power of direction is exercised by the user. This means a splitting between the person who is a party to the employment contract (the agency) and the entrepreneur that effectively profits from the work activity (the user).

So, temporary work has, in our opinion, a significant effect on the form of employer because it introduces a sort of splitting of the form of the employer.

In fact, in temporary work, as we have already underlined, the typical powers and duties of the employer are shared between two employers: the Temporary Work Agency and the User, so that the temporary worker becomes, using the expression of an Italian author "un servo di due padroni" (a servant of two masters).