EU Labour Law complements policy initiatives taken by individual EU countries by setting minimum standards.
In accordance with the Treaty - particularly Article 153 - it adopts laws (directive) that set minimum requirements for:
Flexicurity and Decent Work
Promoting the concept of decent work is one of the core functions of the International Labour Organation (ILO). The ILO believes strongly that work is a central aspect of the wellbeing of people, because work provides an income and promote “broader social and economic advancement”.
The decent work agenda is directed at the promotion of the opportunities to acquire decent work. The term decent work reflects the freedom, equity, security and human dignity of workers. Decent work is summarized by the four strategic objectives by the ILO namely job creation; guaranteeing rights at work; social protection; and social dialogue.
The European Employment Strategy, as a sub-strategy of the Lisbon Agenda included flexicurity guidelines. To evaluate the question if these flexicurity guidelines and the decent work agenda are complimentary or maybe conflicting the, Council Conclusions on Decent work for all of 2006 must be discussed. These Conclusions highlight however that the competitiveness of the EU must be strengthened in a socially sustainable way. Strategies to improve productivity must be balanced with the improvement of decent work and the quality of working life agenda. The flexicurity strategies must include health and safety at work, life-long learning, good working relations as well as better reconciliation of work and private life. According to the mentioned Conclusions flexicurity strategies must also be directed at all forms of discrimination as well as promoting the social integration of vulnerable groups.
Flexicurity does not imply that permanent contracts are not supported, and that non-permanent employment is the future. In terms of the decent work debate flexicurity must address the gap between permanent and non-permanent work, facilitate the smooth and timely evolution from unemployment into employed and to support the transition into decent employment. The European Expert Group on Flexicurity believes that the strategy focuses on improving and safeguarding peoples ability to “enter, remain and progress” in employment throughout their life-cycle. According to the ILO the flexicurity approach is in line with the ILO Decent Work concept but it recommends that the right balance regarding decent work is not to be found by companies or the public sector alone, but through social dialogue. According to Massimiani decent work is part of the EU strategy, he refers to the agreement of the European social partners of 18th October 2007: “Key challenges facing European Labour markets: a joint analysis of European social partners”. The agreement links flexicurity with the quality of work because the agreement guarantees “good working conditions”.
Kraamwinkel, et al make the observation that decent work is not in the agenda of the Europe 2020 strategy. These authors argue that because the focus of the strategy is on more work that is more flexible, the important issue of the quality of the work is ignored. If the Agenda for new skills and jobs of the Europe 2020 initiatives is considered it is clear that Kraamwinkel, et al are not correct in arguing that decent work is not part of the 2020 strategy. The Commission proposed actions in the Agenda for new skills and jobs that will ensure decent working conditions while improving the quality of employment legislation.
In the ambit of decent work there are two elements that must not be confused namely the need of the worker for more flexible work and the need of the employer for a flexible workforce. There are employees that report that a flexible contract give them more freedom. According to the Federatie Nederlandse Vakbeweging (FNV) it is mostly the highly skilled and desired workers that are in a strong negotiation position that report that flexible contracts gives them more freedom. The FNV believes that most Private Employment Agencies (PrEAs) do not provide their employees with flexibility in their permanent contracts. According to the FNV a flexible contract for most of Temporary Employment Services (TES) workers does not result in freedom. TES workers must go where and when as the PrEAs prescribes. The negative aspect of TES work is that a worker is paid per assignment and that the worker is not sure what their next assignment is going to be. It is also reported that the TES worker can experience stress and fatigue as they continually move from one contract to the next. There is also truth to the other side of the coin that flexible working patterns can make new work opportunities available, can allow the incomes of families to be supplemented and to may reconcile family/work responsibilities.
According to Denis Pennel, managing director of the European Confederation of Private Employment Agencies (Eurociett) the temporary agency sector is central in the flexicurity debate in Europe. Pennel remarks that the sector offers flexibility and security for both workers and businesses. The private employment agency sector improves the transferability of the rights of agency workers. The fact that agency workers’ rights are transferred with him or her from one company to the next, has a huge impact on the workers job security.
On 28 February 2007, Eurociett and Uni-Europa, a european trade union federation, agreed on a European-level Joint Declaration on Flexicurity.
The Declaration, affirms that TAW can contribute considerably to the flexicurity agenda, namely:
• Creating the possibility for workers to progress from unemployed to employed, for example helping jobseekers entering or re-entering the labour market;
• facilitating the transition of young workers between their education and first job;
• TES can facilitate the supply and demand of the labour market;
• The progression from temporary contracts to open-ended contracts is facilitated by TES;
• To assist with the improvement of the work– private life balance. This is possible by providing flexible working time possibilities workers when it is needed;
• To enhance the principle of equal treatment;
• That TES must not replace striking workers with temporary Agency Workers;
• It must be clearly indicated that agency workers are employed by the PrEA and that they must carry all obligations as employers in terms of Labour Law.
It is also worthwhile to look at the recommendations of Eurociett on how the implementation of flexicurity can be improved, as this will also improve our understanding of the realities of the strategy:
• To promote TES more actively as an appropriate way to implement a flexicurity approach;
• The improve the access to the labour market for outsiders (long-term unemployed, returning women, first-time entrants, elderly people), by making effective use of the stepping stone capabilities of private PrEA;
• That benefits of the ratification of the ILO Convention no181 on Private Employment Agencies should be promoted within the EU (and actually in all the industrialized economies). According to Eurociett the convention is based on a flexicurity approach;
• Governments must consider the modernization of their labour laws in order to bring legal certainty to flexible- work contracts and employment relationships;
• A modern approach is needed for the re-evaluation of social protection, pensions and health as Europe recovers from the economic crisis. This is also inline with the Dutch efforts to adapt their labour legislation;
• The importance of social dialogue in the implementation of flexicurity.
TES can be an effective stepping stone for outsiders into the labour market and consequently increase job creation. If the PrEA’S act more as human capital managers than mere manpower suppliers, the sector can play an important role in the balancing of the security and flexibility of the labour market.
Auer P and Gazier B, FLEXICURITY AS A POLICYAGENDA, CESi fo DICE Repor t 4/2008: P5
Massimiani C, Flexicurity and Decent Work in Europe: can they co-exist?, Faculty of Law – University of Catania, 2008, P2
Auer P and Gazier B, FLEXICURITY AS A POLICYAGENDA, CESi fo DICE Repor t 4/2008: P7