European Court of Justice allows agency work restrictions

Announcing its judgement on Tuesday in a case concerning the use of agency workers at Shell Aviation Finland, the ECJ found that the EU Directive on temporary agency work does not prevent generally binding collective agreement provisions banning the permanent use of such workers alongside regular staff.

As a lawyer engaged in a European Union lobbying project for Finnish trade unions, Jari Hellsten stresses that the ruling will have ramifications throughout Europe.

“The judgement means that a national court has no duty to set aside provisions and regulations of national law, even if they include bans or restrictions on the use of agency work that conflict with the Directive. A court in Finland, for example, must therefore base its judgement on a binding collective agreement, even when that agreement contains agency work restrictions.”

The ECJ has insisted that the EU Directive on temporary agency work only applies to the competent authorities of Member States, which in Finland means Parliament and the government. Only these authorities are required to review and ensure that any bans or restrictions on the use of agency workers are justified.

“The ruling means that the fundamental right of social partners in the EU to collective bargaining cannot be curtailed by the Directive on temporary agency work,” explains Hellsten, who represented the Finnish Transport Workers’ Union (AKT) in proceedings at the ECJ.

The latest ruling came in response to an action brought in 2012 by AKT at the Labour Court of Finland against Shell Aviation Finland and the Oil Product Association employers’ federation after Shell had used agency workers over an extended period, thereby infringing the collective agreement in the union’s view.

The generally binding collective agreement concluded by AKT for the tanker and oil products industry allows the use of agency workers only during temporary peak operating periods and other special circumstances. This is a common restriction in collective agreements negotiated by trade unions affiliated to the Central Organisation of Finnish Trade Unions (SAK).

The ECJ ruling is already the second landmark legal judgement for the labour market to arise from a Finnish case this year. The ECJ ruled in February that an enterprise operating in another Member State must adhere to the pay scales of the binding Finnish collective agreement when paying wages to employees who are sent to work in Finland.