Ensuring health and safety at work for flexible workers

On October 2nd and 3th 2008, 25 experts from all over debated on how to ensure health and safety in contingent employment relations, and specifically in temporary work agency relations. The event was organized by EZA and hosted by HIVA in Leuven, Belgium. The aim of the seminar was to empower the key actors in the field of health and safety at work through information, debate and the exchange of good practices. The seminar was designed particularly for politicians, public officers, advisors on the management of health and safety at the workplace (in so far as they are representatives of workers’ organizations and trade unions), and other representatives of workers and employers’ organizations with a specific interest in health and safety at work.

Donald Storrie (Head of the Employment and Competitiveness unit, European Foundation) introduced the particular situation of temporary agency work in the EU. Although this type of work accounts for only 2% of the EU27-workforce, temporary agency work seems to face poor health and safety provisions. This can partly be explained by the triangular relationship of temporary agency work, developed at the seminar by Anneke Goudswaard (TNO Quality of life). First of all, there is a weak contractual relationship between the user firm and the temporary agency worker. There exists only a commitment to ’match expectations’, the worker by performing the work asked from him, the user firm by coaching and controlling the worker. It is obvious that this relationship will be different from the traditional employment relationship in terms of loyalty, voice and payment. The second relationship exists between the temporary agency worker and the temporary work agency. These two parties have signed the actual employment contract. It is clear that the fact that employer and employee usually are not confronted at the work floor does not make it easy to develop efficient HR policies. Finally, the temporary work agency and the user firm have a contract. They will work together in case the user firm can find a competitive market advantage in their cooperation. Evidently, the ‘cost’ of the worker will be a crucial indicator.

This particular triangular relation is not in favour for the safety at work of temporary agency workers. While overall health and safety figures are becoming better, there is evidence that this is not the case for contingent employment. Based on EuroFound data, Goudswaard and Storrie explained that non-permanent employees are more likely to work in unsafe jobs.

These empirical data may be surprising from a European legislative perspective. European legislation clearly states that there should be an equal treatment on the provisions of health and safety at work for fixed term and contingent workers. Riccardo Rodriguez (European Commission consultant and associate member of Labour Asociados SLL) offered an overview of regulations on this topic, and concluded that there is at least a need to improve some of the legislation as the particular attention on atypical work dates from the 20th century. Labour markets have changed substantially since the 1991 Directive on health and safety for workers with a fixed-duration employment relationship or a temporary employment relationship. The European Commission has acknowledged this legislative gap and had prepared a new Directive specifically aimed at temporary agency workers. Kerstin Ahlberg (Institute for Social Private Law, Stockholm University documented the preparation of this Directive in detail and demonstrated that it involved a difficult process that took many years to reach a satisfactory conclusion. Plans to revise the earlier legislative framework date from 1999. However, all phases of consultation have taken much longer than expected. Both the social partners and the European Member States engaged in lengthy discussions before a draft ‘temporary work directive’ was ready in 2002. However, the draft would prove to contain so many stumbling blocks for the fifteen (and then 25 and 27) Member States, that it would be under debate for four years. The difficulties that Member States had with the draft proposal were various and reflected to a large extent their national context. In Sweden, for example, working conditions of temporary workers are regulated by collective agreements. Sweden therefore needed the Directive to allow Social Partners to conclude collective agreements. Denmark, Germany, Ireland and the UK voiced the strongest opposition against the proposal and even questioned the need for European regulation on the issue. All four countries called for extensive exemptions to the draft Directive.

Fabrice Warneck (UNI Europa) argued that a new Directive would not tackle all problems. Especially the British derogation (making it possible to have a qualifying period for equal treatment) risks to put temporary workers in a dangerous position. It means that temporary workers are not guaranteed equal treatment on behalf of safety provisions from day 1. Hence, temporary workers in the UK risk to continue to face severe safety problems at the work floor. Warneck further stressed that the pay (or German) derogation opens a possibility for exploitation of temporary workers, by giving them (very) low pay jobs. A third dangerous aspect in the new framework Directive is the fact that the government can exclude temporary workers from ‘occupational safety schemes’. 

The final part of the conference highlighted the Dutch approach (Anneke Goudswaard) and Belgian approach (Jan Van Peteghem, IDEWE; Hendrik Delanghe, Prevent & Interim) of regulating health and safety provisions for contingent workers. 

What seems to be a good practice is a permanent employment contract between temporary workers and temporary work agencies. In The Netherlands, a collective agreement regulating temporary agency work makes it possible for the agency to offer workers a permanent contract once they enter what is called ‘phase C’ (the different phases depend on the length of assignments combined with the length of employment per year).  Both for the worker and for the agency, there are various advantages to this system.  For the worker, one major advantage is, of course, the reassurance of pay between assignment and the peace of mind this brings. It can also make the worker more committed to the agency, which in turn would make it easier for agencies who lose good workers to user agencies to retain these workers. A third plus is that a permanent contract would stimulate the agency to consider the career path of its workers.

As mentioned before, health and safety risks are greater for temporary agency workers than for permanent employees.  Information and training play a key role here: how much does the worker know about the risks he will be facing during his assignments?  How equipped is he to handle these risks appropriately? Both in The Netherlands and in Belgium, the law requires the agency worker to be handed a ‘job description’ before starting his assignment.  This job description, completed by the user company before requesting a worker to the temporary work agency, contains information on the content of the job, a risk analysis with regards to the job, the required medical surveillance as well as the necessary personal safety equipment.  When an accident happens, the job description is the reference point to determine responsibility – was information provided, and if so was it correct and did it reflect the job the workers was assigned to? 

In fact, the duties of a Belgian employer are much larger than information. The employer assumes all final responsibilities with respect to the occupational safety and health for all members of personnel. This includes a comprehensive risk analysis, a global ‘prevention plan’, and annual action plans. The main issue is that the complex triangular relationship of temporary work is not clearly defining temporary workers as ‘member of personnel’.

The new Directive on temporary work may have had a long history, but as it is now in the final stages we may look forward. The new legal framework, although leaving some specific exemptions for some Member States, must be seen as an opportunity to offer good health and safety provisions for all contingent workers. The examples of how this is ensured in ‘old’ Member States can be an inspiration for the development of this new form of employment in ‘new’ Member States, where the number of contingent employees is likely to increase. As this seminar has been very inspirational, hosts Tineke Vaes & Tom Vandenbrande (HIVA) intend to publish a brochure on how to implement contingent work in a safe and healthy way in 2009.