The ‘Temporariness’ of Temporary Agency Work Assignments

Abstract

To prevent the misuse of the equal treatment principle and successive assignments designed to circumvent the TAW Directive's provisions, Member States have to take appropriate measures in accordance with national law and/or practice (Art. 5(5)). One such measure, as mentioned but not further defined by the TAW Directive itself (Art. 3(1)(b) to (e)), involves limiting the duration of assignments. Not limiting, in one way or the other, the maximum period during which a temporary agency worker may be assigned to a user undertaking then might be problematic for a Member State, and may result in the TAW Directive being transposed incorrectly. Yet, the failure of the TAW Directive itself to set a maximum duration, while also not providing criteria by which to establish whether an assignment leads to a circumvention of the provisions of the Directive (Art. 5(5)), may lead to legal uncertainty for Member States and for those making use of the legal rules on temporary agency work. Against this background, this article addresses the question of the extent to which limiting the duration of the assignment, from both a European and national perspective, can prevent the misuse and circumvention of the provisions of the TAW Directive.