article by
Tanel Feldman
Senior Partner at Immigration Law Associates
EU Labour and Employment Law-Immigration Partner
CORPORATE MIGRATION CENTER
Expert in Intra-EU Labour Mobility, with a special focus on the Posting/Secondment of Workers
Temporary agency work becomes considerably more complex when a worker hired out to a user undertaking is subsequently sent by that user undertaking to perform work in another Member State.
Consider a simple example.
A temporary work agency (“TWA”) established in Portugal hires out a worker to a user undertaking established in France. The worker normally performs his assignment in France under the control and direction of the French user undertaking.
The French user then sends the worker to Belgium for one week, or even for only one day, in connection with its activities there.
Who is posting the worker to Belgium?
The specific rule for temporary agency workers
Article 1(3)(c) of Directive 96/71/EC covers the hiring-out of workers by a temporary employment undertaking or placement agency to a user undertaking established or operating in another Member State.
Following the amendments introduced by Directive 2018/957, Article 1(3)(c) also expressly addresses the subsequent movement of an agency worker by the user undertaking.
Where a worker hired out by a TWA to a user undertaking is subsequently required by that user undertaking to perform work in another Member State in the framework of a transnational provision of services, the worker is considered to have been posted to that other Member State by the TWA with which the worker has the employment relationship.
The Directive therefore separates two roles:
The user undertaking initiates the movement. The TWA is deemed to make the posting.
For this reason, Article 1(3)(c) also requires the user undertaking to inform the TWA in due time before the work begins. How this obligation operates in practice is governed by the national law transposing the Directive in the Member State concerned, which may, for example, prescribe a specific prior notice period or other requirements.
The TWA needs that information because it must be able to comply with the obligations arising from the posting.
Why prior information matters
The TWA must first verify the requirements for carrying out temporary agency activities in the Member State concerned, including whether any additional licence or equivalent requirement applies. It must then comply with the applicable administrative requirements (such as notification, appointment of a liaison person and retention of mandatory documents) and the host-country terms and conditions of employment.
In practice, however, users do not always inform the TWA when an agency worker is sent temporarily to another country.
This creates an important allocation-of-liability issue.
National law may impose a specific liability on the user undertaking for failing to comply with its information obligation. Nevertheless, the Posting of Workers Directive treats the TWA as the posting undertaking.
Consequently, the TWA may still face consequences for failure to comply with the posting requirements applicable in the host Member State, even where the underlying problem originated with the user’s failure to inform it.
The contractual relationship between the TWA and the user should therefore expressly regulate such cross-border movements and require sufficient advance notice.
The Portugal-France-Belgium example
Return to our example.
The Portuguese TWA hires the worker out to the French user. The French company subsequently sends the worker to Belgium for one week.
There are two materially different situations.
1. The worker remains under the French user’s control and direction while working in Belgium
In this scenario, the Portuguese TWA is posting the worker to Belgium by means of hiring out the worker to the French user undertaking, the latter operating in Belgium.
Consequently, the TWA is hiring out a worker within Belgian territory.
In Belgium, temporary agency work is highly regulated at regional level. One of the first questions will consequently be whether the Portuguese TWA is authorised to carry out temporary agency activities in the Belgian region concerned. This may require an additional license or, equivalence of the license and financial guarantee obtained in the Member State of establishment.
Which employment conditions apply?
Article 3(1b) of Directive 96/71/EC provides another important rule.
Member States must ensure that TWAs posting workers under Article 1(3)(c) guarantee them the terms and conditions of employment applicable pursuant to Article 5 of Directive 2008/104/EC.
Article 5 establishes the principle of equal treatment: during the assignment, the basic working and employment conditions of the temporary agency worker must, subject to the permitted derogations, be at least those which would apply if that worker had been recruited directly by the user undertaking to occupy the same job.
This distinction matters in our example.
If the worker remains under the control and direction of the French company while working temporarily in Belgium, the relevant user undertaking remains the French company operating in Belgium.
The analysis should therefore not simply jump to the collective agreement applicable to some Belgian client at whose premises the work happens to be performed.
The question is what conditions would apply to a comparable worker recruited by the French user undertaking to perform the same job in Belgium, taking account of the Belgian mandatory rules applicable to that employment situation.
The Directive reinforces this mechanism by requiring the user undertaking to provide the TWA with information concerning the relevant working conditions and remuneration.
2. The worker works under the control and direction of the French user’s Belgian client
A considerably more problematic situation arises where the French user does not retain control and direction.
Suppose instead that it sends the Portuguese agency worker to its Belgian client and the worker performs the assignment under the control and direction of that Belgian company.
The legal structure has now fundamentally changed.
The Portuguese TWA hired the worker out to the French user, while the French user has effectively placed the same worker at the disposal of another undertaking in Belgium.
This creates what can be described as a “double hiring-out” scenario.
This scenario raises an immediate red flag: whether the French user undertaking is legally entitled to place the worker at the disposal of another undertaking in Belgium. This is, however, only the first issue opened by such a “double hiring-out” arrangement; its wider consequences can be considerably more complex.
For the original TWA, the fact that its contractual user independently created the second arrangement does not mean that the consequences can simply be ignored.
Do not forget the A1 certificate
There is also a separate social security dimension.
Recital 14 of Directive 2018/957 expressly confirms that the Directive does not prejudice the application of Regulations (EC) No 883/2004 and No 987/2009 on social security coordination.
Compliance under Directive 96/71/EC and social security coordination are therefore separate legal questions.
When an agency worker covered by an A1 certificate for an existing cross-border arrangement is subsequently sent by the user undertaking to another Member State, the TWA should not simply assume that the existing A1 automatically covers the new situation.
Situations involving a “double hiring-out” require particular attention.
Conclusion
The onward assignment of a temporary agency worker by the user undertaking to another Member State creates a specific legal situation which should not be overlooked.
Article 1(3)(c) provides the starting point: the TWA is deemed to make the posting, even though the onward assignment is decided by the user undertaking.
From there, the arrangement must be considered from several connected perspectives, including the applicable administrative requirements, terms and conditions of employment, temporary agency work requirements and social security coordination.