Since 1997 the collective agreements for different trades in Finland
have provided rules which restrict employers’ rights to use agency
workers. This is allowed only in times of peaks of work or for limited
tasks which cannot be carried out by a company’s own staff. It is also
not allowed to use agency workers for longer periods of time to do the
undertaking’s usual work.
When the EU Directive on Temporary Agency Work was to be implemented
in Finland in 2011, employers thought these rules should be abolished.
The Directive says it is allowed to restrict or ban the use of
temporary agency work only if it is justified by the general interest —
and that was not the case here, the employers argued. The trade unions,
on the other hand, felt the restrictions were consistent with the
Directive, and as a result they are still part of the collective
agreement.
Some employers have followed their conviction and simply refrained
from complying with the collective agreement. As a result, one of them,
Shell Aviation Finland OY, was taken to court by the AKT trade union
for breach of the collective agreement, and the issue ended up in the
Court of Justice of the European Union: are these limitations
permissible or not?
The Finnish Labour Court, which brought the question, seemed to
suggest the limitations were in breach of the free movement of
services. The Labour Court also asked whether Finland really had
implemented the Directive on Temporary Agency Work in a correct manner.
This was important from a Swedish point of view too, because Sweden has
implemented it in a similar manner as Finland.
Now both countries can breath a sigh of relief. The EU Court of
Justice did not raise any criticism of how the Directive had been
implemented.
But what did the Court say about the most exciting issue — whether
the collective agreement’s restrictions are permissible or not? The EU
Court of Justice did not take a stand on that issue! And perhaps
that is the most important thing about the judgement: the EU Court of
Justice simply did not get involved and thought it was none of the
Finnish Labour Court’s business either. The practical consequence is
that the collective agreement rule stands.
So the question regarding what restrictions and prohibitions against
temporary agency work are justified by the general interest, according
to the Directive, remains unanswered. But the EU Court of Justice’s
advocate-general, who actually answered that question in his opinion,
considered the Finnish rules to be compatible with EU law.
