To be or not to be a temp
An employee was covered by the Temporary Agency Workers Act even though he was assigned to the same workplace for three years and eight months.
The Temporary Agency Workers Act applies to temporary agency workers who have a contract of employment or employment relationship with a temporary-work agency and who are assigned by the temporary-work agency to user undertakings to carry out work on a temporary basis. But when does the nature of such work change from temporary to permanent? That was the question to be decided by the Maritime and Commercial High Court in this case.
In the case, an analyst was assigned to an aircraft manufacturer by a temporary-work agency. Initially, the duration of the contract was one year but it was extended three times, so the analyst’s assignment ended up lasting three years and eight months. At that point, the aircraft manufacturer did not wish to further extend the employment.
The analyst’s trade union commenced legal proceedings in the Maritime and Commercial High Court, claiming that the analyst should be awarded status as a salaried employee and, accordingly, be awarded notices and entitlement to pay during sickness. Among other things, the trade union claimed that work of such duration could not be considered temporary when there was no justification as to why the position was a temporary one.
In this regard, the temporary-work agency submitted that the employment was regulated by a collective agreement, and for this reason there was no prohibition of successive assignments. The agency further submitted that the analyst did not hold a position where the employer had the right to direct and control the way in which work should be performed, so the Salaried Employees Act was not applicable.
The Court noted that the requirement of justification for successively renewing a temporary employment contract has been derogated from in Denmark, which means that the relevant provision of the Temporary Agency Workers Act does not apply if the temporary-work agency is covered by or is a party to a collective agreement that is concluded by the most representative social partners in Denmark and is applicable throughout the country.
By virtue of the fact that the temporary-work agency in this specific case was covered by the Salaried Employees’ Collective Agreement for Trade, Knowledge and Service (in Danish: ”Funktionæroverenskomsten for Handel, Viden og Service”), the Court found that the analyst had to seek protection in the collective agreement which, undisputedly, had not been breached in the case.
Against this background, the Court decided that the employment was covered by the Temporary Agency Workers Act and not the Salaried Employees Act, as the analyst did not hold a position where the employer had the right to direct and control the way in which work should be performed.
The judgment has been appealed to the Supreme Court.
Norrbom Vinding notes
- that the case confirms that, as a starting point, the prohibition of successive assignments does not apply when the temporary-work agency is covered by or is a party to a collective agreement that is concluded by the most representative social partners in Denmark and is applicable throughout Denmark.
The content of the above is not, and should not be a substitute for legal advice.
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