Are Worker Rights Human Rights? – By Richard P. McIntyre

Date01 December 2009
DOIhttp://doi.org/10.1111/j.1467-8543.2009.00753_8.x
AuthorJames A. Gross
Published date01 December 2009
BOOK REVIEWSbjir_753788..814
Transnational Labour Regulation. A Case Study of Temporary Agency Work by
Kerstin Ahlberg, Brian Bercusson, Niklas Bruun, Haris Kountouros, Christophe
Vigneau and Loredana Zappalà. P.I.E. Peter Lang, Brussels, 2008, 376 pp.,
ISBN 978 90 5201 417 3, £26.20.
In June 2008, the EU member states reached agreement on the terms of a draft
directive on temporary agency workers (TAW). The matter will now go to the Euro-
pean Parliament, and if approved, to the Council for consideration. The agreement
followed a revision of the UK government’s position, which appears to have been
brought about by a deal between the Trades Union Congress (TUC) and the Confed-
eration of British Industry (CBI) over the terms of a European directive. Part of the
agreement, and now central to the draft directive, is the requirement that equal
treatment with non-temporary workers in the same business will only be provided for
agency workers once they have been in the job for 12 weeks. At the same meeting of the
Employment and Social Affairs Council in Luxembourg, the member states agreed on
the resolution of long-standing issues relating to the Working Time Directive.
These are the bare facts of the matter, yet what do they mean? Anyone keen to
understand the state of play in this fascinating and complex field should turn to the
book under review. It deals with the processes leading up to the previous attempt to
create a directive on TAW and the eventual failure to achieve agreement.
The first part of the book contains national studies of domestic temporary agency
work regulation. Bercussen explains that these chapters are designed not merely to
describe these various regimes: ‘rather the objective was to highlight distinctive fea-
tures of national regulation of temporary agency work as they interacted with the
debates on EU transnational labour regulation’ (p. 12).
At the heart of the book is a powerful chapter by Kerstin Ahlberg that lifts the veil
on EU rule-making processes and clinically dissects the failure to secure regulation of
this area in efforts to date. Bercussen argues that despite the failure to create a
directive, existing EU rules and processes are relevant. Some are discussed in Lore-
dana Zappala’s chapter. She considers the directive on temporary workers’ health and
safety of 1991 and discusses decisions of the European Court of Justice that deal with
‘general issues connected with the supply of labour in the context of freedom to
provide services’ (p. 163). In another chapter, the same author deals with ‘soft’
regulatory approaches to temporary agency work. Brian Bercussen and Niklas Bruun
place the issue in the context of a scathing critique of the (then proposed) Services
Directive, noting the tensions between it and the Posted Workers Directive. The book
concludes with an analysis by Bercusson of the ‘lessons for transnational labour
regulation’ from the story of the failed TAW directive.
The chapters dealing with national TAW regulation are fascinating studies in their
own right. Perhaps the relationship between the transnational and national could
British Journal of Industrial Relations doi: 10.1111/j.1467-8543.2009.00753.x
47:4 December 2009 0007–1080 pp. 788–814
© Blackwell Publishing Ltd/London School of Economics 2009. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
have been further developed. Haris Kountouros’ excellent discussion of the UK
shows us how the UK tradition of regulating the agency as an industry, rather than
through the protection of workers and labour law, left workers unprotected. This
reflects the strong free-market ideology of the Labour government, dressed in the
language of flexibility. However, he does not quite explain why the government
which fought so hard to stymie the creation of rights for TAW at the EU level
would act to increase legal regulation in this field through the Gangmasters Licens-
ing Act 2004.
Perhaps the book would have benefited from a shift away from its organizing
premise — the illumination of ‘the process and substance of transnational labour
regulation through a detailed case study of the regulation of TAW in the EU’ (p. 11)
— at least to the extent of setting out the fundamental issues upon which the question
of any regulation must be based. The book assumes knowledge of the labour market
significance of the temporary work agency, and the more general underlying issue of
temporary work itself. Temporary employment may provide relatively secure, highly
paid and even continuous work for some, while for others, it will necessarily be
associated with precarity and lack of security. Perhaps Ahlberg’s statement that ‘there
remains a close connection between temporary employment, poor job quality, social
exclusion and poverty’ (p. 181) needed to be elaborated at the outset.
It might also have been useful to consider critically the key element of the failed EU
directive, the concept that TAW be subject to ‘equal treatment’. Sandra Fredman and
others have written extensively on the regulatory limitations of such an approach.
Equal treatment is no guarantee of decent work (e.g. where the comparator is also
underpaid), even if it does provide an important vehicle for protection.
The greatest strengths of the book lie in the chapters by Ahlberg and by Bercussen.
Ahlberg’s brilliant discussion of the processes of social dialogue and law-making by
the EU institutions provides many insights into these generally hidden worlds. We
learn, for example, that the UK Government’s negotiating position was that it refused
to countenance a directive which did not exclude from the equal treatment principle
any agency worker in the first six months of employment at a firm. Of course, this
provision effectively undermined the efficacy of the proposed directive. The govern-
ment’s position now appears to be 12 weeks, matched by an equally significant shift
in the TUC’s position that equal treatment be accorded from day 1. Rumours of
horse-trading between states in relation to disparate directives are also considered by
Ahlberg in a suitably measured fashion. One wonders what deals, if any, might have
influenced the dual agreement on TAW and the Working Time Directive in 2008?
Anyone interested in how the EU works should read this chapter carefully.
Bercussen has a long-standing interest in the processes of EU governance and
law-making. His concluding chapter is not only rich in academic detail, but also
informed by a passionate view that transnational regulation, informed by ‘the rel-
evant principles of the acquis communautaire social’, is required. This book is highly
recommended to general readers, industrial relations experts and labour lawyers. It
will be impossible to grasp the significance of the 2008 developments without the kind
of insights into the previous years of turbulent debate provided in this book. Just what
kind of compromise between flexibility and security will be reached in the field of
temporary agency work has yet to be seen.
Jill Murray
School of Law
La Trobe University, Australia
Book Reviews 789
© Blackwell Publishing Ltd/London School of Economics 2009.

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