european legs & regs advisor july 2013

7/21/2019 European Legs & Regs Advisor July 2013

1/9


2/9

For More Information Contact:

Belgium

Claeys & Engels

Sophie Maes

[email protected]

Tel: +32 (0)2 761 46 08

Czech Republic

Randl Partners

Nataa [email protected]

Tel: +420 222 755 31

France

Capstan

Thomas Lestavel

[email protected]

Tel: + 33 (0)1 44 95 48 20

Germany

Kliemt & Vollstadt

Markus Janko

[email protected]

Tel.: +49 (0) 211 88288-0

ItalyToffoletto e Soci

Valeria Morosini

[email protected]

Tel +39-02-72144.1

NetherlandsBronsgeest Deur Advocaten

Erik Deur

e.deu

[email protected]

Tel: +31 (0)20 - 305 33 37

SpainSagardoy Abogados

Montserrat Alonso Paul

[email protected]

Tel: +34 914 540 052

UkraineVasil Kisil & Partners

Oksana Voynarovska

[email protected]

Tel: + 38 044 581 7777

United Kingdom

Lewis Silkin LLP

Nathalie Townley

[email protected]: +44 20 7074 8000

London, United Kingdom

Staffing Industry Analysts

Matt Norton, Research Analyst

[email protected]+44 (0)207 194 7751

This month ly update is provided solely for informatio nal purposes, and should not be considered legal advice. It is always recomm ended to seek qual i fied legal couns el before taking action.
http://www.claeysengels.be/mailto:[email protected]://www.capstan.fr/mailto:[email protected]://www.kliemt.de/mailto:[email protected]://www.toffoletto.it/mailto:[email protected]://www.bd-advocaten.nl/mailto:[email protected]:[email protected]://www.sagardoy.com/mailto:[email protected]:[email protected]://www.lewissilkin.com/mailto:[email protected]:[email protected]:[email protected]:[email protected]://www.lewissilkin.com/mailto:[email protected]:[email protected]://www.sagardoy.com/mailto:[email protected]://www.bd-advocaten.nl/mailto:[email protected]://www.toffoletto.it/mailto:[email protected]://www.kliemt.de/mailto:[email protected]://www.capstan.fr/mailto:[email protected]://www.claeysengels.be/


3/9

This Months Items:

Belgium

Claeys & Engels

France

Capstan

Germany

Kliemt & Vollstadt

Italy

Toffoletto e Soci

Staffing Industry Analysts

London, UK

Netherlands

Bronsgeest Deur Advocaten

Spain

Sagardoy Abogados

Ukraine

Vasil Kisil & Partners

United Kingdom

Lewis Silkin LLP

For More

Information

Contact:

July 2013


1. Belgium New law introduces try before hire

2. Czech RepublicAmendments to fixed term employment relationships

3. France - Indefinite duration contracts introduced for temporary agency workers

4. France - Temporary recruitment initiative extended

5. UK - Plans to further regulate the recruitment sector

6. UK- Gangmasters licensing authority announces licensing changes


4/9

1. Belgium New law introduces try before hire


Jurisdiction:

Belgium

Description: From 1st September staffing firms will be able to provide candidates to employers to fill permanent jobs. The

client will be able to try the candidate on a temporary contract before hiring.

Before the new law came into effect in July, temporary work agencies could only provide workers to end-user businesses on

temporary assignments. Furthermore, the use of temporary agency workers was highly regulated as it had to fall under oneof the following prescribed reasons: to replace an absent permanent employee, to temporarily replace a permanent

employee who was dismissed, or to face a temporary rise in demand. Under the new law, staffing firms will be able to

improve their strategic partnership with employers and help find suitable candidates for hard-to-fill positions.

Buyers will be allowed to use temporary workers on a try-and-hire basis. For every vacancy an employer can try up to three

candidates. The employment contract must have a minimum duration of one week and can last up to six months; the total

duration of the try-and-hire process for the same position cannot exceed nine months.

If the temporary worker is a suitable candidate, then they will have to be hired on the basis of a contract of indefinite

duration. The duration of the temporary contract will count towards seniority, and should be deducted from the trial period if

applicable to permanent employees at the employers premises. Buyers of contingent labour should be aware that in case of

abuse, they will be liable according to the new law.

Item Type:

Enacted legislation

For Contingent Workforce Buyers For Staffing Firms

Implications/ Suggested Actions:

Buyers now have the opportunity to source permanent employeesfrom staffing firms.

The new legislation allows for a trial period before a buyer hire s a

temporary worker.

For every vacancy an employer can try up to three candidates and

the employment contract can last between one week and six

months.

Buyers of contingent labour should be aware that in case of abuse,

they will be liable according to the new law.

The new law gives buyers greater flexibility with regard to sourcing

and hiring employees.


Staffing firms are now able to provide candidates to employers to fillpermanent jobs.

The new legislation allows for a trial period before a buyer hires a

temporary worker.


5/9

2. Czech Republic Amendments to fixed-term contracts


Jurisdiction:

Czech Republic

Description: The Czech Parliament has passed a new amendment to the Labour Code, which was published in the

Collection of Acts under No. 155/2013. This amendment became effective on 1 August 2013 and implements changes to

fixed-term employment relationships.

Currently, according to Section 39 of the Labour Code, if the parties wish to enter into an employment law relationship for adefinite term, the following rules shall apply: the length of the employment law relationship may not exceed 3 years; and the

employment law relationship for a definite term may be repeated / extended only twice. Therefore, in total, the duration of a

fixed-term employment law relationship cannot exceed 9 years.

The new Act states that the employer does not have to adhere to these rules under the following conditions:

if there are serious operational reasons on the part of the employer or reasons relating to the special nature of the work; if, due to such reasons (operational or relating to the nature of the work), it is not justified to require the employer to hire

the employee in an indefinite term employment relationship;

If the terms of a fixed-term employment relationship offered by the employer are adequate (proportionate) to the

employers reasons (operational or relating to the nature of the work);

if an agreement with the trade union (or an internal regulation issued by the employer at which no trade union is present)

regulates the following:

- Closer specification of the employers reasons (operational or relating to the nature of the work);

- Rules for different procedures of negotiation and repetition / extension of the fixed-term employment relationship;

- Scope of employees to which this different procedure applies;- Terms for which the agreement is concluded (or internal regulation is issued).

Item Type:

Enacted legislation



Buyers are excluded from law governing fixed term contracts if

certain conditions are met.


Staffing firms should familiarise themselves with the changes to the

Labour Code.


6/9

3. France Indefinite duration contracts introduced for temporary agency workers


Jurisdiction:

France

Description: After months of negotiations, trade unions and the French staffing association PRISME beat an 11 th July

deadline to sign a draft proposal to introduce permanent contracts in the staffing sector.

There are two main types of employment contracts in France: the CDI (Contract Duration Indetermine) which is an open-

ended contract and the CDD (Contract Duration Determine) which is a fixed-term contract. Up to now, staffing firms have

been restricted from supplying workers on CDI contracts. Following a landmark labour agreement in January, unions and

employers had been given a deadline running to July this year to negotiate the introduction of permanent contracts in the

staffing sector (termed CDI Intrimaire).

The proposal was welcomed by staffing firms as failure to agree on a text before the July deadline would have kick-started

an increase in unemployment contributions with an estimated cost of 200 million for the sector. Instead, staffing firms are

expected to hire approximately 20,000 highly qualified agency workers on indefinite duration contracts over the next threeyears.

Between assignments, the workers with CDI contracts will still be paid by the staffing firm and receive extra training. In

accordance with the trade unions request, the staffing association PRISME has agreed to provide extra work to those notbenefiting from the CDI intrimaire. The sector will offer an extra 40 hours of assignment to every temporary agency

worker already spending at least 800 hours per year on assignment. The measure is believed to benefit approximately

80,000 temporary agency workers, with an estimated cost between60 and70 million for the staffing industry.

The agreement will have to be examined by the government, in order to establish whether its implementation would require

changes to the Labour Code.

Item Type:

Draft propsal



Buyers will now be able to source workers on indefinite duration

contracts.

Buyers should be aware that the draft proposal may lead to further

changes to the Labour Code.


The agreement reached on the CDI will allow agencies to escape

rising unemployment contributions on some short-term contracts,

increasing that would cost them 200 million euros minimum.

The agencies agree on an additional 40 hours per year the 80,000

employees who work 800 hours over the year (4 months). Cost:60

to70 million.


7/9

4. France Temporary Recruitment Initiative Extended


Jurisdiction:

France

Description: The French government has confirmed that its fixed-term recruitment initiative has been extended for a year.

The fixed-term contracts, known as Contrat Dure Determine de Mission (project-based CDD), were implemented on the

25 June 2008 and were set to run on a trial basis for five years. The trial had been due to end on the 27 June 2013; however

it has been extended for a further year and is now due to end 27 June 2014.

The guidelines for recruiting employees on CDD contracts are firmly established and highly regulated. The contracts can

only be implemented in companies with a collective agreement (accord d'enterprise) with unions regarding the use of such

contracts and are applicable to engineers and managers only. The contract must have a duration of 18 or 36 months and

cannot be renewed. The contracts can; however, be broken after 18 months or 24 months should the parties agree that the

project cannot be completed, or for another legitimate and serious reason.

CDD contracts can only be used under three conditions; to replace an absent worker, to deal with an unexpected increase inactivity, or to work in a position that does not necessitate a permanent employee, i.e. seasonal workers. All project-based

CDD contracts should also have a specific project for completion for the duration of the contract. CDD contracts cannot be

used in lieu of permanent contracts, to replace striking workers, to carry out hazardous tasks, or to fill a post made vacant byredundancy in the last six months.

A Parliamentary report will be commissioned following the end of the initiative in order to determine its sustainability.

Item Type:

Legislation



The fixed term recruitment initiative has been extended by one

year and will now expire on 27 June 2014.

The guidelines for recruiting employees will stay the same as beforethe extension to the scheme was granted.

Buyers should be aware that the scheme will be reviewed after this

date and should await the findings of the parliamentary report that

will follow.


The fixed term recruitment initiative has been extended by one year

and will now expire on 27 June 2014.

The guidelines for recruiting employees will stay the same as beforethe extension to the scheme was granted.

Staffing firms should be aware that the scheme will be reviewed after

this date and should await the findings of the parliamentary report

that will follow.


8/9

5. UK Plans to further regulate the recruitment sector


Jurisdiction:

UK

Description: The UK government has published the official response to its recent consultation on reforming the regulatory

framework for the recruitment sector. While acknowledging the important contribution that the flexible labour market makes

to the economy, the government recognises that individuals using recruitment services are often vulnerable and require

appropriate protection. Therefore the government intends to introduce a new regulatory scheme to replace the existing

legislation, including the Employment Agencies Act 1973 and the Conduct of Employment Agencies and Employment

Businesses Regulations 2003.

The revised framework will focus on areas where individuals are most at risk of exploitation, while reducing the

administrative burden on businesses. The government also intends to change the existing enforcement regime, although it

has not yet confirmed whether this will include providing individuals with the right to pursue claims before the Employment

Tribunal. The government also noted that clear and specific definitions of employment agency and employment business

are required. The existing definitions have not kept pace with technology developments, such as internet-based services, or

present business practices whereby a vast array of entities provide temporary labour, including businesses providing staff on

secondment. As a result, the current definitions create confusion in the market as to which types of business are caught by

the legislation.

The publication also noted that the increasing number of intermediaries, including payroll providers and master/neutral

vendors, has led to more complex supply chains where it may be unclear who is responsible for certain obligations and who

is governed by the existing legislation. The government says that the new framework should address the issue of who is

responsible for paying temporary workers where a complex supply chain is involved. The government also believes that the

existing rules on temporary-to-permanent employment and transfer fees are unworkable and would like to introduce a

simpler system whereby fees could not be charged except where the hirer agreed.

Item Type:

Consultation


Implications/ Suggested Actions

Buyers should be aware of potential changes to the regulation of the

recruitment sector.

Buyers should be aware of possible changes to temporary to

permanent transfer fees.

Implications/ Suggested Actions

Staffing firms should be aware of potential changes to the regulation

of the recruitment sector.

The government is looking to provide clear and more specific

definitions to the terms employment agency and employment

business.


9/9

6. UK Gangmasters licensing authority announces licensing changes


Jurisdiction:

UK

Description: From 1st October 2013 the Gangmasters Licensing Authority (GLA) will no longer automatically send an

inspector to check that agency workers are being paid properly and working under safe conditions before it grants a

business or employment agency a licence to operate. The GLA, the agency that regulates the supply of workers to the

agricultural and horticultural industries, will use their discretion to decide whether a physical site inspection is required on a

case by case basis.

Certain criteria will continue to require an automatic inspection, for example where an applicant has previously had a license

refused or revoked, or where checks with other government departments find potential complications. However, the GLA

has advised that they expect applications falling into this always inspect category will be in the minority.

It is anticipated that there will be a small increase in automatic refusals without inspection. Where the GLA finds clear

evidence of recent non-compliance or criminality through initial intelligence checks, it is probable that they will refuse theapplication outright rather than conduct an unnecessary site inspection.

For the majority of applicants, however, it will be up to the GLA to decide whether a license can be granted on the strength

of the application and checks with other government departments alone, or whether inspectors will still need to pay a visit.

The changes are intended to accelerate the application process: a growing business making the transition from sole trader

to limited company could well be granted a license without having to undergo another application inspection as a new legal

entity, provided the GLA are satisfied that the change is being made for legitimate reasons. Likewise, an agency that let their

license lapse as a result may be able to get their license back without having to be re-inspected, provided they reapply

within six months of the license lapsing and have a clear history of compliance.

Item Type:

-



If you are using a gangmaster check that they are licenced.


From 1st October, the GLA will no longer automatically send an

inspector to check that agency workers are being paid properly and

working under safe conditions before it grants a business or

employment agency a licence to operate.

The change is intended to reduce the administrative burden on

staffing agencies and to accelerate the application process.

european legs & regs advisor july 2013

Documents