Contract Work is Subject to CAO for Temporary Employees

Year of publication

2014


Edition number

247


Reference

Court of Appeal, 21st October, 2014, case number HD 200.139.216/01, AR Updates 2014-1017


Decision

In spite of the fact that the agreement between a mushroom grower and a temporary employment agency was an agreement for contract work, the agency had to comply with the CAO (Collective Agreement) for Temporary Employees.

A mushroom grower had entered into an agreement with an organization, involved in temporary employment and staff secondment in the agricultural sector, to accept contract work for harvesting the mushrooms. In this agreement it was stipulated that the agency would supervise the employees and would monitor their work. The mushroom grower was only supposed to give instructions for as far as they are needed for the safety and fire safety at the workplace, hygiene requirements and other legal provisions. The mushroom grower was the most important and, according to the Court, may be even the only client of the agency. The temporary employment agency had entered into a temporary employment contract with the Polish workers who took care of the mushroom harvest. Retrospectively, the agency acknowledges that this was a mistake, made by the late accountant of the agency. When inspecting compliance with the Collective Agreement for Temporary Employees, conducted by the SNCU (Foundation Compliance with CAO for Temporary Workers) significant shortcomings were identified, as the result of which the employees would have been disadvantaged for an amount of almost € 350,000. Under the CAO, SNCU wants to recover this amount as lump sum compensation.
When the agency, that has ceased its activities tin the meantime, refuses to pay, proceedings start before the Sub-district Court. The claim of SNCU is rejected there, because the Sub-district Judge holds the opinion that the temporary employment contracts were drawn up by mistake and that SNCU has not shown any evidence that the activities of the temporary employment agency are subject to the CAO for Temporary Employees.
On appeal, however, the Court holds the opinion that a mistake is out of the question, as, for example, pension premium was paid to the Pension Fund for Temporary Workers (StiPP). Even though the mushroom grower did not speak Polish, so it must have been the agency, according to the Court, that by means of the Polish-speaking director and her Polish-speaking husband, supervised and monitored the Polish employees, they should be considered to also have represented the mushroom grower. The contract work agreement, according to the Court, only applies between the mushroom grower and the temporary employment agency, and leaves intact the temporary employment contract between the agency and the temps. Thus, the CAO for temporary employees had to be respected.


Comments

In practice, it happens more often that attempts are made to avoid the mandatory provisions of the law and the CAO by means of "contracting". Usually these attempts are doomed to failure. As was the case here.



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