Equal treatment of the employees of a user company and the workers loaned to it by a temporary employment agency (known as an “ETT” in Spain) continues to be a highly relevant issue and has undergone some changes in recent years.
Article 11 of Law 14/1994, of June 1,1994, regulating ETTs, has been significantly amended several times since it was published, amendments which have clarified the scope of the essential working and employment conditions that “loaned” workers are entitled to.
However, this article still raises doubts as to how it should be interpreted in certain cases, which has led to frequent disputes between companies and workers in the labor courts.
From the standpoint of wages, the courts have adopted a broad interpretation of the article. In this context, the Supreme Court considers that the aim of the article is to ensure that the compensation paid to a worker who providers his or her services through an ETT is the same as that paid to a worker of the user company, so that resorting to the manpower of an ETT is actually a means for meeting temporary needs and not, as had been the case before the publication of Law 14/1994, a means of reducing wage costs.
As for equality, article 11 has incorporated into its wording, European legislation on equal treatment for temporary agency workers and user company workers. Its aim is to keep user companies from employing temporary agency workers as a way to avoid complying with legislation on equal treatment and non-discrimination between men and women.
Along these lines, we can cite the National Appellate Court’s judgment of December 11, 2017, which establishes that temporary agency workers made available to a user company are entitled to the full application of the measures set out in the user company’s equality plan.
Specifically, the National Appellate Court considers that the article guarantees that both groups of workers have the same rights, which extends to equal treatment for men and women and to any provisions adopted to combat discrimination, regardless of the nature of the source of such rights.
As can be seen, the rights of temporary agency workers are constantly evolving, although it appears that the trend is towards placing those rights on the same footing as those of user company employees.
Garrigues Labor and Employment Law Department