Abstract (eng)
Temporary agency work is characterized by a special triangular relationship and differs in this respect from a traditional employment relationship. A basic problem for the legal treatment of such an atypical type of work is that it is recognized and shaped by the legal system, however, without most of the legal standards directly tailored for this type of working relationship.
In Austria, systems supposed to balance social interests, especially such balancing collective mechanisms, are structurally weakened or proven to be completely ineffective addressing atypical forms of employment such as temporary agency work. This applies particularly to industrial constitutional law, which is stipulated in the second part of Austrian Arbeitsverfassungsgesetz (ArbVG). This act, however, is also only aligned for the classic, two personal employment relationship, in which the employee is just related to one operation and one employer. Hence, the industrial legislation is not as effective in these atypical relationships as usual. Therefore, judicature and legal writing have engaged with selected problems related to this special situation within the classical industrial constitutional law. Nevertheless, the discussion lacks a monograph on this topic, a gap that shall be closed by the present work.
In this sense this thesis addresses the still controversial issue of the affiliation of temporary agency workers to the operation of the temporary-work agency and/or the user undertaking. That leads to follow up questions about participation and voting rights for temporary agency workers in the named operations, the consideration of temporary agency workers for the calculation of thresholds within the ArbVG, as well as questions relating to the electoral law relating to the works council in both operations. This paper also deals with the question of how the legal position of the licensed employee is defined, who was elected to a member of the works council in the operation of the undertaking. There is also the question of whether the temporary agency workers are obliged to pay the works council levy at both operations, and also if the provisions regarding the works constitution displacement protection (§ 101 ArbVG) are applicable in the context of temporary agency work.
As in recent years, European legislation has taken up action to improve the standards and conditions of employment for temporary agency workers, a lot of interesting but also controversial issues arouse in this context. The new rules, introduced in the course of the implementation of the Directive on temporary agency work (2008/104/EC) into national law also affect the works constitutional position of temporary agency workers. Therefore, in the fifth part of this paper, problems arousing from these new rules will be considered.
On the one hand, questions arising from the principle of equal treatment with regard to remuneration, working hours and holidays will be addressed. On the other hand, the right of access of temporary agency workers to the amenities and collective facilities in the user undertaking will be examined. Both areas have a far-reaching significance for the position of temporary agency workers within the works constitutional law.