Another EU win for Finnish trade unions

Since 1997 the collective agreements for different trades in Finland have provided rules which restrict employers’ rights to use agency workers. This is allowed only in times of peaks of work or for limited tasks which cannot be carried out by a company’s own staff. It is also not allowed to use agency workers for longer periods of time to do the undertaking’s usual work. 

When the EU Directive on Temporary Agency Work was to be implemented in Finland in 2011, employers thought these rules should be abolished. The Directive says it is allowed to restrict or ban the use of temporary agency work only if it is justified by the general interest — and that was not the case here, the employers argued. The trade unions, on the other hand, felt the restrictions were consistent with the Directive, and as a result they are still part of the collective agreement. 

Some employers have followed their conviction and simply refrained from complying with the collective agreement. As a result, one of them, Shell Aviation Finland OY, was taken to court by the AKT trade union for breach of the collective agreement, and the issue ended up in the Court of Justice of the European Union: are these limitations permissible or not?

The Finnish Labour Court, which brought the question, seemed to suggest the limitations were in breach of the free movement of services. The Labour Court also asked whether Finland really had implemented the Directive on Temporary Agency Work in a correct manner. This was important from a Swedish point of view too, because Sweden has implemented it in a similar manner as Finland.

Now both countries can breath a sigh of relief. The EU Court of Justice did not raise any criticism of how the Directive had been implemented.

But what did the Court say about the most exciting issue — whether the collective agreement’s restrictions are permissible or not? The EU Court of Justice did not take a stand on that issue!  And perhaps that is the most important thing about the judgement: the EU Court of Justice simply did not get involved and thought it was none of the Finnish Labour Court’s business either. The practical consequence is that the collective agreement rule stands. 

So the question regarding what restrictions and prohibitions against temporary agency work are justified by the general interest, according to the Directive, remains unanswered. But the EU Court of Justice’s advocate-general, who actually answered that question in his opinion, considered the Finnish rules to be compatible with EU law.