In February 2016, the Finnish Labor Court issued a judgment (TT 2016:11) in which it imposed a compensatory fine on Shell Aviation Finland Oy (“SAF”) (to be paid to the Finnish Transport Workers’ Union AKT ("AKT")) for using temporary agency work in breach of the applicable collective bargaining agreement. 

SAF is an undertaking which supplies fuel to several airports in Finland. SAF had leased employees from a temporary work agency between 2008 and 2012 on a continuous basis. SAF is bound by the collective bargaining agreement for the tanker-truck and oil product sector in Finland. The collective bargaining agreement restricts the use of temporary agency workers to situations where the work cannot be performed by the employer's own staff. AKT brought an action before the Labor Court, claiming that SAF had breached the collective bargaining agreement as it had used temporary agency workers continuously to a wider extent than permitted by the collective bargaining agreement. AKT further claimed that SAF's employers' association had breached its supervisory obligation as it had not instructed SAF to correct its practice.

SAF and the employers' association rejected AKT's claims, arguing that the restrictions in the collective bargaining agreement were not in compliance with Article 4 of the Temporary Agency Work Directive (2008/104/EC). Article 4 provides that prohibitions or restrictions on the use of temporary agency work are justified only on certain grounds, such as a general interest in protecting temporary agency workers. In addition, Article 4 imposes an obligation on Member States to review whether the restrictions and prohibitions on the use of temporary agency workers are justified or not. Article 4 also provides that if the collective bargain agreements contain such restriction, the parties to the collective bargaining agreement can also perform the review. SAF and the employers' association further argued that, in any event, the provisions of the collective bargaining agreement need to be assessed in accordance with the wording and meaning of the Directive.

The Labor Court sought a preliminary ruling from The Court of Justice of the European Union (“CJEU”), which found that Article 4 of the Directive is addressed only to the competent authorities of Member States. The authorities must review all potential prohibitions or restrictions on the use of temporary agency work to ensure that they are justified. Such review obligation cannot, however, be performed by the national courts. The CJEU further held that the Directive does not obligate national courts to refuse to apply national law containing prohibitions or restrictions, even if such restrictions were not justified. 

Having confirmed that national restrictions may be applied, the Labor Court held that SAF had breached the collective bargaining agreement by continuously using temporary agency workers to perform the same duties as its own employees. The Labor Court imposed a compensatory fine of EUR 3,000 on SAF and EUR 4,000 on the employers' association (both fines to be paid to AKT). 

The Labor Court's ruling seems to confirm that employers in Finland are obligated to observe the prohibitions and restrictions on temporary agency work stipulated in the applicable collective bargaining agreements regardless of whether they could be deemed justified or not under the Directive.

For further information on the preliminary ruling of the CJEU, see our previous article on the subject.

Comments from a Swedish perspective:

From a Swedish perspective, the Swedish Co-determination Act (Sw. medbestämmandelagen), stipulates that an employer is required to consult with the applicable trade unions before using temporary agency workers, subject to certain exceptions. The trade unions may also have a veto right to prevent the use of temporary agency workers. Moreover, a number of Swedish collective bargaining agreements contain provisions restricting the use of temporary agency workers. The Finnish case together with the CJEU ruling suggests that a Swedish court can apply the provisions of Swedish legislation and collective bargaining agreements without being obliged to rule on whether these provisions are justified based on the general grounds stated in Article 4 of the Temporary Agency Work Directive.