Enforceability of rights in the temporary agency sector: The case of Belgium

Abstract

This study explores why temporary agency workers are disadvantaged compared to regular workers regarding their employment-related and social rights in Belgium despite extensive equal rights regulation. Fifteen in-depth interviews among temporary agency workers were analysed thematically. The enforceability of rights poses the main problem in temporary agency workers’ disadvantaged position. The following manifestations of a lack of enforceability are discussed: (1) lack of enforceability due to ignorance and indifference about rights; (2) vulnerability hindering enforceability; and (3) lack of enforceability due to misuse by employers and cutting corners. It is argued that this problem of enforceability is mainly caused by a lack of a clear allocation of responsibilities as to who should ensure the rights of temporary agency workers.

Keywords

Employee rights policy precarious employment qualitative research temporary agency work

Introduction

In the current political-economic context, labour market flexibility is increasingly presented as a goal worth pursuing. This has provoked the expansion of non-standard, insecure and precarious forms of employment in Western Europe (Benach et al., 2014; Kalleberg and Marsden, 2015; Standing, 2011; Vallas, 2015). One growing form of non-standard employment is temporary agency work (Bosmans, 2016). Temporary agency work is often regarded as a form of ‘precarious employment’ because it tends to be related to high job insecurity and insecurity about the time between assignments (Forde, 2001; Hall, 2006; Silla et al., 2005), low wages and few fringe benefits (Elcioglu, 2010; Kojima, 2015; Smith, 1998), fewer/lacking in social rights (Bosmans, 2016; Gundert and Hohendanner, 2014), unpredictable or irregular schedules (Aletraris, 2010; Håkansson et al., 2013), poor on-the-job training and off-the-job training opportunities (Gottfried, 1991; Håkansson et al., 2013; Knox, 2010) and higher chances of unfavourable social relations and social isolation at work (Gundert and Hohendanner, 2014; Rogers, 1995; Winkler and Mahmood, 2015). Moreover, temporary agency workers are employed through a triadic employment relationship, which implies that in practice they are confronted with two employers (the temporary employment agency, which is their official employer, and the user company, which is their de facto employer). This also causes a higher vulnerability to issues such as withholding mandatory rights, excessive or conflicting demands and problematic health and safety protection (Aletraris, 2010; Underhill and Quinlan, 2011). Despite the disadvantages related to temporary agency work, studies indicate a growing trend in the number of temporary agency workers in most EU Member States (ILO, 2016). This rise can mainly be attributed to several reasons. The first reason is the relative ease it offers employers to hire and lay off staff depending on the demand (i.e. contractual numerical flexibility) (Rubery and Grimshaw, 2003). Second, there is a tendency where client companies contract with one or more agencies to supply part of their workforce as a medium to long-term strategic alternative to direct employment (Purcell et al., 2004). The third reason is the trend of outsourcing activities related to human resources (ILO, 2016).

To counter many of the negative characteristics of temporary agency work and flexible work in general, while preserving its ambitions of flexibility, the EU promotes ‘flexicurity’, by imposing measures that should guarantee the equal treatment of flexible and regular workers (their counterparts with long-term contracts, referred to henceforth as regular workers) (European Commission, 2019). Belgium can be considered top of the class regarding legislation on equal treatment for temporary agency workers since it goes far beyond the minimum requirements of the EU regulations (see below).

Despite the flexicurity discourse and the regulations on equal treatment, temporary agency workers are still disadvantaged in Belgium (e.g. fewer fringe benefits compared to regular workers, unpaid public holidays, etc.) (Bosmans, 2016). Therefore, this study’s aim is to delve into the investigation of the reasons why disadvantage persists despite seeming good regulation and equal rights in the Belgian case. Similar studies have been done in the UK and Greece (Maroukis, 2015). However, a study in a context in which temporary agency work is highly regulated and ‘equal treatment’ should be standard – as is the case in Belgium – could further complete the picture regarding the actual execution/executability of the rights that temporary agency workers receive. Moreover, in contrast to the UK and Greece, in Belgium the role of social dialogue and collective bargaining in temporary agency work is strong (Voss et al., 2013). This study gains insights from the experiences of temporary agency workers regarding the enforcement of their employment-related and social rights. The results reported here shed light on the ways temporary agency workers are hindered from enforcing their mandatory rights. Moreover, the Belgian and other EU governments can learn from this study’s conclusions to adapt and control regulation.

This article will first discuss the extent of temporary agency work in Belgium and the way it is legally arranged in the context of the EU regulatory umbrella. Second, the methodology used for this study is explained, followed by the results and the discussion.

Temporary agency work in Belgium under the EU regulatory umbrella

‘Flexicurity’ is put forward by the European Commission as a goal to be pursued on the labour market. The notion of flexicurity has been widely used to reconcile employers’ need for a flexible workforce with workers’ need for robust social protection. It presupposes a ‘double bind’: high levels of flexibility are required to compete successfully in a globalised market and thus to afford high levels of economic prosperity. Flexicurity should be implemented through flexible and reliable contractual arrangements, comprehensive lifelong learning strategies, effective active labour market policies and modern social security systems (European Commission, 2019; Nardo and Rossetti, 2013). The European Commission promoted flexicurity to a flagship policy in the mid-2000s. It is advocated as being a crucial element in the European Employment Strategy (included in the Lisbon Agenda and re-confirmed by the Europe 2020 strategy) (Nardo and Rossetti, 2013). Additionally, the recent Directive of the European Parliament and the Council of 20 June 2019 on transparent and predictable working conditions in the EU embraces flexicurity. The purpose of this Directive is to improve working conditions by promoting more transparent and predictable employment while ensuring labour market adaptability. This Directive lays down minimum rights that apply to every worker in the EU who has an employment contract or employment relationship as defined by the law, collective agreements or practice in force in each Member State (EU Directive COM/2017/0797 final – 2017/0355 (COD)).

The Directive on Temporary Agency Work at EU level was adopted specifically for temporary agency work in 2008, with the aims of protecting temporary agency workers, improving the quality of temporary agency work by ensuring equal treatment, and fostering job creation (EU Directive 2008/104/EC). The EU legal framework on temporary agency work is predominantly shaped by this Directive (ILO, 2016). Article 5 of Directive 2008/104, i.e. the principle of equal treatment, implies that temporary agency workers’ basic working and employment conditions (i.e. pay rates, duration of working time, overtime, breaks, rest periods, night work, holidays and public holidays) should be equivalent to those that would apply if they had been employed directly by the company where the work is performed. Moreover, they must be informed of and allowed to apply for vacant positions equivalent to other workers in the organisation. They must also have access to the same amenities and facilities as directly employed workers do (EU Directive 2008/104/EC).

Following these EU Directives, many countries adapted their legislation. Generally, all Member States have sought to comply with what is arguably the key protective provision contained in Directive 2008/104: the equal treatment provision in respect of basic working conditions (ILO, 2016). Belgium even goes far beyond the minimum requirements of the Directive 2008/104 and the recent Directive on transparent and predictable working conditions in the EU.

In Belgium, a daily average of 3% of the total workforce was employed by temporary work agencies in 2018 (Federgon, 2019). On an annual basis, 684,031 persons were employed as a temporary agency worker for at least one day. This only comprises a small proportion of the labour force, but the share of temporary agency work is increasing, and among the highest in Europe (Arrowsmith, 2006; Federgon, 2019). Some groups are overrepresented in temporary agency work in Belgium: 60.9% are male, 57.8% are blue-collar workers and 24.3% do not have Belgian nationality (Federgon, 2019). Furthermore, temporary agency employment is characterised by an overrepresentation of young and less-educated workers (Federgon, 2018).

In Belgium, temporary agency work is regulated by the laws of 1976 (provisional regulation) and 1987, and completed with complementary layers of regulation such as a range of collective labour agreements (ILO, 2016; Voss et al., 2013). Only licensed agencies are permitted to operate on the labour market (ILO, 2016; Schömann and Guedes, 2012). In Belgium, temporary agency work is defined as temporary work performed by an employee, on behalf of a temporary work agency, for a third party, the user company (Belgian law No. 1987012597). The duration of an assignment is simply the duration of the contract (usually daily or weekly), or the sum of successive contracts. The temporary nature of assignments is ensured by the list of permissible grounds for temporary agency work: (1) replacing a worker, (2) a temporary increase of work, (3) exceptional work, (4) as a selection procedure before the direct recruitment of new employees, (5) as part of a training/work placement for vulnerable groups, partly subsidised by the government, and (6) to deliver artistic performances and/or producing artistic work for the benefit of an occasional employer or user. Each of these grounds entails time-limits and/or procedures that are required to ensure the temporary nature of the assignment (Belgian law No. 1987012597; ILO, 2016; Schömann and Guedes, 2012). In principle, the unlimited use of successive fixed-term contracts is allowed within the limits of these activities, with one exception: successive daily contracts are only allowed if the user company can prove that this is the only way to organise the job (Belgian law No. 1987012597; ILO, 2016).

The principle of non-discrimination and equal treatment is central to the Law on Temporary Work (ILO, 2016). Temporary agency workers are entitled to the same wage, benefits and social protection as permanent workers performing the same job in the user company (e.g. end-of-year-bonus, holiday pay, child allowance, paid sick days, unemployment benefits, pension accrual, maternity/paternity leave, parental leave and brief leaves of absence [leave permitted due to circumstances such as a sick child]) (Belgian law No. 1987012597; Bosmans, 2016). Furthermore, the Belgian law prescribes that the working hour regulations for temporary agency workers should be equal to the regulations for their fellow workers with an open-ended contract (Belgian law No. 1987012597).

In Belgium, all employees should receive appropriate training – free of charge and during working hours – from their employer to ensure healthy and safe performance of their tasks (Belgian law No. 1996012650). Furthermore, a ‘training fund’ – which includes the means for training programmes for temporary agency workers – has been established to stimulate agency workers’ training opportunities, to enhance their skills and professional experience on the labour market (VFU, 2020).

Moreover, trade union membership in Belgium is high (Van Rie et al., 2011), and temporary agency workers can join a trade union. Trade union representatives are expected to defend the interests of all employees on their shop floor (including those of the indirectly-hired temporary agency workers). However, temporary agency workers are not eligible for candidacy in the so-called ‘social elections’ (i.e. every four years new trade union representatives have to be elected in Belgian companies) at the user company, because they are not legally employed by the user company (Belgian law No. 2007012768). From the social elections of 2020 onwards, temporary agency workers are allowed to vote if they have a certain level of seniority in the user company (Belgian law No. 2007012768).

Nevertheless, legislation should also be put into practice. The Directive on Temporary Agency Work (EU Directive 2008/104/EC) states that the EU Member States should take appropriate measures, in accordance with national law and/or practice, to prevent misuse in the application of Article 5 and, particularly, to prevent successive assignments designed to circumvent the provisions of the Directive. Additionally, Member States should provide appropriate measures in case of non-compliance with the Directive by temporary work agencies or user companies. They must particularly ensure that adequate administrative or judicial procedures are available to enforce the obligations related to the Directive. Moreover, Member States should lay down rules on penalties in case of infringements and should take all necessary measures to ensure that they are applied (EU Directive 2008/104/EC).

Trade unions can play a crucial role in conflicts and violations of labour law in Belgium. They can defend the rights of employees and strive for a better quality of work on the collective level, by means of negotiations about collective agreements on several levels (sector, company, etc.) or by organising collective actions. In addition, they can be contacted for (personal) legal advice (Vlaanderen, 2021). Furthermore, workers can go to labour court in case of work conflicts or violations of the law. Legal costs should usually not be paid. Costs for lawyers should be paid by the workers if they do not have an insurance for legal assistance (which is included in trade union membership). The rule usually applies that the person who loses a procedure is also sentenced to additional costs (and part of the costs for lawyers from the opposite party) (Hoven en rechtbanken van België, 2021).

It is not entirely clear, however, why temporary agency workers are still disadvantaged, despite strong legislation. Therefore, this study aims to explore the lack of enforceability of rights through which temporary agency workers in Belgium are disadvantaged regarding their employment-related and social rights, based on interviews with temporary agency workers.

Methodology

Sample and recruitment

The population of this qualitative study includes Dutch-speaking temporary agency workers living in Belgium.¹ Other criteria, namely socio-demographic characteristics (sex, age, educational level, occupational class) and whether or not they were in temporary agency work voluntarily (whether the employees prefer their status as a temporary agency worker above another employment situation, such as a permanent contract) were considered to ensure diversity in the sample. Many temporary agency workers had different employment statuses during the last years (temporary agency work, unemployed, indefinite or fixed-term contract, etc.). Their experience with temporary agency work varied from a couple of months to many years.

The participants were selected with the help of the Christian (ACV) and Socialist (ABVV) trade unions.² Advertisements about the study were distributed on social media and their websites. Additionally, personal emails were sent to temporary agency workers who were trade union members. Potential participants were asked to complete their contact details in an online form only accessible to the researcher, or to contact the researcher by phone or email. In addition, recruitment was done through word of mouth or snowball sampling. In total, 15 temporary agency workers were recruited for an interview (end of 2019, beginning of 2020). Some were interviewed at the beginning of the COVID-19 crisis, but specific issues related to the crisis were not considered in this study. The interviewees’ characteristics are presented in Table 1.

Table 1.

Characteristics of the interviewees.

	Interviewee	Household composition	Sex	Age	Educational level	Occupational class	Voluntariness^a
1	Zana	Cohabitating couple	F	31	Tertiary	Blue-collar	V
2	Marcus	Married couple	M	29	Tertiary	Blue- and white-collar	IV
3	Sandy	Single, co-housing with a friend	F	44	Secondary	White-collar	V
4	Karel	Married couple, 3 young children	M	51	Secondary	Blue-collar	IV
5	Mathias	Cohabitating couple	M	45	Secondary	Blue- and white-collar	V
6	Chantal	Married couple, 1 teenage child	F	58	Secondary	White-collar	IV
7	Greta	Married couple, 2 teenage children	F	49	Tertiary	White-collar	V
8	Dirk	Married couple, 3 adult children	M	57	Primary	Blue- and white-collar	IV
9	Kyra	Married couple, 1 young child	F	37	Tertiary	White-collar	V
10	Jessica	Married couple, 1 young child	F	31	Secondary	White-collar	IV
11	Olivier	Co-housing with 4 friends, has a girlfriend living apart	M	30	Tertiary	White-collar	IV
12	Clara	Living with 1 young child, has a partner living apart, has 2 other young children mainly living with her ex-partner	F	37	Primary	Blue-collar	IV
13	Alice	Cohabitating couple	F	42	Tertiary	White-collar	IV
14	Alex	Single, co-housing with 5 friends	M	24	Tertiary	Blue-collar	IV
15	Tina	Married couple	F	54	Secondary	Blue-collar	IV

V= Voluntarily employed in temporary agency work; IV= Involuntarily employed in temporary agency work.

Procedures and data analysis

The temporary agency workers were interviewed about their experiences of precarious employment and how this interrelated with and affected their life course, family and social life. The interview topics were based on insights from existing research on precarious employment that characterises precarious employment as consisting of multiple dimensions: unstable employment, low material rewards, erosion of workers’ rights and social protection, de-standardised working time arrangements, limited training and employability opportunities, lack of possibilities for employee representation and imbalanced interpersonal power relations (Bosmans, 2016; Julià et al., 2017a). Special attention was paid to how the interviewees made sense of their situation (Patton, 2002; Russell and Ryan, 2010). The in-depth interviews were semi-structured. The interviews took place at the location that was most practical for the interviewees (e.g. interviewees’ home, university buildings, virtually).

The interviews were recorded, transcribed and coded with NVivo^TM software. The data were coded thematically (Boyatzis, 1998; Patton, 2002). After the interviews were read through, significant statements were detected and any patterns observed were sorted into codes (Boyatzis, 1998; Patton, 2002). Codes were either developed deductively from past theory, based on EU and Belgian labour legislation, or inductively, to allow research findings to emerge from the raw data. An organised set of codes were then developed upon review of the original codes (Boyatzis, 1998; Patton, 2002). The analysis was iterative, allowing the coding tree to evolve throughout the data collection and process of analysis. After the codes were identified, the focus was directed towards code-integrity and links between codes were sought (Boyatzis, 1998; Patton, 2002). In reporting the results, pseudonyms were used to protect participants’ privacy.

Results

In this study, we want to clarify why temporary agency workers are disadvantaged compared to regular workers regarding their work-related and social rights. Legislation already stipulates that Belgian temporary agency workers are entitled to most of the rights of regular workers. In our interviews, we still discovered some gaps, such as incomplete entitlement (e.g. many temporary agency workers do not get a hospitalisation insurance, as a fringe benefit, which is regularly granted to permanent employees) and ‘being entitled in theory, but not in practice’ (e.g. parental leave is legally available for temporary agency workers, but since a worker has to have a certain level of seniority at a company, it usually does not apply to the specific situation of temporary agency workers). However, our results indicate that the main problem causing unequal treatment of temporary agency workers seems to be the enforceability of rights, which is the focus of this study. The results derived from our interviews reveal that temporary agency workers are hindered in enforcing their rights in many different and somewhat subtle ways. The following manifestations of a lack of enforceability are discussed: (1) lack of enforceability due to ignorance and indifference about rights; (2) vulnerability hindering enforceability; and (3) lack of enforceability due to misuse by employers and cutting corners.

Lack of enforceability due to ignorance and indifference about rights

First, we found that temporary agency workers were often disadvantaged because they were uninformed or sometimes indifferent about their rights. Many temporary agency workers testified that they are/were not fully aware of their rights. Temporary agency work is often seen as a temporary solution, as many workers are for example searching for permanent work or combine temporary agency work with their studies. Many argued that it is not worthwhile to delve into the legislation or to claim benefits since temporary agency work is an intermediate stage in their career. In other words, they do not think it is worth enforcing their rights:

It really is a purely transitional period. I’m just here to gain experience. I know I’m not going to do this for years. Maybe a year, maybe less, maybe a little more. So, I understand not having all the privileges and benefits of a permanent employee; they have had to go through several stages in order to be hired by company x and I’m not going to complain about ‘Oh, where are my benefits?’ (Olivier)

When Zana was asked whether, as a temporary agency worker, she and her permanent fellow workers received luncheon vouchers (i.e. vouchers to purchase food, a popular fringe benefit offered to many workers), she said that the permanent workers did, but she did not: ‘It was not in the temporary employment agency’s offer.’ This illustrates that she was not aware that she was entitled to the same rights as permanent workers.

Those who remained in temporary agency work for a longer time seemed to raise more concerns. Some interviewees only discovered that they had been treated unlawfully afterwards (this also relates to another manifestation of a lack of enforceability discussed infra, namely, ‘misuse by employers’), which caused frustration. Others objected that they already had a lot on their mind (e.g. weekly contracts, searching for future job opportunities) and that they could not put in the effort to find out everything about their rights for each particular temporary job they performed. They trusted their employers to give them what they were entitled to:

I may be too casual. For example, I don’t check whether my shift premiums are calculated correctly, while my immediate colleagues always pay attention to these things and identify errors. (Mathias)

Another problem is that temporary agency workers’ annual holiday pay, which they are legally entitled to, is proportionally paid with their (weekly) wages. This means that they do not get paid when they actually take holidays and that their regular wage becomes ‘inflated’ with the holiday payments. Consequently, the exact composition of their weekly payment is not entirely clear to many. Moreover, many workers are not aware that this holiday pay should be included in the payments received. Workers who are not aware of their rights will also not be able to enforce them.

Vulnerability hindering enforceability

Even in cases where temporary agency workers are eligible for some rights, and actually want to exercise them, it might be difficult for them to do so, because of their ‘vulnerable employment position’. This applies to parental leave, for example. Karel indicated that he is entitled to parental leave because he has already worked for the same temporary employment agency in the same user company for 8 years. However, it was unclear to Karel which employer (user company or temporary employment agency) was responsible. Moreover, the agency first lied and claimed that he did not qualify. After a while, he found out that he was entitled to parental leave, but his employers simply denied him his right. As his employment relationship based on repeated weekly contracts put him in a vulnerable position, and he did not want to lose the job, he refrained from claiming parental leave.

Holidays were also flagged as being problematic. When temporary workers are hired during busier periods or to replace a worker, it is difficult for them to take a vacation. They are entitled to this right, but employers dare to state that they will choose a different candidate if the person is taking leave since they were purposefully hired to bridge a busy period. Though this makes logical sense, the temporary agency worker is put in a disadvantaged position again. For example, Dirk said that he almost always finds jobs during the summer months, as many permanent employees are on vacation. However, he would also like to go on vacation during the summer because the other members of his family can only take holidays during summer. This is frustrating since it is impossible for them to plan a family vacation. Others also experienced this as a burden:

Asking for vacation is always super annoying. In normal jobs, it’s more like ‘When will you take your vacation?’ while as a temporary agency worker, it’s almost a favour that you have to ask for. (Marcus)

Chantal had a similar experience. Her father needed care due to surgery. She would have liked to take leave to look after him, but this was not possible since she was hired to bridge a busy period in the user company. Not accepting the job at all was not an option for financial reasons. Asking to take leave during the assignment would lower her chances of getting a permanent contract at the user company:

My father is 82 years old and had undergone surgery in the hospital. A friend took care of him because I couldn’t say ‘I’m taking some days off’ at work. I can’t take care of my father, because then I wouldn’t be able to claim a permanent contract. So that’s quite drastic . . . If you have a permanent job and you say ‘my father is seriously ill’ then you can take time off, but you can’t do that if you’re a temporary agency worker. If that’s the case, they just won’t hire you anymore . . . (Chantal)

Moreover, she felt obligated to accept the job due to pressure from the unemployment service and her ensuing fear that she might otherwise lose her unemployment benefits.

The risk of being denied employment rights can be influenced through collective bargaining power, i.e. the degree to which workers’ interests are represented by works councils or trade unions (Gundert and Stegmaier, 2019). Temporary agency workers in Belgium can join a trade union and our interviewees were generally happy with the services provided by the local offices (e.g. to regulate unemployment benefits between two contracts). Marcus testified that in some instances, threatening the employer with contacting the trade union in the case of problems could already help to enforce rights. However, in other cases the opposite is true: a union representative warned Alex not to tell anyone that he had contacted the trade union, as this could cost him his job:

It shows how difficult it is for temporary agency workers to complain to the boss or to make them change something. If even the trade union tells you ‘Don’t mention anything about that problem and that you contacted me’, it’s generally a sign that most temporary agency workers won’t dare to complain. (Alex)

Many temporary agency workers feel that the trade union representatives in the user companies are not concerned about their rights, partly because temporary agency workers are not allowed to vote in trade union representative elections. They do not feel supported when they need it. Dirk explained it this way:

Perhaps they are not concerned with temporary agency workers. Because they also know ‘Within a week or within 6 weeks they will be gone again. So that is not a person that will vote for me.’ Trade union representatives are like politicians . . . The only ones who really help you are the employees in the regional office of the trade union. (Dirk)

However, this situation might change a little in the future because recent legislation dictates that in the social elections from 2020 onwards, temporary agency workers are allowed to vote if they have a certain level of seniority in the user company.

Lack of enforceability due to misuse by employers and cutting corners

Another issue to be considered concerns instances where employers explicitly take advantage of workers’ ignorance. Because the legislation is complicated, temporary agency workers are not always aware of their rights. For example, temporary agency workers are entitled to payments for public holidays that fall within the term of their contract. They are additionally entitled to be paid for some public holidays that fall outside the term of their contract, depending on the time between two contracts and depending on their seniority. Some temporary employment agencies take advantage of employees’ ignorance by not paying them for these public holidays. Not granting certain fringe benefits is another example. Only workers who dare to complain or persist, like Marcus, get what they deserve:

They didn’t want to pay me my eco-vouchers [fringe benefit in the form of vouchers for the purchase of ecological products and services], so I consulted the legislation. I said, ‘You have to pay me the eco-vouchers because you have to give me all of the fringe benefits.’ So, we had discussions about this, and I really had to insist. And in the end, I got what I was entitled to. It’s true that it was a bit uncomfortable because they don’t respond positively to those kinds of demands at the temporary agency office. Certainly, after my third e-mail, they said ‘We have already told you that you won’t get them’ and I said ‘No, because I checked with my colleagues with a permanent contract and they told me “Yes, of course, 250 euros a year”.’ And I had to tell the agency that they do get eco-vouchers because the agency had told me that they didn’t. So that was annoying. And I got to know the legislation well – the rules about public holidays and so on. So, before they ripped me off – if I may say so – I already knew ‘Ok, I’m still entitled to a paid holiday x number of days after the last working day.’ I figured it out for myself because I noticed that you would be disadvantaged if you didn’t. Also, for example – I think most people who worked with me at company x at the time, never received eco-vouchers. I think that everybody else just didn’t know about them and so they never asked for those vouchers. (Marcus)

This example shows that different manifestations of a lack of enforceability can be combined. Not granting certain rights because of workers’ assumed ignorance constitutes the first manifestation. The active obstruction of workers’ rightful claims forms a second manifestation in cases where a worker discovers some form of ‘cutting corners’ by the temporary work agency.

Another type of ‘cutting corners’ occurs when employers work around the regulations by making shorter contracts or splitting contracts that don’t include sick days or public holidays:

The temporary agency offices are cheating. For example, the 15th of August fell on a Thursday this year and I normally get weekly contracts, from Mondays to Fridays. And do you know what the temporary agency does? They suddenly give me a contract from Monday to Wednesday – I signed because I didn’t pay attention – and then I got a new contract for one day on Friday. They didn’t give us a contract for the 15^th, because it’s an official holiday and everyone stays home. At that moment, the penny dropped, and I checked it out and it turned out that they did that every time. But it’s clearly stated in the law that a temporary agency worker has the same rights as a permanent employee. So, I was supposed to be getting paid for that day every time. I put my foot down and they gave me a contract for the last official holiday. But I didn’t get paid for all the other official holidays I missed. (Dirk)

Circumventing regulation regarding the permissible grounds for temporary agency work is also a problem. Misuse of these conditions is easy, and control is often absent. A first example is explained by Tina:

In many companies I worked for, they have sent permanent employees to early retirement, and then switched to temporary agency workers. I ended up somewhere where they had a farewell drink for all the people who had been sent on early retirement, while in the meantime 200 temporary agency employees were hired through an in-house temporary agency work office. (Tina)

Another form of abuse concerns the successive use of temporary agency contracts over a long period under the guise of other motives. Temporary agency workers in this situation complained that they should have long been given a permanent contract. Companies sometimes choose to interrupt a worker’s employment in order to rehire them again via a temporary employment agency after a certain period of time:

I worked there for 11 months and 2 weeks because they knew they would have to give me a permanent contract 2 weeks later. Then they said ‘If you’re still unemployed in 3 months, call us again. Then you can start again.’ I said ‘Are you serious? Are you going to let me work again for 11 months?’ They didn’t answer that question . . . (Dirk)

Agency workers are thus dismissed from jobs just before qualifying for a permanent contract. Another way of circumventing the regulation was mentioned by Alice, who was required to change departments in the user company every 6 months, to keep her employed as a temporary agency worker. Many temporary agency workers felt abused (and lied to) since they have often been promised a permanent contract to keep them motivated. It is difficult to prove abuse and temporary agency workers have the impression that companies are not being sanctioned for these kinds of practices.

A related practice is seen for temporary agency jobs where part of the wage is paid through government subventions aimed at hard-to-employ populations (e.g. older workers). These subventions are intended to ease the initial wage costs of workers for whom a certain ‘productivity penalty’ is assumed in the initial phase of employment, with the intention to integrate them into the labour market for a longer period. However, some interviewees testified that, in practice, this subvention scheme is used as a form of cheap labour: when the time comes to receive a permanent contract, they are replaced with another subsidised worker.

Finally, seniority is often used to circumvent equal treatment regulation. The law prescribes that temporary agency workers should receive the same fringe benefits as permanent workers with the same job in the user company. Some user companies try to circumvent this legislation by, for example, only giving certain fringe benefits to employees after a certain period of seniority at the user company. Clara, for example, testified that she had to work for the user company for a couple of months before she was granted luncheon vouchers. Most temporary agency workers never get that seniority and are thus excluded from these benefits. This is legal but feels unjust to many employees.

Conclusion and discussion

This study illustrated that despite the strong legislation in Belgium regarding the equal treatment of temporary agency workers, they are still disadvantaged in getting what they are entitled to. Enforcement of rights turns out to be the main problem in the Belgian case. The qualitative methodology used in this article revealed different manifestations of a lack of enforceability of rights that lead to disadvantage regarding temporary agency workers’ employment-related and social rights. Rather than only focusing on the legal reality, temporary agency workers were interviewed about how they experienced their rights. This allowed subtle mechanisms and loopholes in the legislation to be brought to the fore. First, many workers are uninformed or indifferent about their rights and this often causes them to not get what they are entitled to. Because of their lack of knowledge, or because they think striving for their rights is not worth the effort, they do not enforce them. Second, because of their vulnerable position, many temporary agency workers are not able to enforce their rights, out of fear of not getting a permanent contract or future assignments. The third manifestation of a lack of enforceability can be summarised as ‘cutting corners’ by employers/users. Some employers take advantage of temporary agency workers’ lack of knowledge regarding their rights by not giving them what they are entitled to. Additionally, some employers seem to bypass the legislation through loopholes in the law. In doing so, employers intensify the employment insecurity and precarious living conditions of many temporary agency workers. All these manifestations of a lack of enforceability of rights have negative consequences for workers because they often do not get what they are entitled to. Additionally, many of them feel mistreated and powerless, which affects their well-being, and even the well-being of their household members (e.g. not being able to plan a vacation together).

The manifestations of a lack of enforceability of rights revealed in this article do not only highlight issues specifically relevant to the Belgian context. Rather, they can be considered universal problems related to temporary agency employment, although other specific traps and loopholes might exist in different legislative contexts. Moreover, these manifestations can also be found for other types of non-standard employment arrangements such as temporary work, casual work, seasonal work, contingent work, platform work, part-time work, etc. Several studies touch upon one or more of these failings in terms of enforceability. Regarding the first manifestation, ‘lack of enforceability due to ignorance and indifference about rights’, Porthé et al. (2010) illustrated that vulnerable workers such as immigrants, who regularly end up in non-standard employment, are often uninformed about their rights. Underhill and Quinlan (2011) also reported poor knowledge of legal rights among temporary agency workers. Furthermore, Gundert and Stegmaier (2019) argued that whether non-standard workers insist on their rights also reflects the value they place on their work. Workers to whom their job is less central to their identity than their activities or roles outside of the labour market might care less about being granted their rights. This can also clarify indifference about rights from temporary agency workers who see their employment status as a transitional period in their career. The study by Porthé et al. (2010) illustrated the second manifestation, ‘vulnerability hindering enforceability’. Their study showed that immigrant workers in precarious employment in Spain often cannot exercise their rights, such as taking a vacation or sick leave, out of fear that contracts will not be renewed. Bertolini (2020) argued that the liability to be blackmailed constituted the main factor behind the limited individual bargaining power of temporary agency workers and played a significant role in discouraging them from being represented by a trade union. Moreover, the capacity to exercise rights is included as a dimension in the definition of ‘precarious employment’ in the work of, among others, Julià et al. (2017b). This capacity is operationalised based on items that measure powerlessness to exercise workplace rights like maternity/paternity leave or annual vacations. The third manifestation, ‘lack of enforceability due to misuse by employers and cutting corners’, also seems to apply to other national contexts. For the UK, Maroukis (2015) found that temporary employment agencies and user companies use legal loopholes and exemptions to circumvent regulatory protections for temporary agency workers. Another example is bogus self-employment, which can be considered a form of misuse in itself. These are employees who are given the false status of being self-employed, mostly for reasons such as transferring risks, costs and responsibilities to the workers. As a consequence, they lack many social security rights (e.g. pension accrual, paid sick leave, right to unemployment benefits) (Thörnquist, 2015). In contrast to these studies, ours is the first one to present the ways in which a lack of enforceability of rights is manifested all together in an integrated way, through which it becomes clear that disadvantage for non-standard workers in a well-regulated context regarding the entitlement to rights is not merely indicative of a lack of rights but is mainly manifested in their enforceability.

A limitation of this study is that it is based on the experiences of temporary agency workers alone. To gain a more complete picture of the enforceability of employment-related and social rights of temporary agency workers, other stakeholders such as employers (user companies and temporary work agencies), trade unions and lawyers specialised in labour law can also be consulted, through interviews or focus groups. They could also reflect on possible measures that could be taken to improve the situation of temporary agency workers. Furthermore, more research is necessary to provide a better understanding of the scale of the issues raised. The manifestations of a lack of enforceability of rights found in this qualitative study can inspire content for a survey among temporary agency workers. Moreover, non-trade union members and occasional temporary agency workers should also be surveyed. Additionally, this study only focuses on the Belgian situation. Similar studies can be conducted to compare the legislation, how it is put in practice, enforced and experienced by temporary agency workers in other countries.

This study should inspire policymakers, both in Belgium, other EU countries and beyond, to develop strong policies and to reflect on better strategies to make sure policies are implemented and applied. The results can impress upon policymakers to adapt legislation, and to protect and improve the situation of temporary agency workers, as labour market flexibilisation is a worldwide trend. First, temporary agency work legislation has improved throughout the years in Belgium, but management practices undermine the legal protections for workers. Legislation should be adapted to eliminate loopholes. Temporary agency work is for example used as an important bridge into the labour market for hard-to-employ populations. Subsidies to encourage employers to employ this kind of workers are often granted with good intentions. In practice, however, these workers are easily dismissed or not given a new contract after the subsidies terminate. Measures should be taken to ensure that these workers are not used as ‘cheap and disposable labour’ so that perverse effects caused by the subsidies are avoided.

Second, workers clearly do not get what they deserve when control and sanctioning are almost absent. In the case that the law is breached, Belgian legislation requires that – due to the user company’s liability – the temporary agency work contract should be converted into an open-ended contract with the user company, making the temporary agency worker entitled to compensatory damages (termination fees). Moreover, temporary work agencies can lose their licence for non-compliance with labour legislation (Schömann and Guedes, 2012). However, the temporary agency workers who were interviewed have the feeling that control and enforcement are absent. This problem of enforceability seems to be a problem of responsibility. Based on the results and by using the theoretical insights of the theory of responsibilisation, we argue that the problem of enforceability is mainly caused by a lack of responsibility as to who should ensure the rights of temporary agency workers. According to Wakefield and Fleming (2009), ‘Responsibilisation is a term developed in the governmentality literature to refer to the process whereby subjects are rendered individually responsible for a task which previously would have been the duty of another – usually a state agency – or would not have been recognised as a responsibility at all.’ From the results, it becomes evident that temporary agency workers are being made responsible for the enforcement of their own rights even though in their situation they have no power or jurisdiction to do that. This transfer of responsibility from higher authorities or employers to individuals who are then called on to take an active role in resolving their own problems, demotivates temporary agency workers in striving for their rights, as illustrated by our results. First, they are demotivated because of a lack of knowledge or they think enforcement is not worth it because temporary agency work is often seen as a transitional phase in someone’s career. Second, they feel vulnerable because standing up for their rights could have the consequence that they lose their job or will not be offered new job opportunities by the temporary work agency. Many of the interviewees testified that they think they do not have the power to argue for their rights if they are treated unfairly by their employer for the same reasons. That is why we argue that good legislation is just an empty shell if temporary agency workers, who are often in a vulnerable position, are being made responsible for enforcing their rights. In general, most temporary agency workers will not take the initiative to go to labour court, or even to a trade union (partly because many do not feel supported by them), if their rights are violated.

The process of responsibilisation is strongly associated with neoliberal political discourses, where it takes on the implication that the subject being responsibilised has avoided this duty or the responsibility has been taken away from them in the welfare state era and managed by an expert or government agency (Wakefield and Fleming, 2009). Neoliberalism prescribes that individuals become entrepreneurs of their own life (Ericson and Doyle, 2003). The notion of responsibility is at the heart of the ‘neoliberal art of government’ in the sense that it is based on an identification of responsibility with material self-sufficiency; in other words, moral autonomy is measured by the ability to take care of oneself, the ability to provide for one’s own needs and to pursue one’s own ambitions (Brown, 2006; Hache, 2007). This trend to ‘individualisation’ and this individual assumption of responsibility for security is causing greater inequality in society: it widens the gap between individuals according to the resources they have at their disposal. It contributes to what Castel and Haroche (2001) call a ‘dual society’: a social divide is created between those who have the means to protect and responsibilise themselves (power, time, money, intellectuality, etc.), and the others, who are weakened by this requirement to be personally responsible and thus driven toward a ‘negative individuality’ (Castel and Haroche, 2001; Hache, 2007). Gottfried (1991) states that temporary work individualises employment much in the way that is described by responsibilisation theory. She argues that, in the absence of co-workers, who are scattered at job sites across the economy, temporary workers develop individual strategies in negotiating the multiple layers of management. In general, on the labour market, the trend towards individualising employment relations makes it more difficult for hard-to-employ populations to get high-quality jobs in which they are treated equally. Individualisation makes it possible for firms to offer certain workers more advantages than others, treating them differently and offering them unequal degrees of security and status. This trend causes some workers to be channelled into stable jobs while the status of others becomes more precarious, and divisions and hierarchies between workers consequently increase (Standing, 2011). In sum, as responsibility is shifted onto the temporary agency workers, good legislation and equal rights become only an empty shell, due to a lack of power to enforce them. Therefore, governments should control employers and sanction those who do not apply the legislation correctly. Control should be organised in a collective way – not only in case of personal complaints on the initiative of employees who dare to speak up – because vulnerable workers often do not dare to complain out of fear of losing their job or being refused future job offers.

Third, non-standard employment legislation embodies ‘standard employment relationship-centrism’ (Vosko, 2011); it is usually based on the context of a standard employment relationship. If flexibility is put forward as a pursuable goal on the labour market, workers should also receive proper protection – following the idea of flexicurity – which has not been put into practice so far. Although temporary agency workers in Belgium are entitled to a range of benefits in most cases, it is often difficult to enforce them, and if they do get them, they are still disadvantaged compared to regular employees. All in all, much of the employment regulation and social insurance schemes still do not consider flexible working careers. Some disadvantages for temporary agency workers are almost impossible to solve by adapting legislation. Therefore, governments can also think about compensating the burden caused by flexibility and insecurity, by for example giving extra pay to temporary agency workers. The ‘flexibility premium’, an extra 10% on the salary given to French temporary agency workers at the end of their assignment, can serve as an example (Voss et al., 2013). Finally, instead of putting all emphasis on job creation and activation policies, governments should take more measures to tackle precarious employment and consequently promote high employment quality. Precarious employment is hardly better for people’s health and well-being than being unemployed is (Van Aerden et al., 2017). The proposed measures can help to reduce feelings of frustration and injustice which often lead to worse mental well-being among temporary agency workers. This is even more relevant in periods of crisis, since COVID-19 hits the most precarious workers even harder than regular workers because of their lack of rights and social protection.

Footnotes

Acknowledgements

The authors would like to thank the temporary agency workers and the contact persons of the organisations that helped with finding these workers for their participation in this scientific research. Special thanks go to the Christian trade union ACV (Eva Van Laer and Herman Fonck) and the Socialist trade union ABVV (Hanne Sanders) for their help with the recruitment.

Declaration of conflicting interests

The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

This research is facilitated by the research grant ‘FWO 12T7719N’, that is assigned to Kim Bosmans by the Research Foundation Flanders.

ORCID iD

Kim Bosmans

Notes

Author biographies

Kim Bosmans (Doctor of Sociology) is a postdoctoral researcher at the Interface Demography research group at the Vrije Universiteit Brussel. Her research interests include the quality of work, precarious employment and the link with health and well-being.

Deborah De Moortel is a FWO [PEGASUS]² Marie Skłodowska-Curie Fellow at the Department of Sociology of the Vrije Universiteit Brussel. Her research has received funding from the FWO and European Union’s Horizon 2020 research and innovation programme under the Marie Skłodowska-Curie grant agreement No. 665501. Her interests are focused on work-related health research, labour market inequalities and cross-national comparative research.

Christophe Vanroelen is Associate Professor of Sociology and the director of Interface Demography, a research centre connected to the Department of Sociology of the Vrije Universiteit Brussel. He holds a PhD in social health sciences and master’s degrees in sociology and applied social science statistics. His current research focuses predominantly on the quality of work and employment as determinants of health and well-being among workers.

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