Uitbesteding van werk en (on)gelijke behandeling: een systematische benadering

Abstract

Undertakings outsource work on a large scale to, amongst others, temporary work agencies and payroll agencies. As a result thereof, workers often perform work for undertakings with which they do not have an employment contract. The labour conditions of these workers are often less favourable than the conditions that would have applied if they performed the work as employee of this undertaking. In this way, competition on labour conditions takes place through outsourcing, which can be undesirable. The government took several measures to counteract this competition and intends to take further measures. Furthermore, over the last years multiple recommendations were issued to the government for measures regarding outsourcing of work. These taken, intended and recommended measures often seem to be motivated ad hoc. There is a lack of clear and consistent principles on which the various measures are based. In this research it is assessed whether a systematic approach can be used to test how the legal position of workers performing outsourced work should be regulated. Therefore, this research includes an extensive analysis of the different forms of outsourcing of work, being temporary agency work, payrolling, secondments, contracting and platform work, and of the legal position of workers in these forms. A number of fundamental aspects of this legal position are being subjected to a systematic test which is developed in this research. This test is based on an analysis of national and European law and jurisprudence. In testing it is assessed to which extent it is justified that workers performing outsourced work have less favourable labour conditions than employees of the undertaking that ultimately benefits from the outsourced work. This results in recommendations for adjustments or clarifications of legislation and regulation. Finally, these recommendations are reflected on based on legislative plans and advices.