In a ruling delivered on 16 November 2016, the CJEU broadened the scope of application of Directive 2008/104 on temporary agency work to include a not-for-profit association that assigned health care workers not in their employ to a health care institution in return for financial payment. Even though this case is particularly specific as it involves the special status of Red Cross workers (the not-for-profit association in question), the ruling could broaden the scope of the Directive’s application to other forms of triangular relationships not only employment relationships.

The court delivered a ruling on a German case where a health care clinic had concluded a manpower agreement with a community of nurses, from a not-for-profit-association attached to the Red Cross Association of Nurses. The association had assigned health care workers a clinic in return for financial compensation. The relationship between the association and its members however is not governed by any employment contract.

As is allowed under Germany’s co-management laws, the health care clinic’s works council refused to accept one nurse’s assignment on the grounds that the position was not a temporary one and so a temporary employment assignment was in contravention of the law on placing temporary workers in permanent positions. This was the context within which the CJEU was called on to determine if Directive 2008/14 on temporary agency work applied or not in this situation.

Directive 2008/14 applies to ‘a worker with a contract of employment or an employment relationship with a temporary-work agency with a view to being assigned to a user undertaking to work temporarily under its supervision and direction.’ However for the judges ‘to restrict the concept of ‘worker’ as referred to in Directive 2008/104 to persons falling within the scope of that concept under national law, in particular, to those who have a contract of employment with the temporary-work agency, is liable to jeopardize the attainment of those objectives and, therefore, to undermine the effectiveness of that directive by inordinately and unjustifiably restricting the scope of that directive.’ For the judges once the available worker has to carry out services under the user company’s direction and control, in return for a monthly remuneration, then his/her situation does not significantly differ for the case of a traditional temporary worker.

CJEU, 17 November 2016 Case C-216/15, Betriebsrat der Ruhrlandklinik GmbH