CJEU: Case C-311/21, CM, 15 December 2022

On 15 December 2022, in a German case, the Court of Justice specified how a collective agreement allowing temporary agency workers to be paid less than employees of the user undertaking must provide for countervailing benefits, to respect ”the overall protection” to be afforded to them, under Article 5 of Directive 2008/104 of 19 November 2008, on temporary agency work (see Temporary agency work). The Court accepts that, by means of a collective agreement, the social partners can authorise differences in treatment with regard to basic working and employment conditions (as defined in Article 3 of the Directive: duration of working time and pay) to the detriment of temporary agency workers. However, in order to respect the “overall protection” of the temporary agency workers concerned, in return, this collective agreement must afford them advantages in terms of basic working and employment conditions which are such as to compensate for the difference in treatment they suffer. To ensure compliance, in concrete terms, with the obligation to respect this overall protection, an assessment must be made by comparing, for a given job, the basic working and employment conditions applicable to workers recruited directly by the user undertaking with those applicable to temporary agency workers. This comparison will determine whether the countervailing benefits afforded in respect of those basic conditions can counterbalance the effects of the difference in treatment suffered.