S.L. 452.133 Art. 4Equal treatment.

(1) The basic working and employment conditions of temporary agency workers shall be, for the duration of their assignment at a user undertaking, at least those that would apply if they had been recruited directly by that undertaking to occupy the same job, by virtue of the Act or any regulations issued thereunder or under any other legislation or by virtue of any applicable collective agreement.

(2) For the purposes of these regulations, the term "basic working and employment conditions" means such conditions as limitedly relate to:

(a) rate of remuneration;

(b) the duration of working time;

(c) overtime;

(d) rest breaks;

(e) rest periods;

(f) night work;

(g) statutory annual leave entitlements;

(h) public holidays;

(i) the protection of pregnant women, women who have just given birth or who are breastfeeding;

(j) the protection of children and young people; and

(k) equal treatment for men and women and any action to combat any discrimination based on sex, race or ethnic origin, religion, beliefs, disabilities, age or sexual orientation.

(3) For the purposes of sub-regulation (2)(a), "rate of remuneration" means remuneration or earnings payable to the worker by such worker’s employer, that are, the basic wage, any statutory cost of living increase payable under the Act or under any other law, any statutory bonuses, statutory allowances and any other allowances payable under the Act or under any other law, the payment for overtime work at the applicable rate, payment in respect of public holidays, payment in respect of annual leave, payment in respect of maternity leave and any applicable shift allowances.

(4) Without prejudice to the foregoing provisions of this regulation:

(a) the provisions of article 27 of the Act shall not apply to temporary work agencies to the extent that any inequality may arise from any difference in the rate of remuneration; and

(b) no claim for any discriminatory treatment may be made by any temporary agency worker to the extent that any inequality may arise from any difference in the basic working and employment conditions, of temporary agency workers engaged by the same temporary work agency who work in the same class of employment, in the event that:-

(i) any such temporary agency workers are assigned with different user undertakings in order to perform their work; and, or

(ii) any such temporary agency workers are not assigned with any user undertaking when any such difference arises in comparison with other temporary agency workers who are so assigned:

Provided that if the rate of remuneration and, or basic working and employment conditions of the temporary agency worker are more favourable than those of a comparable employee of the user undertaking, the rate of remuneration and, or basic working and employment conditions of the temporary agency worker shall prevail and be applicable to the temporary agency worker.

Provided further that, in such case, employees engaged directly by the user undertaking shall have no right to claim a breach of the principle of work of equal value or on the basis of discriminatory treatment, in relation to the circumstances contemplated in this proviso:

Provided further that if the rate of remuneration and, or the basic working and employment conditions of the temporary agency worker are less favourable than those of a comparable employee of the user undertaking, the rate of remuneration and, or the basic working and employment conditions of the comparable employee of the user undertaking shall prevail and be applicable to the temporary agency worker, whereupon every measure shall be taken to ensure that the rate of remuneration and, or basic working and employment conditions are adjusted accordingly. In default, temporary agency workers shall have a right to file a claim against their employer for failing to comply with this obligation.

(5) Notwithstanding the provisions of this regulation, if the temporary agency workers or employees within a user undertaking be covered by collective agreements where any such agreement provides more favourable rates of remuneration and, or basic working and employment conditions than another, the collective agreement with the most favourable rates of remuneration and, or basic working and employment conditions shall prevail and be applicable to the temporary agency workers.

(6) No provision within these regulations shall be interpreted to permit any form of direct or indirect pay discrimination based on gender among employees, including temporary agency workers.