THE RIGHTS AND WORKING-CONDITIONS OF EMPL OYMENT AGENCY WORKERS

Over the last fifteen years, we have witnessed the growth of various ' 'atypical'' forms of employment and a growing interest in part-time wo rk, piecework and subcontracting. This trand has given rise to two ver y different types of employment on the labour market: regular and perm anent jobs versus part-time or temporary jobs. The latter often includ e contract employees from employment agencies hired on a temporary bas is. A firm dealing with such agencies avoids the cost of hiring regula r workers and benefits from greater flexibility as far as personnel ma nagement is concerned. Our labour laws are conceived and administered on the assumption that there is a bilateral agreement between employer and employee, in a stable job environment. This two-party relationshi p has an impact on collective and individual working relations. The di stinctive criterion of this working relationship is, as determined by doctrine and jurisprudence, legal subordination, which can be defined as the right to manage, control and correct the activities of another person. But does this criterion apply to a three-party relationship? T he notion of legal subordination is always useful to determine who the employer is. However, the procedure used in order to decide who exerc ises authority is based on increasingly flexible criteria. In the ligh t of trands in jurisprudence, Blouin (1995) suggests that legal subord ination can be determined be referring to either criteria or factors, and the method used depends upon the type of relation between the part ies. In the scope of the proposed analysis, the following tests are us ed: the control test; the work organization test; the economic activit y test; the fourfold test; and variable factors. In this article, we o bserve that in cases where the definition of the relationship between employer and employee was problematic, in the context of private place ment agencies, the legal subordination criterion prevailed, that is, t he firms dealing with those agencies were mainly identified as the emp loyer. The authors consider that, in a three-party relationship, the e fficiency test is much too strict and overlooks some fundamental aspec ts of the question. It is suggested that criteria such as recruitment, selection, daily supervision, compensation, equipment ownership, task assignment, work scheduling, training, work evaluation, discipline, d ismissal, length of service, integration in the firm and legal subordi nation should be looked at more closely by the courts in their search for the genuine employer.