European Labour Law Lecture 06B

As the work on proposals on Directives on Part- time Work and Fixed-Term Contracts did not proceed (because of opposition of MS) the European Social Partners in 1997 and 1999 took the matter in their own hands according to the new procedure in the EEC Treaty (now art. 154/155 TFEU). They concluded two Agreements on these subjects in 1997 resp Subsequently they asked the Council of Ministers to implement these Agreements according to the second method provided for in art. 155 TFEU, which was done by way of Directives. See Hendrickx T. nrs. 15 and 16; C. p Part-time work/Fixed-term contracts 1

It makes sense to pay attention to the different structures of – on the one side – the traditional Directive – and on the other side – this kind of Directive. In this kind of Directive the material norms are not in the act of the Council of Ministers (containing only a few formal articles), but in the various “clauses” of the Agreement between the European Social Partners, which is in the Annex to the Directive. However, these are only externals. The binding force of both types of Directives is the same (see first lecture) Part-time work/Fixed-term contracts 2

Both Directives/Agreements have a somewhat comparable structure and contents. They both serve the purpose to improve the quality of part-time and fixed-term work by ensuring the application of the principle of non- discrimination. EQUALITY! They will ensure a treatment in a not “less favourable manner” than full-time workers resp. permanent workers (Clauses 1a and 4(1) of both the Part-time and the Fixed-term Directive). This is legal-technically done by some provisions on the “comparable worker” (Clauses 3(2) of both Directives) Part-time work/Fixed-term contracts 3

The equality principle is applicable to all employment and working conditions in laws and collective agreements. Also concerning wages and occupational pensions? This was challenged in court – with reference to art. 153 (5) TFEU - but affirmed by the ECJ (Impact and Bruno cases). From the principle of equality may be deviated if it can be justified on objective grounds (Clauses 4(1) of both Directives). The principle of equality allows for the application of the pro rata temporis principle (Clauses 4(2) of both Directives) Part-time work/Fixed-term contracts 4

The principle of equality is so unequivocal that it has direct binding effect (Impact case). Both Directives contain clauses on information and employment opportunities (clause 5 Part-time Directive; clause 6 Fixed-term Directive) Both Directives contain the usual “more favourable” and non-regression clauses (tested in ECJ Sorge case). Both Directives are also applicable in the public service of the MS (ECJ in Adelener, Marrosu and Gavieiro cases). Quite astonishing they are not applicable on the personnel of the European institutions (where their norms are grossly violated)!!! 6.4. Part-time work/Fixed-term contracts 5

More especially speaking on the Part-time Work directive it must be stressed that the Directive wants to support part-time work on a “voluntary” basis (Clause 1(b). This because in various countries trade unions are afraid, that employers may abuse part-time work by imposing it on their employees. So it is provided that a worker’s refusal to transfer from full-time to part-time or vice-versa shall not be a valid reason for dismissal (Clause 5(2). Rather the inverse: Employers should consider requests by workers to transfer from full-time to part-time work or vice versa (Clause 5(3) 6.5. Part-time work 1

The Part-time work Directive calls on MS and national social partners to remove obstacles for part-time work (Clause 5). (The ECJ in the Michaeler case ordered Italy to remove one). MS may exclude part-time workers working on a casual basis from the coverage of the Directive (Clause 2(2). This is not to say that the Directive precludes so- called labour-on-call contracts (ECJ in Wippel case) Part-time work 2

More especially dealing with the Fixed-term Directive it should be stressed that the Directive does not away with the most import inequality between fixed-term workers and workers with open-ended contracts: the employment protection. For most fixed-term workers this protections is infinitely lower than for workers on open-ended contracts!!! Apart from the purpose of conceding fixed-term workers a better protection, the Directive has also been inspired by the purpose to prevent abuse arising from the use of successive fix-term contracts (Clause 1(b) Fixed-term contracts 1

The Directive stresses (2 nd line of the preamble) that contracts of an indefinite time are and will continue to be the general form of employment relationships. This is a remarkable pronouncement, as nowadays the conclusion of fixed-term contracts has become dominating the labour market, as far as newly concluded contracts are concerned! 6.6. Fixed-term contracts 2

By prescribing the prevention of abuses the Directive gives MS – if there are no alternatives - three options: - Either to require “objective reasons” (ECJ in Adelener and Mangold cases has defined and applied that concept) for the renewal - or to establish a maximum total duration of a chain of fixed-term contracts - or to prescribe a maximum number of renewals of fixed-term contracts. NB: the Directive does not require “objective reasons” for the first fixed-term contract (ECJ in Angelidaka case). Recent CoJEU Kucuk-case for debate! 6.6. Fixed-term contracts 3

The Directive has excluded from its coverage Temporary Agency work (see preamble) MS may exclude training/apprenticeship agreements (Clause 2) 6.6. Fixed-term contracts 4