European law report - Fixed-term rights!

Persons employed under a fixed-term contract cannot be discriminated against, the European Court of Justice (ECJ) recently affirmed. Such employees must enjoy, in virtue of EU rules on the matter, similar rights to those enjoyed by their colleagues employed under a contract of indefinite duration, the Court went on to confirm.

This ruling came about as a result of a preliminary reference made by the Irish Labour Court whereby the latter requested the ECJ to interpret a 1999 EU law which put into effect the framework agreement on fixed-term work concluded between ETUC, BusinessEurope and CEEP.

A dispute had arisen between IMPACT, a trade union representing the interests of civil servants in Ireland, and the Irish public authorities. The trade union complained in the name of 91 workers on fixed-term contracts against the Irish government's practice of employing a number of civil servants under a chain of fixed-term contracts. Such workers were in this way being excluded from benefits that other government workers received, including pay rises and contributions to pension entitlements.

The public authorities maintained this practice because Ireland was two years late in transposing the EU directive on fixed-term work into national law.

The 1999 EU directive makes specific provision for the principle of equal treatment of fixed-term workers with comparable full-time workers and obliges member states to take measures to prevent abusive use of successive fixed-term employment contracts. The ECJ ruled that even in cases of late transposition of this law, employees may rely directly on the non-discrimination clause of the EU directive itself in order to ascertain their rights before a national court.

Equal treatment, the Court confirmed, constitutes a principle of Community law which cannot be interpreted restrictively. Such a concept clearly covers issues related to pay and pensions. It also means that fixed-term workers should be entitled to sick leave, training, access to promotion and other conditions of employment as permanent staff.

In this particular case, the Irish authorities had taken advantage of the delay in the adoption of national legislation transposing the directive to renew contracts just before the transposition date for an unusually long period.

In this way, they deprived the workers concerned for an unreasonable period of time of the rights introduced by the directive. The ECJ emphasised the duty of national authorities acting as public employers to ensure that the law is implemented effectively from the moment that it enters into force, irrespective of the fact that the same authorities are late in transposing the directive into national law.

The impact of this judgment on the EU labour force must not be under-estimated. In 2007, 108 million EU citizens were employed on fixed-term contracts.

The message of the European Court of Justice is clear: The abuse of fixed-term contracts by any EU employer is strongly prohibited.

This applies as well to national authorities acting as public employers, irrespective of the fact that the EU law was not properly transposed into national law.

• Dr Vella Cardona is a freelance consultant in EU, intellectual property and competition law. She is also a visiting lecturer at the University of Malta.