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Use of definite contracts in the performing arts sector

Italian law does not make provision for any measure contemplated by EU law to safeguard employees in the performing arts sector from the abusive use of fixed-term contracts by employers. Photo: Mark Zammit Cordina

Italian law does not make provision for any measure contemplated by EU law to safeguard employees in the performing arts sector from the abusive use of fixed-term contracts by employers. Photo: Mark Zammit Cordina

Persons employed in the performing arts sector must be provided the same protection against the abusive use of fixed-term employment contracts by employers as those employed in other sectors, the Court of Justice of the European Union (CJEU) has recently affirmed.

EU law makes provision for safeguards against the abusive use by employers of successive definite employment contracts. It obliges member states to ensure their national laws cater for measures which prohibit such abuse. Depending on the sector in question, national laws must therefore, stipulate that there must be objective reasons which justify the renewal of fixed-term contracts, ascertain the maximum total duration of successive fixed-term employment contracts which an employer and employee can enter into or lay down the maximum number of renewals for such type of contracts.

The facts of this case which came before the CJEU were briefly as follows. A ballerina was employed from 2007 to 2011 under multiple fixed-term contracts. In 2012, she asked the competent national tribunal to declare that the fixed terms applied to her contracts were unlawful and requested to convert her employment relationship into one of indefinite duration.

The tribunal dismissed the action on the basis that the specific national rules applicable to this sector of employment did not offer the same protection as those regulating employment contracts in other sectors and did not cater for the conversion of fixed-term employment contracts into ones of indefinite duration. Upon appeal, the appellate court filed a preliminary reference before the CJEU, requesting guidance as to whether EU law allows national legislation to exclude a specific sector from the application of general employment rules which safeguard against the misuse of successive fixed-term contracts.

The CJEU observed that EU law lays down minimum measures designed to prevent insecurity in employment. Member states must therefore adopt at least one of the preventive measures laid down, though they do enjoy discretion as to which measure to apply and to take account of the needs of specific sectors and/or categories of workers.

The Court noted that, in so far as the performing arts sector is concerned, Italian law does not make provision for any measure contemplated by EU law to safeguard employees from the abusive use of fixed-term contracts by employers. Furthermore, it did not appear that recourse to successive fixed-term employment contracts in the sector was justified by an objective reason.

Primarily, the Court maintained that the public nature of the work in question must have no bearing on the protection enjoyed by workers in terms of EU law since the latter applies to all workers, irrespective of whether the employer is in the public or private sector. Similarly, it rejected the argument that fixed-term contracts are in this case permissible because Italy traditionally used this type of contract in this specific sector. Indeed, there was no evident reason as to why objectives relating to the development of Italian culture and the safeguarding of Italian historic and artistic heritage would require employers in the cultural and artistic sector to take on fixed-term staff, the CJEU asserted.

The Court failed to accept the argument that the temporary needs of the employer justifies the retention of employees on successive fixed-term contracts in the sector in question. On the contrary, the ballerina in question had been employed, over several years, to perform tasks which were always similar, the CJEU observed. Budgetary considerations also cannot justify the lack of any measure preventing the misuse of successive fixed-term employment contracts.

The Court concluded that national legislation must provide for effective measures to prevent and, where relevant, punish the abuse of successive fixed-term contracts. Where no such effective measure exists in any one sector, national courts are still obliged to interpret national law, so far as possible, in such a way as to penalise abuse in an effective manner and to nullify the consequences of the breach of EU law.

The CJEU affirmed that national courts could do so, by for example, providing for the automatic transformation of a fixed-term contract into one of indefinite duration where the employment relationship goes beyond a specific date.

The EU’s labour law acquis seeks to ensure the utmost protection of employees in all sectors of employment. With an employee often being the weaker party in an employment relationship, it is indispensable that any effort to thwart the protection offered by EU law is eradicated.

Mariosa Vella Cardona, M’Jur, LL.D., is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.

mariosa@vellacardona.com

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