Luxembourg, 18/01/2007 (Agence Europe) - On Wednesday 10 January, Advocate General Poiares Maduro presented his conclusions in case C-307/05, involving Spanish hospital employee Yolana Del Cerro Alonso. Ms Del Cerro Alsonso accused her employer of economic discrimination due to her temporary work status which she claimed infringed her rights, as laid down in Clause 4 of the framework agreement concluded between ETUC (European Trade Union Confederation), UNICE (European Employers) and CEEP (European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest) on fixed term work and then implemented under Directive 1999/70/EC. Advocate General Maduro underlined that work contracts were completely subject to Community law but did express that paradoxically, in this case, remuneration is not part of “working conditions” as contained in the framework agreement.
Ms Del Cero Alonso had asked her employer, a public hospital attached to the public health service of the Spanish Autonomous Community of the Basque Country (Osakidetza), for allowances in respect of earlier periods she had worked as temporary staff (on a fixed term contract). When Del Cerro Alonso took Osakdetza to the Social Court in San Sebastián, Spain (Juzgado de lo Social de San Sebastián), her employer claimed that the allowances in question are reserved for permanent staff as stipulated in Decree 231/2000 on working conditions for Basque health service personnel.
The Juzgado decided to defer its decision and asked the European Court of Justice whether financial remuneration constituted working conditions as understood in the framework agreement on fixed term work. This clause of the framework agreement stipulates in the first paragraph that “In respect of employment conditions, fixed term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed term contract or relations, unless different treatment is justified on objective grounds”.
The fourth paragraph of the same clause in the framework agreement stipulates that the “Period of service qualifications relating to particular conditions of employment shall be the same for fixed term workers as for permanent workers” unless different treatment is justified on objective grounds. Although remuneration is considered as an “employment condition” in this sense, this could reveal an incompatibility between the Basque Decree and Community law.
Nonetheless, Mr Maduro's opinion goes against the argument put forward by Ms Del Cerro Alonso. Although the advocate general confirms application of Directive 1999/70 in the case in point, he does not share the opinion, also expressed by the European Commission, that “pay is the first and most important of working conditions”, at least not in the sense of the relevant European legislation. The Advocate General believes that the framework agreement is based on Article 139 EC, which in turn is based on Article 137 EC, in which paragraph 5 explains that “the provisions in this Article do not apply to remuneration”.
The advocate general therefore concludes that the framework agreement is not applicable to the allowances requested by Ms Del Cerro Alonso, despite the obvious importance attached to the question of remuneration by all workers and employees. According to the advocate general, the refusal to pay these allowances is justified by the temporary status of the employee in the period in question, and therefore does not contravene Community law. (cd)