Brussels, 16/04/2008 (Agence Europe) - Fixed-term contracts have to be negotiated on the same basis as open-ended contracts for similar posts. Employment conditions include both remuneration and pension arrangements, says a Court of Justice ruling handed down on 15 April in a case brought by Irish civil servants against their employer - the state. The Court ruling also found against excessive renewal of fixed-term contracts (case C-268/06).
91 Irish civil servants on fixed-term contracts “were denied benefits that permanent colleagues enjoyed including pay increases, contributory pensions and access to sick pay, training and annual leave. They now deserve a speedy end to this injustice,” said Louise O'Donnell, national secretary of the Irish Municipal Public and Civil Trade Union (IMPACT), which represents employees of the Irish state. The Irish Rights Commissioner found for the union in its case against the Department of Finance. However, the Department of Finance challenged this decision in the Labour Court. It is to this court, which directed questions to the Court of Justice of the European Communities, that the case has been referred. That is, unless the Department of Finance gives up its appeal, as O'Donnell has called on it to do. As we go to press, Department of Finance officials were “in an intense meeting with their legal adviser,” according to a spokesman; their decision is expected in the coming days.
Legal context. The union challenged, in particular, two points of what they perceived to be discrimination between “established” civil servants (those with open-ended contracts) and “non-established” civil servants (with fixed-term contracts): firstly, “conditions”, including remuneration and pension arrangements, and, secondly, the lack of job security. Persons employed on renewed fixed-term contracts do not enjoy the same stability as colleagues who have open-ended contracts, even though they may have worked in identical jobs for the same length of time. One of the civil servants did not enjoy the same benefits as his colleagues after ten years of “temporary” employment; another was fired after five and a half years of successive fixed-term contracts. Yet there is a European framework agreement (directive 1999/70/EC) to prevent just such abuses and this framework agreement has, indeed, been transposed into Irish law. However, what has to be analysed is the situation between the final date for transposition (10 July 2001) and its (late) effective transposition in Ireland (14 July 2003). What parts can be applied directly during this period (i.e. citied by an individual without reference to the member state's legislation)? The Court shared the opinion of Advocate General Juliane Kokott in this case (see EUROPE 9576): conditions of employment are dealt with under Clause 4 of the framework agreement, which is sufficiently clear to be applied directly, without there being any need to wait for transposition to come into effect at national level. Clause 5, however, which applies to renewal of fixed-term contracts, is too vague, the European Court of Justice says, to be used directly in a national court.
Judgment. As a consequence, the Court found there was discrimination in terms of remuneration against civil servants on fixed-term contracts. The previous decision of the Rights Commissioner could, then, be confirmed: it granted damages totalling €217,500 to the civil servants adversely affected. The Court also said that the Irish state cannot apply its national regulation retroactively, unless this is expressly provided for in the regulation in question. It was also clear, the Court pointed out, that, contrary to what the Department of Finance, backed by the British government, had tried to argue, remuneration and pension arrangements also come under “conditions”. However, the situation with regard to renewing fixed-term contracts was less clear-cut; between 2001 and 2003, there was legal uncertainty in Ireland. Yet, although no specific law can be applied to the facts during that period, the Court said that the Irish state was required to respect the spirit of the framework agreement even before it was transposed. This obligation derives from Article 10 of the EC Treaty which requires member states to take “all appropriate measures, whether general or particular” to respect Community regulations. Since, in this instance, the member state is also the employer, it would have been easy for it to respect the spirit of the framework agreement even before it was transposed, and not employ people on successive fixed-term contracts over a period of years without objective justification. This precise point will have to be determined by the Irish Labour Court. It should be pointed out that a detailed Irish regulation has come into effect in the meantime.
Under the terms of the Fixed Work Contract of 2003 and at the end of the third year of consecutive work, a contract can only be renewed for a final one year period. Any other contract that follows is automatically considered as permanent unless there any objective reasons to the contrary. (C.D.)