Restatement of Labour Law in Europe Volume Volume II: Atypical Employment Relationships 9781509912476, 9781509912483, 9781509912452

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RESTATEMENT OF LABOUR LAW IN EUROPE This book is part of a series which sets out a restatement of labour law in Europe. Its second volume looks at atypical employment relationships in Europe. Opening with a restatement, the book provides comparative commentary on the question of how fixed term employment relationships, part-time employment relationships and temporary agency work is regulated by law in the individual states, which case law of the courts must be observed in this respect and which possibilities exist for shaping such relationships on the basis of collective bargaining agreements. The book goes on to systematically explore the national regulatory framework of: Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Montenegro, Netherlands, North ­Macedonia, Norway, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey and the United Kingdom. In this area, which is largely shaped by EU law in many countries, the commonalities and differences with regard to the relevant regulatory issues are examined. This important new project provides the definitive survey of labour law in Europe today.

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Restatement of Labour Law in Europe Volume II Atypical Employment Relationships

Edited by

Bernd Waas and Guus Heerma van Voss Assisted by Hendric Stolzenberg

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2019 Copyright © Bernd Waas and Guus Heerma van Voss, 2019 Bernd Waas and Guus Heerma van Voss have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2019. A catalogue record for this book is available from the British Library. A catalogue record for this book is available from the Library of Congress. ISBN: HB: 978-1-50991-247-6 ePDF: 978-1-50991-245-2 ePub: 978-1-50991-246-9 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters. With financial support from the European Union

Acknowledgements A Restatement of labour law in Europe is a daunting task. It can only be mastered if all those involved pull together. The fact that this is actually ­happening is anything but self-evident and I would therefore like to thank all my colleagues who have been working on this project for years. I would also like to express my very great appreciation to Dr Elena Gramano, Dr Vera Pavlou and Hendric Stolzenberg for their support. ­ ­Leonie Kronschwitz, Karim Meziani and Marko Skraba adjusted the text to the publisher’s house style. The proof-reader, Niki Rodousakis again did a great job in terms of improving the language. My thanks also go to our project partners: the European Trade Union Confederation (ETUC), the Confederation of German Employers’ ­ Associations (BDA), the European Association of Labour Court Judges ­ (EALCJ), the European Labour Lawyers Association (EELA) and the ­European Foundation for the Improvement of Living and Working Conditions (Eurofound). Without the support provided by the European Commission, this volume just like the first volume would not have seen the light of day. I remain grateful for their support, understanding and patience. Last but certainly not least, thanks are due to Hart’s editing team around Tom Adams. The fact remains: We could not have hoped for better partners. Bernd Waas General Editor Frankfurt, August 2019

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Contents Acknowledgements����������������������������������������������������������������������������������� v List of Contributors��������������������������������������������������������������������������������� xi Introduction������������������������������������������������������������������������������������������� xxi Restatement Text��������������������������������������������������������������������������������� xxiii Comparative Overview���������������������������������������������������������������������� xxxiii ATYPICAL EMPLOYMENT RELATIONSHIPS 1. Austria������������������������������������������������������������������������������������������������ 1 Martin Risak 2. Belgium�������������������������������������������������������������������������������������������� 23 Wilfried Rauws 3. Bulgaria�������������������������������������������������������������������������������������������� 57 Krassimira Sredkova 4. Croatia��������������������������������������������������������������������������������������������� 83 Ivana Grgurev 5. Cyprus ������������������������������������������������������������������������������������������� 107 Nicos Trimikliniotis and Corinna Demetriou 6. Czech Republic������������������������������������������������������������������������������� 139 Petr Hůrka 7. Denmark���������������������������������������������������������������������������������������� 167 Natalie Videbaek Munkholm 8. Estonia������������������������������������������������������������������������������������������� 205 Gaabriel Tavits 9. Finland������������������������������������������������������������������������������������������� 225 Matleena Engblom 10. France��������������������������������������������������������������������������������������������� 247 Francis Kessler 11. Republic of North Macedonia�������������������������������������������������������� 277 Todor Kalamatiev and Aleksandar Ristovski 12. Germany����������������������������������������������������������������������������������������� 311 Bernd Waas

viii  Contents 13. Greece�������������������������������������������������������������������������������������������� 351 Costas Papadimitriou 14. Hungary����������������������������������������������������������������������������������������� 373 György Kiss 15. Iceland�������������������������������������������������������������������������������������������� 397 Elín Blöndal and Inga Björg Hjaltadóttir 16. Ireland�������������������������������������������������������������������������������������������� 425 Anthony Kerr 17. Italy ����������������������������������������������������������������������������������������������� 459 Edoardo Ales, Antonio Riccio and Antonio Riefoli 18. Latvia��������������������������������������������������������������������������������������������� 485 Kristīne Dupate 19. Lithuania���������������������������������������������������������������������������������������� 499 Tomas Davulis 20. Luxembourg����������������������������������������������������������������������������������� 521 Jean-Luc Putz 21. Malta���������������������������������������������������������������������������������������������� 549 Lorna Mifsud Cachia 22. Montenegro������������������������������������������������������������������������������������ 571 Vesna Simović-Zvicer 23. Netherlands������������������������������������������������������������������������������������ 591 Guus Heerma van Voss 24. Norway������������������������������������������������������������������������������������������ 623 Helga Aune 25. Poland�������������������������������������������������������������������������������������������� 647 Leszek Mitrus 26. Portugal������������������������������������������������������������������������������������������ 673 José João Abrantes and Rita Canas da Silva 27. Romania����������������������������������������������������������������������������������������� 699 Raluca Dimitriu 28. Russia��������������������������������������������������������������������������������������������� 733 Nikita Lyutov and Elena Gerasimova 29. Serbia��������������������������������������������������������������������������������������������� 759 Senad Jašarević

Contents  ix 30. Slovakia������������������������������������������������������������������������������������������ 783 Robert Schronk 31. Slovenia������������������������������������������������������������������������������������������ 809 Polonca Končar 32. Spain���������������������������������������������������������������������������������������������� 837 Joaquín García Murcia and Iván Antonio Rodríguez Cardo 33. Sweden������������������������������������������������������������������������������������������� 859 Andreas Inghammar 34. Switzerland������������������������������������������������������������������������������������� 881 Wolfgang Portmann and Rahel Aina Nedi 35. Turkey�������������������������������������������������������������������������������������������� 911 Kadriye Bakirci 36. United Kingdom����������������������������������������������������������������������������� 939 Benjamin Jones and Jeremias Prassl Bibliography����������������������������������������������������������������������������������������� 963 Index����������������������������������������������������������������������������������������������������� 987

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List of Contributors José João Abrantes is Full Professor of Civil Law and Labour Law at the Faculty of Law and Pro-Rector of the NOVA University of Lisbon. He is a member of several legal associations and scientific networks and member of the editorial board of several legal journals. He is Vice-Chairman of the ­Portuguese Labour Law Association and Portuguese expert at ELLN— European Labour Law Network. He has authored more than 100 publications (books and articles) in labour law, social security law, civil law, constitutional law and fundamental rights. Edoardo Ales is Full Professor of European, Comparative and Italian Labour and Social Security Law at the University Parthenope in Naples. He teaches also in Rome at LUISS—Guido Carli and at the Vienna University of Economics and Business. He is a member of the Scientific Committee and national expert for Italy of the ELLN (now ECE). He has published and edited several books on individual and collective labour law as well as health and safety law. He is the author of several essays in international and national labour and social security law journals. He is the co-editor of the Rivista del Diritto della Sicurezza Sociale and member of the board of director of the Giornale di Diritto del lavoro e di Relazioni Industriali. Helga Aune has been working as a lawyer and the National Leader of the Labour Law Department at PwC Law firm AS, Norway, since 2014. She completed her PhD and post-doctoral research at the Faculty of Law, University of Norway. She has published articles on employment law in addition to gender equality and non-discrimination issues. She has chaired several project-committees proposing legal changes. Aune has been a member of the European Commission Network of Legal Experts in the Field of Gender Equality since 2003 and a member of the European Commission Network of Legal Experts of the European Labour Law Network (ELLN) since 2007. In 2013, Aune was awarded the YS Equality Prize for her book on part-time work. Kadriye Bakirci is the Head of Employment and Social Security Law Division at Hacettepe University Law Faculty, Turkey. She completed her LLB, LLM and PhD degrees at Istanbul Law Faculty. She has attended the Institute of Advanced Legal Studies (London), the London School of Economics and Political Science (Law Department); University of Cambridge, Stockholm University and Columbia University Law Faculties; Lund University Business Law Department and the International Labour Organisation (Geneva)

xii  List of Contributors as a visiting scholar/fellow. She is a member of several legal and scientific networks and the national expert for Turkey of the European Labour Law Network (ELLN). Elín Blöndal holds a Cand. Jur. and a Human Resource Management Degree from the University of Iceland and a Master’s degree in Public International Law from the University of Leiden, Holland. She is (from 2013) Chief Legal Counsel at the University of Iceland and was a Judge at the Labour Court until 2017 (on behalf of the Association of Academics), but has also worked as Professor and Chair of the Research Centre of Labour Law at Bifröst University, Head of the Labour Office at the Ministry of Social Affairs and Head of Office at the Parliamentary Ombudsman. Elín has been a member of the Governmental Committee of the European Social Charter as well as of several European and national committees dealing with social and labour law issues. She has written several publications, especially in the field of labour law, gender equality and social human rights, and has frequently led groups which have reviewed and made proposals for legislation in Iceland. Tomas Davulis is Professor of Labour Law and Head of the Department of Labour Law (the Institute for Labour Law) of the Vilnius University ­Faculty of Law. He is a member of various international networks (eg, European Labour Law Network, European Network of Legal Experts in Gender Equality and Non-discrimination) as well as a member of international and national scientific organisations (European Law Association, International Society for Labour Law and Social Security). At the national level, Tomas Davulis has been frequently appointed as a leader and member of various groups with the purpose of assessing and ameliorating domestic labour legislation (in particular, the Labour Code and transposing of EU legislation). Rita Canas da Silva has a PhD in Private Law (2016), having written a thesis on the suspension of the employment contract. She is also a lawyer (since 2004) and co-head of the Labour and Social Security Department of the law firm Sérvulo & Associados (since 2015). She is a Guest Professor at the Faculty of Law of the Catholic University of Portugal (Lisbon School) and at the Faculty of Law of the Nova University of Lisbon. She is a guest speaker at conferences and seminars on Employment Law and Social Security Law, and she has authored several publications on her areas of specialisation. She is a founding member of the Portuguese Employment Law Association (APODIT—Associação Portuguesa de Direito do Trabalho) and a founding member of the Association of Young Labour Jurists (AJJ—Associação de Jovens Juslaboralistas). Between 2011 and 2015 she was Deputy to the Secretary of State of Employment (Ministry of Solidarity, Employment and Social Security) and Advisor to the Secretary of State of the Prime Minister, integrating the Memorandums Monitoring Structure (ESAME—Estrutura de Acompanhamento dos Memorandos) team that monitored the meeting of the obligations towards the IMF, the EC and the ECB.

List of Contributors  xiii Corina Demetriou has many years of experience in legal practice and legal research in the field of migration, fundamental and labour rights. Since 2007, she has been the national expert for Cyprus at the European ­Network of Legal Experts in the Non-discrimination Field. Also, she was senior legal expert on fundamental rights for the RAXEN and FRALEX and co-authored the Reports of the Cypriot RAXEN and FRALEX team (2004–10). She has been the legal expert of the FRANET national team since 2014. She has produced numerous other reports and press articles on free movement, labour law, migration, integration, asylum, rights of the child, trafficking, anti-racism and anti-discrimination. Raluca Dimitriu is Professor of Labour Law at the Bucharest University of Economic Studies—Law Department—and PhD Coordinator in the field of labour law and industrial relations. She is also a senior researcher in the Legal Research Institute of Romanian Academy and author of several books and monographs on individual and collective labour relations. As a trainer for magistrates specialising in labour law—within the National Institute for Magistracy—Raluca Dimitriu is also in permanent contact with the practical field of industrial relations. Kristīne Dupate is Associate Professor at the University of Latvia, Faculty of Law, Department of International and European Law. She is a member (national expert) of the Network of Legal Experts for the EU Commission in the fields of gender equality, labour law and free movement of workers. She has participated in various research projects for international and EU institutions as a national expert. Kristīne Dupate is author of numerous publications on gender equality, non-discrimination and labour law. Matleena Engblom LL.Lic, is a Finnish labour law expert working as a Partner of Attorneys-at-Law Blackbird Ltd, which she founded in 2017. She deals with different types of labour disputes and employment offence proceedings. She has worked as a researcher at the University of Turku, as an attorney, as a Labour Court clerk, as a lawyer for the Church, as a trade union lawyer, and as head of administration. She has published a book on employment contract terms and several articles in labour law journals. Joaquín Garcia Murcia is Professor of Labour Law and Social Security of the Complutense University of Madrid. He has co-authored reference books such as Labour Law, Practical Treaty of Labour Law, Practical Treaty of Social Security Law and Glossary of Employment and Labour Relations (Spain). He has published numerous papers in labour law and social security law journals, has conducted numerous research projects and has been mentor of numerous doctoral theses. He was Legal Adviser at the Spanish Constitutional Court. Elena Gerasimova is the Decent Work and International Labour Standards Specialist at the International Labour Organisation. Before joining the ILO

xiv  List of Contributors in 2018 she was the Associate Professor of the Department of Labour and Social Law at the National Research University Higher School of Economics (HSE) in Moscow. In 2017–2018 she was a fellow at the Nantes Institute for Advanced Study (France). She has headed the NGO Centre for Social and Labour Rights since 2002 and is Chairman of the Lawyers for Labour Rights Association in Russia. She was Deputy Chair of the Public Council of the Labour and Social Welfare Ministry of the Russian Federation. Ivana Grgurev is Full Professor at the Chair of Labour Law and Social Security Law, Faculty of Law, University of Zagreb. She is a member ­ (national expert) of the European Labour Law Network. She has published several books and articles in the field of labour law (discrimination law, ­collective agreements, managerial contracts, etc). Guus Heerma van Voss is Professor of Labour Law at Leiden University (the Netherlands) and State Councillor at the Advisory Division of the Council of State of the Netherlands. He worked at Tilburg and Maastricht University before becoming Full Professor in Leiden. He is also a part-time Judge at the Court of Appeal of The Hague. In 2007, he co-founded the European Labour Law Network (together with Prof Bernd Waas of Frankfurt University) until 2015. In 2010, he received a doctorate honoris causa from the University of Miskolc (Hungary). Inga Björg Hjaltadóttir, Attorney at Law, is an Icelandic labour law expert working at a Reykjavik law firm. She deals with different types of labour disputes and employment rights proceedings. She has worked as a lecturer at Reykjavik University and Bifröst University and serves as a judge at the ­Icelandic Labour Court appointed to serve employer interests by the ­Icelandic Minister of Finance. Petr Hůrka is a labour law expert and Associate Professor at the Labour Law and Social Security Law Department of the Faculty of Law, Charles University in Prague. He presides over the Labour Law and Social S­ ecurity Law Committee of the Government Legislative Council, represents the Czech Republic in the European Labour Law Network, and is a member of the Czech Community for Labour Law and Social Security Law. Dr Hůrka acts as a mediator and arbitrator in collective labour law disputes, as well as a lecturer and consultant. Andreas Inghammar is Associate Professor of Business Law and former Head of the Department of Business Law at the School of Economics and Management, Lund University, Sweden. He received his doctoral degree in Private Law at the Faculty of Law, Lund University. His research primarily covers comparative and national aspects of labour law, focusing on employment law and disability discrimination law, and most recently also the legal situation of migrant workers under international, EU and national

List of Contributors  xv ­ rovisions. Inghammar was a visiting professor in University of Bari Aldo p Moro, Italy during spring 2018 and at Pannasastra University of Cambodia ­during 2015–16 and was previously a visiting researcher at the University of ­Warwick, United Kingdom, and the Institute for Labour Law, University of ­Göttingen, Germany. Senad Jašarević graduated from the Faculty of Law in Novi Sad in 1986, where he currently holds the position of Full Professor, specialising in Labour Law and Social Security Law. He is President of the Serbian Association for Labour Law and Social Security. He is the author of numerous scientific and professional publications in the fields of labour and social security law. Benjamin Jones is a barrister of Gray’s Inn specialising in employment law and practising from Old Square Chambers in London. Before being called to the Bar he was a retained lecturer in law at Pembroke College, University of Oxford, where he had previously completed his DPhil. He has contributed to various comparative legal research projects coordinated or funded by the European Parliament, the European Commission, and the International Labour Organization, investigating a range of labour law and human rights issues. Todor Kalamatiev is Full Professor in the ‘Saints Cyril and Methodius’ University of Skopje and a head of the Department of Labour and Social security law at the Faculty of Law ‘Iustinianus Primus’ Skopje. He teaches Undergraduate labour law and Postgraduate International labour law, European labour law, Anti-discrimination law and Flexibility and Security of the labour market at the Faculty of Law in Skopje. Professor Kalamatiev is engaged in teaching Labour law, Social Security law and Social policy at the Doctoral studies of the Faculty of Law in Skopje. In the capacity of external collaborator of the ILO, Todor Kalamatiev has conducted several national studies and analysis in the field of labour law. Since 2014, he has been a national expert of the Republic of Macedonia in the European Labour Law Network and a member of the Study Group on Restatement of Labour Law in Europe. Anthony Kerr is a Senior Counsel at the Bar of Ireland and Associate ­Professor at the Sutherland School of Law at University College Dublin, where he is the Programme Director of the Professional Diploma in Employment Law. He is a graduate of the University of Dublin, the University of London and the Honourable Society of King’s Inns, Dublin and has been a Jean Monnet Fellow at the European University Institute. He is a member of the European Labour Law Network, an executive committee member of the International Society for Labour and Social Security Law, a national reporter for the International Labour Law Reports and an academic board member of European Employment Law Cases.

xvi  List of Contributors Francis Kessler is Associate Professor at the Sorbonne Law School at Université Paris where he teaches Social Security, Comparative and European Social Law. He founded and directs the Master 2 ‘Droit de la Protection Sociale d’Entreprise’, a programme on apprenticeship at the Sorbonne University. Francis Kessler is also Senior Counsel at Gide Loyrette Nouel AARPI in Paris. He works as an expert on various EU and Council of Europe projects and is a member of the European Labour Law Network (ELLN). György Kiss is Professor at the National University of Public Service in ­Budapest, Professor of the Faculty of Public Administration at the U ­ niversity of Pecs, Faculty of Law, Department of Labour Law; and Chair of MTAPTE Research Group of Comparative and European Employment Policy and Labour Law. Polonca Končar is Professor emeritus at the Faculty of Law of the University of Ljubljana, Slovenia. She is the former President of the European Committee of Social Rights. Končar was a member of the Executive Committee of the International Society for Labour and Social Security Law (VicePresident, 2003–06). She was a national expert in the Free Movement of Workers Network and is a national expert and member of the Scientific Committee in the European Labour Law Network. Nikita Lyutov heads the Department of Labour and Social Law at the Kutafin Moscow State Law University (MSAL) and is Professor of Labour Law at the National Research University Higher School of Economics (HSE) in Moscow. He is Deputy Chairman of the Lawyers for Labour Rights Association in Russia and is on the editorial boards of various law journals in Belarus, Italy, and Russia. He was a visiting lecturer at Amsterdam University (UvA), Vilnius University in Lithuania and at the ADAPT Association for International and Comparative Studies in Labour and Industrial Relations in Modena, Italy, as well as at other international universities. He is a contributor to deliberations on Russian labour issues with the State Duma of the Russian Federation, the Ministry of Labour and Social Welfare, and with non-commercial organisations, and in this capacity has co-authored draft labour legislation for the Russian Federation. Lorna Mifsud Cachia is a practising lawyer and partner in the litigation team of Dingli & Dingli Law Firm, Malta. She also collaborates with the European Union Law Department of the University of Malta where she acts as a visiting lecturer, supervisor for various dissertations in European Union law, and examiner. Lorna Mifsud Cachia is a member of the Chamber of Advocates and a member of the European Labour Law Network. She has brought cases before the Industrial Tribunal in Malta and all inferior and superior courts in Malta and the European Court of Human Rights.

List of Contributors  xvii Leszek Mitrus is Professor at the Chair of Labour Law and Social Policy, Jagiellonian University in Kraków, Poland. He is a member of the European Labour Law Network, and has authored around 120 publications on­ Polish, European and international labour law and social security law. Among these publications are books on the free movement of workers, EU ­ directives on employment contracts and the influence of European labour law on the Polish legal system, as well as termination of an employment contract due to reasons concerning an employee. He has co-authored commentaries on the Treaty on the Functioning of the European Union, the Charter of Fundamental Rights of the European Union and the Polish Labour Code. From September 2016 until March 2018 he was a member of the Commission for Codification of Labour Law. Natalie Videbaek Munkholm is Associate professor, PhD, at Aarhus University, Denmark. Natalie’s 40 publications cover national, comparative and European labour and employment law, and her PhD was awarded the Aarhus University Research Foundation PhD prize. She has conducted research at Oslo University, University of Cambridge, and University of Helsinki. Natalie has worked as a practitioner in Denmark, Australia and New Zealand, and teaches collective labour law, employment law, European labour law, and private law. She is an appointed member of the Danish Board of Equal Treatment, national expert for Denmark of the European Labour Law Network (ELLN), national expert at the Future of Work Nordic project (FoW), and represents Denmark in the International Society of Labour Law and Social Security Law (ISLSSL). Rahel Aina Nedi is a PhD candidate and visiting lecturer at the University of Zurich. Currently, she works as an associate in the field of employment law and litigation at the law firm Wenger & Vieli AG in Zurich. Prior to that, she worked for three years as a research assistant for Prof Wolfgang Portmann at the University of Zurich. Costas Papadimitriou is Professor at the Faculty of Law of the National and Kapodistrian University of Athens and a lawyer specialised in Labour Law and European Labour Law. He teaches and conducts research in those areas at the University of Athens. He is a member of the Department of Studies of the Greek Parliament (1994–2018). He is President of the Greek Society for Labour and Social Security Law. He is also a national expert for various institutions (European Labour Law Network, Free Movement of Workers Network, Odysseus Network). Wolfgang Portmann, a professor of labour law and private law at the ­University of Zurich, is the author and editor of numerous publications focusing on Swiss, comparative, European, and international labour law. He is also chairman of the publishing board of the Swiss Journal for Labour

xviii  List of Contributors Law and Unemployment Insurance (ARV), a member of the European Labour Law Network ELLN (representing Switzerland and Liechtenstein), and a member of the boards of the Europe Institute in Zurich, the Centre for Liechtenstein Law, and the Swiss Institute for Labour Law. In addition, Wolfgang Portmann acts as a consultant for a law firm and is responsible for training lawyers specialising in labour law on behalf of the Swiss Bar ­Association. From 2010 to 2014, Wolfgang Portmann served as Vice Dean of the Law Faculty and Director of the Institute of Law at the University of Zurich. Jeremias Prassl is an Associate Professor in the Faculty of Law at the University of Oxford, and a Fellow of Magdalen College. He was a Supernumerary Fellow of St John’s College, Oxford (2011–14), and a Stipendiary Lecturer at Jesus College (2010–11). Jeremias has also held visiting research or lecturing positions at Columbia Law School, New York; Yale Law School; the Max Planck Institute, Hamburg; and University College, London. He teaches Constitutional Law and EU Law at Magdalen, as well as Labour Law and Corporate Law for the Faculty. In 2015, Jeremias received a British Academy Rising Star Engagement Award to further his work in European Employment Law. Jean-Luc Putz is working as a Judge at the Luxembourg District Court. He is teaching Labour Law at the University of Luxembourg and has published several texts and reference books on Luxembourg’s individual and collective labour law. Wilfried Rauws is Full Professor at the Free University of Brussels and PartTime Professor at the University of Maastricht for labour law and comparative labour law. He is Deputy Judge in the Court of Appeal of Antwerp and member of the editorial board of the major Flemish legal journals, the Rechtskundig Weekblad (Weekly Journal of Law) and the Tijdschrift voor Privaatrecht (Journal of Private Law). Antonio Riccio, PhD, is Research Fellow at the Department of Legal Sciences of the University of Florence. He teaches at the Department of Economics and Law of the University of Cassino and Southern Lazio and at the Law School of the University of Florence. He is author of several publications on individual and collective labour law. Antonio Riefoli, PhD and Assistant Professor at the Department of Economics and Law of the University of Cassino and Southern Lazio, is author of several publications in the field of labour law. He has also worked as a lawyer, predominantly dealing with issues concerning employment rights, since 2009. Martin Risak is Associate Professor at the Department of Labour Law and Law of Social Security at the University of Vienna, Austria. He was

List of Contributors  xix Professor of Civil Law and Labour Law at the University of Passau, Germany (2008–09), William Evans Visiting Fellow (2003) and Marie Curie-Fellow (2010–11) at the University of Otago, New Zealand and an associate with the international law firm CMS Reich-Rohrwig Hainz (1999–2000). Among other functions, Prof Risak is the chairperson of Senate II of the Austrian Equal Treatment Commission (since 2016), a member of the editorial board of the (Austrian) Journal of Labour Law and Social Law and the national expert for Austria of the European Centre of Expertise in the field of labour law, employment and labour market policies (ECE). Aleksandar Ristovski is Assistant Professor in the ‘Saints Cyril and Methodius’ University (Faculty of Law ‘Iustinianus Primus’ Skopje, Department of Labour and Social Security Law). He teaches Labour law at Undergraduate level and International labour law, European labour law, Anti-discrimination Law and Flexibility and Security of the labour market at Postgraduate level at the Faculty of Law in Skopje. In the capacity of external collaborator of the ILO, Aleksandar Ristovski has conducted several national studies and analysis in the field of labour law. Since 2014, he has been a national expert of the Republic of Macedonia in the European Labour Law Network and a member of the Study Group on Restatement of Labour Law in Europe. Aleksandar Ristovski is a member of the CEElex database and network of national legal experts on labour and industrial relations in Central and Eastern Europe. Iván Antonio Rodríguez Cardo is Associate Professor of Labour Law at the University of Oviedo. He is a member of several legal associations and scientific networks. He was a former Vice-Dean at the Faculty of Law of the University of Oviedo and a researcher on numerous projects funded by the Government of Spain and the European Union. He has published numerous papers in labour law and social security law journals. Robert Schronk, CSc, is Professor of Labour Law—Comenius University, Faculty of Law, Bratislava, Slovakia, where he lectures and holds seminars on Labour Law, International and European Labour Law. He is a member of working groups and scientific boards, President of the Slovak Society for Labour Law and Social Security (2006–10), member of the Accreditation Commission, Advisory Body of the Government of the Slovak Republic (2010–16). Member of the European Labour Law Network (ELLN) since 2007. He has authored several publications on Slovak and European labour law. Vesna Simovic-Zvicer is currently working as Lecturer at the University of Montenegro (Labour Law, European Labour Law and Social Protection). She is a member of the Social Council of Montenegro. She is President of the Association of Labour Law and member of the Board of the Association of Lawyers of Montenegro.

xx  List of Contributors Krassimira Sredkova is Professor of Labour Law and Social Security at Sofia University ‘St Kliment Ochridski’. She is President of the Bulgarian Association of Labour Law and Social Security and Editor-in-Chief of the Journal Contemporary Law. She is also a member of the European Committee for Social Rights and of the International Association for Legislation and has authored 247 publications in the field of national, international, EU and comparative labour law and social security law. Gaabriel Tavits is University Professor and Researcher at the University of Tartu, Faculty of Law. His area of research is labour law and social security law (at European and international level). He has published articles on important labour law issues and flexible labour relations as well as European social security law. He is also a member of the European Labour Law Network. Nicos Trimikliniotis is Professor at the School of Social Sciences and Humanities, University of Nicosia, and a Barrister. He heads the team of experts of Cyprus for the Fundamental Rights Agency of the EU. He has researched on Labour Law, free movement of workers, EU law, discrimination, digitalities, work, precarity, integration, citizenship, education, migration, racism, and conflict. He is the National Expert for Cyprus for the European Labour Law Network. Selection of publications: Mobile Commons, Migrant Digitalities and the Right to the City (Palgrave Macmillan, 2015); Beyond a Divided Cyprus: A State and Society in Transformation (Palgrave, 2012); Rethinking the Free Movement of Workers: The European Challenges Ahead (Wolf Legal Publishers, Nijmegen, 2009). Bernd Waas is Professor of Labour Law and Civil Law at Goethe ­University of Frankfurt am Main, Germany. Bernd Waas is Coordinator of the E ­ uropean Labour Law Network (ELLN) and Coordinator of the ­European centre of expertise in the field of labour law, employment and labour market policies (ECE). He is a member of the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) and ­Chairman of the German Section of the International Society for the Law of Labour and Social Security (ISLSSL). He also serves on the advisory committee of the Labour Law Research Network (LLRN).

Introduction The European Labour Law Network was established in 2005. The network’s ‘inaugural meeting’ took place that same year in Hagen in ­ ­Westphalia. From the onset, the network consisted of professors and university lecturers and was gradually expanded. Today the network includes experts from EU Member States, as well as from many other European countries. The European Labour Law Network represents 38 countries in total. The European Labour Law Network has been the network of experts of the European Commission’s Directorate General for Employment, Social Affairs and Inclusion since 2008. In this capacity, the tasks of the network’s experts include informing the Commission about developments in the labour law of the Member States of the EU as well as of Iceland, Liechtenstein and Norway, and to meet the Commission’s specific information requirements. One important task consisted and continues to consist of bringing together those who are interested in the developments of labour law. To this end, the network organises annual seminars that discuss topics of shared interest. The range of topics spans from ‘labour law in the economic crisis’ to highlighting similarities and differences in new forms of employment in the era of increasing digitisation of the labour market. In addition to Commission staff members, national labour ministry and (European and national) social partner representatives, but also, eg, members of the organised judiciary and legal representatives participate in the network’s annual seminars. From the onset, the members of the network sought to contribute to the further fleshing-out of labour law comparison in Europe. The restatement of labour law in the US was an important inspirational source in this regard. The existing differences are obvious and do not need to be listed here in detail. We should keep in mind that the efforts in the US, albeit taking statespecific characteristics into consideration, focused on the labour law of one nation. Developing a restatement of labour law in Europe entails an area of law which, to a large extent, is regulated autonomously by the Member States and which has thus far only been harmonised to a limited degree. And yet: why not also attempt to develop a restatement of labour law in Europe with the objective of carving out possible similarities, but also scrutinising the existing differences? Initially, the available resources were insufficient to execute this plan: some attempts that were undertaken did not hit the target. Instead, it became increasingly clear how extensive the distance we sought to cover was and how rocky the road is, even if we aimed to focus only on specific areas

xxii  Introduction of labour law to gain a comprehensive overview of the current conditions in Europe. The network members’ enthusiasm speaks for itself when now, despite all the obstacles we faced, the initial results of our efforts to develop a restatement of labour law in Europe are presented here. We cannot praise the European Commission’s contribution to our endeavour enough. This project would never have been possible without the Commission’s generous material support. The project partners’ contributions can also not be ignored. The European social partners as well as Eurofound and associations of judges and employment lawyers created a ‘friendly habitat’. The project was only able to flourish in such an environment. A lot has been said and written about the significance of labour law comparisons in recent years and decades, and the related challenges have been repeatedly highlighted. This project is illustrative of these challenges. It starts with practical obstacles: labour law is often case law, but court decisions are not published in all countries, and courts in many countries do not offer insights into the motivations behind their decisions. There is more to it, however: in a project that covers completely different countries, the participants’ diverging preconceptions become even more obvious, something that cannot simply be played down. Linguistically, a ‘common denominator’ must be found to convey the results without distorting the underlying legal concepts. Establishing and ensuring comparability and coherence is crucial. Yet this must not result in a levelling of the differences. This book is the result of efforts to develop a restatement on an ­important—perhaps the most important—area of labour law: the concept of employee and of employer, that is, the concepts that define the scope of labour law. This publication aims to identify problem areas and highlight the solutions adopted in Member States as clearly as possible. The ensuing overview of law comparisons sharpens the reader’s eye. An in-depth understanding can be gleaned from the country reports, which not only present the respective statute and case laws, but also address the contribution to legal doctrine. The objective of the restatement is not to effect a harmonisation of labour law or even to contribute to such a harmonisation. It is actually far more modest: by providing insights on comparisons of labour laws—especially insights that reach beyond the circle of the Member States of the EU—we aim to increase knowledge and gain a better understanding thereof. If the reader can claim that this was achieved after completing this book, our project—despite all obstacles—will have succeeded. Frankfurt, March 2017 Bernd Waas, Coordinator of the European Labour Law Network

Restatement Text I.—1. Fixed-term work 1. Definition of fixed-term employment contract A fixed-term employment contract is defined as an employment contract in which the parties mutually agree on a term by which the contract will terminate. A fixed-term contract may expire on a defined end date, upon the conclusion of a predetermined period, or with the occurrence of a specified event, eg the end of leave of an employee who was substituted or the conclusion of a project. 2. Substantial conditions for the lawfulness of a fixed-term employment contract Regulations limiting recourse to fixed-term employment contracts usually exist. The conditions that must be met to conclude a lawful fixedterm employment contract are usually as follows: 1) existence of objective grounds justifying the conclusion of a fixed-term contract, which can be individually defined by law; 2) determining the maximum duration of the contract; 3) determining the maximum number of successive fixed-term contracts the same two parties can enter into; 4) determining the maximum number of fixed-term employees an employer can hire in relation to the total number of employees in the undertaking. A combination of these conditions is often found in legal systems. If the legal requirements for concluding (the first or successive) fixed-term employment contract are not met, the employment contract is typically converted into a contract of indefinite duration. In rare cases, the employee is entitled to compensation only. 3. Formal requirements Fixed-term employment contracts, or at the very least the clause specifying the end date or duration of the employment relationship must be established in writing, a requirement for the contract to be lawful.

xxiv  Restatement Text







In some cases, the requirement of the written form is implicit in the general provisions, requiring all types of employment contracts to be concluded in writing, irrespective of their duration. In some cases, the requirement of the written form is extended to include the grounds justifying the conclusion of a fixed-term contract. In exceptional cases, no written form of the fixed-term contract is legally required. In such cases, however, the burden of proof that a specific term was previously agreed usually lies with the employer. If the fixed-term employment contract was not concluded in writing even though the written form is a legal requirement, the contract is deemed to have been concluded for an indefinite period.

4. Prevention of misuse of successive fixed-term contracts Measures to prevent the misuse of successive fixed-term employment contracts are usually adopted. Such measures may include the following: 1) objective reasons justifying the renewal of the fixed-term employment contract; 2) definition of the maximum total duration of successive fixed-term employment contracts; 3) definition of the maximum number of renewals of the fixed-term employment contract; 4) requirement of a minimum waiting period before a new fixed-term employment contract can be entered into between the same parties for the performance of the same activity. A combination of these measures is often found in the legal systems. In exceptional cases, the law does not restrict recourse to successive fixed-term employment contracts. In such cases, case law does, however, play a relevant role, frequently reminding that circumventions of the law in this regard are prohibited. 5. Expiration of the fixed term A fixed-term employment contract automatically expires on the end date agreed by the parties. In some countries, when the agreed term expires and neither of the parties to the employment contract expresses an intention to terminate the employment relationship or if the parties continue to perform according to the contract’s term beyond its expiry, it is converted into an employment contract of indefinite duration.

Restatement Text  xxv



In some cases, the employer is required to provide a written notification on the expiration of the fixed-term employment contract. In exceptional cases, the employer must even give advance notice.

6. Dismissal of the fixed-term employee









Limitations of the employer’s prerogative to terminate the contract prior to the expiration of the term are stipulated in the law. In some cases, the same dismissal regulations that apply to employment contracts of indefinite duration are also applicable to fixed-term employment contracts. In other cases, if the employer decides to dismiss the employee prior to the expiry of the agreed term, s/he will have to pay all of the fixed-term worker’s wages s/he would have been entitled to from the date of dismissal until the end date of the fixed-term contract. In exceptional cases, the employee can be dismissed on grounds that are more restrictive than those justifying the dismissal of a permanent employee. In even rarer cases, the fixed-term contract can be ordinarily terminated at any time for any reason or for no reason at all.

7. Principle of equal treatment The principle of equal treatment, according to which a fixed-term employee shall not be treated less favourably than a comparable permanent employee, is generally applicable. Where appropriate, the principle of pro rata temporis applies, according to which the fixed-term employee is entitled to the same terms and working conditions as a comparable permanent worker in proportion to the duration of his/her employment. Some countries provide for an explicit definition of ‘comparable permanent worker’, eg they have transposed the definition of Directive 1999/70/EC on fixed-term work. In other cases, this notion is not explicitly established in the law. Differentiated treatment may be justified on objective grounds. Such grounds are not usually expressly specified in the law. If the principle of equal treatment is breached, the employee is typically entitled to compensation.

xxvi  Restatement Text

In some cases, the principle of equal treatment is not applied if the fixed-term employment contract is of a very short duration. In exceptional cases, the principle of equal treatment is not explicitly stipulated in law.

8. Employment opportunities

Typically, a fixed-term employee is not entitled to priority selection when the employer hires permanent employees. However, most countries recognise the fixed-term employee’s right to be informed about job vacancies as well as the right to access to appropriate training opportunities, when possible.

9. Information and consultation Typically, the employer has the obligation to inform the workers’ representatives that fixed-term employees will be hired. This obligation can be extended to include the grounds justifying the decision to hire fixed-term workers, the number of fixed-term employees the employer plans to hire, the ratio of fixed-term to permanent employees, and the expected duration of their employment. In exceptional cases, the workers’ representatives are not entitled to being informed about the planned or current number of fixed-term employees in the undertaking. 10. Thresholds In all EU Member States, fixed-term employees must be counted when calculating the number of total workers employed by the undertaking. 11. Role of collective bargaining agreements In most countries, the social partners cannot dispose of the statutory provisions on fixed-term employment contracts. In some countries, however, collective bargaining agreements may derogate from statutory laws on fixed-term employment. I.—2. Part-time work 1. Legal definition and formal requirements Typically, part-time work is defined as a deviation from the regular working time of a full-time employee; in most countries, the standard full-time work week is 40 hours. Usually, no formal requirements exist to conclude a part-time employment contract other than those applicable to the conclusion of full-time employment contracts.

Restatement Text  xxvii

Often, part-time employment contracts must be concluded in writing.

2. Opportunities for and right to part-time work The law often requires employers to accommodate, as far as possible, employees’ requests to work part time.



In most countries, there is no general right to part-time work as such; the employer is generally not required, upon the employee’s request, to change the working time stipulated in his/her employment contract. Certain rights to part-time work are often provided to promote the work-life balance.

3. Part-time workers’ right to extension of working time Only in exceptional cases and under specific conditions are employers required to meet a part-time worker’s request to work full time. Employers are usually expected—to the extent possible—to take such requests into consideration. Only in exceptional cases do part-time workers enjoy priority when a full-time job vacancy becomes available in the enterprise. 4. Rights and status of part-time workers Part-time workers usually have the right to equal treatment vis-à-vis comparable full-time workers. The pro rata temporis principle usually applies to part-time workers’ entitlements. For certain entitlements, such as annual leave, the pro rata temporis principle might not apply in exceptional cases. The general rules of protection against dismissal normally apply to part-time workers as well. Provisions often provide that an employee’s refusal to transfer from part-time to full-time work or vice versa may not in itself be a valid reason for dismissal. 5. Information and consultation The employer is often required to share appropriate information and communicate with employee representatives on issues concerning part-time work in the enterprise. No special regulations on the information and consultation of part-time workers usually exist.

xxviii  Restatement Text 6. Collective bargaining agreements Typically, the principle of favourability applies, which implies that the statutory rules on workers’ benefits can be modified in collective bargaining agreements. However, collective agreements play a limited role in the regulation of part-time work.

Collective agreements may, however, cover certain aspects of part-time work.

I.—3. Temporary agency work 1. Definition Temporary agency work is carried out by an employee who, despite having been formally hired by a temporary work agency, performs his/her activity to the benefit of and under the direction of a third party (user undertaking). 2. The contractual relationship between the temporary agency worker and the temporary work agency a. Legal classification of the contractual relationship between the temporary agency worker and the temporary work agency Typically, the relationship between the temporary agency worker and the temporary work agency is classified as an employment relationship. In exceptional cases, temporary agency work consists of a tripartite employment relationship, under which the temporary agency worker has an employment relationship with two employers, namely the temporary work agency and the user undertaking. In some cases, the law does not explicitly qualify the contractual relationship between the temporary agency worker and the temporary work agency. The contractual relationship between temporary agency workers and temporary work agencies can be determined for a fixed term or for an indefinite period. In some countries, derogations from the regulations on fixed-term employment are provided for temporary agency work. b. General employer’s prerogatives and obligations In the employment relationship between a temporary work agency and a temporary agency worker, the former is usually entitled to all the rights and prerogatives

Restatement Text  xxix





of an employer, while also assuming the obligations of an employer. The temporary agency worker is usually entitled to all the standard rights and obligations of an employee. Nevertheless, given the trilateral structure of temporary agency work, the prerogative to manage and monitor the worker’s performance is transferred to the user undertaking. Generally, the temporary work agency is entitled to exert disciplinary power. Typically, the temporary work agency has the obligation to inform the employee in writing about the details of the work s/he is required to perform for the user undertaking. The temporary work agency usually has exclusive competence to decide to dismiss a worker and to give notice. Dismissal regulations only partially apply to temporary agency workers in exceptional cases or not at all.

3. Contractual relationship between the temporary work agency and user undertaking a. The definition and content of the contractual relationship between the temporary work agency and user undertaking Typically, the relationship between the temporary work agency and the user undertaking is based on a civil/commercial law contract according to which the temporary work agency agrees to place one or more employees at the disposal of a user undertaking. In many countries, the contract between the temporary work agency and the user undertaking must be concluded in writing. The law also often specifies certain contractual clauses that must be mandatorily included in the contract. It is very often established that any clause between the temporary work agency and the user undertaking preventing the conclusion of an employment relationship between the user undertaking and the temporary agency worker is null and void and/or not enforceable. In exceptional cases, no requirements and substantive content-related provisions of the contract between the temporary work agency and the user undertaking are established. 4. Relationship between the temporary agency worker and user undertaking a. Legal qualification of the relationship between the temporary agency worker and the user undertaking

xxx  Restatement Text

The relationship between the temporary agency worker and the user undertaking does not typically rely on a contract between the two parties, but rather on the combination of the contractual relationships that exist between the temporary agency worker and the temporary work agency, on the one hand, and between the temporary work agency and the user undertaking, on the other. b. Rights and obligations Often, the user undertaking is vicariously or subsidiarily liable vis-à-vis the worker for the remuneration s/he is entitled to for the work performed during the assignment at the user undertaking. In some cases, the user undertaking and the agency are jointly liable for the payment of wages and social security contributions of the temporary agency worker. In exceptional cases, the user undertaking does not have any obligation for the remuneration due to the worker for the work performed in its favour. Typically, the law stipulates that the user undertaking is responsible for compliance with occupational health and safety regulations vis-à-vis temporary agency workers. In some countries, the temporary work agency must ensure that the worker has completed the relevant training, and must inform the workers of any risks related to health and safety generally connected with the activity at the user undertaking before the beginning of the assignment. c. Duration In some countries, it is possible to permanently assign a worker to a user undertaking; in other countries, the assignment may only be temporary. In exceptional cases, the law establishes a maximum number of temporary agency workers the user undertaking may hire for an indefinite period. 5. Limits and prohibitions Typically, temporary agency work is prohibited under certain circumstances. Such circumstances might arise: 1) when the activity is highly hazardous for the health and safety of workers; 2) when the user undertaking has initiated collective redundancies and intends to replace the redundant employees with temporary agency workers; 3) when the temporary agency workers are to replace workers who are on strike.

Restatement Text  xxxi 6. Registration, licensing and financial guarantees Often, the operation of a temporary work agency requires an official permit, licence or registration. Only in exceptional cases are temporary work agencies required to present financial guarantees. 7. Equal treatment and other rights Typically, temporary agency workers are entitled to equal treatment. This means that their basic working conditions shall, for the duration of their assignment at a user undertaking, be at least equivalent to those that would apply if they had been directly recruited by that undertaking to occupy the same post. Normally, temporary agency workers are entitled to access collective facilities and vocational training; however, derogations, when justified on objective grounds, might apply. Limitations to temporary agency workers’ right to strike are often provided for. 8. Use of temporary agency workers during a strike The use of temporary agency workers to substitute for workers who are on strike is often prohibited.

xxxii

Restatement II: Comparative Overview The following is an overview of the findings drawn from the country reports. The differences in the regulatory models will thereby become more visible. Although not all countries participating in the Restatement of Labour Law in Europe project are Member States of the EU or candidate countries, the comparative overview took into account a number of non-members to provide a picture that is as broad as possible. Moreover, the comparative overview includes the EU legal framework, namely the partial harmonisation of the three atypical forms of employment compared in this report, which are regulated in the following directives: Directive 1999/70/EC on fixed-term employment contracts,1 Directive 1997/81/EC on part-time work2 and Directive 2008/104/EC on temporary agency work.3 It should, however, be noted that the main purpose of this comparative overview is to shed light on national legal systems. This is why neither the directives nor the case law of the Court of Justice of the European Union (CJEU) will be analysed. I.  FIXED-TERM WORK

A.  Legal Definitions A fixed-term employment contract is an employment contract in which the parties mutually agreed on a term by which the contract will terminate. Nonetheless, when considering the end of fixed-term contracts, two types of such contracts must be examined separately: contracts in which the term is fixed according to the calendar, and contracts whose duration depends on the nature, purpose, or quality of the work to be provided. The latter will be referred to in the following as ‘fixed-term contracts with a term limited by purpose’. 1  Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, [1999] OJ L175, 10 July 1999, p 43. 2  Council Directive 1997/81/EC of 15 December 1997 concerning the framework agreement on part-time work concluded by UNICE, CEEP and the ETUC, [1998] OJ L14, 20 January 1998, p 9. 3  Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work, [2008] OJ L327, 5 December 2008, p 9.

xxxiv  Restatement II: Comparative Overview (i)  Contracts with a Term Limited According to the Calendar In many countries, fixed-term contracts end automatically or eo ipso. For instance, in Germany, a fixed-term contract automatically terminates as soon as the end of the period of time initially agreed upon by the parties (contract of employment fixed according to the calendar) has been reached. The employer is not required to provide any further information to the employee. The same applies in Austria, Belgium, Denmark, Estonia, ­Finland, Greece, Iceland, Lithuania, Poland, Romania, Slovakia, Slovenia, Sweden, Switzerland and Turkey. In some countries, however, a fixed-term contract only expires if the employer gives advanced notice. This is the case, for instance, in Spain, where the employer must give the fixed-term employee 15 days’ notice in advance if the contract was concluded for a year or more. In Norway, the employer must notify the fixed-term employee at least one month before the end of the contract, if the fixed term contract was concluded for a period exceeding one year. In Serbia, a fixed-term contract ends once the term agreed between the parties has been completed. This does not, however, occur automatically and the employer must issue a ‘decision’, namely a written document notifying the employee of the termination of the contract. Montenegro follows a similar approach. In Ireland, fixed-term contracts end upon the expiry of the set term without any further intervention required from the employer. Nevertheless, if the fixed-term contract is not to be renewed, the requisite period of notice must be given. In that case, the employer must demonstrate that substantial grounds exist justifying the non-renewal of the contract. Likewise, in the United Kingdom, fixed-term contracts normally end automatically when the agreed end date is reached; ie the employer does not have to give notice. If the contract is not renewed, the worker is considered to have been ­dismissed. However, if the employee has worked for the employer for two years or more, the employer must demonstrate that a ‘fair’ reason exists not to renew the contract. (ii)  Contracts with a Term Limited by Purpose In Austria, Luxembourg and Estonia, fixed-term contracts limited by purpose automatically end when the purpose for which the contract was ­concluded has been achieved. There is no need for the employer to notify the employee. In Germany and Latvia, on the other hand, the law explicitly provides that a contract of employment with a term limited by purpose ends as soon as that purpose has been achieved, but not sooner than two weeks after the employer has informed the employee that the purpose of the contract has been achieved. Failure to notify the employee in writing

Restatement II: Comparative Overview  xxxv in due time does not, however, automatically result in the conversion of the fixed-term contract into one of indefinite duration. In Denmark, the employer must inform the fixed-term worker about the estimated time of termination. If the worker is not informed thereof, the contract will be ­considered to be one of indefinite duration. According to the law in the Republic of North Macedonia (RNM), the employer is required to notify the employee in writing that the purpose for which the contract was concluded has been fulfilled. This notification serves as a ‘reminder’ that the employment relationship is ending and does not have a constitutive nature. B.  Formal Requirements Legal systems differ with regard to the formalities required to conclude a fixed-term employment contract. (i)  Written Form for All Employment Contracts In many countries, employment contracts must generally be concluded in writing. This is the case, for instance, in Croatia, Estonia, Hungary, ­Luxembourg, RNM, Poland, Romania, Serbia, Slovenia and Slovakia.4 In the majority of these countries a contract is deemed to have been concluded for an indefinite period if it was not concluded in writing. (ii)  Requirement of Written Form for Fixed-Term Contracts A fixed-term contract must be concluded in writing in Belgium, Norway and Turkey. In Spain, fixed-term contracts must be concluded in writing as well, with the exception of contracts concluded for temporary business or to meet organisational needs for a period of less than four weeks. The contract must include information on the objective reasons or intended purposes justifying the fixed-term nature of the employment relationship. In some countries, it is explicitly provided that certain components of fixed-term contracts must be made in writing. This is the case, for instance, in Portugal, where specific components of the fixed-term employment ­contract must be agreed in writing, covering, inter alia, the set term and the grounds/motives justifying the duration of the contract. In France, fixedterm contracts must be concluded in writing as well. The law enumerates a 4  See B Waas and GJJ Heerma van Voss, Restatement of Labour Law in Europe, Vol 1, ‘Comparative Overview’ (Oxford, Hart Publishing, 2017), p xxix.

xxxvi  Restatement II: Comparative Overview list of details that must be included in the contract. Failing that, the contract will be deemed to have been concluded for an indefinite period and can be reclassified as a permanent employment contract. In Germany, the agreement of a fixed-term for an employment contract must be made in writing, whereas the contract as such can be concluded orally. The legal situation in Italy is similar: if the duration of the employment relationship exceeds 12 days, the term must be specified in the contract in writing; otherwise, it will be considered a contract of indefinite duration. In the Czech Republic, the parties’ agreement on the duration of the employment relationship can be specified in writing in an employment contract, in a separate contract or in an annex to the employment contract. (iii)  Non-requirement of Written Form for Fixed-term Contracts In some countries, there is no requirement to conclude a fixed-term contract in writing. This, for instance, is the case in Austria, Cyprus, Denmark, ­Finland, Greece, the Netherlands, Sweden and Switzerland. However, when no requirement exists to conclude the contract in writing, the employer may face difficulties proving that the contract was concluded for a fixed term only. In Ireland, the law does not require fixed-term contracts to be agreed in writing, but the law explicitly provides that the employer shall inform the fixed-term employee in writing ‘as soon as practicable’ of the objective condition that determines the contract’s duration; ie whether it will end (a) on a specific date, or (b) when a specific task is completed, or (c) when a specific event occurs. In the United Kingdom, an employee may request a written statement confirming that the contract of employment is no longer a fixed-term contract. The employer must, within 21 days, issue such a statement or provide reasons why the term of the contract will remain fixed. The objective grounds for the continued engagement of the worker on a fixed-term basis must be extensively elaborated by the employer. C.  Admissibility of Fixed-Term Contracts of Employment As Directive 1999/70/EC does not provide any rules on the admissibility of single fixed-term contracts,5 it is hardly surprising that—even within the EU—legal systems on such contracts differ considerably. In many countries, fixed-term contracts can only be concluded if they are based on objective grounds. If the fixed-term contract must be based 5 The Directive aims at preventing abuse arising from the use of successive fixed-term employment contracts or relationships by requiring Member States to introduce certain measures: see below under section I.D.

Restatement II: Comparative Overview  xxxvii on an objective ground, some countries provide for an upper limit in terms of the number of fixed-term contracts that can be concluded while others do not. (i)  Requirement of Objective Ground In many countries, the existence of an objective reason is necessary to conclude a fixed-term contract (inter alia, Spain, Turkey and Denmark). This requirement applies not only to the initial contract but to successive fixed-term contracts between the same parties as well. Objective reasons for concluding a fixed-term contract must also be specified in Finland, but not if the contract is concluded upon the initiative of the employee. (ii)  Requirement of Objective Ground and Maximum Duration In Montenegro and Estonia, a fixed-term contract can only be concluded if the nature of the work for which the contract is agreed is provisional. Estonian law does not provide an exhaustive list of cases in which a fixedterm contract can be concluded, but the employer has to follow general guidelines, such as the temporary nature of the work, seasonal work, or a temporary increase in the amount of work. Objective reasons are also necessary in Russia and Latvia. In Russia, Latvia and Estonia, a maximum period of five years further limits the use of fixed-term contracts, while in Montenegro employers cannot conclude one or more continuous/successive fixed-term contracts with the same employee for more than 24 months in total. In Malta, the employer is not required to state objective reasons for concluding a fixed-term contract if its duration is up to four years. In ­Norway, the law stipulates five reasons that justify concluding a fixed-term contract. Temporary appointments may be agreed for a maximum period of 12 months. Such agreements may be concluded with a maximum of 15 per cent of the undertaking’s employees. In France, a fixed-term contract can only be concluded for the completion of a temporary task, and only in cases specified by law. Moreover, fixed-term contracts may not, in principle, exceed 18 months, including any possible renewals. A fixed-term contract may be agreed for a total of 24 months in certain cases defined in the law. In Slovenia, the law provides a list of ‘objective grounds’ for the conclusion of fixed-term contracts. Additional grounds can be included in collective agreements. In any event, a fixed-term contract may have a maximum duration of two years. In Portugal, fixed-term contracts must be based on objective grounds and shall not exceed a total of three years (although lower limits of 18 months or two years may apply under specific circumstances). Fixed-term contracts may not be renewed more than three times. However, contracts that expire with the occurrence of a specific event or completion of a certain task may not exceed six years in total.

xxxviii  Restatement II: Comparative Overview (iii)  Maximum Duration and Non-requirement of Objective Ground In Iceland, the maximum duration of a fixed-term contract is two years, while in Bulgaria the maximum duration is three years, unless otherwise stated in law. In Slovenia, the employer may not conclude one or more successive fixed-term employment contract(s) for the same work for an uninterrupted period of more than two years. Fixed-term contracts can be concluded for a period that is either longer or shorter than two years only in specific cases. In Sweden, the maximum duration of a fixed-term contract is two years within a five-year period, before it is automatically converted into a permanent one. In Poland, the maximum duration of a fixed-term contract is 33 months, while it is two years in the Netherlands and three years in the Czech Republic. In Italy, no grounds for concluding a fixed-term contract need to be specified if the contract’s term does not exceed 36 months. If the employer and employee decide to conclude an additional fixed-term contract that would result in the 36-month limit being exceeded, the local labour office would have to authorise such an extension for a maximum additional duration of 12 months. In the RNM, the maximum term of a fixed-term contract is five years. The maximum term of five years does not apply if the fixed-term contract is concluded to substitute for an absent worker and it can thus be concluded for a longer period of time. In Latvia, the total duration of a fixed-term employment contract may not exceed five years, including extensions, unless a specific law stipulates another maximum duration. In Hungary, a maximum period of five years applies to fixed-term contracts without exception. In Serbia and Lithuania, a maximum duration of two years applies, which may be extended under certain circumstances. However, Lithuanian law provides that if the employee’s work tasks change, the maximum duration of consecutively concluded fixed-term contracts shall not exceed five years. This restriction, however, is not applicable if the employee is employed to temporarily substitute for another worker. Additionally, employers in Lithuania are not allowed to conclude fixed-term employment contracts with more than 20 per cent of the total number of employees in the company for work of a permanent nature. (iv)  No Maximum Duration, Non-requirement of Objective Ground In Austria, Belgium, Ireland, Slovakia and Croatia, in principle the conclusion of a fixed-term contract neither requires the existence of an objective ground, nor is it limited by a maximum duration of the term. (v)  Dual-Tier Approach In Germany, a mix of the two approaches applies (requirement of an objective ground and maximum duration). The basic idea is that ‘short-term’

Restatement II: Comparative Overview  xxxix contracts can be concluded without the existence of objective grounds, while ‘long-term contracts’ need to be based on objective grounds. The law provides that an objective ground exists, inter alia, if there is a temporary need for additional manpower; if the worker substitutes for an employee who is temporarily absent; or if the employer is testing the worker (probation period). A fixed-term contract is admissible without the existence of an objective ground if the duration of the overall employment relationship does not exceed two years. Within this period, a contract may be extended three times at most. Likewise, in Serbia, one or more fixed-term employment contracts can be concluded for a period which, with or without interruptions, may not exceed two years. In exceptional cases the period can exceed two years if objective grounds that are specified in the law (ie replacement of a temporarily absent employee) justify a longer duration. In the United Kingdom, if an employee has been continuously employed for four or more years either under a single (or successive) fixed-term contract(s), the contract will usually be converted into a permanent one, unless the employer can demonstrate the existence of objective grounds that justify the extension of the fixed-term employment contract. D.  Prevention of Misuse of Successive Fixed-Term Contracts As mentioned above, Directive 1999/70/EC aims at preventing abuses arising from the use of successive fixed-term employment contracts or relationships. Therefore, it comes as no surprise that the EU Member States share a common approach to successive fixed-term contracts. According to Clause 5(1) of the Framework Agreement, Member States can choose between one or more of the following measures to prevent the abuse of successive fixed-term contracts: objective grounds justifying the renewal of such contracts or relationships (option a); the maximum total duration of successive fixed-term employment contracts or relationships (option b); the number of renewals of such contracts or relationships (option c). No further detailed requirements are stipulated for the material reason to conclude ­successive fixed-term contracts; nor does the Agreement state a specific maximum permissible period of limitation or a specific number of permissible extensions.6 6 It should be noted, however, that the CJEU has defined certain criteria for the interpretation of these requirements. See, eg CJEU, 4 July 2006—Case C-212/04 (Konstantinos Adeneler and Others v Ellinikos Organismos Galaktos (ELOG)); CJEU, 26 January 2012— Case C-586/10 (Bianca Kücük v Land Nordrhein-Westfalen), ECLI:EU:C:2012:39; CJEU, 26 February 2015—Case C-238/14 (European Commission v Grand Duchy of Luxembourg), ECLI:EU:C:2006:443; CJEU, 14 September 2016—Case C-16/15 (María Elena Pérez López v Servicio Madrileño de Salud (Comunidad de Madrid)); CJEU, 28 February 2018—Case C-46/17 (Hubertus John v Freie Hansestadt Bremen), ECLI:EU:C:2018:131.

xl  Restatement II: Comparative Overview Based on the EU regulatory model, various (combination) possibilities to prevent abuse of successive fixed-term contracts exist. (i)  Objective Grounds Justifying Renewals Some countries only allow the renewal of fixed-term contracts when justified on objective grounds. They include countries where the existence of an objective ground is already required for the initial (ie for each individual) fixed-term contract (listed under section I.C.(ii) above), and which have not chosen a ‘combination model’ (see below). Successive fixed-term contracts need to be based on an objective ground in Denmark, Hungary and Norway as well. In Greece, renewals of fixed-term contracts in the private sector must be justified by objective reasons. Fixed-term contracts will be considered ‘successive’ if they are concluded between the same employer and worker under the same or similar terms of employment and are not separated by a period longer than 45 days‚ including non-working days. An objective reason for concluding a renewal is justified by the type or activity of the employer or undertaking, or by special reasons or needs, provided that those ­circumstances are (directly or indirectly) apparent from the contract. In Switzerland, successive fixed-term contracts are admissible; however, they are limited by the general prohibition on circumventing (inter alia) protective provisions relating to notice periods. In such cases, the courts examine the existence of an objective reason (eg substitution of an employee who is on sick leave). (ii)  Maximum Total Duration Some countries aim to prevent an abuse of fixed-term contracts by setting a maximum total duration of successive fixed-term employment contracts or relationships. They include most of the countries listed under section I.C.(iii), where in the majority of cases, the maximum duration does not only apply to initial fixed-term contracts but also to successive contracts. (iii)  Restricted Number of Renewals As mentioned above, the requirement in Russia for the existence of an objective reason, as well as the maximum duration of five years, limits the conclusion of an individual fixed-term contract. However, the law stipulates neither a maximum overall duration of succeeding fixed-term contracts, nor a restriction on the maximum number of successive fixed-term contracts. Nonetheless, according to case law, employment contracts may be deemed to have been concluded for an indefinite period in cases of multiple successive short-term contracts for similar work.

Restatement II: Comparative Overview  xli (iv)  Combination Models In Cyprus, a combination of (i) and (ii) is applied: if the employee has previously worked on a fixed-term contract for a total period of 30 months or more, it will subsequently be considered a contract of indefinite duration, unless the employer proves that the employment of the said worker for a fixed-term can be justified on objective grounds. In Croatia, where the conclusion of the initial fixed-term contract does not require the existence of an objective ground, nor is its duration restricted, a combination of option (i) and (ii) applies to successive fixed-term contracts. In France, an employer may not have recourse to successive fixed-term contracts to fill a position until a period equal to one-third of the duration of the initial contract, including possible renewals, has passed. However, the ‘waiting’ period between the initial fixed-term contract and the conclusion of a successive one is not mandatory if, inter alia, the employee who was being substituted is again absent from work, if urgent work is necessary for safety reasons, or the employment is seasonal. In Ireland, where no preconditions or requirements exist to conclude a single fixed-term contract, a combination of (i) and (iii) exists for successive ones. Where an employee is employed on two or more continuous fixedterm contracts, the aggregate duration of these contracts may not exceed four years. However, this does not apply to the renewal of a fixed-term contract beyond four years if objective grounds justify such renewal. In Austria, no explicit statutory provision prohibits the extension of a fixedterm contract or the conclusion of successive fixed-term contracts. However, long-standing case law regards such practices as an evasion of dismissal protection. According to the courts, certain objective grounds such as the temporary nature of the work and replacement of an employee justify the conclusion of successive fixed-term contracts. The more often a contract is renewed, the more rigorously the courts apply the test of justification to that fixed-term contract A combination of (ii) and (iii) is used in the Czech Republic, in Italy, in the Netherlands and in Poland. Polish law, for example, provides for a maximum total duration (33 months) and a total number of extensions (three). In certain situations, however, it is admissible to conclude a fixedterm contract with a duration of more than 33 months or to conclude a fourth fixed-term contract. In Slovakia, a fixed-term employment relationship may be agreed on for a maximum of two years and may, in principle, be extended or renewed only twice within a two-year period (without the existence of objective grounds). A further extension or renewal of a fixedterm employment relationship for more than two years can only be agreed in specific cases such as the substitution of an employee who is on maternity leave. In Finland, there is no (clear-cut) ‘quantitative’ restriction on successive fixed-term contracts. However, it is prohibited to use consecutive

xlii  Restatement II: Comparative Overview fixed-term contracts when the overall duration of fixed-term contracts or the sum of such contracts indicates a permanent need for labour. In Luxembourg, all measures mentioned in Clause 5(1) of the Framework Agreement have been transposed. Firstly, a fixed-term employment contract may only be concluded if it is justified by objective reasons. Secondly, the maximum total duration of successive fixed-term contracts is 24 months. Thirdly, fixed-term contracts must meet certain requirements to be renewed (extension of the initial contract) and for succession (conclusion of a new contract following the initial contract). Successive contracts must be based on the existence of objective reasons. Furthermore, once a fixed-term contract has ended, the employer cannot conclude another fixed-term contract for the same post before the expiration of a waiting period of one-third of the total duration of the previous contract (renewals included), irrespective of whether this contract is concluded with the same or with a different employee. A renewal of the contract is only possible if the option to do so was provided for in the initial contract, generally for no longer than an overall total duration of two years, and only if the ground justifying the initial limitation still exists. A contract can generally not be renewed more than twice. In Estonia, where fixed-term contracts must be based on objective grounds and may not exceed a total duration of five years, the contract cannot be extended more than once. However, this restriction does not apply if the fixed-term employment contract is concluded for the substitution of an employee (eg during maternity leave). A combination of the three options also exists in Belgium, Germany and Romania. E.  Dismissal of Fixed-Term Worker Legal systems also differ with regard to whether and under what conditions a fixed-term worker can be dismissed before the expiration of the term. In Austria, a fixed-term contract cannot, in principle, be terminated by giving notice. A contract with a term of more than five years or a contract of indefinite duration can be terminated by giving (six months’) notice. In all other cases, terminations are only possible if this has explicitly been agreed on. In France, a fixed-term contract cannot be ordinarily terminated, either by the employer, or by the employee. The same applies in Luxembourg. However, the indemnities the employer will be ordered to pay in case of unfair dismissal are limited by law; ie they are not higher than the costs the employer would have if he or she ordinarily terminated a contract of indefinite duration. In Bulgaria, fixed-term contracts can be terminated on the same grounds as permanent contracts. The same applies, for instance, in Slovakia, ­Slovenia, Romania and Russia. In Estonia, when an employer dismisses a fixed-term worker before the expiration of the term, he or she must pay all the wages the

Restatement II: Comparative Overview  xliii employee could have been entitled to until the date of expiry of the contract. In Finland, a fixed-term contract can be terminated by giving notice. The reasons for dismissing a fixed-term worker are, however, restricted. Dismissals for business-related reasons are in principle, not admissible. Reasons for terminating a fixed-term contract are also limited in Hungary. In Poland, a fixed-term contract can be ordinarily terminated at any time. Moreover, there is no dismissal protection, since such protection only applies to employment contracts of indefinite duration. In Belgium, fixed-term employment contracts can be terminated by giving notice before the expiry of the term. This, however, is only possible in the first half of the agreed duration of the contract, and only for periods that do not exceed six months, whilst respecting the legal notice period provided by law for contracts of indefinite duration. In case of justified successive fixed-term contracts, the possibility of premature termination only applies to the first contract. F. Conversion of Fixed-Term Contract into a Contract of Indefinite Duration Since permanent employment contracts are generally considered the ‘standard employment relationship’,7 it is not surprising that many countries provide for the conversion of a fixed-term employment relationship into one of indefinite duration for violations of the law on fixed-term contracts or if the agreed term is exceeded. The latter is the case, for instance, in Bulgaria, where an irrebuttable presumption of a contract of indefinite duration applies if work is performed for no less than five working days beyond the expiration of the fixed-term contract, the employer does not object in writing, and a vacant job is available. A similar provision applies in Estonia and Slovakia. In Croatia, the Czech Republic and Slovakia, the employment relationship is deemed to have been concluded for an indefinite duration if the employee continues to perform work after the expiry of the agreed term with the employer’s knowledge. In Latvia, a fixed-term employment contract will be considered a contract of indefinite duration if neither of the parties expresses the wish to terminate the employment relationship upon the expiration of the contract’s term and if it simply continues in practice. In Portugal, the contract will be renewed (unless the maximum number of possible renewals has already been reached) or may even be classified as a contract of indefi7  See also General Consideration 6 of the TUC-UNICE-CEEP Framework Agreement on fixed-term work: ‘Whereas employment contracts of an indefinite duration are the general form of employment relationships and contribute to the quality of life of the workers concerned and improve performance’.

xliv  Restatement II: Comparative Overview nite duration, if it continues beyond its expected duration. In the RNM, it suffices for the employee to continue working for the employer beyond the expiration of the initially agreed term (even if only for one single day) for the contract to be transformed into one of indefinite duration. The employee must, however, accept the transformation of his or her fixed-term employment relationship into one of indefinite duration. In the majority of countries, if the legal requirements for (the initial or successive) fixed-term contract(s) are not met, the employment relationship is transformed into a permanent one. In fact, a fixed-term employment contract is presumed to have been concluded for an indefinite duration if the time limitation is in breach of the law (eg Austria, Belgium, Bulgaria, Croatia, Cyprus, Estonia, RNM, Germany, Ireland, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Romania, Russia, Serbia, ­Slovakia, Slovenia, Spain, Sweden, Switzerland and Turkey). In the United Kingdom, in case of violation of the legal limits for the initial or successive fixed-term contracts, the employee may request a written statement from the employer confirming that the contract of employment is no longer for a fixed term. The employer must within 21 days either issue such a statement or provide reasons why the contract remains fixed. These reasons must be based fully on objective grounds. In contrast, in Denmark, when successive fixed-term contracts are not based on objective grounds, the employee is usually (only) entitled to compensation. Similarly, in Finland, if there are no justified reasons for concluding a fixed-term contract, the end of that contract is considered to amount to a termination of the employment relationship and the employee may be entitled to compensation. It should be noted that in France—irrespective of the question of the conversion of the fixed-term contract into a permanent one—fixed-term employees must receive an indemnity if their contractual relationship with the company is not extended by concluding a permanent contract. Such indemnity amounts to 10 per cent of the fixed-term employee’s overall gross remuneration throughout the duration of the fixed-term employment ­relationship, unless more favourable provisions have been established in either the contract or a collective agreement. G.  Rights of Fixed-Term Workers (i)  Equal Treatment According to Clause 4 of the Framework Agreement, the employment ­conditions of fixed-term workers shall not be less favourable than those applicable to comparable permanent workers solely because they have a fixed-term contract or relationship, unless differentiated treatment is

Restatement II: Comparative Overview  xlv j­ustified on o ­ bjective grounds. Where appropriate, the principle of pro rata temporis shall apply. This principle seems to be the basis for equal treatment not only in all Member States of the EU, but also in other countries (for example Iceland, RNM, Norway, Turkey). In Montenegro, employees who have concluded a fixed-term contract are entitled to the same rights as an employee who has an employment contract of indefinite duration. Many rights are granted in proportion to the time spent at work. In Serbia and Russia as well, fixed-term employees must be treated equally with permanent employees. Distinctions do, however, exist for fixed-term contracts that are shorter than two months. In Switzerland, there is no explicit provision guaranteeing the equal treatment of fixed-term workers. The general principle of equal treatment may be deduced from the employer’s duty of care, but the principle of equal treatment in employment law carries little weight, one of the reasons being that the freedom of contract rule usually prevails over the principle of equal treatment. (a)  Comparable Permanent Worker Clause 3 of the Framework Agreement defines the term ‘comparable permanent worker’ as a worker with an employment contract or relationship of indefinite duration, in the same establishment, engaged in the same or similar work/occupation, due regard being given to the employee’s qualifications/ skills. Some countries do not specify the term ‘comparable employee’ in more detail (Austria, Latvia, Luxembourg, Slovenia), while many countries have transposed the definition in Clause 3 directly into their law (eg Bulgaria, Croatia, Cyprus, Denmark, Romania, Slovakia, United Kingdom). Turkey defines ‘comparable employee’ in accordance with Directive 1999/70/EC as well. The definition differs slightly in Ireland, because it is primarily linked to the employer and not to the establishment. (b)  Components Covered Directive 1999/70/EC does not specify in detail what equal ‘employment conditions’ means. However, the interpretation of the term by the CJEU has had a strong impact on the national legal systems in the Member States. For example, the law in the United Kingdom covers all contractual terms, including pay and pensions (following the CJEU decisions in Del Cerro Alonso and Impact).8

8 CJEU, 13 September 2007—Case C-307/05 (Yolanda Del Cerro Alonso v OsakidetzaServicio Vasco de Salud), ECLI:EU:C:2007:509; CJEU, 15 April 2008—Case C-268/06 (Impact v Minister for Agriculture and Food and Others), ECLI:EU:C:2008:223.

xlvi  Restatement II: Comparative Overview In the Netherlands, the non-discrimination provision applies to all working conditions stipulated in writing and orally, in collective agreements as well as in individual employment contracts. Dutch law does not distinguish between primary (eg remuneration or annual leave) or secondary working conditions (eg training and bonuses). Stipulations on the termination of the employment contract fall within the scope of working conditions and are thus covered by the non-discrimination clause. In Hungary, the term ‘remuneration’ must be broadly interpreted, too, to include all payments related to the employment relationship. The courts in Denmark include eg maternity leave, access to flexible working hours arrangements, as well as remuneration. (c)  Justification of Unequal Treatment Certain requirements for determining ‘objective reasons’ have been developed by the CJEU.9 This notion has been further substantiated in only a few Member States of the EU. In most countries, there is no statutory definition (for example, in Austria, Luxembourg, Malta and Finland). In Estonia, neither case law nor literature has provided further clarification. However, objective grounds can arise either from the law or a collective agreement. Lithuanian legislation also does not include an explicit provision that a difference in treatment of employees on fixed-term contracts may be justified on objective grounds. One example of a statutory definition can be found in Ireland. The law provides that the reason for concluding a fixed-term contract shall not be considered an ‘objective ground’ unless it is based on ‘considerations other than the status of the employee concerned as a fixed-term employee’ and unless the less favourable treatment of that employee ‘is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose’. According to United Kingdom legislation, discrimination is justified on objective grounds if the conditions of the fixedterm employee’s contract of employment taken as a whole are at least as favourable as those of a comparable permanent employee’s employment contract. In Austria, some differentiations are provided in the law. For instance, if the duration of the employment relationship is less than one month, the employer does not have to issue a written statement of terms or pay contributions to the severance pay fund. 9 See eg CJEU, 8 September 2011—Case C-177/10 (Francisco Javier Rosado Santana v ­ onsejería de Justicia y Administración Pública de la Junta de Andalucía), ECLI:EU:C:2011:557; C 13 September 2007—C-307/05 (Yolanda Del Cerro Alonso v Osakidetza-Servicio Vasco de Salud), ECLI:EU:C:2007:509.

Restatement II: Comparative Overview  xlvii (d)  Consequences of Discrimination In the Czech Republic, when a fixed-term employee is discriminated against, he or she can file a claim for the ‘discriminatory behaviour [to] end, its consequences [to be] remedied and for adequate compensation, including monetary compensation’. In Denmark, the employer must also pay ­compensation if the principle of equal treatment has been breached. The compensation is set at the discretion of the court in accordance with the specific circumstances of the case. In Estonia, as in most other countries, the employer does not need to prove that his or her aim was to discriminate against a given worker. To determine whether a fixed-term employee was discriminated against, it ­suffices to demonstrate the existence of unequal treatment and to consequently assess whether the unequal treatment was justified or not. In Turkey, the employee may demand compensation in the maximum amount of four months’ wages. The burden of proof in claims of violation of the law by the employer rests on the employee. However, if the employee can substantiate the likelihood of such a violation having occurred, the ­burden of proof shifts to the employer. (ii)  Employment Opportunities (a)  Preferential Recruitment for Permanent Positions There are only a few countries in which a fixed-term employee enjoys priority when a full-time job vacancy becomes available within the company. Italy is one example. If not otherwise provided in specific collective agreements, a fixed-term employee who has been employed for more than six months has priority if a full-time job vacancy becomes available within the company within 12 months from the termination of his or her fixedterm employment contract, and if that new contract relates to the same activity. In Portugal, the worker enjoys a priority right if, within 30 days after termination, the employer advertises a vacancy for work that is identical to the work previously performed by the fixed-term employee. If the employer violates this right, the fixed-term employee can claim compensation amounting to three months of his or her basic salary. In Sweden, any employee (including those employed on a fixed-term contract) who is made redundant has priority when new posts are created at their previous employer. More specifically, employees enjoy a priority right in situations in which they have been made redundant or have not been offered a renewal of their fixed-term contract for reasons of redundancy. However, the right of priority for new posts only applies to employees who have been employed for at least 12 months over the past three years.

xlviii  Restatement II: Comparative Overview (b)  Information on Job Vacancies According to Clause 6(1) of the Framework Agreement, employers shall inform fixed-term workers about job vacancies that become available in the undertaking or establishment to ensure that they have the same opportunity as other workers to be hired in a permanent position. This duty has been introduced in all EU Member States as well as in the RNM and I­celand. Under Turkish law, there is no duty of the employer to inform his or her employees about any job vacancies; nor is there a right to provide vocational training to fixed-term employees. In Switzerland, fixed-term employees are not entitled to be informed about possible opportunities for permanent employment, either. No statutory provisions in this respect exist in Russia or Montenegro, either. If information on available job vacancies must be provided by the employer, such information could be shared by way of a general announcement at a suitable place in the undertaking or establishment. For example, in the RNM, employers are required to inform fixed-term employees about vacancies by posting a notification in a visible place. However, they are not required to inform or consult workers’ representatives about the number of fixed-term workers employed in the company. In Spain, Lithuania, Romania and Slovenia, the employer can inform workers about available job vacancies by placing a notification at the workplace. The same applies in Ireland. However, according to case law, merely placing an advertisement in a newspaper does not meet the requirements. In Romania, this information must be shared by displaying a notification at the employer’s headquarters. Information not only about existing job vacancies, but also about jobs that will become available in the near future must be shared (for example, if an employee with an open-ended contract has expressed the intention to resign in the future). In Norway, providing such information on the company’s home webpage suffices, while in Finland and Poland, such information must be provided in accordance with the practices generally adopted in the enterprise or workplace. Hence, the use of the intranet may be required. In France, the employer is obliged to inform fixed-term employees about job vacancies for permanent employment within the company, if such an information system already exists for employees with contracts of indefinite duration. In some countries (eg Bulgaria, Romania, Slovakia), the information must also be shared with trade union representatives as well as with workers’ representatives. In Ireland, failure to properly inform fixed-term employees about available job vacancies within the company may give rise to a complaint to the Workplace Relations Commission. In Malta, the employee may file an official complaint against the employer with the Industrial Tribunal if the employer does not properly inform the fixed-term employees in the company about available full-time job vacancies. Furthermore, any person violating these

Restatement II: Comparative Overview  xlix provisions of the law may be criminally prosecuted and, if found guilty, is liable to a fine. The same rule applies in Cyprus. In Iceland, a breach of the duty of information may also result in liability for damages in tort. In many countries, however (eg Latvia, Lithuania, Luxembourg and France), there is neither legislation nor any case law on the legal consequences for an employer who fails to meet his or her obligations. No specific penalty is foreseen in the Netherlands, either. However, civil law penalties (a right to damages, in particular) apply in this regard. (iii)  Access to Appropriate Training Opportunities According to Clause 6(2) of the Framework Agreement, employers should facilitate access to appropriate training opportunities for fixed-term workers ‘as far as possible’ so they can improve their skills and foster their career development and occupational mobility. In Denmark, the employer has a specific duty to actively facilitate—to the extent possible—fixed-term workers’ access to appropriate training opportunities. In the United Kingdom, the right to equal treatment in training opportunities is deemed an important aspect of the right not to be treated less favourably. Access of fixed-term workers to appropriate training opportunities is also provided, inter alia, in Cyprus, Greece, RNM and Denmark. On the other hand, the law in Austria does not provide for an explicit obligation on the employer to facilitate fixed-term workers’ access to appropriate training opportunities. H.  Specific Provisions In many countries, specific rules exist that govern fixed-term employment in certain professions. In Greece, for example, special provisions apply to air transportation and aircraft ground handling services. The conclusion of fixed-term employment contracts in these sectors is considered justified, while in Iceland, inter alia, specific rules apply to civil servants and seamen. It appears that special provisions on fixed-term relationships with artists are the most widespread (Austria, Croatia, Luxembourg, Lithuania, the Netherlands, Estonia) and with academics (Austria, Bulgaria, Croatia, ­Denmark, FYROM, Germany, Iceland, Latvia, Luxembourg, Lithuania, Russia, Spain, Hungary, Italy, Serbia, Slovakia, Sweden, Switzerland). (i) Artists The law in Austria includes a provision according to which a fixed term is automatically extended for another full year if the theatre does not inform the performer in writing that it will not extend his or her contract.

l  Restatement II: Comparative Overview In ­Croatia, artists employed in theatres are entitled to conclude an employment contract of indefinite duration if they have been working for the theatre for 16 years (ballet and other dancers) or for 20 years (other artists). In Luxembourg, artists are generally listed among the professions in which the conclusion of fixed-term contracts is admissible. Occasional workers in the entertainment sector can only be hired for specific projects of limited duration, and the total duration of successive fixed-term contracts may not exceed 24 months. Within this period, the number of renewals is unlimited. Specific rules also apply to performing artists (eg members of orchestras, theatres or dance companies) in Lithuania, Portugal, the Netherlands and Estonia. However, some of these rules only apply to certain groups of a­ rtists, eg those who are employed by a national, state or municipal theatre or a concert hall. Some countries have no specific regulations on the fixed-term employment of artists (eg Bulgaria, Cyprus, the Czech Republic, Finland, Greece and Malta). (ii) Academics Latvian law provides that restrictions on concluding successive fixed-term contracts are not applicable to academic staff, and that a fixed-term employment contract with a duration of six years must be concluded between the dean of a higher education establishment and academic staff members (eg professors, associate professors, docents).10 In Bulgaria, the general rules on fixed-term employment apply to academics as well. However, there is a special rule according to which assistant professors can only conclude fixed-term employment contracts for a maximum duration of four years and then only once. In Denmark, fixed-term contracts of academics employed in research and teaching at higher education institutions funded by the state can be extended twice without the existence of an objective reason. The courts base their evaluation on the type of work being performed. Even if the title and working conditions change, the law will be considered to have been breached if the employee largely performs the same type of work under more than three consecutive fixed-term employments. In I­celand, an employment contract for an academic position may be indefinite or for a predetermined period of up to five years. The fixed-term period of five years may be extended up to a total of seven years, subject to special circumstances. Specific rules on the fixed-term employment of academics

10 As pointed out in the Latvian chapter (Chapter 18), it is questionable whether such a provision complies with Directive 1999/70/EC in the light of CJEU judgment 13 March 2014—Case C-190/13 (Antonio Márquez Samohano v Universitat Pompeu Fabra), ECLI:EU:C:2014:146, because the need for academic staff is fixed and permanent.

Restatement II: Comparative Overview  li also exist in Austria, Croatia, RNM, Germany, Luxembourg, Lithuania, Russia, Spain, Hungary, Italy, Serbia, Slovakia, Sweden, Switzerland, while no specific provisions have been stipulated in Cyprus, the Czech Republic, Finland, Greece and Malta. I.  Information and Consultation In many countries, the employer must inform and consult workers’ representatives in relation to ‘fixed-term work’. However, the specific obligations often differ considerably. In Portugal, the employer must, within five working days, provide both the works council and the trade union with a justification for concluding any fixed-term employment contract, as well as informing them about any termination of such a contract. In Latvia, an employer, in principle, is required to inform workers’ representatives about the possibility of employing fixed-term employees indefinitely. In Austria, Greece, and Iceland, employers must provide information to workers’ representatives about the number of fixed-term employees in the undertaking. In Spain, employers are not only obliged to inform workers’ representatives about the conclusion of new fixed-term employment contracts, but also to give them a ‘basic copy’ of the employment contract. In Cyprus, the law also provides for an employer’s duty to inform workers’ representative bodies. However, given that there are no work councils in Cyprus and that trade unions deal with the majority of matters within a tripartite system, this provision has little, if any, practical application. Even though works councils in the Netherlands have the right of consent (­effectively a veto) regarding appointment, dismissal and promotion policies at company level, which also comprises the conclusion or extension of fixed-term employment contracts, it must be noted that most companies do not have an explicit policy regarding the use of fixed-term contracts and that not many works councils actively make use of this right. In Lithuania, employers must, upon request, inform the works council annually about the number of fixed-term employees in the enterprise, establishment or organisation by indicating how many employees work on a fixed-term contract, the positions they occupy and the average wage, broken down by groups of occupation and gender. In Norway, the number of fixed-term employees and the consequences for the working environment within a given undertaking shall be subject to discussion with employee representatives at least once a year. In Luxembourg, on the other hand, the employer is not required to inform or consult workers’ representatives when new fixed-term posts are established. In Switzerland, RNM and the United Kingdom, there are also no specific provisions stipulating the requirement for consultation on fixed-term employees.

lii  Restatement II: Comparative Overview (i) Thresholds According to Clause 7(1) of the Framework Agreement, fixed-term contracts shall be counted when calculating thresholds for the establishment of workers’ representative bodies in the undertaking. However, the ‘modalities shall be determined by the Member States’. It appears that in all countries, fixed-term employees must be counted when calculating the total number of workers employed in the undertaking/company/etc. For example, in Switzerland, a fixed-term worker shall be considered equal to a permanent worker, while in Denmark, fixed-term workers are included in the total number of employees required to establish workers’ representative bodies, for as long as their employment lasts. In Finland, all groups of employees are included in the calculation of the undertaking’s total number of employees. The only exception is workers with fixed-term contracts who work casually or temporarily. J. Collective Bargaining Agreements Deviating From Statutory Provisions In most countries, there is little room for derogations in collective bargaining agreements from statutory provisions on fixed-term contracts. One of the exceptions is Germany, where the number of possible extensions and the maximum duration of fixed-term contracts can be modified on the basis of a collective agreement. In the view of the courts, the parties to a collective agreement are free to determine the number of possible extensions and the maximum duration, cumulatively. There are limits, however, as parties to a collective agreement are bound to the basic legal concepts laid down by the legislator and they must comply with both the Constitution and EU law. Similarly, in the Netherlands, the maximum number of three successive fixed-term contracts may be increased by collective agreement to a maximum of six. Additionally, the limitation of successive fixed-term contracts to a period of 24 months may be extended by collective agreement to a maximum of 48 months. However, derogations are only allowed in certain cases, e.g. temporary agency work or project-funded work in the media, as well as in academia. In Croatia, the parties to a collective agreement can— provided objective grounds exist—set rules for successive fixed-term contracts that may exceed three consecutive years. This is one of the rare cases in Croatian labour law in which the contracting parties to a collective bargaining agreement are allowed to agree on less favourable working conditions. In Portugal, statutory rules can also, in principle, be set aside by collective agreements. There are two exceptions, however; namely the provisions on the maximum duration and the number of renewals of fixed-term contracts. In Slovenia, most branch collective agreements in the private sector make

Restatement II: Comparative Overview  liii use of a possibility envisaged in the law to either specify additional objective grounds or to extend the possibilities for small enterprises to enter into fixedterm employment contracts. In Italy, company collective agreements signed by the majority of representative trade unions at national or local level, and their representative bodies at plant level, may derogate from existing legal provisions concerning (inter alia) fixed-term contracts. Derogations are only admissible within the boundaries arising from constitutional principles, EU law and relevant ILO Conventions. Finally, in Sweden, various collective agreements expand both the notion and duration of fixed-term employment relationships, some of them even to the disadvantage of employees. In Iceland, the social partners may negotiate a different arrangement on the extension or renewal of a fixed-term employment contract, taking the needs of both employees and of employers into consideration in the industry to which the collective agreement applies. In the United ­Kingdom, the law explicitly states that the rules on consecutive fixed-term contracts may be modified by a collective agreement or by a so-called workforce agreement, the latter being an agreement between the employer and those employees whose terms and conditions of employment are not covered by a collective agreement. Employers and workers’ representatives may agree—via a workforce agreement—on objective reasons for renewing fixed-term contracts beyond four years. In most other countries, social partners cannot derogate from statutory provisions on fixed-term contracts. This is the case, for instance, in Bulgaria, Denmark, Finland, Hungary, Ireland and Russia. The same applies in Serbia. There, statutory rules cannot even be amended in favour of employees. In Slovakia, statutory provisions cannot be set aside by collective agreements, with only one minor exception. In Austria, collective agreements can also not deviate from statutory regulations. Nevertheless, collective agreements may indicate that certain forms of fixed-term contract are common within the given industry. In some countries, the social partners cannot amend statutory provisions to the detriment of employees (in peius). This is the case, for instance, in the RNM, France, Greece, Latvia, Montenegro, Poland, Russia and Romania. In Spain, it is, in principle, not possible for collective agreements to derogate from statutory provisions, unless the statutory provision itself specifically refers to them. In other countries, the question of limits on collective bargaining bears little importance, as no collective agreements apply. This is the case, for instance, in Estonia, where the number of fixed-term employees seems to be limited in the first place. In Turkey, collective agreements to the benefit of employees would be possible, although they are in fact rare due to a relatively low degree of unionisation in the country. In Luxembourg, no collective agreements exist in this regard, as the room for manoeuvre is extremely limited, considering that their content would have to comply with the relatively strict requirements already provided for in legislation.

liv  Restatement II: Comparative Overview II.  PART-TIME WORK

A.  Legal Definitions There is considerable consensus on the definition of ‘part-time work’ among all countries represented in this study. As a rule, ‘part-time work’ does not represent a deviation from the allowed maximum working time, but rather a deviation from the regular working time (of a full-time employee). In most countries, the standard working time per week seems to be 40 hours (Austria, Czech Republic, Estonia, Finland, Latvia, Lithuania, Montenegro, FYROM, Poland, Russia, Serbia and Sweden, for instance). Countries in which the standard working time is less than 40 hours per week (and in which part-time work is consequently lower) are eg Denmark and France. In Denmark, full-time work is defined in collective agreements, the individual employment contract, or—in the absence of specific provisions—by the customs within the industry. Under most collective agreements, full-time work is 37 hours per week. According to French law, the regular working week is 35 hours. In other countries, the definition of part-time work depends on the circumstances of the respective employment relationship. In Spain, a part-time employment contract exists when the work to be performed is agreed on for a number of hours a day, week, month or year that is lower than that of a comparable full-time employee, ie a full-time worker in the same company and workplace, with the same type of employment contract, performing an identical or similar job. If there is no comparable full-time worker in the company, the full-time working day defined in the applicable collective bargaining agreement must be taken as the reference point or, in its absence, the legal maximum working day (an average of 40 hours per week on an annual basis). A similar definition can be found in Germany. In Greece, part-time work is a form of employment in which the (daily, weekly or monthly) working hours are shorter than those of standard or full-time employment, resulting in a corresponding reduction in pay. The law in Luxembourg is somewhere in the middle. A part-time worker is defined as an employee who is engaged in a regular activity, and has arranged a weekly working time with the employer, which is lower than the standard working time applicable in the establishment in accordance with the law or a collective agreement.

However, as the legal weekly working time there is 40 hours and virtually no collective agreement stipulates fewer weekly working hours, a parttime worker can, in practice, be defined as any worker hired for less than 40 hours a week. The definition of part-time work in Turkey differs. Turkish law provides that the employment contract shall be considered a part-time contract where

Restatement II: Comparative Overview  lv the employee’s regular weekly working hours are considerably shorter in relation to those of a comparable full-time employee. The law on working time uses thresholds of up to two-thirds of the number of working hours of comparable full-time workers as a basis for determining which employees work part time. In the United Kingdom, a different definition is also used. For the purpose of the law, a worker is a ‘part-time worker’ if s/he is paid fully or in part based on the time s/he works and, having regard to the employer’s customs and practices in relation to workers employed under the same type of contract, is not identifiable as a full-time worker. In nearly all countries, no minimum weekly working hours exist. One exception, however, is France. Generally, no part-time contract may be signed if it provides for less than 24 working hours per week, even though the law allows derogations in many cases, eg if a collective bargaining agreement contains an ‘opt-out clause’ or other exceptional cases are present. These latter exceptions cover eg cases in which the employee has expressly requested to work less than 24 hours or in which the employee is under 26 years of age. In Montenegro, a part-time contract may be concluded for no less than ¼ (10 hours) of full-time employment. B.  Formal Requirements It seems that there are no formal requirements in many countries for any type of contract other than for full-time employment contracts. This is the case in Cyprus, Czech Republic, Denmark, Estonia, Hungary, Poland, Serbia, Turkey and the United Kingdom.11 In Finland, the party claiming that part-time working hours have been agreed bears the burden of proof that this is a necessity. In Austria, employment contracts do not generally require any special form. However, employment contracts must state the employee’s regular working time. If this is not done, an appropriate amount of working hours is deemed to have been included in the contract. A change in the amount of regular working time must be agreed in writing. This is a protective measure for the employee, as it is very difficult to distinguish between a mutually agreed extension of working time and overtime work, which entitles the employee to an overtime bonus. In some countries, part-time contracts must be concluded in writing (eg France, Greece, Italy). In the case of Romania, an orally concluded contract will be deemed to have been concluded for full-time work. In Portugal and Spain, part-time contracts will qualify as agreements on full-time work if not entered into in writing or if reference to the daily and weekly working

11  Note that in some of these countries, all types of employment contracts must be concluded in writing.

lvi  Restatement II: Comparative Overview time is missing. In Belgium, the position differs slightly. Part-time contracts must be concluded in writing, including the work arrangements and hours of part-time work agreed upon. The penalty for failing to include these details in the written contract is that the employee can subsequently choose the work arrangement and the number of working hours most favourable to him or her among those established in the work regulations or in any other company document. In Greece, in addition to the requirement to conclude a part-time contract in writing, it must also be sent to the local labour inspectorate within eight days from its conclusion; otherwise, it will be presumed that it is a concealed full-time employment contract. C.  Opportunities for/Right to Part-Time Work Clause 5(3)(a) of the Framework Agreement provides that ‘as far as possible, employers should give consideration to … requests by workers to transfer from full-time to part-time work that becomes available in the establishment’. It seems that this provision has been properly transposed in all EU Member States. For instance, in Bulgaria, the law provides that the employer must take into account an employee’s request to shift from fullto part-time work where such an opportunity exists in the enterprise. An opportunity within this meaning arises, for instance, where the work being performed allows for part-time work, where vacancies specifically designed for part-time work exist, or where shared workplaces (job-sharing) are possible. In many countries, the law reflects the right to part-time work in the Framework Agreement by explicitly requiring the employer to accommodate employees’ requests ‘as far as possible’. This, for instance, is the wording of the relevant provisions in Portugal, Iceland and Romania. (i)  No Right to Part-Time Work In many countries, it seems that a general right to part-time work is considered to run counter to the principle of freedom of contract. For instance, in Slovenia, entering into a part-time work arrangement is clearly seen as an expression of the parties’ contractual freedom. Granting a statutory right to part-time work would only interfere with parties’ will. Similarly, in Estonia, an employee may request to work part time, but the employer is entitled to take the final decision, meaning that part-time work requires an agreement between both the employee and the employer. In the United Kingdom, there is also no explicit right to part-time work. The right that exists under the current legislation is a mere statutory ­entitlement to request flexible working time. This entitlement was initially

Restatement II: Comparative Overview  lvii only available to those with care responsibilities, but was extended in 2014 to all employees with more than 26 weeks of continuous service. In Ireland, the law does not provide for an entitlement to work part time. In cases involving employment equality, the labour court has ruled that female employees have no general right to a part-time (or job-sharing) position. In Luxembourg, Spain, Switzerland and Malta, too, there is no entitlement to work part time, although it should be noted that some laws that apply to the public sector in Switzerland have introduced the right to part-time work. In Poland, the law expressly provides that the employer should, ‘as far as possible’ accept an employee’s request to modify his or her working time. It is unclear whether and to what extent the employee is entitled to a (general) right to work part time. It could be argued that where an employer has the objective possibility to adjust the employee’s working time, it has the obligation to do so. On the other hand, the employer is not required to state any reasons for refusal. There are no provisions on penalties to be imposed on employers for refusing an employee’s request to work part time. It therefore seems that in practice, the employee does not have the option to enforce a reduction of the working time stipulated in his or her employment contract. (ii) Situational Right to Part-Time Work In most countries, no general right to part-time work exists in the sense that the employer has the obligation to consent to changes to the working time established in the employment contract. However, specific rights may exist for certain groups of employees or may apply under specific circumstances. This is the case, for instance, in Austria, where a right to parental part-time work, the right to family care leave to care for relatives who are terminally ill or for children who are seriously ill, as well as a right for elderly employees to work part time, exists. Other examples are Belgium, Croatia, Czech Republic, Denmark, France, Finland, Hungary, Italy, Latvia, FYROM, Montenegro, Norway, Russia, Serbia, Slovakia, Slovenia, Sweden and Turkey. (iii) General Right to Part-Time Work A general right to part-time work exists in the Netherlands. In Germany, where the right to part-time work was introduced in 2001, the law quickly met with concerns regarding freedom of contract. Although the law providing for the right to part-time work was not found to be in breach of the Constitution, the constitutional law perspective had an impact on determining what grounds an employer must put forward to lawfully reject

lviii  Restatement II: Comparative Overview an employee’s request to work part time. The courts have developed a three-step evaluation scheme to assess the employer’s line of reasoning against the employee’s claim, based on a specific organisational concept. The first step determines whether an underlying organisational concept does in fact exist in the firm, substantiating the employer’s assertion that the contractually agreed working time is indispensable for the firm. The second step evaluates the extent to which the employee’s working time arrangement, which corresponds to the organisational concept, is at odds with the employer’s actual working time needs. In the third and final step, the weight of the operational grounds that conflict with the employee’s request for reduced working time is assessed. In Greece, for an employee to exercise the right to work part time, the company must employ more than 20 employees and such work may not negatively impact the company’s functional needs. The employee has the right to return to full-time employment later. If the employer does not reply to the employee’s request to work part time in writing within 30 days, the employee’s request will be deemed to have been accepted by the employer. In Lithuania, any employee who has been continuously employed for at least three years may submit a written request to temporarily work part time. The employee’s request shall be granted, provided that it has been submitted no less than 20 days prior to its entry into effect, and the work shall be performed on a part-time basis for no longer than one year. The employee is only entitled to submit another request to work part time after he or she has worked full time for the equivalent period he or she wishes to work part time. D.  Opportunities for/Right to an Extension of Working Time According to Clause 5(3) of the Framework Agreement, similarly to what is provided for a reduction in working time, the employer is obliged ‘as far as possible … to give consideration to: … requests by workers to transfer from part-time to full-time work or to increase their working time should the opportunity arise’. As Clause 5(3) does not impose any legal obligation, it is left to the Member States to decide whether to put in place a right to extend working hours. (i)  No Right to an Extension of Working Time This is reflected, for instance, in Latvia, where the law explicitly provides that an employer has the obligation to transfer a worker from part-time to full-time employment if requested by the worker and if this possibility exists in the undertaking.

Restatement II: Comparative Overview  lix In Portugal and many other countries, like Belgium, Bulgaria, Romania, Croatia, Cyprus, Hungary, Iceland and Poland, the law expressly foresees that whenever possible, the employer shall take the request of part-time employees to work full time or to extend their working time into consideration. In many of these cases, employees’ requests must be taken into account ‘as far as possible’. In Serbia, too, the employer is required to consider requests of part-time employees to work full time (as well as those of full-time employees to work part time). In practice, this does not necessarily materialise, however, since the employer is only required to ‘consider’ but not to comply with the part-time employee’s request to transfer to a fulltime post and vice versa. No ‘enforceable’ right to part-time work exists, for instance, in Slovakia, Slovenia, Spain, Turkey and the United Kingdom, too. (ii)  Priority Right to an Extension of Working Time In some countries there are what may be called ‘priority rights’ to an extension of working time. A case in point is France, where a right also exists to reduce working time. Reasons based on which an employer can decide to not grant such a right are usually specified in collective agreements. A priority right also exists in Norway: according to the law, part-time workers have a preferential right to an extension of their working time. This means that instead of hiring new employees, the employer must offer an extension of working time to part-time workers in the undertaking. Such a right exists if the part-time employee is qualified to fill the respective position and if an extension of working time does not create any hardship for the enterprise. Similar rules are in place in Sweden and Finland. In Greece and Italy, parttime workers must be given priority when full-time job vacancies of the same professional category become available. Priority rights also exist in Luxembourg. In other countries, establishing such a right would be considered a violation of freedom of contract expressed by the parties when they entered into the part-time agreement. This is the case, for instance, in Switzerland, where a preferential right, let alone a stand-alone right to full-time work, would clearly be regarded as a breach of freedom of contract. (iii)  Right to an Extension of Working Time In the Netherlands, an individual legal entitlement to an extension of working time exists. In comparison to the right to part-time work, the employer has more room to reject requests to extend an employee’s working time (eg in case of a lack of available work or an absence of vacancies or insufficient staff budget). In Germany, the employee can also request an extension of his or her working time. Quite similarly to the situation in the ­Netherlands,

lx  Restatement II: Comparative Overview the employer is not required to grant this right, if ‘serious operational grounds’ speak against it. If several part-time workers have expressed interest in increasing their working time, the employer does not need to base his/her decision on social aspects. The decision on which employee’s working hours to extend must, however, be based on reasonable grounds. E.  Rights of Part-Time Workers (i)  Equal Treatment Clause 4 of the Framework Agreement sets forth the principle of nondiscrimination. According to Clause 4(1) ‘in respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part time unless different treatment is justified on objective grounds’. According to Clause 4(2), ‘where appropriate, the principle of pro rata temporis shall apply’. The principle of non-discrimination has been transposed in all EU Member States and seems to have also found its way into other countries’ legal systems. Some non-EU Member States have introduced the principle by means of general legal concepts (Switzerland), while other countries such as Russia and Turkey have introduced specific protection against discrimination for part-time workers. (a)  Application of the pro rata temporis principle In Hungary, the application of the principle pro rata temporis has been controversial for some time. The principle applies to two areas: wages and working time. As regards the former, the principle is narrowly interpreted. Consequently, it is not applicable to payments that are not related to work. As regards the latter, the law explicitly foresees that while an employer is free to request full-time employees to work overtime for up to 250 hours per calendar year, he or she can also request part-time workers to work overtime for a proportional number of hours. In Latvia, on the other hand, the courts have held that the general rules on overtime are not applicable to part-time employees. As a result, overtime work is only permissible with the consent of the part-time worker concerned. Overtime or, more specifically, overtime bonuses represent a particular problem in Poland as well. The law explicitly provides that the parties to a part-time contract must stipulate the admissible number of working hours above the working time specified in the employment contract, which, if exceeded, entitles the employee to an overtime bonus. According to case law, part-time workers are not entitled to a bonus where such admissible number of working hours has not been previously agreed by the parties. If the parties have not agreed on the number

Restatement II: Comparative Overview  lxi of overtime hours, the right to an overtime bonus only arises if the part-time worker performs his or her duties beyond the statutory working time limits. In Montenegro, the principle of pro rata temporis also applies to working time. For instance, employees who work full time are entitled to a break of 30 minutes during working hours, while employees who work less than full time have the right to a break of 15 minutes during working hours, if they work more than four and less than six hours per day. Part-time employees who work fewer hours are not entitled to a break at all. In contrast, in Serbia, daily or weekly rest periods are considered what may be called ‘indivisible rights’ to which the principle of pro rata temporis cannot be applied. In Slovenia, a mix of the two previous examples is used: an employee who works part time is not entitled to a break if he or she works less than four hours a day. If he or she works at least four hours a day, the principle of pro rata temporis applies. In Romania, following amendments to the law in 2011, the right to paid leave is no longer part of the category of rights granted in proportion to working time; only the right to adequate compensation is. As a result, parttime employees are entitled to full annual leave. In Russia, Croatia, Slovenia, Switzerland, Estonia and Germany, part-time employees are also entitled to the statutory minimum of four weeks of annual leave without application of the pro rata temporis principle. A deviation in the employee’s favour can also be found in Bulgaria, where the calculation of an employee’s total duration of employment includes both part-time and full-time work. If the part-time work entails at least half of the statutory working hours, it is regarded as full-time work. A pro rata reduction seems unjustified in the Netherlands eg as regards travel reimbursement. Therefore, the amount of reimbursement of a part-time worker who works 20 hours (five days) a week must be the same as that of a fulltime worker. (b)  Justification of Discrimination It seems as though a derogation from the equal treatment principle is possible in only very few cases.12 In Norway, for example, the only threshold that applies to part-time workers is for occupational pension schemes

12 The case law of the CJEU imposes many restrictions on the room for manoeuvre of the countries that have implemented Directive 97/81/EC; see CJEU, 10 February 2000—Case C-50/96 (Deutsche Telekom AG v Lilli Schröder), ECLI:EU:C:2000:72; 10 June 2010—Joined Cases C-395/08, (Istituto nazionale della previdenza sociale (INPS) v Tiziana Bruno and Massimo Pettini) and C-396/08 (Istituto nazionale della previdenza sociale (INPS) v Daniela Lotti and Clara Matteucci), ECLI:EU:C:2010:329; 23 October 2002—Joined Cases C-4/02 (Hilde Schönheit v Stadt Frankfurt am Main) and C-5/02 (Silvia Becker v Land Hessen), ECLI:EU:C:2003:583.

lxii  Restatement II: Comparative Overview (where one part is paid by the employee and the other by the employer), but this only applies to employees with very few weekly working hours. The authorities have established a minimum threshold of 20 per cent of fulltime working hours in order for an employee to be entitled to membership of an additional pension scheme provided at the workplace. This has been deemed a valid objective threshold, as many part-time employees who work less than 20 per cent of full-time working hours are students and seasonal workers. The relationship between equal treatment and collective bargaining in Switzerland is interesting: part-time employees, in principle, enjoy the same rights as full-time employees, and part-time employees are entitled to pro rata temporis benefits. However, there are some collective bargaining agreements that fully or partially exclude part-time workers from their scope of application (eg if the part-time worker does not work at least 50 per cent of normal working hours). (ii)  Dismissal Protection Although it has not yet been decided whether Clause 4 of the Framework Agreement includes protection against dismissal, Clause 5(2) states that a worker’s refusal to transfer from full-time to part-time work or vice versa should not in itself constitute a valid reason for termination of the employment contract. However, in some countries, the either legislation expressly stipulates or case law establishes that an employee’s refusal to transfer to part-time work or vice versa shall not, in itself, be a valid reason for dismissal. This, for example, is the case in Cyprus, Estonia, Ireland, Iceland, Latvia, Malta and the United Kingdom. In Lithuania, an employee’s refusal to continue working under changed working conditions may be considered a reason to terminate the employment relationship at the initiative of the employer without any fault of the employee. In Denmark, dismissal protection applies to employees who request to work part time, who refuse to accept part-time work, and when full-time posts are divided into part-time posts. Employee protection likewise applies to employees who refuse to extend their working hours from part-time to full-time work. The law does not prevent the employer from dismissing a full-time worker and employing a part-time worker instead in the course of a restructuring of the business, if the restructuring is justified for objective reasons. In principle, dismissal due to an employee’s refusal to accept part-time work or vice versa is invalid in Switzerland, the Netherlands, and Germany, while the right to termination of the employment relationship for other reasons remains unaffected. In Latvia, refusal as such does not constitute a valid ground for dismissal, either. However, an employer has the right to give one month’s notice of dismissal, asserting that if the employee

Restatement II: Comparative Overview  lxiii does not agree to changes to the employment contract, he or she will be dismissed. In Greece, the termination of the employment relationship due to the worker’s refusal to transfer from full-time to part-time work is void. However, terminations of employment due to the worker’s refusal to transfer from part-time to full-time work may be valid. In most countries, no specific rules on protection against dismissal exist for part-time employees; general dismissal rules apply to them as well. This is the case, for instance, in Austria, Belgium, Bulgaria, Croatia, Czech Republic, Finland, France, RNM, Hungary, Italy, Luxembourg, Malta, Montenegro, Norway, Netherlands, Poland, Portugal, Romania, Serbia, Slovakia, Slovenia, Spain and Sweden. In Russia, the situation differs. If the work for which a contract was concluded is the employee’s secondary work, the part-time worker may be dismissed with two weeks’ notice and is not entitled to severance pay if he or she concludes an employment contract with another employer for a primary job. The type of work (secondary or primary job) must be specified in the employment contract; there is no formal requirement for a ‘secondary’ employee to be employed in a primary job elsewhere. F.  Information and Consultation (i) Specific Information and Consultation Rights Related to the Use of Part-Time Work in the Establishment and Enterprise According to Clause 5(3)(e) of the Framework Agreement, employers ‘should give consideration’ to ‘the provision of appropriate information to existing bodies representing workers about part-time working in the enterprise’ as far as possible. There is therefore no obligation to transpose the provision, which gives EU Member States greater freedom. Bearing this in mind, many countries do not have special regulations on information and consultation procedures or specific rules on part-time workers (eg Croatia, Czech Republic, Estonia, France, Finland, Hungary, RNM, Montenegro, Malta, Russia, Switzerland and the United Kingdom). However, there are also many countries in which the employer is required to share relevant information and to consult workers’ representatives on the part-time employees employed in the enterprise. This, for instance, is the case in Belgium, Bulgaria, Cyprus, Germany, Greece, Lithuania, Luxembourg, Spain and Sweden. The content of this information varies from country to country. In Greece, the employer must provide all relevant information to workers’ representatives, including the number of part-time workers in relation to the total number of employees in the undertaking as well as the prospects of their recruitment on a full-time employment contract. The situation in Belgium, Germany, Spain and Luxembourg seems to be similar. In the latter case, the employer must consult the workers’ representatives

lxiv  Restatement II: Comparative Overview if he or she intends to establish part-time posts within the company. The ‘equal rights representative’ must also be informed. In Lithuania, companies employing more than 20 employees must provide the works council with information annually about the number, occupations and professions of part-time employees in the enterprise. Employers must also provide a calculation of the average salaries of part-time employees, broken down by profession and gender. In Latvia, Slovakia and Iceland, employers must also inform trade union or employee representatives about part-time work opportunities at the workplace. Information rights of employee representatives on the availability of part-time jobs also exist in Bulgaria, Romania, Turkey and Portugal. In the Netherlands, works councils have the right of consent with regard to appointment, dismissal and promotion policies for part-time employees at company level. (ii) Thresholds The law in Romania stipulates a certain threshold for the application of regulations—what is taken into account is the number of workers, not the number of working hours. Part-time employees are counted as regular employees (per headcount) in Austria, Czech Republic, Estonia, Germany, Latvia, Malta, Norway, the Netherlands and Poland. In Luxembourg, when calculating the total number of an undertaking’s staff to determine whether and how many workers’ representatives need to be elected, part-time employees who work 16 hours or more per week are counted as full-time employees; if they work less than 16 hours a week, they are only counted in proportion to their working time. In Belgium, the total number of employees is generally calculated on the basis of their average employment over one year. In Italy, as regards the application of regulations provided for by law or collective agreement for which the total number of employees is relevant, part-time workers must be counted in proportion to their working time compared with the undertaking’s full-time employees. The situation in Denmark is more complex because the way part-time employees are taken into account differs from one law to the other. G.  Other Part-Time Arrangements In Europe, there are also other concepts of part-time work, which differ from those explained under II.A. Examples of such arrangements are flexible forms of working time allocation, extended working hours, on-call work and shared workplaces (job-sharing).13 13  (More) atypical part-time arrangements in many of the countries covered by the Restatement project have only recently been explored in R Blanpain, F Hendrickx and B Waas (eds),

Restatement II: Comparative Overview  lxv The existence of legal regulations and the actual use of other part-time arrangements vary considerably from country to country. (i)  No Specific Regulation on Other Part-Time Arrangements On-call work and job-sharing, for example, are neither regulated in Bulgarian labour legislation nor do they exist in practice, while there are rules on the allocation of working time. In Croatia, Greece, Latvia, Malta, Montenegro, Romania, Slovenia and Poland, no atypical part-time arrangements are expressly provided by law. In Luxembourg, part-time arrangements may be the result of a ‘time account’, where additional hours or overtime can be ‘saved’ as time credits for the future. Some collective agreements, for example in the banking sector, provide detailed regulations. Using atypical part-time arrangements is possible in Finland, but no special regulation for such arrangements exists. When such arrangements are made, the general employment legislation and (potentially) collective agreements apply. (ii) Shared Workplaces (Job-Sharing) In Lithuania, the law provides for two specific types of employment contracts that aim to provide more flexible possibilities to work less than full time: job-sharing contracts and contracts for unforeseen increases in the volume of work. Shared workplaces are also regulated by law in Slovakia and Hungary. In Luxembourg, shared workplaces are not covered by statutory law, but may be covered in individual contractual arrangements. The same applies, for instance, in Portugal, Russia and Spain. In the RNM, labour legislation does not recognise the shared workplace model as a separate form of parttime work. However, shared workplaces are widespread among standard part-time employment contracts, which, however, do not usually provide for mutual and shared rights, obligations and responsibilities applicable to part-time employees. (iii) On-Call and Zero-Hours Contracts In some countries, on-call work regulations have been included in the legislation. This is the case, for example, in Estonia, Hungary, Serbia, Switzerland, Turkey, the Netherlands (where on-call work is also relatively widespread) and Italy, while in other countries, like Austria and the Czech Republic, on-call work is prohibited.

New Forms of Employment in Europe, Bulletin of Comparative Labour Relations vol 94 (Wolters Kluwer, 2016).

lxvi  Restatement II: Comparative Overview Zero-hours contracts as a subcategory of on-call work in which the employer has complete freedom to decide whether to call an employee for work at all are a new occurrence in some countries. This has led to new legislation, for example, in the United Kingdom. The law in Ireland also provides some guidelines. In Iceland, casual work, ie an employment relationship that does not require the employer to provide the employee with regular work, seems to be the only form of part-time work that has caused problems in practice, mainly because there has been a tendency by employers to try to avoid the minimum wage due under collective agreements. On-call work and zero-hours contracts are not regulated separately in Swedish and Russian legislation. Instead, such relationships are generally understood as and structured in a way to ensure that they comply with statutory forms of part-time work. In Luxembourg, on-call work is not mentioned in the Labour Code and would probably be considered illegal. The same applies to zero-hours contracts. H. Collective Bargaining Agreements Deviating from Statutory Provisions (i)  Deviation Only to the Advantage of the Employee As regards collective agreements that derogate from statutory part-time provisions, it seems that the principle of favourability applies in most cases. This is the case, for instance, in the Czech Republic, Latvia, Luxembourg, Malta, Norway, Poland, Russia, Spain, Turkey and Slovakia. Greek law provides that company collective agreements may complete or amend the legislative provisions on part-time work. Taking into account the general provisions on collective agreements, it can be concluded that other types of collective agreements (ie national or branch collective agreements) may only provide more favourable measures for part-time employees. (ii) Specification of Certain Aspects of Part-Time Work In some countries, a collective agreement can be used to specify certain aspects of part-time law. In Ireland, for example, a collective agreement that has been approved by the labour court can specify which part-time employees are to be treated as being employed on a ‘casual basis’. In theory at least, it is possible to regulate certain rights and duties of part-time employees in collective agreements in Poland, although it is prohibited to alter the existing statutory definitions. Another case in point is Germany. There, the law explicitly provides that a deviation from statutory provisions to the disadvantage of the employee is, in principle, not permissible. The law provides, however, that grounds for a rejection of a request to work

Restatement II: Comparative Overview  lxvii part-time can be further substantiated in a collective agreement. In Austria, collective ­agreements may, in general, only derogate from statutory law to a limited extent. In relation to part-time work, the most important possibility is the modification of the regulations on the premium for overtime work, but the social partners have not yet made extensive use of that possibility. In Croatia and Montenegro, working-time-related matters can be regulated in a ­collective agreement in derogation of statutory provisions. In France, collective agreements can be exceptionally concluded to regulate certain components that are usually already regulated by statute (eg introduction of procedures to transform a full-time contract into a part-time contract). (iii) Derogations to the Advantage and Disadvantage of the Employee There are only few countries in which the parties to a collective agreement have increased leeway to regulate part-time work. In Hungary, collective agreements can derogate both to the advantage and disadvantage of the employee. However, this has little practical significance. The same applies in Lithuania, where the parties to collective agreements at the sectoral, intersectoral and national levels—at least in theory—can set aside statutory law. In Cyprus, collective agreements exist, eg in the education and public sector, which have excluded part-time workers or provided for fewer rights than those required by the law. However, so far, no cases of collective bargaining deviating from statutory provisions have been brought before a court. In Italy, (company) collective agreements signed by certain trade unions may derogate from the rules on part-time work. However, this is only possible without prejudice to constitutional principles, to EU law and to applicable ILO Conventions. III.  TEMPORARY AGENCY WORK

A.  Legal Relationships Temporary agency work has been met in nearly all countries with scepticism by lawmakers (at least until the 1990s and sometimes beyond that). Many countries only opened the door for temporary work under pressure at EU level (eg Denmark, Greece). Article 3 of Directive 2008/104/EC contains a set of definitions, including ‘temporary agency worker’ (a worker who has concluded a contract of employment or an employment relationship with a temporary work agency to be assigned to temporarily work for user undertakings under its supervision and direction), ‘temporary work agency’ (any natural or legal person who, in compliance with national law, concludes a contract of employment or employment relationship with a temporary agency worker to assign him or her to user undertakings to tem-

lxviii  Restatement II: Comparative Overview porarily work under their supervision and direction) and ‘user undertaking’ (any natural or legal person for whom and under the supervision and direction of whom a temporary agency worker temporarily works). (i) Relationship between Temporary Agency Worker and Temporary Work Agency Taking the EU Directive’s definitions into account, it is not surprising that in most EU Member States (as well as countries outside the EU) the relationship between temporary agency workers and temporary work agencies is classified as an employment relationship. It should be mentioned that the law in Austria also covers ‘employee-like persons’, defined as individuals who perform work/services at the request of and on account of another person without being in an employment relationship, but who may be considered employee-like due to their economic dependence. A special regulation exists in Denmark. There, temporary agency work is characterised by a tripartite relationship, where the temporary agency worker has an employment relationship with two employers, namely the temporary work agency and the user undertaking. Irish law does not address the employment status of agency workers in that a ‘contract of employment’ is defined as meaning either ‘a contract of service’ or ‘a contract under which an individual agrees with an employment agency to perform work for another person (whether or not that other person is a party to the contract)’. In Switzerland, three types of temporary agency work are distinguished: first, so-called temporary work, where the objective of the employment contract between the employee and the temporary work agency is the assignment of the worker to a user undertaking and the employment contract is limited to the assignment period. Secondly, delegated work, where the objective lies in repeated assignments of the worker and where the duration of the employment contract is not limited to each assignment. If there is no possibility of assigning the worker to a user undertaking, the temporary work agency must pay the employee’s wages. Thirdly, occasional temporary work, where a regular employment relationship exists between the worker and the employer, but the former can exceptionally be assigned to user undertakings. In Cyprus, no employment relationship exists between the temporary work agency and the temporary agency worker during the period of posting, while in the United Kingdom, the classification of the agency as the employer of temporary workers is not defined for employment law purposes—in contrast, for example, to taxation. The question is therefore left to common law, according to which it is unlikely that temporary agency workers will fall within the scope of a contract of employment with the temporary work agency. In Serbia, it is unclear who is responsible for the specific rights of temporary agency workers.

Restatement II: Comparative Overview  lxix (a)  Fixed-Term Contracts According to the CJEU, Directive 1999/70/EC applies neither to the fixedterm employment relationship between a temporary agency worker and a temporary work agency nor to the relationship between such a worker and the user undertaking,14 and Member States are therefore basically free to regulate this issue. In Denmark, for example, temporary agency workers employed by a temporary work agency for a fixed term are governed by the law on temporary agency workers rather than by the law on fixed-term contracts. Similarly, the law in the Czech Republic prescribes that the provisions regulating fixed-term contracts ‘do not apply to the employment contract establishing a fixed-term employment relationship between the temporary work agency and a worker for the purpose of performing work at a user undertaking’. Derogations from the ‘standard’ protection of fixed-term workers are provided for temporary agency workers in the Netherlands and Lithuania, too. In other countries, deviations from the law on fixed-term contracts are found as well. This can primarily be explained by the particularities of the triangular relationship: for example, when concluding a fixed-term contract with a temporary agency worker in Estonia and Slovenia, the time limitations are linked to the user undertaking and not to the temporary work agency. In Finland, the setting of the term of the contract cannot merely be based on temporary agency work. Instead, a justified reason for concluding such a contract must exist. In Austria (where the initial fixed-term contract with an employee generally does not require justification), any fixed-term contract concluded with a temporary agency worker requires a justified reason. In some countries, employment contracts with a temporary work agency can only be concluded for a fixed term. In Bulgaria, for example, a contract is either concluded for the completion of a specific assignment or for the purpose of substituting for an employee who is temporarily absent from work. In Poland, too, temporary agency work can only be based on a fixed-term contract. It should be added that like in Denmark and the Czech Republic, the regular statutory limitations on fixed-term work do not apply. However, it seems that in most countries, a contract between a temporary work agency and the temporary agency worker can be either a contract for a fixed term or a contract of indefinite duration (eg Belgium, Cyprus, Croatia,

14  CJEU,11 April 2013—C-290/12 (Oreste Della Rocca v Poste Italiane SpA), ECLI:EU:C:2013:235. The admissibility of fixed-term employment contracts with temporary workers also follows from Article 3(2) second paragraph and Article 5(2) of the Directive 2008/104/EC. Corresponding CJEU case law does not yet exist on the relationship between Directive 1999/70/EC and Directive 2008/104/EC.

lxx  Restatement II: Comparative Overview RNM, Greece, Luxembourg, Romania, Russia and Serbia, Estonia, Iceland, Hungary, Italy, Latvia, Lithuania, Malta, Montenegro, Norway, Portugal, Slovakia, Spain, Sweden, Switzerland, Turkey and United Kingdom). (b)  Rights and Obligations In most countries, temporary work agencies assume all the obligations and rights of an employer, while temporary agency workers are usually entitled to all the standard rights and obligations of an employee. However, due to the special circumstances of temporary agency work, it is characterised by specific features. One of them concerns remuneration, with most countries applying the principle of equal pay (see below under section III.C). Furthermore, there are particularities relating to the performance of work at the user undertaking. The most important of these is that (almost by definition) temporary agency work entails the right of the agency to issue instructions that are ‘transferred’ to the user undertaking (this is the case eg in Austria, Belgium, Czech Republic, Estonia, RNM, Finland, Germany, Italy, Malta, Spain, Slovakia, Slovenia, Serbia, Sweden, Turkey and Russia). As a result, the employer’s prerogatives are distributed between the user undertaking and the temporary work agency. In many countries, temporary work agencies must inform the temporary agency worker in writing about the details of the work he or she is expected to perform at the user undertaking (Austria, Croatia, Hungary, Iceland, Montenegro, Russia and Poland). In Latvia, additional information must be included in the contract with the temporary agency worker. Inter alia, it must explicitly state that the temporary work agency is the temporary agency worker’s formal employer and that during his or her assignment the worker must comply with the user undertaking’s instructions, as far as they do not contradict those issued by the temporary work agency. In Croatia, the employment contract must contain specific information stipulated in the law (inter alia, the expected duration of the contract and the tasks to be performed by the assigned worker). Similar requirements also apply in Romania. Additionally, in many countries (including eg Austria, Finland, Germany, Lithuania, Montenegro and Russia), the employee cannot be assigned to a user undertaking without his/her express consent. (c)  Dismissal Protection In most countries, there are no (fundamental) differences between the protection of temporary agency workers against dismissal and dismissal protection of other workers (see, for example, Austria, Cyprus, Czech Republic, Estonia, Finland, Greece, Iceland, Italy, Latvia, Lithuania, Malta, Montenegro, the Netherlands, Norway, Poland, Portugal, Russia, Spain,

Restatement II: Comparative Overview  lxxi Sweden, Switzerland and Turkey). The practical effect of this is often limited, however, as the contract is usually only entered into for a limited period of time. In this context, it should be noted that in the United Kingdom, most unfair dismissal rights require a qualifying period of at least two years of service. In Bulgaria and Hungary, the general rules on dismissal protection apply to temporary agency workers as well. In Bulgaria, one valid reason for terminating an employment contract is expiry of the temporary work agency’s registration, while in Hungary, the termination of the assignment is one of the admissible grounds for dismissal of the temporary agency worker (with a notice period of 15 days). In Ireland, the position is unique, since temporary agency workers, for the purposes of the unfair dismissals legislation, are deemed to be employees of the user undertaking rather than of the agency. In Denmark, the law does not provide for dismissal protection for temporary agency workers. However, some collective agreements cover temporary agency workers, in which case dismissal protection may apply. In Serbia, workers employed through temporary work agencies do not enjoy any formal legal protection from dismissal. In the RNM, dismissal protection of temporary agency workers is unclear and only partially regulated. (ii) Relationship between Temporary Work Agency and User Undertaking (a)  Legal Type of Relationship In most countries, the relationship between the temporary work agency and the user undertaking is based on a civil law/commercial law contract according to which the temporary work agency agrees to place one or more employees at the disposal of a user undertaking. For instance, in Italy, the temporary agency work contract is a special trade contract fully and strictly regulated by the law. In Germany, so-called ‘labour leasing contracts’ exist, even though they are not explicitly regulated by the German Civil Code. Under such a contract, the temporary work agency’s primary obligation towards the user undertaking is to provide workers who are ready to work and meet the contractually agreed requirements for the agreed duration of the assignment. In Switzerland, the legal nature of the contract between the temporary work agency and the user undertaking is ambiguous. The courts have stated that it is a contract sui generis containing elements of an agency contract. In Serbia, too, the legal nature of the relationship is unclear. Since there are no specific statutory provisions, the general rules of contract law apply to this relationship. In some countries, some types of contracts resemble business contracts between temporary work agencies and user undertakings, but also possess different features. The most prominent of these arises in the context of the

lxxii  Restatement II: Comparative Overview so-called ‘umbrella company’, which is quite popular in France. Umbrella companies allow an individual to provide his or her services to a customer and to negotiate the terms of performance whilst benefitting from the protection of employment status under the umbrella company. The customer pays fees to the umbrella company, which in turn pays the employee’s salary, retaining social insurance contributions and management fees. (b)  Formal Requirements and Mandatory Content Although the relationship between the temporary work agency and the user undertaking is considered to be based on a civil law contract in most countries, some derogations from legislation on traditional civil law contracts exist with regard to the form and mandatory content of the contract. In many countries, the contract between the temporary work agency and the user undertaking must be concluded in writing (Belgium, ­Bulgaria, ­Croatia, Cyprus, Czech Republic, France, RNM, Greece, Hungary, ­Luxembourg, Poland, Portugal, Romania, Slovakia, Slovenia, Switzerland and Turkey). As far as the specific content of the contract is concerned, the requirements vary from country to country, though it can be said that typically, the requirements aim to enforce the rights of temporary agency workers. Examples of the mandatory contractual content (besides the name of the temporary agency worker, which must be mentioned in many cases) are: the temporary work agency’s permit number (Cyprus, Czech Republic); the nature of the work to be performed by the temporary agency worker assigned to the user undertaking (Bulgaria, Croatia, Cyprus, Czech ­Republic, France, Greece, Hungary, Montenegro, Poland, Portugal, ­Romania, ­Slovakia, Turkey)—in some of those countries, the occupational risks, and if applicable, any special risks or risks related to particularly dangerous jobs must also be indicated; the duration of the assignment (­Bulgaria, Croatia, Czech Republic, France, Greece, Poland, Portugal, Luxembourg, M ­ ontenegro, Romania, Slovakia, Switzerland, Turkey); the salary of the temporary agency worker during the assignment period (Cyprus, Greece, Poland, Romania, Slovakia); the salary paid by the user undertaking to employees with the same or equivalent qualifications (Croatia, Czech Republic, L ­ uxembourg, Portugal). Interestingly, the parties in Bulgaria have to also agree on the applicable procedure for the exchange of information between the temporary work agency and the user undertaking concerning (inter alia) the salary structure and organisation, types of additional remuneration at the undertaking and their amount, as well as the collective agreement concluded at the user undertaking, if such an agreement exists. In Hungary, the user undertaking must inform the temporary work agency in writing (in principle, within five days from the end of the reference month) about, inter alia, the indi-

Restatement II: Comparative Overview  lxxiii vidual exercising the employer’s rights and the manner of and timeframe for supplying information that is necessary for the payment of wages. No formal requirements and substantive content-related statutory provisions on the contract between the temporary work agency and the user undertaking seem to exist in Denmark, Estonia, Finland, Iceland, Ireland, Latvia, Lithuania, Malta, Norway, the Netherlands, Serbia and the United Kingdom. (c) Restrictions on Entering Into a Contract/on the Content of the Contract Some countries prohibit the use of temporary work under certain circumstances. In some countries, the temporary work agency and the user undertaking are prevented from concluding a contract to use temporary agency workers; in some countries, no public permission/licence can be obtained for specific sectors; in others, only assignment to those sectors is prohibited. For the sake of simplicity, these rules are described here together. In Belgium, temporary agency work is generally prohibited, but exceptions exist in six cases (in particular, substitution of a permanent employee and temporary increase of work). The use of temporary agency work is prohibited in certain sectors, eg in removal companies. Specific limits also apply in the construction sector. In Portugal, a service agreement between a user undertaking and a temporary work agency for the assignment of employees may only be entered into in exceptional situations as well (eg direct or indirect replacement of an absent employee or an employee whose dismissal protection lawsuit is pending). In Spain, a temporary work agency can assign temporary agency workers to any industry or economic sector. However, temporary agency work cannot be used for specific tasks considered particularly dangerous for the health and safety of workers (eg miners). The same regulation applies in Slovenia. In Greece, the use of temporary agency workers is prohibited, inter alia, if the user undertaking has initiated collective redundancies over the last six months or if workers with the same skills and qualifications have been made redundant over the last three months. In Italy, it is in principle prohibited to hire a temporary agency worker within a period of six months for a post that was affected by a collective dismissal. Similarly, in Poland a temporary agency worker may not be assigned to perform certain types of activities, ie inter alia, to a post that was previously occupied by a worker who was dismissed for redundancy in the preceding three months. In Russia, assignment of a temporary agency worker is prohibited as well in certain cases (eg during a temporary suspension of work by the user undertaking due to lack of work). In Lithuania, temporary employment contracts may not be concluded to replace dismissed workers of the user undertaking.

lxxiv  Restatement II: Comparative Overview This rule, however, is not applied if the temporary agency worker starts working more than 30 days after the date of the termination of the employment contract by the user undertaking. In Turkey, in case of unforeseen increases in the workload of an establishment, the number of temporary agency workers may not exceed ¼ of the total employees at the user undertaking (with certain exceptions for small user undertakings with 10 or fewer employees). In many countries, there are also restrictions on the substitution of employees who are on strike (see below under section III.F). (iii) Relationship between Temporary Agency Worker and User Undertaking (a)  Legal Type of Relationship The legal nature of the relationship between the user undertaking and the worker seems to be perceived differently in the countries covered in this report. In Hungary, the relationship between the user undertaking and the worker is regarded as a de facto or quasi-legal relationship. A user undertaking’s quasi-contractual obligation to pay the temporary agency worker’s salary and the deduction of taxes and payment of those taxes to local tax authorities has been established in the case law of Iceland. In Switzerland, there is consensus that no contract exists between the user undertaking and the worker. According to case law, the relationship contains some contractual and quasi-contractual elements. Some scholars advocate a ‘factual contractual relationship’. In Belgium and the RNM, the legal relationship is seen as ‘more factual than formal’, too. In Turkey, a legally binding relationship is considered to exist between the user undertaking and the temporary agency worker, though no contract exists between the two parties. In Bulgaria, the law does not specify the legal nature of the relationship between the user undertaking and the worker commissioned through a temporary work agency. Legal theory presumes that it constitutes a special type of employment relationship with third-party involvement. Similarly, in Slovakia, the relationship between the user undertaking and the temporary agency worker is regarded as a special type of labour law relationship. The assessment as a sui generis contract also seems to be supported in Malta, Slovakia and the Netherlands. On the other hand, in Austria, all obligations related to an employment relationship are deemed to be directly based on statutory law. As a result, there is no contractual or quasi-contractual relationship. The same applies in Latvia and Lithuania. In Russia, the law expressly provides that when assigning a temporary agency worker to a user undertaking, the employment relationship between the worker and the temporary work agency does not end, and that no employment relationship is established between the

Restatement II: Comparative Overview  lxxv worker and the user undertaking. In Ireland, the conventional view is that employment whereby an individual agrees with a temporary work agency to personally perform work or a service for a third person does not give rise to an employment contract between the individual and the user ­undertaking. In the United Kingdom, it is presumed that no employment contract exists between the user undertaking and the worker, given the absence of a duty on the user undertaking to continuously pay the assigned worker or to provide him or her with work in the future. Nevertheless, the courts assert that in terms of the law, it should be considered that an implied contract exists between the parties. However, as the user undertaking’s exercise of employer functions can be explained by the parties’ respective contracts with the temporary work agency, it is not necessary to imply the existence of another contract. In Germany, the relationship between the temporary agency worker and the user undertaking is considered a legal relationship that gives rise to secondary obligations towards the worker; in particular, protection and fiduciary duties. Nonetheless, their legal basis is questionable. Some authors claim that these obligations are based on a quasi-contractual relationship. ­Others point to the contract between the temporary work agency and the user undertaking, which they consider a so-called contract with protective effect for third parties. In that case, workers directly benefit from the contract concluded between the temporary work agency and the user undertaking in the sense of being (contractually) entitled to claims. In Estonia, Luxembourg and Romania, neither the law nor doctrine specify the legal nature of the relationship between the user undertaking and the temporary agency worker. It should be mentioned that the user undertaking in many countries is deemed to be the employer in specific areas of employment law (especially health and safety regulations). One example is Croatia, where this relationship is partially considered an employment relationship in light of the obligations not only in terms of occupational health and safety, but also in view of the existence of special protection eg of pregnant workers and minors. In Germany, the user undertaking is also considered an employer within the meaning of discrimination law during the assignment. In Slovenia, the law explicitly provides that the worker must perform work in accordance with the user undertaking’s instructions. Thus, the user undertaking executes the ‘employer’s power’. Before the worker starts working, the user undertaking must inform him or her who will be providing the work and what conditions the worker must meet in the performance of work. Moreover, the user undertaking must provide him or her with an assessment of the risk of injury and health hazards. The conclusion of a written agreement follows. In this agreement, the mutual rights and obligations of the temporary agency, the user undertaking and the worker are further substantiated.

lxxvi  Restatement II: Comparative Overview (b)  Rights and Obligations In Cyprus, Greece, Italy, Norway and Spain, the user undertaking and the temporary work agency are jointly liable for the payment of both the temporary agency worker’s wages and social insurance contributions. In Greece, this liability becomes subsidiary when the labour lease agreement provides that the temporary work agency is exclusively liable. As regards the user undertaking’s statutory obligations, a subsidiary liability has been introduced in some countries. In Austria, for instance, the user undertaking is liable as a guarantor of the worker’s wages that accrue during the period of assignment as well as for the employee’s and employer’s social security contributions. Similarly, in Russia, the user undertaking has subsidiary liability for pay, vacation pay and severance pay. To ensure compliance with the principle of equal pay, the user undertaking bears subsidiary liability in Lithuania and Slovakia, as well. In Portugal, the user undertaking bears a certain subsidiary liability for benefits that have accrued within a 12-month period. In some countries, the user undertaking bears no liability at all. Examples are Luxembourg and Iceland. However, in the latter case, the user undertaking can be found liable if the temporary work agency does not comply with the local minimum wage and employment term requirements stipulated in certain collective agreements. (c)  ‘Temporary’ Assignment Another factor is whether the relationship between a temporary agency worker and the user undertaking can be ‘permanent’. Directive 2008/104/EC is ambiguous on this issue and the CJEU has so far not addressed this question.15 It appears that there are countries in which a permanent assignment is generally permitted, while there are other countries in which assignments can only be agreed on a temporary basis. For instance, there is no maximum period of assignment to the same user undertaking in Austria or Iceland. In Italy, an authorised temporary work agency may provide a user undertaking with one or more employees who perform work for the user undertaking under its supervision and direction for a fixed or an indefinite term. The number of temporary agency workers working on an open-ended contract at the user undertaking may not exceed 20 per cent of the total number of permanent employees on 1 January of each year (if not otherwise provided for by the applicable collective agreement). In Luxembourg, on the other 15  However, see opinion of Advocate General Szpunar, 20 November 2014, Case C-533/13 (Auto- ja Kuljetusalan Työntekijäliitto AKT ry v Öljytuote ry and Shell Aviation Finland Oy), ECLI:EU:C:2014:2392. According to Advocate General Szpunar, the definition in Article 3 of Directive 2008/104/EC implies that temporary employment relationships are of a ‘temporary nature’.

Restatement II: Comparative Overview  lxxvii hand, a temporary agency worker may generally not be employed long term in a post that is part of the company’s regular and permanent activity. Situations in which temporary work is admissible are the same as for fixed-term contracts (ie the total duration of a temporary assignment may not exceed 12 months (including renewals) and may not exceed 24 months for fixed-term contracts). In Romania, the duration of an assignment may last up to 24 months; it can be extended for successive periods, but may not exceed 36 months in total. In Malta, Latvia, Lithuania, Slovenia and Turkey, too, an assignment for work at a user undertaking must be of a temporary nature. Where a permanent assignment is prohibited, the question arises as to whether the term ‘assignment’ refers to the use of temporary agency work for a specific job at the user undertaking (workplace-related perspective) or to the assignment of a specific temporary worker for a specific job (employee-related perspective). Spain takes a workplace-related perspective; the contract between the temporary work agency and the user undertaking must be temporary and rest on one of the objective reasons justifying the conclusion of a temporary work contract. In Slovakia, temporary assignments can be agreed for a maximum of 24 months. Temporary assignments at the same user undertaking may be extended or repeated up to four times within 24 months; this also applies in case of temporary assignments of the same worker by a different temporary work agency to the same user undertaking. In Hungary, the duration of an assignment may not exceed five years, including any period of extended assignment and re-assignment within a period of six months from the date of termination of the previous employment relationship, irrespective of whether the assignment was agreed with the same or with another temporary work agency. In other countries, an employee-related perspective exists. In Cyprus, the maximum duration of an assignment to a user undertaking is four months, while in the RNM, the temporary work agency may not hire out a worker to perform the same activity at the same user undertaking, with or without interruption, for more than one year. In the Czech Republic, an assignment of the same worker to the same user undertaking may not exceed 12 calendar months, unless the temporary agency worker has requested a longer period of assignment or is replacing an employee who is on maternity or parental leave. In Poland, a temporary work agency may assign a temporary agency worker to perform temporary work for a user undertaking for a total period not exceeding 18 months within a 36-month period. Where temporary work is performed to carry out the tasks of an absent worker, the maximum period may not exceed 36 months. In the latter case, the temporary agency worker must not be reassigned to temporarily work at the same user undertaking within the subsequent 36 months. The 36-month time limit applies to all situations where a temporary agency worker is assigned to a specific user undertaking, even if he or she is assigned to that same user undertaking by

lxxviii  Restatement II: Comparative Overview different ­temporary work agencies. In Germany, the maximum duration for which a user undertaking can hire a temporary agency worker is 18 months. A deviation from this maximum duration can be established in a collective agreement for the relevant sector. In Greece, the period for which a temporary agency worker can be assigned to the user undertaking may not be longer than 36 months, including renewals. (d)  Health and Safety In many countries, laws stipulate that the user undertaking is directly responsible for compliance with the occupational health and safety regulations vis-à-vis temporary agency workers. This, for instance, is the case in Austria, Belgium, Croatia, Czech Republic, Bulgaria, Cyprus, Denmark, France, Finland, RNM, Germany, Hungary, Iceland, Italy, Ireland, Latvia, Lithuania, Luxembourg, Montenegro, Portugal, Poland, Romania, Slovenia, Spain, Switzerland, Turkey and the United Kingdom. In Serbia, the user undertaking must comply with all legal provisions on health and safety at work; however, it seems unclear who bears responsibility in case of injury at work, ie whether it is the user undertaking, the temporary work agency or whether there is joint liability in such cases. In Sweden, the primary responsibility for ensuring workers’ health and safety remains with the temporary work agency; only some duties are shared with or even transferred to the user undertaking. The health and safety obligations that are shared with/transferred to the user undertaking are primarily related to the actual workplace. Duties that involve long-term planning and measures, such as rehabilitation and the reporting of injuries, are still the sole responsibility of the temporary work agency. It should be noted that in some countries, the temporary work agency must, in any event, meet some obligations prior to assigning a temporary agency worker to a user undertaking. In Spain, for example, the temporary work agency must ensure that the worker, prior to making him/her available to the user company, has undergone theoretical and practical training in the prevention of occupational hazards. In Italy, the temporary work agency must inform the worker of any risks relating to health and safety connected with his/her activity at the user undertaking and must properly train and instruct them. However, the temporary work agency and the user undertaking can agree that these requirements must be fulfilled by the latter. In Estonia, an agreement between the user undertaking and the temporary work agency must be concluded in any case. This agreement must specify which party will be responsible for complying with occupational health and safety rules. If no such agreement exists, the parties will be jointly responsible for any breaches. There is shared responsibility for occupational health and safety regulations in Greece, Malta, the Netherlands and Slovakia, as well.

Restatement II: Comparative Overview  lxxix In Norway, no explicit rules exist on health and safety for temporary work agencies. The issue is covered by the principle of equal treatment. B.  Registrations, Licensing, Financial Guarantees According to Article 4(1) Directive 2008/104/EC, prohibitions or restrictions on the use of temporary agency work are only justified on grounds of the general interest relating in particular to the protection of temporary agency workers, the requirements of health and safety at work, or the need to ensure that the labour market functions properly and abuses are prevented. However, according to Article 4(4) of the Directive, this requirement is without prejudice to national requirements with regard to registration, licensing, certification, financial guarantees or monitoring of temporary work agencies. Despite these far-reaching discretionary Member State ­powers, there are many similarities with regard to the rules on registration, licensing, certification, financial guarantees and supervision of temporary work agencies. The operation of a temporary employment agency requires an official permit, licence or at least a registration in most countries (Austria, ­Belgium, Bulgaria, Croatia, Czech Republic, Cyprus, Germany, Hungary, Ireland, Italy, Latvia, Luxembourg, Montenegro, Poland, Portugal, Romania, ­Russia, Slovakia, Slovenia, Spain, Switzerland and Turkey). Admission to a public register is a precondition in most cases (for example, in Bulgaria, RNM, Greece, Iceland), too. In many countries, permission is only granted to companies that meet certain conditions with regard to their relationship with employees. For instance, in Cyprus, the conditions for granting a permit to operate a temporary work agency are, inter alia, observance of the principle of equal treatment and access for temporary workers to ­information about vacancies in the user undertaking. There are many countries (eg Denmark, Finland, Malta, the United ­Kingdom and Estonia) where no licence or permit is necessary to operate a temporary work agency. In Estonia, a licence does not need to be obtained; nor do special rules apply in terms of financial guarantees or a specific insurance. In Sweden, there are no special arrangements for statutory registration, licensing or authorisation, either. In Lithuania, temporary work agencies must inform the State Labour Inspectorate about the number of temporary workers employed when they start their activity. In the Netherlands, temporary work agencies are only required to register. In Norway, temporary work agencies must register and present a financial guarantee. In Serbia, an employment agency must hold a work permit issued by the ministry responsible for employment and must be entered in the register. However, temporary agency work is also ­performed by unlicensed agencies that register for ‘temporary employment’.

lxxx  Restatement II: Comparative Overview As employment law does not apply to this type of work, the Labour Inspectorate has no competence in this regard. C.  Equal Treatment (i)  Entitlement to Equal Treatment during Assignment Pursuant to Article 5(1) Directive 2008/104/EC, the principle of equal treatment applies, meaning that the basic working and employment conditions of temporary agency workers shall, for the duration of their assignment at a user undertaking, be at least equivalent to those that would apply if they had been recruited directly by that undertaking to occupy the same post. This principle has essentially been implemented in all EU Member States. In Turkey, the principle of equal treatment of temporary agency workers applies, too. According to the law there, temporary agency workers may not be treated less favourably with respect to basic working conditions than the user undertaking’s own employees in comparable work. The principle of equal pay is guaranteed in the RNM, Montenegro and Russia as well. However, the applicability of the principle of equal treatment is not a precondition in some countries for the use of temporary agency work. In Switzerland, there is no explicit provision for fair and equal treatment of temporary agency workers. A general right to equal treatment may,­ however, be deduced from civil law. In the United Kingdom, there are significant carve-outs, most notably in the form of a 12 weeks’ service threshold that user undertakings will frequently ‘contract around’ by limiting the duration of any individual assignment to an 11-week period. In Hungary, there are certain exceptions to the principle of equal treatment for temporary agency workers under specific conditions. (ii)  Content of Equal Treatment Entitlement According to Article 3(2) of Directive 2008/104/EC, Member States are responsible for determining what constitutes ‘basic working and employment conditions’. It is also true that they may not define this term in such a way as to render Directive 2008/104/EC ineffective in practice, but even so, the definition of ‘pay’ differs from one Member State to another. Specifically, the density and complexity of regulations differs among Member States. In Luxembourg, a collective agreement (which covers the entire Duchy) specifies that a temporary worker’s salary must, in principle, include all wage components paid at the user undertaking, including bonuses and supplementary payments such as lunch vouchers. Any salary increase (including changes in premiums for overtime, night work, work on Sundays or public

Restatement II: Comparative Overview  lxxxi holidays, etc) introduced at the user undertaking during the assignment must also be applied to temporary agency workers. In Denmark and Romania, collective bargaining agreements that are applicable at the user undertaking also automatically apply to temporary agency workers. In some countries, however, the law specifies the details. For example, in Ireland, the term ‘basic working and employment conditions’ is defined as meaning the terms and conditions of employment required to be included in a contract of employment by virtue of any enactment or collective agreement, or any arrangement that generally applies to employees or any class of employees of a user undertaking, and that relate to: pay, working time, rest periods, rest breaks during the working day, night work, overtime, annual leave, or public holidays. The word ‘pay’ is in turn defined as meaning ‘basic pay’ and any pay in excess of ‘basic pay’ with regard to shift work; piece work; overtime, unsocial hours worked, or hours worked on a Sunday. The definition of ‘pay’ also makes clear that sick pay, occupational pension schemes and financial participation schemes are not included. Relatively detailed regulations also exist in other countries (eg Latvia, Malta, Spain). In Lithuania, the user undertaking must ensure that the same provisions of laws, collective agreements and other labour law norms applicable to its employees shall apply to temporary workers during their assignment. The law differentiates between so-called ‘hard’ labour law provisions, which must be respected without exception (eg protection of pregnant employees and prohibition of discrimination on the grounds of gender, sexual orientation, etc, and specific working time regulations), and other provisions. Furthermore, the temporary agency worker’s wage for the work period at the user undertaking cannot be less than what would be paid to him or her under a permanent employment contract with the user undertaking for the same job. A deviation is only possible if the temporary agency worker works under an employment contract of indefinite duration, receives wages between assignments and if the amount of wages between assignments is the same as during the assignments. D. Access to Employment, Collective Facilities and Vocational Training Directive 2008/104/EC also provides for entitlements of temporary agency workers to access employment, collective facilities and vocational training (Article 6(1)). This provision has been implemented by all Member States (partly by using the very same language). Most countries outside the EU also provide for corresponding entitlements (eg Iceland and Turkey). However, a significant number of Member States allow for derogations where these are justified on objective grounds. This is the case, for instance, in Cyprus, Finland, Greece, Ireland, Lithuania and Malta.

lxxxii  Restatement II: Comparative Overview E. Information and Consultation and Representation of Temporary Agency Workers (i) Workers’ Representative Rights on the Use of Temporary Agency Work With regard to information and consultation rights, the provisions of the Directive are fairly limited. According to Article 8, the user undertaking must provide suitable information on the use of temporary agency workers when providing information on the employment situation in the user undertaking to workers’ representative bodies. (a)  Consultation and Co-determination Rights In Poland, the user undertaking is required to inform the representative trade union organisation about the intention to assign work to a temporary agency worker. If a user undertaking intends to hire a temporary agency worker for a period of more than six months, it must obtain the trade union’s consent. This regulation is an exception, since trade unions do not, in principle, enjoy competences under Polish law in the hiring of workers. In Sweden, trade unions at the workplace that are parties to a collective agreement must be informed prior to the decision to sign a contract with a temporary agency worker. The duty to inform and to consult comes with a power of veto by the trade unions. In Austria, the works council of the user enterprise must be informed about the intended use of temporary agency workers, too. Upon request by the works council, it must also be consulted. The works council must be informed about the commencement of the assignment and about working time arrangements and pay. In Luxembourg, workers’ representatives must also be consulted when the employer intends to use temporary agency workers. In Russia, trade unions must be consulted prior to concluding a contract with a temporary work agency if the number of workers involved exceeds 10 per cent of the average number of the user undertaking’s employees. (b)  Information Rights In Spain, the user undertaking must inform workers’ representatives about the use of temporary agency workers within a period of 10 days after concluding a relevant contract. In addition, the user undertaking must provide workers’ representatives with a copy of each contract of employment of a temporary agency worker. In Hungary, in addition, the user undertaking is required to inform the works council of the number of temporary agency workers. In Greece, the user undertaking must provide all relevant information on the use of temporary agency workers (eg the number of temporary agency workers and likelihood of direct employment with the

Restatement II: Comparative Overview  lxxxiii user ­undertaking) when providing information to workers’ representatives. In Slovenia, the law provides that the user undertaking, if requested, must inform either the trade union or the works council or workers’ representatives at least once a year about the reasons for the use of temporary agency workers and their number. In Denmark, user undertakings covered by the law or a collective agreement must provide suitable (ie statistical, but not personalised) information on the use of temporary agency workers to workers’ representative bodies. In the United Kingdom, information on the use of agency workers must be provided to either employees or their representatives. However, the definition of ‘information to be provided’ does not include information on temporary agency workers’ terms and conditions. (c) No Specific Information and Consultation Rights on the Use of Temporary Agency Work In the RNM, user undertakings do not have any specific obligation to inform workers’ representatives about the number or total share of temporary agency workers in the undertaking. Likewise, in Estonia, there are no special rules for temporary agency workers, but only a general obligation on the employer to inform the workers’ representatives about the use of temporary agency workers. In Serbia, temporary agency workers do not have any ‘collective rights’ whatsoever. (ii) Affiliation of Temporary Agency Workers with Regard to Collective Rights As regards the affiliation of temporary agency workers, the legal position varies from one country to another, which also affects the calculation of relevant thresholds. According to Article 7(1) of Directive 2008/104/EC, temporary agency workers shall, in principle, be counted for the purpose of calculating the workforce threshold above which workers’ representative bodies are to be established at the temporary work agency. In addition, Member States may provide that temporary agency workers shall be counted for the purpose of calculating the threshold above which workers’ representative bodies are to be established in the user undertaking as if they were directly employed by the user undertaking. However, only few EU Member States have implemented this non-binding (‘may’) provision. (a)  Affiliation Only with the Temporary Work Agency In Ireland, the law explicitly provides that temporary agency workers are treated as being employed by the temporary work agency for the duration

lxxxiv  Restatement II: Comparative Overview of their assignment, and thus are not counted to calculate the numerical thresholds imposed at the user undertaking for the establishment of workers’ representative bodies. In Croatia, the Czech Republic, Finland, Iceland, Lithuania, Estonia and Malta, too, temporary agency workers are only included in the calculation of the number of employees of the temporary work agency. In Poland, temporary agency workers are represented by works councils at the temporary work agency. It has not yet been decided whether temporary agency workers must be taken into account when calculating the threshold for the establishment of a works council at the user undertaking. (b) Affiliation with Both the Temporary Work Agency and the User Undertaking In Austria, temporary agency workers are considered part of both the workforce of the temporary work agency and the user undertaking. Consequently, they are represented by two works councils. Moreover, they must be taken into account in both enterprises when calculating the relevant thresholds and enjoy the right to vote and to be elected to the works councils in both enterprises. In Cyprus, Greece and Latvia, workers are also counted both as employees of the user undertaking and of the temporary work agency. In the Netherlands, temporary agency workers are not only entitled to participation rights with the temporary work agency, but are also considered to be employees of the user undertaking once they have worked there for at least 24 months. In France and Luxembourg, the average number of temporary agency workers over a 12-month period is taken into account to calculate the relevant threshold in the user undertaking. However, they are not included in the calculation if they have only been hired to substitute for a permanent employee. In the RNM, employees can by law be represented by both the representative bodies at the user undertaking and at the temporary work agency. In Italy, temporary agency workers are entitled to exercise all trade union rights of freedom and activity during their assignment, including participation in meetings of the user undertaking’s staff. (c)  Affiliation with the User Undertaking Only In Belgium and Spain, temporary agency workers are represented by workers’ representatives of the user undertaking while working there. Romanian law provides that the number of temporary agency workers must be taken into account when determining the minimum threshold of 20 employees for establishing workers’ representative bodies at the user undertaking, in cases where no trade union is present at the establishment. In Bulgaria, the law

Restatement II: Comparative Overview  lxxxv guarantees all collective rights for employees of temporary work agencies during the performance of their work at the user undertaking. F.  Right to Strike (i)  Right of Temporary Agency Workers to Strike It seems that in most countries temporary agency workers have the same right to strike as (other) employees. In a few countries, however, this right is limited. For instance, in Serbia, according to the Constitution, only ‘­employees’ but not persons engaged in flexible forms of employment, have the right to strike. As the category of temporary agency workers lies somewhere in between, they arguably have no right to strike. In Slovakia, temporary agency workers do not have the right to strike at the user undertaking as they are not employees of that undertaking. The position seems similar in Montenegro. Conversely, in Croatia, temporary agency workers (or rather, their trade union, because only trade unions have the right to call a strike) can launch a solidarity strike at the user undertaking, but the strike can only start once the user undertaking has been informed. Support strikes are also permissible in the Czech Republic and Hungary. (ii)  Use of Temporary Agency Workers as Strike-Breakers Another issue that arises is whether and to what extent temporary agency workers may be used as ‘strike-breakers’. According to Recital 20 of the Directive 2008/104/EC, the provisions of the Directive ‘are without prejudice to national legislation or practices that prohibit workers on strike being replaced by temporary agency workers’. (a)  Prohibition of Substituting Strikers with Temporary Agency Workers In most countries, the use of temporary agency workers during a strike is prohibited (eg Austria, Belgium, Bulgaria, Cyprus, Croatia, Finland, France, RNM, Greece, Lithuania, Montenegro, the Netherlands, Poland, Romania, Russia, Slovenia, Switzerland, Spain and Turkey). In Portugal, the employer may not replace strikers with workers who, when the notification of strike was issued, were not already working at the establishment. Moreover, the work of a striker may not, in principle, be carried out by a temporary agency worker who was hired to substitute for the striking employee. Similarly, in Germany, a user undertaking may not request a temporary agency worker to take up work if the firm is involved in a labour dispute. However, this does not apply if the temporary agency worker does not carry out tasks usually carried out by employees

lxxxvi  Restatement II: Comparative Overview who are on strike. This notwithstanding, temporary agency workers are entitled to refuse to perform work. In the United Kingdom, there is also a statutory prohibition of supplying workers to a company to break industrial action. This regulation does not, however, apply in the case of unofficial or so-called ‘wildcat’ strikes. Neither Czech nor Maltese law specifically regulates whether temporary agency workers may replace striking workers. However, in both countries it is argued that whilst the law does not specifically prohibit it, it would violate the basic principles of the law if the employer were allowed to hire temporary workers to replace striking workers. In Luxembourg, temporary work agencies have committed themselves in the relevant collective bargaining agreement not to hire-out workers as substitutes in case of a strike. In Iceland, members of unions who are on strike and who are employed by a temporary work agency may not perform work that is usually performed by workers who belong to the same union and who are on strike. Members of other unions can continue to carry out their usual assignments. (b)  No Prohibition of Replacement No prohibition of the use of temporary agency workers in case of a strike exists, e.g. in Estonia and Latvia. In Norway, the use of employees from temporary work agencies is permitted as long as they are not covered by the same collective agreement as workers who are on strike. In Denmark, an enterprise can prepare for impending strike action by hiring temporary agency workers, regardless of whether the enterprise is covered by a collective agreement or not. Temporary agency workers can familiarise themselves with the work before the strike is launched. G. Collective Bargaining Agreements Derogating from Statutory Provisions In most countries, collective bargaining agreements can only derogate from statutory provisions for the benefit of employees (eg in Cyprus, Finland, France, Greece, Iceland, Latvia, Malta, Portugal, Slovakia, Slovenia and Turkey). However, it appears that in some countries, collective agreements may also deviate to the detriment of employees. Under Article 5(2)–(4) of Directive 2008/104/EC, this is possible if certain limits are observed. In some countries, it is possible to collectively agree less favourable terms for temporary agency workers with the exception of certain ‘deviationproof’ statutory rules. This is the case, for example, in Croatia, where less favourable working conditions can be applied to temporary agency workers if this has been agreed upon in the collective agreement concluded between the temporary work agency (or an association of agencies) and trade unions.

Restatement II: Comparative Overview  lxxxvii In Bulgaria, the Netherlands, Hungary and Italy, a deviation in peius is permitted in cases explicitly mentioned in the relevant law. In Germany, deviations to the detriment of temporary agency workers are only allowed in certain areas (eg possible extensions of the 18-month statutory limitation for hiring out temporary workers, the principle of equal treatment) and only if certain limits are observed. In Austria, a derogation from the equal pay principle is only possible in relation to remuneration during an assignment. In Sweden, some provisions of statutory law can be set aside by collective agreements, even to the detriment of workers, but only if they are still in line with Directive 2008/104/EC. It seems that in some countries, a certain degree of state control of the parties to collective agreements is considered necessary. In Norway, for example, the Ministry of Labour and Social Affairs has the option to grant collective parties the right to deviate from the statutory rules on equal treatment, but the general protection of employees must be respected in all cases. In Ireland, a collective agreement concluded between an employer or a user undertaking (or a representative association) and a body or­ workers’ representative bodies may deviate from certain basic employment and working conditions. Such an agreement needs to be approved by the labour court, subject to the court being satisfied that the bodies negotiating the agreement on behalf of employees are sufficiently representative of temporary agency workers and that the agreement is concluded in a way that is usually applied when determining pay or other working conditions of employees in the area concerned. It should be noted that in many countries, temporary agency work is not (yet) covered by collective agreements. This is the case, for instance, in the Czech Republic, Estonia, RNM, Lithuania, Montenegro, Serbia and the United Kingdom. In Poland, too, there are no collective agreements between agencies and unions representing temporary agency workers. *** This overview was composed by Bernd Waas, assisted by Elena Gramano and Hendric Stolzenberg.

lxxxviii

1 Atypical Employment Relationships: The Position in Austria MARTIN RISAK

I. INTRODUCTION

A

LL THREE FORMS of ‘classic’ atypical employment relationships treated in this volume are regulated in Austrian law. The procedure and extent of regulation differs significantly, ranging from recourse to the general notions of civil law with successive fixed-term contracts to a relatively tight regulation of part-time employment as well as temporary agency work in a special Act that originates from 1988. All three forms of atypical employment have benefited from respective EU directives, although the domestic legislation often goes beyond the mere verbatim transposition and includes original approaches like the extra-time bonus for part-time workers or the co-determination rights of the works council of the user undertaking in case of temporary agency work. The most recent statistics from Eurostat’s Labour Force Survey1 indicate that 27.3 per cent of the workforce in Austria worked part time in 2018, with significant differences between male (ten per cent) and female workers (46.9 per cent). Nine per cent of the workforce are employed on fixed-term contracts. 1.9 per cent of the workforce are employed through employment agencies.2 II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements There is no explicit legal definition of the notion of fixed-term work in ­Austrian law. Long-standing jurisprudence, however, holds that an employment 1 

http://ec.europa.eu/eurostat/web/lfs/data/database (last accessed on 8 August 2019). The available data is for 2015, cf Norman Wagner, ‘Arbeitskräfteüberlassung in Österreich: Die neuesten Werte für 2015’, Sozial und Wirtschaftsstatistik Aktuell 2016/9, 1. 2 

2  Martin Risak relationship for a definite period (fixed-term work) exists if its duration is defined in terms of the calendar or if the ending of the employment relationship can be objectively established and foreseen in some other way.3 This must be agreed by the parties—otherwise, the employment relationship is deemed indefinite, as this is the statutory default.4 Section 1158(1) of the Civil Code (Allgemeines Bürgerliches Gesetzbuch— ABGB)5 as well as Section 19 of the Act on White Collar Workers (Angestelltengesetz) only deal with the termination of fixed-term contracts, and neither defines it nor points out under which circumstances it is permitted. The existence and legality of fixed-term work is therefore presupposed.6 There are no formal requirements; especially no requirement of a written form. The fixed-term does not even have to be justified, except in the case of temporary agency work—successive fixed-term contracts must be based on justified grounds (see IV.C.(i)). B. Lawful Stipulation of the Contractual Terms The employee may experience a number of disadvantages under a ­fixed-term employment relationship, especially when consecutive fixed-term contracts are concluded. Many employee rights only apply after a certain uninterrupted period of employment, or depend quantitatively on total duration (period of notice, annual leave rights). Above all, there is no job security once the agreed term of employment ends, as only terminations by notice or by summary dismissal may be contested in court. The conclusion of ­fixed-term employment contracts involves the risk of excluding such workers from statutory job security. However, there is no explicit statutory provision in general employment law prohibiting the extension of a fixed-term contract or the conclusion of successive fixed-term contracts. Long-standing case law views such practices as a circumvention of protection against dismissal (which only applies to dismissals by notice or summary dismissals) and of the provisions that underlie an employee’s right or entitlement to uninterrupted employment

3 Long-standing jurisprudence since the Supreme Court ruling of 14 June 1955—4 Ob 60/55; last mentioned in Supreme Court judgment of 5 October 2011—8 Ob A 63/10p. 4  Supreme Court judgment of 21 October 1998—9 Ob A 161/98m; Walter Schrammel, in Attila Fenyves, Ferdinand Kerschner and Andreas Vonkilch (eds), ABGB §§ 1151 bis 1164a, 3rd edn (Vienna, Verlag Österreich, 2012) s 1158 para 4. 5  The Civil Code applies to all workers (white- and blue-collar workers) whereas the Act on White Collar Workers only applies to white-collar workers as a lex specialis. The legal situation of white-collar workers is regulated by the Act on White Collar Workers and—for issues not regulated there—in addition by the Civil Code; the employment contracts of blue-collar workers are only regulated by the Civil Code and some sections of the Trade Act of 1859 which are still in force. 6 B Trost, in G Löschnigg (ed), Angestelltengesetz, Vol 2, 9th edn (Vienna, ÖGB Verlag, 2012) s 19 para 22.

Atypical Employment Relationships: The Position in Austria 3 (eg the statutory minimum duration of notice periods or sick leave). It therefore assumes that an employer who concludes successive fixed-term contracts that are not justified on substantiated grounds seeks to circumvent provisions that protect the employee. The employer must therefore justify the conclusion of a successive fixed-term contract—otherwise, the agreement on the fixed term will be deemed void and the contract will be transformed into contract of indefinite duration. The courts consider the following reasons as justifying a successive fixed-term contract: the temporary nature of the work,7 the replacement of an employee,8 seasonal work9 or professional sports where fixed-term contracts are the norm.10 The more often a contract is renewed, the more rigorous the courts apply the test of justification of that fixed-term contract.11 Another issue is the time elapsed between the two fixed-term contracts concluded by the same parties—can they be considered consecutive12 or can the two contracts be assessed independently of each other? The longer the duration between contracts, the stronger the argument against the assumption that the successive contract is a continuation of the first one and in favour of considering the contracts individually. One strong factor in favour of such separate assessment is if the duration of not working significantly exceeds that of working for the employer.13 C. Termination/End of Fixed-Term Contracts Fixed-term contracts usually end with the expiration of the term or the occurrence of the agreed condition (eg the return of the employee the fixed-term worker was replacing).14 The contract may also be terminated by mutual agreement, by summary dismissal or by the employee for good reason. In principle, a fixed-term contract cannot be terminated by giving notice. The employee may, however, terminate a contract that has been concluded for a term of more than five years or for life by giving six months’ notice.15

7  Supreme Court judgment of 28 October 2013—8 Ob A 50/13f, DRdA 2014/34 (Martin Risak)—waiter in a discotheque. 8 Supreme Court judgment of 3 April 2008—8 Ob A 79/07m, ZAS 2009/5 (Daniela Krömer). 9  Supreme Court judgment of 25 June 1998—8 Ob A 58/98g, Arb 11.746; 10 April 2008, 9 Ob A 136/07a, DRdA 2009/44 (Reinhard Resch)—theatre ushers. 10  Supreme Court judgment of 24 February 1999—9 Ob A 329/98t, Arb 11.836—football player. 11  Supreme Court judgment of 10 April 2008—9 Ob A 136/07a, DRdA 2009/44 (Reinhard Resch)—theatre ushers. 12 Supreme Court judgment of 25 May 1994—9 Ob A 67/94, DRdA 1995/11 (Alfred Burgstaller). 13  Supreme Court judgment of 28 October 2013—8 Ob A 50/13f, DRdA 2014/34 (Martin Risak). 14  Act on White Collar Workers s 19(1); Civil Code s 1158(1). 15  Act on White Collar Workers s 21; Civil Code s 1158(3).

4  Martin Risak In all other cases, this is only possible if it has been explicitly agreed upon and if this possibility does not contravene the notion of the fixed-term contract, ie automatic termination without protection in exchange for high protection against dismissal during the course of the term. The courts only admit termination of fixed-term employment on notice in case of long terms (usually one year or longer)16 or if the fixed term is justified, eg in the case of state-assisted employment for a limited time.17 Special provisions exist for pregnant employees: a pregnant woman is not obliged to look for a new job once her fixed-term contract lapses, and her employment may thus be extended in accordance with provisions in law18 until the pregnant employee’s so-called ‘protection period’ commences, ie eight weeks before the calculated due date, during which the employee’s wages continue being paid by statutory sickness insurance. This extension is not granted in cases in which the fixed term is fully justified. The Act lists the following justifying reasons: prevailing interests of the employee, replacement of another employee, seasonal work or a probation period that has to be longer than that provided for by statute or collective agreement (usually one month).19 D. Rights and Status of Fixed-Term Worker (i)  Equal Treatment Section 2b(1) of the Act on the Adaptation of Employment Contract Law (Arbeitsvertragsrechtsanpassungsgesetz—AVRAG) provides that fixed-term workers may not be discriminated against in comparison with permanent workers with a contract of indefinite duration unless differentiated treatment is justified on objective grounds. Prior to the introduction of this provision in 2002, discrimination against fixed-term employees was often deemed indirect discrimination based on gender, as ruled by the European Court of Justice.20 The Act does not explicitly refer to ‘comparable’ permanent employees as does Clause 4 of the ETUC-UNICE-ECCP Framework Agreement on Fixed-term Work. According to the legal literature, the Austrian notion has to be interpreted in line with the definition in Clause 3(2) of the Framework

16 

Supreme Court of 24 June 2004—8 Ob A 42/04s, ZAS 2004/49 (Petra Band)—taxi driver. Supreme Court of 27 August 2003—9 Ob A 42/04s, ZAS 2004/49 (Petra Band)—transit worker. 18  Act on the Protection of Mothers (Mutterschutzgesetz—MSchG) s 10a. 19  Act on the Protection of Mothers s 10a(2). 20 Eg Supreme Court judgment of 1 December 2004—9 Ob A 90/04g, ecolex 2005/48, referring to ECJ judgment of 27 June 1990—Case C-33/89— Kowalska v Freie und Hansestadt Hamburg ECLI:EU:C:1990:265. 17 

Atypical Employment Relationships: The Position in Austria 5 Agreement, ie a worker with an employment contract or relationship of indefinite duration in the same establishment, engaged in the same or a similar work/occupation, due regard being given to qualifications/skills. Where there is no comparable permanent employee in the same establishment, the comparison shall be made by reference to the applicable collective agreement, or where there is no applicable collective agreement, in accordance with national law, collective agreements or practice.21 It has been argued that ‘similar’ work is to be characterised by the field of work, the necessary qualifications, the employment conditions and the applicable collective bargaining agreements (especially the classification of the work in the employer’s wage-scales).22 ‘Objective grounds’ justifying less favourable treatment of fixed-term workers are not further elaborated in the Act. According to the legal literature, these reasons must be grounded on legal or factual structures of the employment relationship and must be accepted by the legal order (eg ­ qualifications, length of service, position within the undertaking).23 ­Certain differentiations are provided for in law, eg if the employment relationship is of less than one month’s duration, no written statement has to be issued24 or contributions made by the employer to the severance pay fund.25 The statutory reasons justifying a fixed-term contract with a pregnant worker (prevailing interests of the worker, replacement of another worker, seasonal work or the necessity of a probation period that is longer than one month—see section II.C above) may also be used as a guideline.26 As a rule of thumb, the longer the fixed-term employment relationship continues, the more difficult it becomes to justify any adverse treatment—eg an exclusion from training may be justified by the fact that it is not costeffective for the employer—but this is only true for short-term employment relationships.27 (ii)  Employment Opportunities Section 2b(2) AVRAG requires the employer to inform his/her fixed-term employees about any available open-ended posts at the establishment. This information may either be provided by informing the individual employees directly or by issuing a general announcement in the undertaking or establishment in an area that is easily accessible by all employees. 21  M Binder and A Mair, in M Binder, F Burger and A Mair, AVRAG ArbeitsvertragsrechtsAnpassungsgesetz, 3rd edn (Vienna, Manz Verlag, 2016) s 2b para 8. 22  M Binder and A Mair, AVRAG (n 21 above) s 2b para 9. 23  M Binder and A Mair, AVRAG (n 21 above) s 2b para 10. 24 Act on the Adaptation of Employment Contract Law (Arbeitsvertragsrechtsanpassungsgesetz—AVRAG) s 2(1). 25 Corporate Employee and Self-Employed Pensions Act (Betriebliches Mitarbeiter und Selbständigevorsorgegesetz—BMSVG) s 6(1). 26  M Binder and A Mair, AVRAG (n 21 above) s 2b para 11. 27  B Trost, Angestelltengesetz (n 6 above) s 19 para 28.

6  Martin Risak Austrian law does not provide for an explicit obligation on the employer to facilitate access by fixed-term workers to any suitable opportunities to enhance their skills, or promote career development and occupational mobility.28 E. Information and Consultation The works council represents all employees, regardless of employment contract type. The works council must be informed about any newly-hired employees, and all relevant information on their employment conditions, such as their post and pay, as well as whether a probation period or a fixed term has been agreed, must be shared with the works council. F. Specific Provisions In some cases, fixed-term work is considered the norm: apprenticeship contracts covered by the Apprenticeship Act (Berufsausbildungsgesetz—BAG) are always concluded for a fixed term (for the duration of the apprenticeship as provided for in the Act).29 Contracts with actors that do not expressly state a fixed term automatically terminate with the end of the theatre’s season.30 For a limited number of employees, explicit statutory provisions on consecutive fixed-term contracts exist: —— Journalists working for the Austrian Broadcasting Corporation (­Österreichischer Rundfunk—ORF) may be employed on fixed-term contracts without limitation if their agreed or actual working time within six months is less than four-fifths of the regular weekly working time on a monthly average, as regulated by statute or collective agreement, times 4.3.31 The ORF must, however, inform the employee at least four weeks in advance if the contract will not be extended.32 If this information is not provided, the employee is entitled to financial compensation.33

28 This is provided for in cl 6(2) of the ETUC-UNICE-ECCP Framework Agreement on Fixed-term Work. M Binder and A Mair, AVRAG (n 21 above) s 2b para 28, argue for such an obligation based on the general duty of care of the employer. 29  Apprenticeship Act s 13 BAG. 30  Theatre Working Act (Theaterarbeitsgesetz—TAG) s 24(3). 31  Austrian Broadcasting Corporation Act (ORF-Gesetz— ORF-G) s 32(5). 32  This ‘notice period’ is extended to eight weeks after three years following the commencement of the first contract, and to 12 weeks after five years: Austrian Broadcasting Corporation Act s 32(5). 33  8.33 % of remuneration over the last year, 16.66 % after three years and 24.99 % after five years: s 32(5) ORF-G.

Atypical Employment Relationships: The Position in Austria 7

——

——

——

——

It is argued that the reason for this liberal special regime lies in the statutory broadcast programming mandate, which requires special flexibility.34 The University Act 2003 (Universitätsgesetz) also includes special ­provisions on fixed-term employment in section 109. As a general principle, a fixed term may run for a maximum of six years. Consecutive fixed-term contracts may only be concluded with employees who work in third-party-funded projects or research projects or as teaching staff or replacement workers. The total duration of such contracts may not exceed six years, or eight years for part-time workers. Beyond that, a single extension is possible for up to 10 years (for part-time workers: 12 years) if good reasons exist (particularly for the continuation and finalisation of research projects and publications). New provisions in paragraphs section 109(3) and (4) deal with changes within the university hierarchy (especially if a worker changes from a pre-doc to a ­post-doc position); this justifies another fixed term for a maximum of six years (for part-time workers: eight years). However, the total duration stated above may not be exceeded. Working time as a student assistant is not taken into account. A breach of these complicated restrictions results in the transformation of the contract into an openended employment relationship. The Act on Contractual Public Servants (Vertragsbedienstetengesetz— VBG) allows a single extension for a maximum of three months. If the employment relationship continues beyond that, it will be treated as one that was concluded for an indefinite duration right from the beginning.35 The Act on Parliamentary Staff (Parlamentsmitarbeiterinnen- und Parlamentsmitarbeitergesetz) covers political aides of Members of P ­ arliament. Section 6 states that automatic termination at the end of a legislative period is permitted, as well as the continued conclusion of such contracts, even if they are concluded successively without interruption. The Theatre Working Act includes a provision that automatically extends a fixed term of more than one year for another full year if the theatre does not inform the actor in writing that it will not extend the contract. The contract will in that case be extended for another year unless the actor informs the theatre in writing that he/she opposes the extension.36

34  Walter Schrammel, ‘Kettendienstverträge mit Rundfunkmitarbeitern’, Recht der Wirtschaft (RdW) 1986, 248. 35  Act on Contractual Public Servants s 4(4). 36  Theatre Working Act s 27. The applicable collective agreement may specify the date by when the employer must inform the actor about any possible extension.

8  Martin Risak G. Collective Bargaining Agreements Deviating from Statutory Provisions Although collective bargaining agreements may not deviate from the rules laid out above, they can be useful in pointing out that certain forms of fixed-term contracts are customary within an industry. For example, skiing instructors are usually employed for the duration of the skiing season. The corresponding sectoral collective bargaining agreement states that this must be considered fixed-term work.37 On the other hand, a sectoral collective bargaining agreement may also provide that only fixed-term contracts for periods of months or weeks or ending on a certain date may be permitted and that seasonal contracts which do not include such provisions will be deemed open-ended contracts.38 III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements Section 19d(1) of the Working Time Act (Arbeitszeitgesetz—AZG) defines part-time work as an employment contract with an average weekly working time that is below the statutory regular working hours of 40 hours per week or a lower number of normal working hours as provided for in the applicable collective or works agreement.39 The definition of part-time work does not refer to the working time common in an enterprise but to an objectively normal amount of working time. As a general principle, employment contracts do not require any special form—this also applies to the amount of working time. The Supreme Court has ruled, however, that employment contracts must include the number of regular working hours. If this is not the case, then an appropriate number of working hours is deemed to be included, which conform to the normal amount of working time to be expected at the time of the conclusion of the contract.40 The written statement of the conditions applicable to the contract must include the number of working hours the employee shall regularly work.41 A breach of this obligation does not, however, result in a fixed number of hours to be worked or similar, but only in a right of the employee to request this information. 37 Supreme Court judgment of 24 March 1987—14 Ob A 36/87, Wirtschaftsrechtliche ­Blätter (wbl) 1987, 195. 38  Supreme Court judgment of 8 March 1977—4 Ob 14/77. 39  Most Austrian collective agreements have limited the weekly working time to 38.5 or 38 hours per week. 40  Supreme Court judgment of 22 December 2004—8 Ob A 116/04y, SZ 2004/189. 41  Act on the Adaptation of Employment Contract Law s 2.

Atypical Employment Relationships: The Position in Austria 9 A change in the amount of regular working time must be agreed in ­ riting.42 This is intended as a protective measure for the employee, as it is w very difficult to distinguish between a mutually agreed extension of working time and overtime work requested by the employer, which entitles the employee to an overtime bonus (see III.F). If the written form is not observed, the hours the employee has worked beyond the initial regular working time will be considered overtime work and the overtime rate will have to be paid. B. Opportunities for/Right to Part-Time Work Under Austrian law, there is no general right for an employee to request a reduction of his/her working hours, but a large number of special provisions entitle him/her to limit the initially agreed working hours. This is often combined with public benefits that counterbalance the reduction in pay that results from reduced working hours. —— Parental part-time: in businesses with more than 20 workers, employees who have been employed for at least three years without interruption are entitled to work part time up to the seventh birthday of their child(ren). The details must be agreed on, and in case no agreement can be reached, the employer can fend off the employee’s proposal by initiating a court procedure to apply the part-time working scheme proposed by the employer. The employer cannot prevent an employee from working part time per se, but s/he can influence its conditions.43 In all other cases, the employee can sue his/her employer for parental parttime work and the court will grant him/her this right if the employee’s interests outweigh those of the employer.44 The employee may claim public child care benefit (Kinderbetreuungsgeld) under the Act on Child Care Benefit (Kinderbetreuungsgeldgesetz) for up to 35 months if his/ her income from work does not exceed a certain threshold. —— Care for terminally ill relatives and seriously ill children: if a close relative is terminally sick or a child is seriously ill, the employee may reduce his/her working hours to take care of him/her for up to three months (for children: five months). This can be extended up to nine months. The employer can prohibit this reduction of working hours by initiating a court procedure and will be successful if the employer’s operational interests outweigh those of the employee.45

42 

Working Time Act s 19c(2). on the Protection of Mothers s 15h; Act on Paternal Leave (Väterkarenzgesetz— VKG) s 8. 44  Act on the Protection of Mothers s 15i; Act on Paternal Leave s 8a. 45  Act on the Adaptation of Employment Contract Law ss 14a, 14b, 15a. 43 Act

10  Martin Risak —— In other cases (care of (non-terminally) sick relatives or for training purposes, part-time for elderly employees, short-time work in times of crisis or hiring new employees), part-time work must be agreed upon. There is no procedure for the employee to enforce a reduction of working hours.46 These mentioned forms of part-time work are unique as they are supplemented by entitlements to benefits that compensate for the reduction in wages to a certain extent: if the reduction has been agreed for training purposes, benefits from unemployment insurance (part-time training benefit—Bildungsteilzeitgeld) will be provided.47 This is also the case for short-time work in times of crisis (short-time assistance—Kurzarbeitsunterstützung—paid to the employer, which shall be used to compensate for the reduction in wages to a certain extent)48 as well as in the case of part-time for elderly employees (above 50, which is usually a partial retirement), which entitles the elderly employee to a part-time benefit (Altersteilzeitbeihilfe).49

C. Opportunities for/Right to an Extension of Working Time A part-time worker has no explicit statutory right to extend his/her working time. Since 2016, an employer is required to inform his/her p ­ art-time workers about any vacancies in the undertaking which may entail ­ longer ­working hours. This duty of information can be fulfilled by i­nforming part-time workers about any vacancies directly or by placing the information on a bulletin board that is accessible to all part-time workers, but also by using information and communication technologies.50 A breach of this obligation results in an administrative fine of a minimum of EUR 20 up to EUR 436 being imposed on the employer.51 D. Rights and Status of Part-Time Workers (i)  Equal Treatment Section 19d(6) of the Working Time Act explicitly prohibits adverse treatment of part-time workers in comparison to full-time workers, unless objective grounds justify differentiated treatment. As with fixed-term workers

46 

Act on the Adaptation of Employment Contract Law ss 11a, 14d. Unemployment Insurance Act (Arbeitslosenversicherungsgesetz—AlVG) s 26a. 48  Act on Labour Market Services (Arbeitsmarktservicegesetz—AMSG) ss 37b and 37c. 49  Unemployment Insurance Act (Arbeitslosenversicherungsgesetz—AlVG) s 27. 50  Working Time Act s 19d(2a). 51  Working Time Act s 28(1). 47 

Atypical Employment Relationships: The Position in Austria 11 (see section II.D.(i) above), the Act does not mention who is a ­comparable full-time worker. It must be interpreted in accordance with the definition in Clause 3(1) of the Framework Agreement on Part-time Work. Hence, a comparable worker means a full-time employee who works in the same establishment and who has the same type of employment contract or relationship, is engaged in the same or a similar work/occupation, due regard being given to other considerations which may include seniority and qualifications/skills. Where there is no comparable full-time worker in ­ the same establishment, the comparison shall be made by reference to the applicable collective bargaining agreement or, where there is no applicable ­collective bargaining agreement, in accordance with national law, collective agreements or practice. The law also provides that the burden of proof lies with the employer that any adverse treatment is not based on the fact that the employee works part time (reversal of evidence—section 19d(6) Working Time Act). This requires the employer to provide proof of justification for less favourable treatment of the part-time employee; otherwise the courts will assume the employee is being discriminated against.52 The Working Time Act explicitly states that voluntary employer benefits must be paid in at least the amount that corresponds to the reduced working time in comparison to full-time employees (ie pro rata). The Act also provides that where employee entitlements that are based on statute or collective bargaining agreements must be calculated on the basis of working time (eg sick pay or holiday pay), any regularly worked overtime must be taken into account. This expressly applies to special payments (the so-called 13th and 14th monthly salary provided for in the collective bargaining agreements and that are customary in Austria).53 In this context, the Austrian courts54 as well as the European Court of Justice55 have had to deal with cases in which child care allowance was paid to part-time workers, applying the principle pro rata temporis. Taking account of the reduced working time in comparison with that of full-time workers constituted an objective criterion, allowing a proportionate reduction of the child care allowance. In another case, the Supreme Court considered it discriminatory if part-time workers, relative to their working hours, have to work more days outside their workplace in order to be entitled to a field-work bonus. The court considered it relevant that the workers worked a certain percentage of their total working time outside the workplace and 52 

Supreme Court judgment of 27 September 2013—9 Ob A 58/13i, Arb 13.120. Working Time Act s 19d(4). 54  Supreme Court judgment of 25 November 2014—8 Ob A 76/14f, Arb 13.186; Supreme Court judgment of 18 December 2014—9 Ob A 148/14a. 55  ECJ judgment of 5 November 2014—Case C-476/12 Österreichischer ­Gewerkschaftsbund v Verband Österreichischer Banken und Bankiers, Zeitschrift für Arbeits- und Sozialrecht (ZAS) 2015/55 (Julia Eichinger). 53 

12  Martin Risak not a specific number of days per month, as the employer could not justify that only the latter would warrant payment of the premium.56 In many cases, arbitrary adverse treatment can also be considered indirect discrimination based on gender, as the majority of part-time workers are female.57 An alternative ground for claiming equal treatment thus exists.58 (ii)  Dismissal Protection No special protection against dismissal generally exists for part-time workers. However, they are not excluded from dismissal protection due to their reduced working hours, nor does a threshold based on a certain amount of working hours exist in order to be covered by general dismissal protection. (iii)  Other Matters N/A E. Information and Consultation No special statutory provisions on the collective information and consultation of part-time workers exist. They are covered by the provisions on the works council and its co-determination rights at the establishment and undertaking. The employee’s number of working hours does not affect the right to vote for works council members or the right to be elected to the works council. The number of employees relevant for establishing a works council and the number of its members are calculated based on a headcount and not on how many full-time employees work for the undertaking. As stated above, the employer must inform part-time workers about job openings that might entail longer working hours (see section III.C above).59 F. Other Part-Time Arrangements In Austria, overtime (ie working more than eight hours per day or 40 hours per week) is paid with a statutory premium of 50 per cent in addition to the employee’s regular hourly wage. Part-time work (thus not attracting the overtime premium) was always seen as an inexpensive way to even

56 

Supreme Court judgment of 27 September 2013—9 Ob A 58/13i, ecolex 2014/35. Eg Supreme Court judgment of 1 December 2004—9 Ob A 90/04g, Arb 12.491. 58 See W Brodil, M Risak and C Wolf, Arbeitsrecht in Grundzügen, 10th edn (Vienna, ­LexisNexis, 2019) para 377a. 59  Working Time Act s 19d(2a). 57 

Atypical Employment Relationships: The Position in Austria 13 out temporary peaks in internal demand for labour or to fill in for absent employees by either allocating the working time unevenly over the weeks or by requesting employees to work overtime. Legislation responded in two steps: in 1992 it was prohibited for the employer to allocate working time unilaterally, but required the employee’s consent or—if general consent was given—the employee had to be informed two weeks prior to the reallocation of working time. Since 1992, a part-time employee may refuse to work overtime if this clashes with his/her relevant interests such as child care.60 If an employee is on parental part-time, s/he does not have to work any extra hours.61 In 2007, a premium of 25 per cent for overtime by part-time workers was introduced. This premium does not have to be paid if the overtime work is compensated with time off in lieu on a 1:1 ratio within the same quarter of a calendar year or within any other three-month period agreed by the parties. This period can only be extended in case of a flexible working time scheme that allows the employee to allocate his/her working time autonomously. Collective bargaining agreements may deviate from the statute and may provide for higher or lower premiums for overtime work. On-call work, ie an employment contract without expressly fixed working hours, is prohibited in Austria. This was explicitly stated in 2004 in a widely discussed Supreme Court decision62 which ruled that if the amount of working time is not determined in the contract, the number of working hours that may plausibly be expected from the employee applies (and must be paid). In Austria, no express statutory provisions exist for job-sharing arrangements, ie contractual clauses that part-time employees must coordinate the working hours among themselves to ensure that the workplace is staffed at the agreed times. Such arrangements do not seem to exist in practice. G. Collective Bargaining Agreements Deviating from Statutory Provisions Collective bargaining agreements may deviate from statutory provisions protecting part-time workers in only some areas. The most important one is the possibility to modify the regulations on the premium for overtime,63 but the social partners have not yet made wide use of this. Collective bargaining agreements may also define the period applicable for the calculation of regularly worked extra hours and for the calculation of voluntary employer 60  Working Time Act s 19d(2) and (3); see also M Risak, ‘Emanzipatorische Aspekte der Arbeitszeitregulierung’ Momentum Quarterly (2016) Vol 5, No 2, p 75, 85. 61  Working Time Act s 19d(8). 62 Supreme Court judgment of 22 December 2004—8 Ob A 116/04y, DRdA 2005/33 (­Bernhard Schwarz). 63  Working Time Act s 19d(3f).

14  Martin Risak social benefits (see D.(i)).64 In all other cases, the collective bargaining agreement may only modify the position of the part-time worker in his/her favour (the general provision of section 19g Working Time Act states that the employee’s rights cannot be abrogated or limited by the employment contract and collective bargaining agreement, unless expressly permitted). IV.  TEMPORARY AGENCY WORK

A.  Legal Definitions/Formal Requirements Section 3(1) of the Act on Temporary Agency Work (Arbeitskräfteüberlassungsgesetz—AÜG) does not use the notion of the temporary work agency but the ‘leasing of workers’ and defines it as the assignment of workers to a third party for work. This emphasises the concept that the temporary work agency cedes most employer rights (especially the authority to give ­instructions/orders) to the user and thereby enables it to use the temporary agency worker as if s/he were directly employed by the user undertaking. The Act also defines the user undertaking as the entity assigning workers of a temporary work agency to carry out tasks for the user undertaking.65 It covers not only employees but also employee-like persons, defined as individuals who perform work/services by order of and on account of another person without being in an employment relationship, but who may be considered employee-like due to their economic dependence.66 There are no form requirements for the conclusion of an employment contract with a temporary agency worker. The contract therefore does not have to be concluded in writing; a written statement must, however, be issued.67 If this does not occur, the temporary agency worker will not be required to work for the user undertaking.68 The Act on Temporary Agency Work states that an employee cannot be leased to a user undertaking without his/her express consent.69 The contract must also include at least 11 aspects enumerated in section 11(1) of AÜG, including the place of work, working hours, etc.70 Certain clauses are prohibited: the limitation of the right to remuneration to times during which the worker works for a user undertaking; the conclusion of a fixed-term contract without justification; and the reduction of limitation periods or restrictive covenants.71

64 

Working Time Act s 19d(7). Act on Temporary Agency Work s 3(2). 66  Act on Temporary Agency Work s 3(4). 67  Act on Temporary Agency Work s 11(4). 68  Act on Temporary Agency Work s 11(5). 69  Act on Temporary Agency Work ss 2(2), 11. 70  Act on Temporary Agency Work s 11(1). 71  Act on Temporary Agency Work s 11(2). 65 

Atypical Employment Relationships: The Position in Austria 15 B. Registrations, Licensing, Financial Guarantees etc Temporary work agencies must be licensed, ie registered with the trade authority. They are covered by the Trade Act (Gewerbeordnung—GewO) and pursuant to section 94 number 72, temporary agency work (‘­Überlassung von Arbeitskräften’) is a so-called ‘regulated trade’, meaning that in order to register, an exam has to be passed, which consists of four modules (practical and theoretical exams and general exams for training apprentices and the management of an enterprise).72 Temporary work agencies have to fulfil a number of duties to record information on the workers, the user undertakings and the periods of deployment. They supply this information electronically to the Minister of Social Affairs, and this information forms the basis of statistics on ­temporary agency work in Austria.73 C. Relationship between Temporary Agency Worker and Temporary Work Agency (i)  Fixed-Term and Part-Time Contracts Notwithstanding the general rule that the initial fixed-term contract with an employee does not require justification (see section II. above), any fixedterm contract concluded with a temporary agency worker requires a justified reason.74 It is not permissible to link the contract for the assignment to the user undertaking, as this would shift the risk of idle times between deployments to the temporary agency worker.75 Part-time contracts may be concluded but the employee may not be required to work overtime on a regular basis76 and thereby enable the temporary work agency to lower his/her working hours (and pay) during the times the employee is not deployed.77 (ii)  Rights and Obligations/Liability The temporary agency worker is entitled to adequate remuneration, ie the remuneration that is customary at the user undertaking. Remuneration must 72  See the announcement of the Professional Association of General Trades of 30 J ­ anuary 2004, available at: www.wko.at/Content.Node/branchen/oe/Gewerbliche-Dienstleister/­Pruefung sordnung_Arbeitskraefteueberlasser.pdf (last accessed on 14 July 2016). 73  Act on Temporary Agency Work s 13. 74  Act on Temporary Agency Work s 11(2). 75  Supreme Court judgment of 12 September 1999—8 Ob A 130/99x, Das Recht der Arbeit (DRdA) 2000/38 (Johann Egger). 76  Act on Temporary Agency Work s 11(2) number 3. 77 R Schindler, in M Neumayr, G Reissner (eds), Zeller Kommentar zum Arbeitsrecht, 3rd edn (Vienna, Manz, 2018) s 11 AÜG para 14 et seq.

16  Martin Risak be paid out at least once every month and be invoiced in writing. To assess the adequacy of the temporary agency worker’s wage as provided for by law or collective bargaining agreement, the wages of the employees directly employed with the user undertaking must be taken into account.78 The equal pay principle only applies to statutory or collectively bargained wages. If the temporary agency worker has been deployed with a user undertaking for more than four years, s/he is entitled to be included in the company pension scheme established at the user undertaking, unless a equivalent pension scheme is established with the temporary work agency.79 For the duration of the assignment, the provisions in the statute, collective bargaining agreements and otherwise generally applicable Acts concerning working time and holidays that apply to comparable employees directly employed with the user undertaking also apply to temporary agency workers.80 Prior to assigning an employee, the temporary work agency must inform the temporary agency worker thereof in writing and provide information on all important factors of the assignment such as expected duration, working time and wages.81 The temporary work agency must also inform the temporary agency worker about the end of the assignment at least 14 days in advance if it has lasted for more than three months and if its ending is not due to objectively unforeseeable reasons.82 Both the temporary work agency and the user undertaking are required to promote the temporary agency worker’s access to training in their respective enterprises in order to enhance the temporary agency worker’s career development and opportunities on the labour market.83 The temporary work agency must terminate the assignment without undue delay when it knows or should have known that the user undertaking, in spite of being requested to do so, does not observe its duties to ­comply with health and safety legislation or its fiduciary duties (see s­ ection IV.D.(iii) below).84 (iii)  Dismissal Protection No special dismissal protection exists for temporary agency workers, although certain provisions in the Act on Temporary Agency Work attempt to prevent terminations immediately following an assignment. This holds

78 

Act on Temporary Agency Work s 11(1). Act on Temporary Agency Work s 11(1a). 80  Act on Temporary Agency Work s 10(3). 81  Act on Temporary Agency Work s 12(1). 82  Act on Temporary Agency Work s 11(6). 83  Act on Temporary Agency Work s 12(5). 84  Act on Temporary Agency Work s 6(4). 79 

Atypical Employment Relationships: The Position in Austria 17 true for the limitations on fixed-term work (see IV.C.(i)) and a notice period of at least 14 days is to be observed.85 If the dismissal of a temporary agency worker is contested under the general protection against dismissal, the temporary work agency cannot justify it by way of the end of the assignment; the temporary work agency can assert that although it has been looking for new opportunities, no demand for the temporary agency worker exists.86 D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship Direct contractual relationships exist only between the temporary agency worker and the temporary work agency and between the user undertaking and the temporary work agency. No direct contractual relationship exists between the temporary agency worker und the user undertaking—the latter’s rights vis-à-vis the temporary agency worker derive from the two contracts. Part of the contract between the user undertaking and the temporary work agency is the transfer of the authority to give orders from the temporary work agency to the user undertaking. The user undertaking does not exercise its own rights, but transferred ones. To close any gaps in protection, the Act on Temporary Agency Work establishes the duties of the user undertaking. These are directly based on statute and do not establish any contractual or quasi-contractual relationship between the temporary agency worker and the user undertaking. (ii)  Rights and Obligations/Liability The core rights and obligations derive from the employment contract concluded between the temporary agency worker and the temporary work agency. These include in particular the right to assign the temporary agency worker to work at a user undertaking and his/her obligation to work under the direction of the user undertaking. The Act on Temporary Agency Work establishes additional (statutory) obligations on the user undertaking: For the duration of the assignment, the user undertaking must meet the general fiduciary duties of an employer (eg equal treatment and the protection against harassment by colleagues and customers).87 The limitations of liability to third parties and colleagues resulting from the Act on Employee Liability (Dienstnehmerhaftpflichtgesetz) not

85 

Act on Temporary Agency Work s 10(5). Supreme Court judgment of 7 October 1998—9 Ob A 233/98z, Arb 11.790. 87  Act on Temporary Agency Work s 6(3). 86 

18  Martin Risak only apply to the relationship between the temporary agency worker and his/her employer (the temporary work agency), but also between the temporary agency worker and the user undertaking.88 The restrictions to liability in Social Security Law also apply to the temporary agency worker. In Austria, no maximum time-limit exists for an assignment, and some provisions in the Act on Temporary Agency Work (section 10(1a), ­section 15(1)) point to the tendency that even very long assignments shall not be prohibited.89 Therefore, the Act does not include any provisions that the temporary agency workers must be offered an employment contract with the user undertaking or that they have to be hired after a certain amount of time. The user undertaking must grant access to amenities and collective facilities to temporary agency workers under the same prerequisites that apply to employees who are directly employed. Child care facilities, canteens and transport services are specifically mentioned.90 The user undertaking must inform the temporary agency worker about any vacancies in the enterprise. This information must be shared by general announcement in a place accessible to temporary agency workers.91 (iii)  Health and Safety For the duration of the worker’s assignment at a user undertaking, the ­latter is deemed to be the employer for the application of health and safety ­legislation.92 The temporary work agency must inform the user undertaking of all circumstances necessary for the worker’s personal protection, especially with reference to working time and special personal protection (eg for pregnant workers).93 E. Relationship between Temporary Work Agency and User Undertaking The relationship between the temporary work agency and the user undertaking is based on a contract that is concluded between the two parties. The material obligations of the temporary work agency are the provision of the specified employees and the transfer of the employer’s right to direct and supervise. The user undertaking must pay the remuneration for this service.

88 

Act on Temporary Agency Work s 7. F Schörghofer, Grenzfälle der Arbeitskräfteüberlassung (Vienna, Manz, 2015) 19 et seqq. 90  Act on Temporary Agency Work s 10(6). 91  Act on Temporary Agency Work s 12(4). 92  Act on Temporary Agency Work s 6(1). 93  Act on Temporary Agency Work s 6(2). 89 See

Atypical Employment Relationships: The Position in Austria 19 It is not permissible to include provisions in the contract that circumvent the temporary agency worker’s statutory protection.94 The user undertaking is liable for the wages of the temporary agency worker during the duration of his/her assignment as well as for the employee and employer’s contributions to social security and (where applicable) to the construction workers’ holiday and severance payment fund. This means that the temporary agency worker as well as the social security bodies may choose whom to hold liable without any further requirements. This liability is reduced for social security contributions the user undertaking has paid directly to the social security bodies.95 If the user undertaking has already verifiably fulfilled all the duties towards the temporary work agency, the liability is reduced to liability in case the debt is unrecoverable.96 F. Rights and Status of Temporary Agency Worker (i)  Equal Treatment Throughout the duration of the worker’s deployment with the user undertaking, the user undertaking (besides the contractual employer) is the addressee of all provisions on equal treatment and anti-discrimination applicable to comparable employees of the user undertaking.97 This applies in particular to the selection of temporary agency workers to be deployed and all other working conditions, including the termination of deployment.98 On the provisions concerning pay, pensions, working time, holidays and access to amenities and collective facilities, see section IV.C.(ii) above. (ii) Others N/A G. Information and Consultation/Representation of Temporary Agency Worker Temporary agency workers are considered to be part of the workforce of two enterprises and are therefore represented by two works councils. This results from the definition of the workforce for the purposes of worker

94 

Act on Temporary Agency Work s 8(2). Act on Temporary Agency Work s 14(1). 96  Act on Temporary Agency Work s 14(2). 97  Act on Temporary Agency Work s 6a(1). 98  Act on Temporary Agency Work s 6a(2). 95 

20  Martin Risak representation and co-determination. Section 36 of the Works Constitution Act (Arbeitsverfassungsgesetz—ArbVG) defines an employee as any person who works within the organisation, regardless of whether an employment contract exists or who the employer is. Temporary agency workers, therefore, count for the relevant thresholds in both enterprises and may vote and be elected to the works councils in both of them.99 The works council of the user undertaking must be informed about the intended use of temporary agency workers, and if requested, must also be consulted. It must, moreover, be informed about the commencement of the assignment, about the working time arrangements and the amount of remuneration paid by the temporary work agency during the assignment.100 The works council of the user undertaking may also enter into a works agreement that provides guidelines for the use of temporary agency workers101 such as binding quotas, parts of the undertaking the temporary agency worker may be assigned to and even wage levels.102 In case of failure to reach an agreement, the interested party (usually the works council) is entitled to refer the matter to a public conciliation board (Schlichtungsstelle),103 which is responsible for conciliation and is empowered, if conciliation fails, to decide the matter itself (arbitration). H. Strikes It is explicitly prohibited to deploy temporary agency workers to undertakings at which a strike or lock-out is taking place.104 I. Collective Bargaining Agreements Deviating from Statutory Provisions A collective bargaining agreement may not, in principle, deviate from the statutory rights of temporary agency workers.105 Deviation from the equal pay principle is only possible in one special case that has limited relevance

99 See A Obereder, in M Risak and W Mazal (eds), Das Arbeitsrecht—System und ­Praxiskommentar, 31st edn (Vienna, LexisNexis, 2018) para XV/42. 100  Works Constitution Act s 99(5). 101  Works Constitution Act s 97(1a). 102 Supreme Court judgment of 18 December 2006, 8 Ob A 108/06z—Zeitschrift fur ­Arbeits- und Sozialrecht (ZAS) 2008/10 (Roland Gerlach); 30 August 2011—8 Ob A 54/11s, ZAS 2013/30 (Katharina Körber-Risak). 103 This conciliation board is chaired by a professional judge and two representatives of both the employer and the employees; cf Works Constitution Act ss 144 et seqq. 104  Act on Temporary Agency Work s 9. 105  Act on Temporary Agency Work s 8(1).

Atypical Employment Relationships: The Position in Austria 21 in practice to remuneration during the assignment: generally applicable provisions on pay other than a collective bargaining agreement at the user undertaking do not have to be observed if a collective agreement exists for the temporary work agency and if the wages are regulated by a collective agreement, statute or decree at the user undertaking.106 Usually, such generally applicable provisions concerning pay do not exist as they must not be part of a works agreement concluded between the works council and the employer (in this case, the user undertaking). If such provisions exist, then the exemption will usually cover both the temporary work agency as well as the user undertaking in a collective bargaining agreement.107

106  107 

Act on Temporary Agency Work s 10(1). In Austria the coverage rate is estimated at between 95 and 99%.

22

2 Atypical Employment Relationships: The Position in Belgium WILFRIED RAUWS

I. INTRODUCTION

A

TYPICAL WORK CAN be defined as an employment relationship that does not conform to the standard or ‘typical’ model of full-time, regular, open-ended employment with a single employer.1 Atypical employment relationships refer, inter alia, to bogus self-employment, fixedterm contracts or temporary work, part-time work, mini-jobs, midi-jobs, job sharing, on-call work, temporary agency work, casual work, home working and teleworking.2 The most common forms of atypical employment relationships in Belgium are fixed-term work, part-time work and temporary agency work.3 The focus of this report will be limited to these forms of atypical work. The general regulation of employment contracts in Belgium is found in the Employment Contracts Law of 3 July 1978, which has been amended several times. The last significant amendment occurred on 26 December 2013 and was part of the introduction of the single status of blue- and white-collar workers.4 The Unified Status Law of 26 December 2013 was a first step towards the harmonisation of labour laws on blue- and whitecollar workers, but differences between these two categories of workers

1  B Oversteyns, Arbeidsrecht en flexibiliteit: een juridisch onderzoek van atypische arbeidsovereenkomsten (Leuven, Katholieke Universiteit Leuven, 1993) p 10: https://lirias.kuleuven.be. 2 P Gruny, Report on atypical contracts, secured professional paths, flexicurity, and new forms of dialogue, European Parliament, 2009–2014 (2010), A7-0193/2010: http://www.euro parl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A7-2010-0193. 3  B Oversteyns (n 1 above) pp 12–14. 4 Wet van 26 December 2013 betreffende de invoering van een eenheidsstatuut ­ tussen arbeiders en bedienden inzake de opzeggingstermijnen en de carenzdag en begeleidende ­ maatregelen, Loi concernant l’introduction d’un statut unique entre ouvriers et employés en ce qui concerne les délais de préavis et le jour de carence ainsi que de mesures d’accompagnement: Law of 26 December 2013 concerning the introduction of a single status between blue collar workers and white collar employees on notice periods and maternity leave and accompanying measures.

24  Wilfried Rauws continue to exist. The law harmonised the notice periods of blue- and whitecollar employees and abolished the unpaid first day of absence due to illness for blue-collar workers. The Unified Status Law of 26 December 2013 also abolished the probation period, which was an unexpected modification of the law. Belgian labour law is very fragmented and complex. The legislation on atypical contracts is no exception. It is also a fact that in the event of a breach of legal obligations by the employer, criminal penalties may be imposed on the employer. This also applies when the employer fails to respect statutory regulations on atypical employment contracts. The penalties are specified in the Social Criminal Code of 6 June 2010.5 These penalties seem to hamper the free movement of services and freedom of establishment, because an undertaking with employees in Belgium risks facing criminal charges in case of infringements of the complicated Belgian labour law. Fixed-term and part-time employment are regulated to some extent in the Employment Contracts Law of 3 July 1978. Other laws also cover this topic. For instance, the Law of 24 July 1987 on temporary work and temporary agency work is particularly important with reference to fixed-term employment contracts. Part-time work is, moreover, covered by Collective Bargaining Agreement No 35, which was concluded on 27 February 1981 in the National Labour Council on part-time work.6 Some specific issues relating to part-time work are regulated in Article 21 of the Labour Law of 16 March 1971.7 Restrictions on part-time work are found in the Programme Law of 22 December 1989. Derogations are covered in the Royal Decrees of 8 March 1990 and of 21 December 1992. Belgium has transposed EU Directive 1999/70 of 28 June 1999 concerning the Framework Agreement on Fixed-term Work concluded by ETUC, UNICE and CEEP with the implementation of the Law of 5 June 2002 on the non-discrimination of fixed-term employment contracts. EU Directive 97/81 of 17 December 1997 concerning the Framework Agreement on Parttime Work has been transposed by the Law of 5 March 2002 on the nondiscrimination of part-time workers. Temporary agency work is generally regulated by a special Law of 24 July 1987 on temporary work and temporary agency work as well as

5 

See eg Articles 151 and 152 on part-time work; Article 176 on temporary agency work. Declared universally applicable for the private sector by the Royal Decree of 21 September 1981, Moniteur belge (Belgian State Gazette) 6 October 1981. 7  Regarding the legal principle of the minimum working period of three hours for part-time workers. Derogations are possible based on a Royal Decree or collective bargaining agreement at any level. 6 

Atypical Employment Relationships: The Position in Belgium 25 by the national cross-industry collective bargaining agreement No 108, concluded in the National Labour Council on 16 July 2013.8 Belgium also complies with EU Directive 2008/104 of 19 November 2008 on temporary agency work and has transposed EU Directive 91/383 of 25 June 1991, supplementing measures to promote improvements in the safety and health at work of fixed-term workers and temporary agency workers, through the enactment of the Royal Decree of 15 December 2010 on safety at work for temporary agency workers. II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements Article 7 of the Employment Contracts Law distinguishes between employment contracts of indefinite duration, fixed-term employment contracts and a variant thereof, namely employment contracts for a specified task. Fixedterm employment contracts include the designation of a specific date, time or occurrence of an event that the parties to the contract are aware of, and they are automatically released from their mutual obligations on said date, time or occurrence of the event.9 Employment contracts for a specified task or for a specific project do not specifically define the term of the contract (eg an employment contract concluded for ten months), but refer to the work to be carried out (eg an employment contract for a role in a specific film, for sorting fruit during harvest at a farm, creating a yearbook, etc). A precise description of the agreed work must be included in the contract at the time of its conclusion to ensure that the employee is aware of the precise extent of the work and time required to complete it.10 Fixed-term employment contracts as well as those concluded for specific tasks are subject to the same regulations. (i) Other Types of Employment Contracts Concluded for a Fixed Term Since the introduction of the Social Recovery Law of 1985, the Employment Contracts Law of 3 July 1978 also regulates employment contracts to replace employees.11 According to the Law of 3 July 1978, a replacement 8 http://www.cnt-nar.be/CAO-COORD/cao-108.pdf.

9  Cour de cassation (Cass) 15 April 1982, Journal des tribunaux de travail, 1982, 348, case note C Wantiez. 10  Arbeidshof Brussel (Labour Court of Appeal), 27 June 2001, Journal des tribunaux de travail, 2002, p 8; Arbeidshof Gent, Journal des tribunaux de travail, 2012, 155. 11  Article 11ter Employment Contracts Law.

26  Wilfried Rauws contract must be concluded in writing12 and is concluded to replace an employee whose employment contract has been suspended for reasons other than lack of work for economic reasons, bad weather, a strike or lock-out, etc. A replacement contract may, for example, be concluded to replace a worker who is sick, on maternity or parental leave or annual leave. A replacement contract may also be concluded when an employee is hired to replace a civil servant (ambtenaar, fonctionnaire) whose legal status is not regulated by contract but unilaterally by the public employer, and who exercises his/her office only part time.13 Replacement contracts can either be concluded for an indefinite or a fixed term. The duration of the replacement contract may not, however, exceed two years.14 This maximum period shall also apply when replacement contracts are concluded successively.15 If the maximum period is exceeded, the replacement contract will be transformed into a contract of indefinite duration.16 According to the Law of 24 July 1987 on temporary work and temporary agency work, employment contracts for temporary agency work shall generally be concluded for a fixed term for a specific project or for the replacement of a permanent employee.17 In exceptional cases, employment contracts for temporary agency work between the temporary work agency and a long-term unemployed jobseeker or a person dependent on social welfare or assistance, may be of indefinite duration.18 Another exception applies to employees working for a so-called ‘employers group’. Through an employers group, two or more companies jointly recruit employees to work for them alternately or simultaneously. This form of hiring is also referred to as co-sourcing or sharing of workers.19 The employee concludes only one employment contract with the employers group, which is the only legal employer and makes the employee available to the companies that are part of the group. This scheme is a recent exception (since 2014) to the prohibition on putting employees at the disposal of users and on temporary agency work. The employment contract concluded between the employers group and the employee who is at the disposal of 12 

Article 11ter, §1, paragraphs 2 and 5. 11ter, §2 introduced by Article 114 of the Law of 20 July 1991; Commission Report Schoeters, Parliamentary Documents, Senate, 1990–1991, [1374-4], pp 6–7. 14  Article 11ter, §1, paragraph 3. 15  Article 11ter, §1, paragraph 3. 16  Article 11ter, §1, paragraph 5. 17  Articles 2 and 8, §1, paragraph 2 of the Law of 24 July 1987 on temporary work and temporary agency work. 18  Article 194 of the Law of 12 August 2000 on social, budgetary and other provisions. 19  Articles 186–193 of the Act of 12 August 2000 on social, budgetary and other provisions. See also the executing Royal Decree of 8 July 2014 implementing Article 186 of the Act of 12 August 2000 on social, budgetary and other provisions. 13 Article

Atypical Employment Relationships: The Position in Belgium 27 users must be concluded in writing prior to the commencement of work and can be concluded for an indefinite or fixed term or for a specified task.20 Employment contracts with students must always be concluded for a fixed term and agreed in writing, with a copy provided to the student.21,22 The fixed-term employment agreement is characterised by formal requirements. A fixed-term employment contract and one for a specified task must be concluded in writing prior to the commencement of the work.23 Such contracts must precisely indicate the duration for which they are being concluded or must specify the precise assignment to be carried out (ie the job to be performed). Any breach of these requirements will be penalised: the contract will be considered as having been concluded for an indefinite period, and the employer will have to respect the appropriate term of notice to terminate the contract.24 The valid conclusion of the contract in writing in principle requires each party to receive a duly signed copy of the agreement prior to the commencement of work specified in the fixed-term employment contract.25 A fixedterm employment contract may be devised during the performance of a previous employment contract, even one of indefinite duration, except in cases of fraus legis.26 It is possible since the enactment of the Social Recovery Law of 1985 to conclude employment contracts for replacement of all employees covered by the Employment Contracts Act of 1978: blue-collar workers, white-collar workers, commercial travellers and homeworkers. Fixed-term ­replacement contracts must be concluded in writing before the employee starts ­working.27 In the absence of a written contract, the replacement agreement will be considered as having been concluded for an indefinite period.28 The Employment Contracts Act of 3 July 1978 provides exceptions to the legal obligation to conclude fixed-term employment contracts or contracts for a specified task in writing. According to Article 9, third paragraph, a written document is not required in certain sectors or branches of industry and for specific categories of workers covered by a collective bargaining agreement declared generally binding by the King. Examples are the sea 20 

Article 188 of the Act of 12 August 2000 on social, budgetary and other provisions. 123 and 124.2 of the Employment Contracts Law; W. van Eeckhoutte, Sociaal Compendium Arbeidsrecht 2014–2015 (Mechelen, Kluwer, 2014), No 4806. 22  The contract can be terminated by notice of a short period of between 1and 7 days: Article 130 of the Employment Contracts Law. 23  Article 9, paragraph 1 Employment Contracts Law. 24  Article 9, paragraph 2 Employment Contracts Law. 25  Cour de cassation, 20 September 1993, Sociaalrechtelijke Kronieken 1994, 30. 26  Cour de cassation, 5 December 1988, Rechtskundig Weekblad 1988–1989, 988. 27  Article 11ter, §1, paragraphs 2 and 3 Employment Contracts Law. 28  Article 11ter, §1, paragraph 4 Employment Contracts Law. 21  Articles

28  Wilfried Rauws fishing industry,29 port work (dockers)30 and the ship repairs industry.31 The same exception applies to occasional workers in the horticultural business32 and in the hotel industry.33 B. Lawful Stipulation of the Contractual Terms The traditional norm of labour law is the conclusion of ‘standard’ employment contracts, namely contracts concluded for an indefinite period, whereby the employee works full time in the workplace or at a place designated by the employer.34 This norm builds on the concept that job security is interwoven with the conclusion of an employment contract of indefinite duration. This traditional norm of labour law was also expressed by the social partners when concluding the ETUC-UNICE-CEEP Framework Agreement on Fixed-term Work:35 ‘The parties to this agreement recognise that contracts of an indefinite duration are, and will continue to be, the general form of employment relationship between employers and workers’. In the ECJ ruling in Mangold, the Court ruled that ‘the benefit of stable employment which …, as the Framework Agreement on fixed-term contracts concluded on 18 March 1999 makes clear, constitutes a major element in the protection of workers’.36 In the Adelener case, the ECJ confirmed that the objective of Directive 1999/70 follows the aim of the Framework Agreement, which is to protect workers against instability of employment and to give meaning to the principle ‘that contracts of indefinite duration are the general form of employment relationship’.37 These principles underpin Directive 1999/70, preventing the abuse of successive fixed-term employment contracts. According to Belgian labour law, no objective reason is required to conclude a valid fixed-term employment contract, as long as it does not 29  Collective bargaining agreement (CBA) of 26 March 2015, declared universally binding by the Royal Decree of 23 August 2015, Moniteur belge 7 October 2015. 30 Port of Brussels: CBA 7 February 1979, Royal Decree 20 September 1979, Moniteur belge 23 January 1980; Port of Antwerp: CBA 14 February 1979, Royal Decree 25 April 1979, Moniteur belge 12 May 1979; Port of Ghent: CBA 20 February 1979, Royal Decree 11 May 1979, Moniteur belge 28 June 1979; Port of Zeebrugge: CBA 7 March 1979, Royal Decree 17 May 1979, Moniteur belge 17 July 1979; Port of Ostend and Nieuwpoort: CBA 29 March 1979, Royal Decree 5 July 1979, Moniteur belge 18 August 1979. 31  CBA 30 March 1979, Royal Decree 9 November 1979, Moniteur belge 16 April 1980. 32  CBA 18 April 1995, Royal Decree 10 June 1996, Moniteur belge 23 August 1996. 33  CBA 28 February 1979, Royal Decree 2 October 1979, Moniteur belge 17 April 1980. 34 J-C Javillier, ‘Ordre juridique, relations professionnelles et flexibilité. Approches comparatives et internationales’, Droit Social, 1986, 57. 35 Preamble. 36  ECJ judgment of 22 November 2005, Case C-144/04, Mangold v Helm, [64]: http://curia. europa.eu/juris/celex.jsf?celex=62004CJ0144&lang1=nl&type=TXT&ancre=. 37  ECJ judgment of 4 July 2006, Case C-212/04, Adelener and Others v Ellinikos Organismos Galaktos (ELOG): http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX: 62004CJ0212&from=EN.

Atypical Employment Relationships: The Position in Belgium 29 represent a situation of successive contracts of employment. Parties may, therefore, conclude an initial employment contract for a fixed term, regardless of the nature of the work to be performed or the conditions of recruitment. This follows from Article 7, paragraph 1 of the Law of 3 July 1978 on employment contracts: ‘The employment contract is either concluded for a certain period or for specific work or indefinitely. The parties do not need to provide reasons for why a fixed-term contract is being concluded’.38 Another type of fixed-term employment contract is an employment contract with an explicit time clause for dissolution of the contract. An employment contract of indefinite duration may include an explicit clause determining the maximum duration of the contract.39 In principle, no provision prohibits the parties to an employment contract from agreeing on a deadline for a contract of indefinite duration.40 In addition to the formal requirements, special rules apply to specific fixed-term employment contracts: lifelong employment contracts and the retirement clause. Article 1780 of the Civil Code and Article 7 of the Employment Contracts Law both prohibit lifelong employment contracts. Article 1780 of the Civil Code contains a vague formulation: ‘A person can hire out his services only for a limited time or for a certain enterprise’. But Article 7 of the Employment Contracts Law is clear: ‘The employment contract cannot be concluded for life’.41 The purpose of the ban on lifelong employment contracts is to fight disguised forms of slavery.42 The ban confirms the principle of personal freedom.43 According to the case law of the Cour de cassation, the ban on lifelong employment contracts relates to public policy.44 On the other hand, the majority of legal literature argues that the legislation on lifelong employment 38  See National Labour Council, Opinion No 720 of 25 May 1982, pp 6–8. The representatives of the trade unions in the National Labour Council suggested that when a fixed-term employment contract is concluded, reasons should be provided to justify the fixed term. The representatives of employer organisations, however, opposed such imposition of additional requirements for the validity of a fixed-term contract. M Jamoulle, ‘Les lignes de force du droit individuel du travail à l’heure actuelle’ in Le contrat de travail dix ans après la loi du 3 juillet 1978 (Brussels, Story-Scientia, 1989), pp 341–42. 39  Court de cassation, 17 January 1963, Pasicrisie 1963, I, p 573, Rechtskundig Weekblad 1963–1964, p 1411; W Rauws, Civielrechtelijke beëindigingswijzen, van de arbeidsovereenkomst: nietigheid, ontbinding en overmacht (Antwerpen, Kluwer, 1987), pp 470–71. 40  Cour de cassation, 6 April 1998, Rechtskundig Weekblad 1998–1999, p 846. 41 Social Affairs Committee Report, Parliamentary Documents Chamber of Representatives, 1968–1969, No 270/7, p 26. 42 See Pandectes Belges, Tôme 59 (Brussels, Larcier, 1898), v° ‘Liberté individuelle’, No 3; H Lenaerts, Inleiding tot het sociaal recht (Gent, Story-Scientia, 1985), no 27; W Rauws, Civielrechtelijke beëindigingswijzen van de arbeidsovereenkomst: nietigheid, ontbinding en overmacht (Antwerpen, Kluwer, 1987), pp 485–86. 43  H Velge, Eléments de droit industriel belge, vol I (Brussels, Librairie Albert Dewit, 1927), No 78. 44  Cour de cassation, 30 September 1991, Sociaalrechtelijke Kronieken, 1992, p 79.

30  Wilfried Rauws contracts does not involve public policy but only mandatory law, in favour of the employee.45 The question arises whether the prohibition of lifelong employment contracts is a reciprocal principle or not. It is common understanding that the prohibition applies to the employee’s lifelong hiring out of his services.46 But the employer can engage an employee until the end of his/her life.47 According to Article 36 of the Employment Contracts Law, any clause in a collective or individual employment contract stipulating the dissolution of the contract, or allowing the employer to terminate the contract without notice or compensation, once the employee reaches retirement age, is considered null and void. It is generally accepted that this prohibition relates to employment contracts of indefinite duration.48 (i) Protection Against the Misuse of Successive Fixed-Term Employment Contracts or of Contracts for a Specified Task One of the pillars of protection found in Directive 1999/70 on fixed-term work concerns the prevention of abuse of fixed-term employment contracts.49 Belgium implemented a combination of the three measures contained in Clause 5 of the Framework Agreement. However, Belgium has no precise legal regulation determining under what conditions fixed-term employment contracts shall be regarded as ‘successive’. Article 10 of the 1978 Employment Contracts Law limits the possibility of concluding consecutive fixed-term employment contracts. Consecutive fixed-term employment contracts will be considered to have been concluded for an indefinite period, except when there is an interruption between contracts attributable to the employee (voluntary military service or voluntary leave) or when the employer can prove that the consecutive contracts were

45  M Troplong, Droit civil. De l’échange et du louage (Brussels, Meline, 1841), No 856; B Oversteyns, Arbeidsrecht en flexibiliteit: een juridisch onderzoek van atypische arbeidsovereenkomsten (Leuven, Katholieke Universiteit Leuven, 1993), p 29; W Rauws, Civielrechtelijke beëindigingswijzen van de arbeidsovereenkomst: nietigheid, ontbinding en overmacht (Antwerpen, Kluwer, 1987), pp 490–91. 46  M Jamoulle, Le contrat de travail, vol II (Liège, University Press, 1986), No 267; H Velge, Eléments de droit industriel belge, vol I (Brussels, Librairie Albert Dewit, 1927), No 79. 47  Social Affairs Committee Report, Parliamentary Documents Senat, 1977–1978, No 258/2, p 51; Social Affairs Committee Report, Parliamentary Documents Senat, 1981–1982, No 41/2, p 6; W Rauws, Civielrechtelijke beëindigingswijzen van de arbeidsovereenkomst: nietigheid, ontbinding en overmacht (Antwerpen, Kluwer, 1987), p 490. 48 Social Affairs Committee Report, Parliamentary Documents Chamber of Representatives, 1968–1969, no 270/7, pp 32 and 75; Labour Court of Appeal Antwerp, 26 February 1979, Rechtskundig Weekblad, 1978–1979, p 2444; B Oversteyns, Arbeidsrecht en flexibiliteit: een juridisch onderzoek van atypische arbeidsovereenkomsten (Leuven, Katholieke Universiteit Leuven, 1993), pp 33–34. 49  Clause 5 of the Frame work Agreement; See C Barnard, EU Employment Law (Oxford, Oxford University Press, 2012), pp 441–43.

Atypical Employment Relationships: The Position in Belgium 31 necessitated by the nature of the work or for some other justified reason. Justified reasons may be: that the employer depends on annual or periodical government subsidies;50 that successive contracts must be concluded with an individual employed in the service of a tour operator because of the uncertainty of the number of participants;51 that employment contracts at a university must be concluded for successive scientific research projects financed by external funds;52 the fact that the conclusion of successive agreements is customary in that particular branch of industry such as port labour performed by dockers;53 the need for replacement staff,54 etc. When the conclusion of a successive fixed-term contract is based on a justified reason proven by the employer, there is no legal limit to the number of such successive employment contracts. However, as ruled by the ECJ in the Kucük case, the court must evaluate the facts of each case to determine whether the renewal of the fixed-term employment contract is indeed justified by an objective reason. When carrying out such an evaluation, the court must take all circumstances of the case into consideration, including the number and cumulative duration of any previous fixed-term employment contracts with the same employer, in order to ensure that the employer is not abusing the scheme of fixed-term employment contracts.55 A Royal Decree can declare cases in which the presumption that successive fixed-term employment contracts are actually contracts of indefinite duration is deemed irrebuttable.56 However, to date the King has not issued such a Royal Decree. The same regulations that apply to fixed-term work also apply to employment contracts for a specified task.57 Article 10bis of the Employment Contracts Law of 1978 provides some flexibility regarding fixed-term contracts. Successive fixed-term contracts may be concluded a maximum of four times with terms of at least three months for each contract, the total duration of all successive contracts not exceeding two years. Subject to prior official authorisation, successive fixed-term contracts with a total duration of up to three years may be concluded, provided that the term of each successive contract may not be less than six months.

50 Labour Court of Appeal Liège, 20 November 2000, Journal des tribunaux de travail, 2001, p 309 1987, 227. Labour Court of Brussels, 31 October 1986, Journal des tribunaux de travail, 1987, 227. 51  Labour Court of Appeal Ghent, 27 February 2006, Sociaalrechtelijke Kronieken, 2007, p 48. 52 Labour Court of Appeal Ghent, 23 December 1998, Tijdschrift Gentse Rechtspraak, 1999, p 120. 53  Labour Court of Appeal Antwerp, 20 March 2015, H v NV PSA, not published. 54  ECJ judgment of 26 January 2012, Case C-586/10, Kücük v Land Nordrhein-Westfalen: http://curia.europa.eu/juris/document/document.jsf?text. 55  ECJ judgment of 26 January 2012, Case C-586/10, Kücük, [40] and [43]. 56  Article 10, second paragraph. 57  Article 10, third paragraph.

32  Wilfried Rauws Any breach of Articles 10 and 10bis will result in the successive fixed-term contract being considered a contract of indefinite duration. If a contract is considered as having been concluded for an indefinite period, the employer and employee must comply with the applicable period of notice or pay the corresponding dismissal compensation, which is equal to the remuneration payable during the notice period.58 Fixed-term contracts automatically end when the agreed period expires. Contracts for a specified task end when the given task is completed. If the employee continues working after the indicated period has expired or after the indicated task has been completed, s/he will be legally presumed to have been engaged for an indefinite period, unless a new fixed-term contract or a contract for a specified task is drawn up in due time (in compliance with the maximum duration of two, and in exceptional cases, three years in total for all successive fixed-term contracts concluded between the same employer and the same employee).59 C. Termination/End of Fixed-Term Contracts Fixed-term employment contracts may be terminated before the end of the agreed term. Until recently, it was not possible to terminate fixed-term employment contracts by means of notice before the term had come to an end. Termination by either party without a compelling reason is not a legal right for fixed-term contracts or contracts for a specified task, except in case of immediate dismissal for gross negligence or misconduct. A clause included in a fixed-term employment contract, according to which any party may unilaterally terminate the agreement prior to the end of the agreed period, was and continues to be invalid in principle, except in cases of immediate dismissal for gross negligence or misconduct.60 However, the Law of 26 December 2013 on the introduction of a single status between blue-collar and white-collar workers on notice periods and days of rest partly modified the rules on the termination of fixedterm employment contracts. The Law made it possible ex lege to terminate a fixed-term employment contract by notification before the expiry of the term. This is possible in the first half of the agreed duration of the 58 

Articles 37/2 and 39 of the Employment Contracts Act. 11 Employment Contracts Law; Cour de cassation, 18 February 1980, P ­ asicrisie, I, 1980, p 721, B Oversteyns (n 48 above), pp 73–74. 60  Cour de cassation, 6 December 1962, Pasicrisie, I, 1963, 424, Revue Critique de Jurisprudence Belge (RCJB), 1964, 223, case note P Horion, ‘De la compatibilité des clauses qui, dans un contrat de travail ou dans un contrat d’emploi, établissent l’une un terme et l’autre un droit de résiliation unilatérale’; Cour de cassation, 21 March 1988, Rechtskundig Weekblad 1988–1989, p 122. 59  Article

Atypical Employment Relationships: The Position in Belgium 33 employment contract, but only for periods not exceeding six months, whilst respecting the legal notice period provided by law for employment contracts of indefinite duration.61 In case of justified successive fixed-term employment contracts, the possibility of premature termination only applies to the first employment contract.62 This legal change in the basic principles of the Employment Contracts Law compensates for the abolishment of the probation period, with a few exceptions, such as contracts of employment for students and employment contracts for temporary agency workers. The fixed-term contract automatically ends when the agreed period expires.63 The contract for a specified task ends when the agreed task has been completed.64 When a party to a fixed-term employment contract or a contract for a specified task unilaterally terminates the agreement before the expiry of the term, s/he has to pay dismissal compensation to the other party equal to the amount of wages s/he would have otherwise been paid until the date of expiry, without exceeding the sum of two monthly salaries, ie such cases are treated like employment contracts of indefinite duration that have hypothetically been unilaterally terminated.65 D. Rights and Status of Fixed-Term Worker (i)  Equal Treatment The Law of 5 June 2002 transposes Directive 1999/70. The Law of 2002 requires equal treatment of fixed-term employees with comparable employees engaged under a contract of indefinite duration. A comparable employee is a worker who performs the same work at the same type of plant or enterprise, or, if there is no such comparable employee, then one who works in the same sector of industry. Fixed-term workers are entitled to the same treatment as permanent workers, unless a difference in treatment is justified by objective reasons. This applies in particular to matters regarding seniority. Certain parts of Belgian labour law exclude fixed-term employees from legal protection. For example, in case of closure of an enterprise, only those employees who have an employment contract of indefinite duration and with at least one year of seniority in the company may, under

61 

Article 40, §2 of the amended Employment Contracts Act. Article 40, §3 of the amended Employment Contracts Act. 63  Article 32, paragraph 1 Employment Contracts Act. 64  Article 32, paragraph 2 Employment Contracts Act. 65  Article 40, §1 Employment Contracts Act. 62 

34  Wilfried Rauws specific conditions, be entitled to compensation for dismissal payable by the employer.66 In case of collective redundancies, in accordance with Collective Bargaining Agreement (CBA) No 10, concluded in the National Labour Council on 8 May 1973, employees may be entitled to compensation in addition to unemployment benefits payable by their employer under specific conditions. Unlike permanent employees, fixed-term employees or those engaged under a contract for a specified task fall outside the scope of CBA No 10.67 Finally, it should be noted that a general prohibition on manifestly unjustified or unreasonable dismissals applies in Belgium, at least for workers with an employment contract of indefinite duration, but not for workers with a fixed-term contract.68 (ii)  Employment Opportunities The employer has the obligation to inform fixed-term workers about job opportunities to ensure they have the same opportunities to obtain a permanent job as other workers.69 (iii)  Other Matters The Law of 5 June 2002 transposes Directive 1999/70. Temporary agency workers are explicitly excluded from the scope of the Law.70 E. Information and Consultation Works councils should be established in all companies that regularly employ an average of at least 100 employees. Employees shall not be discriminated against, regardless of the type of employment contract concluded.71 In companies with an average of at least 50 employees, a committee for safety and health must be established.72 ‘Employees’ are all persons employed under any type of employment contract. Fixed-term employees or those who have concluded a contract for a specified task are therefore included in the calculation of the company’s staff.73 66 

Article 18 Law of 26 June 2002 on the closure of enterprises. Article 5 a) CBA No 10 of 8 May 1973. 68  Article 8 of Collective Bargaining Agreement No 109 concluded in the National Labour Council on 12 February 2014 on the motivation for dismissals. 69  Article 5 of the Law of 5 June 2002. 70  Article 2. See below, II.D. 71  Article 14, §1 Law of 20 September 1948 on the Organisation of Business. 72  Articles 2 and 49 of the Law of 4 August 1996 concerning the safety and health of employees. 73  B Oversteyns, Arbeidsrecht en flexibiliteit: een juridisch onderzoek van atypische arbeidsovereenkomsten (Leuven, Katholieke Universiteit Leuven, 1993), p 75. 67 

Atypical Employment Relationships: The Position in Belgium 35 Fixed-term employees or employees with a contract for a specified task may participate in staff representative elections at company level for the works council and the Safety and Health Committee, if they have been employed for at least three months on the date of the elections.74 To be elected as a member of the works council or of the Committee for Safety and Health, fixed-term employees or employees with a contract for a specified task must have been employed in the undertaking for at least six months on the date of the election.75 Works councils do not usually have special information rights for fixedterm employees.76 F. Specific Provisions Some types of employment contracts can only be concluded for a fixed term. This is the case for contracts concluded with students77 and seafarers.78 Fixed-term employment agreements with seafarers are always renewable.79 Fixed-term contracts are frequently concluded in the education sector and with professional athletes. Some fixed-term employees are excluded from legal protection, for example, in cases of unreasonable dismissal,80 payment of compensation in case of collective dismissal,81 and compensation in case of closure of the company.82 The regulations on collective redundancies and on closures of companies apply to companies with an average of at least 20 employees.83 To calculate

74 

Article 16 of the Law of 4 December 2007 on staff representative elections. Article 19, §1 Law of 20 September 1948 on the Organisation of Business; Article 59, §1 of the Law of 4 August 1996 concerning the safety and health of employees. 76  See II.F for exceptions. 77 Article 124 of Employment Contracts Law; Article 33 of the Law of 3 June 2007 on various employment provisions, Title VI; B Oversteyns, Arbeidsrecht en flexibiliteit: een juridisch onderzoek van atypische arbeidsovereenkomsten (Leuven, Katholieke Universiteit Leuven, 1993), p 25. 78  Article 33 Law of 3 June 2007 on various employment provisions, Title VI. 79  Article 33 Law of 3 June 2007 on various employment provisions, Title VI. 80  Article 8 Collective Bargaining Agreement No 109 of 12 February 2014 concluded in the National Labour Council on motivations for dismissal. 81  Article 5 of Collective Bargaining Agreement No 10 of 8 February 1973 concluded in the National Labour Council on collective redundancies. 82  Article 18 of the Law of 26 June 2002 concerning the closure of the company. 83  Article 3 of Collective Bargaining Agreement No 10 of 8 February 1973 concluded in the National Labour Council on collective redundancies; Article 3 of Collective Bargaining Agreement No 24 of Collective Bargaining Agreement of 2 October 1975 concluded in the National Labour Council on the information and consultation of the employee representatives in case of collective redundancies; Article 2 of the Royal Decree of 24 May 1976 on collective redundancies; Article 63 of the Law of 13 February 1998 to improve employment; Article 10 of the Law of 26 June 2002 concerning the closure of the company; above, II.D.(i). 75 

36  Wilfried Rauws this threshold, fixed-term workers are also taken into account. The modalities for calculating that average vary considerably.84 G. Collective Bargaining Agreements Deviating from Statutory Provisions Certain restrictions or special regulations for fixed-term employment contracts can be found in collective bargaining agreements. For example, in the collective bargaining agreement concluded in the Joint Committee No 114 for the brick industry and in No 149.02 in the Joint Subcommittee on coachwork for vehicles, it states that companies that recruit fixed-term employees must a priori inform the works council, or, failing that, the enterprise’s trade union representative.85,86 A collective bargaining agreement may occasionally require fixed-term employment contracts to be entered into for six months, for example.87 III.  PART-TIME WORK

In 2017, 27.5 per cent of the workforce was working part time. A majority of part-time employees are female.88 44.6 per cent of the female workforce works part time and only 11 per cent of the total male workforce works part time.89 A. Legal Definition/Formal Requirements The concept of part-time work is legally defined in Belgium. It is commonly accepted that part-time employees work fewer hours than a comparable employee who works full time.90 84  Articles 2.4 and 5 of the Royal Decree implementing Articles 63 and 66, §2, of Chapter VII, collective redundancies of the Law of 13 February 1998; Articles 2 and 3 of the Royal Decree of 23 March 2007 implementing the Law of 26 June 2002 on the closure of the company. 85  Collective bargaining agreement of 29 September 2016 concluded in the Joint Committee No 214 declared universally binding by the Royal Decree of 13 May 2016, Moniteur belge 15 June 2016. 86  Collective bargaining agreement of 9 October 2015 concluded in the Joint Subcommittee of coachwork for vehicles No 149.02, declared universally binding by the Royal Decree of 13 May 2016, Moniteur belge 10 June 2016. 87  Collective bargaining agreement concluded on 23 June 2005 in the Joint Subcommittee No 102.01 for mines and quarries in the Province Hainaut, declared universally binding by the Royal Decree of 5 March 2006, Moniteur belge 11 July 2006. 88 https://statbel.fgov.be/nl/themas/werk-opleiding/arbeidsmarkt/deeltijds-werk#figures. 89  S De Groof, ‘Deeltijdwerk’ in C Engels and F Hendrickx (eds), Arbeidsrecht (Bruges, Die Keure, 2015), p 301. 90  Article 2 of the Law of 5 March 2002 regarding the principle of non-discrimination of part-time working employees; Comments to Article 1 of the Collective Bargaining A ­ greement No 35 of 27 February 1981 on part-time work: http://www.cnt-nar.be/CAO-COORD/cao-035. pdf, declared universally applicable by Royal Decree, Moniteur belge.

Atypical Employment Relationships: The Position in Belgium 37 An employment contract for on-call work can be a part-time employment contract, although this is not necessarily the case. An employment relationship that builds on hours of work and the organisation of working time that is dependent upon the quantity of available work and that is determined on a case-by-case basis by agreement between the parties can be concluded part time, and thus falls within the scope of EU Directive 97/81 of 15 December 1997 concerning the Framework Agreement on Part-time Work concluded by UNICE, CEEP and the ETUC.91 A part-time employment contract must be concluded in writing for each worker individually, at the latest when the employee commences work.92 The written contract must state the work arrangement and hours of parttime work agreed upon. The penalty for failing to include these details in the written contract is that the employee may consequently choose the work arrangement and number of hours of work most favourable to him/her among those provided for in the work regulations or in any other company document.93 There are two part-time work arrangements: the fixed scheme or the variable arrangement. The fixed scheme refers to part-time work arrangements under which the number of working hours is always the same, be it for one week or for a cycle longer than one week. A part-time work arrangement is variable when the duration of the performance of work varies. In this case, an average weekly working time is determined and must be observed during a given reference period. Part-time employment contracts must specify the agreed part-time work arrangement and work schedule, ie it must explicitly mention whether it is being concluded for either a fixed weekly working time or an average weekly working time. The reference period is a maximum of three months, unless another period (up to a maximum of one year) is specified in a collective bargaining agreement or work rules. A variable work arrangement is determined in accordance with the regulations set down in the company’s work rules. This must be specified in the individual employment contract, which must include a reference to the general framework for the application of variable part-time work arrangements. It is therefore no longer necessary for all possible work arrangements to expressly be included in the employment contract. This legislation is an important consequence of the Law of 5 March 2017 on Workable and

91  ECJ, judgment of 12 October 2004, Case C-313/02, Nicole Wippel v Peek & ­Cloppenburg GmbH & Co. 92  Article 11bis of the Law on Employment Contracts of 3 July 1978. 93  Article 11bis of the Law on Employment Contracts of 3 July 1978.

38  Wilfried Rauws Flexible Work,94 aiming to simplify the formalities for part-time work.95 In case of a variable work arrangement, the days and hours on which the work is performed are not determined in advance; the employee is informed beforehand when s/he should work for the employer. (i)  Minimum Duration The minimum duration of a part-time working period may not be less than three hours.96 Deviations from this minimum are possible by one-third either through a sectoral collective bargaining agreement or a collective bargaining agreement (i) at company level, or (ii) by Royal Decree. (i)

(ii)

94 

Sectoral collective bargaining agreements that are applicable at the industry or branch level of the Joint Sector Committee No 302 (hotels, restaurants and cafés), and of the Joint Sector Committee No 331 (day care centres for children) may deviate from the three-hour minimum regulation. The Royal Decree of 21 December 1992 provides exceptions in the following situations: 1) Employees and employers excluded from the scope of the Law of 5 December 1968 on collective bargaining agreements and joint committees, namely: the public sector and directly subsidised staff of subsidised free schools within the education system. 2) A wide range of employees for whom the employment is additional employment or whose employment is of a very short duration and who are therefore exempt from the scope of social security legislation.97 3) Employees and employers whose employment contract is concluded for one or more assignments with a minimum duration of four hours each, provided that it has a fixed schedule and that the employment contract entitles the employee to a surplus salary of 50 per cent or 100 per cent as defined in Article 29 of the Labour Law of 16 March 1971. A copy of the employment contract must be sent to the Labour Inspectorate. 4) Workers employed under a fixed schedule, whose work consists exclusively of cleaning the premises in which their employer is established for professional purposes.

Moniteur belge 15 March 2017. Memorandum, Parliamentary Documents, Chamber of Representatives, 2016–2017, No 54-2247/001, p 36. 96  At least in principle: Article 21 of the Law of 16 March 1971. 97  See Articles 16–18 of the Royal Decree of 28 November 1969 on social security contributions. These exceptions also applied to students who conclude an employment contract for students. 95 Explanatory

Atypical Employment Relationships: The Position in Belgium 39 (ii)  Publication of Part-time Work Schedules In accordance with Article 157 of the Programme Law of 22 December 1989, as amended by the Law of 5 March 2017 on Workable and Flexible Work, a copy of the part-time employment contract or an extract thereof with the work schedules and the identity of the part-time employee must be kept at the place where the work rules can be consulted. This is now also possible in electronic form. Any deviations must be recorded in a register when work is performed outside the predetermined work schedule.98 This document can be replaced with a ‘time tracking system’ which requires the entry of the employee’s identity, the start and finish times of his/her work and his/her rest periods.99 Unless proof to the contrary exists, part-time employees are presumed to work under a full-time employment contract (i) in the absence of publication of a part-time work schedule or (ii) in the absence of registration of deviations from their regular part-time work schedule or (iii) in the absence of the use of authorised measuring devices.100 The employer can provide evidence that the employee did not work full time. The intention of this legal presumption that an employee is employed under a full-time contract is to improve the conditions of control of part-time work with the aim of preventing and curbing undeclared work. The rebuttable presumption has been established to facilitate the work of the Labour Inspectorate. An employee him-/herself cannot invoke the presumption to claim a full-time salary. S/he will have to prove that s/he worked full time if s/he submits a claim for compensation.101 Employers who fail to comply with the rules on publishing part-time work schedules or on measures relating to control documents may have to pay an administrative fine or face criminal sanctions.102 B. Opportunities for/Right to Part-Time Work Within the ‘time credit’ system, employees have the right to reduce their working time. They are entitled to work part time under specific circumstances. Older workers have the right to work in less strenuous positions. If they are at least 55 years of age and have already worked for 25 years, they can reduce their working time to either one-fifth or one-half of their regular working time (so-called ‘landing job’). Employees can also unilaterally reduce their working time to half-time or one-fifth of their regular working 98 

Article 160 of the Programme Law of 22 December 1989. 160 of the Programme Law of 22 December 1989, as amended by the Law of 5 March 2017 on Workable and Flexible Work. 100  Article 171 of the Programme Law of 22 December 1989. 101  Cour de cassation, 4 October 1999, Journal des tribunaux de travail, 2000, 156. 102  Articles 151 and 152 of the Social Criminal Code. 99  Article

40  Wilfried Rauws time to care for a young child or to provide palliative care or assistance to a sick household or family member for a period of up to 51 months.103 C. Opportunities for/Right to an Extension of Working Time A part-time worker will, at his/her request, be given priority if a full-time or part-time vacancy with an increased number of working hours becomes available.104 This legal arrangement seems hardly ever to be applied in reality, however.105 D. Rights and Status of Part-Time Worker (i)  Equal Treatment At the European level, Directive 97/81 on non-discrimination of part-time workers has been established. This Directive has been transposed into Belgian legislation by the Law of 5 March 2002 on the principle of nondiscrimination against part-time workers.106 The Law of 5 March 2002 includes some exceptions to the principle of non-discrimination: (i)

If appropriate, the rights of part-time employees can be determined in proportion to the duration of their work. The pro rata temporis principle applies.107 This principle of non-discrimination has a general scope: it applies to all sources of law in employment law. (ii) Part-time employees may be treated differently in comparison to fulltime employees insofar as this difference in treatment is justified by objective reasons.108 (iii) Thirdly, the Law of 5 March 2002 stipulates that, for objective reasons, access to certain employment conditions may be conditional upon a particular period of service, duration of work, or salary.109 103  Collective Bargaining Labour Agreement No 103ter of 20 December 2016, amending Collective Labour Agreement No 103 of 27 June 2012 establishing a time credit system. 104  Article 153 of the Programme Law of 22 December 1989. 105  B Oversteyns, Arbeidsrecht en flexibiliteit: een juridisch onderzoek van atypische arbeidsovereenkomsten (Leuven, Katholieke Universiteit Leuven, 1993), pp 327 and 328. 106  See also Article 1bis of the Collective Bargaining Agreement No 35 of 27 February 1981 on part-time work. 107 Article 4, §3 Framework Agreement of Directive 97/81; Article 4, §1 of the Law of 5 March 2002 regarding the principle of non-discrimination of part-time employees; A ­ rticle 1bis of Collective Bargaining Agreement No 35 of 27 February 1981 on part-time work. 108 Article 4, §1 Framework Agreement of Directive 97/81; Article 4, §1 of the Law of 5 March 2002 regarding the principle of non-discrimination of part-time employees; ­Article 1bis of Collective Bargaining Agreement No. 35 of 27 February 1981 on part-time work. 109 Article 4, §4 Framework Agreement of Directive 97/81; Article 1bis of Collective ­Bargaining Agreement No 35 of 27 February 1981 on part-time work.

Atypical Employment Relationships: The Position in Belgium 41 (ii)  Dismissal Protection Regarding the termination of the employment contract, no special rules have been laid down in the legislation for part-time work.110 The only exception is employees whose working time is reduced in relation to parental leave. Article 105 of the Recovery Law of 22 January 1985 on social provisions implies that in case of unlawful dismissal of such an employee, dismissal compensation is calculated based on the employee’s full wage (ie not based on the employee’s reduced working hours).111 (iii)  Other Matters A part-time employee who carries out work that exceeds the working hours agreed in the employment contract, performs so-called additional hours. Some additional working hours entitle the employee to extra payment, such as overtime (50 per cent for working overtime on weekdays, 100 per cent for working overtime on a Sunday or holiday), without exceeding the employee’s regular full-time working hours. The Royal Decree of 25 June 1990, as amended in 2017, on the equalisation of additional working hours (overtime) of part-time employees sets out the terms under which extra payment is due. The first 3 hours and 14 minutes of additional working time per week are not considered overtime, ie do not entitle the part-time employee to an additional 50 per cent or 100 per cent extra pay.112 The maximum number of additional working hours a part-time employee may perform without entitlement to overtime pay is 42 hours within a three-month period. E. Information and Consultation The introduction of part-time work is necessarily subject to social consultation within the company.113 Some rules on part-time work must be included in the company’s work rules. For example, a general framework for the application of variable parttime work schedules in the company must be established.114 An agreement

110  B Oversteyns, Arbeidsrecht en flexibiliteit: een juridisch onderzoek van atypische arbeidsovereenkomsten (Leuven, Katholieke Universiteit Leuven, 1993), p 332. 111 See ECJ, judgment of 22 October 2009, Case C-116/08, Meerts v Proost NV, ECLI:EU:C:2009:645. 112 The Royal Decree of 25 June 1990 on the equalisation of overtime by part-time employees, as amended by the Royal Decree of 23 March 2017, Moniteur belge, 5 April 2017. 113  B Oversteyns, Arbeidsrecht en flexibiliteit: een juridisch onderzoek van atypische arbeidsovereenkomsten (Leuven, Katholieke Universiteit Leuven, 1993), p 332. 114  Article 6 Law of 8 April 1965 on work rules, as amended by the Law of 5 March 2017.

42  Wilfried Rauws must be reached in the works council on the establishment of work rules.115 If the company has fewer than 100 employees, the company’s employees must be directly consulted about the work rules.116 In case of permanent disagreement on the content of the work rules, the Joint Committee of the given sector will make a decision on the work rules’ content.117 Moreover, the head of the company must provide information to the members of the works council annually,118 among other things, on the development of employment in the company. This information should also include the number of persons whose employment contracts were modified in terms of working time. This covers all employees who have been subject to a change in their working time schedules, resulting in a transition from full-time to part-time working hours or vice versa.119 The works council shall also be informed about changes to the organisation of part-time work and, more specifically, any measures taken to make it possible for full-time employees to work part time and vice versa.120 The works council shall, moreover, set out the general criteria to be followed if the working hours of full-time employees have to be reduced due to economic or technological circumstances, or vice versa, based on a proposal of the head of the company or the employee representatives.121 Works councils should be set up in all companies that regularly employ an average of at least 100 employees. In companies that employ at least 50 employees on average, a Committee for Safety and Health must be established. The total number of employees is calculated on the basis of the average employment figures over one year. The number of days of registration with the National Social Security Office of each employee must be divided by 365. For part-time employees contracted to work less than ¾ of full-time hours, this number must be divided by 730.122 The legislator does not apply the proportionality principle strictly in this case.123

115 

Article 11 Law of 8 April 1965 on work rules. Article 12 Law of 8 April 1965 on work rules. 117  Articles 11 and 12 Law of 8 April 1965 on work rules. 118  In undertakings with more than 100 employees. 119 Article 5 (and its included comments) of Collective Bargaining Agreement No 9 of 9 March 1972, concluded in the National Labour Council on the organisation of works councils. 120  Article 9 (and its included comments) of Collective Bargaining Agreement No 9 of 9 March 1972, concluded in the National Labour Council on the organisation of works councils. 121  Article 12 (and its included comments) of Collective Bargaining Agreement No 9 of 9 March 1972, concluded in the National Labour Council on the organisation of works councils. 122  Article 7 of the Law of 4 December 2007 on social elections. 123  B Oversteyns, Arbeidsrecht en flexibiliteit: een juridisch onderzoek van atypische arbeidsovereenkomsten (Leuven, Katholieke Universiteit Leuven, 1993), p 336. 116 

Atypical Employment Relationships: The Position in Belgium 43 F. Other Part-Time Arrangements N/A G. Collective Bargaining Agreements Deviating from Statutory Provisions There are dozens of sectoral collective bargaining agreements that contain a specific arrangement for part-time work,124 based on contractual freedom established in the legal framework on part-time work.

IV. TEMPORARY AGENCY WORK

Temporary agency work in Belgium is highly regulated.125 The three major pieces of legislation are the EU Directive 2008/104 on temporary agency work of 10 September 2012, the Belgian Law of 24 July 1987 on temporary employment and temporary agency work and Collective Bargaining Agreement No 108 concluded in the National Labour Council on 16 July 2013, defining the procedures that need to be respected and the duration of temporary assignments. The Belgian Law of 9 July 2012126 partially transposed Directive 2008/104 by some minor amendments in the Law of 24 July 1987 on temporary employment and temporary agency work. The changes include: —

Temporary agency workers have equal access with permanent employees to the services of the company, unless differentiated treatment is justified. This refers to the use of canteens, child care and transport facilities;127 — The user undertaking must explicitly state that the anti-discrimination legislation will be respected; — The user undertaking must inform temporary agency workers about vacancies in the company. This requirement can be met by means of a general written notice in a suitable place in the undertaking. Temporary agency work is usually prohibited in Belgium, with exceptions in six cases. Article 4 of Directive 2008/104 states that prohibitions of or

124  The Federal Ministry of Labour’s web page lists 153 collective bargaining agreements under the keyword ‘part-time work’: http://www.werk.belgie.be/resultsCAO.aspx?search. 125 https://www.eurofound.europa.eu/observatories/eurwork/comparative-information/ national-contributions/belgium/belgium-temporary-agency-work-and-collective-bargainingin-the-eu. 126  Moniteur belge, 26 July 2012. 127  Article 10bis Law Temporary Agency Work.

44  Wilfried Rauws restrictions on the use of temporary agency work are justified on grounds of general interest relating in particular to (for details, see IV.A below): —— —— —— ——

The protection of temporary agency workers; The requirements of health and safety at work; The need to ensure that the labour market functions properly; The need to ensure that abuses are prevented.

In its report of 21 March 2014,128 the European Commission did not conclude that Belgium had infringed Directive 2008/104, but that the review of restrictions and prohibitions on temporary agency work in the country continues to be a work in progress in Belgium.129 Many labour lawyers believe that excessive concern about illegal labour intermediaries has resulted in extremely complex legislation that is incompatible with the general objective of Directive 2008/104. Belgium has a large legal arsenal of instruments to counteract illegal employment services outside of temporary work agency regulation. A. Legal Definitions/Formal Requirements Temporary agency work is defined in the Law of 24 July 1987 on temporary work, temporary agency work and the hiring out of workers to clients.130 Temporary agency work is defined as ‘a temporary assignment carried out by a worker for a temporary work agency at a third company, the user undertaking’. The law also defines the parties involved, clearly identifying the temporary work agency as the employer of the worker. The temporary work agency is defined as ‘an enterprise whose activity involves hiring temporary workers and leases them to user undertakings for the performance of authorised temporary work’.131 The temporary agency worker is defined as ‘a worker who enters into a contract of employment to be leased to one or more user undertakings’.132 The temporary agency employment contract is ‘the agreement by which the temporary worker hires him-/herself out to a temporary work agency for a salary to perform authorised temporary work for a user undertaking’.133 There is no legal definition of the ‘user undertaking’.

128 

COM(2014) 176 final. COM(2014) 176 final, p 12. 130  Further abbreviated as: Law on Temporary Agency Work. 131  Article 7, §1 Law on Temporary Agency Work. 132  Article 7, §3 Law on Temporary Agency Work. 133  Article 7, §3 Law on Temporary Agency Work. 129 

Atypical Employment Relationships: The Position in Belgium 45 Temporary agency work consists of a triangular set of legal relationships between three parties:134 —— The temporary work agency, which is the company that employs the temporary agency worker to make him/her available to a user undertaking for the purpose of performing authorised temporary work; —— The temporary agency worker, who is the employee and concludes a temporary employment contract with the temporary work agency to be made available to a user undertaking; —— The user, ie the company that concludes a commercial service agreement with a temporary work agency to temporarily use the labour of a temporary agency worker. The involvement of three parties is what distinguishes temporary agency work from a temporary employment contract. In the latter case, the work is also temporary, but takes place within the framework of a direct agreement between the employee and the employer, without the presence of an intermediary. At the legal level, the performance of temporary agency work entails the conclusion of two agreements: —— An employment contract for temporary agency work between the temporary agency worker and the temporary work agency; —— A commercial agreement between the temporary work agency and the user undertaking. A temporary worker (employee) is thus employed by a temporary work agency (employer) to be hired out to a user undertaking to perform temporary work. Two features are characteristic of temporary agency work: —— It involves the performance of temporary work. —— It is an accepted form of posting of employees. There are six cases in which temporary agency work is permissible (it is prohibited in all other cases). The maximum duration of temporary agency work as well as the procedure to be followed varies depending on the reason for using the temporary agency worker. (i)  Replacement of a Permanent Employee135 A temporary agency worker may be hired to replace an employee whose employment contract has been suspended due to illness, maternity leave, etc. The temporary worker may perform work for the user undertaking for

134  135 

Articles 7 and 8 Law on Temporary Agency Work. Article 1, §§ 1 and 3 Law on Temporary Agency Work.

46  Wilfried Rauws the entire period during which the replaced employee’s employment contract is suspended. No other special procedure needs to be respected. When the temporary worker is recruited to replace a permanent employee whose contract has ended, the maximum duration of the temporary employment contract will depend on the reason why the permanent employee’s employment contract has ended. If the contract was terminated with a term of notice, the maximum duration of the replacement’s temporary employment contract shall be six months. This maximum period is renewable for another six months.136 If the contract has ended because the permanent worker was immediately dismissed for serious misconduct, the maximum duration of the temporary employment contract is six months, and is also renewable.137 If the user undertaking wants to recruit a temporary agency worker in either case of termination described above, the employer must obtain preliminary permission from the trade union representation (‘trade union delegation’) at the company level. If the permanent employment contract has ended for another reason, the maximum duration of the temporary employment contract is also six months, and can be extended for another six months.138 If the permanent contract was terminated for a reason other than dismissal with a term of notice or without a term of notice due to gross misconduct, no permission of the trade union delegation is needed. However, preliminary permission from the trade union delegation is required to extend the duration of the temporary employment contract. In companies without trade union representation, the preliminary permission must be replaced by a notification sent to the Social Fund of the relevant industry.139 (ii)  Temporary Increase in Work140 When the temporary agency worker is recruited because of a temporary increase in the workload, the user undertaking must also obtain preliminary permission of the trade union representation. This (renewable) permission is valid for the period agreed with the trade union representation, which can be a period that is longer than one month each. In companies without trade union representation, temporary employment is possible for two periods of six months each. After twelve months, the temporary work agency contract can be extended by a maximum of six

136 

Article 7, §1 of the CBA no 108. Article 7, §2 of the CBA no 108. 138  Article 7, §3 CBA No 108. 139  Articles 7 and 8 CBA No 108. 140  Article 1, §§ 1 and 5 Law on Temporary Agency Work. 137 

Atypical Employment Relationships: The Position in Belgium 47 months, after obtaining permission from a special Commission of Goods and Services.141 (iii)  Execution of Exceptional Work142 In general,143 exceptional work is defined in Article 6 of CBA No 108. Insofar as these activities are not part of the employer’s standard activities, they are considered exceptional work: —— Preparation, operation and completion of fairs, congresses, study days, seminars, public relations events, processions, exhibitions, receptions, market surveys, surveys, elections, special promotions, translations, removals, etc; —— The unloading of lorries, subject to prior agreement of the trade union representation of the enterprise to use temporary work for this activity; —— Administrative work for entrepreneurs temporarily residing in Belgium; —— Work for embassies, consulates and international organisations, subject to prior authorisation of the Belgian representative trade unions; —— Temporary performance of specialised tasks requiring special professional qualifications, subject to prior agreement of the company’s trade union representation;144 —— The work referred to in Article 26 of the Labour Law of 16 March 1971, ie urgent work to deal with an emerging or imminent emergency, urgent labour on machines or materials or in case of an unforeseen necessity; —— Inventory and balance sheet work: the duration of the work being limited to seven days per calendar year. When the temporary agency worker is recruited to perform exceptional work, the maximum contract duration is six months, with a possible extension up to 12 months in total.145 (iv) Provision of Temporary Employment to a User Undertaking for Permanent Recruitment146 For every vacancy in the company, only three may be filled by temporary agency workers.147 When the temporary agency worker is recruited on

141 

Articles 9 and 10 CBA No 108. Article 1, §4 and Article 47 Law Temporary Agency Work. 143  See also Article 14 CBA No 108. 144  See also Article 13 CBA No 108. 145  Article 13 CBA No 108. 146  Article 1, §1bis Law on Temporary Agency Work; Article 24 CBA No 108. 147  Article 26, §1 CBA No 108. 142 

48  Wilfried Rauws probation for a permanent position, the maximum duration of the temporary employment contract is six months. The user undertaking cannot use different temporary workers for a period exceeding nine months.148 (v) Providing Artistic Activities and/or Producing Artistic Work for the Benefit of an Occasional Employer or User Undertaking149 Artistic performances given and/or artistic works produced against payment of remuneration on behalf of a casual employer or an occasional user undertaking may be performed by temporary agency workers. For these purposes, ‘the provision of artistic activities and/or the production of artistic works’ means the creation and/or performance or interpretation of artistic works in the audio-visual sector, the visual arts, music, literature, theatre and choreography. Other artistic performances that may be performed by temporary agency workers are those related to performance technicians. (vi) Employment in the Context of a Regional Employment Assistance Programme for Long-term Unemployed and Legal Persons Benefitting from Financial Social Assistance150 An employee may be recruited under a temporary work contract if s/he is part of a reintegration process and if the job entails professional experience that benefits the worker in his/her job search. This is applicable for two target groups: unemployed job-seekers and people who receive minimum welfare payments. (vii) Sanctions for Violations of the Act of 1987 on Temporary Agency Work Both criminal and civil sanctions may be imposed in case of violation of the regulations on temporary agency work. Lower criminal and administrative sanctions of level one and two violations are regulated in the Social Criminal Code.151 In the event that the employee was specifically hired to be at the user undertaking’s disposal and the work was performed in violation of the 1987 Law on Temporary Agency Work, the original employment contract between the temporary work agency and the temporary agency worker becomes null and void.152 148 

Article 26, §1 CBA No 108. Articles 1, §§ 6 and 31 Law on Temporary Agency Work. 150  Article 32bis Law onTemporary Agency Work. 151  Articles 16, 3°, 101, 176 and 176/1 of the Social Criminal Code. 152  Article 31, §2 Law on Temporary Agency Work; Article 41 CBA No 108. 149 

Atypical Employment Relationships: The Position in Belgium 49 One of the civil sanctions is the legal presumption of the existence of an employment contract of indefinite duration between the user undertaking and the temporary agency worker put at its disposal. Article 31 of the Law expressly states that if any form of prohibited work is performed, a contract of employment of indefinite duration is presumed to exist between the temporary agency worker and the user undertaking. This presumption cannot be rebutted.153 In that event, both the original employer (ie the temporary work agency) and the user undertaking (who has become the temporary agency worker’s new employer due to the legal presumption) will be jointly liable for payment of all indemnities, termination compensation, wages and social security contributions.154 This creates significant legal problems when a foreign temporary work agency assigns a temporary agency worker to a Belgian user undertaking. As a result of the application of the civil liability penalty in the Law on Temporary Agency Work, the user undertaking is linked to the posted worker by an employment contract of indefinite duration and is jointly and severally liable for the payment of Belgian social security contributions for the employee concerned. This, however, does not take account of the posted worker’s social security status and may possibly represent double payment of social security contributions for the employee, namely contributions paid by the Belgian employer, even though the employee’s original employer in the Member State in which s/he is usually employed has already paid them. This is an infringement of the basic principle stipulated in EU Regulation No 883/2004 that employees shall only be affiliated with one social security scheme and social security contributions shall only be paid once.155 The Belgian Cour de cassation has drawn an important conclusion from this. The joint and several liability for the payment of social security contributions, stipulated in Article 31 of the Law on Temporary Agency Work, cannot apply to the user undertaking of the temporary agency worker in cases of international posting, since this also indirectly entails the application of Belgian legislation to social security contributions, which is contrary to the application of EU Regulation No 1408/71 of 14 June 1971, now Regulation 883/2004.156 The Cour de cassation ruled on another important issue, namely that a commercial service agreement between a user undertaking and a temporary work agency involving a prohibited posting is null and void. As a result, any 153 

Article 31, §3 Law on Temporary Agency Work; Article 41 CBA No 108. Article 31, §4 Law on Temporary Agency Work. 155  Article 11(1) of Regulation 883/2004 of 29 April 2004; ECJ judgment of 26 January 2006, Case C-2/05, Rijksdienst voor Sociale Zekerheid v Herbosch Kiere NV; see F Pennings, European Social Security Law (Antwerp, Intersentia, 2010), p 73. 156 Cour de cassation, 2 June 2003, No S.02.0039N, Arresten Hof van Cassatie 2003, p 1130, No 329. 154 

50  Wilfried Rauws charges from a temporary work agency (ie the temporary agency worker’s employer) resulting from the leasing of the worker to the user undertaking may not be claimed, and are therefore not enforceable before the courts.157 B. Registrations Licensing, Financial Guarantees etc Only authorised temporary work agencies (foreign agencies as well) may organise temporary agency work in Belgium. The rules on the operation of temporary work agencies are not determined by the Federal Government, but by the individual Regions.158 Moreover, temporary work agencies need preliminary authorisation and a licence issued by the Region.159 Such imposed authorisation is possible because temporary agency work is excluded from the scope of EU Directive 2006/123 of 12 December 2006 on services in the internal market.160 The use of temporary agency work has traditionally been prohibited in certain industries, eg in removal companies161 and inland navigation.162 Specific limits have been mandatorily imposed on temporary agency work in the construction sector.163 C. Relationship between Temporary Agency Worker and Temporary Work Agency With a view to protecting the temporary agency worker as an employee under labour law, there is a legal presumption that a temporary agency

157  Cour de cassation, 15 February 2016, No C.14.0448.F, Journal des tribunaux de travail, 2016, 158. 158  Article 6, §1, para IX of the Special Law on the Constitutional Reform of 8 August 1980 as amended by the Special Law of 8 August 1988; see Article 5 of the Decree of the Flemish Region of 10 December 2010 ‘Private employment agency’ regarding the 25 legal conditions; Article 10 Decree of the Walloon Region of 3 April 2009 relating to the registration or accreditation of employment agencies; Article 6 Brussels Ordinance of 14 July 2011 concerning the mixed labour market management in the Brussels-Capital Region. 159  Article 6, §1, para IX of the Special Law on the Constitutional Reform of 8 August 1980; see Article 9 of the Decree of the Flemish Region of 10 December 2010 ‘Private employment agency’ regarding the 25 legal conditions; Article 4 Decree of the Walloon Region of 3 April 2009 relating to the registration or accreditation of employment agencies; Articles 7–9 Brussels Ordinance of 14 July 2011 concerning mixed labour market management in the BrusselsCapital Region. 160  P Pecinovsky, ‘Werving, selectie en arbeidsbemiddeling’ in F Hendrickx and C Engels, Arbeidsrecht (Brugge, die Keure, 2015), p 263. 161  Article 23 Law on Temporary Agency Work; Article 18 of Collective Bargaining Agreement No 36 of 27 November 1981 juncto Article 42 of CBA No 108. 162  Royal Decree of 13 December 1999. 163  Article 11 CBA No 108.

Atypical Employment Relationships: The Position in Belgium 51 worker is an employee of the temporary work agency. This is a presumption juris et de jure, which means that it cannot be refuted.164 The employment contract for temporary agency work becomes legitimate in two phases. The intention to conclude an employment contract for temporary agency work must be indicated in writing and signed by both the temporary agency worker and the temporary work agency before the former commences work. This is not an employment contract but only a document that states that the individual intends to work as a temporary agency worker. The temporary agency employment contract shall be confirmed in writing at the latest when the temporary agency worker begins to provide his/her services.165 In case of breach of these regulations, the temporary work employment contract will be re-classified as a permanent employment contract of indefinite duration and the temporary agency worker may terminate his/her contract without notice or compensation within seven days of entering the temporary work agency’s service.166 The temporary agency employment contract needs to be concluded in writing and must include mandatory information such as the name of the worker, the place of work, the reason for the performance of temporary work, etc.167 (i)  Fixed-Term and Part-Time Contracts The majority of temporary work employment contracts are concluded for a fixed period. The use of successive fixed-term contracts is permitted, in principle, without limitation, and this succession does not lead to the presumption that a permanent employment relationship has been established.168 However, the use of successive daily contracts is only permitted if the user undertaking can prove the need for such successive daily contracts.169,170 The recent Law on Workable and Flexible Work of 5 March 2017171 has introduced the option of concluding temporary work contracts of indefinite

164 

Article 8, §1 Law on Temporary Agency Work. Article 8, §2 Law on Temporary Agency Work. 166  Article 8, §3 Law on Temporary Agency Work. 167  Article 9 Law on Temporary Agency Work. The employment contract mentions, in particular: the name and address of the company where the assignment will be carried out, the duration of the employment contract, the position of the temporary agency worker in the company, the gross salary, bonuses, travel expenses, etc., the reason for recruitment (replacement, temporary increase in workload, etc.), the work schedule, the joint committee of the user undertaking, and the probation period. 168  Article 3 Law on Temporary Agency Work. 169  Article 8bis Law on Temporary Agency Work. 170  6.5 million daily contracts in 2011 according to: P Van den Bergh and F Hendrickx, ‘Uitzendarbeid en terbeschikkingstelling’ in F Hendrickx and C Engels, Arbeidsrecht (Brugge, die Keure, 2015), p 263. 171  Article 32 Law on Workable and Flexible Work of 5 March 2017. 165 

52  Wilfried Rauws duration. Temporary work agencies have the possibility of concluding employment contracts of indefinite duration with temporary agency workers. For each work assignment, the temporary work agency must hand out a mission letter to the temporary agency worker.172 However, this new possibility cannot be implemented immediately. To this end, the necessary collective bargaining agreements must first be concluded in the Joint Committee for Temporary Agency Work No 322 and the collective bargaining agreements must, moreover, be declared universally binding by Royal Decree. (ii)  Rights and Obligations/Liability The basic premise of Belgian legislation on temporary agency workers, included in the Law of 24 July 1987, is a prohibition on the posting of workers, with limited exceptions. The ‘posting of employees’ means that an employer (the ‘lender’) puts its employees at the disposal of (‘lends to’) another party (the user undertaking), and this party exercises all authority normally exercised by the employer. In other words, according to the 1987 Law on Temporary Agency Work, placing employees at the disposal of a user undertaking is in principle only possible when this occurs without any part of the authority normally attributed to the employer being delegated to the user undertaking. However, the Law of 12 August 2000 on social, fiscal and other provisions and the Programme Law of 27 December 2012 oddly amended Article 31, §1 of the Law on Temporary Agency Work, and now stipulates that the transfer of certain aspects of the employer’s authority by the lender (employer) to the user undertaking is not considered, by way of a legal fiction, as the exercise of authority of the employer. The Act of 12 August 2000 asserts that authority is not delegated to the user undertaking if the user undertaking has introduced measures to meet the legal obligations regarding safety at work and if the user undertaking has implemented measures that follow from the agreement between the user and the employer (lender) concerning, inter alia, working time legislation. For the purposes of Article 31, the instructions given by the third party (user undertaking) to the temporary workers of the employer (lender) under a written contract between the third party (user) and the employer (lender) do not constitute the exercise of any part of the employer’s authority by the third party, provided that the written contract explicitly provides precise instructions that may be given to the employer’s (lender’s) workers by the third party (user). Thus, the legal concepts of ‘authority and instructions of the employer’ have lost some of their substance and broadened the possibility to post workers.

172 

Article 8ter Law on Temporary Agency Work.

Atypical Employment Relationships: The Position in Belgium 53 (iii)  Dismissal Protection N/A D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship No contract is concluded between a temporary agency worker and the user undertaking. Throughout the duration of the temporary work contract, the temporary work agency remains the only legal employer of the temporary worker, and not the user undertaking to whom the temporary agency worker has been leased. The temporary agency worker only has a factual working relationship with the user undertaking. (ii)  Rights and Obligations/Liability However, during the temporary work assignment, the temporary work agency delegates part of its employer’s authority to the user undertaking.173 It is therefore the user undertaking that gives the temporary agency worker instructions on the work to be performed, ie instructions normally given by the employer. (iii)  Health and Safety It is also the user undertaking that must apply the regulations on working time and occupational safety at the place of work throughout the temporary agency worker’s period of employment.174 E. Relationship between Temporary Work Agency and User Undertaking The mandatory written commercial service agreement between the temporary work agency and the user undertaking175 may validly include a termination clause, which obligates the user undertaking to pay flat-rate compensation to the temporary work agency if it directly engages the temporary agency worker before the end of a minimum period.

173 

Article 31, §1 Law on Temporary Agency Work. Article 19 Law on Temporary Agency Work; Article 176/1 of the Social Criminal Code. 175  Article 17 Law on Temporary Agency Work. 174 

54  Wilfried Rauws F. Rights and Status of Temporary Agency Worker (i)  Equal Treatment The principle of non-discrimination is a central principle of the Law on Temporary Agency Work. This principle existed long before EU Directive 2008/104 was adopted. Article 10 of the Law on Temporary Agency Work states that the salary of the temporary agency worker may not be less than what his/her salary would have been had he been directly hired by the user undertaking as a permanent worker under the same circumstances. Article 10bis of the same Law also entitles the temporary agency worker to use the same services of the company during his/her period of employment, just like permanent workers, including the canteens, child care, transportation facilities, etc. For the application of the legal and contractual provisions that are based on seniority, ie the length of the worker’s service in the undertaking, periods of his/her employment in the temporary work agency shall be taken into account, if they were interrupted: —— By periods of suspension of performance of the contract for which the temporary agency worker has continued to be subject to social security if s/he has not been employed by another employer during those periods; —— by periods of inactivity of one week or less.176 (ii)  Other Matters The user undertaking must inform the temporary agency worker of any vacancies in the company.177 G. Information and Consultation/Representation of Temporary Agency Worker Temporary agency workers are subject to a specific regulation. Temporary agency workers are not included in the calculation of the threshold178 of the total number of employees of their employer, ie of the temporary work agency. They are instead included in the calculation of the total number of employees of the user undertaking. The average number of temporary

176 

Article 13 Law on Temporary Agency Work. Article 20bis Law on Temporary Agency Work. 178  For the establishment of a works council, a threshold of 100 employees is necessary. For the establishment of a Safety and Health Committee, the threshold is 50 employees. 177 

Atypical Employment Relationships: The Position in Belgium 55 agency workers is calculated by the total number of calendar days during which any temporary agency worker who is not replacing a permanent employee whose contract has been suspended, is enrolled in the staff register of the user undertaking during (eg) the second quarter of 2019, divided by 92.179 Since the amending Law of 4 April 2019 on the Social Elections, all temporary agency workers who have worked for the user enterprise for at least three months or 65 days in the six-month period prior to the social elections now have full voting rights with that employer.180 H. Strikes Hiring temporary agency workers is prohibited in case of a strike or lockout.181 Thereby, employers cannot simply sidestep their striking employees by hiring temporary agency workers to replace them, as this would make collective action by workers powerless and redundant. I. Collective Bargaining Agreements Deviating from Statutory Provisions In addition to the general legislation, many collective bargaining agreements have been concluded in the Joint Committee No 322 for temporary agency work. Such collective bargaining agreements cover eg the right to an endof-year premium, maintenance of work clothes, financial contribution to transport costs, unemployment benefits with additional allowances paid by the previous employer’s payments, pension contributions for temporary workers, etc.182

179  Article 7, §4 of the Law of 4 December 2007 on Social Elections (as amended by the Law of 4 April 2019). 180 Article 16 of the Law of 4 December 2007 on the Social Elections, as amended by ­article 7 of the Law of 4 April 2019, Moniteur belge 30 April 2019 181  Article 1, §5 Law on Temporary Agency Work; Article 19 CBA No 108. 182 http://www.werk.belgie.be/resultsCAO.

56

3 Atypical Employment Relationships: The Position in Bulgaria KRASSIMIRA SREDKOVA

I. INTRODUCTION

T

RADITIONAL BULGARIAN LABOUR law regulates the relationship between the provider of labour (the employee) and the person who makes use of that labour (the employer). This describes the classic legal employment relationship and is subject to legal regulation in Bulgarian labour law (Article 1(1)–(2) Labour Code1 (LC)).2 Within this relationship, the employee performs specific work for the employer in exchange for a predetermined remuneration and according to the instructions established by the employer at the place of employment—the employer’s enterprise. In recent years, however, employment relationships that deviate from the traditional legal form have increased and many non-traditional employment forms are covered by European legislation. The legal literature refers to these types of relationships as ‘atypical employment relationships’ or ‘atypical forms of employment’.3 Some EU laws and some regulations of the International Labour Organization (ILO) recognise these atypical forms of employment or certain aspects thereof. Such forms are also increasingly found in Bulgaria. Some forms of employment, such as fixed-term employment relationships or part-time work, have traditionally been subject to

Кодекс на труда—Labour Code. Л Радоилски, Трудово право на Народна република България, pp 7–53 (L Radoilski, Labour Law of the People’s Republic of Bulgaria) (С.: НИ, 1957); A Василев, Трудово право (A Vassilev, Labour Law), pp 11–21 (Бургас: БСУ, 1997); В Мръчков, Трудово право, 10. изд. (V Mrachkov, Labour Law, 10th edn), pp 24–27 (С.: Сиби, 2017); К Средкова, Трудово право. Обща част (K Sredkova, Labour Law. General Part), pp 11–20 (С.: УИ ‘Св Климент Охридски’, 2010). 3 See И Нейков, ‘Някои форми на нетипична заетост на българския трудов пазар—правни аспекти и проблеми’ (I Neikov, ‘Some forms of atypical employment on the Bulgarian labour market—legal aspects and problems’), pp 98–104 in Актуални проблеми на трудовото и осигурителното право Т. II (Current problems of labour and social insurance law Vol II) (С.: УИ ‘Св Климент Охридски’, 2007). 1 

2 See

58  Krassimira Sredkova Bulgarian legislation and case law. Other forms of employment, however, have only started emerging in recent years, such as labour provided through temporary work agencies. The search for the most efficient legal solutions for such employment relationships is ongoing. II.  FIXED-TERM WORK4

A.  Legal Definitions/Formal Requirements Bulgarian labour law does not contain a legal definition of the term ‘fixedterm work’. It does extensively regulate cases in which fixed-term contracts are admissible (Article 68(1) LC) and elaborates their legal regime. According to conventional understanding,5 a fixed-term employment contract includes an express provision or regulation defining the (predetermined) duration of the contract. The possibility to sign such contracts is provided in Article 67(1) item 2 LC. Fixed-term employment contracts can only be concluded if both parties voluntarily consent to it. As a standard rule, employment contracts of indefinite duration must be concluded (Article 67(1) item 1 LC). Article 67(2) LC establishes an irrebuttable presumption that an employment contract is of indefinite duration—‘the employment contract shall be considered a contract of indefinite duration, unless expressly agreed otherwise’. An employment relationship is concluded for a fixed duration when it is based on an election (Article 83(2) sentence 2 LC). Since such employment relationships are rare and exceptional, our focus will be on fixed-term employment contracts. Depending on the method applied to determine the duration of the employment contract and the grounds for its conclusion, Bulgarian legislation covers several types of fixed-term employment contracts: 1. An employment contract of definite duration, (Article 68(1) item 1; Article 72(2); Article 229(2); Article 234(3) etc LC). Such contracts

4  See in detail В Ангушева, ‘Срочни трудови договори’ (V Angusheva, ‘Fixed-term employment contracts’) in Правни изследвания в памет на проф. И Апостолов (Legal studies in memory of Prof Iv. Apostolov), pp 19–24 (С Улпиан ЕООД, 2001); К Средкова, Трудово право. Специална част. Дял I. Индивидуално трудово право (K Sredkova, Labour Law. Special Part. Div I. Individual Labour Law), pp 72–78 (С.: УИ ‘Св Климент Охридски’, 2011); В Мръчков, Трудово право (V Mrachkov, Labour Law), pp 224–39.; В Мръчков (V Mrachkov) in В Мръчков, К Средкова, А Василев, Коментар на Кодекса на труда. 12 изд. (V Mrachkov, K Sredkova, A Vassilev, Commentary to the Labour Code, 12th edn), pp 223–38 (С.: Сиби, 2016). 5 See К Средкова, Трудово право. Специална част (K Sredkova, Labour law. Special part), p 72; В Мръчков, Трудово право (V Mrachkov, Labour law), pp 225–27; В Мръчков (V Mrachkov) in Коментар (Commentary), pp 223–29.

Atypical Employment Relationships: The Position in Bulgaria 59 have a specified term (dies certes). The term can either be specified by a start and end date (eg from 4 December 2016 to 4 January 2017); by duration (eg one year from when the contract is concluded), or by a specific date (eg until 2 February 2017). The parties to the fixedterm employment contract agree on the term of the contract by mutual consent. The law only regulates such a contract’s maximum duration, namely three years (Article 68(1) item 1 LC). Deviations from this rule are only possible if they are based on a legal act—for example, the maximum term of an employment contract entered into after a contract with the same employee to acquire or upgrade vocational qualifications has come to an end can be six years, according to Article 234(2) LC. 2. A contract concluded for the completion of specified work (­Article 68(1) item 2 LC). Such an employment contract is concluded for the performance of a specific type and amount of work of a certain q ­ uality—for example, to build a residential building. The contract’s duration is determined by the volume and quality of work that needs to be completed. The duration must therefore be accurately determined at the time the contract is concluded. This type of employment contract resembles a works contract (Article 258 of the LOC),6 but under this particular contract, the result of the labour, and not the labour for the execution of the work, determines the contract’s duration. Such employment contracts are primarily concluded in the construction and agricultural sectors. The term expires when the work for which the contract was concluded is completed. 3. A contract concluded for the substitution of an employee (Article 68(1) item 3; Article 259 LC). The duration of such a fixed-term contract is determined by a future event—the return to work of the employee being substituted. Such contracts are concluded for the performance of work usually carried out by the permanent employee who is currently absent from work. Such a contract can be concluded irrespective of the reason for the permanent employee’s absence. Examples include leave of absence, a business trip, etc. These types of contracts are also concluded irrespective of the duration of the permanent employee’s absence, which means the contract’s term can be one month, for example, or two years. The Labour Code regulates two types of contracts for substitution. The first type can be concluded with an individual who is not an employee of the enterprise (employment contract with external substitution, ­Article 68(1) item 3 LC). The other type can be concluded with an individual who is already an employee of the same enterprise (­Article 259 LC). Its conclusion is subject to the condition that the employee is only substituting for the absent employee, not replacing him or her. 6 

Закон за задълженията и договорите—Law on Obligations and Contracts.

60  Krassimira Sredkova 4. A contract concluded for a position designated to be filled after a competitive procedure has been completed (Article 68(1) item 4 LC).7 The duration of the contract in such a case is determined by the time it takes to fill the position with a successful applicant (Article 96(2) LC). Once the competitive procedure has been completed, but no successful applicant has been selected, or if the successful applicant hasn’t yet commenced his or her employment, the fixed-term employment contract concluded in accordance with Article 68(1) item 4 LC shall remain valid until the position is filled. 5. A contract that is concluded for work to be performed for which a term of office is envisaged (a fixed-term of powers—Article 68(1) item 5 LC). With the expiry of the term of office, the employment contract is terminated. This is the case, for example, for members of political cabinets, executive authorities, etc, who work under an employment contract (Article 28 LA).8 B.  Lawful Stipulation of the Contractual Terms (i)  Validity of (Successive) Fixed-Term Contracts In Article 68(1) LC, Bulgarian legislation explicitly sets out the cases in which a fixed-term employment contract can be concluded. The validity of such a contract is determined by the conditions under which it is concluded (Article 68(1) items 2–5 LC). The conclusion of a fixed-term employment contract for an explicitly specified time is possible if both parties to the contract agree to conclude a fixed-term contract. In that case, they both agree on the specific duration of the contract. The conclusion of such an employment contract is admissible if the following two requirements are met. The first is set out in Article 68(3) LC and refers to ‘casual, seasonal or short-term work and activities’, as well as to ‘newly-hired employees in enterprises that have been officially declared bankrupt or have gone into liquidation’. The second requirement (Article 69(4) LC) is that a fixed-term

7 A competition is an independent reason for establishing an employment relationship according to Bulgarian legislation (chap V, s III LC). It is expressed in a preliminary examination of the applicants’ professional competence to perform a certain job function to determine who the most suitable candidate is. See Ил Шотлеков, ‘Ред за възникване на трудово правоотношение от конкурс’ (Il Shotlekov, ‘Procedure for the establishment of employment relationships by competition’) Правна мисъл (Legal thinking), 1967, No 5, 42–52; А Василев, Трудово право (A Vassilev, Labour law), pp 169–76 (Бургас: БСУ, 1997); К Средкова, Трудово право. Специална част (K Sredkova, Labour law. Special part), pp 92–99; В Мръчков, Трудово право (V Mrachkov, Labour law), pp 277–87; В Мръчков (V Mrachkov) in Коментар (Commentary), pp 272–84. 8  Law on Administration.

Atypical Employment Relationships: The Position in Bulgaria 61 employment contract for an expressly specified time may only be concluded as an exception.9 The exceptions are postulated in the law, and can either be for economic, technological, financial, market-related or other objective reasons (§ 1 item 8 SP LC) that exist at the time of conclusion of the employment contract and must be specified therein. Furthermore, the minimum duration of the employment contract must be one year. A shorter duration can only be provided upon the written request of the employee. Moreover, such an employment contract between the same employee and the same employer for the same work may not be concluded more than twice (­Article 69(9) LC). Secondly, in certain cases, the law requires the parties to conclude a fixedterm employment contract. In that case, the parties need to only determine the duration of the contract. Such an employment contract is concluded, for example, for on-the-job training (contracts for training must be concluded for a fixed term (Article 230(4) LC)) or for short-term seasonal agricultural work (Article 114a LC). The legislation establishes restrictions on the conclusion of successive fixed-term employment contracts. Successive fixed-term contracts can only be concluded in exceptional cases for work that is not temporary, seasonal or short-term. They cannot be concluded with newly-appointed employees in an insolvent enterprise. As mentioned above, a fixed-term employment contract between the same employee and the same employer for the same work may not be concluded more than twice (Article 68(4) LC). The legislation provides for certain protective measures to ensure compliance with the requirements for fixed-term employment contracts and the number of successive contracts. Violations of these requirements may result in two legal consequences— the invalidity of the employment contract and the irrebuttable presumption of an employment contract of indefinite duration. According to Article 74(1) LC, an employment contract that conflicts with the law or circumvents it shall be void. This is the case, for example, if an employment contract is concluded for four years, contrary to the requirement of Article 68(1) item 1 LC, which states that the maximum term of a fixed-term employment contract shall be three years, insofar as it is not stated otherwise in the Law. A court can declare the nullity of the contract or of individual clauses therein (Article 74(2), sentence 1 LC). Until such a declaration is issued by the court, the parties cannot invoke it (­Article 74(5) LC). Such declarations are issued under the procedure for settling individual labour disputes. Invalidity claims can be brought before the court by either party, as well as by the inspection authorities (who are

9 See Л Тодорова, ‘Сключване на срочен трудов договор по изключение’ (L Todorova, ‘Conclusion of fixed-term employment contracts as an exception’), pp 5–8 Информационен бюлетин по труда (Information Bulletin for Labour) (2012, No 10).

62  Krassimira Sredkova in charge of monitoring compliance with labour legislation). Invalidity shall not be declared if the violation (ie the grounds for it) has been removed. According to Article 68(5) LC, a fixed-term employment contract concluded in violation of requirements is considered to have been concluded for an indefinite duration. This irrebuttable presumption of an employment contract of indefinite duration means that if a fixed-term employment contract has been concluded for work which is neither temporary nor shortterm or seasonal, it shall be considered as having been concluded for an indefinite duration. C.  Termination/End of Fixed-Term Contracts Fixed-term contracts can be terminated on any grounds that are valid for terminating contracts of indefinite duration. In addition to the grounds already mentioned above, legislation sets out specific grounds for the termination of fixed-term employment contracts depending on their type. 1. Expiry of the agreed term (Article 325(1) item 3 LC). Employment contracts concluded for an expressly specified time under Article 68(1) item 1 LC are terminated in accordance with this article.10 The termination is effective as soon as the time specified in the contract has expired. The termination occurs ex lege.11 The announcement of the termination is issued by the employer (Article 128a(4); Article 335(1) LC), but is only of declaratory value.12 Such an announcement is of significance for preventing the application of the presumption transforming the fixed-term employment contract into one of indefinite duration (Article 69(1) LC). 2. Completion of a specified task (Article 325(1) item 4 LC). The fixedterm employment contract terminates when the task specified in the contract pursuant to Article 68(1) item 2 LC is completed. According to case law, the completion of ‘specific work’ means the completion of the work specified in the contract in terms of volume and quality.13 Termination of the contract requires the employer to accept the

10 Decisions No 534/2002 of 3rd civil division, No 1404/2003 of 3rd civil division, No 509/2004 of 3rd civil division of the Supreme Court of Cassation. 11  See also Е Мингов, Прекратяване на трудовия договор на общи основания (E Mingov, Termination of employment contracts for general reasons) (С.: Сиби, 2004) p 196; В Мръчков, Трудово право (V Mrachkov, Labour law), pp 589–90; В Мръчков (V Mrachkov) in Коментар (Commentary), pp 950–51. 12  Decision No 401/2004 of 3rd civil division of the Supreme Court of Cassation. 13  Decision No 1427/2004 of the 3rd civil division; No 1702/2005 of the 3rd civil division; No 1806/2006 of the 3rd civil division of the Supreme Court of Cassation.

Atypical Employment Relationships: The Position in Bulgaria 63 completed work. The termination is effective when the employee receives a declaration from the employer confirming completion of the work. 3. Return to work of the substituted employee (Article 325(1) item 5 LC). This is a specific reason for terminating a fixed-term employment contract, as it was concluded with the sole purpose of substituting for an absent employee pursuant to Article 68(1) item 3 LC. The contract is terminated when the person who was being substituted returns to work. Return means that the person who was substituted resumes the performance of his/her work.14 The employer must issue an explicit declaration terminating the employment contract of the substitute employee. This declaration is of significance to prevent the application of the presumption of a conversion of the fixed-term employment contract for substitution into one of indefinite duration pursuant to Article 69(2) LC. The contract is terminated when the employee receives the employer’s declaration regarding the return to work of the employee who was substituted. 4. Expiration of the term of office. The Labour Code does not expressly settle the termination of fixed-term employment contracts for a specific term of office pursuant to Article 68(1) item 4 LC. The logical interpretation of the current legislation leads to the conclusion that the contract terminates upon its expiry date, which is determined by the duration of the term of office of the relevant authority. The termination must therefore become effective on the basis Article 325(1) item 5 in conjunction with Article 68(1) item 4 LC.15 5. Commencement of employment of the employee who has been elected or selected through competition (Article 325(1) item 8 LC). The fixedterm employment contract terminates when the term for work that is performed based on an election or competition ends (Article 68(1) item 5 LC). Such a contract is concluded when two requirements are met. First, elections or a competition must have been successfully held.16 This means the election or competition has been successfully completed and a successful candidate has been elected or the winner of the competition has been determined. This, however, does not suffice. The second requirement for terminating such a fixed-term contract is the ­commencement of employment of the employee who has either been elected or has won the competition. In other words, the successful 14  Decision No 1492/2002 of the 3rd civil division; No 306/2007 of the 3rd civil division of the Supreme Court of Cassation. 15 See also В Мръчков, ‘Сключване и прекратяване на трудовия договор за определен мандат’ (V Mrachkov, ‘Conclusion and termination of the employment contract for a certain term of office’), pp 524–26 in Трудови отношения 2006 (Employment relationships 2006) (С.: Труд и право, 2006). 16  Decision No 1819/2002 of the 3rd civil division; No 70/2003 of the 3rd civil division; No 1808/2004 of the 3rd civil division of the Supreme Court of Cassation.

64  Krassimira Sredkova candidate must start performing the work he/she has agreed to in the employment relationship. In brief, the employment relationship is terminated when the successful candidate commences his or her employment. This is established by a declaration of the employer. 6. Commencement of another employment of indefinite duration (Article 327(1) item 7 LC). This particular ground for terminating a fixed-term employment contract applies to contracts concluded for a specified period (Article 68(1) item 1 LC) and for the substitution of a worker (Article 68(1) item 3 LC). Since fixed-term employment contracts contain fewer protections, the law allows the employee to terminate a fixed-term contract to conclude one of indefinite duration with another employer. A fixed-term employee may conclude a contract of indefinite duration irrespective of the reason for the establishment of the permanent employment relationship (ie the signing of an employment contract or the holding of a competition). A contract of indefinite duration is certified by the signed contract or by a decision of the selection board, which the employee needs to submit to his/her employer, together with a declaration of intent to terminate the fixed-term contract. The termination becomes effective without any notice upon receipt of the employee’s written request. Legislation provides the possibility to convert a fixed-term contract into a contract of indefinite duration upon expiry of its term. This is regulated by the irrebuttable presumption under Article 69 LC, and applies to fixed-term contracts of definite duration pursuant to Article 68(1) item 1 LC and to substitutions of employees pursuant to Article 68(1) item 3 LC. The prerequisites for the application of this presumption are: —— Expiration of the employment contract. This refers to fixed-term employment contracts of definite duration. If an employment contract is concluded for the substitution of an employee, the employment with the employee to be substituted must first be terminated. —— Work after the expiration of the term or after the termination of the employment contract of the employee to be substituted is possible for another five working days to ensure that the work is performed efficiently. —— Lack of a written objection by the employer. The written form is evidence of the declaration of intent. —— Availability of a vacant position. No employment contract can be concluded with an employee who has not yet commenced employment for a position occupied by an employee under a fixed-term employment contract, and the post has not yet been eliminated from the enterprise’s business plan, etc.

Atypical Employment Relationships: The Position in Bulgaria 65 The application of the presumption pursuant to Article 69 LC occurs immediately by virtue of the Law in the cumulative presence of the prerequisites mentioned above. It is irrebuttable. Neither the employee nor the employer needs to make any declaration of intent. The order issued by the employer is of a declaratory but not of fundamental significance. Unlike the cases described above in which a fixed-term employment contract converts into one of indefinite duration upon the expiry of the fixed term, there is one case in which a fixed-term contract will be considered one of indefinite duration at the time of its conclusion. This case is stipulated in Article 68(5) LC and refers to fixed-term employment contracts of definite duration (Article 68(1) item 1 LC). Such an employment contract is deemed to have been concluded for an indefinite duration if it violates any of the requirements set out in Article 68(3)–(4) LC, namely the nature of the work or the existence of an exception. Article 68(5) LC states that the employment contract will be deemed to have been concluded for an indefinite duration and that the rules governing employment contracts of indefinite duration apply thereto if these requirements are violated.

D.  Rights and Status of Fixed-Term Worker (i)  Equal Treatment Workers under a fixed-term or an indefinite employment contract must be treated equally, as enshrined in Article 8(3) LC, which states that ‘in the course of the exercise of labour rights and duties, no direct or indirect discrimination shall be permissible on grounds of … the contract term’. This principle is reiterated in Article 68(2) LC. According to this provision: Employees employed under a fixed-term employment contract … shall have the same rights and obligations as employees employed under an employment contract of indefinite duration. Fixed-term employees may not be treated in a less favourable manner than comparable permanent employees engaged in the same or similar work at the enterprise solely due to the fixed-term nature of their employment relationship, unless the law specifies that certain rights are contingent on the qualifications possessed or the skills acquired. Where there are no permanent employees engaged in the same or similar work, the fixed-term employees may not be treated in a less favourable manner than the rest of the employees employed under an employment contract of indefinite duration.

Differences only apply to the termination of the employment contract. One difference is the notice period. While this period is usually 30 days, it is three months for fixed-term contracts, albeit that the notice period cannot exceed the remainder of the term of the contract (Article 326(2) LC).

66  Krassimira Sredkova (ii)  Employment Opportunities As stated above, the conclusion of a fixed-term contract rests on the will of the parties, subject to the observance of statutory limitations. Moreover, Article 68(7) LC requires the employer to Provide, at a suitable place in the enterprise, timely information in writing to fixed-term employees about vacant jobs and posts that can be occupied under an employment contract of indefinite duration, to ensure that they have the opportunity to obtain a permanent position. The employer shall also share such information with the trade union organisation’s representatives, as well as with the employees’ representatives.

The employer is also required to ‘take measures to facilitate access by fixedterm employees to vocational training for the purpose of enhancing their skills, career development and occupational mobility’ (Article 68(8) LC). E.  Information and Consultation As fixed-term employees enjoy the same rights as employees under contracts of indefinite duration (see above, II.D.(i)), they also have the right to information and consultation (Articles 130–135 LC).17 Moreover, they are entitled to the above (II.D.(ii)) special right to information and consultation on conversions to employment contracts of indefinite duration and career development (Article 68(7)–(8) LC). F.  Specific Provisions Bulgarian legislation does not contain specific regulations on the fixed-term employment of academics, researchers, artists or other similar personnel. They are subject to the general regime. Only one specific regulation, on employment relationships with assistants at universities and research organisations, has been included in the Law on Development of Academic Staff in the Republic of Bulgaria. ‘Assistant professors’ can only conclude fixed-term employment contracts for a maximum duration of four years. Such an employment relationship can only be established once with each assistant professor.

17  See K Sredkova, Workers’ participation in Central and Eastern Europe: Challenges and opportunities for the works councils system, R Blainpain and N Lyutov (eds) (The ­Netherlands: Wolters Kluwer Law and Business, 2014) pp 25–36.

Atypical Employment Relationships: The Position in Bulgaria 67 G.  Collective Bargaining Agreements Deviating from Statutory Provisions According to Bulgarian labour legislation, collective labour agreements can only regulate conditions that are not established in mandatory provisions of the law (Article 50(1) LC). In so far as the rules on fixed-term work are governed by mandatory provisions of the Labour Code, it is not permissible for collective labour agreements to deviate from those provisions. III.  PART-TIME WORK18

A.  Legal Definitions/Formal Requirements The concept of part-time work under Bulgarian law is based on the provision of Article 138(1) sentence 1 LC, according to which ‘the parties to the employment contract may agree on work for part of the statutory working time (part-time work)’. This provision implies that part-time work is part of the statutory working hours. It is a deviation from the statutory working hours, ie a reduction thereof, and is possible regardless of whether the employee works regular or reduced working hours. The legal framework of part-time work is contained in Articles 138–138a LC and Article 9 OWHRL.19 B.  Opportunities for/Right to Part-Time Work Part-time work, according to Bulgarian legislation, can be agreed in two sets of circumstances: —— By mutual consent of the parties to the employment contract (Article 138 LC). At the conclusion of the employment contract or a modification thereof by mutual agreement of the parties (Article 119 LC), the parties may establish working hours that are shorter than the statutory (normal or reduced) working hours. Parties to a contract may agree on such working hours if it meets their interests.

18  See in more detail К Средкова, Правен режим на работното време (K Sredkova, Legal regulation of working time), pp 168–76 (С.: УИ ‘Кл. Охридски’, 1993); К Средкова, Трудово право. Специална част (K Sredkova, Labour Law. Special Part), pp 173–74; К Средкова (K Sredkova) in Коментар (Commentary), pp 448–61; В Мръчков, Трудово право (V Mrachkov, Labour law), pp 338–42. 19  Наредба за работното време, почивките и отпуските—Ordinance on Working Hours, Rests and Leaves.

68  Krassimira Sredkova —— Unilaterally by the employer (Article 138a LC). In exceptional cases, the employer can unilaterally temporarily modify individual employment relationships (Article 118(1) LC). Normally, Article 138 LC applies, which states that the consent of the individual employee is required; however, under this provision, the employer can unilaterally decide that an employee will only work part time. The employee’s consent is not required. Though the employer may unilaterally modify the working hours established in the employment contract, the law binds the employer to several requirements: —— The employer may legally impose part-time work in cases of reduction in the volume of work. This is particularly important for employees who might lose their job otherwise due to possible termination of the employment by the employer. —— The period for which part-time work can be imposed is limited to three months within one year. Part-time work can only be introduced following a specific procedure, namely after prior consultation with trade union and employee representatives. While there is no explicit restriction, it is assumed that all existing trade unions in the enterprise must be consulted. Employee representatives are employees who are elected in the General Meeting to represent the common interests of employees before the employer on issues concerning the employment relationship (Article 7(2) LC). The introduction of part-time work by the employer is his/her subjective transformative right under the individual employment relationship. The employer issues a unilateral declaration in accordance with the established legal requirements. This declaration shall be issued as a written order (Article 9 sentence 1 OWHRL). It must be issued at least 10 days before the commencement of part-time work. The unilateral introduction of part-time work by the employer cannot apply to an individual employee. According to the express wording of the law, it must apply to the entire enterprise or to individual units, ie such an action involves the modification of the individual employment relationships of all or of a certain segment of employees, but not of an individual employee’s employment contract.

C.  Opportunities for/Right to an Extension of Working Time For the first time in recent decades, a new legal arrangement on working hours was introduced in Bulgarian labour legislation in 2011—the extended working day (Article 136a LC). The employer may now introduce longer working hours when an important and urgent production task needs to be completed. The duration of an extended working day is longer than a

Atypical Employment Relationships: The Position in Bulgaria 69 r­ egular working day pursuant to Article 136 LC, or of a reduced one pursuant to Article 137 LC. The grounds for the introduction of an extended working day must be production reasons. They must relate to implementing the employer’s activities. The law does not specify the content of those grounds. These could be a large number of customer orders, the need to comply with market conditions (eg production of souvenirs before Christmas and New Year), an unusually rich harvest (and the need to process the harvest in the canning factory), etc. The employer shall conduct an assessment in each individual case. The term ‘production reasons’ in this case should not be interpreted restrictively as reasons relating only to the production and supply of material goods. Such reasons can also result from the immaterial sphere—for example, education, governance, healthcare (eg processing of documents in admission campaigns at higher education facilities, treating more patients during an epidemic, etc). The extension of working hours is not acceptable as a permanent solution but only as a temporary one. Compliance with normal working hours can be achieved by a corresponding reduction of working hours on certain working days. The reduction of working hours on given days must correspond with the extension of working hours on other days—eg if a working day was extended by two hours, another working day must be reduced by two hours. By compensating for the extension of working hours by reducing the working hours on another day, it is possible to achieve a balance and to thus comply with the normal working hours regime. An extension of working hours is only permitted on weekdays. The employer cannot assign additional working hours on days of weekly rest (eg Sundays) or during holidays. Assigning additional hours is only permitted in compliance with the conditions for overtime. The establishment of a regime of extended working hours is achieved by a unilateral declaration of the employer. By issuing such a declaration, the employer exercises his/her right conferred by Article 136a(1) LC. This right belongs to the category of transformative rights, ie by exercising this right, its holder (the employer) introduces a unilateral modification of the employment relationship, regardless of the employee’s wishes. The declaration must be made in writing to be valid and must specify the production reasons requiring an extension of the working day. On the grounds of Article 8(1) sentence 2 OWHRL, the declaration must indicate the start and end date of the extended working hours, the work units and the employees that will be affected by it. According to Article 8(1) sentence 1 OWHRL, the declaration must be issued within a specified period (minimum three working days) prior to the commencement of the extended working day. Failure to comply with this notice period is an administrative offence under Article 414(1) LC, for which the employer or responsible persons may be liable to pay an administrative fine up to BGN 15,000 (EUR 7,500)

70  Krassimira Sredkova as d ­ etermined by the inspection authorities in charge of compliance with labour legislation. The employees to whom the declaration for the extension of working hours applies shall be informed thereof (Article 8(1) OWHRL). Notification must be made immediately after issuing the declaration. The right to unilaterally modify the content of the employment relationship provides the employer with extensive executive power. However, the law sets out one prerequisite of exercising such power, namely prior consultation of the employee representatives and of the trade union representatives (Article 136a(1) sentence 1 LC). The consultation shall take place before the extended working day is introduced. The law does not explicitly state the legal consequences of failure to comply with the requirement to consult the employee and trade union representatives in advance. It must therefore be assumed that such failure is a general violation of labour law, for which an administrative fine may be imposed on the employer pursuant to Article 414(1) LC. The law limits the permissible working hours under the extended working day regime. There are two possibilities. Under one regime, the maximum working hours per day and per week are fixed. That maximum is 10 hours per working day. This limit to the extension of daily working hours applies to the normal working day pursuant to Article 136, LC, which is eight hours. The maximum duration of the normal working week is 48 hours, and 40 hours of the reduced working week. Under the other regime, an extension of the reduced working day is introduced. In this case, the maximum working hours are established based on the permissible extension of the reduced working day—namely one hour. The extension is recorded in a special book, and must include the following details: the number of the order to extend the regular working hours; information on the consultation with the trade union and employee representatives pursuant to Article 7(2) LC; the full name of the employee; the day and time of the extension of working hours; the length of the extension period; the start and end dates of the extension period; and the number of the order for compensation in cases under Article 136a(5) LC—as well as the remuneration paid. The obligation to keep such a book is compulsory for the employer. The absence of such a book for recording the extension of working hours, or its irregular updating are grounds for imposing administrative-penal liability on the employer and the relevant officials for violation of labour legislation pursuant to Article 414(1) LC. The law restricts the employer’s power to extend the working hours within a calendar year. The employer may only extend 60 working days per year in total. A restriction applies not only in terms of the total number of working days (60) per year that can be extended, but also to their succession. To avoid an excessive load on the employee and the violation of his/her rhythm not only in relation to work but also to the employee’s

Atypical Employment Relationships: The Position in Bulgaria 71 personal, family and public life, working day extensions may not encompass more than 20 consecutive working days. Compensation for the extension of working hours is provided by a corresponding decrease of hours in other working days. This should be provided no later than four months following the extension. If the employer fails to fulfil his/her obligation to compensate for the extension of working hours, the employee may decide on his/her own when to compensate for the extension. A prerequisite for the employee to exercise this right is the breach of the obligation of the employer to compensate for the extension of working hours. The employer breaches his/her obligation when the employee’s working hours are not reduced respectively to the extension within the statutory period—namely within four months of the extended working day(s). The employee may exercise his/her right by unilaterally notifying the employer thereof. This must be done in writing. The notice shall not seek permission or consent on the part of the employer; its purpose is to inform the employer when the employee intends to use his/her right to compensation, as stated by the Supreme Court of Cassation.20 Accordingly, compensation for extended working hours can only be unilaterally taken by the employee if he/she gives the employer prior notice. The notice must indicate the days on which the employee will be absent to compensate for the extension of working hours (a date and a calendar day). The notification must be submitted no later than two weeks before the intended date of absence to allow the employer to organise the work during those days. There is one exception to the rule that the extension of working hours shall be compensated for by a corresponding reduction on another working day(s). This exception applies in case of termination of the employment contract before the extended working hours are compensated for. In this case, the extension can be compensated by money. Since an extension of working hours can result in the risk of fatigue, as it violates the normal rhythm of life of the employee and prevents him/her from pursuing his/her other obligations that are not related to work, the law has established special protection for certain categories of employees who are socially more vulnerable. A prohibition of extended working hours relates to some categories of employees. This prohibition can be overridden by a prior written consent of the employee concerned. This applies, for example, to mothers with small children, reassigned employees and others. For other categories (for example, minors, pregnant women, women in IVF treatment) the prohibition is absolute—they are not permitted to have extension of their working hours under any circumstances.

20 

Decision No 819/2014 of the 4th civil division.

72  Krassimira Sredkova D.  Rights and Status of Part-Time Worker (i)  Equal Treatment Article 138(3) LC stipulates the principle of equality for part-time employees. This is a repetition of the general principle of non-discrimination in employment relationships as established in Article 8(3) LC, which states that ‘in the course of the exercise of labour rights and duties, no direct or indirect discrimination shall be allowed on grounds of … duration of working time.’ Since part-time work at the request of the employee or due to an objective necessity of the employer reduces the generally established standard of employment (full-time), certain rights of the employee are also reduced; or rather, they are determined pro rata to the working time. This applies in particular to: —— Remuneration. It is determined pro rata based on the hours worked or according to output (Article 247, LC). The different types of benefits payable to the employee are determined accordingly. —— Length of employment service. The calculation of length of employment service includes both part-time and full-time work; if the parttime work entails at least half of the statutory working hours (Article 355(2) LC), it is calculated as full-time work. That does not mean that it is not possible to work for fewer hours, but in that case, the employee’s working time will not be calculated as a full day of employment service. —— Paid annual leave. Determining its duration is based pro rata on the employee’s working time (Article 23(2) OWHRL). (ii)  Dismissal Protection For employees with part-time contracts, there are no specific rules on protection against dismissal. The general rules apply to them. (iii)  Other Matters The legislator encourages reconciling the interests of the employer with those of individual employees by providing several options: The employer must take the willingness of the employee to move from full-time to part-time work into account, when such an opportunity exists in the enterprise (Article 138a(3), item 1 LC). An opportunity exists when the work performed by the employee permits a reduction in working hours, or where there are vacancies designed specifically for part-time work, or where job sharing is possible, etc. —— The employer must take into account the wishes of employees who want to move from part-time to full-time work by increasing their

Atypical Employment Relationships: The Position in Bulgaria 73 working hours (Article 138a(3) item 2 LC). This is possible when an employment contract for part-time work has been concluded pursuant to Article 138 LC, and when the number of working hours is modified (regardless of the reason) under the terms of Article 119 LC after the employment relationship has been established. —— The employer is obliged to take measures to facilitate access to parttime work at all levels of the enterprise. In particular, he/she should facilitate access to part-time work for positions that require special qualifications and for managerial positions; as well facilitating access of part-time employees to vocational training to increase their opportunities for career development and occupational mobility. E.  Information and Consultation As already stated, part-time employees have the same rights as the other employees (Article 8(3); Article 138(3) LC). This also applies to the right to information and consultation (Articles 130–135 LC). In addition, they are granted a special right under Article 138a(3) LC, namely the right to information and consultation on job vacancies and positions for full-time or part-time work. The law establishes several requirements on how the information is to be made available by the employer: —— Time of provision. The information must be provided in a timely fashion. This means the information is provided as soon as it becomes available, for example, as soon as the relevant position becomes vacant. —— Place of provision. The information should be made available at an appropriate place in the enterprise. An appropriate place is a common and easily accessible area that all employees can enter to find the information. This can be the notice-board in the enterprise, a designated area known to the employees such as a specific room in the enterprise, etc. —— Format of the information. The information must be provided in writing. —— Purpose of the information. It must facilitate the transition from fulltime to part-time work or vice versa. —— The information shall be addressed to the employees; to the representatives of the trade unions and to employee representatives. F.  Other Part-Time Arrangements When part-time work is agreed by mutual agreement of the parties, they shall also determine the distribution of working hours (Article 138(1) LC).

74  Krassimira Sredkova Thereby, part-time working days, part-time working weeks or a part-time working month can be arranged. When part-time work is unilaterally set by the employer (Article 138a LC), he/she determines the distribution of working hours. In order not to substantially encroach on the rights of employees, the Law (Article 138a(2) LC) introduces a restriction on the duration of working hours that can be determined by the employer. The working hours may not be less than half of the statutory duration. This requirement relates to one of the most important consequences of part-time work, namely recognising it for the purposes of length of employment service. Thus, the time worked will be considered a complete unit of employment service—working day, working month, etc. The rights of employees relating to the duration of their employment service will thereby not be reduced. On-call work and job sharing are not regulated in Bulgarian labour legislation. They do not exist in practice. G. Collective Bargaining Agreements Deviating from Statutory Provisions The law on deviations from rules established in a collective agreement applies to fixed-term employment contracts as well—a deviation is only possible if it is not regulated by mandatory provisions of the Law (Article 50(1) LC). IV.  TEMPORARY AGENCY WORK21

A.  Legal Definitions/Formal Requirements The possibility to work for an agency that provides temporary work was introduced in Bulgarian labour legislation by supplements to the Labour Code (Articles 107p–107w) of 2011. According to Article 107p LC: An employment contract with an enterprise providing temporary work shall stipulate that the employee concerned is to be commissioned for temporary work at a user undertaking, such work being supervised and controlled by such user undertaking.

21 See more detailed В Мръчков, Договорът в трудовото право (V Mrachkov, Contract in labour law), pp 182–206 (С.: Сиби, 2010); В Мръчков, Трудово право (V Mrachkov, Labour law), pp 268–77; В Мръчков, Допълнение в Кодекса на труда за временната работа (V Mrachkov, Supplement to the Labour Code on temporary work), pp 367–85 in

Atypical Employment Relationships: The Position in Bulgaria 75 The Labour Code (Article 107p) establishes several requirements for the conclusion of such contracts: —— The total number of employees commissioned by an enterprise providing temporary work at a user undertaking may not exceed 30 per cent of the total employees employed by that undertaking. —— Employment contracts may not be concluded with temporary agency employees for the purpose of commissioning someone to work under the conditions of first- and second-category labour (poorer conditions of work); at enterprises involved in national security and defence; at enterprises where a strike is underway. —— An employment contract may not stipulate terms prohibiting or preventing the establishment of an employment relationship between the user undertaking and the employee while a temporary agency employee is commissioned to perform an assignment at a user undertaking or thereafter. —— The enterprise providing temporary work may not request the employee to pay any fee for assistance in finding a job at the user undertaking or upon conclusion of an employment contract or the establishment of an employment relationship with a user undertaking, either before, during or after the assignment for which the temporary agency employee was commissioned. B.  Registrations, Licensing, Financial Guarantees etc According to Article 107р(7) LC, ‘enterprises providing temporary work shall pursue their business after registering with the Employment Agency under the terms and according to a procedure stipulated in the Employment Promotion Act [EPA]’.22 These rules are contained in Articles 74f–74o EPA. Resident natural or legal persons, as well as non-resident legal persons pursuing a commercial business in the Republic of Bulgaria, who or which satisfy the conditions referred to in Article 74f EPA, may apply for registration. The National Employment Agency maintains a public register of the certificates issued.

Трудови отношения 2012 (Employment relations 2012) (С.: Труд и право, 2012); В Мръчков (V Mrachkov) in Коментар (Commentary), pp 321–39; Р Койчева, Някои правни въпроси на труда чрез предприятие, осигуряващо временна работа (R Koitcheva, Some legal issues of temporary agency work), pp 245–62 in Юбилеен сборник, посветен на 80-годишнината на проф. д.ю.н. Васил Мръчков (Jubillee Miscellany on the 80th Anniversary of Prof Dr habil. Vassil Mrachkov) (С.: Труд и право, 2014). 22 

Закон за насърчаване на заетостта—Employment Promotion Act.

76  Krassimira Sredkova C. Relationship between Temporary Agency Worker and Temporary Work Agency23 (i)  Fixed-Term and Part-Time Contracts The employment contract with an enterprise providing temporary work can only be for a fixed-term. According to Article 107p(4) LC, it is either concluded for a period until the completion of a specific assignment, or for the purpose of substituting an employee who is temporarily absent from work. (ii)  Rights and Obligations/Liability The obligations of the enterprise providing temporary work are set out in Article 107q LC. The enterprise must send a notification to the respective regional directorate of the National Revenue Agency. The enterprise providing temporary work shall be under the obligation to include the remuneration for the employee’s labour on a payroll; pay the remuneration due to the employee; upon a written request of the employee, issue and provide him/ her with a copy of the documents relating to the amount of remuneration and compensation paid or the outstanding amount; insure the employee under the terms and according to the procedure enshrined in the Social Insurance Code and the Health Insurance Act. Upon a written request of the employee, the temporary work enterprise must issue and provide the temporary agency employee with the necessary documents certifying the facts relating to the establishment, implementation and termination of the employment relationship, within 14 days of such request. Upon termination of the employment relationship, the enterprise must issue a dismissal order or another document certifying the termination of said relationship. In relation to the temporary work enterprise, the employee shall meet the obligations arising from the employment contract, but not with reference to the direct performance of the work assigned at the user undertaking (Article 107t(1) LC). (iii)  Dismissal Protection The general rules for termination of employment contracts (implied by Article 107v(2) item 3 LC) apply to terminations of employment contracts with the enterprise that provides temporary work. One specific

23  See more detailed Е Мингов, Особености на трудовото правоотношение с работник или служител с работодател, осигуряващ временна работа (E Mingov, Specifics of the employment relationship between an employee and an employer providing temporary work), pp 16– 17—Норма (Norm) (2012, No 2).

Atypical Employment Relationships: The Position in Bulgaria 77 r­ eason for ­terminating such an employment contract is the termination of the ­registration of the enterprise providing the temporary work (Article 107v(2) item 3 LC). D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship The temporary enterprise employee performs work for the user undertaking based on a written document by the enterprise providing the temporary work. The document shall state the date when the employee is expected to start working at the user undertaking, the exact address of the user undertaking, the job location, the workplace, the name of the position and the nature of the work at the user undertaking, the temporary enterprise employee’s contact person at the user undertaking, as well as the type of initial training to be conducted at the user undertaking. The document shall be served on the temporary enterprise employee against signature no later than one business day before the date he or she is scheduled to start working in the user undertaking (Article 107q(2) LC). The employee has the right to refuse to work for the user undertaking if the work does not correspond to his/ her professional qualifications and health condition or is located in another region. He/she must inform the temporary work enterprise thereof in writing at the time he/she receives the assignment. In that case, no employment relationship shall be deemed to have been formed (Article 107q(3) LC). An employee shall start carrying out his/her duties at the user undertaking on the start date of the assignment at the undertaking (Article 107v(1) LC). The law does not specify the nature of the relationship between the user undertaking and the employee commissioned by a temporary work enterprise. Legal theory treats this as a special type of employment relationship with third-party involvement, namely the temporary work enterprise.24 (ii)  Rights and Obligations/Liability The obligations of the user undertaking towards the hired temporary employee are laid down in Article 107r LC. These are: —— Designating the workplace where the work is to be performed. —— Providing the employee with a job description, which the latter shall confirm with his/her signature, and indicating the start date of the assignment prior to its commencement.

24 See

В Мръчков, Трудово право (V Mrachkov, Labour law), pp 255–58.

78  Krassimira Sredkova —— Ensuring that the employee performs the assignment in a safe and healthy environment. —— Recording the working time and informing the temporary work enterprise and the employee thereof, which they shall confirm by signature. —— Determining the amount of basic and additional labour remuneration due, including for overtime and night-time work, and informing the temporary work enterprise and the employee thereof, which they shall confirm by signature. —— Upon a written request of the employee, issuing and providing him/her with the necessary documents certifying any facts related to the performance of the assignment within 14 days of such a request. —— Informing the temporary work enterprise about the conditions under which the rest of the employees perform the same or similar work in the same or similar positions, and of any changes in such conditions. —— Providing the employee with information in accordance with the requirements of the Health and Safety at Work Act and the statutory instruments implementing these. —— Insuring the employee at its own expense under the terms and in accordance with the procedure provided for in Article 52 of the Health and Safety at Work Act. —— Making available, in due time and at a suitable location within the undertaking, written information on vacant jobs and positions, to facilitate access to permanent employment for the temporary employee. —— Taking steps to facilitate the employee’s access to training, with a view to enhancing his/her career advancement opportunities and professional mobility. —— Providing initial and continuing training of the employee in accordance with his/her position and the nature of work at the user undertaking. While the employee performs his/her assignment, the user undertaking is required to provide him/her with basic working and employment conditions and equal treatment, as provided to the rest of the employees employed by the undertaking and who perform the same or similar work in the same or a similar position, including healthy and safe working conditions. The user undertaking may not change the position or the nature of the work for which the employee has been assigned. Where a commissioned employee commits a breach of discipline, the user undertaking shall immediately inform the temporary work enterprise thereof, and describe the breach, the time and place it was committed and the circumstances related thereto. The user undertaking may submit a substantiated proposal to the temporary work enterprise to impose disciplinary sanctions on the commissioned employee and to commission another employee in his/her place.

Atypical Employment Relationships: The Position in Bulgaria 79 The employee must fulfil all obligations arising from the performance of the work assigned (Article 107t(2) LC). The temporary work enterprise and the user undertaking shall be jointly liable for the obligations arising in the course of, on account of, or in relation to the performance of the work assigned (Article 107s(3) item 3 LC). (iii)  Health and Safety Ensuring health and safety at work is the responsibility of the user undertaking (implied by Article 107u(1) item 9 LC). E.  Relationship between Temporary Work Agency and User Undertaking The relationship between the enterprise providing temporary work and the user undertaking shall be regulated in a written contract. According to Article 107s(1)–(2) LC, the contract shall stipulate the names of the positions and nature of the work to be performed by the commissioned employee; the period for which the employee is commissioned; the obligations of the employee towards the enterprise providing temporary work; the procedure applicable to leave of absence; the obligations of the employee towards the user undertaking; the procedure applicable to the exchange of information between the enterprise providing temporary work and the user undertaking concerning salary structure and organisation, types of additional labour remuneration at the undertaking and their amount, as well as the collective employment contract concluded at the user undertaking, if any; the procedure through which and the time-limit within which the user undertaking shall inform the enterprise providing temporary work of the working time and the determined amount of basic and additional labour remuneration due, including for overtime and night-time work performed by the employee; the type of initial training needed to perform the temporary work; liability in case of default; and other terms related to the performance of the temporary work. F.  Rights and Status of Temporary Agency Worker (i)  Equal Treatment Under Article 107v(2) LC employees commissioned to perform work at a user undertaking: May not be put, only on account of the temporary nature of their work, in a less advantageous position than the other employees performing the same or similar work at the user undertaking, unless a law makes the entitlement to certain rights

80  Krassimira Sredkova conditional upon a qualification acquired or skills obtained. Where no other employees are employed to perform the same or similar work, the employee commissioned to perform temporary work at the user undertaking may not be put in a less advantageous position than the other employees working thereat.

(ii)  Other Matters Employees commissioned to perform work at a user undertaking shall, while working there, have the right to: labour remuneration; leave of absence as provided for in the Labour Code; trade union association; participation in the general meetings of employees in the undertaking; information on all matters related to the performance of the assignment; participation in a collective agreement; settlement of collective labour disputes; social, welfare and cultural services; healthy and safe working conditions; initial and continuing training in accordance with the position and nature of the work at the user undertaking; compensation under the terms and in accordance with the procedure provided for in the Social Insurance Code; other rights directly related to the performance of the assigned work (Article 107u(1) LC). G. Information and Consultation/Representation of Temporary Agency Worker The law grants all collective rights to employees of temporary work enterprises during the performance of their work at the user undertaking. According to Article 107u(1) LC, they have the following rights: right of association; participation in the general meeting of employees in the undertaking; information on all issues related to the performance of the assignment; participation in a collective agreement; and settlement of collective labour disputes. These rights are exercised in person (participation in the general meeting) or through the trade unions and employee representatives. In addition, Article 107r(1) LC explicitly requires the user undertaking to provide the employee with the information required by the Health and Safety at Work Act and the regulations for its implementation, and to make available, in due time and at a suitable location, written information on job vacancies to facilitate access by the employee to a permanent position. H. Strikes The right to strike of temporary work enterprise employees derives from their right to participate in the settlement of collective labour disputes pursuant to Article 107(1) LC, in so far as the strike is the last resort to settle the collective labour dispute.

Atypical Employment Relationships: The Position in Bulgaria 81 The use of temporary work enterprise employees to replace striking employees in the user undertaking is prohibited. According to Article 107q(4) LC, an ‘enterprise providing temporary work may not commission an employee at a user undertaking where a strike is underway’. I.  Collective Bargaining Agreements Deviating from Statutory Provisions The regulations on collective labour agreements (II.H, III.H) apply to temporary work enterprises as well—deviations from them can only be established for conditions that are not regulated by mandatory provisions of the law (Article 50(1) LC). No such deviations have yet been undertaken in practice.

82

4 Atypical Employment Relationships: The Position in Croatia IVANA GRGUREV

I. INTRODUCTION

A

PART FROM REGULATING the so-called standard employment, the Labour Act of 2014 (as amended in 2017)1 as a lex generalis for employment relationships in Croatia, contains provisions on ­atypical employment relationships such as fixed-term work, part-time work and temporary agency work. By analysing its provisions, as well as the case law in that context, the specificities of the implementation of three ­atypical work Directives (Directives 97/81/EC, 99/70/EC and 2008/104/EC) in ­Croatian law will be easier to understand. This will be the focus of this chapter. Fixed-term work is the most widespread atypical form of employment in Croatia. Eurostat’s Labour Force Survey indicates that there are only a few EU Member States with a higher incidence of fixed-term work.2 By ­contrast, part-time work in Croatia is far below the EU average.3 ­Similarly, temporary agency work is a fairly rare phenomenon in Croatia.4 The ­ ­reasons why fixed-term work is widespread and why part-time work and temporary agency work are rare phenomena in Croatia will be explained in the respective sections.

1 

Zakon o radu (Official Gazette No 93/2914, 127/2017). was 18.6% in Croatia in 2016, compared to 11.2% (EU average): http://ec.europa. eu/eurostat/tgm/table.do?tab=table&init=1&language=en&pcode=tesem110&plugin=1 (26 June 2017). 3  It was only 5.6% in Croatia in 2016, compared to 18.9% (EU average): http://appsso. eurostat.ec.europa.eu/nui/show.do?dataset=lfsi_pt_a&lang=en; http://ec.europa.eu/ eurostat/tgm/table.do?tab=table&init=1&language=en&pcode=tesem100&plugin=1 (26 June 2017). 4  It is estimated that only 1.2% of the total number of employees work as agency workers. S Laleta and A Križanović, ‘Rad putem agencija za privremeno zapošljavanje u hrvatskom, europskom i usporednom pravu’ (2015) 1 Zbornik Pravnog fakulteta u Rijeci 305, 305. 2 It

84  Ivana Grgurev II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements Article 12(1) of the Labour Act of 2014 defines a fixed-term contract ­(ugovor o radu na određeno vrijeme) as an employment contract that is exceptionally concluded for a fixed term for the purpose of performing a job the end of which is determined by objective circumstances such as a specific date, the completion of a specific task, or the occurrence of a specific event. The word ‘exceptionally’ in the definition of fixed-term contracts implies that such contracts are seen as an atypical form of employment and that priority should be given to standard forms of employment. Nonetheless, there are only a few EU Member States with a higher incidence of such forms of employment.5 The complexity of legislative protection against dismissal is the main reason why employers favour fixed-term employment. Apart from this, the increased number of fixed-term contracts can be partly attributed to a more flexible regulation of fixed-term contracts.6 Prior to the 2013 Amendment to the Labour Act of 2009, the employer had to provide an objective justification not only for successive fixed-term contracts but also when a single fixed-term contract was concluded. Furthermore, even the duration of a single fixed-term contract was limited to a maximum of three years (with some exceptions), which is not the case now.7 The three-year limit has, however, been the maximum total duration of successive fixedterm contracts8 since the adoption of the 2013 Amendment. The current Labour Act of 2014 contains the same limitation. To sum up, when a single fixed-term employment contract is concluded, there is neither a need for an objective justification nor any limitation of its duration.9 Article 12(1) of the Labour Act mentioned above stipulates how the end of an employment relationship can be determined: by reference to a specific date, or by specifying the completion of a task (for instance, completion of a project) or the occurrence of a specific event (for instance, the return of a temporarily absent employee from sick leave or maternity/parental leave). 5 Fixed-term work is the most frequent form of non-standard employment in Croatia. According to Eurostat data, 17.3% of the total number of employees in Croatia are fi ­ xed-term employees. The only countries with a higher incidence of such employment in the EU are France, Slovenia, Portugal, Poland and Spain (Eurostat). I Grgurev and I Vukorepa, ‘­Flexible and New Forms of Employment in Croatia and their Pension Entitlement Aspects’ in G ­Sandler, V Tomljenović and N Bodiroga-Vukobrat (eds), Transnational, European, and National Labour Relations—Flexicurity and New Economy (Springer Verlag, 2018) 241–62. 6  Amendment to the Labour Act of 2009 (Official Gazette No 73/2013). 7  More details in: I Grgurev, ‘Ugovor o radu’ in Ž Potočnjak (ed), Radni odnosi u Republici Hrvatskoj (Zagreb, Pravni fakultet u Zagrebu and Organizator, 2007) 28–32. 8 See Cl 5 of the Framework Agreement on fixed-term work implemented by Directive 1999/70/EC. 9  Argument from Art 12(3) and Art 12(4) of Labour Act.

Atypical Employment Relationships: The Position in Croatia 85 Any employment contract, including fixed-term contracts, must be c­ oncluded in writing (Article 14(1) of the Labour Act). If the contract is not concluded in writing, the employer needs to hand the employee a letter of engagement prior to the commencement of employment (Article 14(3) of the Labour Act). If the employer fails to do that, ‘it shall be deemed that he entered into an employment contract of indefinite duration with the employee’ (Article 14(4) of Labour Act). This is an irrebuttable presumption. This legislative solution follows the principle of favouring the weaker party to the employment contract (favor laboratoris) and promotes stable employment, which ‘constitutes a major element in the protection of ­workers.’10 The stability of open-ended employment contracts is manifested in the protection of employees against the termination of the contract initiated by the employer. More precisely, the employer needs to have a legitimate reason for the dismissal and needs to follow the requisite dismissal procedure.11 Furthermore, the employee is entitled to a notice period and to severance pay when certain requirements are met. On the other hand, a fixed-term employment contract is terminated upon the expiry of the term defined in the contract and in that case, a fixed-term employee is entitled neither to a notice period nor to severance pay ex lege.12 Apart from the obligation to provide the contract in writing, the employer must, when concluding any form of employment contract (including a ­fixed-term employment contract), give the employee a copy of the application for mandatory pension and health insurance within eight days after the expiry of the deadline for the submission of the application as provided by ­separate laws and regulations (Article 14(5) of the Labour Act). ­Furthermore, the Labour Act in Article 15 prescribes the mandatory content of any w ­ ritten employment contract, including fixed-term employment contracts. As regards the contents of the fixed-term contract, its most salient feature is the provision stating the expected duration of the employment contract. If the duration of the employment contract is not defined or cannot be defined, an open-ended contract of employment is deemed to have been concluded.13 According to the case law of the Supreme Court, a clause introduced in the fixed-term contract, stipulating that the duration of the contract shall be extended if the employer fails to provide severance pay, is considered null and void because the duration of a fixed-term contract must be stated by such a contract in specific terms.14 10  Case C-144/04 Mangold v Helm judgment of 22 November 2005, ECLI:EU:C:2005:709, para 64. 11  Arts 115–126 of the Labour Act. 12 However, the freedom of contract applies and such rights can therefore be agreed by a ­collective agreement or a contract of employment (Art 9(1) of the Labour Act). It is also ­possible for the employer to prescribe them in staff rules (Art 26 of the Labour Act).­ 13  Supreme Court of the Republic of Croatia, Revr-187/2003, 3 December 2003. 14  Supreme Court of the Republic of Croatia, Rev-2610/1999, 3 October 2001.

86  Ivana Grgurev Apart from its duration, a written employment contract must also contain the following information: —— Identity of the parties, their residence and registered place of business; —— Place of work; where there is no fixed or main place of work, the contract must specify that work is performed at various places; —— The title, nature or category of work the employee is hired to perform or a brief specification or description of the work; —— The date of the commencement of employment; —— The duration of paid annual leave to which the employee is entitled or, where this cannot be indicated when the contract is concluded or when the letter of engagement is handed over, the procedures for the allocation and determination of annual leave; —— The length of the periods of notice to be observed by the employee and the employer respectively or, where this cannot be indicated when the contract is concluded or when the letter of engagement is handed over, the method for determining the periods of notice; —— The basic salary, bonuses and intervals at which the employee shall receive the remuneration s/he is entitled to; —— The duration of a regular working day or week.15

B.  Lawful Stipulation of the Contractual Terms To prevent the abuse of successive fixed-term contracts, the Labour Act ­provides that objective reasons justifying the renewal of such contracts must be stated,16 and the Act limits the total maximum duration of successive fixed-term employment contracts.17 It does not regulate the number of times such contracts may be renewed. The Labour Act provides for three exceptions to the rule on the three-year maximum duration of successive fixedterm contracts: —— Replacement of a temporarily absent employee who is absent for a period longer than three years; 15  According to Art 15(2) of the Labour Act, information on the duration of annual leave, the notice period, the basic salary and the duration of a regular working day or week may be stated in the employment contract in the form of a reference to the relevant laws, other regulations or administrative provisions, a collective agreement or staff rules governing those particular issues. 16  ‘The employer may enter into a successive fixed-term contract with the same employee solely on objective grounds, which must be clarified in the same contract or in the letter of engagement’ (Art 12(2) of the Labour Act). 17  The cumulative duration of all successive fixed-term employment contracts, including the first employment contract, may not exceed three consecutive years, save where necessary for the purpose of replacing a temporarily absent employee or where there are objective grounds allowed by law or a collective agreement (Art 12(3) of the Labour Act).

Atypical Employment Relationships: The Position in Croatia 87 —— Where there are objective grounds admitted by law (such as the Act on Scientific Activity and Higher Education, the Insolvency Act or the Theatres Act);18 —— Where there are objective grounds allowed by a collective agreement (such as those in the Collective Agreement for Private Health Care in Croatia).19 The Labour Act prescribes the maximum duration of three years (with some exceptions) for successive fixed-term contracts. An illegally concluded successive fixed-term contract is considered to be an open-ended employment contract.20 The contract is deemed to be of indefinite duration where an employee continues to work for the employer after the expiry of the term defined by the contract.21 It is an irrebutable presumption. The case law has established, however, that [w]hen an employee concludes a fixed-term employment contract with a specified expiry date and when that date expires he continues to use his annual leave, this does not mean that he continued to work, i.e. that he remained at work; it should not be taken to mean that a contract of indefinite duration has been concluded because he did not stay at work for the purpose of performing the tasks specified in the fixed-term contract.22

Similarly, taking sick leave which continues after the fixed-term contract expires is not regarded as de facto work based on which the fixed-term contract would become an open-ended employment contract.23 It is also deemed that the contract was of indefinite duration when the successive fixed-term contracts were concluded for a period longer than three years,24 as well as where there was no objective reason justifying the renewal of such contract.25 ‘Any change or amendment to the fixed-term employment contract affecting its extension shall be regarded as a next successive fixed-term employment contract’ (Article 12(5) of the Labour Act). There is another provision meant to prevent the abuse of successive fixedterm contracts, stipulating that ‘an interruption of less than two months shall not be regarded as an interruption of the three-year period’ (Article 12(6) of the Labour Act). Therefore, the only legal way to circumvent the

18 

See more below: II.F. Specific Provisions (eg for scientific research and artistic staff, etc). Official Gazette No 150/2014. 20  Implied from Art 12(7) of the Labour Act, which states: ‘Where an employment contract is not concluded in compliance with the provisions of the Labour Act or where an employee continues to work for the employer after the expiry of the contract, it shall be deemed that the concluded contract was of indefinite duration’. 21  Art 12(7) of the Labour Act. 22  Appeals Court in Bjelovar, Gž-249/2005, 28 April 2005. 23  Appeal Court in Zagreb, GŽr-520/2013, 12 November 2013. 24  Supreme Court of the Republic of Croatia, Revr-64/2009, 26 August 2009. 25  See above-cited Art 12(7) of the Labour Act. 19 

88  Ivana Grgurev three-year limitation period is to establish a period that is longer than two months between the two fixed-term contracts.26 C.  Termination/End of Fixed-Term Contracts Fixed-term contracts are terminated upon the expiry of the term defined by the employment contract, but they can also be terminated upon the death of the employee, upon the death of the employer if they are a natural person, upon the dissolution of a small business by virtue of law or the deregistration of a sole trader in accordance with special legislation, by means of an agreement between the employer and the employee, upon the submission of a legally valid decision confirming entitlement to disability pension due to permanent incapacity for work, by means of a notice of dismissal or based on a decision of a competent court.27 Regarding dismissal, it should be emphasised that a fixed-term employee can be extraordinarily dismissed,28 but his/her contract may only be terminated by means of ordinary dismissal only if such an option is provided for in the contract (Article 118 of the Labour Act). On the other hand, if such an option is not provided for in the contract, the employee is allowed to terminate this contract by means of ordinary dismissal without specifying any reasons for doing so.29 S/he needs to solely follow the statutory notice period and the written form of dismissal.30 Regarding protection against dismissal, fixed-term employees are protected in the same way as permanent employees. The employer must provide justified reasons for the dismissal, consult the works council (or a shop steward where there is no works council), comply with the proper dismissal procedure, etc.31 The employer is not required by law to issue a decision on the termination of a fixed-term contract, but the Supreme Court of the Republic of Croatia

26  Grgurev and Vukorepa, ‘Flexible and New Forms of Employment in Croatia and their Pension Entitlement Aspects’ (n 5 above) 241 at 247–248. 27  Implied from Art 112 of the Labour Act. 28  Art 116(1) of the Labour Act stipulates that both the employer and the employee shall have just cause to terminate the employment contract of indefinite duration or the fixed-term employment contract without observing the statutory notice or the notice stated in the contract (extraordinary dismissal), where the continuation of the employment relationship is regarded as impossible due to a severe breach of obligations stemming from the employment relationship or any other facts of critical importance, and taking into account all the circumstances or interests of both contracting parties. 29  Implied from Art 115(4) of the Labour Act. 30 Implied from Art 115(4) and Art 120(1) of the Labour Act. See further Ž Potočnjak, ‘Prestanak ugovora o radu’ in Ž Potočnjak (ed), Radni odnosi u Republici Hrvatskoj (Zagreb, Pravni fakultet u Zagrebu and Organizator, 2007) 380. 31  Arts 115–122, 150(3) and 151of the Labour Act.

Atypical Employment Relationships: The Position in Croatia 89 recommends that a fixed-term employee be informed about the imminent termination of his/her contract: A fixed-term employment contract is terminated upon the expiry of the term defined by the contract, and it means it is terminated ex lege. Therefore, there is no need to issue a separate decision on the termination of the employment relationship … The moment of the termination of the employment relationship was defined or definable at the very beginning of such an employment relationship. It is desirable that the employer informs32 the employee before the termination of the employment relationship thereof … This was done afterwards, but this fact is not important because such notice was not necessary because the employment relationship had already been terminated ex lege.33 Any such notice issued by the employer stating that the fixed-term employment relationship has been terminated only has declaratory significance.34

As the Appeal Court in Vukovar stated, a fixed-term employment contract is terminated upon the expiry of the term ­specified in the contract and a written statement of the employer on such termination of the employment relationship is not to be considered a dismissal. Therefore, the fact that the employee was on maternity leave at the time of the termination of the employment relationship does not mean that the rules on notice periods should apply.35

When a fixed-term contract expires, it also expires for employees who enjoy specific protection against dismissal (such as pregnant employees or e­ mployees on maternity leave) because they are only protected against ­dismissal36 and not from termination of the employment contract for other reasons, such as the expiration of a fixed-term contract.37 D.  Rights and Status of Fixed-Term Worker (i)  Equal Treatment Employers are required to ensure that fixed-term employees are provided with the same working conditions (remuneration, working time, breaks

32  The termination declaration can be stated orally according to the case law of the Supreme Court of the Republic of Croatia, Revr-695/2004, 17 July 2007. See in particular: D Milković and S Dugonjić, Prestanak ugovora o radu (Zagreb, Radno pravo, 2016) 21. 33  Supreme Court of the Republic of Croatia, Rev-2538/99, 10 January 2000. 34  Supreme Court of the Republic of Croatia, Revr-23/2006, 29 March 2006. 35  Appeal Court in Vukovar, Gž-840/04, 8 June 2004. 36  They can be dismissed for business reasons during the liquidation procedure (Art 34(4) of the Labour Act). 37  See also: Milković and Dugonjić, Prestanak ugovora o radu (n 32 above) 26.

90  Ivana Grgurev and rest periods, safety at work, protection measures, etc) as comparable permanent employees. The term ‘comparable employee’ refers to an employee with an employment contract of indefinite duration concluded with the same employer or under a specific regulation with an employer associated with him, with the same or similar qualifications and skills, who is engaged in the same or similar work. [Article 13(1) of the Labour Act]

Where there is no such comparable permanent employee, the employer must ensure that fixed-term employees enjoy the conditions, stipulated in the ­relevant collective agreement or any other regulation applicable to him/ her, for permanent employees engaged to perform similar tasks who possess similar professional knowledge and skills (Article 13(2) of the Labour Act). If the working conditions are not stipulated in such a manner by a collective agreement or other regulations applicable to the employer, the employer must ensure the appropriate working conditions for fixed-term employees which must be comparable to the conditions afforded to permanent employees engaged in similar tasks, who possess similar qualifications and skills (Article 13(3) of the Labour Act). The gender dimension of fixed-term contracts is the focus of the Ombudswoman for Gender Equality in Croatia. In her 2015 Annual Report, she called on the Labour Inspectorate to focus more on such contracts because more women than men are offered this atypical form of employment and the instability related to this form of employment could affect their family planning.38 (ii)  Employment Opportunities There is an obligation on the part of the employer to inform fixed-term employees about any assignments which might result in those employees being offered an employment contract of indefinite duration and to provide training and education for them under conditions comparable to those for permanent employees.39 (iii)  Other Matters Non-standard fixed-term employment contracts concluded for permanent seasonal jobs (Article 16 of the Labour Act of 2014) can also be considered an

38  According to the Ombudswoman for Gender Equality, the termination of a fixed-term contract is in fact a dismissal in disguise when a woman gets pregnant and c­ onsequently is not offered another contract of employment. Annual Report for 2015 of O ­ mbudsperson for Gender Equality, 22: www.prs.hr/attachments/Art/1923/Izvješće%20o%20radu%20Pravobraniteljice%20za%20ravnopravnost%20spolova%20za%202015.pdf (21 ­ November 2016). 39  Art 13(4) of the Labour Act.

Atypical Employment Relationships: The Position in Croatia 91 atypical form of employment. Contrary to some forms of non-standard employment, which could be considered precarious, this is a case where specific fixed-term contracts are in fact closer to open-ended employment contracts. This situation has been regulated by law since 2001. Where the employer is mostly engaged in seasonal activities (in practice, this is mostly the case in tourism and agriculture), s/he may conclude fixed-term employment contracts for permanent seasonal jobs with seasonal workers. In such cases, the employer has the obligation to pay pension insurance contributions in between seasons, i.e. even in periods when the worker does not work. In between seasons, the worker does not earn a salary. If the worker declines the offer to conclude an employment contract for the performance of work in the following season without legitimate reason, the employer has the right to claim reimbursement for the contributions paid for the worker. On the one hand, the regulation of this type of employment was meant to help employers who hired skilled seasonal workers to have some guarantee that the same workers would work for them in the next season. On the other hand, it was meant to help seasonal workers have an uninterrupted period of pension insurance, even in periods when they do not actually work.40

At first, there were not many employees with this type of employment contract because the employers found the payment of pension insurance contributions between seasons to be an unnecessary burden. This means that the majority of seasonal workers are employed either under the general rules for fixed-term work or, in case of seasonal workers in agriculture, under the rules of the voucher system.41 However, due to state subsidies for the payment of pension insurance contributions between seasons,42 and the shortage of seasonal workers, the number of fixed-term employment contracts concluded for permanent seasonal work has risen. E.  Information and Consultation All employees (including fixed-term employees) working for an employer who employs at least 20 employees (with the exception of employees in state administrative bodies), have the right to elect and be elected to the works council.43

40 I Grgurev, ‘New forms of employment in Croatia’ in B Waas (ed), New forms of ­employment in Europe (Alphen aan den Rijn, Kluwer, 2016). 41  The voucher system was implemented in the agricultural sector in 2012 by the Act on the Promotion of Employment (Zakon o poticanju zapošljavanja). See further I Grgurev, ‘New forms of employment in Croatia’ in B Waas (ed), New forms of employment in Europe (Alphen aan den Rijn, Kluwer, 2016) 171. 42  Active Labour Market Policy Programmes, Croatian Employment Service: http://mjere. hr/mjere/stalni-sezonac/ (30 May 2018). 43  Art 145(1) read together with Art 140 of the Labour Act.

92  Ivana Grgurev F.  Specific Provisions The provisions of the Labour Act on fixed-term employment contracts do not apply to members of various boards or executive directors or natural persons in another capacity who, in accordance with specific provisions, individually and independently or jointly and severally, are authorised to manage the operations of an employer (Article 4(4) read together with Article 4(3) of the Labour Act). Even before this provision was introduced in the Labour Act, it was established in the case law of the Supreme Court of the Republic of Croatia that a ‘[m]anagerial contract, because of its legal nature, is concluded solely as a fixed-term contract and cannot tacite, upon the expiry of a contracted period, be extended indefinitely based on the mere fact of performance of certain tasks.’44 The Act on Scientific Activity and Higher Education (Zakon o znanstvenoj djelatnosti i visokom obrazovanju)45 regulates, among others, the employment contracts of scientists, research assistants and university teachers. The duration of their employment contracts can be synchronised with the duration of the scientific projects they are involved in.46 Research assistants can be offered an employment contract for a period of five years at a scientific institute or for a period of six years if they work at a university.47 Their employment contracts can be extended to cover the period spent on maternity/parental leave or sick leave that is longer than three months.48 A scientific organisation can offer a post-doc candidate a contract of employment for a period of four years.49 Although the mandatory retirement age is 65 years, where there is a need for their services, scientists and university teachers who reached the age of 65 can be offered successive twoyear employment contracts.50 The Theatres Act (Zakon o kazalištima)51 regulates the employment relationships of artists employed in public theatres (Articles 41–43). They are employed as fixed-term employees as a matter of course, but the director of the theatre has the obligation to offer them employment contracts of indefinite duration if they have been working in the theatre for 16 years (ballet

44 

Supreme Court of the Republic of Croatia, Revr-666/2004, 23 March 2005. Act on Scientific Activity and Higher Education (Official Gazette Nos 123/2003, 198/2003, 105/2004, 174/2004, 2/2007, 46/2007, 45/2009, 63/2011, 94/2013, 139/2013, 101/2014, 60/2015). 46  Art 42(6) of the Act on Scientific Activity and Higher Education. 47  Arts 43(2) and 97(3) of the Act on Scientific Activity and Higher Education. 48  Art 45 of the Act on Scientific Activity and Higher Education. 49  Art 43(3) of the Act on Scientific Activity and Higher Education. 50  Arts 42(8) and 102(8) of the Act on Scientific Activity and Higher Education. See also case law of the Constitutional Court of the Republic of Croatia on mandatory retirement of university teachers and fixed-term employment contracts offered to them when they reach the age of 65 (retirement age): U-I/5578/2013 of 18 July 2014 and U-I/3912/2003 of 14 June 2006. 51  The Theatres Act (Official Gazette Nos 71/2006, 121/2013, 26/2014). 45 The

Atypical Employment Relationships: The Position in Croatia 93 and dance artists) or for 20 years (other artists).52 If they are not offered an open-ended employment contract, they can claim that right before the courts. The Insolvency Act (Stečajni zakon) contains a provision on fixed-term employment contracts, which represents a derogation from the Labour Act: Based on a court’s approval, an insolvency trustee can conclude new fixed-term contracts without complying with the limitations set by the lex generalis for fixedterm contracts in order to complete the activities that are underway and forestall possible damage.53

G. Collective Bargaining Agreements Deviating from Statutory Provisions The parties to a collective bargaining agreement may agree on working conditions that are less favourable than the conditions provided for by the Labour Act only if it is explicitly regulated by the Labour Act or any other laws and regulations.54

According to Article 12(3) of the Labour Act, the parties to a collective bargaining agreement can, provided objective grounds exist, conclude successive fixed-term contracts that may exceed three consecutive years.55 This is one of the rare cases in which the contracting parties to a collective bargaining agreement are allowed by the Labour Act to agree on less favourable working conditions.56 III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements Part-time work57 is defined in relation to full-time work: ‘Part-time work shall be any working time that is shorter than full-time work.’58 Employees

52 

Arts 41(2) and 43(2) of the Theatres Act. Art 191(5) of the Insolvency Act (Official Gazette No 71/2015). 54  Art 9(2) of the Labour Act. 55  An example of such an agreement is the Collective Agreement for Private Health Care in Croatia (Official Gazette No 150/2014). 56  Ž Potočnjak, ‘Prestanak ugovora o radu’ in Ž Potočnjak (ed), Radni odnosi u Republici Hrvatskoj (Zagreb, Pravni fakultet u Zagrebu and Organizator, 2007) 485. 57  Part-time work in Croatia is far below the EU average. In 2015, part-timers made up only 5.9% of all employees compared to the 19.6% which was the EU average (Eurostat); Grgurev and Vukorepa, ‘Flexible and New Forms of Employment in Croatia and their ­Pension ­Entitlement Aspects’ (n 5 above) 241 at 249. See in particular: I Grgurev and I Vukorepa, ‘Working Time in Croatia—Critical Analysis of Legal Framework’ in T Geiser and R Müller (eds), Arbeitszeiten in Europa (St Gallen, Dike, 2016) 123. 58  Art 62(1) of the Labour Act. 53 

94  Ivana Grgurev may opt for part-time work on a voluntary basis in order to better reconcile their professional and private lives,59 or, more often, on an involuntary basis when the employer has no need for full-time employees. Part-time work is rarely a voluntary option because of the low salary.60 Therefore, the majority of part-time employees in Croatia work part-time involuntarily, in the absence of full-time employment opportunities.61 Part-time employees can be employed by two or more employers. In that case, their working time may not, in total, be longer than the prescribed maximum duration of full-time work (40 hours a week).62 Nonetheless, there is an exception to the 40-hour week rule: it is only possible to work an additional 8 hours a week or up to 180 hours per year with the written consent of the employer or employers with whom the employee already has an employment contract (Article 62(3) of the Labour Act). It can be concluded that the written consent of the employer is related to the legal ban on competition between an employee and his/her employer.63 The written consent of the employer should be considered an act exempting the employee from the legal ban on competing with the employer. However, it is not clear why there is a need for a written consent of the employer in cases when an employee performs additional work in excess of the 40 hours a week, and in other cases where an employee works for two or more employers, the part-time employee is only required to inform the employer about part-time employment contracts concluded with another employer or employers.64 Unfortunately, the legislator failed to define what reasons would allow an employer to validly withhold his/ her consent. Leaving such discretionary power to the employer has no justification.

59  Some authors see part-time work ‘[a]s a phenomenon that belongs to the family-friendly labour environment, mostly reserved for women with family responsibilities, or as a means to gradually enter or exit the labour market … and a useful device for another vulnerable category of workers … those with disabilities or illnesses.’ A Bilić and S Laleta and A Brešić, ‘The challenges of part-time work in the context of flexicurity’ in M Vinković (ed), New Developments in EU Labour, Equality and Human Rights Law (Osijek, Josip Juraj Strossmayer University of Osijek Faculty of Law, 2015), 95. In this context, it is worth emphasising that the CJEU has found that a reduction in working hours is a form of reasonable accommodation for employees with disabilities. Joined Cases C-335/11 and C-337/11 HK Danmark v Dansk Arbejdsgiverforening, judgment of 11 April 2013, ECLI:EU:C: 2013:222. 60  See generally: Bilić, Laleta and Barešić, ‘The challenges of part-time work in the context of flexicurity’ (n 59 above) 66. 61  The share of involuntary part-time workers in Croatia has been almost 40% (Eurostat). M Vaalavuo, ‘Part-time work: A divided Europe’: http://ec.europa.eu/social/main.jsp?langId= hr&catId=89&newsId=2535&furtherNews=yes (27 November 2016). 62  Art 62(2) of the Labour Act. 63  See Art 101 of the Labour Act. 64  See Art 62(4) of the Labour Act.

Atypical Employment Relationships: The Position in Croatia 95 B.  Opportunities for/Right to Part-Time Work The 2008 Maternity and Parental Benefits Act (amended in 2011, 2013 and 2014)65 regulates the right of working parents to work part-time (more specifically, half-time) during their maternity or parental leave.66 Either ­parent is entitled to half-time work until the child turns nine months (Article 15(2) of the Maternity and Parental Benefits Act) or up to the age of three years if the child requires increased care (Article 16(1) of the Maternity and Parental Benefits Act). Either parent of a disabled child (a child with a severe ­physical or mental disability or with a severe mental illness) can work parttime (Article 23(2) of the Maternity and Parental Benefits Act).67 In all other cases, the employees have the right to request to move from full-time to part-time work.68 C.  Opportunities for/Right to an Extension of Working Time The employer is not required to inform part-time workers about job vacancies. He is only required to take into consideration the request of a full-time employee to enter into a part-time employment contract and vice-versa, ­provided that such work is available at the place of work.69 D.  Rights and Status of Part-Time Worker (i)  Equal Treatment Part-time employees may not be put in a less favourable position (discriminated against) compared to full-time employees. They are entitled to the same working conditions as comparable full-time employees working for the same employer. However, their salary would be lower than the s­alary of a comparable full-time employee in proportion to the length of the ­contracted working time. According to Article 63(1) of the Labour Act, the employer shall be required to ensure that the part-time employees enjoy the same working conditions as comparable full-time employees who have contracts concluded with the same employer or, under a specific ­regulation,

65  Zakon o rodiljnim i roditeljskim potporama, Official Gazette Nos 85/2008, 110/2008, 34/2011, 54/2013, 152/2014. 66  See in particular: Grgurev and Vukorepa, ‘Working Time in Croatia– Critical Analysis of Legal Framework’ (n 57 above). 67  Salary compensation is not the burden of the employer but the burden of the state budget (Art 54 of the Maternity and Parental Benefits Act). 68  Art 62(7) of the Labour Act. 69  Art 62(7) of the Labour Act.

96  Ivana Grgurev with an employer associated with him/her, with the same or similar qualifications and skills, engaged in the same or similar work. Where there are no comparable full-time employees with the same or similar qualifications and skills engaged in the same or similar work, the employer shall be required to ensure that the part-time employees enjoy all the conditions stipulated by a collective agreement or any other regulation applicable to them, for full-time employees engaged to perform similar tasks, who possess similar professional knowledge and skills (Article 63(2) of the Labour Act). Where the working conditions are not provided for in such a manner by a collective agreement or another regulation applicable to the employer, the employer shall ensure the appropriate working conditions for his/her parttime employees comparable to the conditions for his/her full-time employees engaged to perform similar tasks, who possess similar qualifications and skills (Article 63(3) of the Labour Act). When the salary is calculated based on working time, a part-time employee earns a salary and other substantial entitlements (service award, annual leave allowance, Christmas bonus, etc) in proportion to his/her contracted working time (Article 62(6) of the Labour Act). It is, however, possible to regulate this in a different manner by a collective agreement, working regulations or an employment contract (Article 62(6) of Labour Act). When calculating the insurance periods necessary for the insured persons (including part-time employees) to be entitled to a pension (old-age pension or early retirement), part-time work is treated as full-time work70 but when calculating the actual amount of the pension, it is calculated pro rata temporis, ie the duration of the insurance period will depend on the time spent at work (Article 27(3) and Article 27(8) of the Pension Insurance Act). Regarding the entitlement to annual leave, a part-time employee is in the same position as a full-time employee, ie s/he is entitled to annual leave after six consecutive months of employment (Article 77(3) read together with Article 62(5) of the Labour Act). The employer must allow part-time employees to take part in training and education under the same conditions applicable to the full-time employees (Article 63(4) of the Labour Act). (ii)  Dismissal Protection Part-time employees are protected against dismissal in the same way as full-time employees. Regarding the entitlement of part-time employees to a notice period and severance pay, they are in the same position as full-time employees (there is no pro-rata calculation of the years of employment). For instance, in case of ordinary dismissal, an employee is entitled to a 70  ‘When the duration of a previous employment relationship with the same employer is relevant for the exercise of rights arising from the employment relationship, the periods of parttime work shall be regarded as full-time work’ (Art 62(5) of the Labour Act).

Atypical Employment Relationships: The Position in Croatia 97 notice period of at least one month for one year of tenure with the same employer, regardless of whether s/he is employed part time or full time (Article 122(1)(2) read together with Article 62(5) of the Labour Act).71 Two years of continuous work is one of the requirements for the entitlement to severance pay and when other requirements are met, part-time employees are entitled to severance pay after a two-year employment period, just like full-time employees (Article 126 read together with Article 62(5) of the Labour Act). (iii) Others If a part-time employee is employed by two or more employers and works for at least six hours a day in total for all of them, each employer must allow him/her to have a rest break proportionate to his/her contracted ­part-time work (Article 73(3) of the Labour Act). ‘If two or more employers of the same part-time employee fail to agree upon his annual leave for the same period, they shall be obliged to allow him to use annual leave at his request.’72 E.  Information and Consultation All employees (including part-time employees) of an employer who employs at least 20 employees (with the exception of employees in state administrative bodies), have the right to elect and be elected to the works council.73 F.  Other Part-Time Arrangements In line with Article 67(1) of the Labour Act, where the nature of work (for instance, in the tourism sector) requires it, full-time or part-time work may be reorganised in such a way that during a period, which may not exceed twelve successive months, it is longer than the 71 

Art 122(1) of the Labour Act states as follows: ‘In case of regular notice of dismissal, the notice period shall be a minimum of: 1)  two weeks, for less than one year of tenure with the same employer, 2)  one month, for one year of tenure with the same employer, 3)  one month and two weeks, for two years of tenure with the same employer, 4)  two months, for five years of tenure with the same employer, 5)  two months and two weeks, for ten years of tenure with the same employer, 6)  three months, for twenty years of tenure with the same employer.’

72  73 

Art 85(2) of the Labour Act. Art 145(1) read together with Art 140 of the Labour Act.

98  Ivana Grgurev regular f­ ull-time or part-time work within one period, and is less than full-time or part-time work within another period; this must be done in such a manner that the average working time under the redistribution scheme does not exceed the regular duration of full-time or part-time work.

It is not considered overtime work.74 On-call work75 is not regulated by law. There are no legal obstacles for a shared workplace (job-sharing) by part-time workers. There is no awareness of the existence of new forms of employment (such as crowd-sourcing76 or on-call work recognised by law in comparative legal systems) and therefore, no measures are initiated as a response to the new challenges in the globalised labour market.77 G. Collective Bargaining Agreements Deviating from Statutory Provisions It is possible for the contracting parties to a collective bargaining agreement to derogate from the provisions on the maximum duration of redistributed working time78 prescribed by law (which is 48 hours a week). Pursuant to Article 67(5) of the Labour Act, the parties to a collective bargaining agreement may agree that the redistributed working time may not exceed 56 or 60 hours a week, if the employer performs seasonal business activities and if the employee gives the employer a written statement consenting to such work.

74  Art 67(3) of the Labour Act. The redistribution of working time is usually agreed upon and provided for in a collective agreement or an agreement between the works council and the employer (Art 67(2) of the Labour Act). If not, the employer, according to the Labour Act (Art 67(2)), is allowed to establish the redistribution of working time unilaterally but needs to submit the redistribution scheme to a Labour Inspector in advance and the employer has the duty to consult the works council before rendering a decision on working hours patterns as well (Art 150(3) of the Labour Act). 75 ‘On-call work involves a continuous employment relationship maintained between an employer and an employee, but the employer does not continuously provide work for the employee. Rather, the employer has the option of calling the employee in as and when needed.’ Eurofound (2015), New forms of employment, Publications Office of the European Union, Luxembourg, p 46. 76  Crowd employment is defined as ‘employment where an online platform matches employers and workers, often with larger tasks being split up and divided among a ‘virtual cloud’ of workers.’ Eurofound (2015), New forms of employment, Publications Office of the European Union, Luxembourg, p 2. 77  See in particular: Ž Potočnjak, ‘Razvoj i novi izazovi daljnjeg razvoja hrvatskog r ­ adnog zakonodavstva—dvadeset godina od donošenja prvoga Zakona o radu’ in Ž Potočnjak (ed), Radni odnosi u Republici Hrvatskoj, 2nd edn (Zagreb, Organizator and Pravni fakultet Sveučilišta u Zagrebu, 2018) (forthcoming). 78  Redistributed working time means that it lasts longer than full-time or part-time work in the given period.

Atypical Employment Relationships: The Position in Croatia 99 IV.  TEMPORARY AGENCY WORK

A.  Legal Definitions/Formal Requirements Agency work was introduced as late as 2003. The relevant provisions were incorporated in the Labour Act of 1995 by its Amendment.79 Since then, some 105 temporary work agencies have launched operations in Croatia.80 Despite the impressive number of agencies, temporary agency work is a rather rare phenomenon in Croatia. It is estimated that only 1.2 per cent of total employees work as temporary agency workers.81 The Labour Act defines a temporary employment agency as ‘an employer who on the basis of worker assignment contracts, assigns workers to another employer (the user undertaking) to temporarily work there.’82 It also defines an assigned worker as ‘the worker employed by the agency in order to be assigned to the user undertaking.’83 The agency may conclude a temporary assignment contract of a fixed or indefinite duration with the temporary agency worker.84 It is considered an employment contract. This contract needs to contain all the required information: 1. names of the contracting parties and their residence or registered place of business; 2. the expected duration of the contract; ­ 3. the registered place of business of the user undertaking; 4. the place of work; 5. tasks to be performed by the assigned worker; 6. the start and end date of ­employment; 7. salary, bonuses and pay periods; and 8. the duration of a regular working day or week.85 The regulations on temporary agencies in the Labour Act are facing criticism in terms of the legal doctrine: it is considered too rigid, formal and characterised by a negative attitude towards this form of employment compared to how it is regulated in Directive 2008/104/EC.86

79 

Amendment to the Labour Act of 1995 (Official Gazette No 114/2003). of them are not active. Grgurev and Vukorepa, ‘Flexible and New Forms of ­Employment in Croatia and their Pension Entitlement Aspects’ (n 5 above) 241 at 248. 81  Ibid. The share of agency workers is steadily increasing. There were only 0.4% of the working population in 2014. S Laleta and A Križanović, ‘Rad putem agencija za privremeno zapošljavanje u hrvatskom, europskom i usporednom pravu’ (2015) 1 Zbornik Pravnog fakulteta u Rijeci 305. 82  Art 44(1) of the Labour Act. 83  Art 44(2) of the Labour Act. 84  Art 46(1) of the Labour Act. 85  Art 46(4), (5), (7) of the Labour Act. 86 Potočnjak criticised the regulation of temporary agency work in the previous Labour Act but some of the provisions that were criticised remain in the current Labour Act of 2014, such as the ban on dismissal on economic grounds when the need for the services of a temporary agency worker at the user undertaking has ceased to exist prior to the expiry of the assignment contract, or the prohibition of assigning workers to another agency (Art 47(4) of the Labour Act). Ž Potočnjak, Fleksigurnost radnih odnosa u Hrvatskoj i pravna stečevina Europske unije (Zagreb, Hrvatski savez udruga pravnika u gospodarstvu, 2013) 305. 80 Some

100  Ivana Grgurev B.  Registrations, Licensing, Financial Guarantees, etc Agencies may perform the activity of assigning workers to user undertakings, provided they are established in accordance with specific provisions. They must also register with the ministry responsible for labour.87 ­Agencies are established either as limited liability companies or as simple limited liability companies (in Germany referred to as Unternehmergesellschaft or Mini-GmBH). Therefore, their financial guarantees are regulated by the Companies Act.88 C. Relationship between Temporary Agency Worker and Temporary Work Agency (i)  Fixed-Term and Part-Time Contracts As mentioned above, temporary agency workers may conclude either a fixedterm or an open-ended employment contract with an agency. It is referred to as a temporary assignment contract.89 Its content is stipulated in the Labour Act.90 To circumvent employer obligations (in particular, the payment of remuneration between assignments), the agencies synchronise the duration of fixed-term employment contracts with the duration of the assignment of temporary agency workers (ie they conclude a fixed-term employment contract for the period of assignment). The reason agencies do not conclude temporary assignment contracts of indefinite duration is the compensation salary they have to pay to temporary agency workers in the period between two assignments. In periods in which assigned workers with an employment contract of indefinite duration are not assigned to a user undertaking, they are entitled to compensation equal to the average remuneration they received in the preceding three months, unless otherwise provided for by the relevant collective agreement, working regulations or the employment contract.91 There are no legal obstacles for part-time assignments. (ii)  Rights and Obligations/Liability Prior to assigning the worker to a user undertaking, the agency has the obligation to issue an assignment letter to the worker (Article 49(1) of the 87 

Art 44(3) of the Labour Act. Zakon o trgovačkim društvima, Official Gazette Nos 111/93, 34/99, 121/99, 52/00, 118/93, 107/07, 146/08, 137/09, 111/12, 125/11, 68/13, 110/15. The list of temporary work agencies in Croatia is available at: http://data.gov.hr/dataset/popis-agencija-za-privremeno-zap osljavanje/resource/54393271-cb2c-41c0-b3be-bd81ebfb2872 (21 June 2017). 89  Art 46(1) of the Labour Act. 90  Art 46(2) of the Labour Act. 91  Art 46(3) read together with Art 95(5) of the Labour Act. 88 

Atypical Employment Relationships: The Position in Croatia 101 Labour Act). The agency is responsible for any damage the assigned worker causes the user undertaking during the assignment or related thereto.92 Where the assigned worker suffers any damage at work or in relation to the work at the user undertaking, s/he may file a claim against the agency or the user undertaking.93 (iii)  Dismissal Protection ‘The fact that the need for assigned workers at the user undertaking ceased to exist prior to the expiry of the assignment period may not constitute grounds for the termination of the temporary assignment contract.’94 The provisions of the Labour Act on collective redundancies do not apply to the termination of temporary assignment contracts.95 Where the continuation of the employment relationship is deemed impossible due to a severe breach of obligations stemming from the employment relationship or any other fact of critical importance, and taking into account all the circumstances or interests of both contracting parties, the agency has just cause to terminate the employment contract without observing the statutory notice or the notice stated in the contract (this is the so-called extraordinary notice of termination).96 D.  Relationship between Worker and User Undertaking (i)  Legal Type of Relationship No contractual relationship exists between the temporary agency worker and the user undertaking. The law does not specify the nature of the relationship between them. Their relationship can be partially seen as employment in light of the obligations the user undertaking has vis-à-vis the temporary agency worker regarding occupational health and safety and special protection of particular groups of temporary agency workers (pregnant women, minors).97 Since the regulation of temporary agency work was

92 

Art 51(2) of the Labour Act. Art 51(3) of the Labour Act. 94  Art 47(4) of the Labour Act. 95  Art 47(1) of the Labour Act. This implies that Art 127 and Art 128 of the Labour Act do not apply. These Arts regulate, among others, the obligation of the employer to consult with the works council in case of collective redundancies and to notify the competent public authority responsible for employment about the projected collective redundancies. 96  Art 47(2) read together with Art 116(1) of the Labour Act. 97  ‘In relation to the assigned worker, the user undertaking shall be regarded as the employer within the meaning of the obligation of implementing the provisions of this Act and other laws and regulations governing the safety and health protection at work and a special protection of particular categories of workers’ (Art 50(1) of the Labour Act). 93 

102  Ivana Grgurev only i­ntroduced in the legislation relatively recently, there is no case law on agency work. (ii)  Rights and Obligations/Liability The user undertaking is required to inform the temporary agency worker about vacancies which might be of interest to him/her.98 If the user undertaking fails to do so, a Labour Inspector will order the employer during a labour inspection to inform assigned workers within the time-limits determined by the Inspector about any vacancies for which they meet the requirements.99 As already mentioned, the agency is responsible for any damage the temporary agency worker causes to the user undertaking during the ­assignment.100 Where the temporary agency worker suffers any damage at work or in relation to the work for the user undertaking, s/he may file a claim against the agency or the user undertaking pursuant to Article 51(3) of the Labour Act. (iii)  Health and Safety The worker assignment contract can stipulate that the user undertaking is required to inform the temporary agency worker about work-related risks, to train him/her in accordance with the regulations on health and safety protection at work, and to train and inform him/her about new technologies to be used in the performance of his/her tasks. If it is not agreed that this is the user undertaking’s obligation, then it will be the agency’s.101 E. Relationship between Temporary Work Agency and User Undertaking The agency and the user undertaking regulate their relationship in a worker assignment contract, which must be concluded in writing.102 The elements of the worker assignment contract are stipulated in the Labour Act.103 Apart from the agency’s general terms of operation, such contracts must include a clause on the number of assigned workers required by the user undertaking,

98 

Art 50(3) of the Labour Act. Art 226(1), (16) of the Labour Act. 100  Art 51(2) of the Labour Act. 101  Art 49(2) of the Labour Act. 102  Art 45(1) of the Labour Act. 103  Art 45(2) of the Labour Act. 99 

Atypical Employment Relationships: The Position in Croatia 103 the period of assignment, the place of work, the tasks to be performed by assigned workers, the method and period within which the user undertaking must give the agency the calculation for the remuneration to be paid and the regulations applied at the user undertaking for the purpose of determining the remuneration, and the person authorised to represent the user undertaking in dealings with the assigned workers.104 Apart from this information, the contract must contain additional information if workers are assigned to a user undertaking located abroad: the legislation applicable to the assigned worker’s employment relationship, the assigned worker’s rights pursuant to the Labour Act and other laws and regulations of the Republic of Croatia, which need to be guaranteed to the assigned worker by the user undertaking and the obligation to bear the repatriation costs.105 The user undertaking must keep records on the working time of assigned workers, and comply with the deadlines and method for the submission of the records to the agency when agreed by the agency and the user ­undertaking in the worker assignment contract.106 F.  Rights and Status of Temporary Agency Worker (i)  Equal Treatment The working conditions (including salary, working time, breaks and rest periods, safety and work protection measures, protection of pregnant workers, parents, adoptive parents and youth, and non-discrimination) applicable to the temporary agency workers may not be less favourable compared to the salary or working conditions applicable to workers who perform the same tasks and who are employed in the user undertaking, ie the user undertaking must provide the temporary agency worker with the salary and working conditions that would be applicable if s/he concluded an employment contract with the user undertaking.107 A novelty that was introduced in the Labour Act of 2014 is the possibility of applying less favourable working conditions to temporary agency workers if this has been agreed upon in the collective agreement concluded between the agency or an association of agencies and trade unions.108

104  An administrative measure is provided in the Labour Act in case the worker assignment contract does not contain all elements. In that event, the Labour Inspector may order the contracting parties to amend the worker’s assignment contract in a way to contain all missing elements (Art 226(1), (13) of the Labour Act). 105  Art 45(3) of the Labour Act. 106  Art 45(5) of the Labour Act. 107  Art 46(5) read together with Art 46(6) of the Labour Act. 108  Art 46(7) of the Labour Act.

104  Ivana Grgurev (ii) Others Pursuant to Article 44(6) of the Labour Act, the agency may not charge the worker a fee for being assigned to the user undertaking or a fee if the assigned worker signs an employment contract with the user undertaking. G. Information and Consultation/Representation of Temporary Agency Worker There are no legal obstacles for the election of works councils109 in temporary work agencies. Temporary agency workers do not count towards the numerical thresholds imposed at the user undertaking because they are not employees of the user undertaking.110 The user undertaking must notify its works council at least once a year about the number of temporary agency workers and the reasons why they were hired, and inform the temporary agency workers about any vacancies for which they meet the requirements.111 H. Strikes Temporary agency workers (or rather, their trade union, because only trade unions have the right to initiate a strike) can launch strike action against the agency because it is their employer. On the other hand, temporary agency workers (ie their trade union) can launch a solidarity strike at the user undertaking, but the strike can only start once it has been announced to the user undertaking on whose premises it is to be organised.112 Worker assignment contracts may not be used as a means to replace employees who are on strike at the user undertaking (Article 45(4) of the Labour Act).113

109 

Arts 140 and 141 of the Labour Act.

110 Ibid. 111 

Art 50(3) of the Labour Act. Art 205(1) and (3) of the Labour Act. 113  This is not the only limitation. The contract may not be concluded for the purpose of performing tasks that were performed by workers who were laid off in a collective redundancy procedure by the user undertaking in the preceding six months, to perform tasks that were performed by workers whose employment contracts were terminated by the user undertaking due to business reasons in the preceding six months, to perform tasks that are considered tasks to be performed under special working conditions, as stipulated in the regulations on safety at work, where the assigned worker does not meet the requirements for such work, or for the purpose of assigning workers to another agency (Art 45(4) of the Labour Act). The current Labour Act no longer contains the provision which allowed the contracting parties to a collective agreement to broaden the ban on the use of agency workers. 112 

Atypical Employment Relationships: The Position in Croatia 105 I. Collective Bargaining Agreements Deviating from Statutory Provisions Less favourable working conditions for temporary agency workers than those applicable to comparable employees (employees employed in the user undertaking for the performance of the same tasks) may be agreed in a collective agreement.114 In order to protect temporary agency workers and give them an opportunity to conclude a contract of employment with the user undertaking when the undertaking needs them for a longer period, the Labour Act stipulates the maximum duration of the assignment period, but it can be extended by a collective agreement citing objective reasons.115

114 

Art of the 46(7) of the Labour Act. ‘The user undertaking may not use the work of the assigned worker for the performance of the same tasks for an uninterrupted period exceeding three years, unless it is necessary for the purpose of replacing a temporarily absent worker or where it is allowed by the relevant collective agreement due to another objective reason.’ Art 48(1) of the Labour Act. 115 

106

5 Atypical Employment Relationships: The Position in Cyprus NICOS TRIMIKLINIOTIS AND CORINNA DEMETRIOU

I. INTRODUCTION

T

HE CYPRIOT LABOUR market has witnessed a gradual expansion of ‘atypical forms of employment’, particularly since accession to the EU in 2004.1 There has been a proliferation of atypical employment arrangements since the imposition of the austerity measures, which has resulted in massive increases in unemployment, and damaged employment relationships by undermining the legal and regulatory system governing the employment relationship.2 The regulation of atypical forms of employment is an issue that has received attention in legal and social research in Cyprus.3 The Termination of Employment Law4 as well as general principles of ‘contract of employment’ law (σύμβαση εργασίας), as initially developed in English5 and later in Cypriot law6 and modified by the implementation of

1 N Trimikliniotis, Ανεργία, Ετεροαπασχόληση και Άτυπες Μορφές Εργασίας των Νέων στη Κύπρο (Nicosia, Cyprus Labour Institute INEK-PEO, 2004); N Trimikliniotis, Social and ­employment situation in Cyprus, Briefing Note requested by the European Parliament’s Committee on Employment and Social Affairs, available at: www.europarl.europa.eu/committees/ fr/studiesdownload.html?languageDocument=EN&file=75691; G Ioannou, Labour Relations in Cyprus: Employment, Trade Unionism and Class Composition. PhD Thesis, University of Warwick, 2011. Available at: http://wrap.warwick.ac.uk/47187/. 2 INEK-PEO Report for the Economy and Employment 2015 (Cyprus Labour Institute, 2015), available at: www.peo.org.cy/images/PDF/2015/inek/Cyprus%20EcoNomic%20Outlook%20Final_2015_With_cover.pdf; G Ioannou, ‘Employment in Crisis: Cyprus 2010–13’ (2014) 26(1) The Cyprus Review; C Demetriou, The impact of the crisis on fundamental rights across Member States of the EU—Country Report on Cyprus, project led by Milieu, commissioned by the LIBE Committee of the European Parliament, 2015. Available at: www.europarl. europa.eu/RegData/etudes/STUD/2015/510017/IPOL_STU(2015)510017_EN.pdf. 3 N Trimikliniotis and C Demetriou, ‘New Forms of Employment in Cyprus’ in B Waas (ed), New Forms of Employment in the EU (Wolters Kluwer International publications, 2016). 4  Περί Τερματισμού της απασχόλησης Νόμος 24/1967 as amended. 5  M Freedland et al, The Contract of Employment (OUP, 2016). 6 M Antoniou, ‘Το Δίκαιο Τερματισμού της Απασχόλησης στην Κύπρο’ (OEB, 2000);­ P Polyviou, Η Σύμβαση Εργασίας (Chysafinis & Polyviou, 2016); A Emilianides and C Ioannou, Labour Law in Cyprus (Wolters Kluwer International publications, 2016).

108  Nicos Trimikliniotis and Corinna Demetriou relevant EU labour Directives, regulate atypical forms of employment.7 This is a heterogeneous cluster of labour-related measures that cuts across many of the different categories explored in this chapter. First, the legal position of fixed-term employees is examined, before attention is turned to part-time employment and temporary agency work.8 II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements A year before acceding to the EU, the Republic of Cyprus passed the law that regulates fixed-term work (FT Law)9 purporting to transpose Directive 1999/70/EC on Employees with Fixed-term Work (Prohibition of Less Favourable Treatment) which entered into force in April 2003, herein referred to as the ‘Framework Agreement’. The Law came into effect a year prior to EU accession, explicitly stipulating its purpose to harmonise ­Cypriot law with the Directive.10 Some important issues relating to the transposition and implementation of FT Law in Cyprus have been raised in expert literature on the subject.11 The purposes contained in Clause 1 of the Framework Agreement are repeated verbatim in Article 3 of the FT Law. Article 2 of the FT Law defines ‘fixed-term worker’ as a person who has entered into an employment contract or relationship directly with an employer, under which the end of the employment contract or relationship is determined by an objective condition such as the reaching of a specific date, completion of a specific task, or the occurrence of a specific event. Article 2 of the FT Law defines the term ‘comparable employee with work of indefinite duration’ as a worker with an employment contract or relationship of indefinite duration, in the same establishment, engaged in the same or similar work/occupation, due regard

S Yiannakourou, Κυπριακό Εργατικό Δίκαιο (Nomiki Bibliothiki, 2016). terms ‘worker’ and ‘employee’ are used interchangeably in this report, as there is no essential distinction in Cypriot labour law between the two. 9  Law 98(I)2003, 25 July 2003. Greek title: O Περί Εργοδοτουμένων με Εργασία Ορισμένου Χρόνου (Απαγόρευση Δυσμενούς Μεταχείρισης) Νόμος του 2003. 10 Law 70(I)2002 (7 June 2002) amending the law on Termination of Employment, ­published in Cyprus Official Gazette 3610 on 7 June 2002, effective 1 January 2003. 11 N Trimikliniotis and C Demetriou, National Expert Report on Directive 1999/70/EC concerning the Framework Agreement on fixed-term work concluded by UNICE, CEEP and ETUC, ‘Studies on the implementation of Labour Law Directives in the enlarged European Union, 2006’, on behalf of Human European Consultancy, Utrecht, the Netherlands, funded by the EU Commission; P. Polyviou, Η Σύμβαση Εργασίας (Nicosia, Chysafinis & Polyviou, 2016), pp 509–21; A Emilianides and C Ioannou, Labour Law in Cyprus (Wolters Kluwer International publications, 2016), pp 59–64; S Yiannakourou, Κυπριακό Εργατικό Δίκαιο (Nomiki Bibliothiki, 2016), pp 144–53. 7 

8  The

Atypical Employment Relationships: The Position in Cyprus 109 being given to qualifications/skills. The wording of Clause 3.2 of the Framework Agreement is copied verbatim. No minimum period of continuous employment is required to be entitled to the protections under the FT Law. There are no other provisions in the legislation on fixed-term contracts. There are no formal requirements other than those applying to normal employment contracts. No workers or groups of workers are excluded from the scope of the law, apart from the exception contained in Article 4(2) of the FT Law (Clause 2.2 of the Framework Agreement enacted by the Directive) with regard to training and apprenticeships. There are no exceptions in any other laws. B.  Lawful Stipulation of the Contractual Terms Article 7(1) of the FT Law provides that where an employer employs an employee on a fixed-term contract, either following a renewal of the contract or otherwise, and the employee had previously worked for a total period of 30 months or more under a fixed-term contract irrespective of the order of successive fixed-term contracts, then the contract shall, for all intents and purposes, be considered a contract of indefinite duration, and any provision in this contract restricting its duration will be void unless the employer proves that the employment of the said worker for a fixed term can be justified on objective grounds. With regard to fixed-term workers or workers with successive fixed-term contracts, any period of employment before the enactment of the FT Law shall not be taken into account for the purpose of calculating the 30-month period.12 Article 5(3) of the FT Law replicates the text of Clause 4.4 of the Framework Agreement verbatim; ‘objective grounds’ are defined in Article 7(2) of the FT Law (transposing Clause 5 of the Framework Agreement with reference to the measures preventing abuse). Article 7(2) provides that objective grounds exist especially where: —— The needs of the undertaking with regard to the execution of a ­particular task are temporary; —— The employee is replacing another employee; —— The special nature of the work that must be carried out justifies the fixed-term duration of the contract; —— The employee is employed on probation;13 —— The employment on the basis of a fixed-term contract is in pursuance of a court decision; or

12  13 

Art 7(3) of the FT Law. The concept of ‘probation’ is found in the Termination of Employment Law.

110  Nicos Trimikliniotis and Corinna Demetriou —— The employment on the basis of a fixed-term contract concerns employment in the National Guard of the Republic of Cyprus, volunteers with a five-year obligation.14 The use of the word ‘especially’ in the opening paragraph of this Article implies that the above list is not an exhaustive but a cumulative list. The FT Law applies to two categories of workers: workers in the private sector and workers in the public sector. Fixed-term workers in the private sector: There have been a number of Labour Dispute Court decisions affirming the right of employees to convert their fixed-term contract into one of indefinite duration. The court ruled in favour of the plaintiff who sued his former employer in the private sector, a private University, for unfair dismissal. The plaintiff had been hired by the University in 2008 as an Associate Professor on the basis of a fixedterm contract that was renewed year by year. In May 2012, the University informed the plaintiff that his services were no longer needed and his employment relationship with the University would end on 31 August 2012. The plaintiff argued that under the FT Law at the time of his dismissal, his fixed-term contract should have been converted into a contract of indefinite duration as he had already completed 30 months of service. The University argued that the plaintiff’s fixed-term contract was justified by objective reasons, namely the specific circumstances surrounding the operation and nature of services offered by private universities. The University claimed that the course for which the plaintiff had been hired did not attract a satisfactory number of students in spite of the efforts undertaken. Following the relevant provision in the Termination of Employment Law, the court reversed the burden of proof and called on the University to prove the reasons rendering the dismissal lawful and therefore not generating any right to compensation. The witness for the University claimed that the number of students enrolling for the course taught by the plaintiff was below the minimum set by University policy. However, upon cross-examination, he admitted that the employment contract signed with the plaintiff did not mention that he was being recruited specifically to teach a particular course. The court found that the circumstances invoked by the University did not

14  The employment of National Guard volunteers (the precise term used is ‘volunteers of a five-year service’) is covered by a special scheme regulating the service of these individuals in the Army for a period of five years, because conscription to the Cypriot Army is otherwise obligatory for a term of just two years (approximately) with the exception of a few permanent posts. These persons are highly-qualified professionals and have been trained in operating advanced technology weapons, which is why they are given a five-year contract of service, presumably in an effort to allow flexibility for the government to review the situation every five years and decide, according to the circumstances, as to whether their services are still needed or not. There were media reports in early 2006 about these employees protesting against abuse of their position by the government.

Atypical Employment Relationships: The Position in Cyprus 111 meet the test of ‘objective reasons’ foreseen in the Law to justify the use of repeated fixed-term ­contracts, because the needs for which the plaintiff had been hired continued to be present four years after his initial recruitment; his position was not abolished and the course continued being taught following his dismissal. The court stressed that the risk of business activity is borne by the employer and cannot be transferred to the employee by concluding successive fixed-term contracts, pointing out that the plaintiff’s correct form of employment was a contract of indefinite duration. The court awarded the plaintiff damages equal to eight weeks’ pay, plus interest.15 Fixed-term workers under private law in the public sector: These workers work in the public sector but their rights are regulated by private law. One such worker claimed that she should be entitled to the same rights as ­public sector employees to preclude the possibility of discrimination. However, the Supreme Court rejected an appeal against the first instance decision of the Labour Disputes Court regarding the termination of her employment.16 The appellant was initially hired by the government as a legal officer in May 2004, on the basis of a contract ending in December 2004. Thereafter, successive contracts of 15 days’ duration were signed, lasting until 23 April 2005, upon which a new contract was signed lasting until 31 December 2006. On 4 December 2006, the government informed the appellant that her employment contract would be converted into one of indefinite duration as of 1 December 2006, because she had completed 30 months of employment, as foreseen under the FT Law. In May 2007, the government informed the appellant that her services were being terminated because the Public Service Commission had appointed another person in the permanent post of legal officer, a position the appellant had unsuccessfully applied for. The appellant rejected the amount offered to her as compensation for the termination of her contract and applied to the Labour Disputes Court, claiming both higher compensation and reinstatement in her position. The Labour Disputes Court decided that the termination of the appellant’s services was unlawful under the Law on Termination of Employment17 and ruled in her favour for compensation in the amount of EUR 3,610. Through this appeal, the appellant sought to challenge the decision of the Labour Disputes Court for having established her dismissal as unlawful without accepting that there was bad faith on the part of the employer, as she was dismissed whilst pregnant. At the same time, she appealed against the Labour Disputes Court’s failure to consider her a government employee,

15  Holger Briel v EDEX-Educational Excellence Corporation Ltd, Labour Disputes Court, Nicosia, Case No 264/2013, 30 September 2015. 16  Christina Laouta v The Republic of Cyprus through the Attorney General, Supreme Court of Cyprus, Appeal jurisdiction, Civil appeal No 60/2010, 14 October 2014, available at www.cylaw.org/cgi-bin/open.pl?file=/apofaseis/aad/meros_1/2014/1-201410-60-2010.htm. 17  Law 24/1967.

112  Nicos Trimikliniotis and Corinna Demetriou arguing that the FT Law required a restrictive interpretation of the terms ‘indefinite duration’ and ‘permanent’ so as to safeguard equal treatment between employees of indefinite duration and permanent employees. The Supreme Court in its’ appellate jurisdiction rejected this argument, stating that the differentiation between a permanent public employee and a temporary employee with a fixed-term contract or a contract of indefinite duration cannot be abolished, since the employment of the latter is not based on the Constitution or on the Public Service Law No 1/90. The Supreme Court rejected the allegation of bad faith on the part of the employer—which could have justified reinstatement of the appellant to her prior position—on the ground that the employment contract repeatedly signed between the parties explicitly provided that the appellant’s employment would continue until her permanent appointment in the specific position, and that the appellant herself had recognised the legitimacy of this procedure by filing an application for the permanent position of her post. The appellant’s argument that the compensation awarded to her by the Labour Disputes Court was too low was also rejected by the Supreme Court, which found the compensation to be adequate, given that the aggravating circumstances invoked by the appellant had not been proven. In another case18 the Labour Disputes Court decided that the contract of a research assistant in the Statistics Services, who had been employed until 2012 on successive fixed-term contracts since 2007, was automatically converted into a contract of indefinite duration based on the Cypriot law transposing the Directive/Framework Agreement. Whilst the decisions of the Labour Disputes Court are not binding on superior courts, it is noteworthy that the government decided to not appeal against the decision, which confirms the basic principle that transposes the Fixed-term Work ­Directive. This is a practice extensively used both in the public and the private sectors. This issue was taken up by the Pancyprian Union of Nurses (PA.SY.NO), which held a one-day warning strike and raised demands, inter alia, related to the fact that the practice of renewing consecutive fixed-term contracts continues in the public sector without these contracts being converted into contracts of indefinite duration. A specific subcategory of workers is employed in the public sector on an hourly basis. The Supreme Court has ruled that a person employed in the public sector on an hourly basis does not meet the requirements to be considered as being engaged in ‘public service’.19 The Court ruled that the claimant had been working at the state TV Channel CyBC between

18  Maria Syrimi v Republic of Cyprus, Case No 338/2012, 30 June 2015, Nicosia Labour Disputes Court. 19  Demetris Tita v Republic of Cyprus through the Minister of Finance and the Department of Public Administration and Personnel, Case No 32/2010, 21 September 2012.

Atypical Employment Relationships: The Position in Cyprus 113 2003 and 2009 as an hourly ‘Associate’, with a salary on the A6 salary scale. In 2009, he was appointed ‘Inspector’ at the Ministry of Labour on the A5 salary scale. The claimant sought to reverse the decision of the respondent to place him on an A5 salary scale, claiming that he had the right to maintain the A6 salary scale position he held when he was working as an hourly Associate at CyBC. He based his claim on the argument that his service at CyBC fell within the definition of ‘public service’, which entitled him to retain the salary scale he had held when working at CyBC. Τhe Supreme Court found that the claimant’s service at CyBC between 2003 and 2009 did not fall within the definition of ‘public service’ and that he was therefore not entitled to retain the equivalent salary scale. This was because he had been an hourly tenured Assistant Engineer at CyBC, and his wages had been calculated on the basis of the number of hours worked. The Public Service Law20 expressly excludes services rendered by persons whose remuneration is calculated on a daily basis, or services by persons hired on a temporary basis in accordance with the Law on the Hiring of Temporary Employees, from the definition of ‘civil service’. In interpreting this provision, the Court referred to Cypriot legal precedent21 which establishes that by virtue of this definition, service by persons whose remuneration is calculated on a daily basis is not considered as a public service … The Law as such leaves no room to consider employment on a daily basis as service.

The claimant’s application to set aside the respondent’s decision to place him on an A5 salary scale was thus rejected. C.  Termination/End of Fixed-Term Contracts General protection against unfair dismissal22 in domestic law is afforded to fixed-term employees when they are dismissed during their term. However, the same law, ie the Law on Termination of Employment,23 provides that a valid reason for dismissal is the expiration of a fixed-term contract. No measures which might stop the abuse of (or encourage the use of) fixed-term employment contracts or relationships were discussed prior to the enactment of the FT Law transposing the Fixed-term Work Directive, nor has the national legislation included any prohibition of discrimination against fixed-term workers or of successive renewals of fixed-term contracts.

20 Art 2 of the Law Amending and Unifying the Laws on Public Service 1967–1987, No 1/90. 21  Michael v Republic of Cyprus (1984) 3 CLR 769. 22  Law on Termination of Employment No 24 of 1967 as amended. 23  Art 5(4), Part II of Law on Termination of Employment No 24 of 1967 as amended.

114  Nicos Trimikliniotis and Corinna Demetriou However, even prior to the passage of the FT Law, the Labour Disputes Court had the power to treat fixed-term contracts as contracts of indefinite duration and thus ensure that such workers received compensation.24 Protection under the Law on Termination of Employment requires a 26-week (maximum) probation period; otherwise no compensation will be available. The Law provides that it is permissible for employment contracts to stipulate a probation period for the employee during which s/he can be dismissed without notice and without becoming entitled to any other remedies foreseen by the said Law, but the probation period may not exceed six months from the date of commencement of employment. The only measure against abuse is the fact that upon completion of the six-month period (or shorter period, if the employment contract so provides), the employee’s probation is considered automatically completed and thereafter, all rights granted to the employee by legislation and by contract apply. In terms of measures introduced to prevent abuse, Article 7(1) of the FT Law provides that where an employer employs an employee under a fixedterm contract, either following a renewal of the contract or otherwise, and the employee had previously worked under a fixed-term contract for a total period of 30 months or more, irrespective of the order of successive fixedterm contracts, the contract shall, for all intents and purposes, be deemed a contract of indefinite duration and any provision in this contract restricting its duration will be void, unless the employer proves that the fixed-term employment of the said worker can be justified on objective grounds. With regard to fixed-term workers or workers with a series of successive fixed-term contracts, any period of employment before the enactment of the FT Law shall not be taken into account for the purposes of calculating the 30-month period referred to above.25 As explained earlier, only objective reasons will justify renewals of fixed-term employment contracts or relationships. The maximum permitted total duration of successive fixed-term employment contracts or relationships is 30 months, irrespective of how many successive terms this is divided into. As stated above, any period worked prior to the enactment of the FT Law is not to be taken into account when calculating the aforementioned 30 months. The Law on Termination of Employment gives the court discretion to decide, based on the facts of the case, what constitutes the maximum permitted period between contracts to ensure continuity. There are, however, some procedural issues. The Supreme Court has ruled that in case of an employee who claims rights derived from the FT Law which are in fact private law rights, the employee will be required to claim

24  25 

Servos v Attorney General, (1977) 1 CLR 154. Art 7(3) of the Cypriot Law.

Atypical Employment Relationships: The Position in Cyprus 115 such rights before the Labour Disputes Court, even if the claim is against a body operating under public law.26 D.  Rights and Status of Fixed-Term Worker (i)  Equal Treatment Equal treatment in Cypriot employment law is not only a general principle derived from Article 28 of the Cypriot Constitution, the ECHR and EU law, such as the Fundamental Rights Charter, it is also enshrined in the legislation on termination of employment. However, the mechanism that effectively implements the principle of non-discrimination is implied by law into contracts of employment, particularly following the enactment of a comprehensive set of legislation in 2004, transposing the anti-discrimination Directives 2000/78/EC and 2000/43/EC. Fixed-term employees have the right to be treated equally to regular permanent employees. The principle of non-discrimination as enshrined in the Law27 provides that with reference to employment conditions, fixed-term workers shall not be treated less favourably than comparable permanent workers solely because they have a fixed-term contract or relationship, unless differentiated treatment is justified on objective grounds. There is no definition of ‘employment conditions’ in the FT Law. According to Clause 4.2, the principle of pro rata temporis is applied. Article 5(2) of the FT Law copies verbatim the text of Clause 4.2 of the Framework Agreement. No additional explanation is given as to how this principle is to be applied. The term pro rata temporis is defined in Article 2 of the FT Law, stating that where a comparable worker with a contract of indefinite duration is employed under specific terms and working conditions, the fixed-term worker shall be employed on the basis of the same terms and working conditions pro rata to the duration of his/her employment. Article 2 of the FT Law defines the term ‘comparable employee with a contract of indefinite duration’ as a worker with an employment contract or relationship of indefinite duration, who works in the same establishment, is engaged in the same or similar work/occupation, due regard being given to qualifications/skills. In other words, the wording of Clause 3.2 of the Framework Agreement is copied verbatim. There is an issue as to the meaning of ‘comparable permanent worker’, a term that has created uncertainty. The Industrial Relations Unit of the Ministry of Labour has apparently failed to properly compare fixed-term workers with permanent public or semi-public

26  Avraam v Republic 2008, 3 CLR 49; Burston v University of Cyprus, case 847/2012, 4 June 2015; Venizelou v Republic of Cyprus, administrative appeal 67/100, 21 May 2015. 27  Art 5(1) of the FT Law copies verbatim the text of cl 4.1 of the Framework Agreement.

116  Nicos Trimikliniotis and Corinna Demetriou employees, given that the term falls within the criteria set by Clause 3 of the Framework Agreement: they work ‘in the same establishment, are engaged in the same or similar work/occupation, due regard being given to qualifications/skills’. Failing such a comparison, the Industrial Relations Unit could have relied on the alternative provided by the Directive that: Where there is no comparable permanent worker in the same establishment, the comparison shall be made by reference to the applicable collective agreement, or where there is no applicable collective agreement, in accordance with national law, collective agreements or practice.

Article 6 of the FT Law transposes verbatim the text of the second paragraph in Clause 3.2 of the Framework Agreement to the effect that where there is no comparable worker, the comparison shall be made by reference to the applicable collective agreement, or where there is no applicable collective agreement, in accordance with national law, collective agreements or practice. Article 2 of the FT Law repeats the phrase of the Directive ‘due regard being given to qualifications/skills’, but does not provide any clarification. The dispute over the rights of ‘temporary employees of indefinite duration’ has been a major issue in the public sector: the dismissal of temporary public employees, some of who are temporary employees with a contract of indefinite duration, is a common labour dispute. At the same time, temporary public employees with fixed-term contracts work in the public sector based on Law 108(I)/1995,28 which regulates the procedure for hiring public employees and sets the maximum duration of employment of temporary staff in the public sector at two years. There has been a long dispute over the rights of temporary public employees. However, this issue became even more controversial in September 2006, when the President of the Republic of Cyprus, acting on the advice of the Attorney General, decided to exercise his right to refer a Law back to the House of Representatives under Article 48 of the Constitution on the grounds that the Law was unconstitutional. The President argued that the Law, which would equalise the rights of temporary employees with a contract of indefinite duration in terms of pension rights and retirement age and secure permanent employment, would (a) violate the principle of separation of powers and the laws that leave issues related to the appointment of public employees to the executive, and would (b) involve an increase in budgetary expenditure.29

28 Law on the Procedure of Hiring Temporary Employees in the Public and in the Educational Sector (Ο περί Διαδικασίας Πρόσληψης Έκτακτων Υπαλλήλων στη Δημόσια και την Εκπαιδευτική Υπηρεσία Νόμος). 29  Art 80(2) of the Cypriot Constitution. E Soumeli, ‘Temporary public employees threaten strike action’, EurWork, European Observatory of Working Life, www.eurofound.europa.eu/ observatories/eurwork/Arts/temporary-public-employees-threaten-strike-action.

Atypical Employment Relationships: The Position in Cyprus 117 In 2011, an amendment30 to the public service law introduced ‘employees with contracts of indefinite duration’ as a distinct category.31 In 2016, another amendment aimed to regulate the use of fixed-term employment and employment under contracts of indefinite duration in the public ­service.32 The law provides that the hiring of persons on fixed-term c­ontracts is allowed in the following cases:33 —— —— —— ——

For covering temporary needs; For covering additional needs or needs arising as a result of vacancies; For replacing employees who are absent on a long-term leave; For carrying out a project of a fixed duration, for as long as the project lasts; —— As a result of the annulment by the court of the appointment of a person in a permanent position —— For the employment of persons who have been awarded scholarships and have acquired a degree in civil aviation and for the employment of graduates of the Forestry College. The contracts must be of the shortest minimum duration and only be used as long as necessary to complete the fixed-term project for which they are hired. If a fixed-term employee is hired to fill a position as a result of annulment of an appointment, the duration of the fixed-term contract may not exceed six months but can be renewed for additional six-month periods until the vacant position is filled. In all other cases, the duration of fixedterm contracts may not exceed 12 months, though the term is renewable. Fixed-term contracts may be terminated prior to their expiry where: the specific need for which they were concluded no longer exists; the fixed-term contract for which the employee was hired is completed; the re-examination of the procedure of an annulled appointment is completed; the performance of the employee is assessed as insufficient; or the employee has committed a serious offence involving dishonesty or indecency. 30 Amendment 26(I)/2011. See n 31 below for the definition of a person employed indefinitely. 31 The definition reads as follows: ‘“εργοδοτούμενος αορίστου χρόνου” σημαίνει τον εργοδοτούμενο που έχει σύμβαση εργασίας αορίστου χρόνου στη Δημόσια Υπηρεσία δυνάμει του εδαφίου 1 του άρθρου 7 του περί Εργοδοτουμένων με Εργασία Ορισμένου Χρόνου (Απαγόρευση Δυσμενούς Μεταχείρισης) Νόμου και έχει προσληφθεί με σύμβαση εργασίας ιδιωτικού δικαίου ορισμένου χρόνου δυνάμει των περί της Διαδικασίας Πρόσληψης Έκτακτων Υπαλλήλων στη Δημόσια και Εκπαιδευτική Υπηρεσία Νόμων του 1995 έως (Αρ. 3) του 2004 και δυνάμει των περί Προσλήψεως Eκτάκτων Υπαλλήλων (Δημόσια και Εκπαιδευτική Υπηρεσία) Νόμων του 1985 έως 1991’. 32 Law regulating the employment of fixed-term and indefinite duration employees in the public service of 2016 (Ο περί ρύθμισης της απασχόλησης εργοδοτουμένων αορίστου και εργοδοτουμένων ορισμένου χρόνου στη δημόσια υπηρεσία νόμος του 2016) Νo 70(Ι)/2016, 28 April 2016. 33  Art 4(2) of the Law regulating the employment of fixed-term and indefinitely employed employees in the public service of 2016.

118  Nicos Trimikliniotis and Corinna Demetriou Employees hired under this law are remunerated at a lower rate for the first 24 months. After the first 24 months, the employee is remunerated in accordance with the rate at which s/he was initially hired. Fixed-term contracts are converted into contracts of indefinite duration after 30 months of work in the public service, irrespective of whether the contracts were successive or not. Employees with contracts of indefinite duration can be made redundant and be compensated accordingly. This is a crucial difference that differentiates employees with contracts of indefinite duration from ordinary and permanent employees in the public service. There are still some areas in which problems arise: —— Public sector employees on temporary/fixed-term contracts still do not receive the same treatment as permanent public employees with reference to certain benefits such as (a) sick leave provisions, (b) access to public service pension plans, and (c) promotion to ‘permanent public servant posts’. In fact, even following the adoption of the provisions designed to meet the requirements of the Framework Agreement, discrimination persists as far as the three aforementioned types of rights/ benefits are concerned. It was expected that the Law on the Procedure of Hiring Temporary Employees in the Public and in the Educational Sector (Law 108(I)/95) would regulate these issues. Stakeholders disagree on the above three issues. The Labour Disputes Court in the case of Panayides34 ruled that employees with fixed-term contracts whose employment was converted into one of indefinite duration cannot enjoy the same pension rights as permanent full-time public servants because the appropriate comparator for the permanent employee is not the permanent full-time public servant, as this is not the intention of the FT Law. The purpose of the Law is to allow for equal treatment between employees under a fixed-term contract and those with contracts of indefinite duration and to prevent abuse of successive fixedterm contracts.35 —— The use of successive contracts with a 15-day duration (temporary public employment contracts) is a matter of routine practice, affecting hundreds of workers. There was an effort to resolve this with a change in the law in 2016. —— The ‘semi-public’ sector (ie nationalised industries) and independent public authorities have followed the same pattern as the public s­ ector in terms of the appointment of fixed-term workers, the conversion of fixed-term contracts into contracts of indefinite duration and the

34  Panayides v Attorney General of the Republic of Cyprus, Labour Disputes Court, Civil Appeal 132/2009, 19 July 2012. 35  S Yiannakourou, Κυπριακό Εργατικό Δίκαιο (Nomiki Bibliothiki, 2016), 147; A Emilianides and C Ioannou, Labour Law in Cyprus (Wolters Kluwer International, 2016), 63.

Atypical Employment Relationships: The Position in Cyprus 119 protection of employee rights; the problems encountered in this field in the public and semi-public sectors are the same. —— There has been an increase of private-sector employees on fixed-term contracts, whose rights are hardly equivalent with those of employees with a contract of indefinite duration. In total, 17.1 per cent of the workforce in 2016 consisted of employees under temporary contracts. This major rise occurred during the economic crisis, ie 3.5 per cent from 2010 onwards. 95.1 per cent of employees under temporary contracts claim that the reason they perform temporary work is because they could not find permanent employment (this is the highest percentage in any EU Member State). For women working in temporary jobs, the percentage of those who report having no other option is even higher, namely 95.8 per cent.36 Only a tiny minority would submit a claim in court; this mostly involves persons who have been dismissed or have little to lose. (ii)  Employment Opportunities The right to equal treatment includes the right to equal opportunities to participate in training and to be given the opportunity to secure a permanent position in the employer’s establishment. Employers are required to inform fixed-term workers about vacancies that become available to ensure that they have the same opportunity to secure permanent positions as other workers. Employers must also ‘to the extent possible’ facilitate access by fixed-term workers to appropriate training opportunities. The equality clause is stipulated in the FT Law.37 Individual workers can pursue claims for failure to receive information about vacancies. Article 11 of the FT Law provides that an employer who breaches the provisions of the current law commits an offence and is liable to pay a fine that does not exceed EUR 3,400. It is also a criminal offence to prevent inspectors from performing their duty. This is punishable by up to three months’ imprisonment and/or a fine of up to EUR 5,100. The Law does not specify who can initiate proceedings, but it can be safely assumed that an affected employee has the right to do so. The penalty for violation of the provisions of the law is quite ‘effective, proportionate and dissuasive’; however, no such fine has been imposed so far.

36  N Trimikliniotis, S Stavrou and C Demetriou, The reality of free movement for young European citizens migrating in times of crisis, Cyprus National Report, ON-THE-MOVE, Grant Agreement JUST/2014/RCIT/AG/CITI/7269, December 2016: http://euonthemove.eu/ wp-content/uploads/2017/05/Cyprus-national-report.pdf. 37  Art 8(1) and (2) of the FT Law copy verbatim the text of cll 6.1 and 6.2 of the Framework Agreement.

120  Nicos Trimikliniotis and Corinna Demetriou (iii)  Other Matters N/A E.  Information and Consultation According to Clause 7 of the Framework Agreement, Article 9(1) of the FT Law provides that fixed-term workers are to be taken into account when calculating the threshold of employee numbers above which the employee representative bodies may be constituted in the undertaking in accordance with the legislation in force, the collective agreements and practice. No further details are provided as regards the manner in which the number of fixed-term workers is to be taken into account. Article 9(2) of the FT Law states that the details of implementation of the aforesaid provision are determined in accordance with the legislation in force, the collective agreements and practice, having regard to the non-discrimination principle contained in Article 5 of the Law.38 Article 9(3) asserts the employer’s duty to inform the employee representative bodies.39 Given that there are no work councils in Cyprus and that the majority of matters are dealt with via trade unions within Cyprus’s strong tripartite system, this issue has little, if any, practical application. F.  Specific Provisions There are no specific provisions on particular professions. G.  Collective Bargaining Agreements Deviating from Statutory Provisions In general, employers consider that the implementation of the law transposing the FT Directive is satisfactory and that there is increasing awareness of the key concepts of non-discrimination, gradually achieving the goal of equalisation of employment rights and benefits between workers under a fixed-term contract and those under a contract of indefinite duration. The Employers and Industrialists Federation (OEB)40 and the Ministry of Labour consider that the Directive has had a beneficial effect and there are no detrimental ‘side-effects’. The main problems they see are in the public sector and to some extent in the tourism sector. There are a number of problems relating to temporary employment in the public sector, but as a result of trade union intervention, important 38 

Transposing cl 4 of the of the Framework Agreement. Art 9(3) copies verbatim the provisions of Cl 7.3 of the Framework Agreement. 40  Consultation with the Officer of the Employers and Industrialists Federation (OEB). 39 

Atypical Employment Relationships: The Position in Cyprus 121 developments have been made in terms of organising these groups of workers and bringing about the benefits of collective bargaining and collective agreements. However, a disparity still exists between the employment status of full-time permanent public employees and public employees who have concluded a fixed-term contract. Trade unions argue that there are significant side-effects and arrangements that undermine collective bargaining. Moreover, in numerous court cases, judges have pointed out that there are many cases of hidden employment, ie employment disguised as ‘contracts for service’, involving employees who are unaware of their rights deriving from this Law. Trade unions complain that there is widespread abuse and adverse sideeffects of the law, which was designed to upgrade the employment terms of fixed-term contract workers by bringing about equal treatment and bridging the gap upwards between ‘temporary’ and ‘permanent employees’. On many occasions, the result is in fact the opposite, leading to a downgrading of permanent workers and an undermining of collective agreements. Trade unions complain that in sectors that are volatile because they are fully market-dependent, such as the retail and service sectors, the Directive has not been effective at all in achieving its goals; on the contrary, the use of fixed-term contracts may have undermined collective bargaining.41 There is plenty of room for improvement and to universally implement the non-discrimination principle, as collective agreements that continue to be in force may actually contain discriminatory provisions on different prohibited grounds. The Equality Body appointed under the Law transposing the Race Directive has ruled that some of these agreements providing for pay which is lower for non-Cypriot workers than the average pay earned by Cypriots and prohibiting the participation of non-Cypriot workers in trade unions and political parties, contravened anti-discrimination laws, and some of these have indeed been revised. There have been no reported incidents of collective agreements violating the Fixed-term Directive. In practice, in the process of developing the ‘non-discrimination principle’ to cover fixed-term contract workers, there is a considerable degree of consensus that the Directive has been useful in that there is now at least increased awareness of the principle. III.  PART-TIME WORK

Over the last years, there has been a rapid increase in part-time work in Cyprus: in 2005, it was 7.5 per cent of workers; by 2015, it was

41 Consultation with Lefteris Georgiades, General Secretary of the hotel industry trade union, SYXKA-PEO, February 2017.

122  Nicos Trimikliniotis and Corinna Demetriou 12.9 per cent.42 However, there is still no case law on this matter. This is not surprising, given how vulnerable most part-timers are. The Cypriot Law on Employees with Part-time Work (PT Law)43 purports to transpose Directive 97/81/EC concerning the Framework Agreement on Part-time Work. The new legislation introduced the principles of non-discrimination for part-time workers, as well as other new concepts such as ‘pro rata temporis’ and ‘comparable full-time worker’. Article 3(1) of the PT Law repeats the same goals as in the Directive, faithfully copying the wording of the Directive, (a) to provide for the removal of discrimination against part-time workers and to improve the quality of part-time work; and (b) to facilitate the development of part-time work on a voluntary basis and to contribute to the flexible organisation of working time in a manner which takes into account the needs of employers and workers. A.  Legal Definitions/Formal Requirements Article 2 defines an ‘employee with part-time employment’ as an employee who, due to an employment contract or an employment relationship or under such circumstances where an employment relationship can be inferred, whose hours of work, when calculated on a weekly basis or on average per year are less than the normal hours from a comparator employee working in full-time employment.44

Overtime within part-time work arrangement is not specifically regulated by law, but only indirectly regulated by the non-discrimination clause45 and the provision that part-timers enjoy the same rights as full-timers on a pro rata basis,46 a provision that also appears in many collective agreements. Trade unions, however, assert that in practice, part-time employees do not enjoy the rate of overtime pay received by full-time employees, which in many industries (such as the hotel industry) is 1–1.5 for weekdays and 1–2 on holidays. This is because the salary of part-timers is calculated based on an hourly rate. Hence, when requested to work over and above their agreed hours of work, they only earn the hourly rate paid to them for their normal

42  Eurostat, http://ec.europa.eu/eurostat/statistics-explained/index.php/Employment_ statistics. 43  Ο περί Εργοδοτουμένων με Μερική Απασχόληση (Απαγόρευση Δυσμενούς Μεταχείρισης) Νόμος του 2002, Law on Employees with Part-time Work (Prohibition of Disadvantageous Treatment) Law No 76(I)/2002. 44  In Greek: ‘“Εργαζόμενος με μερική απασχόληση”: ο εργαζόμενος που οι ώρες εργασίας του, υπολογιζόμενες σε εβδομαδιαία βάση ή κατά μέσο όρο για μια περίοδο απασχόλησης ενός έτους, είναι λιγότερες από τις κανονικές ώρες εργασίας ενός συγκρίσιμου εργαζόμενου με πλήρη απασχό ληση.’ 45  PT Law Art 6(3). 46  PT Law Art 7(1).

Atypical Employment Relationships: The Position in Cyprus 123 work. There are no adjustment measures in case of continuous overtime, and trade unions have stated that employers do not always offer part-timers the chance to convert their contract into one of full-time employment when a new full-time post is opened in their field.47 There is no definition in the PT Law of the term ‘worker’ or employee’. However, the Termination of Employment Law defines ‘employee’ as any person who works under a contract of employment, although the court may even consider a person to be an employee without a contract of employment, if it believes that a relationship exists between the employer and employee. The Termination of Employment Law also defines the term ‘employer’ as any person with whom the employee has entered into a contract or who is deemed by the court to have the status of employer, including the Government of Cyprus. The term ‘employee’ in the public sector is defined by the Law on Public Service as a person holding a public position, either permanently or temporarily or a replacement (public position means a position in the public service).48 Public employees or civil servants are considered to be employees of the state, and their conditions of employment are regulated by the Public Service Laws, although most other labour legislation applies to employees in both the public and the private sector, unless otherwise provided in such Laws. B.  Opportunities for/Right to Part-Time Work Prior to the introduction of the PT Law, there was no right as such to ­part-time work in Cypriot law, as in its predecessor, English law; nor is there anything preventing parties from agreeing to such an employment relationship. However, Article 8 of the PT Law explicitly stipulates ‘free choice of part-time work’ as a ‘right of employees’. Moreover, Article 8(1) provides that the employer must ensure the transition of an employee from full-time to part-time work, or vice versa, when there are vacancies in the company, as long this is voluntary. (2) Refusal of the part-time employee to transfer to full-time work, or vice versa, is not in itself a reason for terminating the employee’s services, subject to the ability to the terminate services in accordance with current legislation, collective agreements and practice, for other reasons that may arise from the operational requirements of the business contract.49

47  Interview with Lefteris Georgiades, General Secretary of the hotel employees’ trade union SYXKA-PEO, 16 November 2016. 48  Law Amending and Unifying the Laws on Public Service 1967–1987, No 1/90, Art 2. 49 The PT Law text reads as follows: Δικαίωμα εργοδοτουμένων ελεύθερης επιλογής της εργασίας μερικής απασχόλησης. ‘8.—(1) Ο εργοδότης υποχρεούται να διασφαλίζει ότι η μετάβαση του εργοδοτουμένου από την πλήρη απασχόληση στη μερική απασχόληση, ή αντίστροφα, όταν

124  Nicos Trimikliniotis and Corinna Demetriou C.  Opportunities for/Right to an Extension of Working Time The employer is required,50 where possible, to consider the following: —— Applications of employees to transfer from full-time to part-time work that becomes available in the enterprise; —— Requests by employees to transfer from part-time to full-time work or to increase their working time should the opportunity arise. In general, the employers’ association considers that there are plenty of opportunities for part-time workers, as there are no barriers from the employers’ perspective; on the contrary, they want to encourage part-time work, but consider that there is reluctance from trade unions. Trade unions, on the other hand, see no barriers at all;51 it is no coincidence that there is no case law. The Cyprus Law on Part-Time Work provides that employers who fail to comply with this law are guilty of an offence and are subject to a fine not exceeding EUR 3,600.52 The Minister of Labour may, if s/he deems necessary, appoint inspectors for better implementation of this law.53 Moreover, the Council of Ministers may issue regulations regulating, inter alia, the categories of workers working on a ‘casual’ basis54 and the duties of the aforesaid inspectors.55 D.  Rights and Status of Part-Time Worker (i)  Equal Treatment Equal treatment and the principle of non-discrimination are the cornerstones of the PT Law which purports to transpose the PT Directive. The PT Law refers to ‘terms of employment’ and ‘conditions of employment’, but does not provide a definition of either of the aforesaid terms or of the υπάρχουν κενές θέσεις στην επιχείρηση, γίνεται εθελοντικά. (2) Η άρνηση του εργοδοτουμένου με μερική απασχόληση για μεταφορά του σε πλήρη απασχόληση, ή και αντίστροφα, δεν αποτελεί από μόνη της λόγο τερματισμού των υπηρεσιών του εργοδοτουμένου, υπό την επιφύλαξη τερματισ μού των υπηρεσιών σύμφωνα με την ισχύουσα νομοθεσία, συλλογικές συμβάσεις και πρακτική, για άλλους λόγους που μπορεί να προκύψουν από τις λειτουργικές απαιτήσεις της εν λόγω επιχείρησης.’ 50 

Art 9 of the PT Law. N Trimikliniotis and C Demetriou, Cyprus National Expert Reports on Directive 97/81/ EC concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC, Report for EU Commission on ‘Studies on the implementation of Labour Law Directives in the enlarged European Union’, 2006, on behalf of Human European Consultancy, Utrecht, the Netherlands, funded by the EU Commission. 52  Art 12 of the PT Law. 53  Art 13 of the PT Law. 54  Art 4(2)(a) of the PT Law. 55  Art 14 of the PT Law. 51 

Atypical Employment Relationships: The Position in Cyprus 125 term ‘employment conditions’. There is no case law that defines these terms, although there are a number of cases that refer to ‘terms of employment’ and to ‘conditions of employment’ in cases of termination of employment. The term ‘comparable full-time worker’ is defined as an employee who: 1. works in the same establishment as the part-time worker; 2. has the same type of employment contract or relationship as the parttime worker; 3. is engaged in the same or a similar work/occupation as the part-time worker, due regard being given to other considerations which may include seniority and qualifications/skills and specialisation. There is also a provision for situations where there are no comparable fulltime workers in the same establishment (Article 5 of the PT Law), where ‘the comparison shall be made by reference to the applicable collective agreement or, where there is no applicable collective agreement, in accordance with national law, collective agreements or practice’, which is a faithful replication of Clause 3.2 of the Framework Agreement enacted by the PT Directive. Any difference in treatment must be justified on ‘objective grounds’; ­however, ‘objective grounds’ are not defined in the PT Law. The principle of non-discrimination is implied by law in contracts of employment and is presumed to have universal application. However, no case has gone to court to establish how this is interpreted in practice. The principle pro rata temporis, as provided in Clause 4.2 of the PT Directive, is referred to in the PT Law in the same way as in the Directive. The application of the principle is a matter that has not yet been covered by the courts. According to representatives of the employers’ association,56 the recommendation given to members in case of part-time workers who work on specific days of the week, is that a calculation of the number of effective public holidays should be carried out (ie those holidays that do not fall on a weekend) and be this allowance be given to the part-time worker on a pro rata basis. The term ‘pro rata temporis’ is defined in Article 2 of the PT Law as follows: Whenever a comparable employee with full-time employment receives or is entitled to receive pay or whatever other benefit, the part-time employee will receive or be entitled to receive such part of the pay or the other benefits on a pro rata basis calculated in accordance with the number of weekly hours of work, in comparison to the number of hours of the equivalent full-time comparator employee. 56  N Trimikliniotis and C Demetriou, Cyprus National Expert Reports on Directive 97/81/EC concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC, Report for EU Commission on ‘Studies on the implementation of Labour Law Directives in the enlarged European Union’, 2006, on behalf of Human European Consultancy,

126  Nicos Trimikliniotis and Corinna Demetriou Although Clause 4.3 of the PT Directive provides that the arrangement for the application of Clause 4 shall be defined by the Member State and/or social partners, there is no relevant provision in the Cypriot PT law. Clause 4.4 is replicated within the PT Law, allowing, where justified by objective reasons, access to particular conditions of employment that are subject to a period of service, time worked or an earnings qualification. However, in practice this has not been taken advantage of. There are no rules concerning periodic reviews, nor are there any criteria upon which the review decision will be based. So far, no reviews have taken place, nor are there any planned reviews in the future. The term ‘periodic’ is not defined. (ii)  Dismissal Protection PT Law, copying verbatim Directive Clause 5.2, stipulates that a worker’s refusal to transfer to part-time work or vice versa should not in itself be a valid reason for dismissal. Representatives of the employers’ association claim that this is generally complied with and that few complaints are raised by workers.57 However, trade union representatives complain that there is regular pressure on full-time workers to become more ‘flexible’, ie to switch to fixed-term or part-time employment, and that employers in hotels and restaurants very rarely recruit full-time employees from their existing parttime staff. There have been no cases before the court so far; it seems that part-time workers do not complain about these practices, as they prefer to keep their jobs, with all the disadvantages, rather than deal with long waiting periods for their case to be heard in court. In other sectors, part-time workers are in a better position to apply for full-time jobs, but there is no established system of them having priority when a full-time post is created. Trade union representatives claim that it is easier for full-time employees to transfer to part-time employment, but examples of voluntary changes in the status of employment from full-time to part-time work are rare. The law does not provide much guidance with regard to the mechanism for giving consideration to requests from workers to transfer from full-time to part-time work or vice versa, or about informing workers or their representatives of full-time and part-time work opportunities. As regards facilitating access to part-time work and vocational training, employers claim that this is done in accordance with the principle of equal treatment and that part-time workers are given full access to such training. Trade union representatives, on the other hand, claim otherwise: it is extremely difficult in practice for part-time workers to have full and equal access to vocational training and promotions.

Utrecht, the Netherlands, funded by the EU Commission. Further consultation with a representative from the employers’ association OEB, December 2016. 57 

Consultation with a representative from the employers’ association OEB, December 2016.

Atypical Employment Relationships: The Position in Cyprus 127 (iii)  Other Matters The PT Law stipulations on protection of part-time workers are found in Articles 7(1) and 7(2). Article 7(1) provides that, without prejudice to A ­ rticle 6 of the Law (non-discrimination and conditions for access to ­part-time work), part-time workers are entitled to equivalent terms and conditions of employment to those of comparable full-time workers, particularly with regard to: —— Salary and benefits, determined on a pro rata basis and in accordance with the hours of work or remuneration or contributions or other methods based on national legislation, collective agreements or practice; —— The state social insurance system; —— Termination of employment, except those part-time workers whose hours of work are below the minimum stipulated in the Termination of Employment Laws 1994–2002; —— Protection of maternity; —— Paid annual leave and paid national holidays; —— Parental leave; —— Sick leave. Article 7(2) provides that a part-time worker must be afforded the same protection and treatment as a full-time worker with regard to: —— The right to unionise, the right to conduct collective negotiations and the right to act as a representative of employees; —— Professional insurance and health; —— Protection from discriminatory treatment at work and in his/her profession.

E.  Information and Consultation The employer is,58 where possible, required to consider measures to f­acilitate access to part-time work at all levels of the enterprise, including skilled and managerial positions, and where appropriate, to facilitate access of employees to part-time vocational training to enhance their career opportunities and occupational mobility. The employer is also required to share appropriate information and to communicate with organisations representing employees on the part-time employees employed in the enterprise. It is not clear how part-time employees are to be taken into account when calculating thresholds, ie whether part-time employees are counted per head or ­full-time equivalently.

58 

Art 9 of the PT Law.

128  Nicos Trimikliniotis and Corinna Demetriou F.  Other Part-Time Arrangements Since the creation and expansion of tertiary education, junior lecturers and other academic staff have often found themselves in precarious employment relationships. This practice seems to have expanded over the last decade and has intensified further in the last three years. Although it is difficult to verify without an in-depth empirical study, there are strong indications that there is a growing pool of ‘peripheral workers’ who work in the expanding field of research and teaching, and work under part-time and/or fixed-term contracts. There are various ‘special teaching staff’ and ‘visiting lecturers’, both in public and private universities and colleges; however, the percentage of this type of staff is restricted by law, and may not exceed 30 per cent per school.59 In addition, there is an increasing number of ‘other flexible staff’, who are often given different academic titles, and with whom the employer has entered into individual contractual agreements, stating that the employer is not required to provide the worker with stable employment, but only with casual work if and when it arises. Often, these are retired persons who have no recourse to the Law on Termination of Employment are employed. G.  Collective Bargaining Agreements Deviating from Statutory Provisions There have been collective agreements which have excluded part-time workers or provided for fewer rights than those required under the PT Law (eg in the education and the public sector). However, no cases of collective bargaining deviating from statutory provisions have been brought before the courts or have received public attention. It is not possible to deviate from statutory provisions. Few studies have been conducted in this area; however, atypical forms of employment are becoming widespread; statistics show a significant rise in part-time work. Elderly care homes, private consultancies and firms, professional services (lawyers, accountants, architects, etc), private tertiary educational institutions and learning centres, and tourist agents are a disparate sector for the provision of various services which do not have a well-regulated system of industrial relations.60 The characteristics of this sector are the disparity and diversity in various forms of employment and practices. However, the use of atypical forms of employment such as 59  The rules governing public universities and other tertiary education institutions provide for such restrictions. Also, article 34(1) of the Private Universities Law 109(I)/2005 requires that they are not more than 30%. 60  It is roughly estimated that there are at least 15,000 employees working in this sector, of whom 1,250 work in private tertiary education, 800 in private tuition institutions, 1,200 in elderly care homes owned by local authorities (SKE) and another 1,000 in private elderly care homes, about 650 secretary workers in lawyers’ offices (Interview with Savvas Touloupos, General Secretary of Service Employees PASEY PEO, 21 November 2017).

Atypical Employment Relationships: The Position in Cyprus 129 ­ art-time and casual employment is widespread. The larger tertiary educap tional establishments have active trade unions and collective agreements, while the smaller ones do not have an extensive use of part-time workers, for both academic and non-academic staff. IV.  TEMPORARY AGENCY WORK

There is no large-scale operation of temporary work agencies in Cyprus. The social partners state that only very few operate. Before 2012, temporary agency work was not explicitly regulated in labour law. Traditionally, temporary work agencies were viewed with suspicion. The general practice in Cyprus is that no employment relationship exists between the temporary work agency or placement agency and the worker during the period of posting. The Temporary Agency Worker Law61 does not explicitly provide that the Framework Agreement on fixed-term work excludes or applies either to the fixed-term employment relationship between a temporary worker and a temporary employment business or to the employment relationship between such a worker and a user undertaking. Whilst recital 17 of the Temporary Agency Work Directive 2008/104/EC provides for derogation ‘within l­imits’ from the principle of equal treatment,62 there is no provision in C ­ ypriot law excluding equal treatment for such workers. Moreover, A ­ rticle 9 of that Directive allows Member States to introduce legislative, regulatory or administrative provisions that are more favourable to workers.63 In this sense, various provisions of the said Law underscore the importance of equal treatment and as such, it can be interpreted that the Framework Agreement on fixed-term work also covers temporary workers. It will depend on how national courts interpret Article 18(1) of the Law, which has the subheading ‘principle of equal treatment’ and replicates ­Article 5 of the 2008 Directive. This paragraph stipulates that the basic terms and conditions of temporary agency workers shall, for the duration of their assignment at a user undertaking, be at least those that would apply if they had been recruited directly by that undertaking to occupy the same job.

61  Ο περί της Εργασίας μέσω Επιχείρησης Προσωρινής Απασχόλησης Νόμος του 2012, No 174(Ι)/2012. 62  Directive 2008/104/EC Preamble Recital (17): ‘in certain limited circumstances, Member States should, on the basis of an agreement concluded by the social partners at national level, be able to derogate within limits from the principle of equal treatment, so long as an adequate level of protection is provided.’ 63 Art 9(1): ‘This Directive is without prejudice to the Member States’ right to apply or introduce legislative, regulatory or administrative provisions which are more favourable to workers or to promote or permit collective agreements concluded between the social partners which are more favourable to workers.’

130  Nicos Trimikliniotis and Corinna Demetriou A semantic point that may be of some relevance is the term used in the ­Cypriot Law for the practice of ‘assignment’, which is translated in the ­official EU translation as ‘τοποθέτηση’ (placement); the Cypriot legislator preferred to use the term ‘παραχώρηση’ (concession). A.  Legal Definitions/Formal Requirements There is no relevant case law in Cyprus, as temporary work agencies currently operate on a minute scale. Temporary work agencies may, in the future, become an issue as the general freezing in recruitment in the public sector, which was introduced as a measure to reduce public spending in light of the economic crisis, has created gaps which are filled through public procurement of services rather than through new recruitment. Relevant here is also the Cypriot legislation on posting of workers:64 the old law which entered into force with accession to the EU on 1 May 2004, which was replaced by the new law on posting which entered into force in 2017.65 Temporary work agencies operating in another EU Member State may post workers by assigning them to user undertakings in Cyprus. A temporary work agency or placement agency hires out a worker to a user undertaking, provided an employment relationship between the temporary work agency or placement agency and the worker has been established during the period of posting. The Temporary Agency Work Law 174(I)/2012 (‘Temporary Agency Worker Law’)66 provides the framework of the operation of posting and hiring out workers. The old Cypriot Law on Posting did not clarify when an undertaking is truly established, what criteria are applied or how it is to be implemented in practice.67 However, the new Law, which stipulates in the Preamble that the aim of the Law is to transpose Directive 2014/67/EU, is more detailed and clarifies where the Posting Law applies. Article 4(1) of the new Cypriot Law applies to undertakings which are established in a Member State and which, in the framework of a transnational provision of services, have posted workers in accordance with the provisions set out by the Law. Undertakings fall within the ambit of the Law when they take one of the following transnational measures: —— Post one or more workers, on their behalf and under their direction, to the territory of the Republic for the purpose of performing a contract 64  Purporting to transpose Directive 96/71/EC on the posting of workers, was the Posting of Workers within the Framework of Provision of Services Law 137(I)/2002. 65 Law 56(I)/2017, O περί της Απόσπασης Εργαζομένων στο Πλαίσιο Παροχής Υπηρεσιών Νόμος του 2017, available at: http://www.cylaw.org/nomoi/enop/non-ind/2017_1_63/full.html. N ­Trimikliniotis, Thematic Review 2019: Transposition of the Enforcement Directive on Posting of Workers, Republic of Cyprus, ECE Report for Employment, Social Affairs and Inclusion. 66  Ο περί της Εργασίας μέσω Επιχείρησης Προσωρινής Απασχόλησης Νόμος του 2012. The Law is available at: www.cylaw.org/Nomoi/eNop/Non-ind/2012_1_174/full.html. 67  Directive 96/71/EC Art 1(1) is carried verbatim into the Cypriot Law.

Atypical Employment Relationships: The Position in Cyprus 131 concluded between the undertaking which seconds the employee and the recipient of the services which carries on business in the Republic, provided that there is an employment relationship between the sending undertaking and the worker(s) at the time of secondment; or —— Second one or more workers to the territory of the Republic, to an establishment or to an enterprise of the group of which the enterprise sending the worker is a member, provided that there is an employment relationship between the sending undertaking and the workers at the time of secondment; or —— As a temporary employment agency or an undertaking providing workers, dispatch a worker to a user undertaking established or operating in the territory of the Republic, provided that during the posting, an employment relationship exists between the temporary employment agency or the undertaking employing a posted worker. Undertakings established in the territory of a non-Member State cannot be granted more favourable treatment by undertakings established in a Member State. In addition, the Law provides a set of criteria to identify genuine postings and to prevent abuses and circumvention. Under Article 13(3) the Competent Authority (the Minister of Labour) is obliged to examine whether an undertaking which distributes employees actually carries out substantial activities, taking into account, in particular, —— the place where the undertaking has its registered office and administrative headquarters and the place where it has offices, pays taxes and social security contributions and, as the case may be, has a professional licence in accordance with national legislation or is registered in commercial chambers or professional bodies; —— the place of recruitment of posted workers and the place from which they are posted; —— the law governing the contracts concluded by the undertaking with employees on the one hand and with customers on the other; —— the place where the enterprise carries out its substantial business activity and employs administrative staff; and —— the number of contracts it executes and/or the turnover of the enterprise in the Republic. Article 13(4) stipulates that the facts which may characterise work as ­temporary on the territory of the Republic and the status of the worker include— —— if the work is carried out for a limited period on the territory of the Republic; —— the date on which the secondment begins; —— whether the posted worker normally provides his/her work in a Member State other than the Member State to which s/he is seconded, in accordance with the provisions of Regulation (EC) 593/2008 on the

132  Nicos Trimikliniotis and Corinna Demetriou

—— —— —— ——

law applicable to contractual obligations or the Rome Convention on the law applicable to contractual obligations of 1980; if the posted worker returns or is expected to resume work in the Member State from which he was posted after completing the work or providing the services for which he has been seconded; the nature of the activities; if travel, subsistence and accommodation expenses are provided or reimbursed by the employer who seconds the worker, and if so how the reimbursement is to be made; any previous periods during which the post was covered by the same or another posted worker.

Also, the law provides that the assessment is comprehensive and that each case is considered in a particular way and the failure to fulfil one or more of the factual criteria in this article does not preclude a situation from being classified as posting. In any case, under Article 13(5) the Competent Authority is required to examine all facts connected with the provision of employment in the territory of the Republic, the dependency relationship and the remuneration of the employee, regardless of the contractual or non-contractual relationship that may be agreed between the Contracting Parties. Temporary work agencies or placement agencies may hire out a worker to a user undertaking that has been established or is operating in the territory of another Member State, provided an employment relationship exists between the temporary work agency or placement agency and the worker during the period of posting. Posting does not apply to merchant shipping companies as regards workers on seagoing vessels (seafaring personnel). Also, posting is explicitly prohibited in construction activities, as the transposing Law provides that all activities in the field of construction—including restoration, regular maintenance, conversion or demolition of buildings, as well as the following particular tasks listed in the appendix of the Law—are not performed by qualifying posted workers/are not covered by the Law.68 With regard to the definition of the term ‘posted worker’, Article 2 of the new Cypriot Law on Posting (which remains the same as the old law on posting) defines ‘worker’, as well as ‘posted worker’. This provision defines ‘worker’69 as ‘a person who is hired by another person either via a contract of employment or under such conditions that an employment relationship can be inferred’. The term ‘posted worker’ is defined as ‘a worker who

68 These are the following: Excavation, Planting (levelling), Erection, Assembly and disassembly of prefabricated elements, Layout-Equipment, Conversions, Renovation, Repair, ­Dissolution, Demolition, Preventive maintenance, Regular maintenance—Painting and cleaning operations, Refinement. 69  In Greek, the term used is ‘ergazomenos’, which literally means ‘working person’, rather than ‘worker’ (ergatis).

Atypical Employment Relationships: The Position in Cyprus 133 ­ sually works in the territory of a Member State and who is posted to the u territory of the Republic … by an undertaking to perform work for a limited period of time’. There are rules to prevent abuse of temporary agency work. The Cypriot Temporary Agency Worker Law contains no requirement for an objective reason justifying the recourse to temporary agency work. Similarly, there are no limits to the maximum number of renewals of an assignment to a user undertaking. The following regulations/practices may operate as barriers or deterrents to abuse: —— The Law provides that it ‘shall not apply to merchant navy undertakings as regards seagoing personnel’.70 —— The law does not apply to the construction and the tourism industry;71 the reasoning behind this exclusion is that these sectors are thought to be particularly prone to abuse and difficult to monitor. —— Subsidiary legislation72 regulates the terms and conditions for the granting of licences, certification and inspection of temporary agencies. Any legal or natural person who acts as a mediator for the employment of persons available for work, for the purpose of either direct or indirect pay/fee/material gain/other charges or without charge, needs to obtain a licence for the operation of such an establishment from the Competent Authority, which is the Director of the Department of Labour of the Ministry of Labour, Welfare and Social Insurance. B.  Registrations, Licensing, Financial Guarantees, etc. The conditions established in the legislative framework for granting a licence to operate a temporary work agency do not include restrictions that are relevant to the general interest or the protection of workers. Cyprus has purportedly transposed Directive 2008/104/EC by the Temporary Agency Worker Law. The Law, which to a large extent replicates the wording of the Directive, introduces the following conditions for granting a permit to operate a temporary work agency: —— Observance of the principle of equal treatment; —— Access for temporary workers to information about vacancies in the user undertaking; —— Representation of the temporary workers (in the manner foreseen in the collective agreements). 70 Art 3(3) of the Temporary Agency Worker Law, which replicates verbatim Directive 96/71/EC, Art 1(2). 71  As per Art 4(3) of the Temporary Agency Worker Law. 72  Regulatory Administrative Act No 517/2012.

134  Nicos Trimikliniotis and Corinna Demetriou C. Relationship between Temporary Agency Worker and Temporary Work Agency (i)  Fixed-term and Part-time Contracts The contract of employment between the employee and the temporary work agency is usually a fixed-term contract. It is highly unusual for an employee and a temporary work agency to conclude a contract of indefinite duration.73 There is, however, no explicit prohibition in the Law. Part-time employment contracts with the temporary work agency are not excluded. (ii)  Rights and Obligations/Liability The temporary work agency has all the rights and obligation of an employer.74 The Temporary Agency Worker Law stipulates that the principle of equal treatment applies. The basic working and employment conditions of temporary agency workers ‘shall, for the duration of their assignment at a user undertaking, be at least those that would apply if they had been recruited directly by that undertaking to occupy the same job’, as per Article 5 of the Directive 2008/104/EC.75 Temporary agency workers also enjoy the same level of protection with reference to occupational health and safety conditions.76 Workers in the temporary work agency are entitled to equal treatment with workers hired directly by the employer,77 including health and safety standards,78 the rights derived from statutes, subsidiary legislation and administrative provisions, collective agreements and practices.79

73 

Art 14 of the Temporary Agency Worker Law. Art 13 of the Temporary Agency Worker Law. 75  Art 18 of the Temporary Agency Worker Law. 76  Art 18(2) of the Temporary Agency Worker Law. 77  As per Art 18(1) of the Temporary Agency Worker Law. The relevant paragraph of the Law in Greek reads as follows: ‘18.-(1) Οι βασικοί όροι εργασίας και απασχόλησης των προσωρινά απασχολούμενων, κατά την περίοδο της παραχώρησής τους σε έμμεσο εργοδότη, είναι τουλάχιστον αυτοί που θα εφαρμόζονταν αν οι εργοδοτούμενοι είχαν προσληφθεί απευθείας από τον εργοδότη αυτόν για να καταλάβουν την ίδια θέση.’ 78  As per Art 18(2) of the Temporary Agency Worker Law. 79 Art 18(3) of the Temporary Agency Worker Law. The relevant paragraph of the Law in Greek reads as follows: (3) Οι κανόνες που ισχύουν στην επιχείρηση του έμμεσου εργοδότη, όπως προνοούνται από τη νομοθεσία, τις κανονιστικές και διοικητικές διατάξεις, τις τυχόν εφα ρμοστέες συλλογικές συμβάσεις και πρακτική πρέπει να τηρούνται με τους ίδιους όρους και ως προς τους προσωρινά απασχολούμενους και κυρίως σε σχέση με: (α) την προστασία των εγκύων και γαλουχουσών γυναικών και την προστασία των παιδιών και των νέων∙ και β) την ίση μεταχε ίριση ανδρών και γυναικών και κάθε δράση για την καταπολέμηση κάθε διάκρισης λόγω φύλου, φυλής ή εθνοτικής καταγωγής, θρησκείας ή πεποιθήσεων, ειδικών αναγκών ή αναπηρίας, ηλικίας ή γενετήσιου προσανατολισμού. 74 

Atypical Employment Relationships: The Position in Cyprus 135 Moreover, the Temporary Agency Worker Law stipulates that the temporary work agency is required to refrain from any discrimination in accordance with the Law on Discrimination in Employment,80 the Law on Equal Pay between Men and Women81 and Persons with Disabilities Law.82 (iii)  Dismissal Protection General rules are applied for dismissals of temporary agency workers under the non-discrimination principle.83 D.  Relationship between Worker and User Undertaking (i)  Legal Type of Relationship No contract of employment exists between the employee and the temporary work agency. However, the temporary work agency exercises the most important right of the employer, namely the power of direction. (ii)  Rights and Obligations/Liability The maximum limit of an assignment to a user undertaking is four months.84 The user undertaking and the temporary work agency are jointly liable for the payment of emoluments or earnings to the temporary agency worker, including social insurance contributions.85 The user undertaking is responsible for all other (legal, conventional, administrative) rules on employment conditions and protection.86 Any terms of the employment contract or of the leasing contract that prevent the user undertaking from hiring the temporary agency worker at a time when the employment relationship with the temporary work agency is terminated, are considered void.

80 Law 58(I)/2004, Περί Ίσης Μεταχείρισης στην Απασχόληση και την Εργασία Νόμος του 2004. This Law transposes the EU Directive on Race Equality 43/2000 and Employment Equality Framework Directive 78/2000. 81  Law 205(I)/2002, περί της Ίσης Μεταχείρισης Ανδρών και Γυναικών στην Απασχόληση και Επαγγελματική Εκπαίδευση. This Law transposes the EU gender equality Directives 76/207/EEC and 97/80/ΕC. 82  Law 127/2000 as amended, Περί των Ατόμων με Αναπηρίες Νόμος, http://www.cylaw.org/ nomoi/indexes/2000_1_127.html 83  Art 18 of the Temporary Agency Worker Law. 84  Art 15(1) of the Temporary Agency Worker Law. 85  Art 16(1) of the Temporary Agency Worker Law. 86  Art 18(2) of the Temporary Agency Worker Law.

136  Nicos Trimikliniotis and Corinna Demetriou (iii)  Health and Safety The user undertaking is responsible for occupational health, hygiene and security jointly with the temporary work agency.87 E.  Relationship between Temporary Work Agency and User Undertaking There is a contextual relationship between the temporary work agency and the user undertaking. A valid contract between the temporary work agency and the user undertaking must be established in writing.88 The Temporary Agency Worker Law also stipulates the content of the contractual relationship, which must contain the following: —— —— —— —— —— —— ——

The duration of the contract;89 The salary of the worker during the placement;90 The specialisation of the worker;91 The terms and conditions of the temporary placement;92 The pay and social insurance;93 The permit number of the temporary work agency;94 Mention of duty of the temporary work agency to abide by the health and safety rules as provided by the Law.95

F.  Rights and Status of Temporary Agency Worker The employment rights and status of temporary agency workers depend on their classification in line with ordinary common law tests developed in Cypriot law. There is no case law so far, but we draw some persuasive interpretations from the operation of the law in the UK and other EU jurisdictions as to the operation of the EU’s Directive on Temporary Agency Work.96

87 Ibid. 88 

Art 14(1) of the Temporary Agency Worker Law. Art 14(2)(a) of the Temporary Agency Worker Law. 90 Ibid. 91  Art 14(2)(c) of the Temporary Agency Worker Law. 92  Art 14(2)(d) of the Temporary Agency Worker Law. 93  Art 14(2)(e) of the Temporary Agency Worker Law. 94  Art 14(2)(f) of the Temporary Agency Worker Law. 95  Art 14(2)g of the Temporary Agency Worker Law. 96  N Countouris and R Horton, ‘The Temporary Agency Work Directive: Another Broken Promise?’ (2009) 38 Industrial Law Journal 329–38. 89 

Atypical Employment Relationships: The Position in Cyprus 137 (i)  Equal Treatment Temporary agency workers are given access to the amenities or collective facilities in the user undertaking, in particular any canteen, child care facilities and transport services, under the same conditions as workers employed directly by the undertaking, unless the difference in treatment is justified by objective reasons. However, ‘objective grounds’ are not defined in this Law.97 G. Information and Consultation/Representation of Temporary Agency Worker The Temporary Agency Worker Law provides for representation of temporary workers. Temporary workers can be represented by the union engaged in the business of the user undertaking, without limitation of any right and as provided in the Trade Union Law, as may be amended or replaced.98 The temporary workers are counted as part of the temporary employment business, when calculating the numerical limits above which workers’ representative bodies provided for in EU and national law should be recommended, and any applicable collective bargaining agreements.99 The employees also count as part of the indirect employer company, for health and safety in the calculation of numerical thresholds above which workers’ representative bodies may be provided for under EU and national law. The user undertaking is required to provide appropriate information about the use of temporary employment.100 H. Strikes It is prohibited to employ an employee from a temporary work agency on a temporary contract to replace employees exercising their right to strike,101 or where the user undertaking during the previous 12 months made redundancies in the same area of specialisation, except to replace sick employees

97 

Art 18(4) of the Temporary Agency Worker Law. Art 20(4) of the Temporary Agency Worker Law. 99  Art 20(1) of the Temporary Agency Worker Law. 100  Art 20(3)(a) of the Temporary Agency Worker Law. 101  Art 16(2)(a) of the Temporary Agency Worker Law. 98 

138  Nicos Trimikliniotis and Corinna Demetriou or employees whose contract has been suspended or an employee who has been dismissed by reason of redundancy and does not wish to work again in the company or institution.102 I.  Collective Bargaining Agreements Deviating from Statutory Provisions It is not possible for collective bargaining to deviate from the statutory ­provisions with regard to temporary agency work.103 Only more favourable provisions are possible.

102  103 

Art 16(2)(b) of the Temporary Agency Worker Law. Art 18(3) of the Temporary Agency Worker Law.

6 Atypical Employment Relationships: The Position in the Czech Republic PETR HŮRKA

I. INTRODUCTION

I

N THE CZECH REPUBLIC, an employment relationship (pracovní poměr) is established by an employment contract (pracovní smlouva) and represents a framework within which the employee performs dependent work for the employer. Unless agreed otherwise, the employment relationship is concluded for an indefinite period (doba neurčitá) and for full-time work (plný úvazek). Unless agreed otherwise, the employer cannot assign the employee (not even temporarily) to perform work for a different entity. Apart from this type of work, atypical employment relationships exist as well. Within the scope of the employment relationship, it is possible to agree that the duration of the employment relationship will only be for a certain period of time (fixed-term work—pracovní poměr na dobu určitou), that the employee will only work part time (pracovní poměr s kratší pracovní dobou) or that the employee will be assigned to a different entity (temporary agency work—agenturní zaměstnávání). As these atypical employment relationships are usually less favourable for employees because they offer less protection and stability of employment, Czech law includes mechanisms to restrict contractual freedom and specifies boundaries as regards the extent to which these atypical employment relationships may exist. These mechanisms are described in detail in this chapter. Apart from the employment relationship, two other forms of basic work relationships (základní pracovněprávní vztah) exist. Under Czech law, it is possible to also conclude an agreement to complete an assignment (dohoda o provedení práce) or an agreement to perform work (dohoda o pracovní činnosti). These two agreements are agreements to work outside the scope of employment (dohody o pracích konaných mimo pracovní poměr) and are bilateral legal acts that result in the establishment of a basic employment relationship between the employer and the employee.

140  Petr Hůrka Where natural persons are employed under an employment relationship, a legal framework needs to be established for the performance of work, specifying its nature, duration and implication. Agreements to work outside the scope of employment allow the parties to enter into an employment relationship for a short, limited period of time. The subject-matter of such an employment relationship is a specific assignment. In this type of employment relationship, the principle of the employee as subordinate to the employer in terms of the organisation of work does not apply. Given the particular nature of the legal relationship, the parties’ contractual will is significantly strengthened in terms of their rights and obligations as well as their remuneration. II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements The term of employment is key to any employment relationship. The Labour Code of the Czech Republic1 (‘Labour Code’ or ‘LC’) does not provide a definition for the employment relationship. According to employment theory,2 fixed-term work refers to an employment relationship under which, in conformity with legal acts, the contracting parties restrict the duration of their relationship based on an objective legal fact that is independent of the contracting parties’ will. The parties’ agreement on the duration of the employment relationship is usually laid down in a written employment contract, but it may also be set down in a separate contract or in an annex to the employment contract. The difference between an employment contract of indefinite duration and a fixed-term employment contract is that for the latter, the date of termination and the reason therefore (lapse of the agreed period) are known in advance, although fixed-term employment relationships can be terminated earlier for the same reasons that employment relationships of indefinite duration can be terminated. In accordance with Council Directive 1999/70/EC concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, the Labour Code allows employers to make full use of fixed-term contracts if specific sectoral requirements are met, while at the same time preventing the abuse of fixed-term contracts by concluding successive fixed-term contracts without justified reason or by extensions of fixed-term employment relationships between the same parties (so-called chains of fixed-termed employment contracts). 1 

Act No 262/2006 Coll, the Labour Code, as amended (zákoník práce). P Hůrka and J Jakubka, in P Hůrka et al, The Labour Law (exercise book) (Pracovní právo (učebnice)), 2nd edn (Plzeň: Nakladatelství Aleš Čeněk, 2014). 2 

The Position in the Czech Republic 141 The duration of an employment relationship concluded for a fixed term can be specified in the contract as weeks, months or years or in terms of the duration of the specific work assignment. The duration of the contract can also be based on other objectively ascertainable facts that cannot be determined by a specific date, ie when the parties are uncertain upon concluding the employment contract when precisely the employment relationship will end. Nonetheless, the contract must clearly indicate the parties’ will that the employment relationship is of limited duration, even though they are uncertain about when it will actually end. B.  Lawful Stipulation of the Contractual Terms According to Section 39(1) of the LC, an employment relationship is concluded for an indefinite period, unless a fixed-term contract is expressly agreed. When a fixed-term contract is agreed, the restrictions set out in Section 39(2)–(6) of the LC must be complied with. The main advantage of fixed-term work is the fact that it gives the parties the opportunity to test the employment relationship, which will end with the lapse of the agreed period unless the parties agree to extend the employment relationship. The LC does not specify or limit the possibilities for determining fixedterm work. A fixed-term employment relationship can be determined by a period of time (eg three years), an exact date (eg until 31 December 2016), the occurrence of an event (eg until a certain building is constructed) or by the duration of a legal fact. In this regard, the Supreme Court has already ruled that the duration of an employment relationship concluded for a fixed term can be agreed not only subject to a specific time by specifying the time period in weeks, months or years, or by stating the duration of the work assignment, but also on the basis of other objectively ascertainable facts that cannot be restricted by a specific date, the actual duration of which the parties are uncertain about when concluding the employment contract and precluding any doubts about when the fixed-term employment relationship will end following the lapse of the agreed term. If an employment relationship has been concluded until the return of an employee from maternity leave, for a period not exceeding the child’s third birthday, the employment relationship will be conclusively presumed to be an employment relationship concluded for a fixed term.3

However, If the term of duration of an employment contract is not determined by a specific date, it must be determined in another way precluding any doubts about

3 

Judgment of the Supreme Court, file No 21 Cdo 1990/2000, dated 5 September 2001.

142  Petr Hůrka when the fixed-term employment relationship will end following the lapse of the agreed term.4

If the parties do not expressly agree on a fixed term of the employment relationship in the employment contract, the employment relationship is deemed to have been concluded for an indefinite period.5 A fixed-term contract can be concluded between any employee and employer, provided the following requirements are met: —— A fixed-term contract can be concluded or extended for a maximum period of three years.6 —— A fixed-term contract can be extended or a recurring contract concluded a maximum of twice (ie a total of three separate contracts can be concluded for fixed-term work, each lasting a maximum of three years).7 This restriction does not apply if a period of at least three years has passed from the date the initial fixed-term contract ended. The legislation is based on the ‘3 × 3’ principle, ie the possible duration period of each employment relationship is a term of up to 3 × 3 years; however, at the same time, the number of such employment relationships and their extensions is restricted to a maximum of three years, regardless of the duration of the employer’s need for the fixed-term employee.8 If an employment relationship is to be concluded for a period of, for example, three months, the same two parties may enter into a new employment relationship for a fixed term or extend the current employment relationship only two additional times; each of these options can be concluded for a period of three years.9 The above rules also apply to substitutes of absent employees (eg due to illness, maternity or parental leave) without exceptions. Therefore, if an employer wishes to employ a substitute for an absent employee, the fixedterm contract may be agreed for the duration of the employee’s absence, but even in this case, the fixed-term contract may not exceed three years. If the employee is absent for more than three years (eg due to maternity leave and subsequent parental leave), the fixed-term contract can be extended, however, bearing in mind that it can only be extended twice. This regulation becomes more complicated when a contract of indefinite duration cannot be concluded (for example, for seasonal jobs, temporary work, grant and project work) due to serious operational reasons or owing to the special nature of the job. The fixed-term employment contract

4 

Judgment of the Supreme Court, file No 21 Cdo 512/2001, dated 21 March 2002. s 39(1) of the LC. s 39(2) of the LC. 7  s 39(2) of the LC. 8  s 39(2) of the LC. 9  s 39(2) of the LC. 5  6 

The Position in the Czech Republic 143 cannot exceed the three-year period, although a recurring contract can be concluded or it can be extended twice. Section 39(4) of the LC allows for exceptions to the rule when the employer has serious operational reasons or reasons related to the special nature of the job and the employer therefore cannot be justifiably required to enter into a contract of indefinite duration. In that case, the employer may introduce his/her own rules that deviate from the ‘3 × 3’ principle, provided that those rules are reasonable in view of the above grounds and that a written agreement exists between the employer and the trade union (or that a written internal regulation is issued by the employer if there are no active trade unions at the employer) providing for: —— A more detailed description of the serious operational reasons, or reasons related to the special nature of the job; —— Different rules adopted by the employer on the conclusion and succession of a fixed-term contract; —— The employer’s employees to whom the different regulations will apply; —— The duration for which the agreement is concluded or the internal regulation issued for it. It will therefore continue to depend solely on the employer (in agreement with the trade union, if applicable) how serious operational reasons and/or the special nature of the work are defined that will justify an exception to the application of the rule ‘3 × 3’. There may be reasonable grounds to believe that the cases do not cover seasonal work, sporadic or transitional work assignments or various financially or time-limited projects; but there may also be situations when a serious operational reason may be the replacement of a temporarily absent qualified worker, to prevent obstructions to work, ie to ensure the smooth and unrestricted running of the employer’s operation by replacing absent employees on a temporary and operational basis. Thus, each case needs to be evaluated individually and the employer must also bear in mind the formal requirements laid down by the Law when applying the exception. Should the parties enter into a fixed-term employment relationship in contravention of the above-stated conditions, the employee has the right to inform the employer prior to the lapse of the agreed term of employment that s/he insists on remaining employed with the employer.10 If the employer breaches these employment obligations, the relevant state body (State Labour Inspection Office; Státní úřad inspekce práce) may fine the employer up to CZK 2,000,000; however, such a change is not deemed a statutory change of the employment relationship into one of indefinite duration. Only if the employee informs the employer prior to the lapse of the agreed term of employment that s/he insists on remaining employed with the 10 

s 39(5) of the LC.

144  Petr Hůrka employer and initiates court proceedings to determine that the employment relationship has been agreed for an indefinite duration, will the employment relationship be transformed into one of indefinite duration in accordance with a corresponding court decision.11 The LC provides space for the employee to exercise his/her will to change the course of his/her employment relationship through a legal act. Should a dispute arise between the employer and the employee regarding the employee’s notice, both the employer and the employee may file a claim in court within a two-month period from the date the employment relationship should have ended based on the lapse of the agreed period.12 C.  Termination/End of Fixed-Term Contracts A fixed-term employment contract terminates upon the lapse of the period for which it was agreed. It thus terminates with the occurrence of a legal event, namely the lapse of the given period, without either party initiating any legal act. Fixed-term employment may be concluded for a specific period (such as six months), up to a specific date (31 December 2016, for example), or for a given purpose (temporary absence of an employee which impedes the work-flow or the performance of a specific task, for example). When any of the above events occur, the employee’s employment relationship terminates without the employer having to give notice.13 The lapse of the agreed term results in the termination of all employment relationships agreed in the above way, ie the law does not provide any legal protection to any category of fixed-term workers. There is no protection against the ‘march of time’. The only exception is if the employee continues to perform work after the expiry of the agreed term with the knowledge of the employer. In that case, the employment relationship is deemed to have been concluded for an indefinite duration.14 D.  Rights and Status of Fixed-Term Worker (i)  Equal Treatment Employees working under a fixed-term employment contract have the same rights as employees who work under a contract of indefinite duration.

11 

s 39(5) of the LC. s 39(5) of the LC. ss 48(2) and 65(1) of the LC. 14 s 65(2) of the LC. In case law, see judgment of the Regional Court in Ostrava, file No 12 Co 478/61 of 14 December 1961, or judgment of the Supreme Court file No 21 Cdo 2080/2001 of 21 October 2002. 12  13 

The Position in the Czech Republic 145 The only exception is probation periods, which in the case of fixed-term employment relationships may not be longer than half of the term of the entire specified duration of the employment relationship.15 Under Czech law, the employer has the obligation to treat all employees equally.16 Any form of discrimination is prohibited.17 This rule also applies to fixed-term workers. In case of discrimination, the fixed-term worker may claim in court that the employer’s discriminatory behaviour should cease, that its consequences be remedied and that s/he receive adequate compensation,18 including monetary compensation.19 However, differentiated treatment arising from the nature of occupational activities, where such differentiated treatment is a substantial requirement for the work performance, is not considered discrimination; the reason for this derogation must be legitimate.20 (ii)  Employment Opportunities Fixed-term employment relationships and employment relationships of indefinite duration are treated equally. The procedure for termination of both types of employment is also the same. The employer, however, has the obligation to inform fixed-term workers about any available opportunities for appropriate work of indefinite duration.21 (iii)  Other Matters Apart from the rules discussed above, no special rules exist under Czech law regulating the rights and obligations of fixed-term workers. As mentioned above, fixed-term workers are treated like permanent employees, apart from the fact that their employment relationship terminates automatically with the lapse of the agreed period. E.  Information and Consultation Employees who have entered into either a fixed-term employment relationship or one of indefinite duration have the right to information and consultation. 15  s 35 LC, eg if an employment relationship is concluded for a fixed term of four months, the trial period cannot be longer than two months. 16  s 16(1) of the LC. 17  s 16(2) of the LC. 18  s 10(1) of Act No 198/2009 Coll, the Antidiscrimination Act, as amended (antidiskriminační zákon). 19  s 10(2) of Act No 198/2009 Coll, the Antidiscrimination Act, as amended. 20  s 16(3) of the LC. 21  s 279(1)(g) of the LC.

146  Petr Hůrka F.  Specific Provisions The statutory restrictions on fixed-term work according to the provisions of Section 39(2)–(5) of the LC do not apply to employment contracts concluded between a temporary work agency and a temporary agency worker for work at a user undertaking, where the ‘temporary assignment’ implies temporal restriction of this form of employment.22 G.  Collective Bargaining Agreements Deviating from Statutory Provisions Legislation does not allow collective bargaining agreements to deviate from the applicable rules on the conclusion of fixed-term employment ­relationships.23 The LC prefers an individual manifestation of will between the employer and the employee to enter into an employment relationship— even for a fixed period of time—within the framework of the terms and conditions permitted by law, and prohibits their representatives from restricting the principle of contractual freedom collectively. However, this does not apply to situations in which it is possible to enter into a fixed-term employment relationship exceeding three years or more than three times because of serious operational reasons or reasons relating to the special nature of the job. Should this be the case, the exception must be negotiated in agreement with the trade union (see above). III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements There is no detailed definition of part-time work in the LC. Section 80 of the LC merely states that Shorter working hours than stated in Section 79 may be agreed only between the employer and the employee. The employee is in that case entitled to receive a ­salary that corresponds to the agreed shorter working hours.

Part-time work is not defined in the literature, either. Expert opinion only states that ‘shorter working hours are not the standard weekly working hours.’24 It should be noted that under Section 79(1) and (2) of the LC, the standard (regular) working hours are 40 hours per week or for certain employees 22 

s 39(6) of the LC. ss 39(1), 23(1), 363(1) and 4a(1) and (3) of the LC. 24  M Štefko, in M Belina, L Drápal et al, The Labour Code. Commentary (Zákoník práce. Komentář), 2nd edn (Prague, CH Beck, 2015) p 526. 23 

The Position in the Czech Republic 147 (such as employees on a three-shift or two-shift work schedule), they are 38.75 or 37.5 hours per week. Part-time employment can thus be defined as agreed weekly working hours that are shorter than the standard weekly working hours. This principle applies regardless of whether part-time employment is concluded for 15 hours per week or 35 hours per week. There is only one special formal requirement for part-time work, namely that an individual agreement is concluded between the employer and the employee specifying the agreed shorter weekly working hours. Such an agreement may be included in the original employment contract or by amendment to the employment contract, or even by a separate agreement.25 The agreement on shorter working hours may also be concluded temporarily, if so agreed by the parties.26 The employee is only entitled to unilaterally require shorter working hours in special cases described below. The employer cannot unilaterally require an employee to work part time, even if the employer would thereby be complying with a previous request by the employee27 and the agreement on shorter working hours cannot be included in a collective bargaining agreement.28 The employer may unilaterally introduce a different scheme, namely a reduction of working hours in general. Such a scheme does not, however, result in a reduced salary, ie the employees must still receive their full salary, even though the working hours’ scheme has been reduced. In practice, this provision is used in cases in which the employer no longer needs the employees to work full weekly working hours, but only, eg for 37.5 hours or 35 hours per week due to a change in the organisation of work, in shifts, etc. The employer is entitled to unilaterally introduce such a scheme, but such a reduced scheme does not have any impact on the employees’ salaries in order to protect the employees’ rights. B.  Opportunities for/Right to Part-Time Work As described above, part-time employment is based on an agreement between an individual employer and an individual employee. It is therefore mostly a question of whether the employer needs a part-time employee and whether the employee wants to work part time. In some cases, the parties

25  V Bognáróva in M Belina et al, Labour law (Pracovní právo), 6th edn (Prague, CH Beck, 2014) p 208. 26  P Hůrka in P Hůrka et al, The Labour Code and related provisions of the Civil Code with detailed commentary as of 1 January 2014 (Zákoník práce a související ustanovení občanského zákoníku s podrobným komentářem k 1. 1. 2014), 3rd edn (Olomouc, ANAG, 2014) p 250. 27  M Štefko in M Belina, L Drápal et al, The Labour Code. Commentary, 2nd edn (Prague, CH Beck, 2015) p 526. 28 V Bognáróva in M Belina, L Drápal et al, The Labour Code. Commentary, 2nd edn (Prague, CH Beck, 2015) p 1000.

148  Petr Hůrka may wish to introduce a part-time employment scheme to suit their needs— eg an employee who has reached retirement age and no longer wants to work full time, but the employer does not want to lose a skilled and reliable employee and they therefore agree on a part-time employment scheme. As described above, part-time employment is based on an agreement and neither party may force the other into a part-time employment scheme. ‘The employee does not have a right to require part-time work’,29 but a very important exception to this rule exists: according to Section 241(2) of the LC, where an employee who is taking care of a child that is under 15 years of age, or a pregnant employee, or an employee who proves that he or she is mostly on his or her own caring for a largely or fully incapacitated individual, requests to work part-time or requests some other adjustment to his or her weekly working hours, the employer has the obligation to comply with such request, unless this is impossible for serious operational reasons. The categories of employees cited above have the right to request parttime employment or an adjustment to their working hours, and the employer has the obligation to comply with that request, unless serious operational reasons prevent the employer from doing so. It is also possible to combine both rights, ie to request both part-time employment and an adjustment to working hours.30 The case law of the Supreme Court has already established that ‘the request of the employee may only be rejected if agreement to the request would prevent, disrupt or seriously jeopardise the due course of the employer’s business’.31 The case law is, however, ambiguous when it comes to assessing whether serious operational reasons exist in cases where the employer could resolve these by hiring a new employee. Initially, the Supreme Court ruled that ‘the employer cannot be justly required to employ … another employee just to comply with the request of an employee to work part time or adjust his or her working hours.’32 In recent case law, though, the Supreme Court ruled that ‘a solution (to the serious operational reasons) could also be the hiring of a new part-time employee within the scope in which the employee wants his/her working hours to be reduced.’33 To summarise, while most employees do not have the right to request to work part time, and part-time employment may only be established by agreement between the employer and the employee, there is a group of employees who are entitled to such a right, which is very broad as it is very 29  M Štefko in M Belina, L Drápal et al, The Labour Code. Commentary, 2nd edn (Prague, CH Beck, 2015) p 527. 30 V Bognáróva in M Belina, L Drápal et al, The Labour Code. Commentary, 2nd edn (Prague, CH Beck, 2015) p 1001. 31  Judgment of the Supreme Court dated 17 December 2003, file No 21 Cdo 1561/2003. 32  Judgment of the Supreme Court dated 5 June 2007, file No 21 Cdo 612/2006. 33  Judgment of the Supreme Court dated 9 July 2014, file No 21 Cdo 1821/2013.

The Position in the Czech Republic 149 difficult for the employer to prove that serious operational reasons exist preventing compliance with the employee’s request. C.  Opportunities for/Right to an Extension of Working Time Very similar rules apply to the extension of working time to full-time employment. If the agreement on part-time employment was concluded for a limited time only, the working time automatically resumes as full-time employment with the lapse of the agreed period. If, however, the agreement on part-time employment was concluded for an indefinite period, it may only be modified by agreement between the parties, and neither of the parties may be coerced into concluding such an agreement.34 According to expert opinion, it is not possible to agree that the employer can cancel the agreement on part-time employment at any time, as this would constitute a waiver of the employee’s rights, which is prohibited by the LC.35 In the case of an employee who has requested to work part time based on the provisions of Section 241(2) of the LC, the situation is different: —— If serious operational reasons arise at the employer’s undertaking, which did not exist at the time of the employee’s request, the employer may cancel the decision to fulfil the employee’s request.36 The employee is then required to start working full time again. The employee would otherwise be breaching his/her contractual obligations that arise out of the work s/he performs and could be dismissed for such conduct; —— The employee may later request to increase his/her working hours or request another type of adjustment of his/her working hours, but serious operational reasons on the part of the employer must be taken into account.

D.  Rights and Status of Part-Time Worker (i)  Equal Treatment The LC promotes equal treatment of employees and all employers are required to ensure equal treatment of all employees as regards their working conditions, remuneration for work, provision of other monetary and 34  M Štefko in M Belina, L Drápal et al, The Labour Code. Commentary, 2nd edn (Prague, CH Beck, 2015) p 527. 35  M Štefko in M Belina, L Drápal et al, The Labour Code. Commentary, 2nd edn (Prague, CH Beck, 2015) p 527, and s 4a(4) of the LC. 36  Judgment of the Supreme Court dated 9 July 2014, file No 21 Cdo 1821/2013.

150  Petr Hůrka non-monetary benefits, etc.37 This fully applies to part-time employees as well, who must be treated equally, aside from the differences related to the special nature of part-time work (ie their salary, benefits and other entitlements may be reduced pro rata in comparison to full-time employees). Accordingly, part-time employees are entitled to at least four weeks of paid leave (however, their ‘week’ of leave is reduced pro rata depending on their weekly working hours);38 in case of dismissal on grounds of redundancy or certain health grounds, they are entitled to severance pay (odstupné) in at least the statutory amount (which is made up of a multiplication of their average monthly earnings; průměrný měsíční výdělek).39 The statutory amount in case of redundancy varies between one and three times average monthly earnings, depending on the length of the employment relationship; in case of dismissal on health grounds, the statutory amount is 12 times average monthly earnings. In case of work on weekends or at night, the part-time employee is entitled to receive the same salary premiums as full-time employees, etc. (ii)  Dismissal Protection There are no differences between full-time and part-time employees in terms of dismissal protection. Under Czech law, an employment relationship may only be terminated: —— By agreement between the parties—this may be concluded with a fulltime as well as a part-time employee; —— By notice of termination, which may be given by either party. The employee does not have to state a termination ground in the notice. The employer may only terminate the employment by notice on grounds specified in Section 52 of the LC. These generally include closure or relocation of the employer, redundancy of the employee, incapacity to perform work due to health reasons, and non-compliance with work requirements, including poor work performance or breaches of work discipline. In the case of dismissal based on a notice of termination, the employment terminates with the lapse of the notice period. The notice period comprises at least two months and must be the same for both the employee and the employer; —— By immediate termination, notice of which may be given by either party, but only on the grounds specified in the LC. In general, the employee may only terminate the employment relationship immediately in case of 37 

s 16(1) of the LC. Bognáróva in M Belina, L Drápal et al, The Labour Code. Commentary, 2nd edn (Prague, CH Beck, 2015) p 928. 39  J Doležílek in M Belina, L Drápal et al, The Labour Code. Commentary, 2nd edn (Prague, CH Beck, 2015) p 419. 38 V

The Position in the Czech Republic 151 non-payment of his/her salary or due to health reasons preventing him/ her from continuing to perform the work without serious risk to his/her health. The employer may only terminate the employment relationship immediately for especially gross breaches of work discipline or in case of conviction of the employee of certain crimes and subsequent unconditioned imprisonment for a certain period (at least six months or one year, depending on the nature of the crime); —— By cancellation during the probation period, which may be notified by either party without having to state grounds for the cancellation. The above applies regardless of whether the employee is a part-time or fulltime worker. As described above, in certain cases, the employee is entitled to receive severance pay. This again applies to both part-time and full-time employees. Section 53 of the LC protects certain groups of employees against dismissal. These include eg pregnant employees, employees on maternity leave, employees on parental leave, employees who are temporarily sick, etc. These employees may only be dismissed on restricted grounds (such as the closure or relocation of the employer or for the most serious breaches of work discipline). Such protection also applies to both part-time and fulltime employees. If a part-time employee is discriminated against by the employer compared to a full-time employee, s/he has the right to protection against discrimination, but no special set of rules exists that applies exclusively to part-time workers. (iii)  Other Matters No other special regulations distinguishing part-time and full-time ­employees exist. E.  Information and Consultation The employer’s information and consultation duty is described in Section 278 et seq of the LC. The employer must fulfil all of his/her information and consultation duties towards all employees, ie including both full-time and part-time employees. The LC eases the restrictions for employers who employ fewer than 10 employees. They do not have to inform and consult with their employees on certain issues. There is, however, no rule on how to count part-time ­employees—whether based on the scope of their employment or not. Therefore, it can be concluded that for the purpose of calculating the total number of employees, each employee counts as one (1), regardless of whether s/he is a full-time or part-time employee.

152  Petr Hůrka F.  Other Part-Time Arrangements According to Section 81(1) of the LC, the ‘allocation of working time is determined by the employer.’ This provision is not mandatory, however, and the employer may agree with the employee on a specific allocation of working time. The Supreme Court has already ruled that while it is not a requirement to include the allocation of working time in the employment contract, the parties to the employment contract may agree on other working and salary conditions if they so wish. Provisions regarding eg salary, the probation period and the duration of the employment relationship are conditions that may be agreed individually, as is the allocation of working time, if the parties so wish. Such agreed conditions may not be unilaterally changed by the employer or employee. Such conditions can only be modified by agreement between the parties on an amendment to the agreed working conditions.40 Certain groups of employees may also request an allocation of working time—see above, section III.B.—as these are the same groups of employees who under Section 241(2) of the LC may request part-time employment under the same conditions. As regards an extension of working hours, see above, section III.C. One significant difference between full-time and part-time employees is that the employer cannot order part-time employees to work overtime.41 In the case of part-time employees, only work that exceeds the standard (normal) weekly working hours would be treated as overtime. In other words, the employer and the part-time employee may agree that the employee will work for more hours than the initially agreed working hours, but such work will not be treated as overtime (the employee is not entitled to a salary premium or compensatory time off). Only if the part-time employee’s extra working hours exceed the standard weekly working hours is s/he entitled to a salary premium or compensatory time off. On-call work is strictly prohibited by the LC. According to Section 38(1) (a) of the LC, the employer is ‘required to allocate work to the employee in accordance with the employment contract’. When an employer does not allocate work to the employee within the agreed or within the statutory weekly working hours, it constitutes an obstacle to work on the part of the employer and the employee is entitled to claim compensation of salary amounting to his/her average earnings.42

40 

Judgment of the Supreme Court dated 10 May 2011, file No 21 Cdo 1395/2010. P Hůrka in P Hůrka et al, The Labour Code and related provisions of the Civil Code with detailed commentary as of 1 January 2014, 3rd edn (Olomouc, ANAG, 2014) p 247. 42  s 208 of the LC, and P Hůrka in P Hůrka et al, The Labour Code and related provisions of the Civil Code with detailed commentary as of 1 January 2014, 3rd edn (Olomouc, ANAG, 2014) p 163. 41 

The Position in the Czech Republic 153 ‘Shared workplace’ or job-sharing is not prohibited by the LC but there are no special provisions regulating such a working scheme. It is therefore possible for the employer to hire two or more part-time employees for the same job and let them share the position, but in practice, the employer would eventually be confronted with the lack of special provisions on the allocation of working hours, the possibility to order the employees to work for more than the agreed working hours in case of absence of other employee(s) in the shared position, liability for damages, etc.43 G.  Collective Bargaining Agreements Deviating from Statutory Provisions The above described provisions of the LC are mandatory and collective bargaining agreements cannot deviate from them.44 Therefore, there are no collective bargaining agreements that deviate from the described statutory provisions on part-time employment. IV.  TEMPORARY AGENCY WORK

A.  Legal Definitions/Formal Requirements The legal definition of temporary agency work (agenturní zaměstnávání) is contained in Section 307a of the LC. According to this section, dependent work shall also involve those cases when an employer, on the basis of a licence issued pursuant to other statutory provisions, temporarily assigns an employee to perform work at another employer’s workplace in accordance with a clause in that employee’s employment contract or agreement to perform work; the employment agency undertakes to arrange for temporary work and the employee undertakes to perform such work in accordance with the instructions given to him/her by the user undertaking, which acts on the basis of an agreement for the temporary assignment of the employment agency’s employee concluded between the employment agency and the user.

Temporary agency work refers to the hiring out of workers by a temporary work agency (agentura práce) to a user undertaking (uživatel). Apart from the temporary agency work, the Labour Code also regulates ‘temporary assignments’ (dočasné přidělení), which allows employers who do not hold a temporary work agency licence (povolení ke zprostředkování zaměstnání) to temporarily assign their employees to another employer. In such cases, the temporary employer is not permitted to pay remuneration for temporary 43 M Vrajík, Job sharing in the Czech Republic and Slovakia. (Dělené pracovní místo v České republice a Slovenské republice) Praktická personalistika 07-08/2016, pp 10–14. 44  ss 23(1), 80, 4a(1) and (2) of the LC.

154  Petr Hůrka assignments. The assigning employer is only entitled to reimbursement of costs and expenses, such as the employee’s salary and travel expenses.45 No special connection or link needs to exist between the assigning and the temporary employer, such as eg belonging to the same group of corporations. However, the fact that the ‘temporary assignment’ may not be concluded for profit usually results in the provision being mainly used for the secondment of workers within a group of corporations. Temporary agency work is a ‘form of mediation of employment which may be exclusively provided by temporary work agencies which must hold a licence issued by the General Directorate of the Labour Office (Generální ředitelství Úřadu práce).’46 Only a natural or legal person who meets the conditions set out in Section 58 et seq of the Czech Act on Employment47 (the ‘Act on Employment’ or ‘EA’) may operate as a temporary work agency.48 The following formal requirements derive from the legal definition of temporary agency work: —— Temporary agency work is a trilateral relationship between the temporary work agency, the user undertaking and the temporary agency worker (dočasně přidělený zaměstnanec);49 —— An employment contract or agreement to perform work between the temporary work agency and the temporary agency worker must be concluded, allowing the temporary work agency to assign the employee to perform work at the user undertaking;50 —— A contract must be concluded between the temporary work agency and the user undertaking based on which the parties agree that the temporary work agency will assign its employees to perform work at the user undertaking;51 —— The temporary work agency must hold the proper licence, issued by the General Directorate of the Labour Office.52

45 

s 43a of the LC. Pichrt in M Belina, L Drápal et al, The Labour Code. Commentary, 2nd edn (Prague, CH Beck, 2015) p 1193. 47  Act No 435/2004 Coll, on employment, as amended (zákon o zaměstnanosti). 48  P Hůrka in P Hůrka et al, The Labour Code and related provisions of the Civil Code with detailed commentary as of 1 January 2014, 3rd edn (Olomouc, ANAG, 2014) p 617. 49  P Hůrka in P Hůrka et al, The Labour Code and related provisions of the Civil Code with detailed commentary as of 1 January 2014, 3rd edn (Olomouc, ANAG, 2014) p 617. 50  J Pichrt in M Belina, L Drápal et al, The Labour Code. Commentary, 2nd edn (Prague, CH Beck, 2015) p 1201. 51  J Pichrt in M Belina, L Drápal et al, The Labour Code. Commentary, 2nd edn (Prague, CH Beck, 2015) p 1201. 52  P Hůrka in P Hůrka et al, The Labour Code and related provisions of the Civil Code with detailed commentary as of 1 January 2014, 3rd edn (Olomouc, ANAG, 2014) p 617. 46  J

The Position in the Czech Republic 155 B.  Registrations, Licensing, Financial Guarantees, etc As mentioned above, only a properly licensed natural person or legal entity may operate as a temporary work agency according to Czech law. The licensing process and conditions are described in Section 58 et seq of the EA. Hiring out employees without a proper licence is an administrative breach (tort) and can be punished by a fine by up to CZK 2,000,000 (approximately EUR 74,000).53 The temporary agency work licence is issued by the General Directorate of the Labour Office. The administrative proceedings for a licence are initiated upon request of the applicant.54 The applicant must fulfil the following conditions: —— The applicant has reached 18 years of age; —— The applicant has full legal capacity; —— The applicant has full integrity/an impeccable record (in the sense of not having been convicted of a wilful criminal offence or a criminal offence against property); —— The applicant is professionally competent; —— The applicant has a residence or delivery address in the Czech Republic.55 In the case of a legal entity, the above conditions must be fulfilled by its responsible representative.56 The applicant must furthermore pay a fee amounting to either CZK 5,000 (approximately EUR 185) or CZK 10,000 (approximately EUR 370), depending on whether the licence will also authorise the applicant to provide temporary work agency services for foreigners or to hire out local employees abroad.57 Another requirement for being granted a licence to provide temporary work agency services is the affirmative and binding opinion of the Ministry of Interior, issued on the basis of a request of the General Directorate of the Labour Office.58 The Ministry of Interior is obliged to deliver its binding opinion within 15 days upon receiving such request from the General Directorate of the Labour Office.59 When preparing its binding opinion, the

53 

s 139(1)(b), (3)(b), s 140(1)(b) and (4)(b) of the EA. Steinichová, The Act on Employment—commentary (Zákon o zaměstnanosti— komentář) (Prague, Wolters Kluwer, 2010), available in ASPI: Automatic System of Legal Information. 55  s 60(2)–(4) of the EA. 56  s 60(10) of the EA. 57  s 61(8) of the EA, Item 9 of the Annex to the Act No 634/2004 Coll, on administrative fees, as amended, and L Steinichová, The Act on Employment—commentary (Prague, Wolters Kluwer, 2010), available in ASPI: Automatic System of Legal Information. 58  s 60a(1) of the EA. 59  s 60a(3) of the EA. 54 L

156  Petr Hůrka Ministry of Interior shall evaluate the issuance of the permit for hiring out services from the perspectives of public order, security and non-infringement of third-party rights.60 If all the above conditions are fulfilled, the General Directorate of the Labour Office will issue a temporary work agency licence. The licence is granted for a maximum of three years and can be issued repeatedly.61 The licence can be revoked by the General Directorate of the Labour Office in case of certain breaches of law by the temporary work agency.62 Apart from the administrative fee, no financial guarantees need to be fulfilled prior to the issuance of a temporary work agency licence, but the temporary work agency that was granted the licence is required to take out a suretyship insurance in case of bankruptcy, on the basis of which the temporary agency worker is entitled to compensation should the employment agency fail to pay him his salary due to bankruptcy.63

The insurance amount must suffice to cover the payment of salaries up to three times the average monthly earnings of all employees who perform or will perform temporary agency work for a user undertaking.64 If the temporary work agency fails to take out proper insurance or fails to notify the General Directorate of the Labour Office, the temporary work agency licence may be revoked.65 C. Relationship between Temporary Agency Worker and Temporary Work Agency (i)  Fixed-term and Part-time Contracts As mentioned above, an employment relationship must exist between the temporary agency worker and the temporary work agency, based either on an employment contract or an agreement to perform work. There are no statutory limitations regarding the duration of the employment relationship or whether it must be agreed for full-time or part-time work. It can therefore be concluded that it is possible for a temporary work agency to employ and assign a worker on a fixed-term or on a part-time contract. Section 39 of the LC contains provisions regulating fixed-term employment relationships. The general rules are as follows: 60 

s 60a(1) of the EA. s 62(3) of the EA. 62  s 63(2) of the EA. 63  s 58a(1) of the EA. 64  s 58a(2) of the EA. 65  s 63(2)(d) of the EA and L Steinichová, The Act on Employment—commentary (Prague, Wolters Kluwer, 2010), available in ASPI: Automatic System of Legal Information. 61 

The Position in the Czech Republic 157 —— A fixed-term employment relationship between the same parties may not exceed three years;66 —— A fixed-term employment relationship between the same parties may be recurrently agreed no more than twice;67 —— If serious operational reasons exist on the employer’s part for which the employer cannot be justly required to offer the employee employment of indefinite duration, the employer may divert from the above rules either in a written agreement with the trade unions or by a written internal regulation (if no trade unions are active at the particular employer). Such an agreement/regulation must, however, include details of the serious operational reasons, rules introduced by the employer, the range of employees subject to these diverging rules and the terms of the agreement/regulation.68 However, under Section 39(6) of the LC, the above provisions ‘do not apply to the employment contract establishing a fixed-term employment relationship between the temporary work agency and a worker for the purpose of performing work at a user undertaking.’ In other words, the temporary work agency may agree with the workers hired to perform temporary agency work to conclude a fixed-term employment relationship without any limitations.69 (ii)  Rights and Obligations/Liability The rights and obligations of the temporary agency worker and the temporary work agency are modified by Section 309(1) of the LC, according to which during a period of temporary assignment of an employee (by an employment agency, ie his/her employer) to perform work at the location of the user undertaking, the employee shall be assigned work-related tasks and his/her work shall be organised, managed and supervised by the user undertaking, which shall create favourable working conditions for the said employee, including occupational safety and health protection. However, the user undertaking may not make any contractual declarations (právní jednání) in relation to the employee in the name and on behalf of the employment agency, such as eg to change or terminate the employment relationship, agree on a different type of work, agree on a change of workplace or modify the employment contract from a full-time to a part-time one.

66 

s 39(2) of the LC. s 39(2) of the LC. s 39(4) of the LC. See section II.B. above. 69  M Belina in M Belina, L Drápal et al, The Labour Code. Commentary, 2nd edn (Prague, CH Beck, 2015) p 240. 67  68 

158  Petr Hůrka According to this provision, ‘the employer’s obligations based on the Labour Code are divided between the temporary work agency and the user undertaking.’70 The key principle is that although the user undertaking largely acts like a ‘regular employer’ towards the temporary agency worker, i.e. assigns work-related tasks to the temporary agency worker, organises, manages and supervises his/her work. The fact that the user undertaking cannot make contractual declarations towards the temporary agency worker on behalf of the temporary work agency is a consequence of the fact that legally, the user undertaking is not a party to the employment law relationship with the temporary agency worker.71

Czech law does not sufficiently regulate liability in the trilateral relationship between the temporary work agency, the temporary agency worker and the user undertaking. The sole relevant provision of Section 309(4) of the LC states that: where the employment agency has reimbursed the employee for certain damage that has arisen during the performance of work for the user or in direct connection therewith, the employment agency shall be entitled to compensation of this damage [damages] from the user undertaking, unless otherwise agreed between the temporary work agency and the user undertaking.

Otherwise, liability towards the temporary work agency and the temporary agency worker is regulated by the general provisions of the LC. (iii)  Dismissal Protection Temporary agency workers are entitled to the same protection against dismissal as ‘regular’ employees. However, in practice, temporary work agencies usually hire workers for a fixed term only, which is defined as the ‘temporary assignment period’ to a user undertaking. Consequently, with the termination of the temporary assignment, the employment relationship terminates automatically, without dismissal protection, severance pay, etc. This is one of the biggest disadvantages of temporary agency work for workers. No case law or written publications presently exist that address the above issue, but the question is being debated whether it is invalid if the employment relationship with a temporary agency worker is agreed for a fixed term, which is defined as the temporary assignment period to a user undertaking, as this leaves the termination of the employment relationship at the

70  P Hůrka in P Hůrka et al, The Labour Code and related provisions of the Civil Code with detailed commentary as of 1 January 2014, 3rd edn (Olomouc, ANAG, 2014) p 619. 71  Cf J Pichrt in M Belina, L Drápal et al, The Labour Code. Commentary. 2nd edn, Prague, C.H. Beck, 2015, p 1209.

The Position in the Czech Republic 159 mercy of the user undertaking. It is, however, unclear whether this opinion will prevail in practice. D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship As described above, there is no direct relationship between the temporary agency worker and the user undertaking. An employment relationship exists between the temporary work agency and the temporary agency worker, and a commercial contract exists between the temporary work agency and the user undertaking. Apart from that, the temporary agency worker is assigned to the user undertaking based on a written order of the temporary work agency72 (pokyn k dočasnému přidělení), which must comply with Section 309(2) of the LC and contain in particular: —— —— —— ——

The user’s designation and seat; The place of performance of work (the user’s premises); The duration of the temporary assignment; The determination of the user’s managerial employee authorised to assign work to the employee and supervise it; —— The conditions for unilateral termination of the performance of work prior to the expiry of the period of temporary assignment, if agreed in the agreement [contract] on temporary assignment of the employment agency’s employee; —— Information on the working and wage or salary conditions of comparable employees at the user undertaking. The temporary assignment of the same worker to the same user undertaking may not exceed 12 calendar months, unless the worker has requested a longer period of assignment or unless the temporary agency worker is a replacement for an employee on maternity or parental leave.73 There are no rules governing how many temporary agency workers may work at a single workplace or whether there may be a workplace where only temporary agency workers work. It is therefore possible that one workplace is staffed solely by temporary agency workers.

72  P Hůrka in P Hůrka et al, The Labour Code and related provisions of the Civil Code with detailed commentary as of 1 January 2014, 3rd edn (Olomouc, ANAG, 2014) pp 619–20. 73  s 309(6) of the LC.

160  Petr Hůrka (ii) Rights and Obligations/Liability The manager of the user undertaking is entitled to assign working tasks to the temporary agency worker and organise, manage and supervise his/her work, but the manager is not entitled to carry out any legal acts (eg amendments to the employment contract, dismissal of the worker, etc). As already described above, Czech labour law does not properly reflect the liability for any loss or damage to a temporary agency worker. If the temporary agency worker incurs any damage while performing work for the user undertaking, it must be reimbursed by the temporary work agency, which is then entitled to reimbursement by the user undertaking, unless otherwise agreed.74 Section 309(7) of the LC permits special measures on stricter protection of the user undertaking’s property to be adopted by an agreement between the user undertaking and the temporary agency worker. Based on this provision, the user undertaking and the temporary agency worker may agree that the temporary agency worker will be liable to the user undertaking for (a) shortfall in things of value entrusted to the worker, and/or (b) loss of things entrusted to the worker. Apart from these provisions, the temporary agency worker—according to current legal regulations—is only liable to his/her employer, namely the temporary work agency.75 This is in accordance with the nature of temporary agency work, because liability in labour law relationships may only exist between the employer (in this case the temporary work agency) and the employee, as it is derived from the basic labour relationship (employment relationship, relationship based on an agreement to perform work).76 (iii)  Health and Safety According to Section 309(1) of the LC, ‘the user shall create favourable working conditions for said employee, including occupational safety and health protection.’ Therefore, during the temporary assignment, the obligations with regard to health and safety must be fulfilled by the user undertaking. Certain functions must, however, be carried out by the temporary work agency as the legal employer of the temporary agency worker. These include,

74  P Hůrka in P Hůrka et al, The Labour Code and related provisions of the Civil Code with detailed commentary as of 1 January 2014, 3rd edn (Olomouc, ANAG, 2014) pp 620–21. 75  J Pichrt in M Belina, L Drápal et al, The Labour Code. Commentary, 2nd edn (Prague, CH Beck, 2015) p 1213. 76  P Hůrka in P Hůrka et al, The Labour Code and related provisions of the Civil Code with detailed commentary as of 1 January 2014, 3rd edn (Olomouc, ANAG, 2014) p 621.

The Position in the Czech Republic 161 eg ‘reporting the potential work injury and sorting out any issues with the insurance company.’77 E.  Relationship between Temporary Work Agency and User Undertaking The relationship between the temporary work agency and the user undertaking is a mixed contract based on both the LC and the Czech Civil Code78 (the ‘Civil Code’). First, Section 308 of the LC regulates the content and form of the agreement on a temporary assignment (dohoda o dočasném přidělení). According to this provision, the agreement must be concluded in writing—otherwise it is invalid79 —and it must contain: —— The forename (or names), surname, and if relevant also the maiden name, citizenship, date and place of birth and the home address of the employee assigned to work for the user undertaking for a temporary period; —— The type of work to be carried out by the employee, including any specific professional (vocational) qualifications (skills) required for the work, or any health condition necessary to perform the specific type of work; —— Determination of the period for which the employee will be assigned to work for the user undertaking; —— The place of performance of the work; —— The date when the assigned employee will commence working for the user undertaking; —— Information on the working conditions and remuneration (wage or salary) conditions of the user undertaking’s employees who carry out or would carry out the same work (the ‘comparable employee’) as the temporary employee assigned by the temporary work agency, taking the qualifications and length of vocational (professional) practical experience into consideration; —— The conditions under which the assigned employee or the user undertaking may terminate the temporary assignment prior to the expiry of the period for which it has been agreed; however, such conditions for the termination of the temporary assignment may not be agreed before

77  J Pichrt in M Belina, L Drápal et al, The Labour Code. Commentary, 2nd edn (Prague, CH Beck, 2015) p 1210. 78  Act No 89/2012 Coll, the Civil Code, as amended: (občanský zákoník). 79  P Hůrka in P Hůrka et al, The Labour Code and related provisions of the Civil Code with detailed commentary as of 1 January 2014, 3rd edn (Olomouc, ANAG, 2014) p 618.

162  Petr Hůrka the expiry of a specific period for which this right has only been established in favour of the user undertaking; —— The number and date of the ruling by which the temporary work agency has been granted a licence to act as such.80 The procedure for concluding the agreement is regulated by the Civil Code.81 Apart from the mandatory requirements mentioned above, other rights and obligations may be agreed by the parties, typically the remuneration for the assignment of employees, the process of agreeing upon an assignment of particular employees, contractual penalties, etc. F.  Rights and Status of Temporary Agency Worker The temporary agency worker’s key right is the entitlement to the same working and salary conditions as those of a comparable employee (srovnatelný zaměstnanec) at the user undertaking. Both the temporary work agency and the user undertaking are required to ensure the above rights of the temporary agency worker. The temporary work agency has the obligation to ensure equal treatment for its employees. Therefore, if the temporary agency worker informs the temporary work agency or the temporary work agency otherwise finds out that the temporary agency worker’s working and/or salary conditions are worse than those of a comparable employee at the user undertaking, the temporary work agency must take action based on the claims of the employee.82 The comparable employee is defined by the LC as an employee of the user undertaking who performs or would perform the same work as the temporary agency worker, given his/her qualifications and length of work experience.83 This definition is applicable regardless of whether such a comparable employee is actually employed by the user undertaking. Czech law, however, contains no definition or description of the working and salary conditions of a temporary agency worker, and this is thus a matter of interpretation only. According to the available expert opinions: —— Regarding salary conditions, the temporary agency worker must receive a salary in the same amount as a comparable employee at the user

80 

s 308(1)(a)–(h) of the LC. Pichrt in M Belina, L Drápal et al, The Labour Code. Commentary, 2nd edn (Prague, CH Beck, 2015) p 1205. 82  s 309(5) of the LC. 83  s 308(1)(f) of the LC. 81  J

The Position in the Czech Republic 163 undertaking. The same applies to salary premiums, bonuses, shares in profit and operational results, etc. —— Regarding working conditions, these include conditions that are based on labour law, such as longer annual leave, advantageous provisions on leave in case of obstacles to work on the employee’s part, etc. These, however, do not include conditions arising solely from social programmes of the employer, which are not based on labour law.84

G. Information and Consultation/Representation of Temporary Agency Worker General rules on information and consultation as well as the representation of employees contained in the LC also apply to temporary agency workers. However, in practice, the impact is limited, as the temporary agency workers are employed by the temporary work agency and not by the user undertaking. Therefore, the temporary work agency, not the user undertaking, is obliged to inform and consult the temporary agency workers. In other words, the temporary agency workers are entitled to receive information and be consulted about facts concerning the temporary work agency as their legal employer, but not about facts concerning the user undertaking. There is, however, one diversion from this general rule, namely Section 279(3) of the Labour Code, according to which the user undertaking is required to inform the temporary agency workers about available posts at the user undertaking.85 This specific duty of information emphasises that temporary agency work is viewed as ‘work between jobs’ and supports the aim of replacing temporary agency work with a permanent employment relationship.86 Temporary agency workers are not represented by an employee representative (such as a trade union) active at the user undertaking, because such an employee representative only represents the employees of the user undertaking. Temporary agency workers are free to create their own representation, such as a trade union. However, such a trade union would be active at the temporary work agency and not at the user undertaking. Therefore, in

84  Opinion of the Collegium of Experts of the Association for Development of Collective Bargaining and Labour-law Relations adopted at the session of the Collegium of Experts in Týnec nad Sázavou on 23 and 24 November 2012. Available online from: www.akvpracpravo. cz/cz/download/1404042036/. 85  s 279(3) of the LC. 86  J Pichrt in M Belina, L Drápal et al, The Labour Code. Commentary, 2nd edn (Prague, CH Beck, 2015) p 1099.

164  Petr Hůrka practice, there is virtually no representation of temporary agency workers in the Czech Republic. H. Strikes Under Czech law, two types of strikes exist. A collective bargaining strike may only be initiated in a dispute over entering into a collective bargaining agreement (ie can only be related to the contents of the collective bargaining agreement).87 As temporary agency workers are usually not represented by a trade union, there is no body that could enter into a collective bargaining agreement on their behalf and, as such, the right to strike cannot be exercised by temporary agency workers. Temporary agency workers’ right to strike is nevertheless not excluded from the applicable laws. Strikes outside of the collective bargaining agreement are not expressly regulated by law, but the Supreme Court has determined that employees are permitted to strike if they wish to promote their general economic or social rights.88 Accordingly, it is possible to imagine, eg a strike by temporary agency workers against the decision to shut down the user undertaking or to terminate all temporary work agency contracts. Collective bargaining legislation also allows the organisation of a ‘support strike’.89 Support strikes are strikes organised to support the demands of employees in a different (usually economically related) undertaking, who are conducting a collective bargaining strike against their employer. Based on this legislation there is the possibility for temporary agency workers to organise a support strike in favour of employees of the user undertaking. The substitution of employees who are striking, with temporary agency workers is not strictly prohibited by law, but it could be argued that according to the basic principles of Czech labour law and the aim of the regulation, it is not possible. I.  Collective Bargaining Agreements Deviating from Statutory Provisions As described above, temporary agency workers are in practice not represented by trade unions and, therefore, there are usually no collective bargaining agreements that deviate from statutory provisions. The applicable

87  s 16(1) of the Act No 2/1991 Coll., on Collective Bargaining, as amended (‘Act on CB’; zákon o kolektivním vyjednávání). 88  Judgment of the Supreme Court, file No 21 Cdo 2655/2004, dated 28 June 2005, or Judgment of the Supreme Court, file No 21 Cdo 2104/2001, dated 14 November 2002. 89  s 16(3) of the Act on CB.

The Position in the Czech Republic 165 provisions of the LC are usually mandatory and the parties cannot deviate from them.90 A special provision in Section 309(8) of the LC determines that the scope of temporary agency work may only be limited by a collective bargaining agreement concluded at the user undertaking.91 According to this provision, therefore, the trade unions that are active at the user undertaking may negotiate and agree in the collective bargaining agreement concluded between themselves and the user undertaking (ie not between the temporary agency worker and the user undertaking) that the scope of temporary agency work will be limited. Apart from that, temporary agency work is usually not subject to any collective bargaining agreement deviating from statutory provision.

90  ss 23(1), 363(1) and 4a(1) and (3) of the LC. See also J Pichrt in M Belina, L Drápal et al, The Labour Code. Commentary, 2nd edn (Prague, CH Beck, 2015) p 1210. 91  s 309(8) of the LC.

166

7 Atypical Employment Relationships—The Position in Denmark NATALIE VIDEBAEK MUNKHOLM

I. INTRODUCTION

I

N DENMARK, THERE is no uniform code of labour or employment law. Conditions of work are regulated in collective agreements,1 supplemented by statutory legislation, the individual employment contract, customs and principles developed by the courts.2 Collective agreements are binding for members of the signatory associations, both workers and employers alike, and the employer has an obligation to apply the provisions to unionised as well as non-unionised workers, when an enterprise is covered by an agreement. An employer is covered by a collective agreement when the enterprise becomes a member of an employers’ association, or when concluding a collective agreement directly with a trade union.3 Disputes concerning collective agreements or industrial relations are settled by way of industrial arbitration or the Labour Court.4 All other employment disputes are usually settled by ordinary courts. The procedures for resolving conflicts in atypical employment relationships thus vary according to the applicable legal sources of the specific employment relationship. Employment is usually presumed to be permanent and full time;5 this is perceived as a prerequisite for earning a decent living wage.6 The parties

1  Danish Confederation of Trade Unions, LO Dokumentation No 1/2010, Collective agreements cover approximately 80 per cent of all workers. 2  O Hasselbalch, Labour Law in Denmark, 4th edn (Wolters Kluwer, 2016) pp 40–90. 3  R Nielsen, Dansk Arbejdsret, 3rd edn (DJØF, 2016) p 182. 4  O Hasselbalch, Labour Law in Denmark (n 2 above), pp 922–78. 5  J Kristiansen, Grundlæggende arbejdsret, 4th edn (DJØF, 2016) pp 284–85. 6  O Hasselbalch, Deltidsloven (DJØF, 2002) pp 14–15.

168  Natalie Videbaek Munkholm are nonetheless free to agree on atypical employment terms, unless specifically prohibited in the applicable legal sources. Atypical employment terms have been the subject of increased legislative and judicial attention as a result of EU directives on part-time work, fixed-term work, and temporary employment. II.  FIXED-TERM WORK7

The flexibility to dismiss employees under Danish labour law diminishes the need to resort to fixed-term contracts.8 Fixed-term contracts were, at the time of passing the Act on Fixed-term Employment, lov om tidsbegrænset ansættelse (the Fixed-term Act), in 2003 not commonly used, except in certain seasonal jobs or in project-oriented industries,9 or to fill a temporary need for additional labour, eg during an employee’s maternity leave. By 2011, 1 in 10 employees worked on the basis of a fixed-term contract.10 The Danish regulation on fixed-term employment is primarily found in collective agreements, in the Act for Salaried Employees, funktionærloven (the Salaried Employees’ Act)11 and in the Fixed-term Act.12 The Fixed-term Act implements Council Directive 1999/70/EC13 (Fixedterm Directive) concerning the Fixed-term Framework Agreement.14 The Fixed-term Act is the default legislation, which applies if a worker is not covered by collective agreements implementing the Fixed-term Directive,15 or by an individual agreement to be covered by an implementation agreement at the enterprise.16 Implementation agreements cover the majority of private sector employees and specific public sector employees.17 The implementation 7  For a general overview: O Hasselbalch, Den Danske Arbejdsret (online version at Schultz: arbejdsretu.lovportaler.dk) ch XIII, 2.3.4; O Hasselbalch, Tidsbegrænset ansættelse, 2nd edn (DJØF, 2008); O Hasselbalch, Labour Law in Denmark (n 2 above) pp 149–59; Kristiansen, Grundlæggende arbejdsret (n 5 above)) pp 290–94; Nielsen, Dansk Arbejdsret (n 3 above) pp 505–14. 8  J Kristiansen, Grundlæggende arbejdsret (n 5 above) p 290. 9  Proposal for an Act on Fixed-term Work, L202, FT 2002-03, Bemærkninger til § 5, cf ETUC-UNICE-CEEP framework agreement on fixed-term work of 18 March 1999 (the Fixedterm Framework Agreement). 10  T Larsen and S Navrbjerg, ‘Tidsbegrænset ansatte og deltidsansatte—outsidere med rettigheder’ in T Larsen (ed), Insidere og outsidere—den danske models rækkevide (DJØF, 2011). 11 Lovbekg No 1002 af 24 August 2017 om retsforholdet mellem arbejdsgivere og funktionærer. 12  Lovbekg No 907 af 11 september 2008 om tidsbegrænset ansættelse. 13  Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP. 14  L202, FT 2002-03, Almindelige bemærkninger. 15  The Fixed-term Act, s 4.1. 16  The Fixed-term Act, s 4.4. 17  L202, FT 2002-03, Almindelige bemærkninger.

Atypical Employment Relationships—The Position in Denmark 169 included an amendment to the Salaried Employees’ Act, aligning the criteria for lawful successive fixed-term contracts in the Salaried Employees’ Act with section 5 of the Fixed-term Act.18

A.  Legal Definitions/Formal Requirements According to the Fixed-term Act, a fixed-term worker is in an employment relationship concluded directly with an employer, where the end of the employment relationship is determined by objective criteria such as a specific date, completion of a specific task, or the occurrence of a specific event.19 The definition in the Fixed-term Framework Agreement corresponds to the Danish concept of fixed-term work.20 The Fixed-term Act does not cover temporary agency workers,21 trainees and apprentices, persons who are covered by special public education programmes,22 persons working in subsidised training or integration programmes,23 military personnel on active duty,24 and contracts that terminate upon retirement or pensionable age.25 Danish law has no formal requirements for entering into an employment relationship. Oral as well as written agreements are enforceable,26 though atypical employment terms can be difficult to prove in case of a dispute if not documented in writing.

B.  Lawful Stipulation of the Contractual Terms Employing staff is a managerial prerogative, which can be limited by provisions in collective agreements, statutory legislation, customs or principles developed in case law.27 The presumption is that fixed-term contracts are not illegal. Express rights to employ fixed-term workers are established

18  Proposal for amendment of the Salaried Employees’ Act, L203, FT 2002-03, Almindelige bemærkninger. 19  The Fixed-term Act, s 3.2 f; cf Fixed-term Framework Agreement, cl 3.1. 20  L202, FT 2002-03, Bemærkninger til § 3. 21  The Fixed-term Act, s 2.2.1. 22  The Fixed-term Act, s 2.2.2; cf Fixed-term Framework Agreement, cl 2.2.(a), ie Lovbekg No 282 af 18 April 2018 om erhvervsuddannelser (the Act on Vocational Education). 23  The Fixed-term Act, s 2.2.3; eg Industrial Arbitration Case FV2013.0027. 24  The Fixed-term Act, s 2.3. 25  The Fixed-term Act, s 3.3. 26 Lovbekg No 193 af 2 March 2016 om aftaler og andre retshandler på formuerettens område, s 3.2. 27  O Hasselbalch, Den Danske Arbejdsret (n 7 above) ch XIV, 2.2.1.

170  Natalie Videbaek Munkholm in statutory Acts for civil servants,28 agricultural and domestic workers,29 apprentices,30 and salaried employees. The main requirement for the lawfulness of all fixed-term contracts is that the employee must be informed about the fixed-term nature of his/her contract,31 and about the exact conditions terminating the contract.32 The Fixed-term Act does not interfere with the option of entering into a fixed-term contract.33 Successive fixed-term contracts are admissible as long as they each fulfil the requirement for objective grounds. The Fixed-term Act establishes the requirement that objective grounds exist for concluding successive fixedterm contracts.34 This only applies to situations in which more than one35 contract of equivalent content and character36 is concluded within a certain period of time.37 The Fixed-term Act does not provide a maximum number of successive fixed-term contracts,38 except for certain academic staff (see II.F. below). Under the Fixed-term Act, the employee is entitled to compensation when successive fixed-term contracts are not based on objective reasons.39 An objective reason is an open-ended term; the specific circumstances must be assessed, taking into account the distinct characteristics of the sector in question. The Fixed-term Act states that objective reasons include 1) unforeseen circumstances such as illness, pregnancy, maternity leave, and other types of leave, where a fixed-term worker continues working in the same company on a new fixed-term contract to cover another person’s absence;40 2) branchspecific working terms, such as termination of piecework contracts and the commencement of new piecework contracts for the same employer;41 and

28  Lovbekg No 511 af 18 May 2017 om tjenestemænd (the Act on Civil Servants), ss 2, 3, cf s 28.2. 29  Lovbekg No 712 af 20 August 2002 om visse arbejdsforhold i landbruget, mv, s 3. 30  The Act on Vocational Education. 31  O Hasselbalch, Den Danske Arbejdsret (n 7 above) ch XIV, 2.2.1.; See eg Eastern High Court Ruling of 8 September 2008, B-351-08, and Supreme Court Ruling U2009.2760H. 32  L202, FT 2002-03, Bemærkninger til § 5; See eg Western High Court Ruling U2015.189V. 33  L202, FT 2002-03, Bemærkninger til § 4. 34  L202, FT 2002-03, Bemærkninger til § 5, cf Fixed-term Framework Agreement, cl 5.1.(a). 35  See eg Municipal Court of Copenhagen, Ruling of 29 September 2009, where one extension had no objective reason, and was therefore in breach of the law. 36  See eg Ombudsman statement in FOU2012 case 12.00238. 37  L203, FT 2002-03, Bemærkninger til § 5, cf CJEU Case C-109/09 Deutsche Lufthansa AG v Gertraud Kumpan, ECLI:EU:C:2011:129. 38  See eg Industrial Arbitration Case FV2013.0168, where each of 10 renewals of a substitute teacher’s contract had objective reasons, and the contracts were not rendered a breach of the law, and Western High Court ruling U 2017.1416V of 26 January 2017, where the employee had worked under several consecutive contracts with different titles, but performed the same work in reality. 39  The Fixed-term Act, s 8.1. 40  L202, FT 2002-03, Bemærkninger til § 5. 41 Ibid.

Atypical Employment Relationships—The Position in Denmark 171 3) finalising or remedying a fixed-term assignment of a temporary nature, if the original time allocated for the project was insufficient. The Act on Civil Servants provides a right to enter into successive fixed-term contracts with civil servants for objective reasons.42 This test of objective reasons is likewise a requirement for the lawfulness of successive fixed-term contracts under the Salaried Employees’ Act.43 For salaried employees the use of multiple fixed-term contracts has been viewed as an attempt to circumvent the rights in the Salaried Employees’ Act, in particular the long notice periods and the protection against unreasonable dismissal after one year of employment. The rule of thumb was that more than two to three consecutive fixed-term contracts was viewed as an attempt to circumvent the provisions in the Salaried Employees’ Act or would c­ reate an expectation of permanent employment, resulting in the employee becoming permanently employed, with rights under that Act.44 Now, multiple successive fixed-term contracts are allowed also for salaried employees, if each has objective reasons. Lack of objective grounds is sanctioned under the Fixed-term Act. In addition, the courts will assess whether the use of successive fixed-term contracts indicates an intention to circumvent the Salaried Employees’ Act,45 or creates an expectation of permanent employment, in which case the fixed-term employee is viewed as permanently employed with rights according to the Salaried Employees’ Act.46 This consequence does not apply to fixed-term contracts outside the Salaried Employees’ Act. A brief extension of a fixed-term contract under the Salaried Employees’ Act may be possible, as extensions are in some instances not considered an attempt to circumvent the applicable notice period.47 ­Legitimate reasons for short extensions include closure of the company,48 serious economic difficulties,49 sale of the company, or substantive considerations for the employee.50 According to collective agreements, successive fixed-term contracts must be based on a legitimate reason (saglig grund),51 or objective reasons. Successive 42 

The Act on Civil Servants, s 2 and s 33(a)–(c). The Salaried Employees’ Act, s 1.4, which refers to the Fixed-term Act s 5 on objective reasons. 44  See eg Eastern High Court Ruling U1986.730Ø, Western High Court Ruling U2000.219V and Western High Court ruling U2002.1611V. 45  Eg Western High Court Ruling U2015.189V. 46 Kristiansen, Grundlæggende arbejdsret (n 5 above) p 293; O Hasselbalch, Den Danske Arbejdsret (n 7 above) ch XIV 2.2.1; L203 FT 2002-03, Bemærkninger til § 1 og § 2; 47 For a number of case law examples, see O Hasselbalch, Den Danske Arbejdsret (n 7 above) ch XIV, 2.4.1. 48  Eg Maritime and Commercial Court Ruling 1940/196—a month-by-month employment contract in the hope to continue working for the company was accepted. 49  Eg Western High Court Ruling of 1 September 1975, Case 841/1975—a month-by-month extension in the hope of saving the company was accepted. 50  Eg Maritime and Commercial Court Ruling U2001.1548SH—a short extension allowing for the anniversary of the employee at the company. 51 Hasselbalch, Den Danske Arbejdsret (n 7 above) ch XIV, 2.4.5. 43 

172  Natalie Videbaek Munkholm fixed-term contracts are permitted in sectors where this is the tradition, eg orchestra musicians,52 and construction projects.53 Compensation is set at the discretion of the courts.54 The sanctions for unlawful successive fixed-term contracts range from DKK 75,000 (EUR 10,000)55 to no fine at all.56 Salaried employees can in addition be awarded salary in the notice period.57 C.  Termination/End of Fixed-Term Contracts Fixed-term contracts terminate automatically on the date or the event specified in the contract. Neither the employee nor the employer is required to give notice,58 and protection against unfair dismissal or discrimination on certain grounds does not apply in this case.59 The termination date/time is final, and circumstances on the employee’s side, eg maternity leave, do not entail a right to an automatic extension of the contract.60 When a specific event determines the expiry of the contract, the employer must in due time inform the fixed-term worker about the likely time of termination. If the worker is not informed, the contract could be considered to be continued on permanent terms, ie the employer must give notice in accordance with the applicable rules.61 Unless expressly stated otherwise,62 the courts tend to interpret that a fixed-term contract can be terminated before the expiry of its term by observing the usual notice periods, ie these are in reality, maximum-term

52 

Eastern High Court Ruling of 4 September 2006, case B-169-05. See eg Industrial Arbitration Case FV 5/7 1972. 54 See eg Western High Court Ruling U2007.614V, where the employee received DKK 15,000 in accordance with the Fixed-term Act, and an additional 1½ months’ compensation for unfair dismissal in accordance with the Salaried Employees’ Act, and the Eastern High Court Ruling of 24 November 2016, in which compensation was set at DKK 25,000 (EUR 3,333)—as the employer had already amended its employment policies, and the alternative for the employees was unemployment. 55  Supreme Court ruling of 17 April 2018, Case 303/2016, in which the employees (university teachers) had been employed on fixed-term contracts for most of their working lives, with several extensions being concluded after the Fixed-term Act entered into force in 2003. 56  Western High Court Ruling U2017.1416VL. 57  See eg Western High Court Ruling U2015.189VL. 58  O Hasselbalch, Den Danske Arbejdsret (n 7 above) ch XIV, 2.2.1. 59  O Hasselbalch, Tidsbegrænset ansættelse (n 7 above) pp 57 and 74. 60 See eg Rulings from the former Board of Gender Equality, Ligestillingsnævnet (Now Board of Equal Treatment, Ligebehandlingsnævnet) No 38/2005 and No 13/2001. 61  L202, FT 2002-03, Bemærkninger til § 3, cf Hasselbalch, Den Danske Arbejdsret (n 7 above) ch XIV, 2.2.1. 62 Supreme Court ruling U2005.1186H—fighter pilots were bound by their contracts to continue their duty until reaching the age of 33 years. 53 

Atypical Employment Relationships—The Position in Denmark 173 contracts.63 In these cases, both parties can terminate the contract before the agreed term; such termination must fulfil the requirements of notice, and of any regulation on fair dismissals or non-discrimination grounds stipulated in legislation or collective agreements.64 If one party fundamentally breaches the contractual terms, the other party can declare the contract void and terminate the contract immediately.65 D.  Rights and Status of Fixed-Term Worker (i)  Equal Treatment The principle of equal treatment is implemented by the Fixed-term Act section 4: ‘The employment conditions for a fixed-term worker shall not be less favourable than those of a comparable permanent worker solely because of the fixed-term character of the employment relationship, unless this is justified on objective grounds.’66 The principle of proportionate remuneration and proportionate rights is applicable.67 If the specific conditions of employment require a probation period,68 this probation period shall be the same for fixed-term employees as for permanent workers, except where a different length of probation is justified on objective grounds.69 A comparable worker is a person who has an employment relationship of indefinite duration in the same establishment and is engaged in the same or similar work and has the same or similar qualifications and skills. If a comparable worker cannot be found in the same establishment, or if there is no applicable collective agreement and no collective agreement which otherwise regulates this aspect, then a comparison shall be made with collective agreements which are customarily applicable to this or similar types of work.70 The assessment consists of two steps. The court first assesses whether the fixed-term worker’s employment conditions are less favourable than

63  See eg Industrial Arbitration Ruling of 20 February 1995 and Industrial Arbitration Ruling FV2012.0130. 64  The requirement of reasonable cause for termination is provided in the General Agreement between LO (Danish Confederation of Trade Unions, now FH) and DA (the Confederation of Danish Employers), Hovedaftalen mellem LO og DA, Aftale af 31 Oktober 1973 med ændringer af 1 Januar 1993, and in the Salaried Employees’ Act. 65  See eg Supreme Court Ruling U2009.999H, and Hasselbalch, Tidsbegrænset ansættelse (n 7 above) p 70. 66  The Fixed-term Act s 4, 1, cf Fixed-term Framework Agreement cl 4.1. 67  The Fixed-term Act s 4.2, cf Fixed-term Framework Agreement cl 4.2. 68  L202, FT 2002-03, Bemærkninger til § 4. 69  The Fixed-term Act s 4.3, cf Fixed-term Framework Agreement cl 4.4. 70  The Fixed-term Act s 3.4 and 3.5, cf Fixed-term Framework Agreement cl 3.2.

174  Natalie Videbaek Munkholm those of comparable employees. The term ‘employment conditions’71 corresponds to the term used in Council Directive 78/2000 (Employment Equality Directive)72 and Council Directive 81/97 (the Part-time Work Directive).73 This also includes participation in concession programmes, maternity leave, access to flexible hours arrangements, paid lunch,74 as well as remuneration.75 The courts apply a strict assessment of the criteria that define a ‘comparable worker’.76 The court assesses whether the said comparable worker performs the same type of work, has the same educational background, the same mandate, and has a similar place in the organisation. The court also assesses whether the criteria of ‘same or similar work’ are met. The court examines the actual work being performed by the fixed-term worker,77 the purpose of the work, the type of assignment, and the type of customers, eg in an academic setting, which students are taught.78 The second step is an assessment of whether any less favourable conditions are based on objective grounds.79 ‘Objective grounds’ to a large extent corresponds to the term applied by the European Court of Justice when assessing gender discrimination.80 Objective grounds can also be the involvement of social partners in negotiations.81 The employer must pay compensation to the employee if the principle of equal treatment has been breached.82 If less favourable treatment concerns remuneration, the fixed-term worker is also entitled to any outstanding salary, including pensions.83 The compensation is set at the discretion of the court in accordance with the specific circumstances of the case. Case law has not yet awarded compensation for discriminatory treatment; most complaints fail the test of being ‘comparable’, and in the rest of the cases 71 

L202, FT 2002-03, Bemærkninger til § 4 og til § 8. Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. 73  Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time working concluded by UNICE, CEEP and the ETUC. 74  Proposal for Fixed-term Act, L202 FT 2002-03, Remarks to § 8. 75  See eg Industrial Arbitration Ruling of 28 November 2006. 76  See eg Supreme Court ruling U2011.1308, where a position as a specialised advisor was not comparable to a position as an academic, and Supreme Court ruling of 17 April 2018, case No 323/2016, in which permanently employed academic staff at the university were not ‘comparable’ to fixed-term part-time university teachers. 77 See eg Industrial Arbitration Ruling of 20 February 2006, fixed-term workers were employed solely in manual labour contrary to permanently employed workers, and this did not constitute the same or similar work. 78  See eg Supreme Court ruling U2013.448H. 79  See eg Industrial Arbitration Ruling of 19 September 2008, remuneration for fixed-term employed music school teachers fluctuated above and below the average wages of permanently employed music school teachers. This was a result of the circumstances related to working hours and thus based on objective grounds. 80  L202, FT 2002-03, Bemærkninger til § 4. 81  See eg Industrial Arbitration Rulings of 16 June 2008 and of 28 November 2006. 82  The Fixed-term Act, s 8.1. 83  L202, FT 2002-03, Bemærkninger til § 8. 72  Council

Atypical Employment Relationships—The Position in Denmark 175 the employer has presented sufficient ‘objective reasons’ for the less favourable treatment. (ii)  Employment Opportunities The employer must inform fixed-term employees about available posts at the enterprise, regardless of any general duty to inform employees about vacant posts.84 Such notification includes, eg public written announcements, announcements on the intranet or staff newsletters.85 Further, the employer has a specific duty to actively facilitate—to the extent possible—fixed-term workers’ access to appropriate training opportunities.86 This includes eg access to technical equipment or literature or granting flexible working hours. Access to training programmes is often an ‘employment condition’ and is also subject to the principle of equal treatment.87 The Fixed-term Act does not establish sanctions for employers who fail to fulfil this duty. If the legal basis for this duty is a collective agreement implementing the Fixed-term Framework Agreement, the employer can be fined for breach of agreement.88 (iii)  Other Matters The Fixed-term Act establishes a ‘victimisation’ provision.89 If a fixed-term worker is dismissed in response to claiming his/her rights as stipulated in the Fixed-term Act, eg equal treatment, the worker is entitled to compensation.90 Protection against dismissal on this ground in the Fixed-term Act extends to all fixed-term employees covered by the Act, regardless of whether the employee would be otherwise protected against unfair dismissal, and whether s/he meets the criteria for the entitlement to protection in other Acts, eg seniority.91 Outside of the Fixed-term Act, legal bases providing a right to compensation for unreasonable dismissal are found in the General Agreement between the LO and DA and the Salaried Employees’ Act, and legal bases providing rights to compensation for dismissals in breach of specific 84 

The Fixed-term Framework Agreement, cl 6.1. L202, FT 2002-03, Bemærkninger til § 6. 86  The Fixed-term Act, s 6.2, cf Fixed-term Framework Agreement, cl 6.2. 87  L202, FT 2002-03, Bemærkninger til § 6. 88  Cf the Statutory Act on a Labour Court and Industrial Arbitration, Lovbekg No 1003 of 24 August 2017 om Arbejdsretten og faglige voldgiftsretter (the Act on a Labour Court), s 12.1. cf s 9.1. 89  The Fixed-term Act, s 8.3. 90  The amount is not set and is left to the discretion of the courts. No compensation has so far been awarded under this provision. 91  L202, FT 2002-03, Bemærkninger til § 8. 85 

176  Natalie Videbaek Munkholm ­ rotected grounds are found in special legislation, eg the Gender E p ­ quality Act, L ­ igebehandlingsloven,92 the Equal Treatment Act, Forskelsbehandlingsloven,93 and the Part-time Act, Deltidsloven.94 E.  Information and Consultation Fixed-term workers are counted in the total number of employees required to establish cooperative bodies in accordance with statutory regulations or collective agreements, for as long as the employment lasts.95 Most collective agreements apply to all persons who carry out the type of work covered by the collective agreement,96 and they do not distinguish between permanent and fixed-term workers. Some collective agreements have specific provisions for fixed-term workers,97 and some collective agreements are negotiated specifically for fixed-term workers.98 Fixed-term workers are eligible to participate in elections for bodies established in the company. Cooperative bodies include health and safety committees, arbejdsmiljøorganisationen, in accordance with the Working Environment Act, Arbejdsmiljøloven,99 and cooperative committees, samarbejdsudvalg, in accordance with collective agreements or the Act on Information and Consultation of Employees, Lov om information og høring af lønmodtagere.100 Similarly, fixed-term workers can participate in electing trade union representatives in accordance with collective agreements.101 Fixed-term workers can be elected as health and safety representatives102 and as trade union representatives.103 However, eligibility for election 92  Lovbekg No 645 af 8 Juni 2011 om ligebehandling af mænd og kvinder med hensyn til beskæftigelse mv. 93  Lovbekg No 1001 af 24 August 2017 om forbud mod forskelsbehandling på arbejdsmarkedet mv. 94  Lovbekg No 1142 af 14 September 2018 af deltidslov. 95  The Fixed-term Act, s 7.1, cf Fixed-term Framework Agreement, cl 7.1. 96 ‘Område-overenskomster’, see eg Hasselbalch, Den Danske Arbejdsret (n 7 above) ch XXII, 4.2.1. 97  For example, some collective agreements in the tourism sector, hotels and restaurants, see eg Industrial Arbitration Ruling of 28 November 2006, and Industrial Arbitration Ruling of 16 June 2008. 98  For example, some collective agreements in the education sector, see eg Supreme Court Ruling of 14 November 2012. 99  Lovbekg No 1084 af 19 September 2017 om arbejdsmiljø (the Working Environment Act). 100 Lov No 303 af 2 May 2005 om information og høring af lønmodtagere (the Act on Information and Consultation of Employees). 101  L202, FT 2002-03, Bemærkninger til § 7. 102 See eg Industrial Arbitration Ruling of 30 October 1978, where a fixed-term worker could be elected as a health and safety representative, as he was employed on a number of fixed-term contracts, and the fixed-term worker had worked for the same employer for a number of years. 103  See eg Industrial Arbitration Ruling of 10 June 1977 and Industrial Arbitration Ruling of 4 June 1981.

Atypical Employment Relationships—The Position in Denmark 177 requires that the employment contract does not expire during the election term. Furthermore, the dismissal protection extended to trade union representatives and health and safety representatives does not overrule the agreed termination of a fixed-term contract.104 The Fixed-term Act encourages105 the employer to provide information on fixed-term employment at the enterprise to cooperative bodies.106 F.  Specific Provisions The Fixed-term Act provides that fixed-term contracts of academics employed in research and teaching at higher education institutions funded by the state can be extended twice without an objective reason.107 According to the provision, the higher education sector is characterised by considerable fluctuations in the number of students in specific fields and courses. Moreover, a significant part of the research industry is financed by temporary research grants. Scientific competitiveness as well as the dynamic scientific culture at universities is characterised by a high degree of specialisation, just like in other OECD countries. These circumstances generate a need to enable researchers to be employed in successive fixed-term positions.108 The provision sets a maximum of two extensions of fixed-term contracts without legitimate reason. Whether a new contract is a succession of an existing contract or a contract for a ‘new position’ is assessed on the type of work performed. Even if the title and working conditions change, the employee can be considered to largely perform the same type of work, and more than three consecutive fixed-term employment contracts are in this case a breach of section 5.2.109 G.  Collective Bargaining Agreements Deviating from Statutory Provisions The Fixed-term Framework Agreement was implemented by collective agreements before as well as after the entry into force of the Fixed-term Act. Such implementation agreements overrule the provisions in the Fixed-term

104 

O Hasselbalch, Den Danske Arbejdsret (n 7 above) ch XIV, 2.2.1. L202, FT 2002-03, Bemærkninger til § 7. The provision does not carry a sanction. 106  The Fixed-term Act, s 7.2, cf Fixed-term Framework Agreement, cl 7.3. 107  Fixed-term Act, s 5.2. See eg Supreme Court Ruling U2009.2760H. 108  L202, FT 2002-03, Bemærkninger til § 5. 109  Two rulings established this: Supreme Court ruling U2018.2268H, Roskilde University Centre, and Western High Court Ruling U2017.1416V, Aalborg University. 105 

178  Natalie Videbaek Munkholm Act if they guarantee the worker those rights, which as a minimum correspond to the provisions in the Fixed-term Directive.110 When negotiating new agreements or the extensions of existing agreements, the social partners can choose to implement different models of protection stipulated in the Fixed-term Framework Agreement. An implementation agreement will be interpreted in light of the Fixed-term Framework Agreement, not of the Fixed-term Act.111 III.  PART-TIME WORK112

In Denmark, full-time work is not defined by statutory Act. ‘Full time’ is defined by collective agreements, the individual employment contract, or— in the absence of specific provisions—by the customs within the industry.113 According to the majority of collective agreements, full-time work is 37 hours per week. Very few statutory acts regulate working hours. The Working Environment Act114 and the Act on Working Time, arbejdstidsloven,115 implement Directive 2003/88 (the Working Time Directive),116 but the issue of working time is generally considered one of the essential working conditions negotiated by the social partners. The Part-time Work Directive and the Framework Agreement on Parttime Work (the Part-time Framework Agreement)117 were implemented in 2001 through a novel method of legislation. The Part-time Act asserts118 that employers not covered by a collective agreement implementing the Parttime Framework Agreement shall be governed by a Collective Agreement concluded by the LO and the DA (the LO/DA Part-time Agreement).119

110  The Fixed-term Act corresponds to the DA/LO collective agreement implementing the Fixed-term Framework Agreement, Aftale om implementering af direktiv om tidsbegrænset ansættelse, and the collective agreement for public employees in local municipalities, Rammeaftale om tidsbegrænset ansættelse mellem KL og Kommunale Tjenestemænd og Overenskomstansatte, which are both still in force. 111  See eg Industrial Arbitration Rulings of 16 June 2008 and of 28 November 2006. 112 Hasselbalch, Den Danske Arbejdsret (n 7 above) ch XIII, 2.3.3.; Hasselbalch, Deltidsloven (n 6 above); Hasselbalch, Labour Law in Denmark (n 2 above) p 303; Kristiansen, Grundlæggende arbejdsret (n 5 above) pp 285–89; Nielsen, Dansk Arbejdsret (n 3 above) pp 494–504. 113  O Hasselbalch, Labour Law in Denmark (n 2 above) pp 295–96. 114  The Working Environment Act, ss 50–53. 115  Lovbekg No 896 af 24 August 2004 om gennemførelse af dele af arbejdstidsdirektivet. 116  Council Directive 2003/88/EC on certain aspects of working time. 117  The Framework Agreement on Part-time Work concluded by ETUC, UNICE and CEEP on 6 June 1997. 118  The Part-time Act, Deltidsloven, s 1. Originally the Part-time Act was Act No 443 of 7 June 2001; the current version is of 14 September 2018 (n 94 above). 119  Aftale om implementering af direktivet om deltidsarbejde mellem Landsorganisationen i Danmark og Dansk Arbejdsgiverforening, 9. January 2001.

Atypical Employment Relationships—The Position in Denmark 179 The LO/DA Part-time Agreement is annexed to the Part-time Act. This method universalised a collective agreement for the first time. Minor adjustments were made to the Salaried Employees’ Act and other Acts.120 By 2011, approximately 1 in 4 employees worked part time.121 A.  Legal Definitions/Formal Requirements The LO/DA Part-time Agreement implements the definition of the Part-time Framework Agreement for ‘part-time worker’,122 which corresponds to the existing definition of part-time work developed by the judiciary.123 A parttime worker is an employee who works less than full time in accordance with a prior agreement, either indefinitely or for a long period of time.124 Danish law does not contain any formal requirements for employment contracts.125 The Act on a Written Statement126 establishes that employers must inform employees about daily or weekly working hours.127 A written statement, however, is not a formal requirement for the validity of the employment relationship or agreed working hours. B.  Opportunities for/Right to Part-Time Work This section distinguishes between the right of the employer to hire workers on a part-time basis, the right of the employer to unilaterally reduce the hours of already employed workers during their employment, the right of the employee to unilaterally change the working hours to part-time during employment, and finally, the option of the parties to agree to part-time work during employment. On the issue of the right to hire workers on a part-time basis, employers not covered by a collective agreement can employ part-time workers without restrictions. Employers covered by a collective agreement, however, are often subject to regulation. Such regulation includes, eg, a minimum level of weekly 120  Amendment Act, Lov No 444 af 7 June 2001 om ændring af lov om retsforholdet mellem arbejdsgivere og funktionærer og lov om værnepligtsorlov og om orlov til FN-tjeneste mv. 121  T Larsen and S Navrbjerg, ‘Tidsbegrænset ansatte og deltidsansatte—outsider med rettigheder’ in T Larsen (ed), Insidere og outsiderede—den danske models rækkevidde, DJØF 2011. 122  The LO/DA Part-time Agreement s 3.1 and 2. 123  For example, Industrial Arbitration Ruling FV 9 June 1999. 124  For example, Industrial Arbitration Ruling FV 9 July 1999. 125  See above at II.A. 126  Lovbekg No 240 af 17 March 2010 om arbejdsgiverens pligt til at underrette lønmodtageren om vilkårene for ansættelsesforholdet (the Act on a Written Statement). 127  The Act on a Written Statement, s 2.2.9.

180  Natalie Videbaek Munkholm working hours, ratios of full-time to part-time workers at the enterprise, or prohibitions on the use of part-time employment.128 Employers that do not adhere to the agreed limitations can be fined for breach of the collective agreement. Fines for breach of the collective agreement are set at the discretion of the Labour Court or the industrial arbitrator. The court takes all circumstances of the case into account, such as the knowledge of the parties about the specificities of the collective agreement, the employer’s conduct, the severity of the breach, any outstanding payments, a party’s reluctance to participate in the case, etc.129 The fine for breach of agreement is set at the discretion of the court and varies from 0 DKK to several million DKK. The Part-time Act does not interfere with provisions in collective agreements regulating the hiring of part-time workers. The issue of the employer’s right to unilaterally reduce the working hours during employment can be regulated in the collective agreement, in the individual employment contract, or in legislation. For employers not covered by a collective agreement, working time is governed by the terms of the employment contract. The employer has managerial powers and as such, can make decisions on the working time of the employees. A change in working hours which is not stipulated or expected under the current contract represents a significant change to the agreed employment terms. This lies outside the employer’s managerial powers.130 A reduction of hours is technically a termination of the existing contract. A reduction can be applied unilaterally only after giving notice equivalent to the individual notice of termination of the employment contract. If the employee does not consent to the change of hours, the employment relationship will then terminate on the expiry of the notice period. If such a termination breaches statutory requirements of reasonable cause for dismissal, or other statutory protections against discrimination, the employee may be eligible for compensation for unreasonable or unlawful dismissal.131 For employers covered by a collective agreement, the collective agreement and principles of industrial relations regulate working time. Some collective agreements provide specific provisions allowing a reduction of working hours for one or more workers, whereas some collective agreements

128 Proposal to amend the Salaried Employees’ Act, L104, FT 2001-02, Almindelige bemærkninger. 129  The Act on a Labour Court, s 12. 130  See eg Supreme Court Ruling U2006.2346H, where an employer could reduce the weekly working hours from 37 to 20 due to a decline in business, as the business did decline, there was only one employee, and the employer employed a new person only part-time. 131 Kristiansen, Grundlæggende arbejdsret (n 5 above) p 337, see eg Western High Court Ruling of 15 December 2000, case B-2443-99, where a reduction in working hours from 37 per week to 25 per week was considered such a significant change in the agreed terms that the reduction equated to a termination of the contract, and the employee received compensation for discriminatory dismissal as well as a severance payment.

Atypical Employment Relationships—The Position in Denmark 181 specifically limit or prohibit the use of part-time work.132 If not specifically addressed in an agreement, the employer has the managerial power to make decisions on working time. In all collective relationships, any managerial decision must have legitimate cause, ie must be based on reasons linked to the conduct of business.133 If no provisions in a collective agreement specifically address the issue, a reduction of hours can only be unilaterally executed when there is legitimate cause, when the reduction is not considered an illegitimate act against certain trade union members,134 after giving due notice equivalent to the notice of termination,135 and by observing any statutory protections against discrimination. On the issue of a specific right of the employee to require a change to part-time work, most part-time work agreements are subject to a voluntary agreement between the employer and the employee. There is no general right to work part time, and a right to work part time is recognised only in very specific circumstances. This is the case for persons with a disability; the employer’s duty is to provide accommodating measures which includes a duty to offer reduced working hours,136 unless this is considered unreasonable for the employer.137 For persons on parental leave,138 on sick leave,139 or persons close to retirement, there is no statutory obligation on the employer’s part to offer part-time work. Collective agreements do not generally provide for a right to reduced working hours.140 Some collective agreements have recently abandoned the right to reduced working hours for senior employees, for example.141 Some agreements have introduced a limited right to a reduction of working hours.142 132 

See eg Industrial Arbitration Ruling of 29 February 2016. eg Labour Court case No 90240 of 1991, and Industrial Arbitration Ruling of 31 May 2005. 134  O Hasselbalch, Den Danske Arbejdsret (n 7 above) ch XXIV, 3.2. and XVIII, 4.2.3., principles established by the Labour Court decades ago, see eg cases from the Labour Court, AR 4808 and AR 1727. 135  See eg Industrial Arbitration Case of 23 January 2017, FV2016.0107. 136  See eg Joined Cases C-335/11 and C-337/11, Ring v Dansk almennyttigt Boligselskab and Skouboe Werge v Pro Display A/S (in Liquidation), Commercial and Maritime Court Ruling U2014.1223SH (Ring) and Supreme Court Ruling U2015.301H (Skouboe Werge). 137 See eg Supreme Court Ruling U2016.2463, where the employer was not required to provide part-time employment to a disabled employee, as establishing two part-time positions in a small office was a financial burden too heavy to bear. 138  Act on Parental Leave, Barselsloven, lovbekg No 67 af 25 January 2019. 139  Act on Sick Leave Benefits, Sygedagpengeloven, lovbekg No 68 af 25 January 2019. 140  Articles by trade unions support this view, eg: www.djoefbladet.dk/ nyheder/2016/03/dr-oe-mmer-du-om-deltid.aspx, and www.magisterbladet.dk/magisterbladet/2016/022016/022016, p 24. 141 For example, collective agreement for schoolteachers 2016, Overenskomst for lærere m.fl. i folkeskolen og ved specialundervisning for voksne, between KL (National organisation for local municipalities) and Lærernes Centralorganisation (Central Association of School teachers). 142  For example, collective agreement for the insurance sector, Overenskomst 2017 Forsikringsområdet, between Forsikringsforbundet (the Insurance Workers’ Association) and 133 See

182  Natalie Videbaek Munkholm On the issue of the employer and employee’s option to agree to reduce the working hours during employment, the purpose of the Part-time Framework Agreement was to facilitate the development of part-time work on a voluntary basis.143 An employer and employee not covered by a collective agreement can agree to any changes to the employment contract, subject only to statutory legislation and basic principles of labour law. Prior to the Part-time Act, an employer and employee covered by a collective agreement were bound by specific provisions in the collective agreement, general principles of industrial relations, as well as the individual contract terms. Quite a few collective agreements excluded the worker and employer from agreeing on part-time employment. Already in 2002, the Part-time Act was amended to provide a legal basis for the employer and employee to agree to part-time work, overruling any limitations in collective agreements. This amendment was intensely debated in the parliamentary Labour Market Committee, Arbejdsmarkedsudvalget.144 The concept of ‘voluntarily’ agreeing to part-time work was heavily criticised. The critics stated that the option to individually agree on terms counter to terms collectively negotiated ‘removes the protection of the worker from the collective agreement, and the employer becomes the stronger party’. They also maintained that the proposal allowed the employer to force the individual employee into a part-time agreement, with a reduction of wages as a consequence.145 The political compromise was to establish two criteria for the admissibility of part-time agreements contrary to collective agreements: 1) Part-time work contrary to collective agreements can only be agreed to during the employment relationship, not upon commencement of employment,146 and 2) provisions in collective agreements requiring a minimum of 15 hours of work per week must be respected.147 Provisions in collective agreements which, as a result of interpretation, customs or practice,148 directly or indirectly limit or prohibit part-time work149 cannot be upheld against the individual agreement of the employer and employee. Minimum weekly hours of, eg 20 or 30 hours per week can be derogated from by agreement down to 15 hours per week.150 FA (the Financial Sector Employers’ Association), introducing a right to part-time work for seniors. 143 

LO/DA Part-time Agreement, s 2(b), cf Part-time Framework Agreement cl 1(b). consultation reports were received by the Committee, 79 deputations visited the Committee, and the Committee asked the Minister of Employment 210 questions during the deliberations, cf Report of the parliamentary Labour Market Committee, Betænkning af 8 May 2002 over Forslag til lov om ændring af lov om gennemførelse af deltidsdirektivet, Betænkning af 25 May and Betænkning af 29 May 2002. 145  Betænkning af 8 May 2002, Mindretallets udtalelse. 146  The Part-time Act s 4a.1. 147  The Part-time Act s 4a.1. 148  L104, FT 2001-02, Bemærkninger til nr 2. 149  L104, FT 2001-02, Almindelige bemærkninger. 150  L104, FT 2001-02, Bemærkninger til nr 2. 144 52

Atypical Employment Relationships—The Position in Denmark 183 The employee is entitled to bring an advisor to these negotiations about part-time work.151 Furthermore, victimisation provisions establish that if the worker is dismissed for declining an offer to work part-time, or for requesting part-time work, s/he is entitled to compensation.152 In these cases, the burden of proof is shared; that is, if the employee provides facts from which it may be presumed that the dismissal was based on these grounds, the employer must prove that this was not the reason for the employee’s dismissal.153 The Part-time Act does not require employers to offer part-time work to employees, nor does it give workers a right to work part time.154 Any regulation on this is found in the collective agreements or the individual employment contract. C.  Opportunities for/Right to an Extension of Working Time This section distinguishes between a unilaterally imposed extension of working time and a voluntary extension of working time. Neither the Part-time Act nor the LO/DA Part-time Agreement provides a right for the employer to unilaterally extend an employee’s working hours. Statutory provisions limiting the organisation of and number of working hours are found in the Working Environment Act and in the Act on Working Time.155 If the worker is not covered by a collective agreement, working time is regulated only by the terms of the employment contract. The managerial power includes decisions on working time. A significant change of working hours outside the agreed terms in the individual contract is considered to lie beyond the employer’s managerial powers. A significant change of the terms of contract is thus considered a termination of the existing contract, with a new offer of employment on the amended terms.156 An extension of working hours can be unilaterally implemented after giving notice equivalent

151 

The Part-time Act, s 4a.2. The Part-time Act, s 4a.3. The Part-time Act, s 4a.4. 154  L104, FT 2001-02, Bemærkninger til nr 2. See eg Board of Equal Treatment ruling of 27 February 2013. 155  O Hasselbalch, Labour Law in Denmark (n 2 above) pp 318–22. 156  O Hasselbalch, Den Danske Arbejdsret (n 7 above) ch XVI, 1.2.1., see Supreme Court Ruling U2012.3063H, where an employer unilaterally extended the working hours from parttime to full-time work due to increased business needs, but this did not have reasonable cause, as the employer did not declare that it would have been impossible to employ another parttime worker. See also the Maritime and Commercial Court Ruling of 31 January 2001, case F-0028-99, where a woman was not in breach of contract by not abiding to the changes to the working time unilaterally imposed by the employer, as the employer had not given due notice of the changes/termination of the contract terms. 152  153 

184  Natalie Videbaek Munkholm to the notice of termination of the contract,157 fulfilling any statutory or collective agreement requirements of legitimate cause for dismissal,158 and observing any statutory protections against discrimination. If covered by a collective agreement, the decision of the employer to unilaterally extend the working hours must comply with the provisions in the collective agreement as well. If no provisions specifically address the issue, the employer’s decision to extend the working hours must have legitimate cause.159 The employer must follow any procedures for changes to the employment relationship, either in a collective agreement or individual contract, and adhere to any regulations on overtime and overtime pay in the collective agreement.160 As regards the parties’ option to voluntarily extend the working time, an employer and employee not covered by a collective agreement can agree on any changes to the working hours in the employment contract within the limitations of the Working Environment Act and the Act on Working Time. If covered by a collective agreement, the employer is additionally obliged to ensure, that the individual agreement between the employer and the employee abides by provisions in the collective agreement relating to working hours. The LO/DA Part-time Agreement specifically states161 that the employer should consider the requests of employees who seek to extend their hours from part-time to full-time work. The provision is a declaration of intent and has not been subject to judicial review. When seeking to extend his/ her working hours, the worker is not entitled to bring an advisor to the negotiations.162 D.  Rights and Status of Part-Time Workers (i)  Equal Treatment Part-time workers have a right to equal treatment. The provisions in the LO/DA Agreement state that in terms of employment conditions, part-time workers shall not be treated less favourably than comparable full-time workers solely because they work part time, unless the differentiated treatment

157 

See eg Industrial Arbitration Ruling of 23 January 2017, case FV 2016.0107. cause is required for dismissals in accordance with the Salaried Employees’ Act, s 2A, and in the General Agreement between the LO and DA, s 4. This was the case in Supreme Court Case U2012.3063H mentioned above. 159  O Hasselbalch, Den Danske Arbejdsret (n 7 above) ch XXIV, 3.2. 160  O Hasselbalch, Den Danske Arbejdsret (n 7 above) ch XXIV, 2. and XVIII, 4.2.2. 161  The LO/DA Part-time Agreement s 5, cf the Part-time Framework Agreement cl 5.3.b. 162  The Part-time Act s 4a.2. 158  Reasonable

Atypical Employment Relationships—The Position in Denmark 185 is justified on objective grounds. The principle of pro rata wages and proportional rights, ie the principle of pro rata temporis, can be used in relation to rights established in a collective agreement.163 Where appropriate and justified by objective reasons, the social partners may make access to particular conditions of employment subject to criteria such as a probation period, seniority, or wages earned. Qualifications relating to access by parttime workers to particular conditions of employment should be periodically reviewed having regard to the principle of non-discrimination as stated in section II.D.(i) above.164 An assessment of whether the principle of equal treatment has been breached consists of two steps. The court first determines whether the parttime worker’s employment conditions are less favourable than the employment conditions of comparable full-timer workers. A ‘comparable full-time worker’ is a full-time worker in the same establishment, with the same type of employment contract or relationship, who is engaged in the same or a similar work, giving due regard to other factors such as seniority and qualifications.165 Where there is no comparable full-time worker in the same establishment, a comparison may be found in an applicable collective agreement, alternatively in accordance with national law, collective agreements or practice.166 When no comparable full-time worker and no collective agreement is applicable, a comparison can be made with a full-time worker covered by a collective agreement which usually regulates the relevant occupation or a similar one.167 This definition of ‘comparable worker’ corresponds168 to the provisions protecting occupational health and safety representatives from unfavourable treatment.169 The test of ‘comparable worker’ often fails. This can be attributable to the varying purposes of part-time and full-time positions,170 or varying levels of qualifications for full-time and part-time work.171 The Part-time Framework Agreement allows for a comparison of groups of part-time workers with groups of full-time workers.172

163 

LO/DA Part-time Agreement s 4.2, cf the Part-time Framework Agreement, cl 4.2. LO/DA Part-time Agreement s 4.2, cf the Part-time Framework Agreement, cl 4.4. 165  LO/DA Part-time Agreement s 3.2, cf the Part-time Framework Agreement, cl 3.2. 166  LO/DA Part-time Agreement s 3.3. 167  The Part-time Act, s 3.1. 168 Hasselbalch, Deltidsloven (n 6 above) p 47; See eg Industrial Arbitration Ruling of 26 September 1981. 169 The Working Environment Act, s 10.2. For an interpretation of collective agreement covering ‘the same or similar work’, see Supreme Court Ruling U2018.900H, where a Health and Safety Representative did not enjoy special protection against dismissal as no collective agreements covered the same or similar work. 170  See eg Industrial Arbitration Ruling of 15 August 2007. 171  See eg Supreme Court ruling U2018.2268H, where part-time scientific staff, eg external lecturers, scientific assistants, and teaching assistants, were not comparable to full-time employed scientific staff, as the level of scientific qualifications differed. 172  See eg also Supreme Court Rulings U2013.727H and U2013.338H. 164 

186  Natalie Videbaek Munkholm The courts then assess whether the less favourable conditions have objective grounds. Purely technical proportionality consequences of part-time employment are considered legal.173 The employer is not required to manage pro rata rights on a day-to-day basis, as long as the rights are granted in full.174 Discrimination can be lawful when it has objective grounds.175 The term ‘objective grounds’ is aligned with the term developed in gender discrimination by the European Court of Justice and by national courts,176 as, statistically, more women than men work part time. This means that any unfavourable treatment must have a legitimate aim, ie it must be connected to the business operations of the enterprise; and the unfavourable treatment must be an appropriate and necessary means to reach this objective.177 Objective grounds exist also in state subsidised employment to facilitate measures for workers who are physically or mentally incapable of working full-time,178 and when collective partners have issued different collective agreements for part-time and full-time employees.179 (ii)  Dismissal Protection Protection against dismissal on grounds of requesting part-time work, refusal to accept part-time work, or refusal to reduce full-time employment to part-time employment180 was introduced in 2002.181 The protection likewise covers refusal to transform part-time employment to full-time employment.182 The Part-time Act does not prevent a restructuring of the business by dismissing a full-time worker to employ a part-time worker, if the restructuring is justified by objective reasons.183 Such cases are subject to a shared burden of proof.184 173  Part-time Act, s 4a.2, cf O Hasselbalch, Den Danske Arbejdsret (n 7 above) ch XIII, 2.3.3.4. 174  See eg Industrial Arbitration Ruling FV 18/10 2006, where extra days off were not given after each flight to part-time employed cabin crew, but were instead distributed over a period of time. The cabin crew nevertheless received the full amount of extra days off. The Part-time Directive and the collective agreement were not breached. 175  Part-time Act, s 4a.4. 176  L214, FT 2000-01, Bemærkninger til § 6; Kristiansen, Grundlæggende arbejdsret (n 5 above) p 286; Hasselbalch, Deltidsloven (n 6 above) pp 43–44. 177  L214, FT 2000-01, Bemærkninger til § 6, cf CJEU Case C-313/02, Nicole Wippel v Peek & Cloppenburg, ECLI:EU:C:2004:607. 178  L214, FT 2000-01, Bemærkninger til § 6. 179  See eg Industrial Arbitration Rulings of 16 June 2008 and of 28 November 2006. 180  See eg Board of Dismissals, afskedigelsesnævnet, Ruling 1244/05 of 31 May 2005. 181  Part-time Act, s 4a.3. cf Part-time Framework Agreement, cl 5.2. 182  Part-time Act, s 4.2 interpreted as the LO/DA Part-time Agreement s 5.3. See eg Supreme Court Ruling U2012.3063H. 183  See eg Supreme Court Ruling of 16 May 2006. 184  The Part-time Act, s 4a(3) and (4). See eg Eastern High Court Case of 2 December 2005, case B-3655-04.

Atypical Employment Relationships—The Position in Denmark 187 (iii)  Other Matters An employer must offer a disabled employee a reduction of working hours,185 if this is considered a reasonable adjustment measure in relation to the worker’s specific disability.186 An employer may agree to grant an employee part-time sick leave, or give him/her the option to return to work part time following a long period of sick leave.187 The employer is not required to grant such measures. The Act on Parental Leave states that an employee may request to take part-time parental leave based on part-time work and part-time leave.188 The employer is not required to grant this request. The Act on Equal Treatment of Men and Women states that parents can request a change in working hours, such as part-time work, upon returning to work from parental leave. The employer must consider and respond to the request, but is not required to grant the request. The duty to respond to the employee’s request is not sanctioned.189 If the employee is dismissed as a result of submitting such a request, the employer must pay compensation.190 E.  Information and Consultation The Part-time Act does not regulate participation of part-time workers in the enterprise’s representative bodies. Regulations on information and consultation procedures at the enterprise are primarily found in collective agreements, with supplementary statutory provisions in the Act on Information and Consultation of Employees, Lov om information og høring af lønmodtagere.191 Part-time workers, just like full-time workers, have the right to participate in negotiations and in collective actions against their employer when negotiating to conclude a collective agreement at enterprise level. When covered by a collective agreement, the rules on trade union representatives, tillidsrepræsentanter, apply. These are established in collective agreements.192 If no express provisions state otherwise, the presumption is that part-time workers can be elected to such positions and can vote in elections on the same terms as full-time workers and on a per head 185 

The Equal Treatment Act. See eg Supreme Court Ruling of 13 April 2016. 187  The Act on Sick Leave Benefits, s 7. 188  The Act on Parental Leave, s 12. 189  The Act on Equal Treatment of Men and Women, s 8a(2). 190  The Act on Equal Treatment of Men and Women, s 9. The level of compensation is not set by the legislator, but is at the discretion of the court. 191  The Act on Information and Consultation of Employees. 192  On the issue of trade union representatives, see Hasselbalch, Labour Law in Denmark (n 2 above) pp 220–24. 186 

188  Natalie Videbaek Munkholm basis.193 The special dismissal protection afforded to employee representatives extends to protection against unilateral reduction of working hours to part-time work and against unilateral extension of working hours from part-time to full-time work (see III.B and III.C above).194 When covered by a collective agreement, the regulations on information and consultation procedures at plant level are found in the agreements between the social partners, usually called ‘cooperation agreements’, samarbejdsaftaler. Different sectors have cooperation agreements, whereas the DA/ LO Cooperation Agreement,195 and the Cooperation Agreement for State Employers196 cover the majority of work places. The DA/LO Cooperation Agreement establishes a cooperation organisation in work places employing more than 35 employees. The number of employees is counted per head. The DA/LO Cooperation Agreement does not include a specific regulation on part-time workers with regard to the cooperation structure, and the presumption is that part-time workers enjoy the same rights as full-time workers, such as the right to be informed.197 The work is carried out in cooperation councils, samarbejdsudvalg, where the existing trade union representatives are members acting on behalf of the employees, and—if additional seats are allocated to employee representatives—elections are held according to the rules of elections of trade union representatives.198 Part-time workers can vote and be elected under the same terms as full-time workers. In enterprises not covered by a collective agreement providing information and consultation procedures, the Act on Information and Consultation of Employees applies.199 In work places with more than 35 employees, the employer is required to inform the employees about all issues of relevance to employees, and to consult the employees on the given issues.200 The total of 35 employees is calculated on a per head basis.201 The information and consultation must take place through the ordinary trade union representatives, supplemented with representatives of groups not represented by the ordinary employee representatives.202

193  See eg Agreement on work-place representatives in the State, CIR No 9671 of 30 September 2008 as amended by CIR No 9611 of 6 November 2013. 194  Question No S 1504 to the Minister of Employment regarding the Part-time Act, 3 April 2002: www.webarkiv.ft.dk/Samling/20012/spor_sv/S1504.htm. 195  Samarbejdsaftalen 2006 mellem LO og DA, 27 October 2006. 196  Aftale af 29. May 2002 om samarbejde og samarbejdsudvalg i statens virksomheder og institutioner. 197  DA/LO Cooperation Agreement ch 2. 198  DA/LO Cooperation Agreement ch 4. 199  Act on Information and Consultation, s 3.2. 200  Act on Information and Consultation, ss 4.1. and 4.3. 201  Proposed Act on Information and Consultation, Bemærkninger til § 2. 202  Act on Information and Consultation, s 6. It is the obligation of the employer to ensure that all groups are informed and consulted, cf Hasselbalch, Informations- og samrådsloven med kommentarer (Forlaget Thomson A/S, 2005) pp 90–94.

Atypical Employment Relationships—The Position in Denmark 189 The Working Environment Act regulates part-time workers’ rights in the organisation of health and safety at the enterprise. In work places with 10 employees or more, the employees elect health and safety representatives.203 The number of employees is calculated per head, and part-time workers count as full-time employees.204 All employees can vote in the election of health and safety representatives, including part-time workers.205 All employees may stand for election, but are usually subject to the same criteria as for being elected trade union representatives, such as seniority and certain qualifications.206 Full-time work is not a requirement. Finally, as regards employee representation in strategic decision-making bodies of the enterprise, the Companies Act, selskabsloven,207 states that in enterprises of more than 35 workers on average over the last three years, the employees are entitled to elect employee representatives to the most superior governing body, ie the Board.208 The average of 35 workers refers to fulltime workers; part-time employees in this case count pro rata.209 Part-time workers can vote in elections (per head),210 and are eligible to stand for election.211 F.  Other Part-Time Arrangements Enterprises covered by a collective agreement can, in certain situations, unilaterally impose temporary reductions of the weekly working hours.212 This may take the form of temporary layoffs, where the employer temporarily reduces the working hours for certain groups of workers, in reality unilaterally imposing temporary part-time work. This measure is used when the employer is temporarily unable to provide sufficient work. The legitimacy can be tested by the courts. The terms are usually provided in the

203 

The Working Environment Act, ss 6a and 6b. Work Environment Guideline issued by the Danish Working Environment Authority, AT-vejledning F.3.3-1.4. Salaried Employees count if they work at least 10 hours per week. 205  AT-vejledning F.3.3-1, 10.3. Salaried Employees can vote if they work at least 10 hours per week. 206  AT-vejledning F.3.3-1, 10.2. 207  The Companies Act, Lovbekg No 1089 af 14 September 2015 om aktie- og anpartsselskaber (selskabsloven), s 140. 208  Danish companies use one-tier or two-tier board structures; the regulation gives a right to representation at the most strategic level. 209  Executive Order on Board-Level Employee Representation, Bekendtgørelse om medarbejderrepræsentation i aktie- og anpartsselskaber, No 344 af 30 March 2012, s 12. 210  Executive Order on Employee Representation, s 15 establishes no requirement for fulltime employment or pro rata voting rights, see eg Eastern High Court Ruling U2009.1371Ø. 211  Executive Order on Employee Representation, s 16 establishes no requirement for fulltime employment. 212 Hasselbalch, Deltidsloven (n 6 above) p 1. 204  The

190  Natalie Videbaek Munkholm collective agreement, namely whether the employees retain their right to pay for the days or hours not worked during a temporary layoff.213 If the enterprise is not covered by a collective agreement, lack of work and temporary layoffs are resolved as a situation of mora creditoris, fordringshavermora, under Danish contract law, where one contractual party prevents the other party from performing his/her contractual duties, with the consequence that the non-performing party retains a right to payment.214 When an employer is not able to provide work for the workers and temporarily lays them off, the workers under this principle retain their right to remuneration from the employer. In this case, the workers who temporarily perform part-time work will continue to receive full-time remuneration. In situations where circumstances beyond the employer’s control prevent the performance of work, eg force majeure or unforeseen delayed deliveries, the employer may also lay off the workers temporarily. If there is a legitimate reason,215 and the temporary layoff is a necessary measure,216 the employer may only remunerate the workers for the hours actually worked. During an unpaid temporary layoff of this type, the worker may be entitled to unemployment benefits.217 Reductions can also take place within the framework of work distribution schemes. These are temporary arrangements to avoid redundancies by way of sharing the available work by reducing the hours of groups of workers. Such measures require approval by trade union representatives.218 Work distribution schemes can be implemented as weekly hourly reductions or as temporary layoffs on specific days of the week.219 If the social partners agree, other temporary or permanent part-time arrangements can be introduced.

213  See eg Industrial Arbitration Ruling FV 19/12-1996, where delayed deliveries were the employer’s fault and not provided for in the collective agreement. The employer had to consequently pay wages. 214  See further on fordringshavermora in labour relations, Hasselbalch, Den Danske Arbejdsret (n 7 above) ch XV, 2. 215  Such as circumstances beyond the control of the employer, see eg Industrial Arbitration Ruling FV 19/12-1996, where delayed deliveries were considered the employer’s fault, and thus not a legitimate reason. 216  See eg Industrial Arbitration Ruling FV 15/10-1999, where the employer did not investigate alternative uses of the employees’ qualifications prior to the temporary layoff. 217 Circular on Unemployment Benefits during temporary layoffs and holiday closures, Skrivelse om ledighed og dagpengeret under hjemsendelse og ferielukning CIS No 9569 af 22 November 2012, appendix 1. 218  The most renowned was the Aarhus Garbage Collectors’ Agreement in 1993 where all workers agreed to work reduced hours, 4 workers shared the work of 3, in order to avoid redundancies. 219 Hasselbalch, Deltidsloven (n 6 above) p 2, Hasselbalch, Den Danske Arbejdsret (n 7 above) ch XIV, 2.3.

Atypical Employment Relationships—The Position in Denmark 191 G.  Collective Bargaining Agreements Deviating from Statutory Provisions The Part-time Act does not interfere with any regulations in collective agreements on negotiating part-time work upon hiring. Provisions in collective agreements that directly or indirectly limit the freedom of the employer and employee to agree on part-time employment during employment are not enforceable.220 Neutral or unclear provisions cannot be interpreted in a way that is contrary to the right of the parties according to the Part-time Framework Agreement.221 IV.  TEMPORARY AGENCY WORK222

The Temporary Agency Work Directive223 was implemented in Denmark in 2013 by the Act on Temporary Agency Work, Vikarloven (the Temporary Agency Worker Act).224 Until then, temporary agency work was not explicitly regulated by statute. Traditionally, temporary work agencies were viewed with suspicion, and private job placement services were prohibited until 1990. Since the 1990s, temporary work agencies have been viewed as offering services like any other businesses.225 Temporary agency work is characterised by the tripartite employment relationship, where the temporary agency worker has an employment relationship involving two entities, one with the temporary work agency and one with the user undertaking. The formal employment relationship is established with the temporary work agency. General employment regulations apply to temporary agency workers, eg holiday rights,226 the right to be informed about the terms and conditions of employment,227 and the Working Environment Act. Temporary agency workers are not covered by the Salaried Employees’ Act, as the temporary agency worker is not in a ‘relationship of service’,

220 

The Part-time Act, s 4a.1. Industrial Arbitration Ruling FV 18/10 2006. 222 For a general introduction to the rules, see Hasselbalch, Labour Law in Denmark (n 2 above) s 159; Hasselbalch, Den Danske Arbejdsret (n 7 above) ch III, 3.1.; Kristiansen, Grundlæggende arbejdsret (n 5 above) pp 294–300; Kristiansen, Den kollektive arbejdsret, 3rd edn (DJØF, 2014) pp 243–50; Nielsen, Dansk Arbejdsret (n 3 above) pp 515–23; J Falsner, Den europæiserede vikar (Copenhagen University, 2015). 223  Directive 2008/104/EC of the European Parliament and the Council of 19 November 2008 on temporary agency work (the Temporary Agency Work Directive). 224  Lov No 595 af 12 June 2013 om vikarers retsstilling ved udsendelse af et vikarbureau mv (the Temporary Agency Worker Act). 225 Kristiansen, Grundlæggende arbejdsret (n 5 above) pp 294–95. 226  Lovbekg No 1177 of 9 Oktober 2015 om ferie, s 1, and new Holiday Act (in force from 1 January 2020) Lov No 60 af 30 January 2018 om ferie, s 2. 227  The Act on a Written Statement. 221 

192  Natalie Videbaek Munkholm tjenesteforhold,228 ie a traditional subordination relationship, as the worker is not required to perform work at the request of the temporary work agency. The Temporary Agency Worker Act is the primary source of law regulating temporary agency work. The Act is supplemented by collective agreements. A.  Legal Definitions/Formal Requirements The Temporary Agency Worker Act applies to temporary agency workers who have entered into a contract of employment or an employment relationship with a Danish or an international temporary work agency, and who are assigned to user undertakings in Denmark to temporarily work under their supervision and direction.229 Temporary workers employed directly by an employer are not covered by the Temporary Agency Worker Act. Employment relationships concluded under the framework of a specific public or publicly subsidised programme, concerning social and employment promoting activities aimed at vocational training, labour market integration or retraining are not covered.230 The Temporary Agency Worker Act governs Danish as well as international temporary work agencies. A temporary agency worker employed by a temporary work agency in another EU Member State and posted to work at a Danish user undertaking has a right to the same salary and working conditions as a temporary agency worker employed by a Danish temporary work agency assigned to the same user undertaking.231 Public and private temporary work agencies that carry out economic activities232 are covered by the Temporary Agency Worker Act.233 Regarding ‘economic activities’, the Temporary Agency Worker Act draws on the jurisprudence developed on transfers of undertakings,234 and the Act applies regardless of whether the purpose of the entity is economic profit.235 A ‘temporary work agency’ is a natural or legal person who concludes contracts of employment or employment relationships with temporary 228  Proposal for a Temporary Agency Worker Act, L209, FT 2012-13, Almindelige bemærkninger, 2. cf Salaried Employees’ Act, s 1. 229  The Temporary Agency Worker Act, s 1, cf Temporary Agency Work Directive, art 1.1. 230  The Temporary Agency Worker Act, s 1.3, cf the Temporary Agency Work Directive, art 1.3. 231  Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, art 3.9 cf art 1.3c. 232  L209 FT 2012-13, Bemærkninger til § 1. 233  The Temporary Agency Worker Act, s 1, cf Temporary Agency Work Directive, art 1.2. 234  Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employee rights in the event of transfer of undertakings, businesses or parts of undertakings or businesses. 235  The Temporary Agency Worker Act, s 1.2, cf Case C-216/15 Betriebsrat der Ruhrlandklinik v Ruhrlandklinik gGmbH, ECLI:EU:C:2016:883.

Atypical Employment Relationships—The Position in Denmark 193 agency workers to assign them to user undertakings for temporary work under the latter’s supervision and direction.236 All the elements of this definition must be met.237 Contracting agreements where workers are under the instruction and direction of the sending contractor are not covered.238 Likewise, lending agreements, where an enterprise lends out its employees to another enterprise, are not covered, as the business purpose of the lending enterprise is not to assign temporary agency workers.239 A ‘temporary agency worker’ is a worker with a contract of employment or an employment relationship with a temporary work agency with a view to being assigned to a user undertaking to temporarily work under its supervision and direction.240 Only temporary workers employed by a temporary work agency and only ‘employees’, lønmodtagere,241 are covered.242 The term ‘employee’ is not defined in the Act, and there is no uniform statutory definition of the term ‘employee’ in Denmark. The most commonly used definition is in the Act on a Written Statement: ‘a person who receives remuneration for personal work in an employment relationship’.243 Case law has confirmed that a temporary agency worker fulfils this definition.244 Only temporary agency workers employed for the purpose of being assigned are covered.245 A ‘user undertaking’ is any natural or legal person for whom and under whose supervision and direction a temporary agency worker is temporarily performing work.246 The assignment is the period during which the temporary agency worker temporarily performs work at the user undertaking under its supervision and direction.247 B.  Registrations, Licensing, Financial Guarantees, etc The Temporary Agency Worker Act does not establish restrictions on establishing temporary work agencies, and there are no requirements for public authorisation under Danish law. Danish as well as international 236 

The Temporary Agency Worker Act, s 2.1. L209, FT 2012-13, Bemærkninger til § 2, No 1. 238  See eg Labour Court Ruling 2005.022. 239  L209, FT 2012-13, Almindelige bemærkninger, 3.1. 240  The Temporary Agency Worker Act, s 2.2, cf Temporary Agency Work Directive, art 3.1(c). 241 Hasselbalch, Labour Law in Denmark (n 2 above) p 17. 242  L209, FT 2012-13, Bemærkninger til § 2, No 2. 243 The Act on a Written Statement, see eg Kristiansen, The Concept of Employee, The Position in Denmark, s 2.1 in B Waas and G H van Voss (eds), Restatement of Labour Law in Europe. Vol 1: The Concept of Employee (Hart Publishing 2017). 244  Maritime and Commercial Court Ruling U1999.1879S. 245  L209, FT 2012-13, Almindelige bemærkninger, 3.1. 246  The Temporary Agency Worker Act, s 2.3, cf Temporary Agency Work Directive, art 3.1(d). 247  The Temporary Agency Worker Act, ss 2, 4, cf Temporary Agency Work Directive, art 3.1(e). 237 

194  Natalie Videbaek Munkholm temporary work agencies can assign temporary agency workers to Danish enterprises.248 A temporary work agency established outside of Denmark, posting workers or posting temporary agency workers to Danish enterprises, must register with the Registry of Foreign Service Providers (RUT).249 C. Relationship between Temporary Agency Worker and Temporary Work Agency The temporary agency worker is employed by the temporary work agency. This is stated in the Temporary Agency Worker Act and was also the case in Danish law before the Temporary Agency Worker Act.250 The temporary work agency is liable for securing the temporary agency worker’s employment rights. (i)  Fixed-Term and Part-Time Contracts The Fixed-term Act does not apply to temporary agency workers.251 This means that temporary agency workers who are employed by an agency on a fixed-term contract or on a fixed-term project contract are governed by the Temporary Agency Worker Act and not by the Fixed-term Act.252 When a temporary agency worker concludes an agreement253 with the temporary work agency to be assigned part-time work at a user undertaking, the Part-time Act applies.254 The temporary agency worker can claim his/her rights under the Part-time Act against the agency by comparing his/her situation to a comparable full-time worker at the temporary work agency. It may not be possible to find a suitable comparable full-time worker employed by the agency. As temporary agency workers may be assigned to a variety of user undertakings, giving the assigned workers the rights and working conditions that are applicable at the user undertaking in casu, it may not be possible to find a full-time temporary agency worker with comparable working conditions to the part-time temporary agency worker. If it is not possible to find a comparable full-time worker at the agency,

248 Kristiansen,

Grundlæggende arbejdsret (n 5 above) pp 295–96. Act on the Posting of Workers, Lovbekg No 1144 af 14 September 2018 om udstationering af lønmodtagere mv, s 7a, cf s 4.1(3). 250  See eg Supreme Court Rulings U1997.1495H and U2001.987H. 251  Fixed-term Act, s 2.2(1). 252 Hasselbalch, Tidsbegrænset ansættelse (n 7 above) p 32. 253  Often the agreement between the temporary agency worker and the agency states that the worker is free to decline assigned work, cf Hasselbalch, Den Danske Arbejdsret (n 7 above) ch III, 3.1. 254 Falsner, Den europæiserede vikar (n 222 above) p 164. 249 

Atypical Employment Relationships—The Position in Denmark 195 a comparable full-time worker at the user undertaking can be used. If no such worker is available, a comparison will be made to the conditions agreed in the collective agreement of the user undertaking, or the customarily applied collective agreement for the work being performed.255 (ii)  Rights and Obligations/Liability The principle of equal treatment for temporary agency workers during an assignment256 specifically covers the following working conditions: hours of work, overtime hours, breaks, periods of rest, night work, annual leave, public holidays and remuneration. The temporary work agency must ensure that the temporary agency worker ‘as a minimum’ receives the same terms that apply if the temporary agency worker had been employed directly by the user undertaking for the same position. This is the first part of the principle of equal treatment. When applying these working conditions, the user undertaking’s applicable rules on protection of pregnant women and nursing mothers, children and young people, equal treatment of men and women and measures to combat discrimination based on gender, race, ethnic origin, religion or belief, disability, age or sexual orientation must be applied equally to temporary agency workers.257 This is the second part of the principle of equal treatment. The Act on a Written Statement applies to temporary agency workers to the same extent as to ordinarily employed workers, and the agency must inform the worker about the terms and conditions of employment.258 Upon request, the temporary agency worker is entitled to receive information259 about the working conditions during an assignment.260 Successive assignments of a temporary agency worker to the same user undertaking are prohibited, unless this has legitimate reasons.261 The Temporary Agency Worker Act does not address user undertakings which have legitimate reasons for hiring temporary agency workers successively, but this can be prohibited in collective agreements.262 The purpose is to prevent circumvention of the protection of the worker in section 3.1–3.3.263 Temporary work agencies cannot charge temporary agency workers264 any fee in exchange for arranging employment with a user undertaking after 255 Falsner,

Den europæiserede vikar (n 222 above) pp 164–65. The Temporary Agency Worker Act, s 3.1. 257  The Temporary Agency Worker Act, s 3.2 cf Temporary Agency Work Directive, art 5.1. 258  See eg Commercial and Maritime Court Ruling U1999.1870SH. 259  See eg Supreme Court Ruling of 23 August 2016, case 90/2015. 260  The Temporary Agency Worker Act, s 3.3. 261  The Temporary Agency Worker Act, s 3.4. 262  L209, Minister of Employment’s answer to question 13, and Hasselbalch, Den Danske Arbejdsret (n 7 above) ch III, 3.1. 263  L209, FT 2012-13, Bemærkninger til § 3. 264  Cf User undertakings, see below at III.D, cf L209, FT 2012-13, Bemærkninger til § 4. 256 

196  Natalie Videbaek Munkholm having been assigned to that undertaking.265 An agency in breach of this provision can be fined.266 A temporary work agency, which by intent or gross negligence breaches the principle of equality, can be sanctioned with fines.267 The temporary agency worker is entitled to compensation when the principle of equal treatment, the prohibition of successive assignments without legitimate cause, or the duty to be informed is breached.268 Compensation is additional to receiving any outstanding payments.269 Disputes arising out of collective agreements about the application of the principle of equal treatment, the limitation of successive assignments or the duty to inform the worker are settled in accordance with the industrial dispute resolution system.270 The mandate to raise claims under the industrial dispute resolution procedures lie with the social partners or the individual employer.271 If a claim for breach of collective agreement provisions applicable to temporary agency workers is not heard by the Labour Court, the claim can be assessed by the ordinary courts.272 The temporary work agency is responsible for providing a safe and healthy work environment and for insuring the worker against occupational injuries when the temporary worker is under the instruction of the temporary work agency.273 (iii)  Dismissal Protection The Temporary Agency Worker Act does not establish dismissal protection for temporary agency workers. The principle of equal treatment applies only

265 

The Temporary Agency Worker Act, s 4.2. Temporary Agency Worker Act, s 8.1. The Act does not state the level of the fine, and it is left to the courts to consider this. So far, there is no case law on this provision. 267  Temporary Agency Worker Act, s 8.2 cf L209, FT 2012-13, Bemærkninger til § 8. The Act does not state the level of the fine, and it is left to the courts to consider this. So far, there is no case law on this provision. 268  Temporary Agency Worker Act, s 8.3. 269 L209, FT 2012-13, Bemærkninger til § 8; the amount of compensation is not established in the Act, and is left to the discretion of the courts. See eg Supreme Court Ruling U2016.3736H, where the principle of equal treatment was breached with regard to the number of days off, wage benefits, and the employer’s contribution to pensions. The Supreme Court ordered compensation, taking into account the Temporary Agency Work Directive, art 10.2, whereby the sanction must be effective, proportionate and dissuasive. As the employee had already received full compensation for her loss of salaries and pensions, the court set the compensation at DKK 15,000 (EUR 2,000). 270  Temporary Agency Worker Act, s 3.5. cf Act on a Labour Court, s 9.2. 271  Act on a Labour Court, ss 13.1 and 23.1. 272  Temporary Agency Worker Act, s 8.4. 273 Act on Insurance against Industrial Injuries, Arbejdsskadesikringsloven, Lovbekg No 216 of 27 February 2017 om arbejdsskadesikring; see eg The Appeals Committee for Industrial Injuries, Ankestyrelsen, Ruling No 184-10. 266 

Atypical Employment Relationships—The Position in Denmark 197 to the working conditions mentioned and does not modify any ­agreements or regulations on dismissal.274 The temporary agency worker is not covered by the Salaried Employees’ Act and its requirements of notice of termination or of reasonable cause.275 The user undertaking or the temporary work agency can be covered by a collective agreement which requires reasonable cause for dismissal of employees with a certain seniority, eg nine months’ employment.276 When collective agreements specifically cover temporary agency workers such dismissal protection does apply. The temporary agency worker can, however, be in a situation, where s/he is not covered by any provisions requiring notice or reasonable cause for dismissal, or where s/he does not fulfil a seniority criterion for being covered by the protection. In this situation, the temporary agency worker can be dismissed without cause and without notice.277 D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship The relationship between the worker and the user undertaking is not contractual. The obligations of the user undertaking towards the worker arise from provisions in the contract with the temporary work agency and provisions in the Temporary Agency Worker Act. The Act establishes the duty of the user undertaking to inform temporary agency workers at the enterprise about available posts in the company,278 and the duty to provide access to collective facilities and benefits.279 Due to the particular nature of the employment relationship, some employer obligations naturally must be observed by the user undertaking whilst the temporary agency worker performs work at the enterprise. This includes the health and safety of the temporary agency worker.280 Along the same lines, the user undertaking is entitled to the exercise of managerial powers, such as monitoring and controlling the work and the worker, supervising and instructing the worker, and issuing workplace regulations which must be followed by the temporary agency workers. As such, the employer responsibilities are somewhat shared between the temporary work agency and the user undertaking.281 274 Hasselbalch, Den Danske Arbejdsret (n 7 above) ch III, 3.1.; cf Question 13 to the Minister of Employment, L209, FT 2012-13. 275  See eg Supreme Court Ruling U 1997.1495 H. 276  As eg in the DA and LO General Agreement s 4. 277  See eg Maritime and Commercial Court Ruling U 1999.1870 SH. 278  Temporary Agency Worker Act, s 5.1. 279  Temporary Agency Worker Act, s 6.1. 280 Hasselbalch, Den Danske Arbejdsret (n 7 above) ch III, 3.1. 281 Hasselbalch, Den Danske Arbejdsret (n 7 above) ch II, 3.1.

198  Natalie Videbaek Munkholm (ii)  Rights and Obligations/Liability The user undertaking must inform temporary agency workers about vacant posts.282 A collective agreement implementing as a minimum the rights guaranteed by the Temporary Agency Worker Directive283 may deviate from this provision. The temporary agency worker must be given access to any amenities and collective facilities, such as the cafeteria or lunch facilities, child care facilities and transport services, under the same conditions as workers employed directly by the undertaking, unless the difference in treatment is justified for legitimate reasons.284 Again, this provision does not apply if the worker is covered by a collective agreement implementing the Temporary Agency Worker Directive.285 The user undertaking must pay compensation to the worker if these rights are breached.286 Disputes involving rights arising out of collective agreements are settled in accordance with the rules of industrial dispute resolution. If a complaint is not brought before or heard by the Labour Court, the claim can be assessed by the ordinary courts.287 Temporary agency workers can be directly covered by applicable collective agreements at the user undertaking.288 Many collective agreements explicitly apply to temporary agency workers.289 The presumption is that collective agreements are applicable to temporary agency workers, even when not expressly stated in the agreement. When collective agreements apply to temporary agency workers, the temporary agency workers are entitled to all working conditions in the collective agreement, not just the working conditions protected by the principle of equal treatment. (iii)  Health and Safety The Working Environment Act establishes duties on any employer to ensure a safe and healthy working environment at the enterprise.290 The employer is responsible for any work performed at the premises, including work

282 

Temporary Agency Worker Act, s 5, cf Temporary Agency Work Directive, art 6.1. Temporary Agency Worker Act, s 5.2. 284  Temporary Agency Worker Act, s 6.1, cf Temporary Agency Work Directive, art 6.4. cf L209, FT 2012-13, Bemærkninger til § 6. 285  Temporary Agency Worker Act, s 6.2, cf Temporary Agency Work Directive, art 6.4. 286  Temporary Agency Worker Act, s 8.2. The amount is left to the discretion of the courts. 287  Temporary Agency Worker Act, s 8.4. 288  See eg Industrial Arbitration Rulings of 9 July 2011 and 26 July 2011 cf Falsner, Den europæiserede vikar (n 222 above) p 259. 289 Kristiansen, Den kollektive arbejdsret (n 222 above) pp 245–50. 290  The Working Environment Act, s 1. 283 

Atypical Employment Relationships—The Position in Denmark 199 performed by temporary agency workers.291 Temporary agency workers enjoy the same protection as workers employed at the user undertaking, as long as the temporary agency worker performs work for the benefit of and under the instruction of the user undertaking.292 The Working Environment Act counts temporary agency workers as employees of the enterprise, when assessing what kind of working environment the employer is required to establish.293 The user undertaking is responsible for insuring the temporary agency worker against accidents at work and for registering industrial injuries with the authorities for as long as the temporary agency worker performs work for the benefit of and under the instruction of the user undertaking.294 E.  Relationship between Temporary Work Agency and User Undertaking Any clauses between the temporary work agency and the user undertaking preventing the conclusion of an employment relationship between the user undertaking and the temporary agency worker are not enforceable.295 The temporary work agency can receive a reasonable payment from the user undertaking for the assignment, employment and training of temporary agency workers.296 An unreasonable payment is inadmissible.297 A payment is unreasonable when it deters the user undertaking from employing the worker.298 This corresponds to the development in the collective relationship. According to the General Agreement between the DA and the LO, none of the parties may establish any obstacles preventing a worker from carrying out as much good quality work as possible in accordance with his/her skills and education.299 This provision prohibits employment clauses in a contract between a temporary work agency and a user undertaking.300 An employer covered by a collective agreement must apply the provisions to all workers at the enterprise performing work covered by the agreement,

291 Nielsen, Dansk Arbejdsret (n 3 above) p 728; The Administrative Order on the performance of work, Bekg No 559 of 17 June 2004 om arbejdets udførelse, implements Council Directive 91/383/EEC. 292 Hasselbalch, Den Danske Arbejdsret (n 7 above) ch III, 3.1. 293 See eg Administrative guide, AT-vejledning F.3.2-1 No 11354 of 30 December 2015 Samarbejde om arbejdsmiljø i virksomheder med 10-34 ansatte. 294  Act on Insurance against Industrial Injuries. 295  The Temporary Agency Worker Act, s 4. 296  The Temporary Agency Worker Act, s 4, cf Temporary Agency Work Directive, art 6.2 and 6.3. 297  L209, FT 2012-13, Bemærkninger til § 4. 298  L209, FT 2012-13, Almindelige bemærkninger, 4.3. cf Lov No 460 af 17 June 2008 om arbejdsgivers brug af jobklausuler. 299  The General Agreement between LO and DA, s 9.2. 300  See Labour Court Ruling 2005.721.

200  Natalie Videbaek Munkholm regardless of the union membership status of the workers. The user undertaking must inform the temporary work agency about applicable collective agreements and employment conditions.301 A user undertaking can be made jointly liable for a temporary work agency’s failure to assure a temporary agency worker the full rights of an applicable collective agreement. The user undertaking can in this situation be fined for breach of the collective agreement.302 User undertakings have been held liable even when the breach was entirely the fault of the temporary work agency.303 The Temporary Agency Worker Act did not aim to amend or reduce these industrial relations developments.304 This has been confirmed by judicial review.305 F.  Rights and Status of Temporary Agency Worker (i)  Equal Treatment The temporary agency worker is entitled to at least the same employment conditions regarding hours of work, overtime hours, breaks, periods of rest, night work, annual leave, official holidays and remuneration as if s/he had been directly employed at the user undertaking for the same type of work.306 The regulation of these employment conditions is found in collective agreements, statutory legislation or binding customary practices, kutymer, at the user undertaking. Legislation regulates maximum weekly working time, breaks, periods of rest, night-time work and holidays. Collective agreements can provide rights that are more favourable than those stated in statutory regulations. Collective agreements traditionally ensure rights with regards to working time and pay. This includes the standard full-time weekly hours of work— usually 37 hours per week, overtime pay, public holidays with pay, extra holiday days with pay, pensions and remuneration structures. If a collective agreement is applicable at the user undertaking, and the work performed by the temporary agency worker is covered by the collective agreement, the principle of equal treatment ensures that the temporary agency worker is guaranteed the rights derived from the collective agreement. The provisions

301 Kristiansen,

Den kollektive arbejdsret (n 222 above) p 247. See eg Labour Court Rulings 2004.339 and 2004.865. 303 Kristiansen, Virksomheders hæftelse for vikarbureauers manglende overholdelse af overenskomstmæssige forpligtelser (AT, 2006) pp 224–26; Kristiansen, Den kollektive arbejdsret (n 222 above) p 247. 304  L209, FT 2012-13, Almindelige bemærkninger, 3.2.1. and 3.2.2. 305  See Industrial Arbitration Ruling FV 2015.0004, cf Falsner, Den europæiserede vikar (n 222 above) pp 262–63 and 277. 306  L209, FT 2012-13, Almindelige bemærkninger, 3.2.1. 302 

Atypical Employment Relationships—The Position in Denmark 201 on remuneration in the collective agreement establish the minimum remuneration entitlements. These include, eg pay supplements, pensions and overtime payments. If the temporary agency worker meets the criteria for supplements, s/he is entitled to receive additional pay supplements from the agency.307 The temporary agency worker can be assigned to a user undertaking where minimum remuneration is not established in any applicable collective agreement. In this case, the user undertaking is free to negotiate the level of payment with the temporary work agency. Binding practices can establish rights for the employees at the enterprise, eg customary extra days off for Christmas. In the context of the Temporary Agency Worker Act, this is likely understood as provisions the employer would be obliged to offer to new employees upon employment.308 Individually agreed favourable terms are not considered generally binding practices for the employer. Regarding the first part of the principle of equal treatment (see IV.C), the temporary agency worker is entitled to ‘as a minimum’ the same conditions. The employer is allowed to convert, eg pension elements, into salary payments. The flexibility to convert does not extend to non-economic rights, eg holidays.309 The second part of the principle of equal treatment (see IV.C) is unconditional. For these rights, the temporary worker must enjoy exactly the same level of protection and the same rights as the workers employed directly at the user undertaking.310 (ii)  Other Matters The question of whether the principle of equal treatment has been breached can be assessed either by ordinary courts or by the Labour Court.311 G. Information and Consultation/Representation of Temporary Agency Worker User undertakings covered by the Act on Information and Consultation of Employees or a collective agreement312 must provide suitable information to

307 

See eg Supreme Court Ruling of 23 August 2016. Falsner, ‘Fravigelse af vikarlovens ligebehandlingsprincip ved kollektiv overenskomst’ (2014) 1 Juristen 3–16, pp 4–6. 309  See eg Supreme Court Ruling of 23 August 2016. 310  L209, FT 2012-13, Almindelige bemærkninger, 3.2.1. 311  Temporary Agency Worker Act s 3.6, cf s 6.1 and Proposal for amendment of the Temporary Agency Worker Act, L1369 FT 2014-15, Almindelige bemærkninger, 2.1.2. 312  Act on Information and Consultation of Employees, s 3. 308  J

202  Natalie Videbaek Munkholm the representative bodies on the use of temporary agency workers.313 Suitable information includes statistical but not individual information.314 The provision can be overruled by a collective agreement ensuring the worker the same right.315 Failure to inform the relevant representative bodies is sanctioned with fines,316 aligned with a breach of the duty to inform under the Act on Information and Hearing.317 There is no compensation to the temporary agency worker.318 H. Strikes With a view to obtain a collective agreement for workers who are not yet covered by a collective agreement, trade unions can enter into negotiations with an enterprise, including collective action. This includes negotiation and collective action to cover temporary agency workers319 who are not yet covered by a collective agreement establishing, eg minimum pay.320 Trade unions aim these activities at temporary work agencies as well as user undertakings. For employers already covered by a collective agreement, the consequences of an impending strike by their regular employees and blockade by the trade union can be reduced by employing non-unionised temporary agency workers to carry out the work subject to conflict, ie the strike work. This is not considered a breach of agreement by the employer.321 Temporary agency workers are allowed to familiarise themselves with the work before the strike is launched. The employer is not entitled to require the existing workers, who plan to be on strike, to train the temporary agency workers, if such training and education activities are not part of the existing employees’ regular work functions.322 The employer can not employ temporary agency workers who are members of the same trade union, to perform the strike work. Members of trade unions are actively engaged in conflicts and can refuse to perform strike

313 

Temporary Agency Worker Act s 7.1, cf Temporary Agency Work Directive, art 8. L209, FT 2012-13, Bemærkninger til § 7. 315  Temporary Agency Worker Act, s 7.2. 316 Temporary Agency Worker Act, s 8.1. Setting the fine is left to the discretion of the courts, bearing in mind the Temporary Work Agency Directive, art 10.2. 317  L209, FT 2012-13, Bemærkninger til § 8. 318  Temporary Agency Worker Act, s 8.3. 319  See eg Industrial Arbitration Case FV 16/8 2004. 320 Hasselbalch, Den Danske Arbejdsret (n 7 above) ch XXII, 4.2.1. 321  See eg Labour Court Ruling 2011.0297. 322 Hasselbalch, Den Danske Arbejdsret (n 7 above) ch XVI, 1.2.1. 314 

Atypical Employment Relationships—The Position in Denmark 203 work without being in breach of their employment contract.323 An employer is similarly unable to delegate the strike work to an external subcontractor, as unionised workers at the external enterprise, including temporary agency workers, likewise will refuse to carry out strike work.324 I.  Collective Bargaining Agreements Deviating from Statutory Provisions The equal treatment principle in the Temporary Agency Worker Act does not apply if the temporary work agency or the user undertaking is covered by a collective agreement which is applicable nationwide and concluded by the most representative collective parties in Denmark.325 Temporary agency workers can thus legally enjoy less favourable employment conditions than they would have had according to the Temporary Agency Worker Act.326 The temporary work agency as well as the user undertaking can derogate from the principle of equal treatment by concluding collective agreements; the qualifying element being that the collective agreement must be applicable nationwide and concluded with a collective representation on the worker’s part which is the ‘most representative’. The term ‘most representative’ is not defined in the Act or in the preliminary works, which raises a number of questions.327 Questions concern: whether more than one social partner can be ‘most representative’ and thus whether the provision could potentially present a violation of the freedom of association of workers; how to resolve situations of competing derogating collective agreements which potentially would both fulfil the requirements; the status of provisions in local collective agreements which are not applicable to temporary agency workers as they are not national; and the status of collective agreements concluded prior to the Temporary Agency Worker Act. These questions have not yet been subject to judicial review with regard to temporary agency workers.328 The Labour Court exclusively assesses whether collective agreements fulfil the criteria to derogate from the equal treatment principle in the Act.329 The temporary agency worker, the trade union of the temporary agency

323 

See eg Supreme Court Ruling of 17 October 2001, case B-0123-98. Den Danske Arbejdsret (n 7 above) ch XXIII, 3.2.1. 325  Temporary Agency Worker Act s 3.5. cf Temporary Agency Work Directive, art 5.3. 326  See eg Industrial Arbitration Case FV 16/6-2011. 327  The term received renewed attention in December 2017 in relation to the new Act on Taxis, see preliminary works for the Act on Taxis, LF 24, 2017-18, consultation answers and supplementing parliament committee report of 12 December 2017. 328  Questions 9, 10, 11, 12, 14 and 23 to the Minister of Employment, L209, FT 2012-13. 329  The Temporary Agency Worker Act, s 3.7; cf Act on a Labour Court, s 9.1.9, cf L1369 FT 2014-15, Almindelige bemærkninger, 2.1.2. 324 Hasselbalch,

204  Natalie Videbaek Munkholm worker, the temporary work agency as well as a trade union or employers’ association can raise the issue with the Labour Court.330 If the collective agreement does not fulfil the criteria for derogation, and if the principle of equal treatment has been breached, the temporary agency worker has the right to be reimbursed for any outstanding amounts. In case of intent or gross negligence, the temporary work agency can be fined.331

330  331 

The Act on a Labour Court, s 9.6. Temporary Agency Worker Act, ss 8.2–8.4, cf L209, FT 2012-13, Bemærkninger til § 3.

8 Atypical Employment Relationships—The Position in Estonia GAABRIEL TAVITS

I. INTRODUCTION

A

TYPICAL EMPLOYMENT RELATIONSHIPS are not very widespread in Estonia. There are a number of different reasons why such employment relationships are not particularly common in Estonia. The 2015 survey by the European Foundation for the Improvement of Living and Working Conditions1 did not include Estonia. This unleashed a discussion in Estonia about Estonian labour law and its lack of flexibility and innovativeness and the fact that Estonian legalisation entails obstacles to the introduction of new forms of employment.2 At the same time, Estonian legislation covers four forms of atypical employment relationships: fixed-term employment, part-time employment, temporary agency work and telework. Of these atypical forms of employment, the most common are fixed-term and part-time employment contracts. The two other forms of atypical employment are not very widespread in Estonia. Although the existing labour legislation does not create any obstacles for the use of such atypical forms of employment in Estonia, the problems related to them are to a certain extent connected with the taxation system. Employers do not want to hire part-time employees.3 The monthly 1 European Foundation for the Improvement of Living and Working Conditions, ‘New forms of employment’: www.ioe-emp.org/fileadmin/ioe_documents/publications/Policy%20 Areas/future_of_Work/EN/_2015-12-04__New_Forms_of_Employment_Eurofound.pdf, accessed 3 May 2019. 2 K Madisson, ‘Eesti tööseadus eelmises sajandis’ (Estonian labour acts in the past century), Äripäev, 29 October 2015: www.sorainen.com/UserFiles/File/Publications/article.% C3%84rip%C3%A4ev.employment-law.Karin-Madisson.%202015-10-29.est.PDF, accessed 3 May 2019. 3 ‘Tähtajaline ja osalise tööajaga töö on Eestis vähelevinud’, 17 June 2012, in Estonian: www.rmp.ee/uudised/toooigus/tahtajaline-ja-osalise-tooajaga-too-on-eestis-vahelevinud2012-07-17?Print=1&popUp=1, accessed 4 May 2019.

206  Gaabriel Tavits minimum wage is agreed in the employment contract, ie taxes must be paid based on the employee’s monthly minimum salary. This means that in case of part-time employment, an employer pays half of the monthly minimum wage, but has to pay taxes on this amount as though it were the full-time monthly minimum wage. In addition, Estonians are not particularly interested in working part time, as this means loss of income.4 Temporary agency work is usually used for workers posted to other EU Member States to carry out work tasks outside of Estonia. Temporary work agencies exist in Estonia,5 but demand for such services is low. Part-time and fixed-term employment is also used in the civil service. According to the Civil Service Act,6 there are two types of workers. There are ‘officials’ who have executive power. They are appointed by an administrative act; no employment contract is concluded. Both fixed-term employment7 and part-time employment8 are applicable to officials. The same regulations apply as to regular employees. Some civil service employees are employed under an employment contract. Such individuals are considered employees, ie they do not have executive power. The Employment Contracts Act9 (ECA) is applied in full to employees engaged in the civil service. There are usually no temporary agency workers in the civil service. II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements Fixed-term employment is based on an employment contract that is concluded for a set period. According to section 6 of the ECA,10 an agreement on a fixed-term employment contract must be concluded in writing. If there 4  Tööelu uuring (Labour Survey) 2012: www.sm.ee/sites/default/files/content-editors/ Ministeerium_kontaktid/Uuringu_ja_analuusid/Toovaldkond/toimetised_20132.pdf, accessed 3 May 2019. 5  Estonian Staffing Association: www.staffing.ee/_eng, accessed 4 May 2019. 6 Sections 6 and 7, Avaliku teenistuse seadus (Civil Service Act), RT I, 6 July 2012, 1, English translation available: www.riigiteataja.ee/en/eli/507062016002/consolide, accessed 3 May 2019. 7 Section 23, Avaliku teenistuse seadus (Civil Service Act), RT I, 6 July 2012, 1, English translation available: www.riigiteataja.ee/en/eli/507062016002/consolide, accessed 3 May 2019. 8 Section 35, Avaliku teenistuse seadus (Civil Service Act), RT I, 6 July 2012, 1, English translation available: www.riigiteataja.ee/en/eli/507062016002/consolide, accessed 3 May 2019. 9  Töölepingu seadus (Employment Contracts Act), RT I 2009, 5, 35, English translation available: www.riigiteataja.ee/en/eli/520062016003/consolide, accessed 3 May 2019. 10 Section 6(2), Töölepingu seadus (Employment Contracts Act), RT I 2009, 5, 35, English translation available: www.riigiteataja.ee/en/eli/520062016003/consolide, accessed 3 May 2019.

Atypical Employment Relationships—The Position in Estonia 207 is no written agreement on the terms of the contract, it is presumed that the employment contract is of indefinite duration. This means that if no evidence proves otherwise, it must be presumed that the employment contract was concluded for an indefinite duration. Even if there is evidence proving that the employee is only required to work for a fixed period, it cannot be automatically presumed that a fixed-term employment contract was concluded.11 The evidence that a fixed-term employment contract has been concluded may be an e-mail, for example, in which the employer clearly states that the intention is to conclude a fixed-term employment contract. The employee can use witnesses who give statements about the intention to conclude a fixed-term employment contract.12 The courts also have to clarify what the intention of the parties was when concluding the given employment contract by interpreting the contract and the will of the parties.13 A fixed-term employment contract can only be concluded in cases covered by the ECA or by a special Act.14 B.  Lawful Stipulation of the Contractual Terms According to the ECA section 9, a fixed-term contract can only be concluded in cases in which the nature of the work is provisional (ie the duration is fixed).15 This means that the nature of the work is the decisive factor.16

11  HP v OÜ Lutsuland, 3-2-1-28-15, 22 April 2015: www.nc.ee/?id=11&tekst=RK/3-2-128-15, accessed 2 May 2019. 12 E Käärats et al, Selgitused töölepingu seaduse juurde (Explanations to Employment Contracts Act) in Estonian (Sotsiaalministeerium, Tallinn, 2013) p 11, available: www.sm.ee/ sites/default/files/content-editors/eesmargid_ja_tegevused/Too/Toolepingu_seadus/selgitused_ toolepingu_seaduse_juurde.pdf, accessed 6 May 2019, see also MM v Bauhof Group AS, 3-2-1-82-12, 10 October 2012: www.riigikohus.ee/et/lahendid?asjaNr=3-2-1-82-12, accessed 6 May 2019. 13 Section 29 Võlaõigusseadus (Law of Obligations Act), English translation available: www.riigiteataja.ee/en/eli/524012017002/consolide, accessed 6 May 2019. 14 Eg, see below under II.F; also; s 74 of Basic Schools and Upper Secondary Schools Act, there is also the possibility to conclude a fixed-term employment contract with teachers, Põhikooli ja gümnaasiumi seadus (Basic Schools and Upper Secondary Schools Act), RT I 2010, 41, 240, English translation available: www.riigiteataja.ee/en/eli/521062016007/ consolide, accessed 7 May 2019. 15  Section 9, Töölepingu seadus (Employment Contracts Act), RT I 2009, 5, 35, English translation available: www.riigiteataja.ee/en/eli/520062016003/consolide, accessed: 3 May 2019; N Siitam, Tööleping ja töölepingu seadus (Employment Contract and Employment Contracts Act), in Estonian, (Tallinn, 2016) pp 35–36. 16  EL v AS Rinder, Case 3-2-1-96-02, 9 October 2002: www.riigikohus.ee/et/lahendid?a sjaNr=3-2-1-96-02&sortVaartus=LahendiKuulutamiseAeg&sortAsc=false&kuvadaVaartus= Sisu&pageSize=25&defaultPageSize=25, accessed 5 May 2019, HP v OÜ Lutsuland, Case 3-2-1-28-15, 22 April 2015: www.riigikohus.ee/et/lahendid?asjaNr=3-2-1-28-15&sortVaartus =LahendiKuulutamiseAeg&sortAsc=false&kuvadaVaartus=Sisu&pageSize=25&defaultPageS ize=25, accessed 7 May 2019.

208  Gaabriel Tavits The ECA does not provide a definitive list of cases in which a fixed-term contract can be concluded. Section 9 of the ECA only provides general guidelines an employer has to follow as to what will justify such a contract: the temporary nature of the work itself, seasonal work, and a temporary increase in the amount of work. It is for the employer to assess case-by-case whether a fixed-term employment contract can be justifiably concluded. The maximum duration of a fixed-term employment contract is five years. To prevent chains of fixed-term employment contracts, section 10 of the ECA stipulates an exception for the conclusion of consecutive fixedterm employment contracts.17 According to section 10 of the ECA, a fixed-term employment contract will be considered a contract of indefinite duration in two cases: first, if a fixed-term contract has been concluded consecutively, and secondly, if the employment contract can no longer be viewed as a fixed-term contract. The maximum allowable period between two contracts is two months. A fixed-term contract can be extended once in five years. If the fixed-term contract has been extended more than once during the last five years, it will no longer be considered a fixed-term contract. In the case of temporary agency workers, an extension of the employment contract will be evaluated separately for each user undertaking. The restrictions mentioned above will not be applied if the fixed-term employment contract is concluded for the purpose of substitution (eg for substitutions of employees who are on leave or on maternity leave).18 If an employer can prove that the contract was concluded for a period of substitution, no limitations apply to the conclusion of fixed-term contracts. If an employee claims that the fixed-term employment contract was concluded in breach of the requirements of the ECA (eg if the nature of the work is not temporary), s/he can only file a claim if the employment contract was terminated after the expiry of the term. Before that it is not possible to determine whether the employee’s rights were violated. Only if the fixedterm employment contract was terminated does it become apparent whether the rights of the employee were violated. According to the case law of the Estonian Supreme Court (Riigikohus), an employer cannot file a claim because the fixed-term employment contract in question was concluded in breach of law.19 If the employer was aware that the fixed-term employment contract was concluded in breach of law, his/her conduct will be deemed as contravening good will (nach Treu und Glauben).

17 Section 10, Töölepingu seadus (Employment Contracts Act), RT I 2009, 5, 35, English translation available: www.riigiteataja.ee/en/eli/520062016003/consolide, accessed 3 May 2019. 18 Ibid. 19  KR v AS Demjanov, Case 3-2-1-120-15, 4 November 2015: www.nc.ee/?id=11&tekst =RK/3-2-1-120-15, accessed 2 May 2019.

Atypical Employment Relationships—The Position in Estonia 209 C.  Termination/End of Fixed-Term Contracts Terminations of fixed-term employment contracts do not require a specific procedure. A fixed-term employment contract can be terminated by mutual consent, due to the expiry of the term of the contract, or by initiative of the employer or employee. The fixed-term employment contract will end with the expiry of the term for which it was concluded. No prior notification procedure needs to be followed. If the employment relationship continues following the expiry of the term of the contract, the fixed-term contract will be deemed a contract of indefinite duration. The employer can raise objections to such a change within five working days.20 The term of the employment contract can be determined by a fixed date or by a fixed period of time (eg four years). The term of the contract can also be determined by the end of an event for which the fixed-term contract was concluded (eg for a sales campaign).21 In case of termination of the fixed-term employment contract due to redundancy, certain procedures apply. When an employer dismisses a fixedterm employee prior to the expiry of the term, the employer has to pay all of the wages that the fixed-term employee is entitled to until the actual expiration of the contract’s term. The Estonian Supreme Court has stated that such compensation must be paid by the employer and that it is not equal to the fixed-term worker’s wages earned so far. This amount is considered compensation for the loss of income. As this amount is considered compensation for loss of income, deductions from this amount are possible;22 that is, if an employee earns any other income before the expiry of the contractual fixed term, it will be taken into account when the court determines the precise amount of compensation to be paid to the employee.23 The employer cannot claim that the fixed-term employment contract was concluded in breach of the law in order to circumvent payment of the compensation. Such conduct contravenes the principle of good faith (nach Treu und Glauben).24

20 Section 80(3), Töölepingu seadus (Employment Contracts Act), RT I 2009, 5, 35, English translation available: www.riigiteataja.ee/en/eli/520062016003/consolide, accessed 3 May 2019. 21  MM v Bauhof Group AS, Case 3-2-1-82-12, 10 October 2012: www.riigikohus.ee/et/ lahendid?asjaNr=3-2-1-82-12, accessed 6 May 2019; see also: N Siitam, Tööleping ja töölepingu seadus (Employment Contract and Employment Contracts Act), in Estonian (Tallinn, 2016) p 35. 22  KR v AS Demjanov, Case 3-2-1-120-15, 4 November 2015: www.nc.ee/?id=11&tekst =RK/3-2-1-120-15, accessed 02 May 2019. 23  HWS v Alstom Estonia AS, Case 3-2-1-80-15, 21 September 2015: www.riigikohus.ee/et/ lahendid?asjaNr=3-2-1-80-15, accessed 6 May 2019. 24  KR v AS Demjanov, Case 3-2-1-120-15, 4 November 2015: www.nc.ee/?id=11&tekst =RK/3-2-1-120-15, accessed 2 May 2019.

210  Gaabriel Tavits In all other circumstances, the fixed-term employment contract is not treated differently from an employment contract of indefinite duration. D.  Rights and Status of Fixed-Term Worker (i)  Equal Treatment The equal treatment of employees is enshrined in the ECA, section 3. According to this section, the employer has to follow the rules established in the Equal Treatment Act25 (ETA) and in the Gender Equality Act26 (GEA). The ETA27 stipulates that fixed-term employees must be treated equally with employees who work under an employment contract of indefinite duration. Only if objective grounds arise from a law or a collective agreement, may unequal treatment be possible. Case law and the literature has not yet clarified what such justification would be and in which cases unequal treatment is allowed. The employer has an obligation to offer fixed-term employees an opportunity to work under an open-ended contract. In addition, where fixed-term posts are available, the employer has to offer employees with an employment contract of indefinite duration the possibility to work under a fixedterm contract if the employee requests it. To determine whether discrimination has taken place, it is not necessary to prove that the employer’s aim was to discriminate against a given worker. According to Supreme Court case law, to determine whether discrimination has taken place, it is only necessary to demonstrate the existence of unequal treatment and to consequently assess whether the unequal treatment is justified or not.28 (ii) Employment Opportunities The prevalence of fixed-term work in Estonia is one of the lowest in comparison with most European Union Member States. According to the Working Life survey 2015, just five per cent of all employees of firms with

25  Võrdse kohtlemise seadus (Equal Treatment Act), RT I 2008, 56, 315, English translation available: www.riigiteataja.ee/en/eli/530102013066/consolide, accessed 4 May 2019. 26  Soolise võrdõiguslikkuse seadus (Gender Equality Act), RT I 2004, 27, 181, English translation available: www.riigiteataja.ee/en/eli/521012016001/consolide, accessed 4 May 2019. 27 Section 11 Võrdse kohtlemise seadus (Equal Treatment Act), RT I 2008, 56, 315, English translation available: www.riigiteataja.ee/en/eli/530102013066/consolide, accessed 4 May 2019. 28  PH v Olympic Casino Eesti, AS, 3-2-1-1-35-11, 4 January 2012: www.riigikohus.ee/et/ lahendid?asjaNr=3-2-1-135-1&sortVaartus=LahendiKuulutamiseAeg&sortAsc=false&kuvad aVaartus=Sisu&pageSize=25&defaultPageSize=25, accessed 5 May 2019.

Atypical Employment Relationships—The Position in Estonia 211 at least five employees were working on a fixed-term basis. The percentage of employees in Estonia with a higher education who work under a fixedterm contract is 10 per cent, while the percentage among employees with a secondary or lower level of education is three per cent, ie fixed-term posts are, over all, held by employees with higher levels of education. Of all positions, fixed-term work is most common among executives and top experts, 11 per cent of whom are employed on the basis of a fixed-term contract. It should also be highlighted that one-third of fixed-term employees assert that their work is of a permanent nature, but that the employer does not want to enter into an employment relationship of indefinite duration, ie temporary contracts are used by employers to lower the risks associated with their economic activity.29 According to the ECA, there is no specific list of jobs that are only offered on a temporary basis. Usually, fixed-term contracts are concluded for seasonal employment. Particularly in summer, when young people have time to work, jobs will be offered on a fixed-term basis (mostly during the spring–summer season from April to October). Employees and employers view fixed-term employment as a good opportunity to enter or to remain in the labour market. Employers usually conclude fixed-term contracts in cases of substitution. Particularly in cases of maternity leave, it is quite common to conclude a fixed-term contract for the period of maternity leave. In situations in which a fixed-term employee was hired to substitute for an employee who is on maternity leave but is unlikely to return to work, it is unclear whether the fixed-term contract remains valid. (iii) Other Matters Under Estonian labour legislation, fixed-term employees do not have any specific rights compared to permanent employees. The only requirement concerns equal treatment according to the Equal Treatment Act. E.  Information and Consultation As regards information and consultation, fixed-term employees are deemed employees without any special requirements. They do not have any specific representation. They can, however, be represented by trade unions and employee representatives. 29  Eesti tööelu uuring 2015 (Estonian Working Life 2015), Sotsiaalministeeriumi toimetised No 1/2017, pp 14–27: www.sm.ee/sites/default/files/content-editors/Ministeerium_kontaktid/ Uuringu_ja_analuusid/eesti_tooelu_uuring_2015.pdf, accessed 6 May 2019.

212  Gaabriel Tavits According to the Employees Trustee Act, the minimum number of employees required for the obligation of information and consultation is 30 employees.30 This number includes all employees who have been employed by the employer. No distinction is made between part-time or fixed-term employees or temporary agency workers. If the rules on information and consultation are not followed, the employer may be fined for violating the information and consultation rules. F.  Specific Provisions Although the general rules on fixed-term employment are laid down in the ECA, a number of special laws exist according to which it is possible to conclude a fixed-term contract. Fixed-term contracts could be concluded with scientists and researchers in the past. The Universities Act31 introduced this option several years ago. The Universities Act was modified in line with EU Directive 1999/70/EC on fixed-term employment relationships. Researchers and teachers at universities are now usually employed on a permanent (open-ended) basis, unless there is a fixed-term project that needs to be completed during a fixed period of time. According to the Performing Arts Institutions Act,32 a fixed-term employment contract can be concluded with actors and actresses. The contract can be concluded for the period of one year. Upon expiry of the term, the same contract can be renewed. In this case, the restrictions set forth in the ECA will not be applied. G. Collective Bargaining Agreements Deviating from Statutory Provisions The number of collective agreements in Estonia is modest. This does not imply that collective agreements do not exist, but their significance is quite low.33 There are no collective agreements that specifically address the status of fixed-term employees. No special trade union or movement exists which protects the rights of fixed-term employees. Fixed-term employees’ rights 30 Section 17, Töötajate usaldusisiku seadus (Employees Trustee Act), RT I 2007, 2, 6, English translation available: www.riigiteataja.ee/en/eli/519012015010/consolide, accessed 4 May 2019. 31  Ülikooliseadus (Universities Act), RT I 1995, 12, 119, English translation available: www.riigiteataja.ee/en/eli/501072015003/consolide, accessed 4 May 2019. 32  Sections 6 and 7, Etendusasutuse seadus (Performing Arts Institutions Act), RT 2003, 51, 353, English translation available: www.riigiteataja.ee/en/eli/520012015006/consolide, accessed 4 May 2019. 33  Kadi Pärnits, Kollektiivlepingu roll ja regulatsioon nüüdisaegsetes töösuhetes (Role and regulation of collective agreements in modern employment relationships) (Doktoritöö: Tartu Ülikool, 2015): http://erb.nlib.ee/?kid=44571513&oid=b271bcae.

Atypical Employment Relationships—The Position in Estonia 213 are protected in the ECA. As the number of fixed-term employees is relatively low, the issue of concluding a collective agreement specifically addressing fixed-term employees has not yet been raised. If fixed-term employees sought to conclude a collective agreement, the general rules would apply. The Employees Trustee Act34 introduced the general information and consultation procedure. This system does not differentiate between parttime and fixed-term employees. III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements Part-time work can be agreed between the employee and the employer. If there is no such agreement, the general presumption of full-time working hours is applied: 40 hours of work within a seven-day period or eight hours of work per day.35 If the total working time is below that limit, it is considered part-time employment.36 Part-time employment can also be concluded verbally.37 The parties to the contract must be in a position to prove that this type of agreement was reached. In the case of shift work, a part-time employment contract can be agreed. The shift work has to be agreed in an employment contract. What day and how many hours an employee has to work shall be determined in more detail in a shift employment schedule.38 B.  Opportunities for Part-Time Work According to the Working Life survey 2015, the percentage of workers employed part-time, ie for less than 40 hours per week, has dropped from 18 per cent to 13 per cent (2009–15). In other words, the number of

34  Sections 19–21, Töötajate usaldusisiku seadus (Employees Trustee Act), RT I 2007, 2, 6, English translation available: www.riigiteataja.ee/en/eli/519012015010/consolide, accessed 4 May 2019. 35 Section 43(1), Töölepingu seadus (Employment Contracts Act), RT I 2009, 5, 35, English translation available: www.riigiteataja.ee/en/eli/520062016003/consolide, accessed 6 May 2019. 36 N Siitam, Tööleping ja töölepingu seadus (Employment Contract and Employment Contracts Act), in Estonian (Tallinn, Kinnisvarakool, 2016) p 90. 37  According to s 4(4) of the ECA, failure to follow the formal requirements of concluding an employment contract does not bring about the nullity/invalidity of the employment contract or part of it. 38  Section 6(6) of the ECA, also s 43(3) of the ECA; also N Siitam, Tööleping ja ­töölepingu seadus (Employment Contract and Employment Contracts Act), in Estonian (Tallinn, Kinnisvarakool, 2016) pp 95–97.

214  Gaabriel Tavits part-time workers was higher during the economic crisis, which was probably because employers had less work to offer to employees. This is also evident in the changes in part-time work based on gender, which indicate that the share of individuals working part-time has mainly decreased among men. Part-time employment is more common among female employees than male employees. In 2009, 12 per cent of males and 22 per cent of females were employed part time. In 2015, just six per cent of male employees were employed part time, while 21 per cent of female employees still worked part time.39 The ECA does not contain any rule on the right of an employee to demand part-time employment. An employee may request to work part time, but the employer ultimately takes the final decision. As stated above, part-time work is a question of agreement between the employee and the employer. C.  Opportunities for an Extension of Working Time A part-time employee theoretically has the option to apply for a full-time post if the employer has such opportunity. When an employee has been employed part time, his/her working time is viewed as their main working time. Every hour more that an employee has been employed is considered overtime and the employer has to grant the employee either free time or pay the appropriate equivalent compensation for the overtime work.40 As Estonian employees and employers do not favour part-time employment, the question about an increase in part-time work is not relevant. D.  Rights and Status of Part-Time Workers (i)  Equal Treatment Equal treatment of part-time workers is stipulated in ETA.41 The general requirement for equal treatment is enshrined in section 3 of the ECA.42

39  Eesti tööelu uuring 2015 (Estonian Working Life 2015), Sotsiaalministeeriumi toimetised No 1/2017, pp 14–27: www.sm.ee/sites/default/files/contenteditors/Ministeerium_kontaktid/ Uuringu_ja_analuusid/eesti_tooelu_uuring_2015.pdf, accessed 6 May 2019. 40  Section 44(1), (5) and (6) of ECA; E Käärats et al, Selgitused töölepingu seaduse juurde (Explanations Notes to the Employment Contracts Act) in Estonian (Sotsiaalministeerium, Tallinn, 2013) p 93, available: www.sm.ee/sites/default/files/contenteditors/eesmargid_ja_tegevused/Too/Toolepingu_seadus/selgitused_toolepingu_seaduse_juurde.pdf, accessed 6 May 2019. 41 Section 11, Võrdse kohtlemise seadus (Equal Treatment Act), RT I 2008, 56, 315, English translation available: www.riigiteataja.ee/en/eli/530102013066/consolide, accessed 4 May 2019. 42  Section 3, Töölepingu seadus (Employment Contracts Act), RT I 2009, 5, 35, English translation available: www.riigiteataja.ee/en/eli/520062016003/consolide, accessed 3 May 2019.

Atypical Employment Relationships—The Position in Estonia 215 According to section 3, the employer is required to apply the principle of equal treatment in accordance with the Gender Equality Act and Equal Treatment Act. The ETA states that part-time workers must be treated equally with full-time employees with reference to working time. Part-time employees do not have any disadvantages in other areas of individual employment law. For example, annual paid leave is granted in full and on an equal basis with full-time employees.43 (ii) Dismissal Protection No special rules for dismissal exist for part-time workers. There are also no specific protective measures providing additional protection to part-time employees. There is only one specific rule on protection in case of redundancy if an employee is dismissed because s/he refused to accept a change to part-time work.44 In such a case, the dismissal of the employee is prohibited. If the employee is dismissed, s/he can turn to the courts or to the Commission for Labour Disputes. A court or the Commission for Labour Disputes may declare the dismissal null and void. The employee cannot be reinstated; the dismissed employee only has the right to demand compensation in the amount of three months’ average salary.45 (iii) Other Matters Part-time employment affects entitlement to various social security benefits. According to the Social Tax Act, an employer has to pay a minimum in health insurance and pension insurance tax based on the employee’s monthly minimum wage.46 This requirement also applies in the case of parttime employees. However, it does not apply to unemployment insurance. The contribution to unemployment insurance is connected to the employee’s actual wage.47 In that case, part-time employees contribute less to unemployment insurance than full-time employees. One of the reasons part-time employment is not widespread in Estonia is the occupational health and safety rules. Some employers have stated that adherence to occupational health and safety rules implies double the costs (ie instead of paying for only one employee, the employer is technically

43 

Section 68 of the ECA. Section 92(1), (5) of the ECA. 45  Section 109(1) of the ECA. 46  Section 2(3), Sotsiaalmaksuseadus (Social Tax Act), RT I 2000, 102, 675, English translation available: www.riigiteataja.ee/en/eli/524072017011/consolide, accessed 8 May 2019. 47 Section 40, Töötuskindlustuse seadus (Unemployment Insurance Act), RT I 2001, 59, 359, English translation available: www.riigiteataja.ee/en/eli/515032017001/consolide, accessed 7 May 2019. 44 

216  Gaabriel Tavits paying occupational and health insurance taxes for two (part-time) employees). In order to reduce costs, part-time employees are not hired. E.  Information and Consultation In the case of information and consultation, part-time employees are considered employees who are not entitled to special requirements. Part-time employees are counted as regular employees in the calculation of total number of employees. Part-time employees do not have any special representation. They can be represented by trade unions and by employee representatives. F.  Other Part-Time Arrangements In Estonia, there are no specific arrangements for part-time employees. No voucher system, shared workplace (job sharing) or similar arrangements exist. The ECA includes a special regulation for on-call employment.48 The time period when an employee is on call is considered neither working time nor a rest period; according to the ECA, this on-call period lies somewhere between working time and rest periods. The on-call period is paid based on the ECA. The ECA states that the pay for the on-call period must be at least 10 per cent of the employee’s wage that has been agreed in the employment contract.49 G. Collective Bargaining Agreements Deviating from Statutory Provisions There are no collective agreements that specifically cover part-time ­employees. Their rights are protected on the basis of the ECA. As the number of 48 Section 48, Töölepingu seadus (Employment Contracts Act), RT I 2009, 5, 35, English translation available: www.riigiteataja.ee/en/eli/520062016003/consolide, accessed 3 May 2019. 49 Section 48(1), Töölepingu seadus (Employment Contracts Act), RT I 2009, 5, 35, English translation available: www.riigiteataja.ee/en/eli/520062016003/consolide, accessed 3 May 2019; See also E Käärats et al, Selgitused töölepingu seaduse juurde (Explanations to Employment Contracts Act), in Estonian (Sotsiaalministeerium, Tallinn, 2013) pp 99–100, available: www.sm.ee/sites/default/files/contenteditors/eesmargid_ja_tegevused/Too/Toolepingu_ seadus/selgitused_toolepingu_seaduse_juurde.pdf, accessed 6 May 2019, also N Siitam, Tööleping ja töölepingu seadus (Employment Contract and Employment Contracts Act), in Estonian (Tallinn, 2016) pp 101–102.

Atypical Employment Relationships—The Position in Estonia 217 part-time employees is modest, the issue of concluding a collective agreement has not yet been raised. If part-time employees want to conclude a collective agreement, the general rules for collective bargaining and conclusion of a collective agreement apply. The general information and consultation procedure was introduced in the Employees Trustee Act. No distinction is made between part-time or fixed-term employees in comparison with full-time employees. IV.  TEMPORARY AGENCY WORK

A.  Legal Definitions/Formal Requirements In Estonian labour legislation, there is no legal definition of a temporary agency worker.50 The only definition found is in section 6 of the ECA. In case a temporary agency worker is hired, it must be specifically noted in the employment contract. According to section 6(5) of the ECA, if the employer and employee agree that the employee will perform temporary work in compliance with a third party’s (user undertaking) instructions and supervision (temporary agency work), the employer shall notify the employee that the duties are to be performed by way of temporary agency work in the user undertaking.51 The ECA does not provide any other details regarding the contractual content and conditions for using a temporary agency worker. Case law of the Estonian courts has also not provided a clear definition of the temporary agency worker. The temporary agency worker has, however, been analysed within the scope of posting of workers.52 B.  Registrations, Licensing, Financial Guarantees, etc There are no special requirements to operate a temporary work agency. There is no need to obtain a licence; there are also no special rules on financial guarantees or specific insurance.53 Usually, when a company wants to 50  In Estonia, the Association for Temporary Agencies has been established, see Estonian Staffing Association: www.staffing.ee, accessed 6 May 2019. 51 Section 6, Töölepingu seadus (Employment Contracts Act), RT I 2009, 5, 35, English translation available: www.riigiteataja.ee/en/eli/520062016003/consolide, accessed 3 May 2019. 52  SK v JT Agentuur, case 2-12-2958, Harju Maakohus, 16 January 2014: www.kohus.ee, accessed 5 May 2019. 53  Tööturuteenuste ja -toetuste seadus (Labour Market Services and Benefits Act), RT I 2005, 54, 430, English translation available: www.riigiteataja.ee/en/eli/520062016005/consolide, ss 38, 39, accessed 6 May 2019.

218  Gaabriel Tavits establish a temporary work agency, it creates an osaühing (Limited Company) and consequently registers in the register for economic activities. Registration in this register does not require special formalities.54 Registration implies that a company is operating in Estonia and is involved in economic activity. C. Relationship between Temporary Agency Worker and Temporary Work Agency The contractual relationship between the temporary agency worker and temporary work agency can be constructed in different ways. Either a civil law contract or an employment contract can be concluded.55 Although it is theoretically possible to conclude a civil law contract, this is rarely done in practice. According to case law, employment contracts are mostly concluded. If a civil law contract is concluded, the regulations in the ECA will not apply. These mainly concern the term of the contract and the rights related to working time and rest periods as well as compliance with occupational health and safety rules. Although the conclusion of a civil law contract with a temporary agency worker is possible, it is difficult to distinguish between an employment contract and a civil law contract. In addition, the presumption of the existence of an employment contract is enshrined in section 1(2) of the ECA. It is for the employer to prove that no employment contract exists. In case a person is hired as a temporary agency worker under an employment contract, his/her status must be agreed in the employment contract.56 According to this agreement, it is necessary to expressly state that the employee will not work in the employer’s establishment, but in the user undertaking’s establishment. If this agreement is not explicitly stated, it will be presumed that a standard employment relationship, not a temporary agency worker relationship has been concluded, ie that the employee works in the employer’s (temporary work agency) establishment. In practice, employment contracts are concluded for temporary agency work. If an employment contract is concluded, it is concluded for a fixed period. The term of the contract corresponds to the duration of the tasks the temporary agency worker carries out at the user undertaking.

54  Majandustegevuse seadustiku üldosa seadus (General Part of the EcoNomic Activities Code Act), RT I, 25. March 2011, 1, English translation available: www.riigiteataja.ee/en/ eli/527032015008/consolide, accessed 3 May 2019. 55  See eg www.staffing.ee/tooj6urent-ehk -staffing, accessed 6 May 2019. 56  Section 6(5) of the ECA.

Atypical Employment Relationships—The Position in Estonia 219 (i)  Fixed-term and Part-time Contracts A fixed-term contract can only be concluded on justified grounds. According to the ECA section 9, it is possible to conclude a fixed-term contract with a temporary agency worker. In that case, the temporary nature of the employment will be assessed by the user undertaking, not by the employer. According to section 10 of the ECA, there are limitations on concluding fixed-term labour contracts.57 It is presumed that the fixed-term employment contract has turned into an employment contract of indefinite duration under the following circumstances: if a fixed-term contract has been concluded twice consecutively and if the period between the first and the second contract is less than 60 days or if the fixed-term contract has already been extended once during a five-year period. There is a difference in the case of temporary agency work—chain employment contracts are not calculated by employer, but by user undertaking. (ii) Rights and Obligations/Liability According to Estonian legislation, the temporary agency worker is deemed an employee of the temporary work agency.58 The temporary agency worker concludes an employment contract with the temporary work agency. All rights and duties are determined on the basis of that employment contract. There is no contractual relationship between the temporary agency worker and the user undertaking. The agency worker has to follow the orders and instructions of the user undertaking to perform his/her tasks.59 The temporary work agency, on the other hand, must observe all occupational health and safety rules applicable at the workplace. How the liability between the temporary work agency and user undertaking is divided and regulated is agreed in the contract between the temporary work agency and the user undertaking. The employee is only responsible towards the employer (temporary work agency). The employer of a temporary agency worker (temporary work agency) is required to notify the employee about any vacant positions in user undertakings requiring his or her knowledge and skills for which an employment contract of indefinite duration can be entered into, unless the user undertaking itself has notified the employee of the vacant positions.60

57  Section 6, Töölepingu seadus (Employment Contracts Act), RT I 2009, 5, 35, English translation available: www.riigiteataja.ee/en/eli/520062016003/consolide, accessed 5 May 2019. 58  Section 6(5) of the ECA. 59  Section 17(5) of the ECA. In case of a conflict between the instructions of the employer and of the user undertaking, the employee must follow the instructions of the employer. 60  Section 28(2) 9 of the ECA.

220  Gaabriel Tavits (iii)  Dismissal Protection As the temporary agency worker is employed under an employment contract, the standard procedure for dismissal applies. There are no specific rules for temporary agency workers. Usually, a fixed-term employment contract is concluded, so the regulations on terminations of fixed-term employment contracts must be applied. The fixed-term contract ends when the term of the contract has expired. No prior notification is necessary. If the employee continues working beyond the term specified in the contract, the fixed-term contract will be deemed to have transformed into an open-ended contract. According to the ECA, the employer has the right to raise objections, claiming that s/he did not realise that the term had expired.61 Such objection may be filed within five working days from the point in time the employer realises that the term of the contract has expired. If the employment contract ends because the term of the contract has expired, there is no specific protection against the termination of the employment contract. In all other cases, if the employment contract is terminated upon the initiative of the employer (for economic reasons or due to alleged misconduct of the employee), the same principles of protection apply as in all other circumstances. No special protection measures apply to temporary agency workers. D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship Estonian legislation does not cover the relationship between temporary agency workers and the user undertaking. In addition, the legal literature also does not specify the nature of the relationship. It has generally been agreed that no employment relationship exists between the worker and the user undertaking. If the worker does not adequately perform the assigned tasks, a complaint may be lodged with the temporary work agency and the agency will resolve the problems in accordance with the requirements established in labour legislation.

61 Section 80(3), Töölepingu seadus (Employment Contracts Act), RT I 2009, 5, 35, English translation available: www.riigiteataja.ee/en/eli/520062016003/consolide, accessed 5 May 2019.

Atypical Employment Relationships—The Position in Estonia 221 (ii)  Rights and Obligations/Liability According to Estonian legislation, the user undertaking does not have concrete obligations. The only obligation of the user undertaking is to follow the occupational health and safety rules stipulated in the Occupational Health and Safety Act (OHSA).62 When a worker causes damage to the user undertaking, the temporary work agency must compensate the undertaking for the damage. (iii)  Health and Safety Requirements on health and safety are in the OHSA, which includes special rules that must be followed. If employees who work for different employers work together, an agreement between their employers must be concluded. This agreement must specify how the responsibility will be divided and which employer will be responsible for the occupational health and safety rules. Where no such agreement exists, the employers will jointly be responsible in case of any breaches.63 This means that in case of a work accident or occupational disease, the employee can decide against whom s/he will raise the claim. In practice, such agreements are not concluded frequently. Employers try to avoid assuming responsibility and it is often very difficult for labour inspectors to determine whether a temporary work agency is involved or not. Another important aspect must be borne in mind: if a temporary work agency is involved, the employee must be registered in the employment register. The employer (temporary work agency) bears this obligation. The user undertaking is not bound by such an obligation. E. Relationship between Temporary Work Agency and User Undertaking Estonian legislation does not stipulate what type of agreement or contract must be concluded between the temporary work agency and the user undertaking. This is usually a contract for services in which the

62  Töötervishoiu ja tööohutuse seadus (Occupational Health and Safety Act), RT I 1999, 60, 616, English translation available: www.riigiteataja.ee/en/eli/520062016004/consolide, accessed 6 May 2019. 63  Töötervishoiu ja tööohutuse seadus (Occupational Health and Safety Act), s 12, RT I 1999, 60, 616, English translation available: www.riigiteataja.ee/en/eli/520062016004/consolide, accessed 5 May 2019.

222  Gaabriel Tavits responsibilities or the authority between the employer and user undertaking will be determined.64 F.  Rights and Status of Temporary Agency Worker According to Estonian labour legislation, the rights and obligations of a temporary agency worker are the same as those of a regular employee. The temporary agency worker is considered an employee of the temporary work agency and all rights and obligations are connected to this particular relationship. The temporary agency worker is not considered an employee of the user undertaking. Any information and participation rights are hence connected to the temporary work agency. Only the occupational health and safety regulations are connected to both employers (namely the temporary work agency, which is the so-called legal employer, and the user undertaking, which is the factual employer). (i)  Equal Treatment No specific equal treatment regulation exists for temporary agency workers. The general rules on equal treatment are applicable. The employer must adhere to section 3 of the ECA. Accordingly, the employer must respect the Equal Treatment Act and Gender Equality Act. To date, no claim has been filed involving equal treatment of a temporary agency worker. The issue of equal treatment is mainly connected with international activity. When a temporary agency worker is posted to another EU Member State or to the EEA, equal treatment must be guaranteed regarding temporary agency workers’ wages. (ii)  Other Matters When a temporary agency worker is sent to another EU Member State, s/he is considered a posted worker. The Estonian Supreme Court has dealt with the question of payment of wages and other social security benefits numerous times.65 It was also important in those cases to determine which legislation is applicable and whether the applicable legislation should be based on the Posted Workers’ Directive or the Rome I Regulation.66 64 See www.staffing.ee/tooj6urent-ehk-staffing, accessed 6 May 2019; see also Renditöö (in Estonian), www.ti.ee/fileadmin/user_upload/Renditoo.pdf, p 6, accessed 6 May 2019. 65  See, eg SK v Sillaallika OÜ, Supreme Court, Case 3-2-1-187-13: www.nc.ee/?id=11&tek st=RK/3-2-1-187-13, accessed 3 May 2019. 66  Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services [1997] OJ L18/1. Regulation (EC) No 593/2008 of the European Parliament and of the Council on the law applicable to contractual obligations (Rome I).

Atypical Employment Relationships—The Position in Estonia 223 G. Information and Consultation/Representation of Temporary Agency Worker Information and consultation rights are twofold: on the one hand, information and consultation rights apply in case of a transfer of undertaking and in case of collective redundancies. On the other hand, according to the Employees’ Trustee Act, general information and consultation rights have been introduced. There are no special rules for temporary agency workers. According to the Employees’ Trustee Act, the employer must inform all employees about the structure of the company, the staff, including staff performing duties by way of temporary agency work, any changes and planned decisions which will significantly affect the company structure and staff.67 Temporary agency workers will be deemed employees of the temporary work agency and therefore there is no need to introduce special rules for temporary agency workers with reference to information and consultation rights.68 Temporary agency workers do not enjoy special rights for representation and are regarded as regular employees who are employed by the temporary work agency. Temporary agency workers do not have any rights of information and consultation at the user undertaking because they are not considered employees of the user undertaking. Temporary agency workers are not included in the calculation of the threshold for collective rights in the company/user undertaking. The Employees’ Trustee Act has introduced the general information and consultation procedure. This procedure does not distinguish between part-time employees and temporary agency workers. Temporary agency workers are not included in the calculation of total employees in the user undertaking. Temporary agency workers are employees of the temporary work agency and are hence included in the calculation of total employees in the agency. The Employees’ Trustee Act does not specify how a temporary agency worker shall be integrated into the user undertaking. As no such rules exist, temporary agency workers are not integrated into the user undertaking. The consequence is that temporary agency workers only enjoy information and consultation rights at the temporary work agency. Temporary agency workers can conclude a collective agreement with temporary work agencies.

67  Töötajate usaldusisiku seadus (Employees’ Trustee Act), RT I 2007, 2, 6, English translation available: www.riigiteataja.ee/en/eli/505052017006/consolide, accessed 6 May 2019. 68  Section 17 of the Töötajate usaldusisiku seadus (Employees’ Trustee Act), RT I 2007, 2, 6, English translation available: www.riigiteataja.ee/en/eli/505052017006/consolide, accessed 6 May 2019.

224  Gaabriel Tavits H. Strikes The right to strike in Estonia is enshrined in Article 29 of the Constitution.69 Estonian legislation and the Collective Labour Disputes Act70 cover three types of strikes: 1) A main strike to apply pressure on the employer. The duration of the main strike is not limited. 2) A warning strike is part of the negotiations on the conclusion of a collective agreement. Warning strikes can last up to one hour. 3) A support strike is organised to support other already striking employees. The idea of these strikes is not to make demands on the employer, but to show solidarity with other employees. Temporary agency workers can organise all three types of strikes. The Trade Unions Act and the Collective Labour Disputes Act do not prohibit agency workers from organising a strike. Strikes can be used to make demands on the employer, ie temporary agency workers can make demands on the temporary work agency, but not against the user undertaking. In case of a solidarity strike, the right to organise a strike against the user undertaking is not excluded. Estonian legislation and case law does not regulate whether and under what circumstances temporary agency workers can be used as substitutes for employees who are participating in a strike. Estonian legislation and case law do not prohibit an employer from using temporary agency workers as substitutes for employees who are on strike. I. Collective Bargaining Agreements Deviating from Statutory Provisions Although Estonian temporary work agencies exist, they mostly operate outside the Republic of Estonia (temporary agency workers are used as posted workers). This generally means that temporary agency workers’ rights are protected on the basis of the ECA, and in certain cases based on the Posted Workers Directive. As the number of temporary agency workers is modest in Estonia, the issue of concluding collective agreements has not yet been raised. In the event that temporary agency workers would like to conclude a collective agreement, the general rules apply.

69 Section 29, Eesti Vabariigi põhiseadus (The Constitution of the Republic of Estonia), RT 1992, 26, 349, English translation available: www.riigiteataja.ee/en/eli/521052015001/ consolide, accessed 4 May 2019. 70  Kollektiivse töötüli lahendamise seadus (Collective Labour Dispute Resolution Act), RT I 1993, 26, 442, English translation available: www.riigiteataja.ee/en/eli/526102015001/consolide, accessed 4 May 2019.

9 Atypical Employment Relationships: The Position in Finland MATLEENA ENGBLOM

I. INTRODUCTION

I

N FINLAND, THE traditional concept of an employment relationship is a full-time, permanent or long-term job.1 The concept of atypical employment has been understood to mean a variety of working forms: part-time work, fixed-term work, zero-hours contracts,2 ‘temp work’,3 on-call work, ‘extra workers’,4 home-workers, mobile workers, freelancers and self-employed persons.5,6 There are traditionally only few atypical employment relationships in ­Finland. This probably also explains the low amount of regulation on atypical employment forms in Finnish labour law. Part-time work in particular is not as common as in many other European countries.7 Part-time work in Finland is usually performed by women, students, and elderly workers. The majority 1  A Pärnänen and H Sutela, Työn tekemisen uudet muodot ja tilastot—kuinka työn muotoja luokitellaan? Työmarkkinoiden koko kuva (New forms of work and statistics—how to classify forms of work? The entire picture of the labour market): www.tilastokeskus.fi/artikkelit/2011/ art_2011-12-12_002.html. 2  A zero-hours contract ‘nollatuntisopimus’ means that the employer and the employee conclude an employment contract (either for an indefinite or a fixed period), in which working hours may even be zero hours, for example: ‘weekly working hours are 0–40 hours’ or ‘weekly working hours are 0–20 hours’. In practice, it is possible that the employer will not have any work for the employee at all. 3  In spoken language, the term ‘temp worker’ (pätkätyöläinen) is used for a person who only works for short periods, possibly against the ECA’s regulations, though he or she wishes to have permanent employment. The term is somewhat value-laden and has a negative connotation. Legally, they are employees with a fixed-term contract and, if they work part time, they are part-time workers. 4  ‘Extra employee’ (ekstraaja) refers to an employee with no fixed working hours. They can be hired by a temporary work agency, but this is not obligatory. The contract can be concluded for a fixed term, be a zero-hours contract, for on-call work or for any other arrangement. Extra employees typically have several employment contracts (employers) simultaneously. 5 ‘Työsopimuslaki’ (55/2001). 6  See Pärnänen and Sutela, n 1 above. 7 www.tilastokeskus.fi/artikkelit/2012/art_2012-09-24_002.html?s=0.

226  Matleena Engblom of part-time workers work part time because they have not succeeded in finding full-time work.8 From a legal point of view, freelance workers and self-employed persons in Finland are either employees or entrepreneurs. There is no regulation on self-employed persons in labour legislation. Whether a person is considered an employee or an entrepreneur depends on the conditions under which he or she performs work. If the elements of the employment relationship are apparent, the Employment Contracts Act (ECA) applies. The number of atypical or non-traditional forms of employment has been increasing. For example, temporary agency work has increased drastically over the last decade.9 II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements In Finland, a fixed-term contract is an exception, and contracts of indefinite duration are the norm. The legal definition10 and formal requirements are regulated in the Employment Contracts Act (ECA).11 An employment contract is valid indefinitely unless it has been concluded for a fixed term for a justified reason. A Government Proposal states that justified reasons are substitution for an absent employee, project work or starting a new business.12 The specific reasons for concluding a fixed-term contract are not included in the ECA, but are evaluated on a case-by-case basis.13 Contracts concluded for a fixed term on the employer’s initiative without a justified reason shall be considered contracts of indefinite duration. There are no restrictions on concluding a fixed-term contract on the employee’s initiative. If several successive contracts are concluded, however, even if these fixed-term contracts were concluded on the employee’s initiative, the employer cannot at a later point justify the continued conclusion of fixed-term contracts on his/her own initiative.14 8 ww.eurofound.europa.eu/sites/default/files/ef_publication/field_ef_document/ef1631en. pdf, p 50. www.tilastokeskus.fi/artikkelit/2012/art_2012-09-24_002.html?s=3. 9 Ministry of Economic Affairs and Employment: Vuokratyöopas, Guide to Temporary Agency Work, p 4: www.tem.fi/documents/1410877/2106637/TEM_vuokratyoopas_netti.pdf/ d3bf1fb0-bd56-4c7f-aa2a-6877fc4429e5. 10  As source material for English translations of legislation and terms, I have used the unofficial translations available on websites of the Ministry of Justice: www.finlex.fi, whenever possible. Not all regulations are listed. I have also observed the translation guide on the website of the Ministry of Justice: www.finlex.fi/data/muut/saadkaan/laki.pdf. 11  Työsopimuslaki 2001/55. Chapter 1, section 3 ECA (hereafter in the format (1:3)). 12  Government Proposal, Hallituksen esitys, HE 239/2010 vp, p 61. 13 K-P Tiitinenn and T Kröger, Työsopimusoikeus (Labour Contract Law) (Helsinki, ­Talentum, 2012) p 121. 14  Tiitinen and Kröger, n 13 above, p 119.

Atypical Employment Relationships: The Position in Finland 227 A similar regulation on fixed-term contracts applies to employment by the state, in municipalities and in the Evangelical-Lutheran Church.15,16 B.  Lawful Stipulation of the Contractual Terms A fixed-term contract can be concluded in writing or orally, like any employment contract.17 No specific form is required.18 The employer shall present an employee whose employment relationship has been concluded for a term exceeding one month with written information on the principal terms of work at the latest by the end of the first pay period, unless the terms are already laid down in a written employment contract. If an employee repeatedly concludes fixed-term employment relationships of less than one month with the same employer on the same terms and conditions, the employer must provide information on the principal terms of work within a maximum of one month from the beginning of the first employment relationship.19 The information shall, among other things, include the grounds for concluding a fixed-term contract and the date of termination of the contract or its estimated date of termination. Neglecting this duty to inform the employee does not result in the contract being automatically converted into one of indefinite duration.20 Neglecting the obligation to inform the employee is considered a violation of the Employment Contracts Act,21 and a fine can be ordered by the court, but in practice, such cases are extremely rare. If (at a later point) it is stated that there were no justified reasons for concluding a fixed-term contract, and the contract is considered to be one of indefinite duration, the end of such a contract is considered to be a termination of the employment relationship, and the employee may be entitled to compensation.22 The amount of compensation for illegal terminations 15 Act on Local Government Officials (304/2003) (LGO), Act on State Civil Servants (750/1994) (ASCS) and Act on Evangelical Lutheran Church (1054/1993) (Church Act). The employees in the Orthodox Church of Finland work in employment relationships, thus the ECA is applied. 16  LGO (2:3), ASCS (3:9), Church Act (6:9). 17  Tiitinen and Kröger, n 13 above, pp 107–108: Electronic means that the contract can be made with telecopy or email. M Kairinen, Työoikeus perusteineen (Labour Law and its Background) (Raisio, Kansalliskirjasto–Fennica, 2009) p 186: An employment contract can be concluded by telefax, email or text messages using a mobile phone. This applies to fixed-term contracts as well as to contracts of indefinite duration. 18  (1:3) ECA. 19  (2:4) ECA. 20 M Engblom, Työsuhteen ehdot—määräytyminen, muuttaminen ja tulkinta (Terms of Employment Relationship—defining, changing, and interpreting) (Helsinki, Talentum, 2013) pp 85–86. 21  (13:11) ECA. 22  (12:2) ECA. See, eg Labour Court case TT 2009:34, where seven successive contracts had been concluded over a period of 3½ years. The Labour Court stated that even though work

228  Matleena Engblom of employment contracts equates to the employee’s salary of between 3–24 months.23 The average compensation is usually around 6–8 months’ salary. There is no specific restriction on successive fixed-term contracts. According to the ECA,24 it is prohibited to use consecutive fixed-term contracts when the number or total duration of fixed-term contracts or the totality of such contracts indicates a permanent need for labour. The Supreme Court has interpreted this regulation often. An essential element in the interpretation of the reason for concluding a fixed-term contract is the question of substitution for a specific employee. In this case, numerous successive fixed-term contracts are admissible. In other words, whether or not successive fixed-term contracts are accepted as justified and lawful, or how many successive fixed-term contracts can be concluded, depends on the reason they are concluded.25 C.  Termination/End of Fixed-Term Contracts A fixed-term employment relationship is terminated without further notice when the end date of the fixed-term period occurs. The employer does not have an obligation to give notice, since the end date of the contract is known to the employee. in the company was organised in projects, the tasks the contracts covered were basic tasks regularly performed in the company. No justified reason for the use of fixed-term contracts existed. The company was ordered to pay compensation to the employee in accordance with (12:2) ECA. 23 

(12:2) ECA. (1:3) ECA. 25  The Supreme Court has ruled on justified reasons for fixed-term contracts in a number of cases. Eg in Supreme Court judgment KKO 2015:64, an employee had worked for a city between 2005 and 2010. He had concluded 22 successive fixed-term contracts, without any major breaks. Most contracts were concluded to substitute for another worker. The first contract was concluded for a fixed term because an employment subsidy scheme was being offered. The two final contracts were based on a municipal consolidation scheme. The Supreme Court determined that no legal grounds existed for concluding fixed-term contracts. In Supreme Court KKO 2015:65, an employee had worked for a municipality from 1995 to 2012. The reason for concluding fixed-term contracts was employee substitution. In 1999, the municipality set a formal skills requirement for the job. However, the employee did not fulfill the requirement. The municipality offered her professional training to acquire the necessary skills for the job, but the employee did not complete the training. The Supreme Court determined that there were no legal grounds for concluding fixed-term contracts. In Supreme Court KKO 2010:11, the Supreme Court accepted the use of fixed-term contracts, because the employer’s business, a day care facility, was based on service purchase agreements that were settled with the municipality annually. The fixed-term contracts had always lasted one year, and five successive contracts had been concluded over a period of five years. In Supreme Court KKO 2012:2, an employee had worked in the service of a local authority (Centre for Labour Force and Economic Development) between 2000 and 2006. Eight fixedterm contracts with very brief interruptions were concluded during that period. Part of the employee’s salary was paid from a foundation. The tasks the employee performed were normal administrative tasks. The Supreme Court determined that there were no legal grounds to 24 

Atypical Employment Relationships: The Position in Finland 229 A fixed-term contract cannot be terminated by giving notice on financial and production-related grounds26 (with the exception of mixed-term contracts, see section II.C below). However, a fixed-term contract can be terminated on individual grounds by giving notice27 or cancellation.28 A cancellation based on a probation period29 is also possible, if the parties have agreed on a probation period.30 The individual grounds for termination of a fixed-term contract are the same as for contracts concluded for an indefinite period. For terminations with a notice period, the grounds must be appropriate and substantive. As a general rule, a warning must have been issued before giving notice.31 The grounds for a cancellation of a fixed-term contract must be extremely weighty, and relate to the conduct of the employee. No special grounds are required to cancel a fixed-term contract during a probation period; but the reason for the cancellation must be appropriate with regard to the purpose of the probation period. If the employee continues to work after the fixed-term contract ceases, the employment relationship shall be deemed to have been concluded for an indefinite period.32 An employment contract concluded for longer than five years may, when five years have elapsed from the time of conclusion of the contract, be terminated on the same grounds and using the same procedure as for an employment contract concluded for an indefinite period.33 It is also possible to conclude a so-called mixed-form (sekamuotoinen) contract. This type of contract is not regulated by law, but it has been accepted in legal practice and jurisprudence.34 Mixed-form contracts are fixed-term contracts that can be terminated by giving notice within the concluded fixed-term contracts in this particular situation. The employment contract was therefore declared to be one of indefinite duration. 26 

(7:3) ECA. (7:2) ECA. 28  (8:1) ECA. 29  (1:4) ECA: The parties can agree on a probation period. The probation period must be agreed in the first contract, where several successive contracts are signed. If the tasks to be carried out by the employee change fundamentally, a probation period can be agreed for the new tasks. During the probation period, both parties can cancel the contract with immediate effect. No special grounds are required, but the reason for the cancellation may not be discriminatory and must be connected to the purpose of the probation period. 30  (1:4) ECA: The maximum length of a probation period is four months. However, if the employer offers the employee special training (more than a normal orientation), the maximum is six months. In fixed-term contracts, the maximum length of a probation period is 50% of the fixed period. 31  (7:2) ECA. Only if the reason for giving notice is such a grave breach of the employment relationship as to render it unreasonable to require the employer to continue the contractual relationship with the employer, is a previous warning not required. In other words, giving notice without warning is an exception. 32  (6:5) ECA. 33  (6:1) ECA. 34  See Supreme Court KKO 2006:4 (n 37 below). 27 

230  Matleena Engblom fixed-term period. The requirement for legitimate (justified) reasons for concluding a contract for a fixed term applies to mixed-form contracts as well as to any other fixed-term contracts. If the employer gives notice, there must be legal grounds in accordance with the ECA; either personal35 (due to the employee) or financial/production-related grounds.36,37 D.  Rights and Status of Fixed-Term Worker (i)  Equal Treatment There is a regulation in the ECA on equal treatment.38 Without proper and justified reasons, less favourable employment terms than those applicable to other employment relationships cannot be applied to fixed-term and part-time employment relationships merely because of the duration of the employment contract or working hours.39 A regulation on benefits depending on the duration of the employment relationship exists as well.40 If the employer and the employee have concluded a number of consecutive fixed-term employment contracts under which the employment relationship has continued without interruption or with only brief interruptions, the employment relationship shall be considered as having been valid continuously with reference to benefits based on the employment relationship. (ii)  Employment Opportunities If the fixed-term contract is lawful, ie if a justified reason for the fixed term exists, the employee nevertheless, in principle, has no employment security

35 

(7:2) ECA. (7:3) ECA. 37 Kairinen, Työoikeus perusteineen, n 17 above, p 189 asserts that the employment protection of an employee in a mixed-form contract is the same as that in any other employment relationship, eg there must be lawful reasons for terminating the contract in all situations. In Supreme Court KKO 2006:4, the claimants had fixed-term contracts. The contracts also included a term that the contracts could be terminated by giving notice. The claimants alleged that the term was null and void. They argued that since the ECA does not include the possibility to conclude a mixed-form contract, this kind of agreement is not valid. The Supreme Court stated that there must be legal grounds for agreeing on a fixed-term contract, and, on the other hand, legal grounds for the termination. Additionally, both parties can terminate the contract by giving notice. Thus, this type of contract cannot be regarded as being disadvantageous for the employee. There is no reason why the contract should be considered illegal. The Supreme Court also explained that this interpretation seems to be in line with the position taken in the Government Proposal for the Act. Government Proposal for Employment Contracts Act 157/2000, 6 October 2000 pp 87, 90–91. 38  (2:2) ECA. 39  A similar regulation is included in LGO (2:12) and ACSC (3:11). 40  (1:5) ECA. 36 

Atypical Employment Relationships: The Position in Finland 231 after the fixed term ends,41 nor does s/he have a right to get extra work or continue working on a fixed-term contract. The employer’s duty to offer additional work to part-time employees42 does not include employees with a fixed-term contract. The employer shall provide fixed-term workers with information on vacancies to ensure that fixed-term employees have the same opportunity to apply for these jobs as permanent or full-time employees. The obligation to share such information shall be fulfilled in accordance with the practice generally adopted in the enterprise or workplace; for instance, on the intranet.43 The only factual employment security employees with a fixed-term contract have derives from the general requirements of fixed-term contracts, ie to be hired on a fixed-term contract only for justified reasons. E.  Information and Consultation Fixed-term employees enjoy similar information and consultation rights to others. Based on the Act on Co-operation within Undertakings, all groups of employees are included in the calculation of the total number of employees in the undertaking. The only exception is workers with fixed-term contracts, who only work casually or temporarily. Workers who perform normal, regular tasks, like substitutes, are counted. F.  Specific Provisions There are no specific provisions on special employee groups in the ECA. In legal practice, some groups are identified for whom the justified reasons exist fairly often. 41  Eg: person X works as a substitute for person Y from 1 May to 31 July based on a fixedterm contract. Y comes to work on 1 August, but gets ill the same day. A substitute is again needed. The employer has the right to hire someone other than X, because his/her contract ended on 31 July. X does not have priority to be hired again. 42  (2:5) ECA. 43  (2:6) ECA. 44  (1:3) ECA: An employment contract is valid indefinitely unless it has been concluded for a specific term for justified reasons. Contracts concluded for a fixed term on the employer’s initiative without justified reason shall be considered contracts of indefinite duration. It is prohibited to use consecutive fixed-term contracts when the number or total duration of the fixed-term contracts or the totality of such contracts indicates a permanent need for labour. This is a peremptory regulation: the parties to the employment contract cannot agree otherwise. In the ECA (13:6), there is an explicit regulation that any agreement that reduces the benefits of the employee is null and void, unless it is covered by an exception in the ECA.

232  Matleena Engblom G. Collective Bargaining Agreements Deviating from Statutory Provisions In Finland, it is not possible to make agreements on the requirements of fixed-term contracts.44 The restrictions on using fixed terms are part of employment security. Social partners, local parties or parties to an individual employment relationship have no competence to agree otherwise on these requirement (ie to the detriment of the employee). The provisions of the ECA are imperative, if not otherwise regulated in the Act. Provisions on the requirements for using fixed-term contracts are imperative. III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements There is no legal definition for part-time work in Finland.45 Part-time work is regarded as work performed for less than the regular working hours set out in the Working Hours Act46 (40 hours per week), and less than the maximum regular working hours in the applicable collective agreement.47 This means that no definition of part-time work is made in terms of hours worked.48 There are no particular formalities for a part-time contract. The contract can even be concluded orally, like all employment contracts in Finland.49 The party claiming that the working time has been agreed to be part time is require to prove this if necessary.50

45 J Paanetoja and H Tikkanen, Osa-aikatyön juridiikka (Law of Part-time Work) (Helsinki, 2016) p 18. 46  (3:6) Working Hours Act, Työaikalaki (605/1996) (WHA). 47  Eg, in Supreme Court case KKO 2010:5, the employees working 37.5 hours per week were regarded as part-time employees, since the main rule in the relevant collective agreement was 40 weekly hours, see section III.F.(i) below. 48  Paanetoja and Tikkanen (n 45 above) p 19. See also Labour Court case TT 2008:64; the Labour Court considered 37.5 weekly working hours to be full-time work. This interpretation was based on a long-term practice at the workplace. In Finland, the Labour Court is a special court that handles disputes between the social partners, ie trade unions and employers’ federations. The Labour Court is a ­tripartite organ with representatives of the social partners and the state. See the Labour Court Act (646/1974 as amended by several acts, including 102/2012), Laki työtuomioistuimesta. 49  (1:3) ECA. 50  The burden of proof is based on general rules concerning evidence (17:2) Code of Judicial Procedure, Oikeudenkäymiskaari (4/1734).

Atypical Employment Relationships: The Position in Finland 233 B.  Opportunities for/Right to Part-Time Work As a main rule, part-time work is based on an agreement between the employer and employee. Reasons may include that the employer cannot offer more working hours to the employee. It is also possible that the employee wants to work part time; the reason might be because s/he is studying, for family reasons or other personal reasons. If the parties can agree on the working hours, the situation is ideal. However, sometimes the employee would like to work part time, but the employer cannot offer him/her full-time work. In that case, the employee cannot demand to work full time. There are some situations51 in which the employer is required to offer the employee part-time work. The employer is not absolutely obliged to offer part-time work even in these situations, but the denial must be really well grounded: Partial child-care leave: An employee who has been employed by the same employer for a total period of at least six months during the previous 12 months is entitled to take partial child-care leave in order to care of his or her child, or some other child living permanently in the employee’s household, up to the end of the second year (in certain cases the third year) during which the child attends basic education. The parent of a disabled child or a child with a long-term illness in need of particular care and support may be granted partial child-care leave until the child turns 18. Both of the child’s parents, or persons having the care and custody of the child, are entitled to take partial child-care leave during the same calendar period, but not simultaneously. The employee must submit a proposal to the employer at the latest two months before the leave will begin. Primarily, the employer and the employee shall agree on partial child-care leave and the detailed arrangements. The employer cannot refuse to agree on or grant the leave unless the leave causes serious inconvenience to production or service operations and this cannot be avoided by making reasonable rearrangements of work.52 The employer must provide the employee with an account of the grounds for its refusal.53 If an employee is entitled to partial child-care leave, but it is not possible to reach agreement on the detailed arrangements, the employee shall be granted one period of partial child-care leave in a calendar year. The duration and timing of the leave shall be according to the employee’s proposal. 51  The other possible situation is reasonable accommodation to achieve equality of persons with disabilities: Non-discrimination Act, Yhdenvertaisuuslaki (1325/2014), s 15. See below. 52  See Tiitinen and Kröger, n 13 above, pp 364–68. 53  (4:4) ECA.

234  Matleena Engblom In such cases, the partial child-care leave shall be granted by reducing the regular working hours to six hours per day. The reduced working hours shall cover a continuous period, notwithstanding rest periods. If regular working hours have been arranged on the basis of an average, the average shall be reduced to 30 hours per week. The length of the partial child-care period depends as described above, on the employee´s proposal. No more than one such period may be granted per calendar year. Partial sick leave: There is a possibility to be on partial sick leave,54 during which the employee works part-time and is paid for the part-time work by the employer, and also receives partial sick leave pay from the Social Insurance Institution KELA.55 The requirement is that the employee was working full time before falling ill. The idea behind this scheme is to provide the employee whose sickness has lasted for a long period the opportunity to gradually reach full working capacity and to return to full-time work. The maximum length of partial sick leave pay is 120 days. However, the partial sick leave arrangement must be agreed between the employer and the employee and be accepted by KELA. The employer cannot be required to arrange or offer part-time work to an employee who is recovering after a long period of sick leave. The same principle applies to part-time pension arrangements, both for persons on disability pensions and on old age pensions: the arrangement must be based on an agreement between the parties, and the employer cannot be required to offer the employee part-time work.56 In pension arrangements, the pensions are paid by the pension insurance companies. Disabled persons: In addition to family-related part-time contracts, an employer is required to offer an employee part-time work in a situation in which such work could be considered a reasonable accommodation for achieving equality of persons with disabilities in accordance with the Nondiscrimination Act.57 Even then, the employer’s obligation to make such reasonable accommodation is weighed, taking into account the size, financial position, nature and extent of the employer’s operations, as well as the costs of the adjustments and the available support for such adjustments. Part-time based on Working Hours Act: A new working hours act is coming into force on 1 January 2020. The act includes regulation on employees’ right to get part-time work based on social or health reasons. If the employee

54 

(8:12) Health Insurance Act, Sairausvakutuuslaki (1224/2004). Social Insurance Institution (KELA), Kansaneläkelaitos, is a public institution that pays out social benefits and pensions: see Act on Social Insurance Institution, Laki kansaneläkelaitoksesta (73/2001). 56  This is based on the freedom of contract: the employer is not required to make part-time agreements. 57  Non-discrimination Act, Yhdenvertaisuuslaki (1325/149) s 15. 55 The

Atypical Employment Relationships: The Position in Finland 235 wishes to work part-time for these reasons, the employer is obliged to try to arrange the work so that this is possible. The parties must make an agreement on part-time work for a fixed term, for a maximum of 26 weeks at a time, and agree on daily and weekly working hours. An employee wishing to start part-time early retirement (old age pension) or part-time disability pension has the same right to part-time work. If the employer refuses to offer part-time work in these circumstances, he or she must present the grounds for the refusal.58 In practice, disputes in which the employee wishes to work part time but the employer does not agree are rare. In the majority of cases, employees want to work more hours.59 C.  Opportunities for/Right to an Extension of Working Time Part-time employees have priority to be offered additional working hours if additional work becomes available. If the employer requires additional employees for duties that arise and which the employees who are already working part time could carry out, the employer shall offer these parttime employees the opportunity to work additional hours.60 This obligation applies to all employers; there is no minimum limit on the number of employees, as there is in the case of the employer’s obligation on information and negotiation in the Act on Co-operation within Undertakings.61 The employer also has the duty to offer training to part-time employees if this is necessary for them to be able to perform the additional work. In practice, if performing the additional work is only possible if the employee receives training (of a reasonable amount) the employer shall provide the employee with such training.62 The part-time employees’ right to additional work carries a lot of weight. This right also extends to a right of dismissed employees to reinstatement. 58  Government Proposal 158/2018 vp, https://www.finlex.fi/fi/esitykset/he/2018/20180158, Report of the Committee of Employment and Equality, https://www.eduskunta.fi/FI/vaski/ Mietinto/Sivut/TyVM_17+2018.aspx. 59  There is one case concerning an employee’s right to part-time work. In Turku Court of Appeal case THO 24 October 2001, a pharmacist had been working part time for 18 years. A transfer of undertaking took place and the employee was transferred to the service of a new employer based on the former terms of employment. The transferee requested the pharmacist to start working full time, since the part-time working hours were difficult to organise. The employee did not consent to working more hours. The Appeal Court determined that the 18-year period of part-time work represented a binding agreement to the same extent as if the employee had been working full time. The employer could not change the terms of the employee’s working hours unilaterally. 60  (2:5) ECA. 61  (1:2) Act on Co-operation within Undertakings (ACU), Laki yhteistoiminnasta yrityksissä (334/2007). 62  (2:5) ECA.

236  Matleena Engblom If an employee has been given notice due to financial and production-related reasons, and within nine months of the termination of the employment relationship the employer needs new employees for the same work or similar work to that the employee given notice had been performing, the employer must offer work to the former (dismissed) employee, if the employee is still looking for work through an employment and economic development office. This obligation also applies correspondingly to the assignee referred to in Chapter 1, section 10, where the assignor was given notice to terminate an employee’s employment contract prior to the assignment.63 In addition, the employer must provide information on vacancies in accordance with the generally adopted practice in the enterprise or at the workplace to ensure that part-time employees have the same opportunity to apply for these jobs as permanent or full-time employees.64 In Supreme Court case KKO 2006:49, the question of priority between the rights of a fixed-term employee and a part-time employee was dealt with. An employee had been working for a company based on a fixedterm contract. At the same time, another employee was working for the company part time, with a contract that had been determined to be valid indefinitely. Eventually, the employer’s work load increased. The company offered a full-time, indefinite contract to the fixed-term employee but did not offer additional working hours to the part-time employee. The Supreme Court stated that this violated the rights of the part-time employee, as regulated by the ECA. The Supreme Court explained that the company had no legal duty to offer the fixed-term employee more work after his/her fixed term had ceased. Instead, the company had the legal duty, based on ECA Chapter 2 section 5, to offer the part-time employee additional work whenever possible. The fact that the company offered the fixed-term employee a new employment contract indicated that additional workforce was needed, and the employer thus had the option to offer this additional work to the part-time employee. In Turku Court of Appeal case THO 2 May 2016 S 15/164, the question regarding an employer’s duty to offer additional working hours to cashiers in a supermarket was dealt with. Previously, the District Court had ordered the employer, a large supermarket with dozens of employees, to pay compensation to the employees because it had hired additional workforce and did not offer the additional work to the claimants. The Court of Appeal determined that the employer had acted lawfully. The additional work hours were needed during periods when there were more customers, like in the evenings and on weekends. It was not possible to offer the extra work to the part-time cashiers because the need for additional hours arose

63  64 

(6:6) ECA. (2:6) ECA.

Atypical Employment Relationships: The Position in Finland 237 in the evenings/weekends; the shifts actually occurred at the same time the part-time workers were already working. There was also a dispute concerning the method used by the employer to offer the extra hours to its part-time workers. The employer had sent the information on extra hours to the mobile phones of all part-time employees. The claimants asserted that the offers should have been made personally. D.  Rights and Status of Part-Time Worker (i)  Equal Treatment Less favourable employment conditions than those applicable to other employment relationships may not be applied to fixed-term and part-time employees merely because of the duration of their employment contract or working hours, without appropriate and justified reasons.65 In Supreme Court case KKO 2008:28, the company had a bonus policy. The company excluded part-time and fixed-term employees from the bonus programme. The Supreme Court stated that the company had thereby breached the duty of equal treatment. The company had not shown any objective, acceptable grounds for treating these employee groups in a less favourable way. Supreme Court case KKO 2010:5 also dealt with equal treatment. Until 1996, the regular working hours in the company were 40 hours per week. The employees were entitled to certain benefits, guaranteed in the collective agreement on full-time workers. The working hours system was changed in 1996, with ‘regular working hours’ now being 37.5 hours per week. The employees consequently were no longer entitled to the benefit. However, the employer and employees agreed that the employees would receive monthly ‘compensation’ for the lost benefit. The compensation was only paid to those employees who were in an employment relationship at the time. The new employees were not entitled to the compensation. The employer based this decision on the fact that the new employees had not ‘lost’ the benefit. Thus, the result was that there were two groups of employees: those who had started working before 1996 and got the compensation, and those who had started working after 1996 and were not entitled to the compensation. Both groups performed the same tasks, and both in principle worked part time. The Supreme Court deemed that there was no objective, acceptable reason for such unequal treatment, since the arrangement meant that the former workers received better pay than those who started working after 1996. The employer was ordered to pay the same salary to the ‘new’ employees and compensate for the gap in the salaries. 65 

(2:2) ECA, see section II.D.(i) above.

238  Matleena Engblom (ii)  Dismissal Protection If the part-time employment contract is valid indefinitely, the employee enjoys the same employment security as the employees with a full-time contract. The employment contract can only be terminated on grounds regulated in the ECA.66 If the part-time work contract is concluded for a fixed term, reasonable and justified reasons for the fixed term must exist,67 for example, substitution or a specific project. (iii)  Other Matters One special group of part-time workers are workers with a so-called zerohours contract. In a zero-hours contract, there is no minimum number of daily or weekly working hours. Finnish law does not prohibit zero-hours contracts. Zero-hours contracts are in fact not even mentioned in Finnish legislation. Some employers regard this type of contract as useful: the employee is only required to work when needed, but the employer does not carry the obligation to offer him/her any work (unless s/he is offering additional work based on ECA Chapter 2 section 5). Obviously, workers rarely want to conclude a zero-hours contract, but agree to sign such contracts in the hope of working at least some hours. However, there is a regulation on zero-hours contracts in some collective agreements.68 This may represent a practical barrier to concluding zerohours contracts, but not a legal one. There is currently no case law on collective agreement restrictions on zero-hours contracts. There are no particular formalities for concluding a zero-hours contract. The contract can be even concluded orally, like all other employment contracts. However, there have been cases where parties initially agreed on a zerohours contract (in writing), but after the employee had actually worked a certain number of working hours for a long time (in practice, around six months or more), the additional hours were regarded as establishing a new term in the employment contract.69 When the Supreme Court in case KKO 2012:10 stated (see below, section IV.C.(i)) that a fixed-term contract cannot be merely based on temporary

66  Namely: (7:2) ECA individual, employee-related grounds, (7:3) ECA collective, ie financial and production-related grounds, (8:1) ECA cancellation on individual grounds, and (1:4) ECA cancellation based on a probation period. 67  (1:3) ECA. 68  See eg, collective agreement for the commercial sector. 69  Eg, in Vaasa Court of Appeal case VHO, 15 December 2010, S 09/645, the employment contract was initially concluded for on-call work. The parties had stated in a written contract that the working hours would be separately agreed every time a call for work was made.

Atypical Employment Relationships: The Position in Finland 239 agency work, one of the consequences was a rise in zero-hours contracts. The social partners have discussed the possibilities of combining flexibility in the labour market and employment security for employees working under atypical contracts. No legal action has yet been taken. However, a citizens’ initiative to prohibit zero-hours contracts has been organised. The initiative was submitted to Parliament on 4 December 2015 and has been processed by the Committee of Labour Market and Equality. Parliament rejected the initiative on 31 March 2017.70,71 E.  Information and Consultation There is no special regulation on the information and consultation rights of part-time employees in Finland. The duty of consultation and negotiation72 has been incorporated in the Act on Co-operation within Undertakings73 Part-time employees have the same negotiation rights as full-time employees, since all employees work on the basis of an employment contract. F.  Other Part-Time Arrangements Using other part-time arrangements is possible in Finland, but no special regulation for such arrangements exists. If such arrangements are made, the general employment legislation and (possibly) the collective agreements apply. G.  Collective Bargaining Agreements Deviating from Statutory Provisions Due to the hierarchy of the regulations and the peremptory character of employment legislation, collective agreements may not include terms that are more detrimental to employees. There are some specifications and rules in many collective agreements on part-time work. In practice, the employee worked six hours a day, five days per week for two years. The employee’s daily and weekly working hours were regarded as forming [or as having become] a term of an employment contract. 70 www.eduskunta.fi/FI/vaski/KasittelytiedotValtiopaivaasia/Sivut/KAA_5+2015.aspx.

71 KAA 5/2015 vp: https://www.eduskunta.fi/FI/vaski/EduskuntaAloite/Documents/KAA_ 5+2015.pdf. Citizens’ initiatives are regulated in the Act on Citizens’ Initiatives, Kansalaisaloitelaki (12/2012). If 50,000 citizens who are entitled to vote sign the initiative, it must be submitted to Parliament. The supporters of the initiative claimed 18 weekly working hours as the minimum for part-time work. 72  Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community [2002] OJ L80/29. 73  Laki yhteistoiminnasta yrityksissä (334/2007).

240  Matleena Engblom For example, the collective agreement of the hospitality sector74 provides a definition for part-time work.75 Part-time work is defined as work that is less than 111 hours within a three-week period. The parties shall agree on a fixed minimum of hours of work within a three-week period or the average working hours within a three-week period.76 The minimum duration of a work shift is four hours.77 However, upon the employee’s request, the duration of the work shift can be less than four hours. IV.  TEMPORARY AGENCY WORK

A.  Legal Definitions/Formal Requirements The definition of temporary agency work is included in the ECA.78 If the employer assigns an employee for use by another employer (user undertaking), the right to direct and supervise the work is transferred to the user undertaking, together with the obligations stipulated for the employer, which are directly related to the performance of the work and its organisation. The user undertaking must provide the temporary agency worker’s employer (the temporary work agency) with all information necessary for the fulfilment of the employer’s responsibilities. The transfer is only possible with the employee’s consent. The second requirement is for an employment contract to be concluded between the temporary work agency and the employee, ie the criteria of an employment relationship must be fulfilled.79 The main elements of an employment relationship are a contract to perform work, the performance of work, working for another person or company, remuneration, and the employer’s right to direct and supervise the work.80 B.  Registrations, Licensing, Financial Guarantees, etc No special duty of registration exists for temporary work agencies. The legal obligations are the same as those for any employer. The temporary work

74  Agreed between the Finnish Hospitality Association, MaRa (Matkailu- ja ravintola-ala) and Service Union United PAM (Palvelualojen Ammattiliitto PAM). 75  (7:2) Collective Agreement. 76  (7:2) Collective Agreement. 77  (7:3) Collective Agreement. 78  (1:7) ECA. 79 (1:1) ECA: ‘This Act applies to contracts (employment contracts) entered into by an employee or jointly by several employees as a group, agreeing to personally perform work for an employer under the employer’s direction and supervision in return for pay or some other remuneration.’ 80 Kairinen, Työoikeus perusteineen, n 17 above, pp 71–78.

Atypical Employment Relationships: The Position in Finland 241 agency is required to pay statutory insurances and taxes. The ­employer’s obligations and duties are based on the general employment legislation. The Act on Posting Workers applies to posted workers.81 The temporary work agency may not charge the employee a fee for assigning him/her to a user undertaking.82 C. Relationship between Temporary Agency Worker and Temporary Work Agency (i)  Fixed-Term and Part-Time Contracts As a main rule, the fact that a person works as temporary agency worker should not affect his or her legal status. The conclusion of a fixed-term contract requires justified reasons,83 and if the employee is hired for part-time work and additional hours of work can be offered, they must be offered to that employee, even if s/he is a temporary agency worker.84 These obligations concern the temporary agency as an employer. The Supreme Court in case KKO 2012:10 ruled on the question whether a fixed-term contract can be based merely on a temporary agency contract. A temporary work agency (hiring agency) had concluded a fixed-term work contract with an employee. The fixed term ended when the assignment to the agency’s customer (user undertaking) was terminated. The Supreme Court declared the employment contract to be valid indefinitely. The Supreme Court stated among other things that the ECA does not include a separate regulation on the duration of an employment contract where the employment contract involves a temporary work agency. The duration of the employment contract between an employee and a temporary work agency is covered by the general regulations. A justifiable reason for a fixed-term employment contract can be connected to substitution needs or the character of the assignment, such as seasonal work or the need to employ a worker until the delivery of a certain order. Other justifiable reasons connected to the operations or assignments of a company, such as the need for additional workforce during peaks of production or fluctuating demand, can justify the use of a fixed-term employment contract. If, however, there is a continued need for additional labour, the employer may not conclude fixed-term contracts. The Supreme Court furthermore observed that the tasks the temporary agency worker performed in the user undertaking were regular tasks. 81 

Act on Posting of Workers, Laki työntekijöiden lähettämisestä (447/2016).

82 www.tem.fi/documents/1410877/2106637/TEM_vuokratyoopas_netti.pdf/d3bf1fb0-bd5

6-4c7f-aa2a-6877fc4429e5. 83  (1:3) ECA. 84  (2:5) ECA.

242  Matleena Engblom He worked as a salesperson in a furniture store. The termination of the employment contract depended solely on the assignment to the user undertaking. The employee did not substitute another worker or work on a special project. The period of the assignment was not an objective, neutral ground and could not be the only justified reason for concluding a fixed-term contract. (ii)  Rights and Obligations/Liability The right to direct and supervise the work is transferred from the temporary work agency (the actual employer) to the user undertaking. Such an arrangement is only possible with the employee’s consent.85 The employer obligations relating directly to the performance of work and its organisation are transferred to the user undertaking. The user undertaking must provide the temporary work agency—which among other things pays the employee’s salary—with all information necessary for the fulfilment of the employer’s responsibilities. (iii)  Dismissal Protection A temporary agency worker is entitled to the same right to employment protection as any other employee.86 A fixed term cannot be merely based on the fact of temporary agency work; the justified reasons for concluding such a contract must exist in accordance with Chapter 1 section 3 ECA. If the employment contract is permanent, it can only be terminated on the grounds regulated in the ECA.87 D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship There is no contractual relationship between the temporary agency worker and the user undertaking. The contractual relationship exists: 1) Between the temporary work agency and the employee (employment contract), 2) Between the temporary work agency and the user undertaking (contractual relationship—hiring of an employee).88 85 

(1:7) ECA. See Supreme Court KKO 2012:10, IV.C(i) above. 87  (7:2) ECA, termination based on individual reasons such as lack of capacity to work or neglect; (7:3) ECA, termination on financial and production-related grounds; and (8:1) ECA, cancellation of contract for extremely severe grounds. 88  (1:7) ECA. 86 

Atypical Employment Relationships: The Position in Finland 243 The user undertaking must provide the employee’s employer (temporary work agency) with all information necessary for the fulfilment of the employer’s responsibilities, for instance, information on the tasks being performed to determine the temporary agency worker’s salary.89 (ii)  Rights and Obligations/Liability Even though no formal contract is concluded between the temporary agency worker and the user undertaking, the parties are required to observe several points. The supervision and direction of work is transferred to the user undertaking. Likewise, the employee is required to follow the instructions of the user undertaking.90 There is a regulation on the collective agreement applicable to the temporary agency worker. If an employer has hired employees to work for another employer, and the initial employer (temporary work agency) is neither bound by a collective agreement, nor required to observe a generally applicable collective agreement in its employment relationships, the employer is required to at least observe the provisions of the collective agreement applicable to the user undertaking. If no collective agreement applies to the hired worker’s (temporary agency worker’s) employment relationship, the terms and conditions relating to the worker’s salary, working hours, and annual leave must, at minimum, comply with the agreements or practices binding and generally applied by the user undertaking.91 (iii)  Health and Safety According to the Occupational Safety and Health Act,92 the employer who has the right to direct and supervise work in the workplace is also responsible for the occupational safety of all employees performing work there. Consequently, this also applies to temporary agency workers, who are directed and supervised by the user undertaking. E.  Relationship between Temporary Work Agency and User Undertaking There is a contractual relationship between the temporary work agency and the user undertaking. The user undertaking must provide the employee’s 89 

(1:7) ECA. (1:1, 1:7 and 3:1) ECA. 91 (2:9) ECA. In Finland, most employers are required to apply collective agreements. The duty to apply a collective agreement is based either on the employer’s membership of an employers’ federation, § 4 Collective Agreements Act, Työehtosopimuslaki (436/1946) or on general applicability, (2:7) ECA. 92  (6:49) Occupational Safety and Health Act, Työturvallisuuslaki (738/2002). 90 

244  Matleena Engblom employer (temporary work agency) with the necessary information for fulfilment of the employer’s responsibilities.93

F.  Rights and Status of Temporary Agency Worker (i)  Equal Treatment All non-discrimination legislation and the duty of equal treatment apply to temporary agency workers as well as to other types of employment. Temporary agency workers are entitled to access the user undertaking’s services and common facilities provided by the enterprise to its employees on the same terms and conditions, unless differentiated treatment is justified for objective reasons. However, the user undertaking is not required to provide financial support to temporary agency workers to use such services and facilities.94 (ii)  Other Matters Temporary agency workers enjoy the ‘normal’ legal status and rights of a regular employee. For example, they enjoy the same protection against illegal termination as other workers. Also, the reasons for concluding a fixedterm contract with a temporary agency worker are the same as for any other employee.95

G. Information and Consultation/Representation of Temporary Agency Worker The same information and consultation rights apply to temporary agency workers as for any other employees. In practice, the realisation of consultation rights can be problematic, however, if the employment contracts are concluded for short terms, and the places of work change. As for the negotiation and consultation rights that apply in accordance with the Act on Co-operation within Undertakings towards temporary agency workers, it is the duty of the temporary work agency, not that of the user undertaking.

93 

(1:7) ECA. (2:9a) ECA. 95  (1:3) ECA and Supreme Court case KKO 2010:12, see IV.C.(i). 94 

Atypical Employment Relationships: The Position in Finland 245 H. Strikes According to the Constitution of Finland,96 everyone has the right to arrange meetings and demonstrations without a permit, as well as the right to participate in them. Everyone is entitled to the freedom of association. Freedom of association entails the right to form an association without a permit, to be a member of an association and to participate in the activities of an association. The freedom to form trade unions and to organise to promote other interests is likewise guaranteed.97 This right also includes the right to strike.98 Using temporary agency workers as substitutes for striking workers violates this right. I.  Collective Bargaining Agreements Deviating from Statutory Provisions The regulatory system in Finland does not permit social partners to agree on less favourable terms for employees on essential matters. The regulation in the employment legislation is peremptory. In the ECA Chapter 13 section 6, there is an explicit regulation that agreeing to reduce the benefits of the employee is null and void, unless there is an exception in the ECA. However, there are some restrictions on the use of temporary agency work in collective agreements. In Labour Court case TT 2016:11, R 113/12, the Labour Court issued a judgment on the question whether this type of restriction is in line with the legislation of the European Union. In a collective agreement, the parties had agreed that the use of temporary agency work was restricted to increases in the work load or to the performance of other tasks of limited duration or of a specific nature which, for reasons of urgency or because of their limited duration or skill requirements or the use of special tools or other similar reasons, could not be performed by their own staff. The company hired temporary agency workers between 2008 and 2012 as substitutes for employees on sick leave and annual leave. A substantial number of temporary agency workers were working in normal jobs that could have been performed by the company’s own staff. Since the company did not restrict the use of temporary agency workers to increases in the work load or to the performance of other tasks that could not be performed by its own staff, as had been agreed in the collective

96 

Constitution of Finland, Perustuslaki (731/1999). § 13 Constitution. 98  The right to strike is not explicitly stated in the Constitution of Finland, but derives from human rights and case law. 97 

246  Matleena Engblom agreement, the use of temporary agency work was considered a breach as defined in the collective agreement. The company had intentionally violated the collective agreement and the federation of employers had neglected its obligation to supervise its member undertaking. Both were ordered to pay compensatory fines to the claimant union. The sanction for violating a collective agreement, as ruled by the Labour Court, consists of a compensatory fine: 7 § Collective Agreements Act.

10 Atypical Employment Relationships: The Position in France FRANCIS KESSLER

I. INTRODUCTION

E

MPLOYMENT RELATIONSHIPS IN France are highly regulated, in particular with regard to terminations of employment relationships. In France, ‘ordinary’ employment contracts are concluded for an ‘indefinite’ period, for ‘full-time’ work and between the employee and a single, specified employer. The expression ‘atypical employment relationships’ is used for those employment relationships that differ from the standard one under labour law, namely full-time employment relationships for an indefinite duration. Special regulations apply to irregular employment contracts. This chapter presents the main forms of such employment contracts mostly referred to as ‘atypical’: fixed-term contracts (B), part-time contracts (C) and temporary work (D). It is noteworthy to point out that France has also established an atypical employment relationship of its own, namely ‘French umbrella companies’1 (portage salarial) the regulation of which is inspired by the rules on both fixed-term work and temporary agency work. This system can be defined as a set of contractual relationships between an umbrella company, an independent contractor and a client company. Two contracts are concluded in the umbrella companies system: a service contract between the umbrella company and the client company, and a temporary employment agreement between the independent contractor and the umbrella company.2 When the independent contractor performs the service, the client company pays the fees to the umbrella company which subsequently pays the independent contractor a salary.

1 G Auzero and E Dockes, Droit du travail (Dalloz, 2016) p 424; B Krief, ‘le portage salarial: une relation commerciale atypique’, Cahiers sociaux, 2015, No 275, p 308. 2  L 1254-1 of the Labour Code.

248  Francis Kessler Portage salarial is considered a useful mechanism for those who want to carry out work outside their main form of employment but who do not want to terminate their current employment contract, for example, human resources managers or human resource consultants (referred to here as executives). When executives perform work for a second company, they are not categorised as independent workers but as employees of an umbrella company. The portage salarial is an innovative system of temporary placement, which is sometimes referred to as an intermediate form of employment between self-employment and regular employment. II.  FIXED-TERM WORK3

A.  Legal Definitions/Formal Requirements A fixed-term employment contract (contrat à durée determine) is an ­employment contract based on which an employer recruits an employee for a limited period of time. Such contracts may only be concluded to perform a specific, temporary task, and only in cases set out by law. For example, a fixed-term employment contract may be concluded to replace an employee who is absent or provisionally working part time (eg p ­ arental leave), or to fill in for an employee who has not yet taken up his/her position. It may also be used in the event of a temporary increase in the undertaking’s activity, for seasonal work or for state-aided employment within the framework of employment support measures.4 A fixed-term contract may be concluded neither for the purpose nor with the effect of permanently filling a job related to the undertaking’s regular and permanent business activity.5 Recourse to fixed-term contracts is strictly regulated. An employer can only have recourse to fixed-term contracts in specific cases6 such as: —— Replacement of an employee in case of absence (sick leave, maternity leave, etc); —— Temporary increase in the employer’s activity (linked to a specific project or task);

3  G Auzero and E Dockes, Droit du travail (Dalloz, 2016) p 366; V Stulz and A d’Heilly, ‘En questions: le projet de loi “travail”’, La Semaine Juridique, Social, 2016, No 13, p 3. 4 L 1221-25, L 1241-1 to L 1248-11, L 4154-1, D 1242-1 to D 1243-1, R 1245-1, D 1247-1, D 1247-2, D 4154-1 to D 4154-6 of the Labour Code. 5  L 1242-1 of the Labour Code. 6  L 1242-2 of the Labour Code.

Atypical Employment Relationships: The Position in France 249 —— Seasonal jobs or jobs in certain sectors for which it is common not to have recourse to contracts of indefinite duration; —— Replacement of an entrepreneur, of a person assisting his/her self-employed spouse and effectively regularly and professionally participating in the spouse’s business activity or of a non-employed associate of a non-trading partnership, a civil partnership or a professional partnership; —— Recruitment of engineers and executives to complete a defined objective. The grounds for the conclusion of such a contract must be mentioned in the fixed-term contract.7 As regards the possibility of justifying recourse to a fixed-term employment contract based on seasonal activity, an analysis of French case law indicates that the French Supreme Court (Cour de cassation) does not accept the use of such fixed-term employment contracts in the transport industry. The French Supreme Court ruled against Air Liberté (a French airline company), for example, determining that the fixed-term employment contracts the airline had signed with two flight attendants for the summer period did not comply with French labour law.8 B.  Lawful Stipulation of the Contractual Terms The regulations on fixed-term employment contracts are defined in Articles L 1242-10 and in the Labour Code. Fixed-term contracts must be concluded in writing, in French, signed by both parties, and may be concluded for a ‘specified term’ (the contract can define an end date and therefore specify the contract’s duration) or may be concluded for an ‘unspecified term’ (for example, on replacement of an employee who is on sick leave or maternity leave); in the latter case, the contract must specify a minimum duration. Failing that, the contract will be deemed to have been concluded for an indefinite duration and may be reclassified as such. A fixed-term contract must, in particular, indicate: —— The name and professional qualification of the replaced employee (where a fixed-term contract is concluded to replace an employee); —— The end date of the contract and, where relevant, a renewal clause, or the minimum period for contracts concluded for an unspecified term; —— The workplace occupied by the employee;

7 

L 1242-12 of the Labour Code. Court, Employment Div, 7 April 1998, No 95-43.091 (No 1962 P), SA Air Liberté v Denoyon. 8 Supreme

250  Francis Kessler —— The applicable collective agreement; —— The duration of the probation period if such is provided for; —— The amount of remuneration and its various components. The contract must be sent to the employee no later than two working days from his/her hiring date. The employer must be granted a period of two full days to forward the contract to the employee. The date of hiring itself is not taken into account in calculating the delay, nor is a Sunday, which is not considered a business day.9 A fixed-term contract with a defined objective must, in addition to the above-mentioned clauses, contain those regulations provided in Article L 1242-12-1 of the Labour Code. As regards duration, a fixed-term contract may not exceed 18 months, including renewals.10 However, a fixed-term contract may be concluded for a total of 24 months in the following cases: —— When the contract is executed abroad; —— In the event that an employee will definitely be leaving the undertaking due to the redundancy of his/her post; —— In case of an important order related to export. The duration of the contract may not exceed nine months in the following cases: —— While waiting for an employee hired under a contract of indefinite duration to enter the undertaking (ie a substitute employee is hired on a fixed-term contract pending his/her arrival); —— When urgent work needs to be carried out for safety reasons. Contracts concluded for the recruitment of engineers and executives for the completion of a defined objective may have a minimum duration of 18 months and a maximum duration of 36 months. They cannot be renewed.11 The fixed-term contract does not necessarily have to determine a date of termination in the following cases: —— In case of replacement of an employee who is absent from work; —— For fixed-term assignments to fill posts which will be made redundant following the departure of the employee who previously occupied the post; —— For a fixed-term assignment to fill a post until the employee hired under a contract of indefinite duration takes up the post; —— For seasonal employment and customary annual employment. 9 

Court of cassation, Social Chamber, 29 October 2008, No 07-41.842. L 1242-8 of the Labour Code. 11  L 1242-8-1 of the Labour Code. 10 

Atypical Employment Relationships: The Position in France 251 In such cases, the contract must be concluded for a specific minimum period, and terminates: —— On the date the absent employee returns to work; —— On the date of completion of the objective for which it was concluded (end of season, arrival of the new employee, etc). When a fixed-term contract expires, the company may not have recourse to another fixed-term contract to fill the same post prior to the expiration of a period equal to one-third of the duration of the initial contract, including possible renewals. The ‘waiting’ period between the conclusion of the initial fixed-term ­contract and the new one is not mandatory when (i) the previously replaced employee is again absent from work, (ii) urgent work is necessary for safety reasons, (iii) the employment is seasonal or customary, (iv) the contract was terminated by the employee prior to the expiration of the contract, or (v) the employee rejects renewal of his/her employment contract. In such cases, a new fixed-term contract may be concluded for the duration of the non-renewed contract. Several fixed-term contracts may be successively concluded with the same employee, if the contracts are concluded (i) to replace an employee who is absent from work, or (ii) for seasonal employment or customary annual employment. A fixed-term employment contract may not be used to fill a job related to the standard and permanent activity of the undertaking. If such a contract is signed outside the legal framework, it may be reclassified by the courts as an employment contract of indefinite duration at the request of the employee,12 along with appropriate severance payment. Fixed-term contracts may include a probation period, the maximum duration of which varies according to the initial duration of the contract: —— One day per week, up to a limit of 14 days, of a contract with an initial duration of six months or less; —— One month for a contract with an initial duration of more than six months.13 The contract may be terminated at any time during the probation period without sanction, except for an indemnity paid in lieu of paid holidays. When the contract does not contain a specified term, the trial period is calculated in relation to the minimum duration of the contract. Providing for a trial period that exceeds the one provided by law does not automatically transform the contract into one of indefinite duration. However, in the event

12  13 

L 1245-1 of the Labour Code. L 1242-10 of the Labour Code.

252  Francis Kessler that the contract is terminated during a period exceeding the legal maximum probation period, the termination will be considered to have occurred prior to the completion of the term and give rise to a claim for damages. C.  Termination/End of Fixed-Term Contracts A fixed-term contract ends on the date determined at the outset or, in the absence of such a specified term, when the purpose for which the fixed-term contract was concluded is fulfilled (eg on return of the employee being replaced).14 The maximum total duration of the fixed-term contract (which may be renewable once) is generally 18 months (or 24 months in certain cases) and varies depending on the grounds for which the contract was concluded (see section II.B. above). Fixed-term contracts terminate on the date of expiry of the previously determined term (if such is specified in the contract) or when the event for which the contract was concluded occurs. In principle, fixed-term contracts can only be prematurely terminated by mutual agreement between the parties, or in the event of force majeure or serious misconduct by the employee. The employee can also unilaterally terminate a fixed-term contract if s/he proves that s/he has found a permanent post elsewhere. In such cases, the employee is entitled to a special indemnity for the termination of the contract, except in the following cases: —— Seasonal employment or customary annual employment; —— Contract concluded in the context of an employment policy scheme or to assure participation in complementary training; —— Contract concluded with a student during school or university holidays; —— Employee’s refusal to accept the conclusion of a contract of indefinite duration to carry out the same duties or similar duties for equivalent remuneration; —— Continuation of the contractual relationship within the terms of a contract of indefinite duration following the expiration of a fixed-term contract. If the term of a fixed-term employment contract is exceeded, the employee may be entitled to indemnities usually paid in the context of the termination of an employment contract of indefinite duration: the notice period, severance pay and even damages for unfair dismissal. Criminal sanctions against the employer are also possible, although rare in practice.15

14 

L 1243-5 of the Labour Code. 1243-11 of the Labour Code; Labour Division (Chambre Sociale) of the Court of cassation, 15 March 1995, No 91-42-672. 15 L

Atypical Employment Relationships: The Position in France 253 Another scenario is when an employer fails to comply with the regulations on fixed-term employment contracts and the term of the fixedterm employment contract has not yet been exceeded; the employee may request a reclassification of his/her fixed-term contract as one of indefinite duration16 and the payment of a reclassification indemnity.17 In addition to the risk of having to reclassify the fixed-term contract as one of indefinite duration, the employer who fraudulently resorts to a fixed-term employment contract can be held criminally liable. An employer can be sentenced to pay a maximum fine of EUR 3,750 (EUR 7,500 in case of repeated offences) and/or to a maximum of six months’ imprisonment18 (although this is rather theoretic). D.  Rights and Status of Fixed-Term Workers (i)  Equal Treatment Pursuant to Article L 1242-14 of the Labour Code: The legal and contractual regulations as well as those resulting from uses applicable to salaried employees with contracts of indefinite duration equally apply to employees with fixed-term contracts, with the exception of the rules on breach of the employment contract.

In short, the principle of equal treatment of fixed-term workers and permanent workers applies. A fixed-term employee’s remuneration may not be lower than that paid to an employee who works for the same undertaking under a contract of indefinite duration, whose qualifications are equivalent, and who carries out the same duties.19 Employees working under a fixed-term employment contract must receive an indemnity to compensate for the precariousness of their job situation, when, upon the termination of the fixed-term contract, the contractual relationship with the undertaking is not extended by the conclusion of an employment contract of indefinite duration.20 This so-called job insecurity indemnity (prime de précarité) is equal to 10 per cent of the fixed-term employee’s overall gross remuneration throughout the duration of the fixed-term employment relationship, unless more favourable contractual or collective bargaining agreement provisions exist. 16 

L 1242-12 of the Labour Code. L 1243-8 of the Labour Code. 18  L 1248-1 of the Labour Code. 19  L 1242-15 of the Labour Code. 20  L 1243-8 of the Labour Code. 17 

254  Francis Kessler A fixed-term employment contract that is ruled to be irregular will be considered as having been a contract of indefinite duration from the outset. Therefore, if the contractual relationship has ended (ie the employer has informed the employee of its decision to not renew the fixed-term contract upon its expiration or has prematurely terminated the fixed-term contract), this termination will be construed as being a dismissal. Such dismissal is not deemed null and void, and does not give the employee the right to request reinstatement.21 It is, however, considered to be devoid of real and serious cause, for lack of a duly substantiated dismissal letter (given that termination of a contract of indefinite duration must be legally justified). A fixed-term employee is entitled to annual leave under the same conditions as other employees in the undertaking. Nevertheless, in the event that the undertaking’s organisation does not allow for the fixed-term worker to take leave, the employee—regardless of the duration of his/her contract— is entitled to a compensatory indemnity in lieu of paid leave, which is at least equivalent to one-tenth of his/her total gross remuneration.22 This indemnity is paid to the employee on the date the contract expires, except where the contractual relationship continues within the scope of a contract of indefinite duration. Employees hired under a fixed-term contract are subject to the same rules on health and safety as the undertaking’s other employees. They shall also benefit from training on workplace safety, just like all new employees in an undertaking. Undertakings are thus obliged to ensure that fixed-term workers are provided with the same labour conditions as employees under a contract of indefinite duration. (ii)  Employment Opportunities Workers under a fixed-term contract do not have legal priority to be given a contract of indefinite duration. Employers do not have the obligation to permanently employ their fixed-term workers. However, the employer has the obligation to inform fixed-term employees about vacancies for permanent employment in the company, when such an information system already exists for employees with contracts of indefinite duration.23 This information can be provided by any means, ensuring that each employee under a permanent or fixed-term contract has access to the information under identical conditions.24 Nonetheless, the non-observance of this provision does not appear to be sanctioned by any legal text. 21 

Supreme Court, Employment Div, 5 November 2003, No 01-43.914. L 1242-16 of the Labour Code. 23  L 1242-17 of the Labour Code. 24  Circular DRT No 2002-08 of 2 May 2002. 22 

Atypical Employment Relationships: The Position in France 255 (iii)  Other Matters Since 1 January 2016, all employees in the private sector, including ­fixed-term employees have been required to be compulsorily affiliated with a collective health insurance scheme.25 Nevertheless, there are exceptions, notably for fixed-term workers whose contract has a duration of less than three months, who can request to be exempt from any affiliation with a collective health insurance scheme suggested by the employer.26 In this case, the employer must offer these employees an individual ‘health payment’ in the same amount as the monthly contribution the employer pays to the collective health insurance scheme for an employee with the same functions.27 E.  Information and Consultation An opinion of the works council must be obtained before a final decision is made in relation to certain matters28 affecting the undertaking/employees. A breach of this obligation is a criminal offence. The period for such consultation process must therefore be taken into account, and this has previously been problematic, given that French works councils were able to delay giving their opinion, thus delaying certain decisions to be taken in France and causing uncertainty.29 There has also to be created an economic and social database which companies with more than 50 employees must establish for their employee representatives. This database shall contain the information that forms the basis of the consultations with the works council on the employer’s strategic plans and other details, eg in relation to professional skills and development, work organisation and the use of sub-contractors, temporary workers and interns.30 F.  Specific Provisions In France, the apprenticeship contract31 is an employment contract ­providing young workers who have completed compulsory schooling with 25 

L 911-7 of the Social Security Code. D 911-7 of the Social Security Code. 27  L 911-7-1 of the Social Security Code. 28  L 2323-17 of the Labour Code provides some examples: decisions on the development of employment, qualifications, training and wages of employees; equality between men and women; working time. 29  L 2323-1 of the Labour Code. 30  L 2323-8 and 9 of the Labour Code. 31  G Auzero and E Dockes, Droit du travail (Dalloz, 2016) p 258. 26 

256  Francis Kessler general, theoretical and practical training with a view to obtaining vocational qualifications, supplemented by a diploma, for example in engineering or another recognised qualification.32 Apprenticeships are based on the principle of alternation between theoretical training in an Apprentice Training Centre (Centre de Formation d’Apprentis) and acquiring the relevant skills from the employer s/he has signed an apprenticeship contract with.33 The development of the apprenticeship system and on-the-job training schemes is supported by legislation that was adopted in July 2011. This legislation simplified previous work-based learning and apprenticeship schemes to facilitate their use by employers. A website was launched in October 2011 to facilitate the establishment of apprenticeship contracts and to simplify the administrative components of such contracts. At the same time, the government modified the tax system to allow companies to reduce their corporate taxes or to receive tax credits if they introduced apprenticeship contracts.34 In 2011–12, approximately 313,000 apprentices were trained through the apprenticeship system for one of the vocational diplomas awarded by the Ministry of Education. That year, the number of apprenticeships for all vocational qualifications reached over 435,000.35 The duration of the contract varies from one to three years,36 depending on the type of profession and qualification the apprentice is preparing for. Any young person between the ages of 16 and 2537 may complete an apprenticeship. Pay is calculated as a percentage of the minimum wage (between 25 per cent and 78 per cent)38 and varies according to the apprentice’s age and his/her progress in the training course. Apprentices must be mentored by an apprentice supervisor39 who has the duty to help them acquire the skills they need to obtain the intended diploma or qualification. Any private sector employer may employ an apprentice if they declare that they will take the necessary measures to arrange the apprenticeship; specifically, compulsory monitoring by an apprenticeship tutor. E ­ mployers receive a number of benefits: total or partial exemption from social

32 

L 6211-1 of the Labour Code. L 6211-2 of the Labour Code. 34 P Le Cohu, ‘Nouveau visage du contrat d’apprentissage’, Les cahiers du DRH, 2015, no 220, p 2. 35  Memo of the French Labour Administration: http://idf.direccte.gouv.fr/sites/idf.direccte. gouv.fr/IMG/pdf/Bref_thematique_no36_Contrat_d_apprentissage.pdf. 36  L 6222-7-1 of the Labour Code. 37  L 6222-1 of the Labour Code. 38  D 6222-26 of the Labour Code. 39  L 6223-5 of the Labour Code. 33 

Atypical Employment Relationships: The Position in France 257 security contributions, lump-sum compensatory payment from the Region, corporate tax credits, etc. The social contributions (usually paid by both the employee and the employer, except for occupational accident contributions) are paid by the state. Apprenticeship contracts entitle the employer to a fixed-sum ­compensation (a minimum amount of EUR 1,000 per year of the apprenticeship contract) paid by the Regional Council. The companies are also entitled to a tax credit (EUR 1,600 per apprentice per year, and even EUR 2,200 in some cases). The apprenticeship system is based on an employment contract concluded between the apprentice (or legal representative) and the employer.40 The contract must include: —— Information relating to the duration and date of the contract, the vocational qualifications to be acquired, the apprentice’s salary, the work schedule, the address of the training centre, and the role each party will play; —— Agreement that the training provided by the employer will relate to the vocational qualifications to be acquired by the apprentice, that the apprentice will be allowed to complete additional training in a training centre, take exams and earn a salary; —— Agreement that the apprentice will respect the regulations at work, will work for the employer, attend courses provided by the training centre and take the exams.

G. Collective Bargaining Agreements Deviating from Statutory Provisions The stipulation of the levels of collective bargaining (industry level, company level) was centred around the traditional hierarchy of norms, referred to as the ‘favour principle’, according to which each level was supposed to add better conditions, ie the legal rules are considered to be minimum regulations.41 A collective bargaining agreement can therefore not derogate from the legal provisions on fixed-term contracts if it is less favourable than those legal provisions.42 The collective bargaining agreement must respect the legal provisions.

40 

L 6222-4 of the Labour Code. L 2251-1 of the Labour Code. 42  Labour Division (Chambre Sociale) of the Court of cassation, 2 April 2014, No 11-25.442. 41 

258  Francis Kessler III.  PART-TIME WORK43

A.  Legal Definitions/Formal Requirements Under French employment law, part-time work is subject to specific rules, the purpose of which is to ensure that part-time employees benefit from a minimum level of stability and predictability as regards their working time schedule. Pursuant to Article L 3121-10 of the Labour Code, the normal working week is 35 hours. The maximum working hours are as follows: —— During any given week: 48 hours; —— During any period of 12 consecutive weeks: 44 hours per week; —— Per day: 10 hours. Exceptions to the weekly or daily maximum working hours are possible, in particular when the company faces an unusual and temporary increase in its activity. Depending on the circumstances, these exceptions require either (i) prior authorisation from the Labour Inspector after consulting the works council or the staff delegates, or (ii) the existence of a provision to that effect in the collective bargaining agreement.44 As a general rule and irrespective of the organisation of working hours, all employees must be granted (i) a daily rest period of 11 consecutive hours, and (ii) a weekly rest period of 35 consecutive hours, which must include Sunday.45 Part-time employees work less than 35 hours per week, and part-time employment relationships can therefore be considered atypical. The Labour Code contains a number of rigid rules relating to, for example, the possibility of entering into a part-time contract; the form of such contracts; and the amount and pay of overtime. Pursuant to Article L 3123-14 of the Labour Code, the employment contract must be concluded in writing. The contract must include: —— Employee’s qualifications, remuneration, provisions of weekly working hours, date of the contract; —— Modalities of modification of the weekly working hours; —— Limits of additional hours. Generally, no part-time contract may be signed if it provides for fewer than 24 working hours per week (this regulation was introduced on 1 July 2014). Designed as a guarantee for part-time workers, this minimum was initially established by the Law to Secure Employment of 14 June 2013.46 43 

G Auzero and E Dockes, Droit du travail (Dalloz, 2016) p 387. L 3121-18 and D 3121-4 to D 3121-6 of the Labour Code. 45  L 3131-1 and L 3132-2 of the Labour Code. 46 T Lahalle, ‘Détermination des modalités d’organisation du travail à temps partiel’, La Semaine Juridique, Social, 2016, no 19, p 31. 44 

Atypical Employment Relationships: The Position in France 259 Pursuant to the relevant legal provisions (mentioned above), the a­ pplication of the minimum 24-hour working week depends on the date of conclusion of the part-time employment contract: —— For part-time employment contracts concluded between 1 and 21 January 2014: a minimum 24-hour working week applies (subject to exceptions); —— For part-time employment contracts concluded between 22 January and 30 June 2014: a minimum 24-hour working week does not apply; —— For part-time employment contracts concluded from 1 July 2014 onward: a minimum 24-hour working week applies (subject to exceptions). However, this lower limit does not apply in the following cases: where a collective bargaining agreement provides for an ‘opt-out clause’;47 where the duration of the contract is less than one week; or where the contract is concluded to replace an absent employee.48 Some exceptions to the minimum 24-hour working week exist. The exceptions are as follows: —— Employees who have expressly requested to work less than 24 hours per week; —— If a branch agreement at national level is entered into between the employee and the employer representatives to modify this minimum working week (currently, only a few such agreements have been concluded); —— Employees under 26 years old; —— Temporary staff; —— Employees of private individuals.

B.  Opportunities for/Right to Part-Time Work French legal provisions stipulate that save in special cases, part-time work can only be granted to employees with the employer’s consent. In the event of implementation of part-time work within the company, the employer can either create new jobs, in which case priority must be given to full-time employees, or transform full-time posts by asking employees, or at least some of them, to reduce their working hours. Full-time employees who are willing to work part time (or return to ­part-time work) enjoy priority access to part-time employment in their professional

47  48 

L 3123-19 of the Labour Code. L 3123-7 of the Labour Code.

260  Francis Kessler category or a similar one. An employee may request to modify his/her working hours from full-time to part-time work.49 The conditions of implementation of such a request are determined by the applicable collective agreement, which usually provides that the employer can only refuse such a request on the basis of objective reasons. In the absence of a collective agreement, the employer may only refuse such a request if it can demonstrate the lack of available employees within the professional category of the employee who wants to work part time, or that the modification requested by the employee would result in prejudicial consequences for the company’s proper operation. The employee may, at his/her request and for family-related reasons, reduce his/her working time for one or several periods of at least one week. The employer may only refuse such a request for objective reasons related to the company’s operational requirements.50 Upon fulfilment of specific conditions, employees are entitled to take certain leave by reducing their working hours. Two main types of leave exist that employees are entitled to, namely parental leave and business establishment leave. While a request for part-time work during parental leave may not be rejected by the employer, a reduction in working time within the context of business establishment leave may be delayed or rejected under certain circumstances (quota of simultaneous absences, prejudicial consequences for the production and operation of the business for companies employing fewer than 200 employees), and may be delayed for up to six months without justification.51 C.  Opportunities for/Right to an Extension of Working Time Part-time employees who wish to work more hours or to resume full-time work, and, likewise, full-time employees who wish to work fewer hours or to resume part-time work in the same company, are given priority when vacancies in their professional category or an equivalent job become available. As described above, full-time employees who are willing to work part time or to return to a part-time post within the same company enjoy priority for part-time employment in their professional category or for a similar post. Conversely, similar priority is given to part-time ­employees who are willing to work full time or to return to a full-time post or a ­position with longer working hours.

49  A Bonnet, ‘Dans l’hypothèse où le passage à temps partiel est accordé de plein droit aux salariés qui en font la demande, les modalités de mise œuvre du passage à temps partiel restent soumises à l’accord des parties’, JS Lamy, 2016, no 408, p 18. 50  L 3142-8 of the Labour Code. 51  L 1225-47 of the Labour Code.

Atypical Employment Relationships: The Position in France 261 Within the context of the right to an extension of working hours, the regulations on overtime work need to be taken into account. Overtime52 must be paid at a rate of 110 per cent of the employee’s regular hourly wage for the first 10 per cent of time over his/her standard working hours (ie for an employee working 24 hours per week, the first 2.4 hours of overtime are paid at 110 per cent) and thereafter at 125 per cent (unless a branch agreement provides otherwise and is then limited to 1/3 of the total usual working hours). Additional hours may result in an employment contract being reclassified as a full-time contract. The relevant legal provisions stipulate that the additional working hours an employer may request an employee to perform may not exceed one-tenth of the working time specified in the employee’s employment contract and that the number of additional working hours cannot, in any case, result in the employee working the equivalent amount of a full-time employee. In a decision of the Supreme Court of 17 December 2014,53 an employee who was hired on a part-time basis had, in the course of her employment, worked full time over a period of one month. The Supreme Court held that the mere fact that the employee had been working full time over one month meant that her employment contract should be considered a full-time employment contract from the date she began working full time. D.  Rights and Status of Part-Time Worker (i)  Equal Treatment Part-time employees are entitled to the same rights laid down by law, ­agreements and collective agreements as full-time employees. As regards the remuneration of part-time workers, it must be proportionate to that of an employee with the same qualifications, who works full time in an equivalent post in the company. Pursuant to Article L 3123-5 of the Labour Code: ‘A part-time worker is entitled to the same rights stipulated by law as a full-time worker’. Nonetheless, as regards conventional rights, the collective bargaining agreement can set down specific rules for part-time workers. This principle of equal rights is applied, in particular to: —— The probation period, the duration of which cannot be longer than for full-time employees;

52  M Morand, ‘Les heures complémentaires structurelles: précisions’, La Semaine Juridique, Entreprise et affaires, 2016, no 5, p 25. 53  F Bizeur, ‘Contrat de travail à temps partiel: la Chambre sociale reste sur ses gardes!’, Les Petites Affiches, 2015, no 61, p 7.

262  Francis Kessler —— Seniority, which is calculated as though the part-time worker had been employed as a full-time worker. The periods not worked are still taken into account for seniority. As regards remuneration, the principle of proportionality with the full-time worker applies.54 That is, depending on the number of working hours and seniority in the company, the part-time worker’s remuneration must be proportional with that of a full-time worker with equal qualifications. (ii)  Dismissal Protection Every dismissal of an employee, including part-time workers, must follow the procedure established in Article L 1232-1 to L 1232-14 of the Labour Code to protect the rights of the worker. The dismissal procedure encompasses: —— A pre-dismissal meeting:55 in this meeting, the employer must explain all the grounds for the company’s decision to dismiss the employee, and must give the employee the opportunity to respond. In this meeting, it is the employer who poses the questions; s/he is not required to answer the employee’s questions. At this stage of the process, no decision by the employer is deemed to have been taken regarding the employee. —— Letter of dismissal:56 if the employer decides to proceed with the dismissal, a letter of dismissal must be sent to the employee by registered mail with a return receipt requested at least two working days after the preliminary meeting. This letter sets forth the grounds for dismissal which were explained during the preliminary meeting. Pursuant to Article L 3123-5 of the Labour Code, the part-time worker is entitled to the same rights as a full-time employee as foreseen by law … For the purposes of determining entitlements linked to seniority, the duration of such seniority shall be calculated for the part-time worker as if he had been employed full time, also taking into account all periods not worked.

Severance pay and the retirement indemnity are calculated on the basis of seniority; hence, the calculation will be made as though the part-time worker had been employed full time. By way of exception, Article L 3123-5 of the Labour Code specifies that the severance pay and retirement indemnity of an employee who worked

54 

L 3123-5 of the Labour Code. L 1232-2 of the Labour Code. 56  L 1232-6 of the Labour Code. 55 

Atypical Employment Relationships: The Position in France 263 part time and later full time in the same company are calculated pro rata for the entire period of employment since being hired by the company.57 (iii)  Other Matters Part-time workers have the possibility of signing several part-time contracts with different employers if the part-time worker is not bound by an exclusivity clause. To support part-time workers in concluding several concurrent employment contracts, they can request to derogate from the minimum legal working time for part-time workers of 24 hours.58 However, the possibility of concluding several part-time contracts is restricted by the regulations on maximum working time (48 hours per week pursuant to Article L 3121-20 of the Labour Code). E.  Information and Consultation There are no specific rules on information and consultation of part-time workers, ie the same provisions as for any other employee apply. The works council’s opinion must be heard prior to making any final decisions relating to certain issues affecting French undertakings/ French employees, specifically regarding decisions on the development of employment,59 ie on resorting to part-time contracts—a breach of this obligation is a criminal offence. F.  Other Part-Time Arrangements The purpose of intermittent work is to fill permanent jobs which by their nature involve alternating periods of worked and non-work.60 All private sector employers may hire intermittent workers (on an employment contract of indefinite duration), if:61 —— The collective bargaining agreement or collective agreement allows for intermittent work; and

57 Labour Division (Chambre Sociale) of the Court of cassation, 16 December 1998, No 95-41.413. 58  L 3123-14-2 of the Labour Code. 59  L 2323-17 of the Labour Code. 60  L 3123-31 of Labour Code. 61 Ibid.

264  Francis Kessler —— This collective bargaining agreement or collective agreement defines the jobs for which such contracts are foreseen. These jobs must involve alternating periods of work and non-work. Intermittent work contracts are employment contracts of indefinite d ­ uration. They must be concluded in writing, in French, signed by both parties and contain a precise description of the work pattern. Specifically, such a contract must indicate:62 —— The name and professional qualification of the employee being replaced (in case of a fixed-term contract concluded to replace that employee); —— The applicable collective agreement; —— The amount of remuneration and its various components; —— The period of work; —— The division of work within these periods. Intermittent work is subject to the standard overtime regulations (see section III.C. above).63 G. Collective Bargaining Agreements Deviating from Statutory Provisions A collective bargaining agreement may not derogate from the legal provisions on part-time work if it is less favourable than the applicable statutory legal provisions (Article L 3123-1 to 3123-14 of the French Labour Code). However, according to the statutory legal provisions, collective bargaining agreements can be concluded for certain components that are usually limited by law: —— Introduction of part-time schedules64 (procedure to transform a full-time contract into a part-time one); —— Minimum working time and overtime;65 —— Temporary increase of working time as foreseen in the contract;66 —— Distribution of working time.67

62 

L 3123-33 of the Labour Code. Morand, ‘Travail intermittent: heures complémentaires ou supplémentaires?’, La Semaine Juridique, Social, 2014, no 41, p 33. 64  L 3123-17 and L 3123-18 of the Labour Code. 65  L 3123-19 to L 3123-21 of the Labour Code. 66  L 3123-22 of the Labour Code. 67  L 3123-23 to L 3123-25 of the Labour Code. 63 M

Atypical Employment Relationships: The Position in France 265 IV.  TEMPORARY AGENCY WORK68

An employer may make use of the services of a temporary work agency instead of hiring a permanent employee for various reasons, such as the temporary absence of an employee or an exceptional increase in the workload. Temporary agency work in France is subject to a highly structured legal framework, yet a large number of such contracts are being concluded. Temporary agency workers enjoy strong protection and the applicable legal framework legitimises the activity of temporary work agencies. Temporary placement is characterised by a triangular relationship between the temporarily placed employee, the undertaking referred to as the Temporary Work Agency (Entreprise de Travail Temporaire, ETT) and a user undertaking. A.  Legal Definitions/Formal Requirements The purpose of temporary work is to make employees of a temporary work agency available to complete an assignment for a user undertaking.69 Temporary work involves two concomitant contracts, namely a commercial ‘availability’ contract between the temporary work agency and its customer, the user undertaking, and secondly, an employment contract based on so-called ‘assignments’ concluded between the temporary employee and his/her employer, ie the temporary work agency. The two contracts cover two different types of legal status, that of the temporary work agency and that of the temporary employee. The temporary work agency is defined as any physical or legal person whose activity entails making employees available to user undertakings. The employees are hired and paid by the temporary work agency.70 As already mentioned, temporary work is characterised by the triangular relationship between a temporary work agency, the temporary agency worker and the user undertaking. This triangular relationship requires the conclusion of two concomitant contracts: (i) a commercial contract (contrat de mise à disposition)71 and (ii) an assignment contract72 (contrat de mission).

68 G Auzero and E Dockes, Droit du travail (Dalloz, 2016) p 178; J-P Domergue, ‘Les formes juridiques et administratives de l’emploi précaire’, Droit ouvrier, 1997 no 582, p 112. 69  L 1251-1 of the Labour Code. 70  L 1251-2 of the Labour Code. 71  L 1251-42 to L 1251-43 of the Labour Code. 72  L 1251-16 to L 1251-17 of the Labour Code.

266  Francis Kessler According to the social partners of the temporary employment sector (the trade unions CFDT, CFE-CGC and CFTC for employees and Prism’emploi for employers) and their collective bargaining agreement on contracts of indefinite duration for temporary workers from 10 July 2013, a temporary work agency can either conclude (i) a temporary employment contract with a temporary worker in compliance with Article L 1251-1 of the Labour Code (as was previously the case), or (ii) a contract of indefinite duration to assign a temporary worker to a user undertaking to perform successive assignments. B.  Registrations, Licensing, Financial Guarantees, etc French law distinguishes between loaning workers for free and for profit. The hiring of workers to ‘transfer’ them to another employer for profit is an activity that is regulated and strictly reserved for temporary work agencies or can be implemented in a system of umbrella companies (Portage salarial). Hiring out workers for profit outside a temporary work agency scheme is prohibited and will be penalised.73 By way of exception, the temporary placement of workers is only lawful when it is not for profit. Non-profit temporary placement is defined in the Law of 28 July 2011, No 2011-893,74 codified at the end of Article L 8241-1 of the French Labour Code, as follows: ‘Outsourcing is a non-profit activity, if the placement company charges the user undertaking the wages, social insurance contributions and professional fees for the outsourced worker.’ In other words, the placement company’s invoice to the user undertaking must precisely reflect the worker’s pay slips.75 The outsourcing is not for profit in that case and is therefore lawful. Conversely, an undertaking may engage in this type of activity in the absence of any profitable considerations,76 which, according to French case law, entails financial profit77 or a profit margin.78 The activity is considered non-profit-making when it comes at cost price, ie when the undertaking assigning employees cross-charges the ‘host undertaking’ for the employee’s entire salary, social security contributions and professional expenses—the contract specifying that the latter expenses will 73 

L 8241-1 of the Labour Code. Law No 2011-893 of 28 July 2011 for the development of block release training and the securing of professional processes. 75 Labour Division (Chambre Sociale) of the Court of Cassation, 29 October 2008, No 07-42379. 76  Supreme Court, 20 March 2007, No 05-85.253. 77  Supreme Court, 25 September 1990, No 88-19.856. 78  Supreme Court, 17 June 2005, No 03-13.707. 74 

Atypical Employment Relationships: The Position in France 267 be reimbursed to the assigned employee.79 Hence, labour courts compare these cross-charges with the costs of the assigned worker, as indicated in the pay slips in order to determine whether the activity is illegal or not.80 In addition, the French Ministry of Labour asserts that the agency assigning employees may also cross-charge the operating costs, provided they are reasonable and justified.81 The Ministry does not, however, provide any information on the amount/percentage that can be legally invoiced for such costs. Moreover, French case law seems to adopt a stricter position, insofar as in the past, it has ruled that the difference between the costs invoiced and the salary paid to the assigned employee may only correspond to the social security contributions and may thus not pertain to any other elements such as insurance fees, administrative expenses, etc.82 In addition, labour courts require all expenses invoiced to the host undertaking to be identified and calculated. French labour courts may rule that if the overall calculation of operating costs (ie five per cent of the salary, social contributions and business expenses) indicates that the activity is being carried out for profit it is illegal. The illegal hiring-out of employees is a criminal offence and may be punished by up to two years’ imprisonment and/or a fine of up to EUR 30,000 for the head of the company and/or a maximum fine of EUR 150,000 for the company as a whole. In addition, Article L 8231-1 of the Labour Code prohibits any for profit activity relating to the hiring-out of employees which causes the latter any loss or circumvents the provisions of the relevant statutes, regulations or collective bargaining agreements. An offence is thus characterised by the following criteria: —— For profit assignment of employees to another undertaking; and —— Damage to the assigned employee. This is the case when the salary paid to the assigned employee is inferior to that paid to the host undertaking’s employees for similar work83 or when the assigned employee is denied entitlement to benefits granted to the host undertaking’s employees;84 or —— Failure to apply the provisions of the relevant statutes, regulations or collective bargaining agreements. In this case, it is not necessary to prove that the assigned employee has suffered a loss owing to the fact that the activity circumvented the abovementioned provisions. This is the case when the purpose of the assignment is to prevent 79 

Supreme Court, 1 April 2003, No 02-14.680. Supreme Court, 17 June 2005, No 03-13.707. 81  Ministerial response (Réponse ministérielle) No 29546, 20 March 2000. 82  Supreme Court, 16 June 1998, No 97-80.138. 83  Supreme Court, 22 June 1983, No 92-82.928. 84  Supreme Court, 19 June 2001, No 00-84.275. 80 

268  Francis Kessler the host undertaking from reaching the mandatory threshold for the establishment of staff representatives85 or when the assigned employees have been deprived of benefits under the applicable collective bargaining agreement or the profit-sharing scheme.86 This criminal offence is punishable by the same penalties as for illegal hiring-out of employees, ie up to two years’ imprisonment and/or a fine of up to EUR 30,000 for the head of the company and/or a maximum fine of EUR 150,000 for the company as a whole. There is an exception, however: the hiring-out of workers for profit is possible for temporary work agencies when the legal provisions on temporary work are abided by. C. Relationship between Temporary Agency Worker and Temporary Work Agency The temporary work agency is the temporary agency worker’s actual employer. The agency is fully responsible for paying and training the temporary agency worker and also exercises disciplinary power over him/her. The responsibility during the assignment for applying the working conditions rules (such as working hours, night work, weekly breaks, hygiene and safety) lies with the user undertaking. Assignment contracts between the temporary work agency and the temporary agency worker must be concluded in writing, signed by the t­ emporary agency worker and transmitted to him/her two business days following his/her signing thereof.87 Such contracts must contain the same (mandatory) components as the contrat de mise à disposition and the following information: —— —— —— ——

The professional qualifications of the employee; The conditions relating to remuneration; The duration of the probation period; The name and address of the supplementary pension fund and the temporary work agency’s insurance company; —— A clause that mentions that at the end of the assignment, hiring of the temporary agency worker by the user undertaking is not prohibited; and —— A clause that mentions that any costs related to repatriation will be borne by the temporary work agency (if the assignment is performed outside mainland France). 85 

Supreme Court, 10 February 1998, No 97-81.195. Supreme Court, 12 May 1998, No 96-86.479. 87  L 1251-16 of the Labour Code. 86 

Atypical Employment Relationships: The Position in France 269 (i)  Fixed-Term and Part-Time Contracts As already explained above, pursuant to Article L 1251-1 of the Labour Code, temporary placement entails a triangular relationship between the temporarily placed employee, the temporary work agency (Entreprise de Travail Temporaire, ETT) and the user undertaking. As stated above (section IV.A.) it involves two concomitant contracts, the commercial ‘availability’ contract between the temporary work agency and its client, the user undertaking, and an employment contract based on so-called ‘assignments’ between the temporary agency worker and the employer, namely the temporary work agency. Both contracts must respect certain (mandatory) formalities, especially as regards duration of the assignment and the working conditions. Resorting to part-time work is only possible under such a triangular relationship and under a respective contract. A temporary agency worker must have an assignment to a user undertaking for a duration that is clearly specified in the contract. Article L 1251-11 requires the duration of the assignment to be determined at the time the contract is concluded. Moreover, Article L 1251-12 asserts that the maximum duration of such a contract is 18 months. Temporary employment agencies may only operate following notification by the administrative authority and upon obtaining a financial guarantee. Employment contracts of indefinite duration include periods of working time during which an employee is posted to a user undertaking (temporary work assignment), as well as periods referred to as ‘intermissions’ (periods between two assignments) during which the worker is not working. During these periods, which are paid as working time, the temporary agency worker must be at the disposal of the temporary work agency and can be called on at any time during the agency’s opening hours to carry out an assignment in a user undertaking. Contracts of indefinite duration must be concluded in writing and must specify the duration of the probation period, the working time, the departments in the user undertaking in which the temporary agency worker can be requested to work, the time during which the worker can be called on by the temporary work agency (during the intermission period) to carry out an assignment at a user undertaking, the minimum wage, and the description of a maximum of three jobs the worker may perform in accordance with his/her qualifications.88 Assignment contracts, regardless of their grounds, may be concluded neither for the purpose nor with the effect of permanently filling a post related to the user undertaking’s regular and permanent activity.89 88  89 

L 1251-42 to L 1251-44 of the Labour Code. L 1251-5 of the Labour Code.

270  Francis Kessler The law provides a restrictive list of cases in which recourse to temporary work may be legitimately had. A user undertaking can only have recourse to a temporary agency worker to perform a specific and temporary task (an assignment) and only in certain cases,90 including: —— Replacement of an employee in case of absence or termination of the contract, —— Departure of an employee from a post that was recently made redundant, —— A temporary increase in the undertaking’s activity, and —— Seasonal, urgent, exceptional or casual work. It is expressly prohibited to hire temporary workers: to replace employees who are on strike; for particularly dangerous work; or following collective redundancies. The violation of these provisions may lead to a reclassification of the contract as one of indefinite duration either for the user undertaking91 or the temporary work agency.92 (ii)  Rights and Obligations/Liability The legal employer (the temporary work agency) must pay the employer’s part of the labour-related costs and social security contributions. The temporary work agency is liable for fulfilling all labour-related and social security obligations for its workers. A special regulation on workplace accidents exists. Pursuant to the Social Security Code on workplace accidents, in case of outsourcing by a temporary work agency, the following applies: —— Regarding social insurance contributions: the level of risk an employee is exposed to in the user undertaking must be taken into account when calculating the total amount of contributions (Article L 412-3 of the Social Security Code). —— Regarding workplace accidents: the temporary agency worker must inform the user undertaking which in turn must inform the temporary work agency that a work accident has occurred (Article L 412-4 of the Social Security Code). —— Regarding reckless misconduct: the temporary work agency can be substituted by the user undertaking (Article L 412-6 of the Social Security Code).

90 

L 1251-6 of the Labour Code. L 1251-39 of the Labour Code. 92  Court of cassation, Social Chamber, 19 April 2000, No 97-45.508. 91 

Atypical Employment Relationships: The Position in France 271 The temporary work agency must secure a financial guarantee in case of insolvency, to ensure that the temporary agency workers’ wages and social security contributions are covered.93 In case of insolvency of the temporary work agency and an insufficient amount of financial guarantee, the user undertaking will be held liable for the temporary agency worker’s salary, social security contributions and severance pay which the temporary work agency cannot cover.94 (iii)  Dismissal Protection As already mentioned above, two concomitant contracts exist in this type of employment, the commercial ‘availability’ contract between the temporary work agency and its client, the user undertaking; and secondly, an employment contract based on so-called ‘assignments’, concluded between the temporary agency worker and the employer, the temporary work agency.95 At the end of the assignment, the contract automatically terminates.96 Pursuant to Article L 1251-32 of the Labour Code, When, at the end of an assignment, the employee is not offered an employment contract of indefinite duration by the user undertaking, he is entitled, as a supplement to his salary, to an end-of-assignment indemnity to compensate for the precariousness of his situation. This allowance is equal to 10 per cent of the temporary employee’s total gross remuneration.

Nonetheless, if the temporary work agency breaches the assignment contract prior to its foreseen term, it must offer the temporary agency worker a new assignment contract within three days, except in cases of serious ­misconduct by the worker or in case of force majeure.97 D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship As mentioned above, the legal employer (the temporary work agency) is responsible for paying the employer’s part of the labour-related costs and social security contributions. The temporary work agency is liable for ­fulfilling all labour-related and social security obligations for its workers. 93 

L 1251-49 of the Labour Code. L 1251-52 of the Labour Code. 95  L 1251-1 of the Labour Code. 96  L 1251-16 of the Labour Code. 97  L 1251-26 of the Labour Code. 94 

272  Francis Kessler By way of exception, in case of insolvency of the temporary work agency and insufficient financial guarantee, the user undertaking will be considered liable for the temporary agency worker’s salary, social security contributions and severance pay which the temporary work agency cannot cover.98 Moreover, during the performance of work, the user undertaking must abide by Article L 3221-2 of the Labour Code, which establishes the principle of ‘equal pay for equal work’ (ie employees performing the same work should receive the same pay). In other words, the user undertaking must ensure that the temporary agency worker’s essential working and employment conditions are the same as if s/he had been directly hired by the user undertaking to occupy the same position in the company. (ii)  Rights and Obligations/Liability The temporary work agency is the temporary agency worker’s factual employer. It is fully responsible for paying and training temporary agency workers and for exercising disciplinary powers over them. (iii)  Health and Safety The responsibility for the temporary agency worker’s health and safety during the performance of work (specifically, for the worker’s working conditions, including working hours, night work, weekly breaks, hygiene and safety) lies with the user undertaking. Article L 1251-21 of the Labour Code states: Throughout the duration of the assignment, the user undertaking is responsible for the working conditions under which the worker performs work … for the application of provisions concerning: working hours; night work; weekly rest period; health and safety at work; work of women, children and young workers.

The user undertaking is responsible for ensuring that the temporary agency worker’s working conditions (the provisions mentioned above) are the same as those its own employees are entitled to. E.  Relationship between Temporary Work Agency and User Undertaking The contrat de mise à disposition99 is concluded between the temporary work agency and the contracting company where the temporary agency

98 

L 1251-52 and R 1251-29 of the Labour Code. Fadeuilhe, ‘Précisions sur les obligations mises à la charge de l’entreprise utilisatrice en cas de recours au travail temporaire’, Recueil Dalloz Sirey, 2008, no 21, p 1460. 99  P

Atypical Employment Relationships: The Position in France 273 worker will be carrying out the assignment. It shall be concluded in writing no later than two business days after the commencement of the assignment and shall contain all the following information:100 —— —— —— ——

Reason for use of temporary agency work; The duration of the assignment; The place and time of work; The amount of remuneration and of the indemnity allowance provided at the end of the assignment; —— A clause providing the possibility of modifying the duration of the assignment, if needed; —— The job characteristics and the qualifications envisaged; —— The nature of the personal protection equipment the temporary agency worker must use, specifying whether the temporary employment agency will be providing such equipment.

F.  Rights and Status of Temporary Agency Worker (i)  Equal Treatment Article L 3221-2 of the Labour Code establishes the principle of ‘equal pay for equal work’ (employees who perform the same work shall receive the same pay). In accordance with Article L 1251-18 of the Labour Code, temporary agency workers are entitled to equal treatment with the permanent employees of the user undertaking (when holding the same post), a general principle that is formally confirmed by law and covers all of the employee’s individual and collective rights. Equal treatment applies to the essential working and employment conditions the temporary agency worker would be entitled to if s/he had been directly hired by the user undertaking to occupy the same position. The user undertaking has the duty to ensure that the temporary agency worker enjoys the same conditions (the provisions mentioned above) as those of its own employees. In France, temporary agency workers have access to all collective facilities, in particular, canteens, transport services, restaurant vouchers, etc on the same terms as workers directly employed by the user undertaking.101

100 

L 1251-43 of the Labour Code. Division (Chambre Sociale) of the Court of cassation 29 November 2006, No 05-40.755; Labour Division (Chambre Sociale) of the Court of cassation 14 February 2007, No 05-42.037. 101 Labour

274  Francis Kessler (ii)  Other Matters Regarding the representation and calculation of the workforce in companies that have hired temporary agency workers, the following regulations apply. Staff representatives must be established in undertakings with 11 or more employees;102 a works council must be established in undertakings with 50 or more employees.103 To calculate the number of employees working for a temporary work agency, the following workers need to be included:104 —— Full-time workers;105 —— Workers with an assignment contract with a duration of at least three months during the last calendar year. This rule is applied to the election of staff representatives and members of the works council.106 Moreover, in the user undertaking, temporary agency workers are included in the calculation of the total number of employees (threshold) pro rata with reference to their presence during the previous 12 months (working full time). They are excluded if they are replacing an absent employee whose contract of employment has been suspended.107 Temporary agency workers are also included in the calculation of thresholds of the temporary work agency (based on seniority).108 G. Information and Consultation/Representation of Temporary Agency Worker The works council, if not the user undertaking’s staff representatives, must be consulted in advance, if the assignment contract is concluded for the following reasons:109 —— The definitive departure of an employee who had a contract of indefinite duration and whose post will be abolished within 24 months. The consultation concerns the abolition of the post and the transition period during which a temporary agency worker is hired; —— Exceptional export orders; —— A temporary increase in activity. 102 

L 2312-1 of the Labour Code. L 2322-1 of the Labour Code. 104  L 1251-54 of the Labour Code. 105  L 1111-2 of the Labour Code. 106  L 2322-6 of the Labour Code. 107  L 1111-2 of the Labour Code. 108  L 2314-17 and 2324-16 of the Labour Code. 109  L 1251-6 of the Labour Code. 103 

Atypical Employment Relationships: The Position in France 275 The user undertaking’s works council shall be informed and consulted about the hiring of a temporary agency worker in relation to any necessary safety training;110 the strategic orientation of the undertaking111 and the working conditions and employment in the undertaking.112 In undertakings with over 300 employees, the works council shall be informed by the employer every quarter on the number of ‘contrats de mise à disposition’ concluded with a temporary work agency.113 In the absence of a works council, the employer must inform the staff ­representatives annually about the number of ‘contrats de mise à d ­ isposition’ concluded with a temporary work agency.114 Moreover, during the performance of work, a temporary agency worker may transmit his/her individual or collective claim through the staff representative of the user undertaking. These claims must relate to remuneration, working conditions, or access to collective means of transport.115 H. Strikes In France, striking is a constitutional right of employees.116 Temporary agency workers may therefore not be penalised (in line with legal statutes and precedents) for exercising their right to strike.117 Pursuant to Articles L 1251-9 and L 1251-10 of the Labour Code, recourse to temporary agency workers is expressly prohibited to replace employees who are on strike, for particularly dangerous work, or following collective redundancies. Violations are subject to penal prosecution.118 I.  Collective Bargaining Agreements Deviating from Statutory Provisions Collective bargaining agreements may not derogate from specific legal provisions regarding temporary agency workers if the agreement’s terms are less favourable than the applicable legal provisions.119 However, a collective bargaining agreement that respects the legal provisions may be concluded. 110 

L 4143-1 of the Labour Code. L 2323-10 and L 2323-11 of the Labour Code. 112  L 2323-17 of the Labour Code. 113  L 2323-60 of the Labour Code. 114  L 2313-5 of the Labour Code. 115  L 2313-4 of the Labour Code. 116  Preamble of the Constitution of 4 October 1958. 117  L 1132-2 of the Labour Code. 118 Criminal Division (Chambre Criminelle) of the Court of cassation, 1 March 2016, No 14-86.601. 119 Labour Division (Chambre Sociale) of the Court of cassation, 2 April 2014, No 11-25.442. 111 

276

11 Atypical Employment Relationships: The Position in the Republic of North Macedonia TODOR KALAMATIEV AND ALEKSANDAR RISTOVSKI

I. INTRODUCTION

A

MID GLOBAL SOCIETAL changes that have generated changes in the organisation of work, ‘employment flexibility’ has become an integral part of the labour legislation of the Republic of North Macedonia.1 Over the years, Macedonian labour legislation has extended the number of atypical (non-standard) forms of work. This situation is a direct ­consequence of the structural changes in the Macedonian economy (the transition from self-governing socialism to a market economy) and the result of two additional reasons that have influenced the country’s n ­ ormative framework. The first reason for the increase in atypical employment relationships originates from the requirement to harmonise Macedonian labour legislation with both international labour standards2 and EU legislative acts.3 The second reason is closely related to the first and reflects the tendency towards modernisation and adaptation of the Macedonian labour law 1  See in T Каламатиев, А Ристовски, Флексибилност и Сигурност Радног Односа у Радном Законодавству Републике Македоније (развој и перспектива) (Радно и Социјално Право, часопис за теорију и праксу радног и социјалног права, Бр.1/2013, Година XVII, 2013) pp 84–87. 2  In this latter context, specific mention should be made of the following ILO Conventions: Workers with Family Responsibilities Convention, 1981, No 156 (ratified in the Parliament of the Republic of Macedonia on 17 November 1991); Home Work Convention, 1996, No 177 (ratified in the Parliament of the Republic of Macedonia on 3 October 2012); Private Employment Agencies Convention, 1997, No 181 (ratified in the Parliament of the Republic of Macedonia on 3 October 2012). 3 In this latter context, a reference should be made to the partial harmonisation of the Macedonian labour legislation with the following EU Directives: Directive 97/81/EC on part-time work; Directive 98/70/EC on fixed-term work and Directive 2008/104/EC on ­temporary agency work.

278  Todor Kalamatiev and Aleksandar Ristovski system to comparative labour law systems (particularly to those of the EU Member States), which provide a broad range of atypical forms of work that are constantly increasing.4 The labour legislation of the Republic of North Macedonia entails a number of different atypical forms of work such as fixed-term work; seasonal work; part-time work; part-time work with multiple employers; employment contract for work at home; employment contract with domestic workers; employment contract with managerial persons (managerial contract) and temporary agency work. II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements When defining the term ‘fixed-term work’ (работа на определено време), Macedonian labour law theory and legislation usually refer to the ‘duration of employment’.5 Based on its duration, the employment relationship may be classified into the following two general groups: an employment relationship of indefinite duration and a fixed-term employment relationship, where the former is the ‘rule’ and the latter is an ‘exception’ to the established rule.6 Such an assumption can be based on the available statistical data as well.7 An employment relationship shall be established by signing an employment contract, ie the form must be in writing.8 According to the Law on Labour Relationships of the Republic of North Macedonia (Закон за работните односи), the employment contract shall be concluded for a period of time which is not defined in advance (employment for an indefinite period of time).9 An employment contract whose duration is not determined therein shall be considered an employment contract of indefinite duration.10 4 See in G Starova, Possibilities for Flexible Employment under Specific Employment ­ ontracts in the Law on Employment Relations of the Republic of Macedonia (III. I­ nternational C Labour Law Dialogue, Flexible and Secure Employment, GV Založba Publishing Company, Ltd, 2008) p 42. 5  Г Старова, Трудово Право (Просветно Дело А.Д Скопје, 2005) p 242. 6 T Каламатиев, Работниот однос на определено време во Законот за работните односи на Р Македонија (Зборник во чест на животот и делото на Васил Грчев, Универзитет ‘Св.Кирил и Методиј’, Правен Факултет—Скопје, 2002 година), p 307. 7 According to the statistical data of 2016 (fourth quarter), 14.7% of the total number of employees worked with employment contracts of a temporary duration (source: Eurostat http://ec.europa.eu/eurostat/data/database). 8  See in Law on labour relations, Official Gazette of the Republic of Macedonia, no 62/05 of 28 July 2015) Закон за работните односи на Република Македонија (Сл.весник на РМакедо нија, бр.62/05 од 28 July 2005 година), член 15, став 1. 9  Закон за работните односи, член 14, став 1 10  Закон за работните односи, член 14, став 3.

The Position in the Republic of North Macedonia  279 Employment contracts may also be concluded for a period of time defined in advance (fixed-term contract).11 Macedonian labour legislation defines the term ‘fixed-term employee’ as well, which covers any person under an employment contract concluded directly between the employer and the employee, when the expiry of the employment contract is determined by objective reasons, such as a specific date, completion of a certain task, or occurrence of a certain event.12 B.  Lawful Stipulation of the Contractual Terms In general, the commencement of a fixed-term employment relationship is conditional upon fulfilling the ‘objective’ grounds legitimising the conclusion of an employment contract for a definite period of time. The current legislation of the Republic of North Macedonia differs from this principal position to a greater or lesser extеnt. Chronological analyses of ­Macedonian laws on labour relationships refer to the Law on Labour Relationships (Закон за работните односи) of 1993.13 This Law represented a single regulation that enumerated the admissible ‘cases’ for establishing a fixedterm employment relationship: seasonal work; increased volume of work; replacement of an absent worker; and work on a project.14 These cases did not exhaust the ‘list’ of objective reasons for concluding fixed-term employment contracts. In practice, the Law left room for employers to introduce other cases for concluding a fixed-term employment contract, which will be based on their internal regulations or collective bargaining agreements. At the same time, the theory was dominated by the view that regardless of the variety in existing cases, the main reason for concluding a fixed-term employment relationship is the nature of the work, which is work for a definite period.15 Hence, two general conditions for concluding a fixed-term employment relationship had to be met, namely: the fulfilment of specific legal preconditions (ie objective reasons) and the determination of certain cases under which an employment relationship can be established.16 Compared to the basic (ie original) text of the Law on Labour Relationships of 1993, the amendments and supplements of 2003, as well as the

Закон за работните односи, член 14, став 2. Зaкон за работните односи, член 5, став 1, точка 3. 13  Закон за работните односи од 1993 (‘Сл. весник на Р Македонија’ бр.80/93). 14 See in Закон за работните односи од 1993 (‘Сл. весник на РМакедонија’ бр.80/93) член 23. 15  Д Миленков и Т Томановиќ, Прирачник за правата и обврските од работен однос (Агенција ‘Академик’—Скопје, 1995) p 89. 16 T Каламатиев, Работниот однос на определено време во Законот за работните односи на Р Македонија (Зборник во чест на животот и делото на Универзитет ‘Св.Кирил и Методиј’, Правен Факултет—Скопје, 2002 година) p 308. 11  12 

280  Todor Kalamatiev and Aleksandar Ristovski basic text of the Law on Labour Relationships of 2005 introduced a more general and flexible formulation to determine the objective reasons for concluding a fixed-term employment contract. The Law on Amendments and Modifications of the Law on Labour Relationships of 2003 stipulated that a fixed-term employment relationship may be established for performing activities which by their nature are of a definite period—with or without interruption—for up to three years.17 The original text of the Law on Labour Relationships of 2005 retained the identical legal formulation in terms of the objective reasons for concluding a fixed-term employment relationship, but it increased the maximum limitation to ‘fixed-term employment with or without interruption for up to four years’.18 Nevertheless, following the first amendments, the Law on Amendments and Modifications of the Law on Labour Relationships of 2008 repealed the phrase ‘performing activities which by their nature are of a definite period of time’ from the original text of the Law. Thereby, it practically abolished the existence of an ‘objective reason’ as a precondition to concluding a fixed-term employment contract. Additionally, these amendments and modifications to the Law on Labour Relationships increased the maximum limitation to ‘fixed-term work, with or without interruption, for up to five years’.19 Hence, the Macedonian labour law system does not require the existence of ‘objective reasons’ when concluding the initial or subsequent contract(s) of employment, ie the parties are free to choose the type of employment contract and its duration. Moreover, the Law on Labour Relationships includes the ‘replacement of a temporarily absent employee’ as a possible reason for concluding a fixed-term employment contract.20 Despite the fact that the Law fails to regulate this ‘legal gap’, in theory and in practice there is a prevailing view that when concluding a fixed-term employment relationship to replace a temporarily absent worker, the maximum term for fixed-term employment of five years does not apply. This means that the duration of the contract for the replacement of a temporarily absent worker may be either longer or shorter than five years, but in any case, not longer than the actual absence of the temporarily absent worker.21 The lack of an objective reason for establishing a fixed-term employment relationship does not mean that no legal mechanism exists to prevent abuse of the use of successive fixed-term employment contracts. The Law 17  Закон за изменување и дополнување на Законот за работните односи од 2003 година (Сл.весник на Р Македонија бр.40/03) член 2. 18  Закон за работните односи од 2005 година (Сл.весник на Р Македонија бр.62/05), член 46. 19  Закон за изменување и дополнување на Законот за работните односи од 2008, член 4, став 1. 20  See in Закон за работните односи, член 46, став 2. 21 T Каламатиев и А Ристовски, Работа на определено време и работа со неполно работно време, нестандардни форми на работа во работното законодавство на Република Македон

The Position in the Republic of North Macedonia  281 on Labour Relationships of the Republic of North Macedonia allows the conclusion of fixed-term employment contracts for up to five years to perform the same activity, with or without interruption.22 Macedonian labour legislation applies one of the three measures of protection against abuse of fixed-term employment relationships, which are stipulated in Council Directive 1999/70/EC on the framework agreement on fi ­ xed-term work, namely the ‘limitation of the maximum total duration of the successive fixed-term employment contracts or relationships’, which may not exceed five years for the same activity, with or without interruption.23 The employer may conclude one or multiple successive contracts with the employee, but must adhere to the overall maximum limitation of five years. The limitation of the duration of fixed-term employment relationships refers to the performance of the ‘same’ activity. The Law does not explicitly define the term ‘performance of the same activity’, but may entail activities that belong to the same group or category of jobs that are usually prescribed by the collective agreement or an employer’s act, ie an Act on Job Systematisation (Акт за систематизација на работните места). Ultimately, the employment contract is the most direct legal source, and must contain a clause that regulates the key aspects in terms of type of work and the worker’s activities.24 There are frequent cases in which just before the expiration of the maximum period limiting the duration of the fixed-term employment relationship, employers enter into a new fixed-term contract with the employee, engaging him/her to perform ‘other’ activities that are nominally but not essentially different from the activities that were a constituent part of previously concluded employment contracts.25 Thereby, employers circumvent the legal consequences resulting from the expiration of the maximum period of limitation of fixed-term employment contracts, namely a transformation of the fixed-term employment relationship into one of indefinite duration. Hence, it would be more appropriate if the maximum period of limitation of fixed-term employment contracts referred to ‘any’ activities performed by a particular worker and not only to the ија, Деловно Право, Издание за теоријата и практиката на правото, Бр.34, Маy 2016, Скопје, стр. 655. Закон за работните односи, член 46, став 1. Argumentum a contrario, Macedonian labour legislation does not envisage the remaining two measures of protection against abuses of fixed-term employment relationships, namely: the determination of objective reasons justifying the renewal of the fixed-term employment contract or relationship; and the limitation of the number of renewals of such contracts or relationships. 24  The Law on Labour Relationships envisages that the employment contract (among other elements) shall contain the job title, that is, data on the type of work for which the employee has concluded the employment contract, including a brief description of the work s/he is to carry out under the contract (Article 28, para 1(3)). 25 A Ристовски, Редефинирање на бинарниот модел на работните односи и регулирање на нестандардната работа (докторска дисертација, Скопје, 2015) стр. 327. 22  23 

282  Todor Kalamatiev and Aleksandar Ristovski performance of the ‘same’ activity. This means that the legal mechanism to prevent abuse of successive fixed-term employment contracts ought to include any individual contract between the employer and the ‘same’ employee (within the limitation of up to five years), regardless of whether such a contract was concluded for the performance of the ‘same’ or ‘other’ activities. The application of such a measure could be a contribution to preventing the so-called ‘rotation’ of fixed-term employees. Apart from the dilemma over the ‘type of activities’ fixed-term employees may perform, the Law on Labour Relationships of the Republic of North Macedonia has created another problem regarding the continuity of their performance of work. To resolve this problem, the proper interpretation of the legislative phrase ‘work with or without interruption’ needs to be defined, and should be determined in terms of the maximum period of five years for the limitation of fixed-term work. Interruption between two consecutive employment contracts presupposes a disruption of the continuity, which is essential for determining the cumulative period of fixed-term work. However, the Law on Labour Relationships does not contain any legal provision to determine the ‘time gap’ between the expiration of the previous and the conclusion of the new fixed-term employment contract.26 Such an approach might imply a certain ‘security’ aspect for fixed-term employees, but on the other hand, it would be very rigid for employers. The security aspect for employees lies in the fact that the law does not allow the existence of discontinuity, ie an interruption between successive fixed-term employment contracts.27 On the other hand, this approach may be too rigid and constraining for employers who—even after the expiry of a period of several years in which there is both a de facto and a de jure interruption between successive contracts of employment for the performance of the ‘same’ activity—will be required to respect the maximum limit of fixed­-term work of up to five years even if they have no intention of transforming the employment relationship of the particular employee into a permanent employment relationship. The transformation of the fixed-term employment relationship into a permanent one is the final, crucial factor in terms of preventing the abuse of

26  In comparison, the amendments and modifications to the Law on Labour Relationships of 2003 stipulated that interruption of work which is less than 30 working days shall not be taken into consideration when calculating the total period of fixed-term employment with a maximum duration of three years. See in Закон за измени и дополнувања на ЗРО од 1993 година, член 2, став 1. 27  In cases where the employee concludes a fixed-term employment contract (for example, of one year) which shall terminate by the expiry of that period, and a few years later (for example, after three years) concludes a new fixed-term employment contract with the same employer for the performance of ‘same’ activities (for example, for a period of one year), the time interruption of three years between the two employment contracts is treated as a period included in the total, maximum term for the limitation of the fixed-term employment that is five years.

The Position in the Republic of North Macedonia  283 successive contracts of employment and in terms of the preference of ­employees for security and stability within employment. The fixed-term employment relationship shall be converted into an employment relationship of indefinite duration, if the employee continues working after the expiry of the maximum period of limitation of the employment contract, under the conditions and in the manner defined by law.28 Should the employer refuse to convert the employee’s employment relationship into a permanent one, s/he may initiate a procedure for the protection of his/her rights. The employee can thus protect his/her employment rights before the employer (by submitting a written request to the employer for the rectification of the violation of a particular right, ie for the fulfilment of the employer’s obligations towards the employee)29 and eventually before a competent court (by submitting a claim, if the employer does not fulfil its obligations, ie does not rectify the violation of the employee’s rights upon the employee’s written request).30 In practice, the employee first submits a request for the transformation of his/her employment relationship;31 if the employer fails to act, the employee may exercise his/her right by filing a declaratory lawsuit against the employer before the competent court. There is an exception to the legal presumption of the transformation of the employment relationship relating to employment contracts for seasonal work, which may include multiple successive contracts regardless of their total duration, which cannot be converted into contracts of employment of indefinite duration.32 Additionally, the Law on Labour Relationships stipulates another circumstance which is treated as an ‘exception’ to the general rule on the transformation of employment relationships after the expiry of the cumulative period of five years. A transformation of an employment contract may occur if the employee works in a position for two years, which became vacant due to the retirement of an employee or other grounds, and for which funds have been provided, if the employer determines that there is a permanent need for the employee under the conditions and in the manner determined by law.33 Assuming that the remaining criteria for an early transformation of the employment relationship have been met, the ‘other ground’ for which a

See in Закон за работните односи, член 46, став 3. See in Закон за работните односи, член 181, став 1 30  See in Закон за работните односи, член 181, став 3. 31  The request for transformation of the employment relationship is not a procedural action that explicitly derives from the Law on Labour Relationships. Yet, case law attributes importance to this action in the capacity of a prior action before filing a lawsuit for the transformation of the employment relationship into one of indefinite duration. See the following cases: РОЖ 1135/11 from 12 September 2011 before the Court of Appeal in Štip; РО бр.87/13 from 13 June 2013и РО бр.136/13 from 20 September 2013 before the Basic Court in Tetovo, etc. 32  See in Закон за работните односи, член 46, став 3. 33  See in Закон за работните односи, член 46, став 4. 28  29 

284  Todor Kalamatiev and Aleksandar Ristovski particular post may become vacant may, for example, be the ‘death of the previously replaced employee’.34 The Law on Labour Relationships does not contain any provision to resolve the legal consequences resulting from an invalid conclusion and duration of a fixed-term employment contract. In fact, Macedonian labour legislation fails to recognise several important aspects related to penalising the consequences of the unlawful existence of a fixed-term employment relationship. The first aspect encompasses the dilemma related to the legal treatment of fixed-term employment contracts concluded contrary to the conditions under which such a contract may be concluded, while the ­latter aspect relates to the ‘legal gap’ that exists in the event of extension of ­fixed-term employment contracts without having to conclude a new (successive) contract. The Law on Labour Relationships does not precondition the conclusion of the initial, nor of the successive fixed-term employment ­contract on the existence of objective reasons. Starting from such a presumption, it can be concluded that the courts’ practices are restrictive, in the sense that they are often unwilling to interpret a fixed-term employment contract signed without containing any objective reason as a partially null and void contract, ie as a contract that may be converted into an employment contract of indefinite duration by a court decision.35 The second aspect reflects a particular practice which is also prevalent in the ‘regular’ labour market in the Republic of North Macedonia. It refers to the factual situation in which a fixed-term employment contract had ceased to exist ex lege (for example, due to the expiry of the term), but the employee continued to perform his/her activities at the same employer (so-called ‘factual employment relationship’).36 In the absence of an explicit legal provision that fills this specific ‘legal void’, it can be argued that the continued performance

34  In the labour dispute registered under РО.бр.87/13 from 13 June 2013, the Basic Court in Tetovo (as a first instance civil court) ruled that the plaintiff (a class teacher in an elementary school) met the requirements for the transformation of the fixed-term employment relationship into one of indefinite duration. In the given case, the employee had continued working in the same position for more than two years for which the financial funds were provided and the employer determined that there was a permanent need for the employee, and the post ultimately became vacant due to the death of the previous employee. 35  Contrary to current legislation and court practice, in the archives of the courts of the Socialist Republic of Macedonia before the country’s independence, there are court decisions that legitimise the transformation of the employment relationship into one of indefinite duration depending on when the fixed-term employment relationship was established. For example, the Court of Associated Labour adopted a decision which held that if the worker deems his work to be for a fixed term, even though his/her work consists of labour activities that are not of a temporary nature, it shall be presumed that the worker established a permanent employment relationship (Court Decision, No 207/86 from 25 September 1986). 36  At the request of the business community of the Republic of Macedonia, the Employment Agency of the Republic of Macedonia along with the Health Insurance and the Pension and Disability Insurance Fund, introduced a simpler procedure in 2012 to register/deregister employees whose fixed-term employment contracts for the performance of the same activity have been extended without an interruption in the employment relationship. Under the

The Position in the Republic of North Macedonia  285 of the ­activity by the employee at the same employer after the expiry of the ­previous fi ­ xed-term employment contract does not mean that the contracting parties have entered into an employment relationship of indefinite duration but rather that they have concluded a new (successive) contract of employment, the nature and duration of which depends on their will.37 C.  Termination/End of Fixed-Term Contracts Fixed-term employment contracts may end with the expiration of the period for which they were concluded, ie fulfilment of the condition specified in the contract. In practice, there are several ways to limit its duration. The term may be fixed by a calendar date, by satisfying a certain condition, ie the completion of a certain task or by the occurrence of a certain event. The fixing of the term by calendar date consists of designating the exact date of expiry of the contract (for example, the contract expires on 10 June 2016) or by indicating the total duration of the contract (for example, the contract is concluded for a total period of three months from the date of its ­conclusion).38 Apart from the calendar method, there are fixed-term employment contracts that cease to be valid upon the completion of a certain task (for example, work on a project).39 Finally, a fixed-term employment contract may also end with the occurrence of a certain event (for example, the return to work of a temporarily absent worker).40 The Law on Labour

modified procedure, the previous practice of deregistration of employees from the Employment Agency due to the expiry of their contracts and their re-registration on the same day at the same employer has been abandoned. In fact, the first submitted application to the compulsory social insurance institution related to the initial fixed-term employment contract at the employer is valid as long as the cumulative employment relationship lasts, and it includes all consecutive contracts of employment until the expiry of the maximum statutory limitation for fixed-term contracts. Consecutive employment contracts with no interruption are usually concluded in the form of a new contract or in an annex to the existing contract. Irrespective of whether the consecutive employment contract occurs in the form of a new contract or in an annex to the existing contract, it relates to the performance of the same activity and contains a provision for fixing the term, eg its duration. 37 D Marinkovič and M Ruždjak, Zakon o Radu (komentar, primjeri, sudska praksa, 2005) p 31. 38  In theory, there is the view that the calendar method, eg determining the exact date of expiry of a fixed-term contract, is the most appropriate way to set the duration of the contract. By using this method to fix the term of the contract, employers can avoid any unwanted consequences resulting from the transformation of the fixed-term into a permanent employment relationship, especially in cases when the term is neither certain nor specified in the contract. See in D Milkovič et al, Prestanak Ugovora o Radu, Veliki Komentar Novog Zakona o Radu (Vaša Knjiga Zagreb, 2010) p 172. 39  In this case, there is the so-called descriptive fixing of the term of the contract, which can be determined by inserting both the specific condition, eg completion of a certain task, and the calendar date. 40  In such a case, the validity of the employment contract will expire at the time of occurrence of the resolutive condition (the return to work of the temporarily absent employee),

286  Todor Kalamatiev and Aleksandar Ristovski Relationships supplements the methods to terminate fixed-term employment contracts. Thus, a fixed-term employment contract shall cease to be valid upon the expiry of the period for which it was concluded, that is, upon completion of the agreed work or upon the end of the reason for which the contract was concluded.41 The question that arises in practice is whether the employer is required to issue a separate formal decision to end the fixed-term employment relationship in terms of fulfilling the condition (term) under which the contract was concluded, or whether it is sufficient to only inform the employee that the term has expired. Usually, the employer is required to notify the employee in writing that the condition has been fulfilled, ie that the term has expired.42 This notification is a ‘reminder’ for the employee about the definite end of his/her employment relationship and it does not have a constitutive nature. The lack of a written notice of the expiry of the term or the fulfilment of the conditions of the contract cannot have any legal consequences for the legitimacy and admissibility of the termination of the employment contract. This is the case because the employer confirms that the contract of employment is fixed at the time of signing, and will terminate when the conditions are fulfilled, i.e. the expiry of the duration for which the contract was concluded.43 Macedonian labour legislation does not contain any provision on the possibility of either the employer or employee cancelling the fixed-term employment contract and the legal consequences of such a dismissal for the duration of the contract. Under such circumstances, the standard rights and obligations applicable to the cancellation of employment contracts of indefinite duration usually apply, including inter alia the existence of a justified ground for dismissal and the procedure prior to the cancellation of the contract, namely the notice period. Compared to the legal regime for the cancellation of fixed-term employment relationships, the Law on Labour Relationships explicitly provides for a ‘dismissal’ as a way of terminating the validity of the employment contract for seasonal work and for work during a probation period as distinctive types of fixed-term employment contracts.44 which shall predetermine the date of termination of the employment relationship by itself. See in T Камчевска, Работни односи—засновање, распоредување и престанок (Сигнум, 1997) p 190. Закон за работните односи, член 64. Д Миленков и Т Томановиќ, Прирачник за правата и обврските од работен однос (Агенција ‘Академик’—Скопје, 1995) p 205. 43  Т Камчевска, Работни односи—засновање, распоредување и престанок (Сигнум, 1997) p 190. 44 The Law on Labour Relationships envisages a distinctive specificity in relation to the termination of seasonal employment relationships by dismissal. The duration of the minimum notice period shall be seven working days when the employer terminates the seasonal employee’s employment contract. (See in Закон за работните односи, член 88, став 3). The dismissal occurs as a legal ground for terminating the employment contract if the employee fails to successfully complete the probation period. (See in Закон за работните односи, член 99, став 1, 41  42 

The Position in the Republic of North Macedonia  287 D.  Rights and Status of Fixed-Term Worker (i)  Equal Treatment Macedonian labour legislation is harmonised with EU Directive 99/70/EC on the framework agreement on fixed-term work, including the principle of non-discrimination against fixed-term employees. As regards employment conditions, the Law on Labour Relationships prohibits less favourable treatment of fixed-term employees simply because they have a fixed-term employment contract, compared to employees who are employed for an indefinite period, unless differentiated treatment is justified by objective reasons.45 The Law fails to specify the term ‘comparable’ employee employed for an indefinite period. At the same time, the case law of courts competent for resolving labour disputes does not clarify the meaning of ‘objective reasons’ justifying differentiated treatment between fixed-term and permanent employees. The principle of equal treatment is evident again when determining the qualifications for obtaining certain employment rights which derive from the length of service, ie the continuity of the employment relationship. In this regard, the Law stipulates that the period for acquiring qualifications in relation to certain conditions shall be the same when employing permanent or fixed-term workers, unless the period for acquiring the qualifications is longer than the duration of the fixed-term employment contract.46 In practice, there are cases where the fixed-term employee does not fully or only partially acquires a certain qualification due to the fact that the period for acquiring such a qualification is longer than the duration of his/her contract of employment. An employee who has concluded a fixedterm employment contract shorter than six months is not eligible for payment of maternity and parental leave. This is attributable to the provisions of the Law on Health Insurance (Закон за здравствено осигурување), which stipulate the conditions for obtaining the right to a salary allowance for pregnancy, childbirth and maternity leave. According to this Law, the insured person may exercise the right to salary allowance if s/he has contributed to health insurance for at least six months without interruption, among other criteria, before the given event occurred.47 The same situation exists in the context of acquiring the right to full annual leave. According to the Law on Labour Relationships, an employee who establishes an employment точка 2). Such a dismissal is treated as a dismissal without notice. On the other hand, the Law on Labour Relationships provides the employee with the possibility to terminate the employment contract during the probation period. The notice period in such a case shall be three days. (See in Закон за работните односи, член 60, став 5). Закон за работните односи, член 8, став 3. Закон за работните односи, член 8, став 4. 47  See in Закон за здравствено осигурување, Сл.весник на РМ бр.25/20, член 15, став 1, точка 1. 45  46 

288  Todor Kalamatiev and Aleksandar Ristovski relationship for the first time shall acquire the right to full annual leave after an uninterrupted period of service of at least six months at the same employer, regardless whether the employee works full-time or part-time.48 (ii)  Employment Opportunities The labour legislation of the Republic of North Macedonia stipulates the right of fixed-term employees to be informed about vacant posts. Thus, the Law on Labour Relationships requires employers to inform fixed-term employees about vacancies by posting a notification in a visible place at the employer’s premises to ensure that they have the same opportunity to access permanent employment as the other employees.49 In addition, employers should, to the extent possible, facilitate access of fixed-term ­ employees to appropriate training opportunities to enhance their skills, ­ career ­development and professional mobility.50 (iii)  Other Matters Macedonian labour legislation does not provide for other provisions that may be considered supplementary rights for employees who have concluded a fixed-term employment contract. E.  Information and Consultation Macedonian labour law has not yet established a proper legal framework to enable the systematic participation of employees in decision-making processes. Labour legislation contains several provisions on the ­‘information and consultation’ of employees in general, as well as in terms of c­ ollective dismissals.51 Employers in Macedonia are not required to inform and/or consult employee representatives about the number or representation of fixed-term employees. F.  Specific Provisions In addition to the Law on Labour Relationships (as a general law governing employment relationships), the Law on Public Sector Employees (Закон за See in Закон за работните односи, член 139. See in Закон за работните односи, член 25, став 10. 50  See in Закон за работните односи, член 25, став 11. 51  These provisions (arts 94-a and 95) aim to harmonise the Law on Labour Relationships with the European Framework Directive on Information and Consultation (2002/14/EC) and 48  49 

The Position in the Republic of North Macedonia  289 вработените во јавниот сектор) as well as other special laws, cover ­fixed-term employment relationships. The Law on Public Sector E ­ mployees contains several objective grounds for concluding fixed-term employment contracts. Such objective grounds are: replacement of a temporarily absent employee (for more than one month); temporary increase in workload; seasonal work; unforeseen short-term activities that arise during the performance of the employer’s main activity; work on a project; or filling special jobs in the cabinet of the President of the Republic of Macedonia, the ­President of the Assembly of the Republic of North Macedonia, the deputy presidents of the Assembly of the Republic of North Macedonia, the President of the Government of the Republic of North Macedonia, the deputies of the President of the Government of the Republic of North Macedonia, or the ministers and the General Secretary of the Government of the Republic of North Macedonia, for the purpose of carrying out tasks and duties of special advisors.52 The replacement of a temporarily absent employee as an objective ground for establishing a fixed-term employment relationship shall last until the expiry of the absent employee’s approved absence, but not longer than two years at most.53 The temporary increase in workload, seasonal work and unforeseen short-term activities that arise during the performance of the employer’s main activity as objective grounds for establishing a fixed-term employment relationship shall last until the needs of the employer have been fulfilled, but one year at most.54 Finally, the work on a project as an objective ground shall be valid until the end of the project, but no longer than five years in total.55 However, employment of the special advisors at the offices of the previously mentioned state institutions shall last until the expiry of the term of office of the functionary in whose cabinet the person is employed.56 Besides the Law on Public Sector Employees, provisions with an identical or similar content may be found in a few other special laws such as the Law on Administrative Servants (Закон за административните служ беници), the Law on Judicial Service (Закон за судската служба), the Law on Public Prosecution Service (Закон за јавнообвинителската служба), the Law on Primary Education (Закон за основно образование), the Law on Secondary Education (Закон за средно образование), the Law on Higher Education (Закон за високо образование), etc. the Council Directive on collective redundancies (98/59/EC). Yet despite nominal compliance with the aforementioned EU directives, the Law on Labour Relationships does not provide for a substantial definition and procedure for electing ‘employee representatives’, eg a ‘works council’, and does not determine its competences, rights, obligations, etc. 52  За ова види Закон за вработените во јавниот сектор,Сл.весник на РМ бр.27/2014, член 22, став 1. 53  Закон за вработените во јавниот сектор, член 22, став 2. 54  Закон за вработените во јавниот сектор, член 22, став 3. 55  Закон за вработените во јавниот сектор, член 22, став 4. 56  Закон за вработените во јавниот сектор, член 22, став 5.

290  Todor Kalamatiev and Aleksandar Ristovski G. Collective Bargaining Agreements Deviating from Statutory Provisions The provisions of the Law on Labour Relationships regulating fixed-term work are fundamental provisions that cannot be derogated from ‘in pejus’ by collective agreements, ie contracts of employment. In this regard, the Law on Labour Relationships stipulates that the collective agreement, ie employment contract, cannot set out less favourable rights than those laid down by a Law, and if they contain such provisions, they shall be considered null and void and the relevant provisions of the Law shall apply.57 Collective agreements that regulate particular aspects of fixed-term employment relationships usually take over the relevant provisions stipulated in the Law or provide for minor changes compared to the statutory provisions.58 III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements In Macedonian labour law, full-time working hours with a maximum of 40 working hours per week are treated as the standard form of work.59 In theory, the prevailing view is that full-time employment allows employers to reasonably use the working abilities of employees, enabling employers to optimally distribute their workforce, while the employees fully acquire their guaranteed employment rights.60 In the Macedonian labour market, the primacy of full-time work compared to part-time work is also evident in the statistical data which reveal a huge gap between the share of employees hired on a full-time and part-time basis.61

Закон за работните односи, член 12, став 2. that regulate certain aspects of fixed-term work can be found in both the Primary Education Collective Agreement and the Secondary Education Collective Agreement of the Republic of Macedonia. For example, these collective agreements state that the fixed-term employment relationship can be established for a period of time predetermined for teaching of up to 12 months in the school year (член 11, став 1); The employment relationship based on a fixed-term employment contract shall be converted into a permanent employment relationship, if the employee continues to work after the expiry of the period of up to five years with or without interruption (член 11, став 2). 59  Law, that is, the collective agreement, may define working hours shorter than 40 hours a week, but not less than 36 hours a week, as full-time hours. (See in Закон за работните односи, член 116, став 3). 60  T Popovič, Radno Pravo (Beograd, 1980) p 133. 61  According to the data for 2015, part-time work constitutes 4.4% of total employment in the Republic of Macedonia. Despite the low rate of part-time work, the potential for its increase and improvement are obvious, especially if we take into account the continuing 57 

58  Provisions

The Position in the Republic of North Macedonia  291 The Law on Labour Relationships defines the legal grounds for establishing a part-time employment relationship, namely the part-time employment contract.62 Part-time work shall be considered work that entails working hours that are shorter than full-time working hours at the employer.63 The labour legislation of the Republic of North Macedonia does not provide for the distribution of part-time working hours.64 In any case, the amendment to the Law on Labour Relationships of 2013 imposes an obligation on the employer to determine the start and end time of the daily working hours of the employee under a part-time employment contract and to keep separate records of part-time employees. The Employment Service Agency of the Republic of North Macedonia shall inform the State Labour Inspectorate about all part-time contracts once a month.65 The aim of this provision is to prevent abuse of working hours of workers who are registered as part-time workers but actually work full-time and are paid the remaining half of their net wage in cash.66 Finally, the conceptual definition of parttime employment differentiates between ‘part-time’ working time (неполно работно време) and ‘shortened’ working time (скратено работно време). While ‘part-time’ working time refers to the atypical (non-standard, flexible) form of employment, the term ‘shortened’ working time refers to the reduction, ie shortening of the full-time working time to protect the health and safety of employees with special needs, and employees who work in especially difficult, arduous jobs harmful to the employee’s health. In this regard, ‘shortened working time’ is used in two different cases. In the first case, shortened working time encompasses so-called ‘exceptional cases’ in

­ exibilisation of the Macedonian labour market as well as the low employment rate of women, fl which is estimated at 39.9% (source: www.stat.gov.mk). Закон за работните односи, член 48, став 1. Закон за работните односи, член 48, став 2. 64  An exception to this principle can be found in the Law on Public Sector Employees, which states that working hours shorter than full-time working hours shall be deemed part-time working hours and must be at least 20 hours and a maximum of 30 hours a week. (See in Закон за вработените во јавниот сектор, член 23, став 2). 65  Закон за работните односи, член 48, став 6. 66  According to the findings of the State Labour Inspectorate, instead of registering the exact hours of when an employee comes and leaves from work, there was a widespread practice until 2012 to record ‘eights’ (for full-time work) and ‘fours’ (for half of full-time work, eg p ­ art-time work) in the working time records of the employees, on the basis of which the inspectors had no actual insights at the time of conducting the inspection into whether an employee was working more hours than the agreed part-time working time, because the employers argued that the inspection was being conducted when the employee was at work. The amendments of 2013 contributed to resolving this situation. Yet, some employers still find ways to bypass their legal obligations. Some of them do not determine the daily organisation of working hours (start and end time) in the employment contracts of the employees. Others determine the daily organisation of part-time working hours, but contrary to the contract, request the employees to work full-time working hours. This is an offence for which the labour inspector may issue a misdemeanor charge. 62  63 

292  Todor Kalamatiev and Aleksandar Ristovski which the employee works less than full-time hours (shortened working time) in accordance with the regulations on pension and disability insurance and the regulations on health care insurance. This form of shortened working time relates to employees who are ‘disabled’ or are in medical rehabilitation.67 In the second case, the shortened working time is related to so-called ‘exceptional conditions’, and refers to employees who work in especially difficult, arduous jobs that are harmful to the health of the employee.68 B.  Opportunities for/Right to Part-Time Work The Law on Labour Relationships does not envisage the possibility for a direct adjustment of part-time work to the needs of the employees for a better work-life balance and upon their request. The only exception in this regard is the possibility to work shortened working hours, ie half of the full-time working time (20 working hours per week) in order to care for and protect children with developmental problems and special educational needs. In this case, the shortened working time (half of the full-time working time) is considered full-time work, as the remuneration for the remaining half of the working hours shall be compensated for by the state budget in accordance with the social welfare regulations.69 Such an option shall be granted to one of the parents of the child only if both parents are employed or if the employee is a single parent.70 The right to change the working time from full-time to part-time is only found in the Law on Public Sector Employees. The Law, inter alia, stipulates that the responsible person at the employer’s organisation may adopt a decision on part-time working hours upon the employee’s request to care for the first-born child until it reaches the age of two, care for the second-born child until it reaches the age of two and a half, and care for the third-born child until it reaches the age of three.71 In that case, the responsible person at the employer’s organisation may adopt a decision upon the request of the employee to change his/her working time, within the statutorily prescribed period of 15 days.72 Any future amendments to the Law on Public Sector Employees ought to provide for justified grounds that will limit the discretionary power of the employer to reject the employee’s request to change his/her working hours.

See in Закон за работните односи, член 122. Закон за работните односи, член 122-а. 69  See in Закон за работните односи, член 169, став 2. 70  See in Закон за работните односи, член 169, став 1. 71  See in Закон за вработените во јавниот сектор, член 23, став 3, алинеа 2, 3 и 4. 72  See in Закон за вработените во јавниот сектор, член 23, став 5. 67  68 

The Position in the Republic of North Macedonia  293 C.  Opportunities for/Right to an Extension of Working Time In principle, the labour legislation of the Republic of North Macedonia prohibits the unilateral extension of the working time by the employer. The Law on Labour Relationships stipulates that the employer may not order the part-time employee to work longer than the agreed working hours, except in cases in which additional work is required due to natural or other disasters.73 The prohibition on working longer than the agreed working hours includes overtime work as well. Yet in the same provision, the Law on Labour Relationships implicitly permits the ‘extension of working time’, if the contracting parties envisage such a possibility in their contract of employment. Case law is still not clear on this ‘legal void’, but in our view, if the extension of working hours (ie overtime work) is stipulated in the contract, the contracting parties are free to autonomously determine both the terms and conditions of its introduction and the amount of compensation for the working hours exceeding the agreed working time. D.  Rights and Status of Part-Time Worker (i)  Equal Treatment The labour legislation of the Republic of North Macedonia envisages the right to equal treatment of part-time employees. The Law on Labour Relationships stipulates that the employee who has concluded a part-time employment contract shall have the same contractual and other rights and obligations arising from employment as the full-time employee, and shall exercise these rights and obligations proportionally to the time for which s/he has concluded the employment contract, except for those otherwise defined by law.74 Principally, this provision is related to two segments of part-time employment. The first segment refers to equal employment rights and obligations of part-time employees compared to full-time employees, whereby employers are required to provide the same employment conditions for both types of employees. Yet besides the prohibition of discrimination against part-time employees, the Law on Labour Relationships does not specify ‘the comparative’ full-time employee whose employment rights and obligations represent the basis for comparing the working conditions of these two types of employees. The second segment refers to the exercise of employment rights of part-time employees in proportion to the working hours during which they perform their work. In practice, it is important

73  74 

See in Закон за работните односи, член 48, став 5. See in Зaкон за работните односи, член 48, став 3.

294  Todor Kalamatiev and Aleksandar Ristovski to determine ‘how’ and to ‘what extent’ part-time employees can obtain tangible (remunerative) and intangible (non-remunerative) employment rights, and whether the principle of ‘proportionality’ is applicable in the exercise of all employment rights. A basic tangible employment right of all employees, including part-time employees, is the right to payment. The salary (or more precisely the basic salary) obtained by the employees usually results from their regular work, performed in a full-time working capacity and their normal working performance, ie average working results. The temporal determination of the salary underlines the connection between the payment and full-time working time. Hence, in cases in which the salary is determined temporarily (based on the duration of the full-time working hours), part-time employees shall exercise the right to payment in proportion to their working hours specified in their employment contract.75 The identical analogy, indicating the principle of ‘pro rata temporis’ also exists for other tangible employment rights, especially with regard to ‘salary allowances’ (which are compensated through paid leave, such as for illness or injury, holidays, etc). The basis for calculating the payment is usually the employee’s average salary over the past 12 months (unless otherwise defined by this or another Law).76 Still, the practical implementation of the principle of ‘proportionality’ in the exercise of other, specific tangible employment rights is not applied. The Law on Labour Relationships specifies the ‘allowances for work-related costs’ and other material allowances, but their detailed regulation is subject to collective agreements.77 The inability to enforce the principle of proportionality in relation to the number of working hours arises when the basis for

75 

I Govič, DM Drača, Ugovor o Radu (TIM press, Zagreb, 2005) p 96. See in Закон за работните односи, член 112, став 8. 77  The general collective agreement for the private sector in the field of economics (GCAPE) envisages several types of work-related allowances that set out their amounts. These include: daily allowance for national business trips; daily allowance for business trips abroad; field allowance; compensation for living separated from the family; compensation for the expenses of using own vehicle to meet the needs of the employer; compensation for moving costs to meet the needs of the employer (член 35, став 1). Allowances are also paid: in case of death of the worker, compensation to his/her family is paid in the amount of three months’ basic salary; in case of death of a family member of the worker, compensation is paid to the worker in the amount of two months’ basic salary; in case of difficult consequences of a natural disaster, at least in the amount of one month’s basic salary; for continued sick leave longer than six months, as a result of injury at work or a professional disease in the amount of the basic monthly salary; for a jubilee award in the amount of one month’s basic salary—for at least 10 years of work at the same employer; at retirement, in the amount of at least two months’ basic salary (член 35, став 2). By the agreement to amend and modify the GCAPE of 2013, the contracting parties (the Organisation of Employers of Macedonia and the Federation of Trade Unions of Macedonia) envisage the right to annual leave regress (allowance). According to the new contents of the GCAPE, the annual leave regress shall be paid in the amount of at least 40 per cent of the basic wages, provided that the employee has worked for at least six months within the calendar year for the same employer (See in Спогодба за изменување и дополнување 76 

The Position in the Republic of North Macedonia  295 calculating work-related costs and other material allowances is the average monthly net salary paid per employee in the Republic of North Macedonia during the past three months.78 When analysing this provision, it becomes evident that the basis for calculating the allowances for work-related costs corresponds to the average monthly net salary paid per employee in the Republic of North Macedonia, and not to the employee’s average monthly net salary paid at the employer (which is, of course in favour of the part-time employee, because it increases his/her remuneration). The principle of ‘proportionality’ in the exercise of intangible employment rights (rest periods, leaves, etc) can be evaluated in a similar way. Usually, intangible employment rights are a consequence resulting from the act of ‘employment’ itself, meaning that a part-time employee acquires the same and equal intangible rights as a full-time employee.79 Confirmation of such an approach can be found in the regulation of the right to the daily and weekly rest period.80 It appears that the only deviation from the principle of equal and fixed duration of the right to rest is identified in the legal treatment of breaks at work (whereby the employee is supposed to work at least four working hours a day in order to obtain a partial right to a break in the amount of 15 minutes)81 and annual leave, which according to the Law on Labour Relationships is at least 20 working days (but the part-time employee shall be entitled to annual leave with a minimum duration of ten working days).82 Other intangible employment rights which part-time employees are entitled to in the same amount, regardless of the duration of their working time, are the rights to absence from work (paid and unpaid), duration of the notice period in case of dismissal, etc. (ii)  Dismissal Protection The labour legislation of the Republic of North Macedonia does not provide for a special legal regime on the dismissal protection for part-time employees. The same rights and obligations prescribed on the termination of the employment contract by dismissal (such as justified reasons for dismissal,

на Општиот колективен договор за приватниот сектор од областа на стопанството, Сл.весник на РМ бр.189 од 31 December 2013, член 10). 78  Општ колективен договор за приватниот сектор во областа на стопанството, член 35г, став 2. 79  V Jelčič, Radno Vrijeme (Knjižnica B Adžija) p 172. 80  According to the Law on Labour Relationships, the employee shall be entitled to a daily rest time of at least 12 hours continuously between two consecutive working days within a 24-hour period (See in Закон за работните односи, член 133, став 1). The employee shall have the right to a weekly rest time of at least 24 uninterrupted hours, plus 12 hours of daily rest as referred to in art 133 of this Law (See in Закон за работните односи, член 134, став 1). 81  See in Закон за работните односи, член 132, став 2. 82  See in Закон за работните односи, член 48, став 4.

296  Todor Kalamatiev and Aleksandar Ristovski procedure prior to the dismissal, notice periods, etc) as are applicable to full-time employees shall be provided for part-time employees. One noticeable aspect in this regard is the application of the ‘pro rata temporis’ principle in terms of exercising the right to ‘severance payment’ as an ‘ultima ratio’ entitlement of employees in the event of termination of their employment contract for business reasons (ie economic, organisational, technological, structural or similar reasons).83 This actually means that part-time and full-time employees are entitled to the identical number of net monthly salaries (severance payments) arising from the identical length of service at the employer, but the amount of the part-time employee’s severance payment will be different (lower) than that of the full-time employee. Finally, the Law on Public Sector Employees stipulates that if needed by the institution, the responsible person at the institution may adopt a decision on part-time work in case of a temporary decrease in workload.84 This decision shall be adopted within a period of 15 days after the request directed to the employee, but upon his/her request.85 In order to protect part-time employees from dismissal, the Law on Public Sector Employees ‘de lege ferenda’ ought to specify that the refusal of the employee to consent to changes to his/her working time from full-time to part-time should not constitute a legitimate reason for dismissal. (iii)  Other Matters Macedonian labour legislation does not provide for other provisions that may be treated as supplementary rights of employees who have concluded a part-time employment contract. E.  Information and Consultation Part-time employees do not have any special rights to information and consultation. Their right to information and consultation is an integral part of the general legal framework regulating employee participation that is provided in the Macedonian labour legislation.

83  Under such circumstances, the employer shall be required to pay the employee a ­‘severance payment’ from one up to six months’ net salary, depending on years of employment, and the base for calculating severance pay shall be the average net monthly salary of the employee in the last six months before the dismissal, but it may not be lower than 50 per cent of the ­average net monthly salary per employee in the Republic paid in the preceding month before the dismissal. (See in Закон за работните односи, член 97, став 1 и став 2). 84  See in Закон за вработените во јавниот сектор, член 23, став 3, алинеа 1. 85  See in Закон за вработените во јавниот сектор, член 23, став 4.

The Position in the Republic of North Macedonia  297 F.  Other Part-Time Arrangements The Macedonian labour law system provides for the right to part-time work with several employers with the purpose of achieving full-time working hours (работа со неполно работно време со повеќе работодавачи).86 This means that an employee may conclude two or more part-time employment contracts with two or more employers whereas the total amount of hours worked at all employers (cumulatively) may not exceed the ‘normal’ limitation of working time, namely the upper maximum of 40 hours a week. Considering the complex legal nature of part-time work with several employers, several dilemmas on the organisation of working time at different employers may arise in practice: the use of rest periods (especially annual leave), absences from work, etc. The Law on Labour Relationships ‘recognises’ the potential difficulties in synchronising the separate aspects of the organisation of work at different employers and in this regard, stipulates that the employee shall be obliged to agree with the employers on his/her working hours, the use of annual leave and other absences from work.87 On the other hand, employers where the employee is employed on a part-time basis shall be required to assure the employee simultaneous use of annual leave and other absences from work, unless it would cause them damage.88 The final form of work that can be subsumed under the group of other part-time arrangements and which assumes an extension of working hours is so-called ‘supplementary work’ (дополнително работење). The Law on Labour Relationships states that an employee who works full time may, as an exception, conclude a part-time employment contract with another employer, however, for not more than 10 hours a week and with previous consent of the employer that employs him/her on a full-time basis.89 In this regard, the Law on Labour Relationships explicitly indicates that ‘supplementary work’ is equated with ‘supplementary employment relationship’.90 A legal preconditions for exercising ‘supplementary work’ is the limitation of working hours—it may not be performed for more than 10 hours a week and prior consent of the employer is necessary where the employee is employed on a full-time basis. The purpose of limiting ‘supplementary work’ to not more than 10 hours a week derives from the need to protect

See in Закон за работните односи, член 49, став 1. Закон за работните односи, член 49, став 2. 88  Закон за работните односи, член 49, став 3. 89  За ова види ЗРО, член 121, став 1. 90 In practice, there is a common dilemma whether ‘supplementary work’ is a means to engage workers under an employment relationship or outside of it. Supplementary work as a special form of work based on a part-time employment contract has existed since the adoption of the Law on Labour Relationships of 2005; and for an extensive period, there was no possibility in practice to pay the compulsory social contributions arising from such a contract. 86  87 

298  Todor Kalamatiev and Aleksandar Ristovski the health and safety of employees from excessive work, as well as from the interest of the state in stimulating the employment of unemployed persons. Similarly the need of prior consent of the employer/s where the employee is employed on a full-time basis, can be evaluated in the light of employers’ interest in having a productive employee at their disposal. Prior consent of employer/s can also be analysed in terms of the ban on competition. Finally, the Law on Labour Relationships determines how ‘supplementary work’ based on a part-time employment contract is to be terminated. Accordingly, the employment contract shall cease to be valid in accordance with this Law after the expiry of the agreed period, or after the withdrawal of the employer’s consent where the employee is employed on a full-time basis.91 On-call work (работата на повик) is not comprehensively and thoroughly regulated in Macedonian labour law.92 Finally, Macedonian labour legislation does not recognise the shared workplace (делење на работното место) (job-sharing) model as a separate form of part-time work.93 This practice is common among standard part-time employment contracts which do not provide for mutual and shared rights, obligations and responsibilities applicable to the part-time employees. G. Collective Bargaining Agreements Deviating from Statutory Provisions Much like the regulation of fixed-term employment, collective agreements that regulate specific aspects of part-time employment usually adopt the relevant provisions stipulated in the Law or provide for minor changes from the statutory provisions.94

In fact, employers were only required to pay personal income tax under the tax law r­ egulations. Such a legal position of the part-time employment contract as a legal ground for engaging a worker to perform supplementary work had led to an overlap of this type of contract with the contract for services. Закон за работните односи, член 121, став 3. Law on Labour Relationships refers to the possibility of regulating the ‘on-call on-site work’ (дежурство) in health institutions, based on the regulations in the health sector (See in Закон за работните односи, член 118). Yet the Law is understated in terms of the introduction of on-call on-site work in other professional activities as well as the forms of its payment. On the other hand, the Law on Labour Relationships does not refer to the term ‘on-call off-site work’ (приправност, готовност) at all. 93 The right to a shared workplace was set out in the labour legislation of the former Socialist Republic of Macedonia. See in T Несторовски, Прирачник за практична примена на Законот за работните односи со судска практика (Македонија Биро, Скопје, 1983) стр. 117. 94  Provisions that regulate certain aspects of part-time work can be found in the collective agreement for communal activities of the Republic of North Macedonia (член 67, став 2) and the collective agreement for the catering services of the Republic of North Macedonia (член 68, став 2). These collective agreements state that part-time employees who work at least four hours are entitled to food during work. 91 

92 The

The Position in the Republic of North Macedonia  299 IV.  TEMPORARY AGENCY WORK

A.  Legal Definitions/Formal Requirements Temporary agency work is an atypical form of work recognised in ­Macedonian labour law. It is based on the Law on Temporary Work Agencies (Закон за агенциите за привремени вработувања) of 2006.95 The Macedonian Parliament has ratified the ILO Convention on Private Employment Agencies (No 181) as well.96 The Parliament of the Republic of North Macedonia, in cooperation with the social partners, has drafted a proposal on a new Law on Private Employment Agencies (Предлог Закон за приватните агенции за вработување) aimed at replacing the existing Law on Temporary Work Agencies.97 As regards the public sector, legal provisions that regulate temporary agency work at public sector employers can be found in the Law on Public Sector Employees.98 The Law on Temporary Work Agencies determines the general legal framework of temporary agency work in the Republic of North Macedonia. According to this Law, temporary agency work presupposes the existence of a tripartite legal relationship involving three parties: the temporary work agency, the temporary agency worker and the user undertaking. The temporary work agency (Агенција за привремени вработувања) is defined as a legal entity which in accordance with the Law concludes employment contracts with temporary agency workers for the purpose of hiring them out to perform temporary work at a user undertaking under its supervision and management.99 According to the Law, a temporary agency worker (Привремен агенциски работник) is an employee who has concluded an employment contract with a temporary work agency and can be hired out to perform temporary work at a user undertaking under its supervision and management.100 Finally, the Law defines the user undertaking (Работодавач корисник) as a legal entity or natural person for whom or

95 See in Law on Temporary Employment Agencies, Official Gazette of the Republic of North Macedonia, no 49/06/ Закон за агенциите за привремени вработувања, Сл.весник на Р Македонија, бр. 49/06. 96  ILO Convention on Private Employment Agencies (No 181) was ratified on 26 March 2012 by the Macedonian Parliament. 97  The proposal on the new Law on Private Employment Agencies was submitted to the Macedonian Parliament in July 2016. 98  In cases of ‘replacement of a temporarily absent employee, who is absent for more than a month’, ‘seasonal work’; ‘work on a project’ or ‘filling special jobs in the cabinets of the president of particular institutions in the country’, the responsible person at the institution may, inter alia, conclude a contract for hiring a worker from a temporary work agency (See in Закон за вработените во јавниот сектор, член 22, став 8). 99  Зaкон за агенциите за привремени вработувања, член 3-а, став 1, точка 3. 100  Закон за агенциите за привремени вработувања, член 3-1, став 1, точка 4.

300  Todor Kalamatiev and Aleksandar Ristovski under whose supervision and management the temporary agency worker works.101 In Macedonia, there are no official statistical data on the exact number of temporary agency workers. Temporary agency workers are engaged both in the private and public sector.102 They can be found both at lower and higher skilled jobs.103 B.  Registrations, Licensing, Financial Guarantees, etc The Law on Temporary Work Agencies stipulates the procedure, conditions and financial guarantees required for registering and licensing an agency. Registration of the temporary work agency entails enrolment in the Register of Agencies for Temporary Work, maintained by the ministry responsible for labour activities.104 To enter the Register of Temporary Work Agencies, an application for registration must be submitted, the contents of which and its additional enclosures are prescribed in a Rulebook of the Ministry of Labour and Social Policy.105 Upon the entry of the agency in the Register of Temporary Work Agencies, the ministry responsible for labour activities shall adopt a decision on the basis of which the agency is entered in the Central Register of the Republic of North Macedonia and acquires the status of a legal entity.106 Licensing is an additional, mandatory phase in the establishment of a temporary work agency. The licence for providing temporary employment shall be issued by the ministry responsible for labour activities, with a validity period of two years and a possibility for extension.107 There are three types of licences (‘А’ licence—for the conclusion of more than 250 employment contracts, ‘B’ licence—for the conclusion of up to 250 employment contracts, and ‘C’ licence for the conclusion of up to 100 employment

Закон за агенциите за привремени вработувања, член 3-1, став 1, точка 5. the basis of an interview conducted with a representative of the temporary work agency ‘Partner’ (a leading agency in the Republic of North Macedonia that has registered more than 18,000 persons as members and potential temporary agency workers), we found that the majority of temporary agency workers registered in this agency are hired out to user undertakings in the private sector, especially in the construction and services sectors. Nonetheless, the number of temporary agency workers hired out to user undertakings from the public sector is quite large. 103  In practice, temporary agency workers are employed in jobs as general workers, construction workers, confectioners, waiters, computer operators, technicians, professional associates, etc. (See in www.partner.com.mk, accessed on 10 September 2016). 104  See in Закон за агенциите за привремени вработувања, член 5-д, став 1. 105  See in Rulebook on Registration and Keeping the Register of Temporary Employment Agencies of the Ministry of Labour and Social Policy, no 08-5431 of 2 June 2006. 106  Закон за агенциите за привремени вработувања, член 5-д, став 3. 107  See in Закон за агенциите за привремени вработувања, член 9, став 1. 101 

102  On

The Position in the Republic of North Macedonia  301 contracts), which are differentiated according to the number of employment contracts that may be concluded by the temporary work agency and the temporary agency worker.108 The licensing of temporary work agencies is conditional on the fulfilment of certain special and technical requirements stipulated in the Law. According to the Law on Temporary Work Agencies, the registration and licensing of the agencies is preconditioned by an obligation of their founders to deposit a bank guarantee. The amount of the bank guarantee differs (from EUR 50,000 to EUR 100,000) depending on type of the licence.109 The Law stipulates that the bank guarantee shall be used if the temporary work agency fails to pay the salary and contributions to the salary of employees for more than three months.110 Pursuant to the current and available data, there are a total of 18 temporary work agencies enrolled in the Register of Agencies for Temporary Employment by the Ministry of Labour and Social Policy. C. Relationship between Temporary Agency Worker and Temporary Work Agency (i)  Fixed-Term and Part-Time Contracts The legal regime of temporary agency work in the Republic of North Macedonia consists of a tripartite legal relationship. Formal and direct contractual relationships are established between the temporary agency worker and the temporary work agency on the one side, and between the temporary work agency and the user undertaking on the other. A legal ground for establishing a contractual (employment) relationship between a temporary agency worker and an agency is the ‘employment contract’, while a legal ground for establishing a contractual relationship between the agency and the user undertaking is the ‘contract to hire out a worker’.111 The Law on Temporary Work Agencies provides for an indirect application of the legal provisions of the Law on Labour Relationships regulating the ‘standard’ employment contract to the contract of employment concluded between the temporary agency worker and the temporary work agency.112 The contract between the temporary agency worker and the temporary work agency is a formal contract that must be concluded in writing.

See in Закон за агенциите за привремени вработувања, член 9, став 2. See in Зaкон за агенциите за привремени вработувања, член 6, став 1. 110  Закон за агенциите за привремени вработувања, член 6, став 2. 111  See in Закон за агенциите за привремени вработувања, Глава III, точка 1 ‘Contract for hiring out a worker to an employer user’ (член 11-член 13) и точка 2 ‘Employment contract’ (член 13-член 18). 112  See in Закон за агенциите за привремени вработувања, член 13, став 3. 108  109 

302  Todor Kalamatiev and Aleksandar Ristovski Its compulsory contents are prescribed by the Law.113 In practice, the temporary agency worker usually signs a fixed-term employment contract with the temporary work agency and the duration of these contracts corresponds to the duration of the worker’s assignment at the user undertaking. The contracts of employment are also called ‘temporary agency e­ mployment contracts’ (договори за привремено агенциско вработување) and they are valid until a certain date or for a certain period of time, on the expiry of which their validity terminates.114 By virtue of these contracts, a temporary agency worker can be hired on a temporary, but also on an occasional basis, and the duration of his/her engagement at the user undertaking must be at least one working day for which the agency worker acquires both the rights to adequate pay (ie per diem) and adequate social insurance contributions.115 The majority of such employment contracts provide for working hours that are shorter than the full-time working hours; hence they are treated as part-time temporary agency work contracts. (ii)  Rights and Obligations/Liability The conclusion of the employment contract between the temporary agency worker and the temporary work agency is a legal precondition for establishing an employment relationship between the parties. On the basis of the concluded contract of employment, the temporary agency worker and the temporary work agency shall acquire legal and contractual rights and obligations arising from the employment relationship. The legal regime of the temporary work agency in the Republic of North Macedonia is characterised by ambiguity in the regulation of entitlements and liabilities of the contracting parties. The Law on Temporary Work Agencies envisages key provisions that govern the rights to equal treatment, salary and the protection of health and safety at work of temporary agency workers. It can be concluded that a temporary agency worker hired through an agency acquires the right to salary and all the remaining work-related financial allowances, social

113  The contents of the temporary agency employment contract must include: data on the contracting parties, the duration of the temporary employee’s assignment at the user undertaking (duration of the employment contract); the date of commencement and completion of the work; the exact name and head office of the user undertaking; the place of work; the employee’s tasks performed at the user undertaking; the working hours (daily and weekly); the amount of salary, salary contributions, allowances, periods and the manner of payment, and the obligations of the temporary work agency towards the employee during the period of his/her hiring out to the user. (Закон за агенциите за привремени вработувања, член 13, став 2). 114  See in General conditions for the provision of temporary workers (Internal Regulations of the Temporary Work Agency ‘Partner’ which shall apply to all offers and contracts relating to the provision of workers for the performance of temporary work activities at the user undertaking), Skopje, 2012, p 11. 115 Based on the information obtained from the interview with the representative of the Temporary Work Agency ‘Partner’.

The Position in the Republic of North Macedonia  303 insurance contributions, rights to limited working time, holidays and leave (only paid) as if they were directly employed by the user undertaking.116 In terms of obligations, the Law on Temporary Work Agencies stipulates that the assigned worker shall be required to perform the work in compliance with the instructions of the user undertaking.117 In practice, cases can be found in which a temporary agency worker is obliged to pay a penalty if s/he concluded an employment contract with the agency but did not appear in the workplace at the user undertaking on the agreed day, or if s/he wants to terminate the employment relationship before the expiration of the employment contract and without any specific reason.118 On the other hand, one of the primary obligations of the temporary work agency is to prepare and submit a special calculation of the salary and the salary contributions of the temporary agency worker on behalf of each user undertaking at which they are hired out.119 The Law does not envisage any provisions that regulate the liability of the contracting parties for damage caused while at work or in relation to work. In practice, there are clauses in the temporary agency employment contract on the basis of which the temporary work agency is exempt from its liability to compensate for the damage or loss caused by the temporary agency worker to the user undertaking or a third party. The agency (as a formal employer) may not be excluded from so-called ‘objective liability’ for damage caused by the temporary agency worker to the user undertaking or a third party while at work or in relation to the work. A legal void exists in cases where there is a liability of the user undertaking for damage caused to the temporary agency worker as well. This derives from the fact that Macedonian labour legislation does not contain legal provisions that will address the liability of the user undertaking and/or the temporary work agency in cases where the temporary agency worker suffers damage while at work or in relation to work. (iii)  Dismissal Protection The dismissal protection of temporary agency workers is an unclear and only partially regulated segment of the legal framework governing temporary agency work in Macedonia. The Law on Temporary Work Agencies does not contain any legal provisions that stipulate either justified grounds for dismissal, or the procedure prior to the termination of the employment 116 General conditions for the provision of temporary workers of the Temporary Work Agency ‘Partner’, Skopje, 2012, pp 17–20. 117  Зaкон за агенциите за привремени вработувања, член 16, став 1. 118 According to the general conditions for the provision of temporary workers of the Temporary Work Agency ‘Partner’, Skopje, the penalties the worker is required to pay shall be 30 % of the agreed net salary. 119  See in Закон за агенциите за привремени вработувања, член 11-а.

304  Todor Kalamatiev and Aleksandar Ristovski contract of temporary agency workers. Nevertheless, the Law, for its part, provides certain specificities on the termination of temporary agency employment contracts pertaining to notice periods and unjustified reasons for dismissal. The Law envisages the possibility of ‘early’ cancellation of the employment contract, both by the temporary work agency and the temporary agency worker, by giving five days’ written notice for employment contracts concluded for up to 30 days and 10 days’ written notice for employment contracts concluded for more than 30 days.120 In addition, the Law on Temporary Work Agencies states that the end of a user undertaking’s need for a temporary agency worker prior to the expiration of the term laid down in the contract cannot be a reason for terminating the contract between the user undertaking and the temporary work agency or between the temporary work agency and the temporary agency worker.121 D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship In the Macedonian labour law system, the legal relationship established between the temporary agency worker and the user undertaking is not regulated by a direct, formal contract between the two parties. The temporary agency worker and the user undertaking do not sign any formal agreement. This implies that their legal relationship is more factual than formal, and it is established by the very fact of ‘hiring out the temporary agency worker to perform work at the user undertaking, under its supervision and management’ (отстапување на привремениот агенциски работник на работа кај работодавачот корисник, под негов надзор и раководство). (ii)  Rights and Obligations/Liability The rights and obligations between the temporary agency worker and the user undertaking are operationalised through the temporary work agency. Nevertheless, the Law on Temporary Work Agencies sets forth a principal provision that ‘the user undertaking and the temporary agency worker shall be required to comply with the provisions of this Law, any other law and collective agreement which bind the user undertaking as regards the rights and obligations directly related to the performance of work.’122 The user undertaking is responsible for the management and supervision of the work

See in Закон за агенциите за привремени вработувања, член 17, став 1. Закон за агенциите за привремени вработувања, член 17, став 2. 122  Закон за агенциите за привремени вработувања, член 16, став 2. 120  121 

The Position in the Republic of North Macedonia  305 performed by the temporary agency worker. Hence, it has certain specific liabilities extending especially to the field of occupational safety and health. Furthermore, the Law provides for two additional obligations of the user undertaking that can also be treated as rights of the temporarily hired workers. These obligations, ie rights, are exercised directly in relation between the temporary agency worker and the user undertaking. They refer to the obligations of the user undertaking to inform the hired temporary agency worker about all published announcements for vacancies,123 as well as to give temporary agency workers equal access to training planned for the permanent employees.124 The legislator views the role of temporary agency employment contracts as a ‘stepping stone’ in the career development of the temporary agency worker that should lead to a permanent and stable employment relationship. Hence, the Law on Temporary Work Agencies treats the clauses of temporary work agency employment contracts that prohibit or hinder the conclusion of employment contracts between the user undertaking and the hired temporary agency worker after s/he has been hired out as null and void.125 (iii)  Health and Safety The labour legislation of the Republic of North Macedonia, including the Law on Temporary Work Agencies, emphasises the need to ensure the safety and health of workers. In this regard, the Law deems the user undertaking responsible both for the health and safety at work of the hired out workers and for the application of the legal provisions regulating protection at work.126 In practice, the user undertaking has distinct obligations related to the protection of health and safety of the temporary agency worker. These include the following obligations: training of the temporary agency worker to safely perform his/her tasks; providing the premises and equipment for work; urgent and immediate information to the competent authorities in the event of an injury or accident at work; providing personal protection equipment, depending on the type of work, etc.127 Finally, the Law on Temporary Work Agencies stipulates the right of the ceded worker to refuse the work if the user undertaking does not ensure him/her health and safety at work in compliance with the appropriate regulations.128

See in Закон за агенциите за привремени вработувања, член 3-г, став 1. See in Закон за агенциите за привремени вработувања член 3-г, став 2. 125  See in Закон за агенциите за привремени вработувања, член 3-д. 126  See in Закон за агенциите за привремени вработувања, член 15. 127 General conditions for the provision of temporary workers of the temporary work agency ‘Partner’, Skopje, 2012, p 18. 128  See in Закон за агенциите за привремени вработувања, член 16, став 4, алинеа 1. 123  124 

306  Todor Kalamatiev and Aleksandar Ristovski E.  Relationship between Temporary Work Agency and User Undertaking According to the Law on Temporary Work Agencies, a legal basis for ­hiring out a temporary agency worker to perform temporary work is the contract for hiring out workers (договор за отстапување на работник на работодавачот корисник), concluded between the temporary work agency and the user undertaking.129 The contract for hiring out workers is actually a civil, ie commercial, contract obligating the agency to hire out one or more workers to the user undertaking for the performance of a temporary assignment under its supervision and direction, while the user undertaking is required to pay an adequate fee to the agency for the services provided.130 It is a formal contract (it is mandatory to conclude it in writing),131 and following its conclusion, the agency shall be required to submit a copy of every contract concluded to hire out a worker to a user undertaking to the Labour Inspectorate and to the Employment Service Agency of the Republic of North Macedonia within a period of five days from the day of conclusion of the contract.132 The obligations that arise from concluding the contract for hiring out a worker must be adhered by (pacta sunt servanda), because their application is also reflected in the temporary work agency employment contracts and thus bear on the legal position of the hired out agency worker as well. In this respect, the court practice in the Republic of North ­Macedonia can be described as at least ‘reserved’ in relation to the early termination of contracts for hiring out workers by the user undertakings.133 The conclusion of the contract for hiring out workers is preceded by several measures deriving from the relationship between the temporary work agency and the user undertaking. In practice, an initial measure in the relationship between the parties is the notification by the user undertaking of the intention to hire a temporary agency worker, which is usually submitted

Закон за агенциите за привремени вработувања, член 11, став 1. In addition to this contract, the contracting parties usually also conclude a general (principal) cooperation contract in practice, by which the temporary work agency shall be bound to provide temporary workers to the user undertaking whenever such a need arises. 131  Закон за агенциите за привремени вработувања, член 11, став 2. 132  Закон за агенциите за привремени вработувања, член 12, став 3. 133  The plaintiff (a temporary work agency) and the defendant (a user undertaking from the public sector) had concluded a contract for hiring out workers according to which the plaintiff was to hire out seven workers to the defendant for the performance of precisely defined activities for a period of one year, on the basis of which, later on, the plaintiff concluded seven individual employment contracts with the hired out workers. The defendant terminated the contract for hiring out workers ahead of time (before the expiration of the contract) referring to his right to early termination of contracts due to changed circumstances (Art 122 of the Law on Obligations of the Republic of Macedonia, Official Gazette no18/2001). The defendant based his allegations for the early termination of the contract for hiring out workers on the fact that there were no financial resources provided by the Budget of the Republic of Macedonia aimed at financing temporary employment, eg due to the lack of approval from the Ministry of Finance. On appeal, the Court of Appeal in Skopje by Decision ТСЖ.бр.-553/11 of 129  130 

The Position in the Republic of North Macedonia  307 in the form of a request for hiring a temporary worker.134 The agency must recruit individuals who have registered as a potential temporary agency worker, informing them about their status as potential employment candidates. Following a request by the user undertaking to hire temporary workers, the agency carries out the selection of potential employment ­ candidates for an interview at the user undertaking. The user undertaking chooses among the interviewed workers. The temporary work agency shall provide temporary employment services by charging the user undertaking a service fee.135 The Law prohibits the agency from charging the temporary agency worker a service fee for the temporary employment at another user undertaking.136 In practice, the amount of the fee that the agency will charge the user undertaking depends on the number of temporarily hired out workers; the duration of the employment contract; whether the agency has been exposed to costs related to additional training of the workers, etc.137 In addition, the fee is normally paid as a percentage of the gross salary.138 The legislator envisaged certain justified restrictions that are applicable when concluding a contract for hiring out workers between the temporary work agency and the user undertaking. The working activities for which a temporary agency worker can be hired out to a user undertaking are of a ‘temporary nature’, and they are stipulated in the Law on Temporary Work Agencies in an exhaustive and ‘numerus clausus’ manner. In this regard, a contract for hiring out workers may be concluded in the event of: replacement of a temporarily absent employee; a temporary increase in the workload; a seasonal job; work on a project; specific non-continuous work that is not part of the predominant business activity of the user undertaking; and unpredictable short-term activities deriving from performing the predominant business activity of the user undertaking.139 The legislator indirectly establishes certain objective grounds for the commencement of an employment relationship between the agency and the worker, and 15 September 2011, upheld the Decision of the Basic Court that the defendant had unlawfully terminated the contract due to changed circumstances, stating that at the time of conclusion of the contract, he was required to consider those circumstances or avoid and overcome them in a timely manner. Additionally, the Court of Appeal upheld the Basic Court’s decision by which the defendant was ordered to pay the invoiced debt to the plaintiff for the use of the temporary agency worker. 134 General conditions for the provision of temporary workers of the temporary work agency ‘Partner’, Skopje, 2012, p 18. 135  See in Закон за агенциите за привремени вработувања, член 8, став 1. 136  See in Закон за агенциите за привремени вработувања, член 8, став 2. 137 General conditions for the provision of temporary workers of the Temporary Work Agency ‘Partner’, Skopje, 2012, p 22. 138  Eg, for up to 10 hired workers, the agency’s provision amounts to 10% of the agreed gross salary; for up to 20 hired workers, the agency’s provision amounts to 8% of the agreed gross salary; for up to 30 hired workers, the agency’s provision amounts to 7% of the agreed gross salary, etc. 139  See in Закон за агенциите за привремени вработувања, член 4, став 1.

308  Todor Kalamatiev and Aleksandar Ristovski objective reasons for the hiring out of the worker at the user undertaking. The Law sets forth a maximum period for the hiring out of workers at the user undertaking: for the performance of the same activities as long as the need exists, but no longer than one year.140 The agency may not hire out a worker to perform the same work activity at the same user undertaking with or without ­interruption for more than a year.141 In practice, the statutory limitations deriving from the legal regime of temporary agency work are hardly respected. The temporary work agencies and user undertakings do not always take into account the ‘objective reasons’ that de jure limit their legal space for concluding contracts for hiring out workers. An even more apparent ‘circumvention’ of the legislation occurs when an illegal and fictional ‘change’ of the job position occupied by the hired temporary agency worker takes place following the expiration of the maximum term of one year, which limits him/her from being hired at the user undertaking for the performance of the ‘same’ work activities. All legal provisions relating to the justified limitations when concluding contracts for hiring out workers are supplemented by two additional provisions. The contract for hiring out workers, inter alia, cannot be concluded if the user undertaking requires temporary agency workers to work on the same tasks that were performed by other workers who were dismissed for business reasons, during the previous six months. Finally, the contract for hiring out workers also cannot be concluded for the purpose of further transferral of the worker to another temporary work agency, or from one user undertaking to another.142 F.  Rights and Status of Temporary Agency Worker (i)  Equal Treatment De jure, the temporary agency worker enjoys equal treatment in terms of the ‘basic conditions of work and employment’ with workers who perform the same work activities and are directly employed by the user undertaking.143 By ‘basic conditions of work and employment’, the Law on Temporary Work Agencies subsumes the conditions determined by Laws and other regulations, collective agreements and internal acts of the user undertaking, referring to the duration of the working hours, overtime work, breaks, rest periods, night work, holidays and allowances.144 Formally and legally, the hired out agency worker shall be entitled to equal treatment in terms of pay

See in Закон за агенциите за привремени вработувања, член 4, став 3. Закон за агенциите за привремени вработувања, член 4, став 4. 142  Закон за агенциите за привремени вработувања, член 11, став 4, алинеа 2 и 3. 143  See in Закон за агенциите за привремени вработувања, член 3-б, став 1. 144  Закон за агенциите за привремени вработувања, член 3-а, став 1, точка 7. 140  141 

The Position in the Republic of North Macedonia  309 as well. In this regard, the Law stipulates that the salary of the hired out worker cannot be lower than the salary of the employee working for the user undertaking in the same job, and if there is no such employee, the salary of an employee in a similar job within the same business activity.145 The equal treatment of temporary agency workers with regard to salaries shall not only apply to the ‘basic salary’, but to the other components of remuneration (such as the part of the salary for job performance and job-related allowances) as well as other allowances for work-related costs. Additionally, the Law on Temporary Work Agencies prohibits discrimination in employment on grounds of race, colour, gender, age, health condition, disability, religious, political or other belief, membership of unions, national or social origin, family status, property status, sexual orientation, or other personal circumstances.146 Despite the general principle of equal treatment and prohibition of discrimination, the rights of the temporary agency worker in the Republic of North Macedonia are subject to frequent abuse for business reasons. Such abuses are evident, especially in relation to the payment for their work. Very often, temporary agency workers receive lower net salaries compared to employees directly employed by the user undertaking, and the temporary work agencies pay the salaries and compulsory social insurance contributions for the hired out workers late. Temporary agency workers also face a situation of multiannual engagement at the same user undertaking without being employed on a direct and permanent basis by that employer. Under such circumstances, they encounter many difficulties in applying for loans and mortgages or getting a visa to visit a foreign country. (ii)  Other Matters Macedonian labour legislation does not make other provisions for temporary agency workers that can be treated as supplementary rights. G. Information and Consultation/Representation of Temporary Agency Worker According to the Law on Temporary Work Agencies, the temporary agency worker shall have the right to be represented in the bodies that represent the workers employed at the user undertaking in the same manner as if s/he were directly employed by the employer for the same period.147 It means that s/he could de jure be represented by both the representative bodies

Закон за агенциите за привремени вработувања, член 14. See in Закон за агенциите за привремени вработувања, член 3-б, став 3. 147  Закон за агенциите за привремени вработувања, член 3-ѓ. 145  146 

310  Todor Kalamatiev and Aleksandar Ristovski (ie trade unions) at the user undertakings or the temporary work agency, but is not de facto represented by either of them. User undertakings, in turn, do not have any specific obligations to inform employee representatives about the number or share of temporary agency workers who are temporarily employed by them. H. Strikes Formally and legally, based on the principle of equal treatment, temporary agency workers are entitled to collective employment rights as are the ­workers directly employed by the user undertaking. As an addendum to the overall exercise of the right to strike, the Law on Temporary Work Agencies prohibits the conclusion of contracts for hiring out workers between the agency and the user undertaking with the purpose of replacing an employee at the user undertaking during a strike.148 If the agency provides temporary employment to an employee contrary to the prohibition on employment to replace an employee during a strike, it will be held responsible and required to pay a fine in the amount of EUR 3,000.149 I. Collective Bargaining Agreements Deviating from Statutory Provisions The Macedonian labour law system is not an adequate legal framework for enabling the practical implementation of social dialogue and collective bargaining in the field of temporary agency work. This is attributable to the very nature of this atypical form of employment and the presumption that temporary work agencies (which in the Republic of North Macedonia are organised by a national federation of temporary work agencies with a status of social partner) do not have a proper social partner on the other side, ie on the side of the temporary agency worker. In the Macedonian labour law system, there is no legal obstacle to trade union association and organisation of temporary agency workers, and there is no such obstacle to the application of the relevant general, special or individual collective agreements for these workers in terms of sector, branch, ie department or employer they are hired out to.

148  149 

See in Закон за агенциите за привремени вработувања, член 11, став 4, алинеа 1. See in Закон за агенциите за привремени вработувања, член 18, став 1, точка 5.

12 Atypical Employment Relationships: The Position in Germany BERND WAAS

I. INTRODUCTION

I

N GERMANY, FIXED-TERM and part-time work are regulated in the Fixed-term and Part-time Contracts Act (Teilzeit- und Befristungsgesetz, TzBfG).1 Temporary agency work is regulated in the Act on Temporary Agency Work (Arbeitnehmerüberlassungsgesetz, AÜG). The case law of the courts is highly relevant, however. II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements Section 3(1) TzBfG contains a legal definition of fixed-term employment.2 According to section 3(1) sentence 1 TzBfG, a person works under a ­fixed-term contract if the duration of the contract is limited. According to section 3(1) sentence 2 TzBfG, the duration of the contract is limited if either the term is fixed according to the calendar (employment contract with a term fixed according to the calendar)3 or the term is dependent on the nature, purpose, or quality of the work to be provided (employment contract with a term limited by purpose).4 In addition to that, section 21 TzBfG states that an employment contract can be concluded under a condition subsequent

1 The Act was recently amended by the so-called Bridge Part-Time Introductory Act (Brückenteilzeit-Einführungsgesetz) of 11 December 2018, Federal Gazette I, p. 2384. 2 Cf also B Waas, in R Blanpain/H Nakakubo/T Araki (eds), Regulation of Fixed-Term Employment Contracts (Alphen aan den Rijn, Kluwer Law, 2010) p 23 et seq. 3 So-called Zeitbefristung. 4 So-called Zweckbefristung. Seasonal workers, for instance, fall into the former category; see Federal Labour Court (Bundesarbeitsgericht) judgment of 2 October 1967—3 AZR 467/66.

312  Bernd Waas (if the contract is dependent on an uncertain event),5 in which case the restrictions on fixed-term employment must essentially be applied as well.6 According to section 14(4) TzBfG, the agreement on a fixed-term employment contract must be concluded in writing.7 This provision serves the purpose of providing legal certainty, making proof of the existence of a fixed-term contract easier, and cautioning the parties about the use of fixed-term contracts.8 The original draft of the Act stipulated that ­employers should inform their employees of the reason for concluding a fixed-term contract. This, however, was later modified as it was deemed that this was asking too much of employers.9 Section 14(4) TzBfG is rigidly applied by the courts. If, for instance, the parties orally agree on a fixed-term contract, the agreement will be deemed null and void, even if the parties put it in writing soon thereafter.10 If the fixed-term employment contract is void because it was not concluded in writing, it is presumed to have been concluded for an indefinite period, with the standard regulations on terminations applying to the employer (section 16 sentences 1 and 2 TzBfG). B.  Lawful Stipulation of the Contractual Terms Under section 14(1) sentence 1 TzBfG, the term of an employment contract can, in principle, only be fixed if the contract’s term is justified on objective grounds.11 According to section 14(1) sentence 2, an objective ground

5  Cf section 158(2) of the Civil Code (Bürgerliches Gesetzbuch, BGB): ‘If a legal transaction is entered into subject to a condition subsequent, the effect of the legal transaction ends when the condition is satisfied; at this moment, the previous legal situation is restored’. While a condition subsequent depends on an uncertain event, the term of a contract is considered fixed if the occurrence of the future event is certain (even if the date of its occurrence is uncertain); cf for instance, Federal Labour Court judgment of 15 May 2012—7 AZR 35/11. 6  Cf., for instance, Federal Labour Court, judgment of 21 November 2018—7 AZR 394/17 (termination of a pilot´s employment in the event of a determination and notification of unfitness to fly). 7  The provision is restricted to the agreement on the fixing of the term, whereas the ­contract as such can be concluded orally; cf Federal Labour Court judgment of 23 June 2004—7 AZR 636/03; 26 July 2006—7 AZR 515/05. 8  Federal Labour Court judgment of 23 June 2004—7 AZR 636/03. With regard to the contract as such, the provisions of the Act on Proof of Substantial Conditions Applicable to the Employment Relationship (Nachweisgesetz), which require a written statement, must, however, be adhered to. According to section 2(1) sentence 1 and sentence 2 No 3 of that Act, the employer must inform the employee about the prospective duration of the contract within one month of the contract’s commencement date. 9 Cf R Müller-Glöge in Erfurter Kommentar zum Arbeitsrecht, 19th edn (Munich, CH Beck, 2019), § 14 TzBfG para 20. 10 Federal Labour Court judgment of 16 April 2008—7 AZR 1048/06, judgment of 7 October 2015—7 AZR 40/14, judgment of 14 December 2016—7 AZR 142/15 and judgment of 15 February 2017—7 AZR 223/15. 11 Though the wording of section 14(1) sentence 1 TzBfG may suggest otherwise, the provision applies not only to situations in which the contract is fixed from the start but also to

Atypical Employment Relationships: The Position in Germany 313 exists ‘in particular’ if: the need for specific manpower is only temporary (No 1); a fixed term makes it easier for an apprentice or post-graduate to get subsequent employment (No 2); a worker is employed to temporarily replace another worker (No 3); the nature of work justifies the fixing of the term (No 4); the fixing of the term serves the purpose of testing the worker (No 5); grounds related to the person of the worker justify the ­fixing of the term (No 6); the worker is remunerated from state budget funds, and these funds are earmarked for fixed-term employment only under the respective budget rules and the worker is employed accordingly (No 7); and the fixing of the term is based on an amicable settlement before a court (No 8). Until 2000, fixed-term employment contracts were only governed by section 620 of the BGB, according to which an employment contract ends when the period prescribed by the parties to the contract has come to an end. Though the wording of this provision does not suggest any restriction of the power of the parties to fix the term of the contract, the courts quickly began developing limitations. In this case law, the courts were able to build on judgments handed down much earlier. Already in the year 1932, the Reich Labour Court (Reichsarbeitsgericht) ruled that a chain of employment contracts was invalid if the employer, by choosing this particular contractual arrangement, sought to evade the legal restrictions that existed under dismissal law.12 Accordingly, when the Act on Dismissal Protection (Kündigungsschutzgesetz—KSchG) was enacted in 1952, the legislator realised that the Act was not—or at least not directly—applicable to fixed-term contracts because such contracts reach their end automatically13 and consequently do not require the employer to give notice. At that time, a deliberate decision was taken by the legislator to leave the task of closing that possible loophole in the legal protection of workers to the courts.14 A solution was found in 1960 with a groundbreaking ruling of the Great Senate of the Federal Labour Court (Bundesarbeitsgericht).15 According to this judgment, a fixed-term contract can only be legally valid if the fixing of the term does not amount to what in German legal methodology is called an ‘objective evasion’ of the law (‘objektive Gesetzesumgehung’). Under the doctrine of ‘objective evasion’, a legal arrangement is ineffective if it confounds the purpose of a statutory provision and must be assessed as an abuse of rights. According to the Court, the fixing of the term of an employment contract amounts to an ‘objective abuse’ of freedom of contract if no objective ground exists for this s­ ituations in which the term of a contract that was initially intended to be of unlimited duration is fixed on a later date; see R Müller-Glöge in Erfurter Kommentar zum Arbeitsrecht, 19th edn (Munich, CH Beck, 2019), § 14 TzBfG No 13. 12 

Reichsarbeitsgericht judgment of 2 July 1932—ARS 16, 66. Explicitly stated in section 15(1) TzBfG. 14  See Federal Parliament, Printing Matter 1951, 2090. 15 Federal Labour Court (Great Senate) judgment of 12 October 1960—Gr Senat 1/59 (3 AZR 65/56). 13 

314  Bernd Waas particular contractual arrangement. On the basis of what was considered an ‘intrinsic further development of law’ (gesetzesimmanente Rechtsfortbildung), possible objective grounds were eventually carved out by the Court. With section 14(1) TzBfG, the legislator accepted the objective grounds that were developed by the courts and transposed them into the statute. Section 14(1) sentence 2 TzBfG lists examples but does not provide an exhaustive list of possible objective grounds.16 However, finding any additional grounds that may justify the conclusion of a fixed-term employment contract, has proved difficult. In any event, such grounds must carry the same weight as the grounds expressly mentioned in the Act.17 The requirement of the existence of an objective ground applies to employment contracts fixed according to the calendar as well as to those with a term limited by purpose. As regards the former, the duration of the contract does not play a role. Even if a contract of employment is concluded for a single day only, an objective ground for it must exist.18 In fact, the requirement of the existence of an objective ground applies to every type of employment contract. Specifically, the fixing of the term of a contract concluded between an employer and a managing employee (leitender ­Angestellter)19 requires the existence of an objective ground as well. Finally, this requirement applies irrespective of whether an employee can claim protection under the Act on Dismissal Protection (Kündigungsschutzgesetz, KSchG). While it is true that the original rationale of restricting the use of fixed-term contracts was to ensure that dismissal protection could not be circumvented by simply fixing the term of a contract, the legislator in fact decoupled judicial control of fixed-term contracts from the requirements of dismissal protection when enacting the TzBfG. Since then, the restrictions on the fixing of terms apply, irrespective of whether or not a worker can claim statutory dismissal protection.20 The requirement of the existence of an objective ground applies to the fixing of the term per se, whereas it does not apply to the intended duration of the contract. While the fixing of a contract must be justified by the existence of an objective ground, it is not necessary to examine whether that objective ground necessitates the contract to be of a specific duration.21

16 

This is indicated by the use of the words ‘in particular’. See Federal Labour Court judgment of 11 September 2013—7 AZR 107/12. 18  Federal Labour Court judgment of 16 April 2003—7 AZR 187/02 (regarding contracts concluded for a single day, each under a ‘framework agreement’ between the parties). 19  See section 14(2) of the Act on Dismissal Protection, which provides a definition. 20  In particular, the TzBfG applies even if the employee has not been employed in the establishment or company for more than six months, and hence does not yet enjoy dismissal protection according to section 1(1) KSchG; cf Federal Labour Court judgment of 6 November 2003—2 AZR 690/02 (‘paradigm shift’). 21  A specific duration may indicate that an objective ground for the fixing of a contract’s term did not ‘truly’ exist; see Federal Labour Court judgment of 26 August 1988—7 AZR 101/88. 17 

Atypical Employment Relationships: The Position in Germany 315 The objective ground and the duration of the contract do not, in other words, need to correspond in the sense that the moment at which the contract ends must be identical with the moment the objective ground will presumably cease to exist.22 An objective ground within the meaning of the law must exist at the time the term of the contract is fixed. It does not matter if that particular ground ceases to exist thereafter.23 Section 14(1) TzBfG requires the existence of an objective ground according to the underlying facts.24 With regard to employment contracts with a term limited by purpose, on the other hand, it is necessary to inform the employee of the objective ground, as the content of the agreement on the fixing of the term would otherwise be uncertain.25 One of the most important possible objective grounds is the need for certain manpower to be only temporary (No 1). In this case, the existence of the objective ground depends on a projection of the employer according to which it is sufficiently likely that the presently existing need for certain manpower will cease to exist in the future.26 The employer must be able to demonstrate that the projection is based on facts; s/he cannot simply assert uncertainty about future business developments.27 Specifically, an employer cannot fix the term of a contract because s/he is concerned about the business’ future economic developments that s/he cannot influence.28 A clear case for applying section 14(1) sentence 2 No 1 TzBfG is if the employer intends to close down an establishment in the future and a worker is only temporarily needed to maintain operations until the intended point of closure.29 Concluding fixed-term employment contracts is lawful if the temporary need for manpower is associated with a specific project and the employee is hired for the duration of that project.30 In that case, the expectation at the time of conclusion of the contract must be that the tasks to be carried out within the framework of the project will not be permanent.31 22 

Federal Labour Court judgment of 27 July 2016—7 AZR 545/14. See Federal Labour Court judgment of 29 June 2011—7 AZR 6/10. 24  It is not required for the objective ground to form an explicit part of the contract; nor is it required for the objective ground to have been part of the parties’ deliberations leading to the conclusion of the contract. Similarly, in principle, it is not required for the employer to (expressly) communicate the objective ground to the worker. See Federal Labour Court judgment of 26 July 2000—7 AZR 51/99; judgment of 15 August 2001—7 AZR 263/00. 25 See R Müller-Glöge in Erfurter Kommentar zum Arbeitsrecht, 19th edn 20169, § 14 TzBfG para 21. 26  Federal Labour Court judgment of 15 May 2012—7 AZR 35/11. 27  Federal Labour Court judgment of 4 December 2013—7 AZR 277/12. 28  Federal Labour Court judgment of 25 November 1992—7 AZR 191/92. 29  Federal Labour Court judgment of 30 October 2008—8 AZR 855/07. 30  Federal Labour Court judgment of 24 September 2014—7 AZR 987/12. The tasks to be performed may well exceed the duration of the contract since the employer is free to decide whether s/he wants to cover, in full or in part, the period of his/her additional needs. From the contract period, however, it must not appear that the material reason actually does not exist or is merely an excuse; see Federal Labour Court judgment of 14 December 2016—7 AZR 688/14. 31  Federal Labour Court judgment of 27 July 2016—7 AZR 545/14. 23 

316  Bernd Waas The objective ground stipulated in section 14(1) sentence 2 No 3 TzBfG is highly relevant in practice. If a worker cannot perform his/her duties because s/he is sick or on leave and is substituted by another worker, the contract of the latter can, in principle, be fixed to ‘bridge the gap’ until the substituted employee returns to work.32 As is the case with ‘temporary need for manpower’, the employer must make a sound and comprehensive projection of how long the fixed-term worker will be needed.33 This projection reflects the point in time when the need for replacement ceases due to the substituted worker’s return. It does not, however, extend to the exact time of return.34 An employer may assume offhand that a worker who is being replaced by another worker will (sooner or later) return to work.35 If the employer entertains serious doubts about the substituted employee’s return based on information available to him/her, the fixing of the term for replacement will be unjustified.36 The requirements of section 14(1) sentence 2 No 3 TzBfG are met if a causal link exists between the need to hire a replacement and the conclusion of the fixed-term contract. In the courts’ view, such a causal link exists in three cases: (1) if the hired employee performs the same work duties (so-called direct substitution); (2) if the hired worker performs the work duties of a worker who is substituting for another (so-called indirect substitution);37 and finally, (3) if the hired worker performs work tasks which the employer could have assigned to another worker, who does not usually perform these tasks.38 In the latter case, however, the employer must clearly specify the work tasks assigned to the substitute employee when concluding the fixed-term contract, for instance, by stating this allocation of tasks in the contract.39 By acknowledging that the requirements of section 14(1) sentence 2 No 3 TzBfG are also met in the third case, the courts recognise that the employer is free to reorganise the work and to reallocate the

32  Section 14(1) sentence 2 No 3 TzBfG is considered to be in line with EU law; see, in ­ articular, ECJ judgment of 26 January 2012—Case C-586/10 (Bianca Kücük v Land Nordrheinp Westfalen) ECLI:EU:C:2012:39; 26 November 2014—Joined Cases C-22/13, C-61/13, C-62/13, C-63/13, C-418/13 (Raffaella Mascolo and Others v Ministero dell’Istruzione, dell’Università e della Ricerca and Comune di Napoli) ECLI:EU:C:2014:2401; 14 September 2016—Case C-16/15 (María Elena Pérez López v Servicio Madrileño de Salud) ECLI:EU:C:2016:679. 33  Federal Labour Court judgment of 24 August 2016—7 AZR 41/15; 12 April 2017—7 AZR 436/15. 34  Federal Labour Court judgment of 2 July 2003—7 AZR 529/02. 35  Specifically, there is no need for the employer to interrogate the worker to be replaced; see Federal Labour Court judgment of 4 June 2003—7 AZR 523/02. 36  Federal Labour Court judgment of 2 July 2003—7 AZR 529/02. 37  Federal Labour Court judgment of 24 August 2016—7 AZR 41/15; 26 October 2016—7 AZR 135/15. 38  Federal Labour Court judgment of 24 August 2016—7 AZR 41/15. 39 Federal Labour Court judgment of 11 February 2015—7 AZR 113/13; judgment of 10 October 2012—7 AZR 462/11, where the Court explicitly claims that its position is in conformity with EU law.

Atypical Employment Relationships: The Position in Germany 317 necessary tasks.40 The number of fixed-term contracts with a single employee is in principle not limited as long as the requirements of section 14(1) ­sentence 2 No 2 TzBfG are met.41 The objective ground of the ‘nature of work’ (No 4) is not straightforward. In essence, section 14(1) sentence 2 No 4 TzBfG covers so-called ‘issues of attrition’. ‘Attrition’ within this meaning refers, in particular, to situations in which an extraordinary weakening of the capacities of a worker in his/ her job occurs. Employment contracts with artists are illustrative in this regard: because there is a need for change in this area—the audience wants to see ‘fresh faces’ every now and then—and because there is a corresponding need on the part of the employer to enjoy some flexibility, there must be some room for fixing the terms with artists. In general, section 14(1) sentence 2 No 4 TzBfG may apply if the employer can refer to constitutionally protected rights and, in particular, to freedom of expression, arts42 and sciences as guaranteed by Article 5(1) of the German Constitution.43 It should be noted, however, that the courts are increasingly reluctant to apply section 14(1) sentence 2 No 4 TzBfG outside this area.44 According to section 14(1) sentence 2 No 5, a term can be fixed if it serves the purpose of testing the worker. With regard to this objective ground, it is important to note that in case of any doubt, it is assumed that the employment contract entered by two parties is of unlimited duration (with a specific

40  In court proceedings, the employer must substantiate how the workload was distributed between different workers and, in particular, that the allocation of work to be performed by the fixed-term worker was because the work tasks had to be redefined. See, for instance, Federal Labour Court judgment of 15 February 2006—7 AZR 232/05. 41  However, following the judgment of the ECJ in Kücük, the courts now hold the view that an extraordinarily high number of successive employment contracts (and/or a very long total duration of employment under such contracts) may indicate an abuse of rights by the employer. See, in particular, Federal Labour Court judgment of 18 July 2012—7 AZR 443/09 (following the Kücük-decision); judgment of 18 July 2012—7 AZR 783/10; judgment of 13 February 2013—7 AZR 225/11 (concerning section 14(1) sentence 2 No 3); judgment of 24 September 2014—7 AZR 987/12 (concerning section 14(1) sentence 2 No 1); judgment of 29 April 2015—7 AZR 310/13. Critical, for instance, Schwarze, ‘Der Missbrauchstatbestand bei der befristungsrechtlichen Missbrauchskontrolle’ in RdA 2017, p 302; cf also below, II.E. 42  Cf recently, Federal Labour Court judgment of 30 August 2017—7 AZR 864/15 (contract with actor in a television series; judgment of 13 December 2017—7 AZR 369/16 (contract with make-up artist). 43 Broadcasters, for instance, enjoy some room for manoeuvre as far as employees are concerned who influence the content of programmes; see in this regard, for instance, Federal Labour Court judgment of 8 November 2006—5 AZR 706/05. 44  For instance, it has become very questionable to what extent section 14(1) sentence 2 No 4 justifies the fixing of terms in contracts with professional football players. See Federal Labour Court judgment of 16 January 2018—7 AZR 312/16. Cf also Boemke/Jäger, ‘Befristung wegen Eigenart der Arbeitsleistung—unter besonderer Berücksichtigung des Profisports’ in RdA 2017, p 20.

318  Bernd Waas period of notice applying),45 whereas the fixing of a term for the purpose of ‘testing an employee’ within the meaning of section 14(1) sentence 2 No 5 TzBfG must be explicitly and clearly agreed upon by both parties.46 In other words, there is a presumption that no fixed-term contract with the purpose of testing the worker has been concluded, unless the parties to the contract clearly provide otherwise. If a fixed-term contract is concluded, however, the parties are not entirely free to determine the contract’s duration. The term of the contract may usually not exceed six months.47 Section 14(1) sentence 2 No 6 TzBfG allows for the term of an employment contract to be fixed on grounds related to the person of the worker.48 A worker’s specific wish to conclude a fixed-term contract may justify the fixing of the term only if the facts of the individual case—generalisations are not permissible49—clearly indicate that the worker has a specific interest in working under a fixed-term contract.50 If a worker is remunerated from budget funds and these funds are—clearly and recognisably51—earmarked for fixed-term employment only, a fixing of the term may be permissible.52 In the recent past, it has become increasingly doubtful whether section 14(1) sentence 2 No. 7 TzBfG is in line with European law,53 because the admissibility of concluding a fixed-term 45  If the contract is of unlimited duration, each party can in principle terminate the contract as it deems fit. According to s. 622(3) BGB the relevant period of notice is two weeks if the probation period does not exceed six months. 46  Federal Labour Court judgment of 30 September 1981—7 AZR 789/78. 47  See Federal Labour Court judgment of 2 June 2010—7 AZR 85/09. This period is derived from both section 622(3) BGB and section 1(1) sentence 1 KSchG. 48  According to case law, age limits also fall within the area of application of section 14(1) sentence 2 No. 6 if they are not discriminatory; see, for instance, Federal Labour Court judgment of 12 June 2013—7 AZR 917/11. See also section 41 sentence 2 Social Code VI which states that an agreement providing for the termination of an employee’s employment without termination at a time when the employee can apply for an old-age pension before reaching the standard retirement age shall be deemed effective at the statutory retirement age, unless the agreement has been concluded within three years from that date or has been confirmed by the employee within the last three years prior to that date’. With regard to EU law, cf ECJ judgment of 28 February 2018—Case C-46/17 (John v Freie Hansestadt Bremen) ECLI:EU:C:2018:131; Federal Labour Court, judgment of 19 December 2018—7 AZR 70/17. 49 For instance, there is no general rule in the view of the Court that moonlighting students would prefer fixed-term contracts over an unlimited term; cf also Federal Labour Court judgment of 10 August 1994—7 AZR 695/93. 50  This may, for instance, be the case if the corresponding viewpoint of the worker is influenced by obligations towards family members. If a contract can be concluded for both a fixed and an unlimited term, the test to be applied is whether the worker would have voluntarily chosen the former. See Federal Labour Court judgment of 19 January 2005—7 AZR 115/04. See also Federal Labour Court judgment of 11 February 2015—7 AZR 17/13 (fixed-term contract with retiree) and judgment of 18 January 2017—7 AZR 236/15. 51  See, in this regard, Federal Labour Court judgment of 2 September 2009—7 AZR 162/08. 52  The courts have determined that the budget must be based on a legislative act and that the person setting the budget and the employer may not be identical. See Federal Labour Court judgment of 9 March 2011—7 AZR 728/09. 53  See Federal Labour Court judgment of 27 October 2010—7 AZR 485/09 (A): Application for a preliminary ruling by the ECJ. However, underlying proceedings were completed

Atypical Employment Relationships: The Position in Germany 319 contract is ultimately left to the lawmaker who sets the corresponding ­budgetary rules.54 Section 14(2) TzBfG contains an exception to the principle enshrined in section 14(1) according to which the fixing of a term requires an objective ground. Under section 14(2) sentence 1 TzBfG, the fixing of a term according to the calendar is admissible without the existence of objective grounds, if the duration of the contract does not exceed two years. Within this period, a contract may at most be extended three times.55 Section 14(2) sentence 2 TzBfG enshrines the so-called ‘prohibition of linking up’ (Anschlussverbot). According to a grammatical interpretation of this provision, the fixing of the term of a contract without the existence of objective grounds is not admissible if an employment contract had existed between the two parties in the past. However, the Federal Labour Court limited the application of this provision to contracts that were concluded three years ago or less.56 In the view of the Court, holding otherwise would breach the employees’ freedom of profession as enshrined in Article 12 of the German Constitution, since employers would face unreasonable obstacles in offering former employees employment. Many State Labour Courts expressed dissent to this approach.57 In the context of a constitutional review, the Federal Constitutional Court decided that the restriction of section 14(1) sentence 2 TzBfG made by the Federal Labour Court was incompatible with the Constitution and that the Court had exceeded the limits of permissible further development of law. According to the Federal Constitutional Court, the courts must not ignore the clearly discernible will of the legislature and replace it with their own regulatory model.58 Section 14(2) sentence 2 TzBfG requires the prior existence of a contract of employment.59 It further requires the partners to the contract to be identical (on the part of the employer). The provision is directed at the partner to the

before the ECJ issued its decision. See also Federal Labour Court judgment of 13 February 2013—7 AZR 225/11 (question left open). 54 

Federal Labour Court judgment of 28 September 2016—7 AZR 549/14. In the view of the Federal Labour Court, this is in line with EU law and in particular with Article 30 of the Charter of Fundamental Rights of the EU. See Federal Labour Court judgment of 22 January 2014—7 AZR 243/12. See also Federal Labour Court judgment of 9 September 2015—7 AZR 190/14 according to which neither national law nor EU law requires a limitation of the application of this provision to private employers. 56 Federal Labour Court judgment of 6 April 2011—7 AZR 716/09. This decision was somewhat surprising as the Court had previously explicitly rejected the notion of limiting the scope of application of this provision by way of a ‘teleological reduction’ (teleologische Reduktion); see Federal Labour Court judgment of 6 November 2003—2 AZR 690/02. 57  See, for instance, State Labour Court Kiel judgment of 27 July 2017—4 Sa 221/16; State Labour Court Hannover judgment of 20 July 2017—6 Sa 1125/16. 58  Federal Constitutional Court of 6 June 2018—1 BvL 7/14 and 1 BvR 1375/14; see also Federal Labour Court, judgment of 23 January 2019—7 AZR 733/16. 59 A contract as a ‘homeworker’ within the meaning of the Homeworking Act (­Heimarbeitsgesetz) is not sufficient; Federal Labour Court judgment of 24 August 2016—7 AZR 625/15. 55 

320  Bernd Waas contract; it is not directed at the post occupied by the employee.60 It may happen, however, that by applying the principle of good faith, courts will arrive at the conclusion that an employer unlawfully evaded section 14(2) sentence 2 TzBfG.61 A fixed-term employment contract can be concluded when the r­ equirements specified in section 14(2) sentence 1 TzBfG are objectively met.62 There is no additional need for the parties to the contract to expressly agree on concluding a fixed-term contract that is not based on an objective ground.63 As a consequence, section 14(2) sentence 1 TzBfG may, for instance, apply if the parties make reference in the agreement to a ground included in the list provided in section 14(1) sentence 2, but which in fact does not exist ‘upon closer legal examination’. In that sense, section 14(2) sentence 1 TzBfG has a ‘backup function’.64 A fixed-term contract may be extended at most three times within a period of two years. It should be noted that an ‘extension’ within this meaning only exists if the respective agreement was reached before the end of the initial contract. An agreement reached after that point does not qualify as an ‘extension’ and is deemed a conclusion of a new contract.65 Moreover, the courts principally reject the possibility of the existence of an ­‘extension’ of the fixed-term contract if the parties—apart from fixing the term of the contract—also agree on an amendment of certain pre-existing terms and conditions.66 To qualify as an ‘extension’, the contract’s terms and conditions may not be altered. Another exception to the principle laid down in section 14(1) TzBfG applies to newly established companies. According to section 14(2a) sentence 1 TzBfG, it is admissible to fix the term of a contract in accordance with the calendar, without the existence of objective grounds, for up to a period

60  See Federal Labour Court judgment of 22 January 2014—7 AZR 243/12; judgment of 19 March 2014—7 AZR 527/12, noting conformity with EU law, but also stressing the importance of examining whether an abuse of rights occurred in an individual case. 61 Federal Labour Court judgment of 9 March 2011—7 AZR 657/09; judgment of 22 J­anuary 2014—7 AZR 243/12. Specifically, an employer is prevented from claiming that the term of a contract was lawfully fixed if s/he—in concert with another employer—concluded subsequent fixed-term contracts with the sole purpose of circumventing the ‘prohibition of linking up’. As a result, the partner to the contract who did not act in good faith is prevented from claiming that the contract was in effect fixed. See Federal Labour Court judgment of 24 June 2015—7 AZR 452/13. 62  Federal Labour Court judgment of 29 June 2011—7 AZR 774/09. 63  See, for instance, Federal Labour Court judgment of 12 August 2009—7 AZR 270/08. 64  Federal Labour Court judgment of 15 January 2003—7 AZR 534/02. By mentioning a specific ground, the parties may have sought to contractually dispose of the possibility of fixing the term without the existence of an objective ground. 65  Federal Labour Court judgment of 20 February 2008—7 AZR 786/06. 66  Federal Labour Court judgment of 20 February 2008—7 AZR 786/06 (abolition of a right to terminate the contract ordinarily which formed part of the initial contract); judgment of 16 January 2008—7 AZR 603/06.

Atypical Employment Relationships: The Position in Germany 321 of four years from the date the company was established.67 Within that four-year period, such contract may be extended as often as the parties to the contract deem fit. This does not apply, however, if the enterprise was established in connection with a legal restructuring of companies or groups of companies (section 14(2a) sentence 2).68 Finally, according to section 14(3) sentence 1 TzBfG, fixing the term of an employment contract with a worker aged 52 or over is admissible without the existence of objective grounds if the worker has been unemployed for at least four months when the contract commences.69 The maximum period of such a contract is five years, within which the contract can be extended several times (section 14(3) sentence 2).70 According to the courts, this provision conforms with EU law.71 (i)  Consecutive Contracts Fixed-term contracts can be lawfully ‘chained’ if each individual contract meets the requirements of section 14(1) sentence 1 TzBfG, ie each fixing of a term is based on an ‘objective ground’. In principle, there are no limits to basing fixed-term contracts on ‘objective grounds’.72 Nor is the determination of the existence of an ‘objective ground’ by the courts limited to a single ground.73 If the fixing of the contract’s term is based on a projection by the employer, it may indicate that the employer was wrong when a new fixed-term contract is concluded after the former contract ended.74 Moreover,

67 

Section 14(2a) sentence 3 TzBfG contains further details on determining the relevant date. the term of a contract is fixed according to section 14(2a) sentence 1 TzBfG, the rules laid down in section 14(2) sentences 2—4 must be applied accordingly (section 14(2a) sentence 4). In other words, both the so-called ‘prohibition of linking up’—see Federal Labour Court judgment of 25 October 2012—8 AZR 572/11—and the rules on disposing of the statutory provisions by way of collective agreements must be taken into account when fixing the term of an employment contract with a newly established company. 69  Moreover, the employee must have received so-called ‘short-term allowances’ and must have been the subject of public employment measures. 70  Section 14(3) sentence 1. 71  Federal Labour Court judgment of 28 May 2014—7 AZR 360/12 with further references. An earlier provision was the subject of the Mangold ruling; see ECJ judgment of 15 November 2005—C-144/04 (Mangold v Helm), in which the court held that German law was not in line with EU law. Cf also Federal Constitutional Court (Bundesverfassungsgericht) judgment of 6 July 2010—2 BvR 2661/06 explicitly stating that the ECJ’s ruling was not ultra vires. 72  See Federal Labour Court judgment of 22 April 2009—7 AZR 768/07. 73  See Federal Labour Court judgment of 13 October 2004—7 AZR 654/03. 74  Cf. also Federal Labour Court judgment of 22 November 1995—7 AZR 252/95: ‘Ever more rigid demands which are to be made with the increasing duration of the contract’. In the view of the Federal Labour Court, in case of successive fixed-term contracts, it is principally only the last contract that is the subject of determination by the court as to whether an objective ground for its conclusion exists or not. This is attributable to the fact that by concluding a new fixed-term contract without (tacit or explicit) reservations, the parties to the contract 68 If

322  Bernd Waas as has already been mentioned,75 the courts take the position that an extraordinarily high number of successive employment contracts (and/or a very long total duration of employment under such contracts) may indicate abuse of rights by the employer. To be more precise, if the limits set in section 14(2) sentence 1 TzBfG are exceeded several times either ­alternatively or cumulatively, a comprehensive judicial control is required. Accordingly, the Federal Labour Court has ruled that if the total duration of the ­fixed-term employment contract exceeds eight years, or if more than 12 extensions of the fixed-term employment contract have been agreed, an abuse of rights is indicated and whether the finding of abuse is prevented will depend on other possible circumstances, which are to be submitted by the employer.76 As far as section 14(2) TzBfG is concerned, the legal position is more clear-cut: first, the so-called ‘prohibition of linking up’ applies, and secondly, it is explicitly stated that fixing the term of a contract without the existence of an objective ground is only admissible if the contract’s total duration does not exceed two years; within this period, the contract can by extended three times at most.77 (ii)  Fixed-Term Contracts with a Condition Subsequent While the courts were reluctant for quite some time to accept that employment contracts could be concluded subject to a condition subsequent,78 this condition was eventually accepted in principle, though the existence of ‘objective reasons’ to conclude such a contractual arrangement is required.79 This position is reflected in section 22 TzBfG, according to which section 14(1) and (4) of the Act are analogously applicable to contracts with a condition subsequent.80 Accordingly, contracts with a condition subsequent in principle follow the same rules as employment contracts with a term that is fixed according to the calendar.81 Apart from section 14(1) and (4), most other provisions of the TzBfG must be applied analogously as well. Consequently, persons employed under a contract repeatedly assert that only the ‘last contract’ should be of relevance henceforth. See Federal Labour Court judgment of 18 July 2012—7 AZR 783/10; see also Federal Labour Court judgment of 17 May 2017—7 AZR 301/15. 75 

Cf n 39 above. Labour Court judgment of 26 October 2016—7 AZR 135/15; cf also, more recently, Federal Labour Court judgment of 21 March 2017—7 AZR 369/15; judgment of 17 May 2017—7 AZR 420/15. 77  Section 14(2) sentence 1. According to section 14(2a) sentence 4 TzBfG, this provision also applies to contracts concluded by newly established enterprises. 78  Federal Labour Court judgment of 9 July 1981—2 AZR 788/78. 79  Federal Labour Court judgment of 4 December 1991—7 AZR 344/90. 80  As section 14(2) does not form part of this reference, a condition subsequent without an objective reason is not admissible. 81  Federal Labour Court judgment of 4 December 2002—7 AZR 492/01. 76 Federal

Atypical Employment Relationships: The Position in Germany 323 with a condition subsequent generally enjoy the same level of protection as persons employed under a fixed-term contract. (iii)  Legal Consequences of Invalid Fixing of Terms If the fixing of the employment contract’s term is inadmissible, it is presumed to have been concluded for an indefinite period; the contract may not be ordinarily terminated by the employer before the intended end of the contract, unless an ordinary termination is possible at an earlier stage under the contract’s terms (section 16 sentence 1 TzBfG).82 If the fixing of the term is invalid because the parties did not meet the requirement of agreeing the term in writing, the contract may even be terminated prior to the end of the term agreed upon (section 16 sentence 2).83 (iv)  Legal Proceedings According to section 17 sentence 1 TzBfG, if an employee claims that the fixing of the employment contract’s term is invalid, s/he must lodge her/his claim at the competent labour court within three weeks after the fixed-term contract’s agreed upon date of expiration. Following the lapse of that period, the employee is precluded from filing a claim and the fixing of the term is deemed to be legal.84 If the parties continue to fulfil the ­fixed-term contract beyond the intended expiration date, the period for lodging a claim commences only when the employee receives a notification by the employer regarding the end of the contract in accordance with the fixing of the term (section 17 sentence 3). C.  Termination/End of Fixed-Term Contracts According to section 15(1) TzBfG, a fixed-term contract automatically terminates when the period of time agreed between the parties comes to an end (contract of employment fixed according to the calendar). The employer has no obligation to provide the fixed-term employee with any information. According to section 15(2) TzBfG, a fixed-term employment contract limited by purpose terminates as soon as the purpose has been achieved, but not sooner than two weeks after the employer has informed the employee that the purpose has been achieved.

82 Section 16 sentence 1. Termination by the employee is not explicitly mentioned but implicitly envisaged. See Federal Labour Court judgment of 23 April 2009—6 AZR 533/08. 83  This provision even applies if the parties have stipulated that an ordinary dismissal should be inadmissible; see Federal Labour Court judgment of 23 April 2009—6 AZR 533/08. 84  Section 17 sentence 2, read in conjunction with section 7 KSchG.

324  Bernd Waas A fixed-term contract can be terminated extraordinarily according to the general rules.85 Under section 15(3) TzBfG, a fixed-term contract can be terminated ordinarily if the possibility of an ordinary dismissal has been agreed upon by the parties to the contract or if it can be derived from an applicable collective agreement. In that sense, ordinary termination is rather the exception than the rule. If an employment contract has been concluded for the employee’s lifetime or in any event for more than five years, it can be unilaterally terminated by the employee upon expiry of five years with a period of notice of six months (section 15(4) sentences 1 and 2 TzBfG). This provision serves the purpose of protecting the personal freedom of workers who shall not be contractually bound for an unreasonably long time.86 If a fixed-term contract continues beyond the predetermined date87 or the achievement of its purpose,88 ie if the employee does not stop working and the employer takes note of this,89 it is presumed that the employment contract has been extended for an indefinite period. This is particularly so when the employer does not object immediately90 or does not inform the employee immediately that the purpose stipulated in the fixed-term contract has been achieved (section 15(5)).91 This provision aims to create transparency when an employment relationship is continued by the parties without a clear agreement, once the initial fixed-term contract has expired.92 D.  Rights and Status of Fixed-Term Worker (i)  Equal Treatment According to section 4(2) sentence 1 TzBfG which transposes clause 5 of the Framework Agreement, a fixed-term worker may not be treated less favourably than a respective person working under a contract of indefinite

85 

As set down in section 626 BGB. Federal Labour Court judgment of 19 December 1991—2 AZR 363/91. According to the Federal Labour Court judgment of 25 April 2013—8 AZR 453/12, section 15(4) TzBfG conforms with the Constitution and the freedom of profession of employees, in particular. 87  In case of a contract of employment fixed according to the calendar. 88  In case of a fixed-term employment contract limited by purpose. 89  Federal Labour Court judgment of 18 October 2006—7 AZR 749/05; cf also Federal Labour Court judgment of 26 October 2016—7 AZR 535/14). 90  In case of a contract of employment fixed according to the calendar. 91 Federal Labour Court judgment of 28 September 2016—7 AZR 377/14 (‘conclusive behaviour by virtue of a legal fiction’). The ruling relates to a temporary agency worker who was employed under a fixed-term contract. According to the court, only the possible knowledge of the temporary agency itself must be taken into account in the context of section 15(5) TzBfG. 92  Federal Parliament, Printing Matter 14/4374, p 21. 86  See

Atypical Employment Relationships: The Position in Germany 325 duration, if no sound reason exists for such treatment.93 This provision is equally aimed at employers and partners to collective agreements.94 In particular, according to section 4(2) sentence 2 TzBfG, a fixed-term worker has a claim to pay as well as other claims of cash value that are divisible95 for a given assessment period in accordance with the fraction of work provided by him/her during that period (so-called pro-rata principle). A certain allowance, however, may not be claimable by the fixed-term worker if the duration of his/her contract is very short and if a partial grant would result in an entitlement to a minor amount of money, which must be regarded as being out of proportion when held against the purpose of that allowance.96 Finally, if certain employment conditions are dependent on the existence of an employment relationship, different periods cannot be applied to fixedterm and to full-time workers without good reasons. (ii)  Employment Opportunities According to section 18 TzBfG, which transposes clause 6.1 of the Framework Agreement, the employer is required to inform fixed-term ­ workers about possible permanent employment opportunities.97 Such information can be relayed in form of a general announcement placed at a suitable location that is easily accessible.98 According to section 19 TzBfG, which implements clause 6.2 of the Framework Agreement, the employer is required to facilitate fixed-term workers’ access to appropriate training opportunities to enhance their skills, their career development and their occupational mobility, provided that there is no conflict with urgent business reasons or with the wishes of other employees. In case of such conflicting demands, the employer, in principle, enjoys some discretionary power.99

93  See Federal Labour Court judgment of 21 February 2013—6 AZR 524/1 (referring to ECJ judgment of 8 September 2011—Case C-177/10 (Rosado Santana v Consejería de Justicia y Administración Pública de la Junta de Andalucía) ECLI:EU:C:2011:557, and judgment of 18 October 2012—Case C-302/11 (Valenza and Others v Autorità Garante della Concorrenza e del Mercato) ECLI:EU:C:2012:646, according to which ‘identical tasks’ are required). 94  Federal Labour Court judgment of 18 January 2012—6 AZR 496/10. Cf. also Federal Labour Court of 27 April 2017—6 AZR 459/16. 95  Allowances or holidays, for instance. 96  See Federal Parliament, Printing Matter 14/4374, p 16. 97  Section 18 sentence 1 TzBfG. 98  Section 18 sentence 2 TzBfG. In practice, some collective agreements go beyond the law by establishing a right to preferential treatment of fixed-term workers in case of a possible hiring. See R Müller-Glöge in Erfurter Kommentar zum Arbeitsrecht, 19th edn (Munich, CH Beck, 2019), § 18 TzBfG note 4 99  Within the limits of section 315 BGB referring to ‘reasonably exercised discretion’.

326  Bernd Waas (iii) Others N/A E.  Information and Consultation According to section 20 TzBfG, which transposes clause 7.3 of the Framework Agreement, the employer must inform the ‘workers’ representatives’ about the number of fixed-term employees and about the ratio of fixed-term/indefinite contracts in the enterprise. Fixed-term workers qualify as ‘employees’ within the meaning of section 5(1) of the Works Constitution Act (Betriebsverfassungsgesetz—BetrVG). Hence, they are counted when calculating the threshold above which a works council can be ­established.100 Moreover, they are entitled to the right to elect a works council (section 7 BetrVG) and have the corresponding right to be elected (section 8 BetrVG).101 According to section 99 BetrVG, the works council must be informed if the employer plans to recruit new staff members; in a limited number of cases, the works council even enjoys veto power over the employer’s decision.102 Though the works council cannot base its rejection of the employer’s decision on its assessment that the fixing of the contract’s term is unlawful,103 it can reject the decision if the workers are at risk of facing dismissal or might suffer other disadvantages because of the intended measure without cause.104 Such a ‘disadvantage’ exists, in particular, if an employer plans to permanently hire a job applicant without considering an equally suitable existing fixed-term employee.105 According to section 102 BetrVG, the works council must be informed about an employer’s decision to dismiss a worker, albeit having a limited right to refute that decision. Section 102 BetrVG does not, however, apply

100  See also clause 7.1 of the Framework Agreement. According to section 1(1) sentence 1 BetrVG, ‘works councils shall be elected in establishments that regularly employ five workers, among which at least three must be entitled to the right to be elected’. The term ‘shall’ notwithstanding, section 1 refers to a right to establish a works council and not an obligation. 101  The right to be elected is dependent on the right to elect. Moreover, six months of service are required; see section 8(1) sentence 1 BetrVG. 102  ‘Recruiting’ within the meaning of section 99 BetrVG includes the hiring of temporary staff on the basis of fixed-term contracts, even if this results in short-term employment only. In the latter case, however, the works council can waive its right to information. See Richardi, in Richardi (ed), Betriebsverfassungsgesetz, 16th edn (Munich, CH Beck, 2018), § 99 note 37. 103  Federal Labour Court judgment of 20 June 1978—1 ABR 65/75; judgment of 16 July 1985—1 ABR 35/83. 104  Section 99(2) No 3. 105  Section 99(2) No 3 at the end.

Atypical Employment Relationships: The Position in Germany 327 if a fixed-term contract terminates due to the expiration of the agreed term, as the contract automatically ends in that case.106 F.  Specific Provisions According to section 23 TzBfG, the provisions of the Act do not prejudice those in other Acts. However, the provisions of the Act may have to be applied if the provisions of other Acts are incomplete.107 In Germany, several Acts provide specific rules on the fixing of employment contract term.108 The most relevant Act in this regard is the Act on Fixed-Term Contracts in Academia (Wissenschaftszeitvertragsgesetz).109 It contains rules for the temporary employment of scientific, research and artistic staff at higher education institutions and research facilities. G. Collective Bargaining Agreements Deviating from Statutory Provisions According to section 22(1) TzBfG, most of the provisions of the Act cannot be set aside.110 Section 22(1) TzBfG refers to individual contracts, works agreements (between the employer and the works council) and collective bargaining agreements (between trade unions and employers’ associations or individual employers). However, under sections 12(3), 13(4) and 14(2) sentence 3 TzBfG, all of which are expressly mentioned in section 22(1), some provisions of the Act can be set aside to the detriment of employees. While section 12(3) relates to on-call work and section 13(4) to job sharing, section 14(2) sentence 3 refers to collective agreements with reference to fixed-term contracts. According to section 14(2) sentence 3 TzBfG, the number of possible extensions or the maximum duration of the contract may be modified on the basis of a collective agreement. Employers and employees who are not legally bound by the collective agreement may agree to apply the relevant provisions of the agreement to their employment contract (section 14(2) sentence 4).111 In the view of the Federal Labour Court, 106 

See section 15(1) TzBfG. Federal Labour Court judgment of 13 June 2007—7 AZR 700/06. 108 See, for instance, section 21 of the Vocational Training Act (Berufsbildungsgesetz) according to which the vocational training relationship comes to an end with the expiry of the training period. 109  As amended in 2017. 110  Section 22(2) TzBfG makes specific provision for collective agreements in public service. 111  According to section 3(1) of the Act on Collective Agreements (Tarifvertragsgesetz), a worker is bound by a collective agreement if s/he is a member of the trade union that concluded the agreement. An employer, on the other hand, is bound by it if s/he either belongs to the relevant employers’ association or concluded the agreement him-/herself. 107 

328  Bernd Waas parties to a collective agreement are free to set different numbers of possible extensions as well as the maximum duration, cumulatively.112 There are limits, however, as they are bound by the basic legal concept laid down by the legislator in section 14(1) TzBfG; moreover, they must follow both the Constitution (freedom of profession of employees) and EU law.113 The Federal Labour Court considers the limits of collective bargaining to have been reached if the social partners’ fixing of the maximum duration of the contract exceeds six years and/or more than nine extensions are allowed.114 III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements A legal definition of the concept of ‘part-time work’ can be found in section 2(1) sentence 1 TzBfG. Accordingly, an employee works part time if his/her standard weekly working time is shorter than that of a comparable full-time employee.115 If no standard weekly working time has been agreed, an employee will be considered a part-time employee if his/her regular working hours are less than those of a comparable full-time employee over an average employment period of up to one year (section 2(1) sentence 2 TzBfG).116 A full-time employee of the firm is deemed comparable if his/her employment relationship is similar to that of the part-time employee and if s/he carries out the same or similar tasks (section 2(1) sentence 3 TzBfG).117

112 Federal Labour Court judgment of 15 August 2012—7 AZR 184/11, judgment 18 March 2015—7 AZR 272/13; judgment 26 October 2016—7 AZR 140/15. See also Federal Labour Court, judgment of 21 March 2018—7 AZR 428/16 according to which the parties to the collective agreement may make the use of the possibilities granted by it dependent on additional conditions, such as the approval of the works council. 113 Federal Labour Court judgment of 15 August 2012—7 AZR 184/11; judgment 5 December 2012—7 AZR 698/11. See also Federal Labour Court judgment of 18 March 2015—7 AZR 272/13: six possible extensions and a maximum duration of the contract of 48 months do not give rise to concerns. 114 Federal Labour Court judgment of 26 October 2016—7 AZR 140/15. Cf also T Frieling/M Münder, ‘Neue richterrechtliche Grenzen der Tarifdispositivität sachgrundloser Befristungsmöglichkeiten’ in NZA 2017, p 766. 115  The qualification of a part-time employee as an actual employee also depends on his/her degree of personal dependence (as further substantiated in section 611a BGB). The duration of working time does not play a role in this respect. Part-time employees are no less in need of protection than others; cf only U Preis, in Erfurter Kommentar zum Arbeitsrecht, 19th edn (Munich, CH Beck, 2019), section 2 TzBfG note 4 with further references. 116  That is, employees who work as much as full-time employees during certain months and not at all in other months (eg, seasonal workers) are considered part-time employees. 117 If there is no comparable full-time employee in the firm, a comparable full-time employee shall be determined on the basis of the applicable collective agreement; in all other cases, a comparable full-time employee in the relevant commercial sector must be taken into account (section 2(1) sentence 4 TzBfG). The latter implies that it depends on which collective

Atypical Employment Relationships: The Position in Germany 329 B.  Opportunities for/Right to Part-Time Work Section 6 TzBfG contains a regulation on the promotion of part-time work. It stipulates—along the lines of the example of Clause 5 No 3(d) first alternative of the Framework Agreement on Part-time Work—that the employer must allow employees, even those in leading positions, to work part time. Hence, part-time work shall also be expressly promoted among employees in leading positions.118 However, claims cannot be based on this ­regulation.119 In addition, the employer must fulfil advertisement and information requirements for part-time work, which apply independently of the size of the enterprise. The purpose is to increase the number of parttime jobs, on the one hand, and to create transparent and needs-based possibilities for part-time work, on the other.120 The centrepiece of the regulation on the promotion of part-time work is section 8 TzBfG. It stipulates an entitlement to work part-time under certain circumstances.121 According to section 8(1) TzBfG, an employee can request a reduction of his/her contractually agreed working time. The employment relationship must have existed for at least six months (section 8(1) TzBfG). Another requirement is that the employer must, as a general rule, have 15 or more employed employees (section 8(7) TzBfG).122 This entitlement applies to all employees, even managerial employees.123 Fixed-term employees as well as employees who already work part time, in particular, are entitled to this claim.124 The employer’s incentive in terms of entitlement to

agreement hypothetically applies. Under section 2(2) TzBfG, an employee who is only ‘marginally employed’ is also expressly deemed to be a part-time employee. According to section 8(1) No 1 of Social Code IV, an employee is marginally employed if the salary from this employment does not generally exceed EUR 450 a month. 118 

Federal Parliament Printing Matter 14/4374, p 16. Preis, in Erfurter Kommentar zum Arbeitsrecht, 19th edn (Munich, CH Beck, 2019), section 6 TzBfG note 1. 120 Federal Parliament, Printing Matter 14/4374, pp 12, 16. Specifically, the following applies: an employer who publicly advertises a job or within the firm must also advertise it as a part-time position, if suitable as such (section 7(1) TzBfG). The employer must, moreover, inform employees who have expressed interest in modifying the duration and circumstances of their contractually agreed working time about relevant posts to be filled in the firm or enterprise (section 7(2) TzBfG). 121 In addition, special claims exist; cf for example, section 15(6) and (7) of the Act on Parental Allowance and Parental Leave (Bundeselterngeld- und Elternzeitgesetz, BEEG). The fact that individual claims are not coordinated and do not follow a unified concept is criticised in the literature cf, for example, U Preis, in Erfurter Kommentar zum Arbeitsrecht, 19th edn (Munich, CH Beck, 2019), section 8 note 56. 122 As a per-head calculation must be used, employers who employ at least 15 full-time employees are on par with employers who already employ at least 15 part-time employees; criticism in U Preis/M Gotthardt, ‘Neuregelung der Teilzeitarbeit und befristeten Arbeitsverhältnisse—Zum Gesetzentwurf der Bundesregierung’ in DB 2000, 2065 (2068). 123  Explicitly State Labour Court Berlin judgment of 20 April 2012—28 Ca 17989/11. 124  Federal Labour Court judgment of 13 November 2012—9 AZR 259/11. 119  U

330  Bernd Waas working time reduction is irrelevant.125 The entitlement to reduction of working time far exceeds the requirements of Directive 97/81/EC. The purpose of the regulation is to achieve labour policy objectives through the promotion of part-time work. The underlying objective of increasing the use of part-time work is to reduce unemployment.126 The entitlement, according to section 8(1) sentence 1 TzBfG, initially focuses on the reduction of the working time contractually agreed with the employer. The content of the entitlement is the issuance of a declaration of intent by the employer, namely his/her consent to an agreement to modify the contract of employment.127 Section 8(1) thus establishes an ‘obligation to contract’.128 A reduction of working time, however, can only be requested for an indefinite period. Section 8(1) does not provide for a temporary reduction of working time.129 The reduction of working time does not follow automatically, but the employer is, in principle, required to consent to the employee’s request.130 The right to modify the distribution of working time only exists as an annex to the entitlement to reduce working time.131 It can thus only be claimed together with the entitlement to reduce working time.132 The employee must claim his/her entitlement to reduced working time as well as the distribution of working hours three months in advance (section 8(2) sentence 1 TzBfG). According to section 8(2) sentence 2 TzBfG, the employee shall specify his/her preferred distribution of working time. Such an indication is not, however, compulsory. The employee may also only claim his/her entitlement to reduced working time in relation to the scope of working time.133 The so-called negotiation phase begins once the employee has submitted his/her claim to his/her entitlement to reduced working time.134 Should 125 

This is widely criticised from a legal policy point of view. Federal Parliament Printing Matter 14/4374, p 11 et seq, 17. 127  Cf Federal Labour Court judgment of 19 August 2003—9 AZR 542/02. 128  U Preis, in Erfurter Kommentar zum Arbeitsrecht, 19th edn (Munich, CH Beck, 2019), section 8 TzBfG note 2. 129  Federal Labour Court judgment of 12 September 2006—9 AZR 686/05. 130  Federal Labour Court judgment of 19 August 2003—9 AZR 542/02. 131 State Labour Court Hesse judgment of 23 April 2012—17 Sa 1598/11; cf also State Labour Court Hesse judgment of 21 September 2017—11 Sa 1495/16: a claim put forward under section 8, which would lead to a marginal reduction of working time but predominantly aims to impose modification of the distribution of working hours on the employer may run counter to the principle of good faith. 132  Section 8 TzBfG does not specify any obligations on the part of the employer in return, but it is commonly recognised that the entitlement to remuneration, unless otherwise agreed, shall be adapted to the reduced working time; U Preis, in Erfurter Kommentar zum Arbeitsrecht, 19th edn (Munich, CH Beck, 2019), section 8 TzBfG note 5. 133  According to section 106 Trade Regulation Act (Gewerbeordnung, GewO) which forms the legal basis of the employer’s ‘right to instruct’, it is at the employer’s reasonable discretion to use this right to determine the distribution of working hours; cf Federal Labour Court judgment of 10 December 2014—10 AZR 63/14. 134 Section 8(3) TzBfG states that the employer shall discuss the requested reduction of working time with the employee, with the objective of arriving at an agreement (section 8(3) 126 

Atypical Employment Relationships: The Position in Germany 331 the employer refuse to make a decision on the employee’s request for a reduction of working time in a timely manner and in due form, section 8(5) sentence 2 TzBfG provides for a legal fiction: if the employer and employee did not agree on a reduction of working time in accordance with 8(3) sentence 1, and if the employer has not rejected the request for the reduction of working time in writing by, at the latest, one month prior to the planned commencement date, the employee’s working time shall be reduced as initially requested. The same applies to the distribution of working time as prescribed in section 8(5) sentence 3 TzBfG. The employer is restricted in his/her decision during the negotiation phase. In fact, section 8(4) sentence 1 TzBfG states that the employer must agree to the reduction of working time and define its distribution in accordance with the employee’s request, unless operational grounds speak against it. An operational ground exists according to section 8(4) sentence 2 TzBfG, when the proposed reduction of working time would considerably impact the firm’s organisation, operational procedures or security or would cause disproportionate costs.135 The Federal Labour Court requires such reasons to carry sufficient weight.136 In practice, the question often arises whether and to what extent the employer can contest the employee’s claim based on a specific organisational concept. The Federal Labour Court has developed a three-step evaluation scheme in this regard:137 the first step examines whether an underlying organisational concept does in fact exist in the firm, which substantiates the employer’s claim that the established working time arrangement is indispensable.138 The second step evaluates the extent to which the existing working time arrangement, which corresponds to the organisational concept, is at odds with the working time claimed by the employee. In the third and final step, the weight of the operational grounds that conflict with the employee’s sentence 1 TzBfG). The employer must reach an agreement with the employee on how s/he intends to distribute his/her working time (section 8(3) sentence 2 TzBfG). According to section 8(5) sentence 1 TzBfG, the employer must, at the latest one month prior to the requested commencement date, inform the employee in writing about his/her decision on the reduction of working time and its distribution. No reasons need be given for the decision. See Federal Labour Court judgment of 18 February 2003—9 AZR 356/02. 135  Some scholars argue against applying very rigid standards to the weight of operational grounds. This view is based, inter alia, on the fact that section 8 TzBfG infringes on the employer’s freedom of profession and his/her freedom of contract (cf in particular U Preis in Erfurter Kommentar zum Arbeitsrecht, 19th edn (Munich, CH Beck, 2019), section 8 TzBfG note 24) both of which are constitutionally protected (cf Articles 2(1) and 12(1) Basic Constitutional Law (Grundgesetz, GG). 136  Federal Labour Court judgment of 15 August 2006—9 AZR 30/06 (note 18): ‘It suffices for the employer to state rationally comprehensible reasons. Serious operational grounds are not necessary. The grounds must, however, carry sufficient weight’. 137  Cf Federal Labour Court judgment of 18 February 2003—9 AZR 356/02. 138  However, such a concept cannot be limited to a specific notion of the individual employer of what is‘ appropriate’ with regard to the scope of working time; cf Federal Labour Court judgment of 13 October 2009—9 AZR 910/08.

332  Bernd Waas request for reduced working time is examined. The question needs thus be answered whether the change in working time requested by the employee considerably impacts on the firm’s organisational concept or its underlying entrepreneurial objective.139 Accordingly, an operational ground, for instance, exists when an employer pursues a comprehensible, customerfriendly organisational concept that aims to ensure that a given sales associate is responsible for only one client and serves as that client’s focal point.140 The concept, however, must be plausible with regard to the services being rendered.141 It must also be practically feasible.142 Finally, case law also requires the employer to implement his/her concept consistently.143 The employer must, in any case, demonstrate that no possibility for part-time work exists in the entire firm if s/he plans to reject an employee’s request to reduce his/her working time. The employer must thereby also consider the possibility of ‘swapping’ several employees by exercising his/her right to instruct.144 For the employer to have at least some planning certainty, section 8(6) TzBfG states that the employee may, at the earliest, request another reduction of working time after a two-year lapse if the employer previously either agreed to a reduction or rejected it on the basis of justified grounds. According to the legislator, it is an important concern of labour policy, equality policy and family policy that workers are in a position of taking up part-time work voluntarily, but do not have to remain involuntarily in part-time work.145 This is why in the year 2018, in addition to the existing entitlement to part-time work, a new general statutory entitlement to part-time work limited in time (so-called bridge part-time work) was introduced. According to section 9a(1) TzBfG, an employee whose employment

139  Cf only Federal Labour Court judgment of 13 October 2009—9 AZR 910/08; criticism, for example, in U Preis, in Erfurter Kommentar zum Arbeitsrecht, 19th edn (Munich CH Beck, 2019), section 8 TzBfG note 29. 140  Federal Labour Court judgment of 30 September 2003—9 AZR 665/02. 141  Federal Labour Court judgment of 16 October 2007—9 AZR 239/07. Accordingly, a bank cannot advise a teller that his/her organisational concept is based on ‘one face to the customer’. 142  Federal Labour Court judgment of 30 August 2003—9 AZR 665/02: it is not a sufficient operational ground if the firm’s opening times considerably exceed the average weekly working time of a full-time employee, so that it is simply impossible to ensure that the same employee is always present for a given customer. 143  Federal Labour Court judgment of 13 October 2009—9 AZR 910/08; cf also J Jordan/ K Falter/I Meyer-Michaelis, ‘Kundennähe als Grund für die Ablehnung eines Teilzeitbegehrens im Außendienst’ in BB 2016, 1205 on ‘proximity to the customer’ as a possible reason for rejecting the claim of a sales representative. 144 Federal Labour Court judgment of 13 November 2012—9 AZR 259/11; criticism in E Salamon/RA Bastian Reuße, ‘Grenzen der arbeitgeberseitigen Darlegungslast zur Ablehnung von Teilzeitarbeit nach der jüngsten Ausweitung durch das BAG’ in NZA 2013, 865. 145 See Draft of a law on the further development of part-time work law—Introduction of a bridge part-time work scheme, Federal Parliament, Printing Matter 19/3452 of 19 July 2018, p. 1.

Atypical Employment Relationships: The Position in Germany 333 relationship has lasted longer than six months may request that his/her contractually agreed working time be reduced for a period to be determined in advance. The requested period must be at least one year and not more than five years. The employee shall only be entitled to a temporary reduction in working time if the employer normally employs more than 45 employees. According to section 9a(2) sentence 1, the employer may reject the employee´s request for a reduction in working hours if there are operational reasons to the contrary; section 8(4) shall apply mutatis mutandis. C.  Opportunities for/Right to an Extension of Working Time As discussed above,146 according to section 7(2) TzBfG, the employer must inform employees who have expressed an interest in modifying the duration and conditions of their contractually agreed working time, about potential available jobs in the firm or enterprise. This regulation not only applies to transfers from full-time to part-time work, but also from part-time to full-time work. As this regulation includes the obligation to inform employees about potential full-time posts, it also serves the purpose of decreasing the inhibition threshold to temporarily work part time.147 The law additionally provides for an entitlement to increase working hours. Section 9 TzBfG stipulates: The employer must give preferential consideration to a part-time employee who has notified him in text form of his wish to extend his contractually agreed working time when filling a position, unless 1. There is no corresponding vacancy or 2. the part-time employee is not at least as suitable as another applicant preferred by the employer or 3. working time wishes of other part-time employees stand in the way or 4. there are urgent operational reasons to the contrary. A vacancy exists if the employer has made the organisational decision to create it or to fill an unfilled position.148

Section 9 TzBfG establishes an individual legal claim. The regulation applies to all part-time employees, ie not only to those who have previously reduced their working time based on section 8 TzBfG.149 At the same time, section 9 TzBfG covers all employers. From section 9 TzBfG, case law deduces that the employer must select the part-time employee for a vacancy if

146 

Cf II.C above. Preis, in Erfurter Kommentar zum Arbeitsrecht, 19th edn (Munich, CH Beck, 2019), section 7 TzBfG note 1. 148  Section 9 transposes clause 5(3)(b), (c) of the Framework Agreement on Part-time Work. Its declared purpose is to enable employees who work part-time based on section 8 TzBfG to return to full-time employment and thereby not to discourage them from claiming their right stipulated in section 8 TzBfG. See Federal Parliament Printing Matter 14/4374, p 18. 149  The regulation also does not stipulate a waiting time. 147  U

334  Bernd Waas s/he meets all other eligibility criteria.150 This obligation does not apply if ‘urgent operational grounds’ speak against it. The Federal Labour Court, however, requires these grounds to be ‘quasi mandatory’.151 In the event that a vacancy is filled by the employer in breach of his/her obligation stipulated in section 9 TzBfG, the employee must be financially compensated if the employer acted intentionally or negligently.152 D.  Rights and Status of Part-Time Worker (i)  Equal Treatment According to section 4(1) TzBfG, it is unlawful to discriminate against part-time employees.153 That is, part-time employees may not be treated less favourably than comparable full-time employees, unless objective grounds justify differential treatment (section 4(1) sentence 1 TzBfG).154 The law, moreover, prescribes the so-called pro rata temporis principle: the amount of wages or any other divisible monetary payment due to a part-time employee must correspond to his/her total working hours in relation to the remuneration paid to a comparable full-time employee (section 4(1) sentence 2 TzBfG).155 A part-time worker is discriminated against if the ­criteria on which his/her working conditions are based differ from those of a comparable

150 

Federal Labour Court judgment of 15 August 2006—9 AZR 8/06. Labour Court judgment of 16 September 2008—9 AZR 781/07. If several part-time workers are interested in the post, the employer does not need to base his/her decision on social aspects. His/her decision must, however, be based on reasonable exercise of discretion. See Federal Parliament Printing Matter 14/4625, p 24. 152 Federal Labour Court judgment of 18 July 2017—9 AZR 259/16. The Court determined that performance would be excluded on the ground of impossibility if the vacancy were filled by another person. Cf. also Federal Labour Court, judgment of 27 February 2018—9 AZR 167/17. 153  In cases of unequal pay, Article 157 TFEU is also often violated in the form of indirect gender discrimination, as part-time work is primarily carried out by females; cf U Preis, in Erfurter Kommentar zum Arbeitsrecht, 19th edn (Munich, CH Beck, 2019), section 4 TzBfG note 14. 154 The regulation not only prohibits unequal treatment of part-time and full-time employees, but of employees who generally have different working hours; cf Federal Labour Court judgment of 5 August 2009—10 AZR 634/08; U Preis, in Erfurter Kommentar zum Arbeitsrecht, 19th edn (Munich, CH Beck, 2019), section 4 TzBfG note 21. German labour law recognises the so-called general principle of equal treatment (arbeitsrechtlicher Gleichbehandlungsgrundsatz), which prevents the employer from treating individual employees or groups of employees less favourably than other employees in a comparable situation without objective grounds (cf, eg, Federal Labour Court judgment of 3 December 2008—5 AZR 74/08). Section 4 TzBfG can be classified as a special rule of the general principle of equal treatment. See U Preis, in Erfurter Kommentar zum Arbeitsrecht, 19th edn (Munich, CH Beck, 2019), section 4 TzBfG note 4. 155  A more recent illustration of the application of the principle is Federal Labour Court judgment of 19 April 2016—3 AZR 526/14 on an occupational pension scheme. According to case law, the pro rata provision for working conditions may, in exceptional cases, be 151 Federal

Atypical Employment Relationships: The Position in Germany 335 full-time employee because of their different working hours only. Section 4 TzBfG protects part-time workers from indirect as well as from direct discrimination.156 Section 4(1) TzBfG mainly aims at employers’ legal responsibilities towards employees.157 This includes the employer’s right to instruct, and encompasses all other relevant legal acts of the employer.158 If an employer treats employees unequally, the question arises whether this treatment is justified on ‘objective grounds’. The law does not further specify what it considers to be objective grounds. Case law establishes very strict standards. Accordingly, a difference in treatment is only justified if it is based on the relationship between the purpose of a particular benefit and the scope of the part-time work.159 The difference in workloads of parttime and full-time employees alone does not justify differential treatment. The objective grounds must be based on other factors, for example, on work performance, qualifications, work experience or different ­workplace requirements.160 This difference must, moreover, also correspond to the purpose of the benefit provided by the employer. What should be taken into consideration in this regard is that the aspect of commitment and loyalty to the firm applies equally to part-time and full-time employees, and can therefore generally not be used to justify a difference in treatment.161 In addition to section 4 TzBfG, the provision in section 5 TzBfG is also relevant. Accordingly, an employer may not discriminate against an employee who claims the rights stipulated in this Law.162 Section 5 TzBfG may, for example, apply to an employer’s response to his/her employee’s claim to reduced working hours. Section 10 TzBfG includes a regulation on further education. It stipulates that the employer must ensure the participation of part-time employees in further education programmes in support of their professional development and mobility, unless serious operational grounds exist or the requests of other part-time or full-time employees for further education conflict with this requirement. s­idestepped on objective grounds; cf only Federal Labour Court judgment of 5 November 2003—5 AZR 8/03. 156 

Federal Labour Court judgment of 19 January 2016—9 AZR 564/14. prohibition of discrimination in section 4 TzBfG also applies to regulations in collective agreements, however; cf Federal Labour Court judgment of 12 May 2016—10 AZR 634/08; Federal Labour Court of 26 April 2017—10 AZR 589/15. 158  Preis, in Erfurter Kommentar zum Arbeitsrecht, 19th edn (Munich, CH Beck, 2019), section 4 TzBfG note 19. 159  U Preis, in Erfurter Kommentar zum Arbeitsrecht, 19th edn (Munich, CH Beck, 2019), section 4 TzBfG note 39. 160  Federal Labour Court judgment of 25 October 1994—3 AZR 149/94. 161  U Preis, in Erfurter Kommentar zum Arbeitsrecht, 19th edn (Munich, CH Beck, 2019), section 4 TzBfG note 42 with further references. 162  The regulation largely corresponds to the more general provision of section 612a BGB, according to which the employer ‘may not discriminate against an employee in an agreement or a measure because that employee exercises his/her rights in a permissible way’. 157  The

336  Bernd Waas (ii)  Dismissal Protection As the non-discrimination rule in section 4(1) TzBfG covers all of the employer’s measures, the employee is also protected against discriminating dismissals. Apart from that, section 11 sentence 1 TzBfG—in line with clause 5(2) of the Framework Agreement on Part-time Work—states that the termination of an employment relationship due to an employee’s refusal to transfer from full-time to part-time employment or vice versa is invalid. The right to termination of the employment relationship for other reasons remains unaffected (section 11 sentence 2 TzBfG). (iii)  Other Matters N/A E.  Information and Consultation In addition to regulations on individual rights, some parts of the TzBfG include regulations on works councils rights. According to section 7(3) ­sentence 1 TzBfG, the employer has the duty to inform workers’ representatives about part-time jobs in the firm or enterprise, and in particular about existing or planned full-time jobs, as well as about the conversion of parttime into full-time jobs or vice versa.163 If requested, the employer must share the relevant documents with the workers’ representatives (section 7(3) sentence 2 first half-sentence TzBfG). This explicitly leaves section 92 BetrVG untouched, according to which the works council enjoys consultation rights as regards the employer’s human resources. Additional works council rights remain unaffected as well. This applies in particular to section 93 BetrVG, according to which the works council can request that vacancies entailing general or specific types of work-related tasks, should be advertised within the firm prior to being filled. The works council’s consultation rights should be noted in other contexts as well: if the employer fills a vacancy with another employee without taking account of section 9 TzBfG, s/he is in breach of a legal obligation, the consequence being that the works council may reject the recruitment.164 By contrast, the works council is not entitled to consultation rights if the agreed working time is reduced at the employee’s request.165 It should be noted 163 

Cf. in this regard clause 5(3e) of the Framework Agreement on Part-time Work. Federal Labour Court judgment of 1 June 2011—7 ABR 117/09 (para 31). The requirement to obtain the works council’s consent and the corresponding right to refuse such consent are enshrined in section 99(1) and (2) BetrVG. 165  The mere change in the duration of working time is not a reassignment that is subject to co-determination in terms of section 95(3), 99 BetrVG; cf U Preis, in Erfurter Kommentar 164 

Atypical Employment Relationships: The Position in Germany 337 that according to section 87(1) No 2 BetrVG, the works council has a (real) co-determination right166 as regards the ‘start and end of the daily working hours, including breaks, as well as the distribution of working time across the individual weekdays’. This co-determination right shall be maintained despite the claim to individual rights in section 8(4) sentence 1 TzBfG.167 This does not change the fact that an employee’s opportunity to reduce his/her working time based on section 8 TzBfG can only be limited by the employer’s claim that operational grounds exist which speak against it, in line with section 8(4) sentences 1 and 2 TzBfG.168 F.  Other Part-Time Arrangements According to section 12(1) sentence 1 TzBfG, employers and employees may agree that the employee will perform work in accordance with the enterprise’s actual needs.169 The agreement must include specific number of weekly and daily working hours (section 12(1) sentence 2).170 If the duration of weekly working hours are not determined by the parties, 20 weekly working hours are deemed to have been agreed (section 12(1) sentence 3 of the Act).171 If the number of daily working hours is not set by the parties, the employer is bound to call on the employee for work at least three consecutive hours per day (section 12(1) sentence 4 of the Act). If the employer calls the employee for work for less than three consecutive hours, the employee can claim pay for three hours of work anyway.172 If the parties did not determine weekly and daily working hours, the arrangement of on-call work as such is not affected. The worker cannot claim full-time zum Arbeitsrecht, 19th edn (Munich, CH Beck, 2019), section 8 TzBfG note 39 with further references. 166  In the sense that the employer must be able to reach an agreement with the works council. See also section 87(2) BetrVG: ‘If no agreement can be reached on a matter covered by the preceding subsection, the conciliation committee shall make a decision. The award of the conciliation committee shall take the place of an agreement between the employer and the works council’. 167 Federal Labour Court judgment of 18 August 2009—9 AZR 517/08; cf also Federal Parliament Printing Matter 14/4625, p 24. 168  Federal Labour Court judgment of 20 January 2015—9 AZR 735/13, note 26. 169  Cf also B Waas, in B Waas/R Blanpain/F Hendrickx (eds), New Forms of Employment in Europe (Alphen aan den Rijn, Wolters Kluwer, 2016), p 224 et seq. 170  If a minimum working time has been agreed, the employer may only request additional work up to a maximum of 25 p. c. of the weekly working time. If a maximum working time has been agreed, the employer may only request less work up to a maximum of 20 p. c. of the weekly working time (section 12(2) TzBfG). With this provision, the legislator has laid down corresponding jurisprudence in law. Cf. Federal Labour Court judgment of 7 December 2005—5 AZR 535. 171  There is no right to be called every day (from Monday to Friday); see Federal Labour Court judgment of 16 April 2014—5 AZR 483/12 (regarding temporary agency work). 172  See Federal Labour Court judgment of 24 May 1989—2 AZR 537/88.

338  Bernd Waas employment.173 According to section 12(3) of the Act, the employee is required to perform work if the employer calls him/her at least four days in advance. According to section 12(6), the parties to a collective agreement may to a certain extent deviate from paragraphs (1) and (3), even to the detriment of the employee. According to section 13(1) TzBfG, the employer and the employee may agree that the work is shared by two or more employees (job sharing).174 Each worker, however, has an individual contract of employment. If any of those employees is unable to work, the other employees are required to substitute for him/her only if they have consented to such substitution in an individual case. A duty to substitute exists if the employment contract envisages such a duty in the event of pressing operational reasons, but only on condition that substitution is reasonable under the circumstances of the individual case.175 A contractual provision according to which a general duty to substitute exists is contrary to the Law and consequently null and void.176 According to section 13(2) TzBfG, the termination of an employment contract is invalid if it is exclusively based on the fact that the employment of a ‘co-worker’ has been terminated. According to section 13(3) TzBfG, the same rules apply mutatis mutandis if groups of workers occupy certain workplaces in accordance with a fixed rotating scheme. According to section 13(4), the parties to a collective agreement may to a certain extent deviate from paragraphs (1) and (3), even to the detriment of the employee. G.  Collective Bargaining Agreements Deviating from Statutory Provisions Section 22(1) TzBfG stipulates that a deviation from the regulations of the TzBfG to the disadvantage of the employee is generally not permissible. The provision covers regulations based on individual as well as on collective agreements. Both are generally excluded. Deviation from the prohibition against discrimination as established in section 4(1) TzBfG is not possible.177 Nor is deviation from section 8 TzBfG to the disadvantage of the employee permitted. Furthermore, eligibility criteria regulated in a collective agreement that go beyond section 8 TzBfG are inadmissible.178 Section 8(4) sentence 3 TzBfG does in fact provide that grounds for rejection can be established in a collective agreement. This, however, only implies that these 173 

Federal Labour Court judgment of 24 September 2014—5 AZR 1024/12. Cf also B Waas, in B Waas/R Blanpain/F Hendrickx (eds), New Forms of Employment in Europe (Alphen aan den Rijn, Wolters Kluwer, 2016), p 226. 175  State Labour Court Munich judgment of 15 September1993—5 Sa 976/92. 176  See U Preis, in Erfurter Kommentar zum Arbeitsrecht, 19th edn, (Munich, CH Beck, 2019); § 13 TzBfG note 9. 177  Federal Labour Court judgment of 21 February 2013—6 AZR 524/11. 178  Federal Labour Court judgment of 14 October 2003—9 AZR 100/03. 174 

Atypical Employment Relationships: The Position in Germany 339 grounds can be further substantiated in a collective agreement.179 According to case law, so-called overextension quotas can also be established in collective agreements.180 Deviations in favour of the employee are permitted. The parties to the collective agreement—just like the employer, the works council or the parties to an employment contract—can, for example, in addition to the legal claim enshrined in section 8 TzBfG, agree on the possibility to reduce working time for a limited duration.181 IV.  TEMPORARY AGENCY WORK

A.  Legal Definitions/Formal Requirements Temporary agency work is regulated in the Act on Temporary Agency Work (Arbeitnehmerüberlassungsgesetz, AÜG), which also implements Directive 2008/104/EC on temporary agency work. A legal definition of temporary agency work is found in section 1(1) sentence 1 AÜG, according to which employers, who as providers of labour (temporary work agencies), hire out employees (temporary agency workers) to perform work for third parties (labour users or user undertakings) within the scope of their economic activity require state approval to engage in such activity.182 Temporary employment is based on a triangular relationship between the provider of labour, the labour user and the temporary agency worker: the contract based on which the temporary work agency obliges itself to provide employees to the labour user is treated as a separate contract in legal doctrine, and is a subcategory of the so-called contract for the procurement of services (Dienstverschaffungsvertrag).183 It is noteworthy in this regard that the temporary work agency is only responsible for hiring out one or several temporary agency workers against payment and not for the actual performance of work.184 The issue about the boundary between the provision of temporary agency workers and other contractual forms of employment raises many questions in practice. Specifically, it is often difficult to determine whether the employees of a subcontractor, who work on another person’s premises, are 179  Federal Parliament Printing Matter 14/4374, p 17; U Preis, in Erfurter Kommentar zum Arbeitsrecht, 19th edn (Munich, CH Beck, 2019), section 8 TzBfG note 57. 180  Federal Labour Court judgment of 24 June 2008—9 AZR 313/07. 181  Federal Labour Court judgment of 10 December 2014—7 AZR 1009/12. 182  Persons may qualify as ‘employees’ in that sense, even if they do not qualify as ‘employees’ within the general notion; cf Federal Labour Court judgment of 21 February 2017—1 ABR 62/12 on the basis of an interpretation in conformity with EU law and following the ECJ judgment of 17 November 2016—Case C-216/15 (Betriebsrat der Ruhrlandklinik gGmbH v Ruhrlandklinik gGmbH), ECLI:EU:C:2016:883. 183 Cf eg, W Hamann, in P Schüren/W Hamann (eds), Arbeitnehmerüberlassungsgesetz, 5th edn (Munich, CH Beck, 2018), section 1 AÜG note 90 with further references. 184  Federal Labour Court judgment of 5 May 1992—1 ABR 78/91.

340  Bernd Waas vicarious agents185 of that subcontractor or temporary agency workers. In this regard, it is worth noting that the legal classification of a contract as a contract to temporarily assign workers to a user undertaking depends on its actual business content. If the practical implementation of the contract differs from the contractual language, the former will prevail.186 It is nonetheless often difficult to determine in practice whether a given case involves the hiring out of employees.187 The legislator has recently undertaken efforts to reduce these uncertainties: section 1(1) sentence 2 AÜG explicitly stipulates—in line with case law—that employees are deemed to have been hired out if they are integrated into the user’s work organisation and are subject to his/her instructions. This does not, however, eliminate the practical difficulties in determining whether a given case involves the provision of temporary agency workers. B.  Registrations, Licensing, Financial Guarantees, etc The provision of temporary agency workers generally requires authorisation. More precisely, a so-called reservation of approval applies: the hiring out of workers is generally prohibited, unless the temporary work agency holds the necessary approval to engage in such activity. The authorisation procedure is regulated by section 2 AÜG. It aims to facilitate efficient supervision of providers of labour, particularly in the first three years of activity.188 Section 3 AÜG defines the grounds based on which such approval will be denied. The grounds specified in section 3(1) No 1 AÜG for denying authorisation draw on the general approval requirement of ‘reliability’ to conduct commercial activities.189 A labour provider will be deemed unreliable if s/he does not comply with social security law, tax law (withholding and deducting income tax), health and safety laws or employment law requirements.190 According to section 3(1) No 2 AÜG, a temporary work agency must organise his/her business in such a way as to be able to meet the general employer

185  Within the meaning of section 278 sentence 1 BGB according to which the ‘obligor is responsible for fault on the part of his/her legal representative, and of persons whom he/she uses to carry out his/her obligations, to the same extent as for fault on his/her own part’. 186  Federal Labour Court judgment of 27 January 1993—7 AZR 476/92; cf also Federal Labour Court judgment of 20 September 2016—9 AZR 735/15. 187  Cf W Hamann, in P Schüren/W Hamann (eds), Arbeitnehmerüberlassungsgesetz, 5th edn (Munich, CH Beck, 2018), section 1 AÜG notes 98 et seq. 188  Cf in particular section 2(4) sentence 1 AÜG, according to which approval is to be limited to one year, as well as section 2(5) sentence 1 AÜG, according to which approval can be issued for an indefinite period if the temporary work agency has been active and has held the necessary authorisation for at least three years. 189 This is regulated by section 35(1) of the Trade Regulation Act (Gewerbeordnung, GewO). 190  Exceeding the maximum period for assignments is explicitly mentioned.

Atypical Employment Relationships: The Position in Germany 341 obligations. This, for example, precludes engaging in the provision of temporary agency workers without having established business premises and without having the relevant equipment.191 A temporary work agency must also have a minimum of financial reserves.192 This requirement was introduced because the temporary work agency must compensate the temporary agency worker during periods in which s/he is not placed with a user undertaking.193 Another ground for denying approval according to section 3(1) No 3 AÜG is when the temporary work agency cannot ensure the minimum working conditions, including the wages the temporary agency worker is entitled to. Additional grounds for denying approval are listed in section 3(2)—(5) AÜG for the cross-border provision of workers. Hiring out a worker without prior authorisation is an administrative offence according to section 16(1) No 1 AÜG, and considerable fines apply.194 The penalty envisaged in civil law seems to be at least as effective: according to section 9(1) No 1 AÜG, contracts between temporary work agencies and user undertakings as well as between the former and temporary agency workers are invalid if the temporary work agency does not hold the necessary authorisation in accordance with section 1 AÜG. Section 10(1) sentence 1 AÜG states that if the temporary work agency lacks permission to hire out workers and the employment contract with the worker is consequently invalid (section 9 No 1 in conjunction with section 1 of the Act), an employment relationship between the worker and the user undertaking will be deemed to exist. Section 10(1) sentence 1 aims primarily to protect the worker. It also indirectly ensures that the user undertaking is aware of the relevant circumstances, as it may not wish to find itself in a position to have to employ the temporary agency worker. C. Relationship between Temporary Agency Worker and Temporary Work Agency A contract of employment only exists between the temporary work agency and the temporary agency worker. Only the temporary work agency is the employer. There is no double employment contract.195 However, the contract

191  R Wank, in Erfurter Kommentar zum Arbeitsrecht, 19th edn (Munich CH Beck, 2019), section 3 AÜG note 15. 192 P Schüren, in P Schüren/W Hamann (ed.), Arbeitnehmerüberlassungsgesetz, 5th edn (Munich, CH Beck, 2018), section 3 AÜG notes 119 et seq. 193  Cf also IV.D.(ii). 194  This may be punishable with a fine of up to EUR 30,000 (section 16(2) sentence 1 AÜG). 195  In the past, legal doctrine did indeed deem that such double employment relationships existed. This position is no longer in conformity with current law, however; see P Schüren, in P Schüren/W Hamann (eds), Arbeitnehmerüberlassungsgesetz, 5th edn (Munich, CH Beck, 2018), Introduction note 125. The temporary work agency is also liable for social security

342  Bernd Waas between the temporary work agency and the temporary agency worker will regularly produce a so-called contract for the benefit of third parties (Vertrag zugunsten Dritter) within the meaning of section 328(1) BGB under which ‘the third party acquires the right to request the performance directly’.196 Section 1(1) sentence 3 AÜG stipulates that the assignment and performance of work by employees as temporary agency workers is only permissible if an employment relationship exists between the temporary work agency and the temporary agency worker. The aim of this provision is to counter so-called chain hiring,197 ie that a temporary work agency assigns temporary agency workers it has hired to another agency, which in turn hires them out to another user undertaking. (i)  Fixed-Term and Part-Time Contracts The general regulations apply to the fixing of terms of employment contracts between temporary work agencies and temporary agency workers.198 These also apply to part-time employment relationships.199 (ii)  Rights and Obligations/Liability ‘Standard’ rights and obligations apply to both the temporary work agency and the temporary agency worker. The employment relationship that exists between them is a ‘regular’ one. It only differs from other employment relationships in that the right to the performance of work is transferable—contrary to the rule laid down in section 613 sentence 2 BGB according to which the ‘claim to services, in case of doubt, is not transferable’.200 However, unlike in standard employment relationships, work is

contributions. This corresponds with its position as the worker’s exclusive employer. However, the user undertaking assumes subsidiary liability. According to section 28(2) sentence 1 of Social Code IV (Sozialgesetzbuch IV), the user undertaking shall be liable as the absolute guarantor for contributions related to sickness, care, pension and unemployment insurance, i.e. contributions that are due during the duration of the assignment. 196  See P Schüren, in P Schüren/W Hamann (eds), Arbeitnehmerüberlassungsgesetz, 5th edn (Munich, CH Beck, 2018), Introduction, note 312. 197  Federal Parliament, Printing Matter 18/9232, p 17. It should also be clear to the temporary agency worker for whom s/he is obliged to perform work for. 198  Yet according to section 14(1) TzBfG, when citing grounds for restrictions, the specificities of temporary agency work must be considered; see P Schüren, in P Schüren/W Hamann (eds), Arbeitnehmerüberlassungsgesetz, 5th edn (Munich, CH Beck, 2018), Introduction notes 266 et seqq. 199 P Schüren, in P Schüren/W Hamann (eds), Arbeitnehmerüberlassungsgesetz, 5th edn (Munich, CH Beck, 2018), Introduction note 204. 200  Cf in this regard Federal Labour Court judgment of 17 January 1979—5 AZR 248/78: ‘The Senate considers this to be a regulation [section 613 sentence 2 BGB] that corresponds to the personal elements of the employment relationship and which is an essential principle of labour law’.

Atypical Employment Relationships: The Position in Germany 343 regularly performed for a third party and in accordance with that party’s instructions. The employment relationship between the temporary work agency and the temporary agency worker is characterised by special features. The working hours are—for practical purposes—generally adapted to the user undertaking’s needs. Hence, the duty to work, as enshrined in the contract between the temporary work agency and the temporary agency worker, is fixed in fairly general terms only.201 The temporary work agency carries the so-called employment risk. This means that it must remunerate the temporary agency worker, even if s/he cannot be placed. The regulation in section 11(4) AÜG must be considered in this regard as well. It aims to prevent attempts to circumvent these obligations by denying the temporary work agency the right to make use of certain legal options that are actually permissible in general labour law.202 (iii)  Dismissal Protection The general provisions apply with regard to the possibility of dismissal. This implies that the temporary agency worker, just like any other employee, can claim dismissal protection if s/he has worked for the employer, ie the temporary work agency, for over six months. This ‘waiting period’ arises from section 1(1) of the Act on Dismissal Protection (Kündigungsschutzgesetz, KSchG). The specificities of temporary agency work must be considered.203 This applies in particular to terminations for redundancy. According to section 1(2) sentence 1 KSchG, terminations for redundancy are permissible for serious operational reasons which preclude the employee’s continued employment of the firm. This requirement is not, however, met when the temporary work agency merely does not have the ability to place the temporary agency worker at the time of dismissal. Instead, what is relevant, according to case law, is for the temporary agency worker’s assignment to end, without the possibility of assigning him/her to another labour user or of him/her working in the temporary work agency either immediately or in the foreseeable future.204 Special rules also apply to social criteria which, according to German law, must be taken into consideration in the redundancy selection process.205 That is, the social criteria which the temporary work agency must take into account must also be fully applied to

201 P Schüren, in P Schüren/W Hamann (eds), Arbeitnehmerüberlassungsgesetz, 5th edn (Munich, CH Beck, 2018), Introduction note 198. 202  Federal Parliament Printing Matter VI/2303, p. 14. 203  For more details, see M Fuhlrott/ RA Burkhard Fabritius, ‘Besonderheiten der betriebsbedingten Kündigung von Leiharbeitnehmern’, in NZA 2014, 122. 204 Federal Labour Court judgment of 18 May—2 AZR 412/05. See also Labour Court Mönchengladbach 20 March 2018—1 Ca 2686/17, 205  Cf section 1(3) KSchG.

344  Bernd Waas temporary agency workers who have been hired out, if their substitutability at the user undertaking is precluded neither contractually nor by the principle of good faith.206 D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship While the relationship between the temporary agency worker and the user undertaking is not an employment relationship, it is a legal relationship that gives rise to secondary obligations towards the worker; in particular, to protection and fiduciary duties (Schutz- und Fürsorgepflichten).207 Though there is general agreement on the applicability of these obligations, their legal basis is questionable. Some authors claim that these obligations are based on a quasi-contractual relationship which basically results from the fact that in the course of employment, the likelihood is very high that one party will violate the rights of the other.208 Other authors point to the contract between the temporary work agency and the user undertaking, which they consider a so-called contract with protective effect for third parties (Vertrag mit Schutzwirkung für Dritte). In that case, workers benefit directly from the contract concluded between the temporary work agency and the user undertaking in the sense of enjoying (contractual) claims. As regards the user undertaking’s legal position, the employment contract between the temporary work agency and the (temporary agency) worker is regarded by some authors as also constituting a contract with protective effect for third parties. If the worker causes the user undertaking any damage, the latter can then also make a claim based on contractual protection and fiduciary duties.209 (ii)  Rights and Obligations/Liability Aside from the obligations that may arise for the user of labour, user undertakings are comparable to contractual employers for the purposes of several legal regulations. In this regard, section 6(2) sentence 2 of the General

206 

Federal Labour Court judgment of 20 June 2013—2 AZR 271/12. Schüren, in P Schüren/W Hamann (eds), Arbeitnehmerüberlassungsgesetz, 5th edn (Munich, CH Beck, 2018), Introduction para 128, in particular. 208  See in general Canaris, ‘Ansprüche wegen “positiver Vertragsverletzung” und “Schutzwirkung für Dritte” bei nichtigen Verträgen’, in JZ 1965, p. 475. 209  See P Schüren, in P Schüren/W Hamann (eds), Arbeitnehmerüberlassungsgesetz, 5th edn (Munich, CH Beck, 2018), Introduction paras 124 et seq. 207 P

Atypical Employment Relationships: The Position in Germany 345 Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz, AGG) is of particular relevance; a third party is also considered an employer within the meaning of the Law if employees are assigned to him/her to perform work. (iii)  Health and Safety Section 11(6) AÜG is applicable to temporary workers’ rights to health and safety at work. According to this provision, a temporary agency worker’s activities are subject to public health and safety laws. Obligations that arise from public health and safety laws for the user undertaking are independent of those of the temporary work agency. Section 11(6) must be seen in the light of the fact that a temporary agency worker performs his/her duties as part of the user undertaking’s work organisation. There is a consensus that section 11(6) is declaratory in nature, as the provisions of public health and safety laws, including the Act on Safety and Health Protection at Work (Arbeitsschutzgesetz), apply to the user undertaking as well.210 E. Relationship between Temporary Work Agency and User Undertaking A so-called labour leasing contract exists between the temporary work agency and the user undertaking. The temporary work agency’s primary obligation towards the user undertaking is to provide a worker for the agreed duration, who is ready to work and who meets the contractually agreed requirements. This obligation usually corresponds to a so-called ‘indeterminate obligation’ (Gattungsschuld), as stipulated in section 243 BGB albeit being directed towards a person, not an object.211 Section 1(1) sentence 5 AÜG stipulates that the contract concluded between the temporary work agency and the user undertaking must explicitly refer to the hiring out of temporary agency workers prior to the temporary worker’s assignment or his/her commencement of work. The temporary worker’s identity must be specified in this contract before s/he is hired out (section 1(1) sentence 6 AÜG). The purpose of this regulation, which was introduced through an amendment to the Act on Temporary Agency Work and took effect in 2017, is to prevent abuse in the form of so-called concealed hiring out of employees. In cases of concealed hiring out, temporary agency workers are assigned to an employer

210  See P Schüren, in P Schüren/W Hamann (eds), Arbeitnehmerüberlassungsgesetz, 5th edn (Munich, CH Beck, 2018), section 11 AÜG note 196. 211  Federal Labour Court judgment of 20 June 2013—2 AZR 271/12. Section 243 reads as follows: ‘A person who owes something defined only by class must supply something in return of average kind and quality. If the obliged has fulfilled the requirement on his/her part to supply the particular thing, the obligation is restricted to that thing’.

346  Bernd Waas under a simple contract for services which in reality, however, is a labour leasing contract. When such cases were discovered by the courts in the past, firms frequently invoked their labour leasing licence, which they often kept ‘in stock’. The recently introduced provisions aim to ensure that both the alleged contractor and the contracting party are not in a better position because of the fact that the contractor has been issued a labour leasing licence, than a contractor who engages in the leasing of temporary workers without holding such a licence.212 If the temporary work agency and the user undertaking violate their disclosure requirement, the employment contract between the temporary work agency and the temporary agency worker will be deemed invalid (section 9(1) No 1a AÜG).213 Instead, a fictitious employment relationship will be deemed to exist between the user undertaking and the temporary agency worker (section 10(1) sentence 1 AÜG). Both the alleged contractor (and actual temporary work agency) as well as the alleged purchaser (and actual user undertaking) can be fined (section 16(1) Nos 1c and 1d). Since the amendment of the law on temporary agency work was introduced, the maximum duration for which a user undertaking may hire a temporary agency worker is 18 months (section 1(1) sentence 4 and section 1(1b) sentence 1 AÜG). A deviation from this maximum duration can be established in a collective agreement for the relevant sector by the parties to collective bargaining (section 1(1b) sentence 3 AÜG).214 The purpose of this regulation is to prevent permanent employees from being supplanted by temporary agency workers.215 Any violations of the maximum duration for hiring out a temporary agency worker will result in the invalidity of the contract between the temporary work agency and the temporary agency worker (section 9(1) No 1b AÜG), and on the basis of the statutory fiction of section 10(1) sentence 1 AÜG, will result in the establishment of an employment contract between the user undertaking and the temporary agency worker.216

212 

Federal Parliament Printing Matter 18/9232, p 19. does not, however, apply if the temporary agency worker declares in writing that s/he insists that s/he has concluded a contract with the temporary work agency. 214  There is also room for works agreements (to be concluded between the employer and the works council) if the parties to collective bargaining make room for them or if the works agreement simply refers to a collective agreement (section 1(1b) sentences 4—6). 215  Federal Parliament, Printing Matter 18/9232, p 20. The literature raises questions about the regulation’s effectiveness because it relates to ‘employees’ (rather than to ‘work places’). This means the substitution of permanent employees with temporary workers continues to remain a possibility, because they can be replaced by alternating workers from a ‘carousel of temporary agency workers’; cf. R Giesen, ‘Reform der Leiharbeit’, in ZRP 2016, 130 (132). 216  The temporary agency worker can, however, insist that s/he has concluded a contract of employment with the temporary work agency. 213  This

Atypical Employment Relationships: The Position in Germany 347 F.  Rights and Status of Temporary Agency Worker (i)  Equal Treatment The so-called principle of equal treatment is regulated by section 8 AÜG. According to section 8(1) sentence 1 AÜG, the temporary work agency is required to ensure that the minimum working conditions, including wages, which a comparable employee in the user undertaking is entitled to, also apply to the temporary agency worker for the duration of his/her assignment with the user undertaking. The temporary agency worker is entitled to the wages s/he would be paid if s/he were regularly employed by the user undertaking and performed the same tasks.217 Any remuneration payable within the scope of the employment relationship or continued pay entitlements are considered part of workers’ wages;218 in particular, holiday pay, continued pay, special allowances and premiums as well as capital accumulation programmes for employees.219 To facilitate the practical implementation of the provision of equal pay, section 8(1) sentence 2 AÜG establishes a rule of presumption: if the temporary agency worker is paid the wages specified in the collective bargaining agreement for a comparable employee of the user undertaking (or if there is no comparable employee, wages determined by collective bargaining for a comparable employee in the relevant sector), then it is assumed that the temporary agency worker enjoys equal treatment in terms of wages as prescribed in sentence 1. According to section 8(2) sentence 1 AÜG, collective agreements may deviate from the statutory principle of equality. This, however, has certain limitations: the wage established in the collective agreement may not, according to section 8(2) sentence 1, fall below the fixed minimum hourly wage set in an ordinance (under section 3a(2)).220 Derogations are generally only permissible during the first nine months of the assignment at a user undertaking (section 8(4) sentence 1 AÜG). Derogations of longer duration based on a collective agreement are only permissible if specific requirements stipulated by law are met (section 8(4) sentence 2 AÜG). This regulation opens certain doors for the parties to collective bargaining. They can independently decide how to apply the wages determined by collective bargaining

217 

Federal Labour Court judgment of 19 February 2014—5 AZR 1046/12. Federal Labour Court judgment of 13 March 2013—5 AZR 294/12. 219 Federal Labour Court judgment of 19 February 2014—5 AZR 1046/12 and 5 AZR 1047/12. 220  According to section 3a(1) AÜG, trade unions and employers’ associations which have agreed on nationwide minimum wages for temporary agency work in collective agreements can jointly request the Federal Ministry of Labour and Social Affairs to establish these as the minimum wage in a binding ordinance. 218 

348  Bernd Waas in the given sector to temporary agency workers.221 Under the law, the wages of temporary agency workers must, however, be gradually adapted to these wage levels,222 whereby the final wage level must, at the latest, have been reached after 15 months of work. This regulation draws on existing collective agreements which envisage gradual supplements for temporary agency workers and, in practice, apply to nearly all workers. The so-called revolving door clause (Drehtürklausel) is a special ­regulation included in section 8(3) AÜG. The legislator introduced this regulation to prevent the employer from terminating employment relationships with individuals who are then immediately re-leased to him/her (or an affiliated enterprise). The principle of equal treatment fully applies in such cases; ­deviations in a collective agreement are thus not possible. (ii)  Other Matters N/A G. Information and Consultation/Representation of Temporary Agency Worker Even during their assignments, temporary agency workers remain staff members of the temporary work agency (section 14(1) AÜG). They are, however, entitled to elect a works council at the user undertaking during their assignment, if they have been working in the firm for more than three months (section 7 sentence 2 BetrVG).223 Moreover, it should be noted that the Federal Labour Court abandoned its so-called ‘two components doctrine’ some time ago. According to this doctrine, a worker’s affiliation with a given firm required both the existence of a contract with the firm’s owner and his/her actual integration into the work organisation.224 The new position of the Federal Labour Court implies that temporary agency workers are

221 

Federal Parliament Printing Matter 18/9232, p 24. After a probation period of six weeks. 223  On the other hand, according to section 14(2) sentence 1 AÜG, they cannot be elected. There were claims that the latter would not be in conformity with the Constitution or, more precisely, with Article 3(1) of the Constitution, which requires equality before the law. The Federal Labour Court, however, did not subscribe to this position. In the view of the Court, the legislator can differentiate between temporary agency workers and ‘ordinary’ workers to ensure continuity of the works council. Moreover, the Court pointed out that the works council at the user undertaking basically had no competence over temporary agency workers; to exclude their eligibility was therefore logical; Federal Labour Court judgment of 17 February 2010—7 ABR 51/08; cf also Federal Labour Court judgment of 24 August 2016—7 ABR 2/15 on the ‘division of competences’ between the works council of the user undertaking and the works council of the temporary agency. 224  Federal Labour Court judgment of 5 December 2012—7 ABR 48/11. 222 

Atypical Employment Relationships: The Position in Germany 349 to be taken into consideration when determining the size of a works council, which, according to section 9 BetrVG, depends on the number of employees represented by it.225 Section 14(2) AÜG, which took effect in 2017, reflects the position of the Court by essentially stating that temporary agency workers must, in principle, be regarded as ‘regular’ employees in the context of co-determination at the user undertaking. According to the Federal Labour Court, temporary agency workers who ordinarily work in a given undertaking must also be taken into account when calculating the number of works council members who must be fully released from their work duties under section 38 BetrVG.226 Works councils enjoy substantial rights with regard to temporary agency workers. Specifically, the works council is involved in so-called ‘individual personal matters’. According to section 99(1) sentence 1 BetrVG, which applies to companies that usually employ more than 20 employees with voting rights, the employer shall notify the works council in advance of any recruitment, grading, regrading or transfer, submit the appropriate recruitment documents and, in particular, supply information to the persons concerned. According to the Federal Labour Court, employment of a temporary agency worker qualifies as ‘recruitment’ within the meaning of section 99(1) BetrVG, irrespective of its duration. What is more, the peculiarities of employing temporary agency workers do not have an impact on the employer’s obligation to adequately inform the works council. As a result, it can be reasonably expected for the user undertaking to either request the temporary work agency to provide personal details of potential temporary agency workers or to request the temporary work agency to select a worker to be assigned in a timely manner, in order to ensure that it can meet its obligations arising from section 99(1) of the Act.227 According to section 99(2) No 1 BetrVG, the works council may refuse to consent if the measure taken by the employer ‘were to constitute a breach of any law, ordinance, safety regulation or stipulation of a collective agreement or works agreement, or of a court order or official instruction’. In the view of the Federal Labour Court, this also covers cases in which an employer plans to permanently employ a temporary agency worker. In that case, the works council may refuse its consent as, according to section 1(4) AÜG, assignments must be of a ‘temporary’ nature and must in any event not exceed 18 months.228

225 Federal Labour Court judgment of 13 March 2013—7 ABR 69/11. See also Federal Labour Court judgment of 4 November 2015—7 ABR 42/13 with regard to the position of temporary agency workers in the context of co-determination at board level. 226  Federal Labour Court judgment of 2 August 2017—7 ABR 51/15. 227  Federal Labour Court judgment of 9 March 2011—7 ABR 137/09. 228  Cf in this regard Federal Labour Court judgment of 30 September 2014—1 ABR 79/12 and judgment of 10 July 2013—7 ABR 91/11.

350  Bernd Waas H. Strikes In some sectors, employers seem to be increasingly making use of temporary agency workers to replace employees who are striking. The legislator aimed to prevent this through an amendment of the relevant law: according to section 11(5) sentence 1 AÜG, a user undertaking may not request a temporary agency worker to take up work if his/her firm is involved in a labour dispute.229 This does not apply if it can be proven that the temporary agency worker will not be carrying out tasks that are carried out by employees who are presently on strike (section 11(5) sentence 2 AÜG). This notwithstanding, temporary agency workers have the right to refuse to perform work as he/she is not required to perform work for a user undertaking that is directly involved in a labour dispute (section 11(5) sentence 3 AÜG). The user undertaking must inform the temporary agency worker of this right (section 11(5) sentence 4 AÜG). I.  Collective Bargaining Agreements Deviating from Statutory Provisions The Act on Temporary Agency Work gives parties to collective bargaining substantial room for manoeuvre. This applies, for example, to possible extensions of the 18-month statutory limitation for hiring out temporary workers.230 This also applies to the possibility to derogate from the statutory principle of equal treatment.231

229 Critical, for instance, R Giesen, ‘Reform der Leiharbeit’, in ZRP 2016, 130 (133) in consideration of the viewpoint of state neutrality in labour disputes as well as the aspect that temporary workers would thereby be practically forced to participate in the strike. 230  Cf and VI. 231  Cf and III.

13 Atypical Employment Relationships: The Position in Greece COSTAS PAPADIMITRIOU

I. INTRODUCTION

A

MONG ATYPICAL EMPLOYMENT relationships, Greek labour law only regulated fixed-term contracts for a long time. Regulations on part-time employment contracts were only issued in 1990 and for temporary work agency contracts in 2000. All the relevant European Directives have been implemented into Greek law. Statutes, collective agreements and arbitration awards are legal sources that play an important role in relation to labour market flexibility. The parties to a collective agreement can, in principle, derogate from statutory law if the collective agreement is more favourable to the employee. A collective agreement can even derogate to the detriment of the employee, insofar as this possibility is provided for in a statute. II.  FIXED-TERM WORK

The conclusion of fixed-term work contracts has been the subject of intense debate in Greece, due to the prevalence of such contracts.1 The problem appeared to be particularly acute in the public sector, where employees were often hired under fixed-term contracts, although their employment contracts could qualify as permanent ones without complying with the prescribed rigid recruitment procedures for permanent employees.2

1 F Dermitzaki, The differences in treatment of fixed-term employees (Η απαγόρευση των διακρίσεων σε βάρος των εργαζομένων ορισμένου χρόνου) (Athens, NB, 2010) pp 17 ff, K. Rizos, Η σύμβαση εξαρτημένης εργασίας ορισμένου χρόνου (The fixed-term employment contract) (Athens, NB, 2016) pp 1 ff, D Zerdelis, Ατομικές Εργασιακές Σχέσεις (Individual labour relationships) (Athens-Thessaloniki, Sakkoulas, 2015) pp 383 ff. 2  I Koukiadis, Εργατικό Δίκαιο-Ατομικές εργασιακές σχέσεις (Labour Law-Individual Labour Relationships) (Athens-Thessaloniki, Sakkoulas, 2014) pp 1086 ff.

352  Costas Papadimitriou Two presidential decrees were issued to transpose Directive 99/70/EC, which, under certain conditions, allows conversions of fixed-term relationships into employment relationships of indefinite duration. The three measures provided in the Directive to prevent abuse of fixed-term contracts have been implemented in the national legislation and comprise: (a) the requirement of objective reasons justifying the renewal of fixed-term contracts or relationships, (b) the maximum total duration of successive fixed-term work contracts or relationships, and (c) the maximum number of renewals of such contracts or relationships.3 A.  Legal Definitions/Formal Requirements Fixed-term contracts are regulated in Greece by Presidential Decrees 81/2003 (which in principle applies to private sector employees) and 164/2004 (which applies to public sector employees). Fixed-term work contracts constitute a specific category of employment contracts. A fixed-term work contract is a contract of employment in which the parties either agree on a specific date of termination, which marks the end of the employment relationship, or agree on setting a specific period for the duration of the employment relationship.4 This contract ends automatically when the agreed period expires. The duration of such a contract is determined by the contracting parties. However, the employee shall not be bound by the employer for life. The employee has the right to terminate the fixed-term work contract after five years if the predetermined period agreed between the parties at the outset exceeds those five years.5 The parties can also agree that the employment relationship will end upon completion of a specific task for which the employee is hired or the occurrence of a specific event.6 Presidential Decrees 81/2003 and 164/2004 contain legal definitions of ‘fixed-term worker’ and of ‘comparable permanent worker’. The term ‘fixedterm worker’ refers to a person who has concluded an employment contract or established an employment relationship directly with the employer, where the end of the work contract or employment relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event. The term, ‘comparable

3  G Leventis and C Papadimitriou, Ατομικό Εργατικό Δίκαιο (Individual Labour Law) (Athens, DEΝ, 2011) pp 151 ff. 4  Art 669(2) of the Greek Civil Code. 5  Art 670 of the Greek Civil Code. 6  Art 3 para (a) of Presidential Decree 81/2003.

Atypical Employment Relationships: The Position in Greece 353 permanent worker’ refers to a worker working under an employment contract or relationship of indefinite duration in the same establishment, who is engaged in the same or similar work/occupation, due regard being given to qualifications/skills. Where there is no comparable permanent worker in the same establishment, the comparison shall be made with reference to the applicable collective agreement, or where there is no applicable collective agreement, in accordance with national law, collective agreements or general practice.7 There are no formal requirements regarding the first fixed-term work contract concluded between the employer and the employee. A renewal of such a contract must, however, be concluded in writing.8 The reasons justifying the renewal of the fixed-term work contract must be mentioned therein. Otherwise, the fixed-term work contract will be deemed a contract of indefinite duration.9 The contract does not, however, have to be concluded in writing if the renewal of the contract is occasional and its duration is less than 10 days.10 B.  Lawful Stipulation of the Contractual Terms Even if the parties to an employment contract are free to determine its content and its term, any efforts to evade legal provisions, such as dismissal law, are not acceptable. The conclusion of a fixed-term contract and particularly of a chain of successive contracts might constitute such an evasion. The conclusion of these contracts must be justified by a legitimate objective reason.11 Under Greek legislation,12 the provisions on terminations of employment contracts of indefinite duration likewise apply to fixed-term employment contracts, if the term fixed is not warranted by the nature of the contract. The conclusion of fixed-term contracts may not only constitute a way to evade dismissal law, but also a way to evade the strict recruitment procedures in the public sector applicable to permanent employees. Due to the 7 Art 3 para (b) of Presidential Decree 81/2003 (private sector), Art 3 para (b), para 4 of Presidential Decree 164/2004 (public sector). 8 Art 5(2) of Presidential Decree 81/2003. D Zerdelis, Ατομικές Εργασιακές Σχέσεις ­(Individual labour relations) (Athens-Thessaloniki, Sakkoulas, 2015) p 431. K Rizos, Η σύμβαση εξαρτημένης εργασίας ορισμένου χρόνου (The fixed-term employment contract) (Athens, NB, 2016) p 137. 9  D Zerdelis, Ατομικές Εργασιακές Σχέσεις (Individual labour relations) (Athens-­Theffaloniki, Sakkoulas, 2015) p 432. KA Rizos, Η σύμβαση εξαρτημένης εργασίας ορισμένου χρόνου (The fixed-term employment contract) (Athens, NB, 2016) p 138. 10  Art 5(2) of Presidential Decree 81/2003. 11 G Leventis and C Papadimitriou, Ατομικό Εργατικό Δίκαιο (Individual Labour Law) (Athens, DEΝ, 2011) p 133 ff. 12  Art 8(2) Law 2112/1920.

354  Costas Papadimitriou prevalence of this problem in the public sector and the need to protect the public interest, certain requirements must be applied to recruitment procedures. Different provisions apply to the conclusion of fixed-term contracts in the public and in the private sector.13 (i)  Private Sector Since 1920, the provisions on the termination of employment contracts of indefinite duration apply to fixed-term contracts as well, if the fixed term is not warranted by the nature of the contract and was set deliberately to circumvent the legal notice provisions on termination of the employment contract.14 To prevent abuse in the form of successive fixed-term work contracts, recent Greek legislation has also provided that the renewal of such contracts must be justified by objective reasons.15 Fixed-term contracts shall be regarded as ‘successive’ if they are concluded between the same employer and worker under the same or similar conditions of employment and are not separated by a period longer than 45 days‚ including non-working days.16 An objective reason for concluding a renewal may be linked to the form, the type or the activity of the employer or undertaking, or to special reasons or needs, provided that those circumstances are (directly or indirectly) apparent from the contract. Such circumstances include the temporary replacement of a worker,17 the performance of transient work, seasonal work,18 a seasonal undertaking,19 the temporary accumulation of work, or circumstances under which the fixed duration is linked to education or training, or where the renewal is connected with a specific event,20 or the contract is renewed with the aim of facilitating a worker’s transfer to related

13  L Kiosse-Pavlidou, Οι συμβάσεις εργασίας ορισμένου χρόνου στο Δημόσιο, τα νπδδ και τον ευρύτερο δημόσιο τομέα (Fixed-term employment contracts in the State, public entities and the broader public sector) (Athens-Thessaloniki, Sakkoulas, 2010) p 231 ff. 14  Art 8(2) Law 2112/1920. 15  Art 5 of Presidential Decree 81/2008. G Leventis and C Papadimitriou, Ατομικό Εργατικό Δίκαιο (Individual Labour Law) (Athens, DEΝ, 2011) p 133 ff. 16  In the case of a group of undertakings, the term ‘the same employer’ shall include undertakings within that group. 17  Areios Pagos (Supreme Court) 346/1997, Δελτίον Εργατικής Νομοθεσίας (Bulletin of Labour Law) 1997, p 701. Areios Pagos (Supreme Court) 1493/1986, Δελτίον Εργατικής Νομοθεσίας (Bulletin of Labour Law) 1987, p 561. 18 Areios Pagos (Supreme Court) 946/1988, Δελτίον Εργατικής Νομοθεσίας (Bulletin of Labour Law) 1995, p 856. 19 Areios Pagos (Supreme Court) 535/1995, Δελτίον Εργατικής Νομοθεσίας (Bulletin of Labour Law) 1995, p 856. 20  I Koukiadis, Εργατικό Δίκαιο-Ατομικές εργασιακές σχέσεις (Labour Law-Individual labour relations) (Athens-Thessaloniki, Sakkoulas, 2014) p1082 ff. D Zerdelis, Ατομικές Εργασιακές Σχέσεις (Individual labour relations) (Athens-Thessaloniki, Sakkoulas, 2015) p 383 ff.

Atypical Employment Relationships: The Position in Greece 355 employment or for performing a specific assignment or project.21 The duration of this contract can even be for one day, as in the case of a waiter hired for a reception.22 However, according to the Greek Supreme Court, the fluctuating number of students in a private foreign language school justifies the renewal of their teachers’ fixed-term contracts.23 Where the duration of successive fixed-term work contracts or relationships exceeds three years in total, it will be presumed that they are being concluded to cover the fixed and permanent needs of the undertaking or its operation, and they will consequently be converted into employment contracts or relationships of indefinite duration. Where there are more than three renewals of successive employment contracts or relationships (as defined above) within a period of three years, it will be presumed that the contracts are being concluded to cover the fixed and permanent needs of the undertaking or its operation, and they will consequently be converted into work contracts or relationships of indefinite duration.24 It shall be for the employer in each case to prove otherwise. (ii)  Public Sector Greek legislation provides that successive contracts concluded between a worker and the same employer (of the public sector) for the same or similar professional activity and under the same or similar conditions of employment shall be prohibited if the contracts are separated by a period of less than three months.25 Such contracts may be concluded by way of exception if justified by an objective reason. An objective reason exists if the contracts succeeding the original contract are concluded for the purpose of meeting similar special needs which are directly and immediately related to the form, type or activity of the undertaking.26 The number of successive contracts shall not, under any circumstances, be more than three, and the employment may not exceed an overall period of 24 months in total, irrespective of whether the contracts are concluded on the basis of other provisions of current legislation.27

21 Areios Pagos (Supreme Court) 936/2004, Επιθεώρηση Εργατικού Δικαίου (Review of Labour Law) 1989, p 705. 22  KA Rizos, Η σύμβαση εξαρτημένης εργασίας ορισμένου χρόνου (The fixed-term employment contract) (Athens, NB, 2016) p 68. 23 Areios Pagos (Supreme Court) 157/1978, Δελτίον Εργατικής Νομοθεσίας (Bulletin of Labour Law) 1978, p 407. 24  Art 5 of Presidential Decree 81/2008. 25  Art 5 of Presidential Decree 164/2004. 26  Art 5(1) of Presidential Decree 164/2004. 27  Art 6(1) of Presidential Decree 164/2004.

356  Costas Papadimitriou An overall period of employment exceeding 24 months or a higher number of successive contracts shall only be permitted in case the employee is engaged in special categories of work provided for under the current legislation such as, in particular, senior managerial roles, a specific research project or any subsidised or financed programme, or work required to honour obligations pursuant to contracts with international organisations.28 (iii) Consequences There are some important differences between the private and the public sectors as regards the consequences of invalid fixed-term contracts, primarily because of the existing rules on recruitment in the public sector. Even if the conversion of a fixed-term contract into one of indefinite duration is the standard procedure if invalid fixed-term contracts are concluded in the private sector, the consequence in the public sector is different. Conversions of fixed-term contracts into contracts of indefinite duration are actually excluded in the public sector. In the past, it was a frequent occurrence for Greek courts and even the law29 to order conversions of a chain of fixed-term employment contracts into permanent ones.30 This resulted in the legislator amending the Greek Constitution in 2001 to exclude such conversions in the public sector in the future. (a)  Private Sector When the purpose of a fixed duration is to circumvent the application of the provisions on the termination of contracts of indefinite duration, the fixed-term contract is deemed to be an open-ended contract.31 That is, when the fixed term of a contract is not justified objectively by an important reason associated with either the nature of the work or the company’s special needs, the contract is treated like an open-ended one.32 Severance pay is provided by law and in the event that the employer terminates the contract without paying the appropriate amount of severance pay, the dismissal is deemed unlawful and is consequently void, and the employee is entitled to claim payment of his/her salary until his/her reinstatement or until a (new) lawful termination.

28 

Art 6(2) of Presidential Decree 164/2004. For example, Law 1476/1984, Law 1735/1987, Law 2130/1993, Law 2839/2000. Pagos (Supreme Court) 1819/1998, Επιθεώρηση Εργατικού Δικαίου (Review of Labour Law) 1999, p 367. 31 Art 8 of Law 2112/1920. G Leventis and C Papadimitriou, Ατομικό Εργατικό Δίκαιο (Individual Labour Law) (Athens, DEΝ, 2011) p 131. 32  D Zerdelis, Ατομικές Εργασιακές Σχέσεις (Individual Labour Relations) ­(Athens-Thessaloniki, Sakkoulas, 2015) p 433. 29 

30 Areios

Atypical Employment Relationships: The Position in Greece 357 (b)  Public Sector The Greek Constitution provides33 that conversions of staff into permanent civil servants or conversions of their contracts into contracts of indefinite duration are prohibited. This prohibition also applies to those employed on the basis of a contract for work. Article 7 of Presidential Decree No 164/2004 provides that any contract concluded in breach of the provisions of the decree on the duration of fixed-term contracts will automatically be invalid. If all or part of the invalid contract has been performed, the worker must be paid the amount of money s/he is owed on the basis of the work already performed, and any money paid cannot be recovered. The worker shall, for the period during which s/he performed work under an invalid contract, be entitled to compensation equal to the sum to which an equivalent worker under a contract of indefinite duration would be entitled upon termination of his/her contract. If several invalid contracts were concluded, the above compensation is to be calculated on the basis of the total period of employment under invalid contracts. The amount of money paid by the employer to the worker shall be charged to the culpable party. Persons in breach of the provisions of this decree are criminally liable and may be punished by a term of imprisonment. If the offence was committed as a result of negligence, the culpable party shall be punished by a term of imprisonment of up to one year. The same infringement also constitutes evidence of a serious disciplinary offence. Hence, pursuant to the above provision the conversion of a fixed-term work contract into an employment contract of indefinite duration when the total number of fixed-term employment contracts has reached a ­certain duration, is not accompanied by material amendments to the clauses of the previous contract in a way that seems unfavourable to the respective worker.34 Taking into account that the legislator has not determined under which conditions fixed-term employment contracts or relationships in the public sector will be transformed into contracts or employment relationships of indefinite duration, the Greek Supreme Court (Areios Paros) has on many occasions35 stated that Council Directive 1999/70/EC on fixed-term work does not accord to employees the possibility of claiming its provisions in the event of failure of the state to adopt the provisions necessary to comply with this Directive. The Court also stated that the above Directive does not

33 

Art 103(8) of the Constitution. I Koukiadis, Εργατικό Δίκαιο-Ατομικές εργασιακές σχέσεις (Labour Law-Individual Labour Relationships) (Athens-Thessaloniki, Sakkoulas, 2014) p 1082 ff. 35  Eg judgments no 1618/2011, 1622/2011, 1687/2011, 1781/2011. 34 

358  Costas Papadimitriou impose the qualification of ‘successive’ fixed-term employment contracts as contracts of indefinite duration. Even in the event that objective reasons justifying the renewal of such contracts do not exist, the classification of ‘successive’ fixed-term work contracts as contracts of indefinite duration is not obligatory after the end of the period of transposition. C.  Termination/End of Fixed-Term Contracts A fixed-term contract automatically ends when the period agreed on expires or when its purpose has been achieved. The employer is not required to inform the employee thereof.36 No severance pay is provided for. Part of the legal theory asserts that the lack of a provision on severance pay constitutes a violation of the principle of equal treatment between permanent and fixedterm employees.37 A fixed-term contract in the private sector is deemed to have been converted into one of indefinite duration when it continues to be valid although the agreed period has been attained.38 The parties to a fixed-term employment contract have the right to extraordinary termination without notice in case of serious reasons.39 The reason for termination does not need to be communicated by the employer to the employee at the time of dismissal. The right to extraordinary termination may not be previously excluded by agreement.40 If there are serious grounds justifying the termination or if the contract is terminated due to a breach of contract, the guilty party shall be liable for damages.41 If the serious grounds on account of which the contract is terminated by an employer harm the employee’s personal or economic situation, the court may—at its discretion—award a reasonable compensation to the employee.42 Finally, in the event that the employer terminates a fixed-term work contract without presenting and proving a serious reason for doing so, the employment relationship shall continue until the contract ceases and the employee is entitled to claim payment of his/her salary until the contract officially ends.

36  I Koukiadis, Εργατικό Δίκαιο-Ατομικές εργασιακές σχέσεις (Labour Law-Individual Labour Relationships) (Athens-Thessaloniki, Sakkoulas, 2014) p 1056. 37  F Dermitzaki, The differences in treatment of fixed-term employees (Η απαγόρευση των διακρίσεων σε βάρος των εργαζομένων ορισμένου χρόνου) (Athens, NB, 2010) p 231 ff. 38  Art 671 of the Greek Civil Code. 39  Art 672 of Civil Code. 40 G Leventis and C Papadimitriou, Ατομικό Εργατικό Δίκαιο (Individual Labour Law) ­(Athens, DEΝ, 2011) p 943. 41  Art 673 of Civil Code. 42  Art 674 of Civil Code.

Atypical Employment Relationships: The Position in Greece 359 A contract for work concluded indefinitely or for a period exceeding five years may be terminated by the employee at any time after the expiration of five years by advance notice of six months.43 D.  Rights and Status of Fixed-Term Worker (i)  Equal Treatment A fixed-term worker shall not be treated in a less favourable manner than comparable permanent workers solely because s/he has a fixed-term contract or relationship, unless differential treatment is justified on objective grounds.44 Where rights depend on length of service, a difference in treatment between fixed-term and permanent workers may not arise, unless it is justified by an objective reason.45 However, Greek legislation does not provide for any compensation for termination of a contract of employment for a worker employed under a fixed-term work contract, while such compensation is granted to comparable permanent workers.46 The period of service qualifications relating to specific conditions of employment shall be the same for fixed-term workers as for permanent workers, except where different lengths of service qualifications are justified by objective reasons.47 (ii)  Employment Opportunities Employers shall inform fixed-term workers about vacancies that become available in the undertaking or establishment to ensure that they have the same opportunity to secure permanent positions as all other workers. Such information may be provided by way of a general announcement at a suitable place in the undertaking or establishment, or by way of any other appropriate means.48

43 

Art 670 of Civil Code. 4(1) of Presidential Decree 81/2003 (private sector), Art 4(1) of Presidential Decree 164/2004 (public sector). 45  Art 4(2) of Presidential Decree 81/2003 (private sector), Art 4(2) of Presidential Decree 164/2004 (public sector). 46  See judgment of European Court of Justice of 14 September 2016, Case C-596/14 Ana de Diego Porras v Ministerio de Defensa, ECLI:EU:C:2016:683. 47  Art 4(3) of Presidential Decree 81/2003 (private sector), Art 4(2) of Presidential Decree 164/2004 (public sector). 48  Art 6(3) of Presidential Decree 81/2003 (private sector), Art 8(1) and (2) of Presidential Decree 164/2004 (public sector). 44  Art

360  Costas Papadimitriou Employers shall, to the extent possible, facilitate access of fixed-term workers to appropriate training opportunities in order to enhance their skills, career development and occupational mobility.49 (iii)  Other Matters The duration of the contract is of no relevance. Even if the contract is concluded for a single day, it is valid if it is based on objective grounds.50 Resolutive conditions are not prohibited under Greek law. Nevertheless, it is rare for such a clause to be included in a work contract. There is no agreement in legal theory on the nature of such contracts as fixed-term or open-ended.51 If a clause providing for dismissal in accordance with the provisions for contracts of indefinite duration is included in a fixed-term work contract, the contract will be deemed to have been converted into an open-ended work contract at the time of dismissal and the fixed-term employee will be entitled to the same rights as a permanent employee.52 E.  Information and Consultation Fixed-term workers must be taken into consideration when calculating the threshold for workers’ representative bodies as provided in national and Community law.53 Employers, to the extent possible, should provide information about fixed-term workers in the undertaking to existing workers’ representative bodies.54 F.  Specific Provisions There are no specific provisions on particular professions such as research or artistic staff.

49  Art 6(2) of Presidential Decree 81/2003 (private sector), Art 8(3) of Presidential Decree 164/2004 (public sector). 50 Areios Pagos (Supreme Court) 569/2009, Επιθεώρηση Εργατικού Δικαίου (Review of Labour Law) 2010, p 757. 51 D Zerdelis, Ατομικές Εργασιακές Σχέσεις (Individual Labour Relationships) (AthensThessaloniki, Sakkoulas, 2015) p 388. 52  Art 40 of Law 3986/2011. 53 Art 7(1) of Presidential Decree 81/2003 (private sector), Art 9 para 1 of Presidential Decree 164/2004 (public sector). 54 Art 7(2) of Presidential Decree 81/2003 (private sector), Art 9 para 2 of Presidential Decree 164/2004 (public sector).

Atypical Employment Relationships: The Position in Greece 361 Special provisions apply to air transportation and aircraft ground handling services. The conclusion of fixed-term employment contracts in the above sectors is considered justified.55 G. Collective Bargaining Agreements Deviating from Statutory Provisions Taking into account the general provisions on collective agreements,56 they cannot deviate from statutory provisions, unless they provide for more favourable conditions for fixed-term employees. That is, the number of possible extensions and the maximum duration of the contract may not be modified on the basis of a collective agreement to the detriment of employees. III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements Part-time work is a form of employment in which the (daily, weekly or monthly) working hours are shorter than those of standard or full-time employment, and a corresponding reduction in pay applies. The parties can also agree on fewer working days per week or per month.57 Article 38 of Law 1892/1990 contains legal definitions of ‘part-time worker’ and of ‘comparable full-time worker’. The term ‘part-time worker’ refers to an employee whose normal hours of work, calculated on a weekly basis or on average over a period of employment of up to one year, are less than the normal hours of work of a comparable full-time worker.58 The term ‘comparable full-time worker’ means a full-time worker in the same establishment having the same type of employment contract or relationship, who is engaged in the same or a similar work/occupation, due regard being given to other considerations which may include seniority and qualification/ skills. Where there is no comparable full-time worker in the same establishment, the comparison shall be made with reference to the applicable collective agreement or, where there is no applicable collective agreement, in accordance with national law, other collective agreements or practice.59 According to the general rule, when an employment contract is entered into, it shall refer to full-time work. The conclusion of a part-time work 55 

Art 5(1) of Presidential Decree 81/2003. Art 10 of Law 1876/1990. 57 Art 38(1) of Law 1892/1990. V Douka, Μερική Απασχόληση (Part-time employment) (Athens-Theffaloniki, Sakkoulas, 2004) p 121. 58  Art 38(2) a of Law 1892/1990. 59  Art 38(2) b of Law 1892/1990. 56 

362  Costas Papadimitriou contract requires mutual agreement between the employee and the employer, and can either be concluded at the commencement of the employment relationship or at a later point. It must be concluded in writing60 and include some relevant information, such as the names of the parties, the place of work, the working time, the periods of work and the salary.61 In the event of an oral agreement, the contract will be deemed a full-time employment contract.62 Moreover, the part-time work contract must be sent to the local Labour Inspectorate within eight days from its conclusion, otherwise it will be presumed that it is a concealed full-time employment contract. This provision introduces a rebuttable presumption that a full-time contract exists in the event of failure of notification. Consequently, the employer bears the burden of proof that the contract is a part-time employment contract.63 Certain forms of part-time work, such as short-term work (alternation of working and non-working periods) may be unilaterally imposed by the employer if the enterprise is experiencing a shortage of business activity.64 This is considered a measure to avoid redundancies. Around 8.5 per cent of total employment in 2013 in Greece was part-time employment.65 No minimum hours of employment are provided for part-time employees; nor is there a provision for the maximum percentage of part-time workers compared to the total number of employees of the undertaking. Part-time employment is not permitted in the state service and in the local administration (eg municipalities). B.  Opportunities for/Right to Part-Time Work The right of employees to unilaterally convert their full-time employment relationship into one of part-time is recognised. To exercise this right, the undertaking must employ more than 20 employees and the conversion may not negatively affect its functional needs. The employee has the right to return to full-time employment later.66 If the employer does not reply to the employee’s request to work part-time in writing within 30 days, it is considered that the employer has accepted it.

60 

Art 38(1) of Law 1892/1990. Art 38(5) of Law 1892/1990. Douka, Μερική Απασχόληση (Part-time employment) (Athens-Thessaloniki, Sakkoulas, 2004) p 256 ff. Areios Pagos (Supreme Court) 1264/2013 Δίκαιο Επιχειρήσεων και Εταιρειών (Law of Enterprises and of Companies) 2011, p 834. 63  V Douka, Μερική Απασχόληση (Part-time employment) (Athens-Thessaloniki, Sakkoulas, 2004) p 274 ff. 64  Art 13 of Law 2961/1954. 65  Ergani-Statistics of Ministry of Employment. 66  Art 38(12) of Law 1892/1990, as amended by Law 3846/2010. 61 

62  V

Atypical Employment Relationships: The Position in Greece 363 C.  Opportunities for/Right to an Extension of Working Time Part-time employees shall perform work over and above their contractually agreed hours if they are in a position to perform additional work and refusal to do so would be contrary to the requirements of good faith. The employee is entitled to refuse to perform overtime work ‘when this overtime is continuously required’ or in the event that s/he has other employment or bears family obligations that prevent him/her from performing overtime work.67 Part-time workers must be given priority for recruitment when full-time jobs of the same professional category arise in the same undertaking.68 The law specifies that this priority is subject to ‘the same terms’, ie among employees of the same professional category, the same qualifications and the same financial conditions.69 D.  Rights and Status of Part-Time Worker (i)  Equal Treatment Part-time workers shall not be treated in a less favourable way than comparable full-time workers solely because they work part-time, unless differential treatment is justified on objective grounds.70 The principle of pro rata temporis applies. Greek law71 provides that the salary of part-time workers is calculated on the basis of a ‘comparable full-time worker’ in accordance with their working hours. Part-time workers have the right to paid annual leave and to vacation bonuses on the basis of the remuneration they would receive if they worked during the leave period.72 They are also insured by the National Security Organisation (IKA). If they work more than four hours per day, they have full insurance coverage, which constitutes a favourable measure.73 They are also entitled to an increase of their salary for night shifts or work on Sundays. The part-time employment period will also be taken into account when calculating the employee’s seniority. Finally, part-time employees must have access to vocational training under the same conditions as full-time employees and shall have access to 67 Art 38(9) of Law 1892/1990. V Douka, Μερική Απασχόληση (Part-time employment) (Athens-Thessaloniki, Sakkoulas, 2004) p 274 ff. 68  Art 38(10) of Law 1892/1990. 69 Areios Pagos (Supreme Court) 1834/2001, Επιθεώρηση Εργατικού Δικαίου (Review of Labour Law) 2003, p 932. I Koukiadis, Εργατικό Δίκαιο-Ατομικές εργασιακές σχέσεις (Labour Law-Individual labour relations) (Athens-Thessaloniki, Sakkoulas, 2014) p 529. 70  Art 38(7) of Law 1892/1990. Art 2b of Law 3846/2010. 71  Art 2(9) of Law 3846/2010. 72  Art 38(10) of Law 1892/1990. 73  Art 39 of Law 1892/1990.

364  Costas Papadimitriou the amenities or collective facilities available to the ‘regular’ employees of the undertaking.74 (ii)  Dismissal Protection Greek legislation includes measures to protect workers who are employed on a standard full-time basis. For instance, it stipulates that the termination of employment due to the worker’s refusal to transfer from full-time to parttime work is void. The above rule does not provide for the opposite, ie that the termination of employment due to the worker’s refusal to transfer from part-time to full-time work is void.75 Case law has confirmed the rule that termination of employment due to the worker’s refusal to transfer from full-time to part-time work is void.76 On the other hand, some legal scholars argue that objective reasons may justify the transfer from full-time to part-time work and termination of the contract if the employee rejects such a transfer.77 (iii)  Other Matters In the event of daily part-time work, the working hours must be consecutive. Some exceptions are provided for a very few professions, such as drivers of school buses or teachers of foreign languages.78 E.  Information and Consultation The employer must provide all relevant information to the employee representatives on the number of part-time workers compared to the total number of employees in the undertaking as well as on the prospects of their recruitment under a full-time employment contract.79 F.  Other Part-Time Arrangements No other specific part-time arrangements are provided for by Greek law. 74 

Art 38(14) of Law 1892/1990. Art 38(6) of Law 1892/1990. 76 Areios Pagos (Supreme Court) 775/1999, Δελτίον Εργατικής Νομοθεσίας (Bulletin of Labour Law) 2000, p 20. 77 I Koukiadis and D Zerdelis, ‘Τροποποιητική καταγγελία για τη μετατροπή της πλήρους απασχόλησης σε μερική και η αρχή της ultima ratio’ (‘Dismissal for conversion of the contract from full to part-time and the principle of ultima ratio’, Δελτίον Εργατικής Νομοθεσίας (Bulletin of Labour Law) 2011, p 244. 78  Art 38(6) of Law 1892/1990. 79  Art 38(15) Law 1892/1990. 75 

Atypical Employment Relationships: The Position in Greece 365 G. Collective Bargaining Agreements Deviating from Statutory Provisions The law provides that company collective agreements may complement or amend the legislative provisions on part-time work.80 Taking into account the general provisions on collective agreements,81 it could be concluded that other types of collective agreements (ie national or branch collective agreements) may only provide more favourable measures for part-time employees. IV.  TEMPORARY AGENCY WORK

Temporary agency work consists of a special employment relationship ­including three parties: the temporary work agency (the direct employer), the temporary agency worker and the user undertaking (the indirect employer).82 This atypical form of work was recognised in Greece for the first time in 2001 by Law 2956/2001. Law 4052/2012 ultimately completed the implementation of Directive 2008/104/EC.83 Temporary agency workers are employees of a temporary work agency and perform their work for a user undertaking with which the agency has concluded a service contract.84 Their employer (considered the direct employer in law) is the temporary work agency. Managerial prerogatives are exercised by the user undertaking (considered the indirect employer in law). The temporary agency worker’s salary is paid by the temporary work agency. A.  Legal Definitions/Formal Requirements Law 4052/2012 contains legal definitions of ‘temporary agency work’, of ‘temporary-work agency’ and of ‘user undertaking’. ‘Temporary agency work’ is the employment relationship within which the employee signs an employment contract with the temporary work agency in order to be temporarily placed at the disposal of one or more user undertaking(s) to complete a task.85 80 

Art 38(16) Law 1892/1990. Art 10 Law 1876/1990. 82 C Papadimitriou, Η προσωρινή απασχόληση (The temporary agency work) (AthensKomotini, AN Sakkoulas, 2007) p 7 ff. S Kinigopoulou, Προσωρινή απασχόληση (Τemporary agency work) (Athens, NB, 2015) p 6 ff. 83 C Papadimitriou, ‘Οι νομοθετικές ρυθμίσεις για την προσωρινή απασχόληση’ (‘The new ­legislative rules concerning temporary agency work’), Δελτίον Εργατικής Νομοθεσίας (Bulletin of Labour Law) 2000, p 98 ff. 84  Art 115 para (c) of Law 4052/2012. 85  Art 115 para (a) of Law 4052/2012. 81 

366  Costas Papadimitriou A ‘temporary work agency’ is the undertaking that employs temporary agency workers to assign them to user undertakings to work there under their supervision and direction.86 A ‘user undertaking’ refers to any natural or legal person for whom and under whose supervision and direction a temporary agency worker works temporarily.87 Pursuant to the provisions of Law 2956/2001, an employer can resort to hiring temporary agency workers at any time, without this option being linked to specific reasons. Law 3846/2010 amended this rule and limited the use of temporary workers to specific reasons pertaining to the company’s functional activity.88 This use was only admissible for reasons justified by ‘exceptional, temporary or seasonal needs of the company’. Finally, Law 4254/2014 abrogated this rule. The employer can now resort to temporary agency work as needed, without this option being linked to specific reasons. Greek law provides for certain prohibitions concerning the use of temporary agency workers.89 Their use is prohibited when the company has initiated collective redundancies over the previous six months or if workers with the same skill set have been made redundant is the previous three months.90 Secondly, the use of temporary workers is prohibited for work in the construction sector.91 However, the above prohibition does not concern building works with an initial budget of more than EUR 10 m ­ illion, which are performed on account of the state, of public entities, of local authorities or of other public sector companies. Finally, the use of temporary agency workers is prohibited for a task that is dangerous to the health and safety of employees.92 B.  Registrations, Licensing, Financial Guarantees etc Temporary work agencies must announce the start of their operation to the Ministry of Employment and must also register at the special register maintained by the Directorate of Employment of the above Ministry.93

86 

Art 115 para (b) of Law 4052/2012. Art 115 para (d) of Law 4052/2012. 88 C Papadimitriou, Η προσωρινή απασχόληση (The temporary agency work) (AthensKomotini, AN Sakkoulas, 2007) p 136 ff. 89  S Kinigopoulou, Προσωρινή απασχόληση (Τemporary agency work) (Athens, NB, 2015) p 57 ff. 90  Art 116 para (b) of Law 4052/2012. 91  Art 116 para (e) of Law 4052/2012. 92  Art 116 para (d) of Law 4052/2012. 93 Art 128(2) of Law 4052/2012. S Kinigopoulou, Προσωρινή απασχόληση (Τemporary agency work) (Athens, NB, 2015) p 44 ff. 87 

Atypical Employment Relationships: The Position in Greece 367 No previous licence is required.94 The competent service of the Ministry has the duty to examine whether the necessary conditions required by law are fulfilled and prohibit the exercise of the activity if the conditions are not met. The agency shall deposit two letters of guarantee as security for payments due to employees and to social security institutions.95 The exclusive purpose of the temporary work agency is to provide user undertakings with temporary services provided by their employees, to place or evaluate employees and to consult employees on their professional orientation.96 C. Relationship between Temporary Agency Worker and Temporary Work Agency (i)  Fixed-Term and Part-Time Contracts The contract of employment between the employee and the temporary work agency is either a fixed-term contract or one of indefinite duration.97 The conclusion of an open-ended contract is extremely rare. The conclusion of a part-time employment contract with the temporary work agency is not excluded. (ii)  Rights and Obligations/Liability The temporary work agency has all the rights and obligation of an employer.98 The principle of equal treatment obligates the temporary work agency to grant remuneration and other conditions to the employee, for the duration of the assignment, equal to those of comparable employees of the user undertaking.99 Temporary agency workers also enjoy the same level of protection with reference to occupational health and safety conditions.100

94 C Papadimitriou, ‘Οι νομοθετικές ρυθμίσεις για την προσωρινή απασχόληση’ (‘The new legislative rules concerning temporary agency work’), Δελτίον Εργατικής Νομοθεσίας (Bulletin of Labour Law) 2000, p 107. 95  Art 126(1) of Law 4052/2012. 96 Art 122(1) of Law 4052/2012. C Papadimitriou, ‘Οι νομοθετικές ρυθμίσεις για την προσωρινή απασχόληση’ (‘The new legislative rules concerning temporary agency work’) Δελτίον Εργατικής Νομοθεσίας (Bulletin of Labour Law) 2000, p 107. 97  Art 124(1) para 1 of Law 4052/2012. 98  Art 122(2) of Law 4052/2012. 99 Art 117(1) of Law 4052/2012. C Papadimitriou, ‘Οι νομοθετικές ρυθμίσεις για την προσωρινή απασχόληση’ (‘The new legislative rules concerning temporary agency work’) Δελτίον Εργατικής Νομοθεσία (Bulletin of Labour Law) 2000, p 109. 100  Art 125(1) of Law 4052/2012.

368  Costas Papadimitriou In the event of a contract of indefinite duration, the employee is entitled to receive remuneration, even if s/he has not been placed on an assignment, which shall not be lower than the minimum wage.101 Regulations to the contrary are invalid. (iii)  Dismissal Protection Dismissals of temporary agency workers are regulated by the general rules.102 No special protection is provided. The temporary agency employment contract can be terminated at the will of either the temporary work agency (direct employer) or the employee. D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship No contract of employment exists between the employee and the user undertaking. However, the user undertaking exercises the most important right of the employer: the power of direction. Greek legislation103 (Law 4052/2012) stipulates that the period for which a temporary agency worker is employed by the user undertaking may not be longer than 36 months, including renewals. If the above rule is not respected, the employee’s employment contract with the temporary employment agency automatically converts into an open-ended employment contract between the employee and the indirect employer (user undertaking). If the temporary worker is reemployed by the same indirect employer (user undertaking) after the end of the initial assignment or after its renewal (regardless of whether it is for a new (different) assignment), without the lapse of a 23-day period between the end of the initial contract and the renewal, then the employee’s employment contract with the temporary employment agency automatically converts into an open-ended employment contract between the employee and the indirect employer.104 Finally, in the event of continuation of employment of the temporary worker by the user undertaking following the expiration of the assignment,

101 

Art 124(1) para c of Law 4052/2012. Papadimitriou, Η προσωρινή απασχόληση (The temporary agency work) (AthensKomotini, AN Sakkoulas, 2007) p 215. 103  Art 117(2) of Law 4052/2012. 104 Art 117(3) of Law 4052/2012; S Kinigopoulou, Προσωρινή απασχόληση (Τemporary agency work) (Athens, NB, 2015) pp 73 ff. 102 C

Atypical Employment Relationships: The Position in Greece 369 and in the event of any renewal of the assignment prior to the lapse of 45 (calendar) days, it is considered that a contract of indefinite duration has been concluded between the temporary worker and the user undertaking. Greek case law relating to the above provision has determined that it is not contrary to the constitutionally protected freedom of the worker’s personality, or to the freedom of business.105 (ii)  Rights and Obligations/Liability The user undertaking and the temporary work agency are jointly liable for the payment of both the wages of the temporary agency worker and the social insurance contributions to the social security institutions for the work performed for the user undertaking. This liability becomes subsidiary when the leasing agreement provides that the temporary work agency is exclusively liable and the above rights may be met by forfeiting the agency’s bonds.106 The user undertaking is also responsible for all legal, conventional, and administrative rules on employment conditions and protection. Any terms of the employment contract or of the leasing contract that prevent the user undertaking from hiring the temporary agency worker at the time the employment relationship with the temporary work agency is terminated, are considered void.107 Temporary agency workers shall be given access to the amenities and collective facilities in the user undertaking, in particular any canteen, child care facilities and transport services, under the same conditions as workers employed directly by the undertaking, unless the difference in treatment is justified by objective reasons, such as working time or length of work contract.108 (iii)  Health and Safety The user undertaking, together with the temporary work agency, is responsible for the temporary agency worker’s occupational health, hygiene and security. All temporary work agencies are required to engage the services of a safety officer and a company doctor. Temporary workers shall also be taken into account when calculating the total number of hours of employment required for engaging a company doctor in the user undertaking.

105 Areios Pagos (Supreme Court) 742/2009 Δίκαιο Επιχειρήσεων και Εταιρειών (Law of Enterprises and of Companies) 2011, p 223. 106  Art 124(4) para a of Law 4052/2012. 107  Art 118(2) of Law 4052/2012. 108  Art 118(4) of Law 4052/2012.

370  Costas Papadimitriou E. Relationship between Temporary Work Agency and User Undertaking The relationship between the temporary work agency and the user undertaking is based on a service contract. The temporary work agency agrees to place one or more employees at the disposal of the user undertaking. The contract between the temporary work agency and the user undertaking must be established in writing and must state the salary of the worker, his/her social insurance and the duration of employment.109 The user undertaking shall determine the qualifications necessary for the work stated in the contract and the particular characteristics of the job before the ­commencement of the assignment. Finally, the user undertaking shall indicate the particular risks of the job to the temporary work agency and the latter shall communicate these to the worker.110 F.  Rights and Status of Temporary Agency Worker (i)  Equal Treatment The remuneration of employees during their assignment at the user undertaking shall be the same that would be offered, had they been directly recruited by the user undertaking to occupy the same position.111 Furthermore, equal treatment is not limited to remuneration, but entails all benefits provided for the employees of the user undertaking. Hence, temporary workers shall be given access to the amenities or collective facilities in the user undertaking, in particular any canteen, child care facilities and transport services, under the same conditions as workers employed directly by the undertaking, unless the difference in treatment is justified by objective reasons.112 Thereby, Greece fulfils the obligation enshrined in Directive 2008/104/EC on the equal treatment of temporary workers. (ii)  Other Matters Charging the temporary agency worker a fee for being assigned to a user undertaking is prohibited.113

109 

Art 124(3) of Law 4052/2012.

110 Ibid.

111 Art 117(1) of Law 4052/2012; S Kinigopoulou, Προσωρινή απασχόληση (Τemporary agency work) (Athens, NB, 2015) p 92 ff. 112  Art 118(4) of Law 4052/2012. 113  Art 118(3) of Law 4052/2012.

Atypical Employment Relationships: The Position in Greece 371 G. Information and Consultation/Representation of Temporary Agency Worker As regards representation of temporary agency workers, Greek law provides that temporary agency workers shall be included in the calculation of the threshold for the establishment of workers’ representative bodies at the temporary work agency. Temporary agency workers shall also be included in the calculation at the user undertaking, like workers directly employed by the undertaking for the same period of time.114 Without prejudice to national and Community provisions on information and consultation, which are more stringent and/or more specific and, in particular, Law 240/2006 establishing a general framework for informing and consulting employees, the user undertaking must provide all relevant information on the use of temporary agency workers (eg number of temporary agency worker, prospects of direct employment by the user undertaking) when providing information to employee representatives.115 H. Strikes The use of temporary agency workers to replace employees who are on strike at the user undertaking is prohibited.w I. Collective Bargaining Agreements Deviating from Statutory Provisions Collective bargaining is not permitted to derogate from the statutory provisions with regard to temporary agency work. Only more favourable rules may be provided for.

114  Art 119 of Law 4052/2012; C. Papadimitriou, ‘Οι νομοθετικές ρυθμίσεις για την προσωρινή απασχόληση’ (‘The new legislative rules concerning temporary agency work’) Δελτίον Εργατικής Νομοθεσίας (Bulletin of Labour Law) 2000, p 113 ff. 115  Art 120 of Law 4052/2012. 116 Art 116 para a of Law 4052/2012; C Papadimitriou, Η προσωρινή απασχόληση (The temporary agency work) (Athens-Komotini, AN Sakkoulas, 2007) p 137.

372

14 Atypical Employment Relationships: The Position in Hungary GYÖRGY KISS

I. INTRODUCTION

V

ARIOUS FORMS OF atypical employment relationships did not play a significant role in Hungarian labour law for a long time. Employment contracts of indefinite duration and full-time work dominated Hungary’s labour market up until the eighties. The collapse of the inefficient, foreign credit-based economy changed the Hungarian labour market. The terms atypical employment or atypical job were largely found in labour law literature and in practice in the years 1980–81.1 The impact of privatisation should not be underestimated, either. So-called mass-­ privatisation or spontaneous privatisation began at the end of the eighties. On the one hand, privatisation brought about economic growth; on the other hand, however, approximately one million employees lost their jobs. The elaboration of the first Labour Code began shortly after the end of the Cold War. It was remarkable that the legislator continued to adhere to the traditional employment relationship. Hence, priority was given to the relationship between the employer and the full-time employee who was employed for an indefinite duration, while atypical employment relationships only played a marginal role. The first Labour Code contained undifferentiated, unified and intact regulations built on a traditional structure and suiting the activities of large employers. Act I of 2012 on the Labour Code (LC)2 entered into force on 1 July 2012. This Act also focuses on traditional employment, ie full-time employment for an indefinite duration. Nevertheless, the prevalence of various atypical forms of employment has become evident. The intention of the legislator was comprehensive regulation of so-called atypical forms of employment.

1 Z Bankó, Az atipikus munkaviszonyok (Atypical employment relationships) (Dialóg Campus Kiadó-PTE ÁJK, 2010) p 9. 2  2012. évi I. törvény a Munka Törvénykönyvéről.

374  György Kiss Part Two, Chapter XV of the Act regulates this aspect under the title ­‘Special Provisions Relating to Employment Relationships According to Type’. The legislator sought to collect and regulate all types of atypical forms of employment. The LC initially listed the following: fixed-term employment relationship; call for work; job sharing; employee sharing; ­teleworking; outworkers; simplified employment and occasional work relationships; employment relationships with public employers; executive employees; and incapacitated workers. Chapter XVI regulates temporary agency work; Chapter XVII contained ‘Special Provisions Relating to Employment Relationships between School Cooperatives and their Members’ until September of 2016. The new regulations are found in Act X of 2006 on Cooperatives. These regulations are based on Act V of 2013 on the Civil Code,3 which contains the basic provisions on cooperative societies. A school cooperative is a specific type of cooperative. One of the main features of cooperatives is personal contribution by their members. The new legislation takes this requirement as the starting point.4 New forms of atypical employment have been introduced in Hungary in addition to those mentioned above. They include crowd employment, casual work, portfolio work, labour pooling, interim management, ICT-based mobile work, and the so-called voucher system. The legislation reveals the lack of unified consideration behind it. Fixed-term employment relationships, job sharing, employee sharing, teleworking, outworking and temporary agency work could be classified as atypical forms of employment. The prevailing opinion is that the employment of incapacitated workers, for example, is not an atypical form of employment. Simplified employment and occasional work relationships are primarily based on social considerations; such forms of employment support employment in small businesses and domestic workers. The regulation of employment relationships of public employers in many cases excludes the application of derogation from the legislation by collective agreement. This regulation is based on considerations of legal policy. Finally, the regulation of employment relationships between school cooperatives and their members was a source of tension in the light of temporary agency work. The legislator’s aim was for the employment relationship between school

3 

2013. évi V. törvény a Polgári Törvénykönyvről. A Kun, ‘School cooperatives. A “Hungaricum” in labour law in the field of youth employment’ in HA Cuesta (ed), Empleo Juvenil: un reto para Europa (Youth employment: a challenge for Europe) (Thomson Reuters Aranzadi, 2016) pp 71–91; Gy Berke & Gy Kiss, Kommentár a Munka Törvénykönyvéhez (Labour Code—Commentary) (Wolters Kluwer, 2012) pp 539–45. G Kártyás, ‘Az iskolaszövetkezeti munkaviszony helye a foglalkoztatási formák között’ (‘Empoyment relationship in the framework of school cooperatives and the others employment relationships’) 2013 Pécsi Munkajogi Közlemények pp 77–93. 4 

Atypical Employment Relationships: The Position in Hungary 375 cooperatives and their members not to be considered a special form of temporary agency work, but rather a sui generis form of employment. This perspective was at the very least ambiguous. Since 1 September 2017, the regulation of the employment relationship between school cooperatives and their members has been transferred from the Labour Code to Act X of 2006 on Cooperatives. Consequently, the members of SCs are not employees but so-called ‘fulfilment assistants’. All abovementioned forms of employment have something in common: they are based on an employment relationship. The legal nature of so-called atypical forms of employment is broader (crowd employment, portfolio work or specific employment status). Specific forms of employment exist which are not regulated in the Labour Code. One reason for the lack of regulation thereof is the structure of the contract of employment. The contract of employment consists of mandatory content. Under Section 45(1) ‘The parties must specify in the employment contract the employee’s personal base wage and job function.’ Under subsection (3), ‘The work place of the employee shall be defined in the employment contract. Failing this, the place where work is normally carried out shall be considered the work place.’ It is conceivable that the abovementioned forms of employment exist on the labour market, but in the absence of regulation, it is very difficult to detect them. II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements The legal definition of fixed-term employment is found in the LC. Section 192(1) states that the duration of fixed-term employment shall be determined based on the calendar or other appropriate means. One important provision is that if the duration of the employment relationship is not determined by the calendar, the date of termination of such an employment relationship may not depend solely on one party’s will. In such cases, the employer must inform the employee of the expected duration of the employment relationship. This rule implies that a fixed-term employment relationship cannot be established by a unilateral legal declaration. This is supported by the provision under Section 45(2) which provides that the term of the employment relationship must be defined in the employment contract. Where this term is not defined, the employment relationship will be deemed to have been concluded for an indefinite duration.5 5  See Tamás Gyulavári and Gábor Kártyás, ‘The Hungarian labour law reform. The great leap towards full employment’ Dereito Vol 21, No 2, pp 167–88 (Xullo–Decembro, 2012) p 184.

376  György Kiss As regards the legal forms for establishing an employment relationship, the conclusion of an employment contract is only valid if it is concluded in writing.6 However, ‘invalidity on the grounds of failure to conclude the contract in writing may only be alleged by the employee within a period of thirty days from the date of commencement of work’.7 B.  Lawful Stipulation of the Contractual Terms Open-ended employment contracts enjoy priority in the LC. However, many authors have referred to the increasing trend for atypical forms of employment observed since the onset of the financial crisis.8 Structural change in business management is evident.9 Hence, an amendment of the previous rule became inevitable. The legislator tried to observe the requirements of Council Directive 1999/70/EC of 28 June 1999; however, the concept of provisions on maximum duration was rather controversial. Section 192(2) states that the duration of a fixed-term employment relationship may not exceed five years in total. This period includes any extended employment relationship, as well as any successive fixed-term employment relationship established within six months from the cessation of the previous fixed-term employment contract. Section 192(3) regulates a special case. Under this provision, where an employment relationship is subject to approval by an authority, it may only be concluded for the duration specified in said authorisation.10 If the authorisation is extended, the duration of the next fixed-term employment relationship and the previous one may together exceed five years. The most sensitive area of the structure of the regulation of fixedterm employment is the extension or successive conclusion of fixed-term employment contracts. Hungarian labour law does not impose conditions or requirements for the establishment of the first fixed-term employment relationship. By contrast, the LC only allows an extension or prolongation of the fixed-term employment contract or the conclusion of another (successive) fixed-term contract within six months from the end of the previous fixed-term contract, when this is based on the rightful interests of the

J Ferencz, Atipikus foglalkoztatási formák (Forms of atypical employment) (Dialog Campus, 2015) pp 57–61. 6 

Section 44 of the LC.

7 Ibid.

8  J Poór et al, ‘Traditional and Atypical Employment in Light of Empirical Data’, Journal of Engineering Management and Competitiveness, 2013, pp 50–55. 9  Reference here is made to different types of just-in-time or lean management, which may be associated with ‘just-in-time employment’. 10  Eg persons from third countries.

Atypical Employment Relationships: The Position in Hungary 377 employer and does not violate or undermine the employee’s rights and rightful interests.11 First, the ‘rightful interests of the employer’ should be based on objective criteria. For this reason, they must be interpreted narrowly. Nevertheless, a discrepancy exists between the literature and judicature.12 Secondly, the extension or prolongation, as well as the conclusion of a successive fixedterm contract applies to the same two parties only. Thirdly, there is slight confusion about the context of ‘end’ of employment. The Hungarian official text applies this general phrase (megszűnés), but the (unofficial) English translation13 uses termination. According to the prevailing approach, the broader interpretation is correct. C.  Termination/End of Fixed-Term Contracts There is a special regulation on the termination of fixed-term employment. Under Section 66(8), the employer may terminate a fixed-term employment relationship by notice in the following cases: —— If the employer is undergoing liquidation or bankruptcy proceedings; —— For reasons related to the employee’s capabilities; —— If it is no longer possible to maintain the employment relationship for unavoidable external reasons. Under Section 67(2), employees must provide a reason for terminating their fixed-term employment relationship. The nature of the reason must be such that it renders the employment relationship impossible to maintain or that it would cause unreasonable hardship in light of the employee’s circumstances. In both cases, the notice period for termination of the fixed-term employment relationship may not extend beyond the fixed term. The LC, moreover, contains a fairly unusual rule. In the abovementioned cases, both the employer and the employee are required to provide a reason for the termination. Yet, the LC also provides for terminations without notice. As a general rule, an employer or employee may terminate an employment relationship without notice, if the other party: —— Wilfully or by gross negligence, commits a grave violation of any substantive obligations arising from the employment relationship; or

11 

Section 192(4) of the LC. Berke and Gy Kiss, Kommentár a Munka Törvénykönyvéhez (Labour Code— Commentary) (Wolters Kluwer, 2012) pp 487–89; J Ferencz, Atipikus foglalkoztatási formák (Forms of Atipycal Employment) (Dialog Campus, 2015) pp 63–65; Z Bankó, Az atipikus munkaviszonyok (Atypical employment relationships) (Dialog Campus Kiadó-PTE ÁJK, 2010) pp 84–87. See Nyíregyházi Törvényszék 4.Mf.20.131/2014!4. 13  Complex Jogtár Online (Labour Code Hungarian English and German version). 12 Gy

378  György Kiss —— Otherwise engages in conduct that would render the employment relationship impossible.14 The right of termination without notice may be exercised within 15 days from gaining knowledge of the grounds for termination, but no later than one year from the occurrence of such events, or in the event of a criminal offence, no later than the expiry of the statute of limitation. If the right of termination without notice is exercised by either party, the date of gaining knowledge of the incident is the date when the other party is informed about the grounds for termination of the employment relationship without notice.15 However, there is a special rule on terminations without notice. Section 79(1) allows terminations without notice without providing a reason in the following cases: —— By either party during the probation period; —— By the employer in case of a fixed-term employment relationship. Section 79(2) stipulates that in case of termination under paragraph (b) of subsection (1), the employee is entitled to his/her average wage of the past 12 months or, if the time remaining until the end of the fixed term is less, then to the wage for the remaining period. The employers’ representatives put forward this proposal during the preparation of the LC. The purpose of their proposal was the consideration that the employer in certain cases cannot or does not want to justify the termination without putting the employee at a disadvantage. D.  Rights and Status of Fixed-Term Worker (i)  Equal Treatment Fixed-term employment is a special type of employment relationship. The principle and requirement of equal treatment was taken into account in Section 12 of the LC, which provides for equal treatment in respect of remuneration. The term ‘remuneration’ must be broadly interpreted to include all payments related to the employment relationship.16 Accordingly, the principle of equal treatment must be strictly observed in all aspects of the employment relationship, and remuneration for work is one of these.17

14 

Section 78(1) in the LC. Section 78(2)–(3) in the LC. 16  For the purposes of this regulation, ‘wage’ means any remuneration provided directly or indirectly in cash or in kind based on the employment relationship. Section 12(2) of the LC. 17  An employee may bring an action before the court and request payment of the difference/ compensation. As far as remuneration is concerned, the company’s pension scheme is not regulated in Hungarian labour law. 15 

Atypical Employment Relationships: The Position in Hungary 379 Another regulation of significance is found in Act CXXV of 2003 on Equal Treatment and Promotion of Equal Opportunities.18 Section 8 asserts that all conduct as a result of which a person or a group is treated or would be treated less favourably than another person or group in a comparable situation, for reasons including the part-time or fixed-term nature of the individual’s employment relationship or other working relationship, are considered direct discrimination. Section 9 provides that indirect discrimination refers to apparent compliance with the principle of equal treatment, but at the same time putting persons or groups with characteristics listed in Section 8 at a significant disadvantage compared to other persons or groups in a similar situation.19 (ii)  Employment Opportunities The LC ensures the interoperability between the various employment relationships (see below part II.E.). The LC regulates in detail the amendment of the contract of employment. In this context, the employer has an obligation to inform the employees about employment opportunities. This requirement is in line with Council Directive 97/81/EC of 15 December 1977 on the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC. (iii)  Other Matters The number of fixed-term employment decreased in 2016 compared to previous years. According to statistical data, the number of fixed-term employees fell by 12 per cent from 2015 to 2016 (Hungarian Central Statistical Office). This is partly due to increased regulation and labour inspection. E.  Information and Consultation The LC regulates two types of information. Section 61 of the LC deals with the possibility of changing the employment relationship (interoperability). This provision prescribes that employers must inform their employees about the following employment opportunities: —— Full or part-time jobs, —— Teleworking, and —— Employment relationships of indefinite duration.

18 

2003. évi CXXV. törvény az egyenlő bánásmódról és az esélyegyenlőség előmozdításáról. consequences of violating the Act of Equal Treatment are regulated in ss 12–20 in this Act. The proceeding consists of two parts. The first involves the Public Administration 19  The

380  György Kiss Employers must respond to the request of the worker to amend his/her contract of employment in writing within 15 days. Employers are required to amend the contract of employment based on the employee’s request to work part time amounting to half of the regular daily working hours if the employee has a child below the age of three years. The second rule on information is associated with works council rights. According to Section 262(3), the employer must notify the works council semi-annually regarding: a) b) c)

Issues affecting the employer’s economic standing; Changes in wages, liquidity related to the payment of wages, the characteristic features of employment, utilisation of working time, and the characteristics of working conditions; The number of workers in employment and the description of the jobs they perform.

Although this rule does not require the supply of data on the number of part-time and fixed-term employees, this information is, however, given by employers in practice. F.  Specific Provisions Act CCIV of 2011 on the National Higher Education20 contains, inter alia, special rules applicable to fixed-term employment relationships in the area of education. This Act regulates the conditions of employment of assistant and senior lecturers. These conditions and requirements must be performed within a specified timeframe.21 Failure to comply with these rules will end the employment relationship ex lege. Artists may be employed under various types of employment relationships. Most work as freelancers. Employment relationships involving public servants are typically seasonal contracts (by appointment) or contracts for a specific assignment. G.  Collective Bargaining Agreement Deviating from Statutory Provisions The statutory provisions on fixed-term employment relationships are binding (ius cogens). An agreement deviating from these rules is null and void. Authority and the second the court. In addition, the so-called ‘claims of public interest’ are regulated as well. 20  21 

A nemzeti felsőoktatásról szóló 2011. évi CCIV törvény. Eg, obtaining a PhD degree.

Atypical Employment Relationships: The Position in Hungary 381 III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements The Hungarian LC—as a general rule—regulates the traditional employment relationship. Similarly to the provisions on fixed-term employment relationships, the LC states that in the absence of an agreement to the contrary, all employment relationships are, as a general principle, concluded for full-time daily employment.22 This regulation is clear; however, problems arise with part-time work in practice. As far as its prevalence is concerned, part-time employment has increased, ‘especially among blue collar workers’.23 Although the number of part-time employees is relatively low,24 an upward trend is evident as a result of the financial crisis. Many authors emphasise that the majority of part-time contracts fail to serve the need for flexibility of employment, and that part-time employment does not derive from what is termed a ‘free agreement’ of the parties. A significant share of such contracts are solutions resorted to out of n ­ ecessity: in many cases, part-time employment is the only opportunity to remain in the labour market.25 An even bigger problem is bogus part-time employment: the employment contract is concluded for part-time work, but the employee is actually employed full time. Finally, different types of part-time work exist, eg call for work, job sharing, employee sharing, simplified employment, and occasional work relationship (see below). Regarding formal requirements, one important rule is that a part-time contract is only valid if it is concluded in writing.26 B.  Opportunities for/Right to Part-Time Work Part-time employment can be both an opportunity and a risk of coercion. In this context, Section 61 of the LC should be referred to, which sets forth

22 

Section 45(4) of the LC. Meszmann, The Rise of the Dual Labour Market: Fighting Precarious Employment in the New Member States through Industrial Relations (PRECARIR)—Country Report: Hungary, CELSI Research Report No 12 (Central European Labour Studies Institute, 2016) p 12. 24 Ibid. 25 Z Bankó, Az atipikus munkaviszonyok (Atypical employment relationships) (Dialóg Campus Kiadó-PTE ÁJK, 2010) pp 14–19. 26  Employment contracts may only be concluded in writing. Invalidity on the grounds of failure to conclude the contract in writing may only be alleged by the employee within a period of 30 days from the first day on which s/he commences work (s 44 of the LC). 23  T

382  György Kiss that employers must inform their employees about available employment opportunities in the following areas: —— Full or part-time work, —— Teleworking, and —— Employment relationships for an indefinite duration. Section 61 does not stipulate the employers’ general obligation to change the employment contract.27 This regulation only requires the provision of information about such employment opportunities. The decision ultimately is at the employer’s discretion. However, a collective agreement may deviate from this rule. It follows from this that the parties to a collective agreement may lay down, in addition to the statement of general principles, that the employer has the obligation to change the employees’ contract as requested. However, there is one important exception: based on the employee’s request, employers are required to change the contract of employment to part-time work amounting to half of the regular daily working time if the employee has a child that is younger than three years of age.28 C.  Opportunities for/Right to an Extension of Working Time According to the right to an extension of working time, reference should be made to the above mentioned Section 61 of the LC. Under this rule, the employer shall inform employees about opportunities for full-time employment. The contract of employment can be amended accordingly. D.  Right and Status of Part-Time Worker (i)  Equal Treatment As regards part-time work, it is difficult to distinguish discrimination from justified unequal treatment. The aforementioned Act CXXV of 2013 on Equal Treatment and Promotion of Equal Opportunities prohibits discrimination based on the form or legal nature of the employment relationship. This particular Act specifies part-time employment. At first glance, the principle of pro rata temporis is straightforward. Article 4(2) of Directive 97/81/EC reads as follows: ‘Where appropriate, the principle of pro rata temporis

27  28 

Except as mentioned above Sub 3 of the LC. Section 61(3) of the LC.

Atypical Employment Relationships: The Position in Hungary 383 shall apply’. The first question is: what does ‘where appropriate’ mean? Which matters does this principle relate to? Application of this principle was controversial in Hungarian labour law for a long time. Pursuant to the recent LC, the principle of pro rata temporis can be applied to two areas: 1) wages; and 2) certain aspects of working time.29 In connection with wages, the principle of pro rata temporis is narrowly interpreted. It does not apply to payments unrelated to work.30 Section 109 of the LC regulates the principle of working time. Subsection (1) states in connection with full-time employment that up to 250 hours of overtime work can be ordered in a given calendar year. Under subsection (3), this is to be applied proportionately for part-time employment. The number of leave days cannot be reduced by reference to this principle. (ii)  Dismissal Protection No specific rules on dismissal protection for part-time employees exist. Consequently, the general rules apply. As far as termination by the employer is concerned, the employer is required to justify the dismissal. An employee may only be dismissed for reasons relating to his/her conduct within the employment relationship, to his/her capability, or in connection with the employer’s operations. The employer may not terminate the employment relationship by notice: a) b) c) d) e)

During pregnancy; During maternity leave; During a leave of absence taken without pay to care for a child; During any period of voluntary reserve military service; or In the case of women who are being treated with assisted reproductive technologies, for up to six months from the beginning of such treatment.31

(iii)  Other Matters The number of part-time employees decreased in 2016 compared to previous years. According to statistical data, there were 12 per cent fewer part-time employees compared to the previous year (Hungarian Central Statistical Office).

29 Z Bankó, Az atipikus munkaviszonyok (Atypical employment relationships) (Dialog Campus Kiadó-PTE ÁJK, 2010) p 31. 30  The principle of pro rata temporis applies to the basic wage only. The principle cannot be applied to payments that are made independent of working time. 31  Section 65(3) of the LC.

384  György Kiss E.  Information and Consultation The regulations on information and consultation of part-time employees are similar to those applicable to fixed-term employees. F.  Other Part-Time Arrangements Part-time employment exists in different forms. The LC regulates the following: —— Call for work; —— Job sharing; —— Simplified employment and occasional work. Call for work and job sharing were not defined and regulated in Hungarian labour law in the past. Simplified employment is a special form of employment for small businesses. Occasional work covers specific work activities. Call for work is a special type of part-time employment, which is elaborated in the legislation. Section 193(1) of the LC states that ‘part-time workers’ employed under a contract of employment in jobs for up to six hours a day shall work at hours that best suit the function of their jobs. In this case, the working time accumulated in the time-banking account may not exceed four months. Under subsection (2), the employer must inform such employees about their scheduled working time at least three days in advance. It is apparent from these provisions that the legislator has treated this type of employment with caution. Hungarian legislation has restricted this activity because it is not regarded a ‘traditional’ call for work. Job sharing is also based on a special agreement. Under Section 194(1) LC, the employer may conclude an employment contract with several workers to carry out the functions of a single job. If one worker is unavailable, another worker who is party to the contract fills in and performs the work as requested. Such agreements are coupled with flexible working times. The LC also regulates the principle of remuneration: in accordance with this rule, the wages shall be equally distributed among the employees, unless another agreement provides otherwise.32 The legislator tried to make a sharp distinction between full-time employment and job sharing as part-time employment. Section 194(4) LC sets out that the employment relationship ends when the number of employees is reduced to one. In this case, the employer is liable to pay the worker an average salary that would otherwise be due in the event of dismissal by the employer and, in addition, the rules on severance pay also apply. The employer and employee may agree to change the job sharing contract, 32 

Section 194(3) of the LC.

Atypical Employment Relationships: The Position in Hungary 385 in which case the part-time employment is transformed into full-time or ‘traditional’ part-time employment. Act LXXV of 2010 on Simplified Employment33 regulates another type of part-time work. This Act replaced the former Act of Employment based on an occasional certification procedure. It covers agricultural and tourist/ seasonal work, as well as casual work, the legislator’s aim being to facilitate employment in specific cases. The Act defines agricultural seasonal work as work performed in cultivation, forestry, animal husbandry/production and fishery, which, due to the nature of the goods produced or the service provided, is performed in a specific season or period of the year, irrespective of the conditions under which the work is organised. Employment for such work may not exceed 120 working days per year. The Act also provides for tourism/seasonal work, defined as work conducted for an employer who offers tourist services on a commercial basis; such employment may not exceed 120 working days. This Act also includes the definition of casual work: it is defined as fixed-term employment that is limited to: —— Five consecutive working days in total; —— 15 calendar days in total within one calendar month; —— 90 calendar days in total within one calendar year.34 There is an additional restriction to casual work. The maximum number of casual workers an employer may employ in simplified employment on the same calendar day is limited to: —— —— —— ——

One person, if the employer does not have other full-time employees; Two persons, if the employer has 1–5 full-time employees; Four persons, if the employer has 6–20 full-time employees; 20 per cent of the number of full-time employees, if the employer has more than 20 full-time employees.35

An employment relationship is established by notifying the relevant authorities; this notification is the duty of the employer. At the employee’s request, the contract of employment has to be made in writing (by concluding a simplified contract template attached to the Act). The employer must pay the following taxes for this type of employment: —— HUF 500 (approximately EUR 2) per calendar day for every employee engaged in casual work; —— HUF 1,000 (approximately EUR 4) per calendar day for every employee performing seasonal work.

33 

2010. évi LXXV. törvény az egyszerűsített foglalkoztatásról. Section 2 of the Act on Simplified Employment. 35  Section 1(1) of the Act on Simplified Employment. 34 

386  György Kiss Seasonal or casual workers are not insured under the Act on Social Security. However, they are entitled to retirement benefits, medical services in case of accidents, and unemployment benefits.36 G.  Collective Bargaining Agreements Deviating from Statutory Provisions Under Section 43(1)–(2), unless otherwise provided for by an Act, the employment contract may deviate from the provisions of the LC to the benefit of the employee. Such derogations shall be adjudged by a comparative assessment of related regulations. Collective agreements, however, can deviate in both directions. This has little practical significance because of the content of statutory provisions. IV.  TEMPORARY AGENCY WORK

A.  Legal Definition/Formal Requirements The structure and content of the LC follows Directive 2008/104/EC of the European Parliament and of the Council on temporary agency work. The development of the Hungarian legislation indicates certain tensions between economic necessity and social requirements.37 The regulations have developed from prohibition through limited recognition to full appreciation. The content of definitions is in line with the requirements of the Directive. Accordingly, Section 214(1) states: a) ‘Temporary agency work’ shall refer to an employee who is hired out by a temporary work agency to a user undertaking for remunerated temporary work, provided there is an employment relationship has been concluded between the worker and the temporary work agency (placement); b) ‘Temporary work agency’ shall refer to any employer who places an employee, with whom it has concluded an employment relationship, under a contract to a user undertaking for temporary work supervised by the user undertaking; c) ‘User undertaking’ shall refer to any employer under whose supervision the worker performs temporary work; d) ‘Temporary agency worker’ shall refer to a worker with a contract of employment or an employment relationship with a temporary work agency with a view to being assigned to a user undertaking to work temporarily, where the

36 

See legislation development in Hungary. European Labour Law Network, 2010. Bankó, Az atipikus munkaviszonyok (Atypical employment relationships) (Dialóg Campus Kiadó-PTE ÁJK, 2010) p 56. 37 Z

Atypical Employment Relationships: The Position in Hungary 387 employer’s rights are exercised jointly by the temporary work agency and the user enterprise (worker); e) ‘Assignment’ shall refer to the period the temporary agency worker is placed at the user undertaking to work temporarily.

According to Section 218, the employment contract shall contain a clause indicating that the contract was concluded for the purpose of temporary work. Whether a traditional employment relationship can be converted into a temporary agency employment contract is a very important question. In this respect, the concept has changed several times in the LC. The former Labour Code38 contained a substantive rule, pursuant to which it was prohibited to establish a temporary agency relationship with the same employee within six months of termination by the employer. This rule has been repealed by the recent Labour Code. Another aspect is the duration of the assignment. According to Section 215(2), the duration of the assignment of a worker may not exceed five years, including any period of an extended assignment or re-assignment within a period of six months from the date of termination of the previous employment relationship, irrespective of whether the assignment was carried out by the same or a different temporary work agency. The duration of the assignment is controversial. Temporary agency work for assignments of such duration cannot be categorised as an atypical form of employment, but as an alternative one. The incorporation of a competition promotional rule adds a strange twist to the regulation. Under Section 217(1), an agreement between a temporary work agency and a user undertaking shall be null and void if: a) b) c)

The temporary work agency and the user enterprise are affiliated by way of ownership in part or in whole, At least one of the two employers holds some percentage of ownership in the other employer, or The two employers are connected through their ownership in a third organisation.

Finally, both agreements—the agreement between the temporary work agency and the user undertaking, and the contract of employment—must be made in writing. At first glance, it seems that temporary agency work represents a tripartite or triangular employment relationship. However, there are in fact two different contracts and one de facto or quasi-legal relationship. A contract of employment is concluded between the temporary work agency and the employee, while a contract for services exists between the temporary work

38 

Act XXII of 1992 on the Labour Code.

388  György Kiss agency and the user undertaking, which is governed by civil law. No legal relationship exists between the employee and the user undertaking. One could say it is a de facto employment relationship, but it is actually more than that, because this relationship is regulated by the LC. This regulation is important in respect of rights and duties and equal treatment (see below). B.  Registrations, Licensing, Financial Guarantees etc Hungarian labour law also regulates registration, licensing and financial guarantee requirements. Under Section 215(1), the LC defines the organisations that may function as temporary work agencies: a) b) c)

a company established in an EEA Member State, authorised under national law to engage in temporary work agency activities; a business association established in Hungary whose members have limited liability, or a cooperative society in respect of employees who are not its members, if these meet the requirements of the Act and other legislation, and is duly registered by the government employment agency.

Subsection (2) highlights that when a temporary work agency is deleted from the register, the provisions on invalidity shall apply with regard to its employment contracts. The detailed regulation is provided in Decree No 118/2001 on registration and financial guarantees of labour recruitment and temporary agency work. The temporary agency may commence its activity upon registration through the competent government agencies, after a financial security deposit of HUF 15 million (approximately EUR 50.000) is placed. C. Relationship between Temporary Agency Worker and Temporary Work Agency (i)  Legal Type of Employment The basis of the temporary agency relationship is a special contract of employment. As previously mentioned, this contract must contain a clause indicating that it was concluded for the purpose of temporary work, as well as a description of the work and the amount of the base wage. The employer has the obligation to provide information. Section 218(2) provides that in addition to what is set forth in Section 46, the temporary work agency (as the employer) is to inform the employee of the registration number assigned to him/her at the time of concluding the contract of employment.

Atypical Employment Relationships: The Position in Hungary 389 The contract of employment for temporary agency work may be concluded for either a fixed-term or an indefinite period. (ii)  Rights and Obligations/Liability Prior to the assignment, the temporary work agency has to inform the employee in writing about the following: a) b) c) d) e) f)

The identifying data of the user undertaking; The start date of the assignment; The place of work; The normal course of work at the user undertaking; The person exercising the employer’s rights on behalf of the user undertaking; The particulars on travel to work, accommodation and catering.

(iii)  Dismissal Protection The right to termination of the employment relationship (and enforcement of a claim for damages) belong to the temporary work agency. The general rules must be applied to terminations of the employment relationship, but with some differences. According to the general rules, employers are required to justify dismissals and an employee may only be dismissed for reasons connected to his/her conduct within the employment relationship; his/her capabilities; or the employer’s operations. Under Section 220(1) LC, in the application of the above rule, the termination of the assignment constitutes a reason connected to the temporary work agency’s operation. Unlike under the general rules, the minimum notice period is 15 days. If termination is effected by the temporary work agency, the employee shall be exempt from work during the notice period, unless otherwise agreed. According to the general rules, either the employer or the employee may terminate the employment relationship without notice, if the other party: a) b)

Wilfully or by gross negligence commits a grave violation of any substantive obligation arising from the employment relationship; or Otherwise engages in conduct that would render the employment relationship impossible.39

Under Section 220(4), the employee may terminate the employment relationship without notice if the infringement referred to above (in Section 78(1)) is committed by the user enterprise. In case of infringement on the part of the employee, the user undertaking must notify the temporary work agency

39 

Section 78(1) of the LC.

390  György Kiss in writing within five working days from the time of gaining knowledge of the infringement. Finally, the employee shall submit the notice of termination of the employment relationship to the temporary work agency.40 In summary, it can be concluded that the general rules of termination must be applied; however, temporary agency employees do not enjoy any advantage or protection. The regulation of terminations of the employment relationship—particularly with regard to dismissals for economic reasons— is the most sensible part of the Hungarian Labour Code. This includes collective redundancy as well as the dismissal of only one employee. Various solutions have evolved in EU Member States, and accordingly, there is no uniform level of protection. In Hungarian labour law, dismissal based on economic reasons is fairly automatic. Under the regulation of the LC and especially in the case law, the genuineness of economic problems is not scrutinised; the employer has no obligation to take preceding measures. In sum, the employer can terminate the employment relationship without considerable difficulties on account of economic reasons.41 D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship The legal nature of this relationship is ambiguous. No legal relationship exists between a temporary agency worker and the user undertaking. No contract was concluded between these two parties. It is a de facto relationship, the elements of which are regulated. (ii)  Rights and Obligations/Liability Liabilities are regulated under Section 218(4) LC. (iii)  Health and Safety During the assignment, the user undertaking exercises the employer’s rights and obligations relating to: a) b) c)

40  41 

Occupational safety; The provisions of subsections (1), (3)–(5) of Section 51; Working time and rest periods, and keeping records thereof.

Section 220(6) of the LC. See Statement no 95 of the Collegium of Labour of the Kúria (Supreme Court).

Atypical Employment Relationships: The Position in Hungary 391 E.  Relationship between Temporary Work Agency and User Undertaking The contract between the temporary work agency and the user undertaking is a substantial part of the construction of temporary agency work. Section 217(1) provides that this contract must contain the conditions of placement and the sharing of employer’s rights. The agreement must be concluded in writing. The LC regulates the mutual obligation of information between the temporary work agency and the user undertaking. The legislation requires the user enterprise to inform the temporary work agency in writing about the following: a) b) c) d) e)

Its normal course of work; The person exercising the employer’s rights; The manner and timeframe of supplying information necessary for the payment of wages; The qualification requirements pertaining to the work in question; All other aspects considered significant for the employment of the worker in question.

Unless there is an agreement to the contrary, the user undertaking must, within five days from the end of the relevant month, supply the temporary work agency with all the information required for the payment of wages, as well as for meeting tax declarations, data submissions and payment obligations arising from the employment relationship. If the employment relationship is terminated during the month, the user enterprise shall supply the same information to the temporary work agency within three working days from the last day of employment.42 The sharing of employer’s rights is based on an agreement. Nevertheless, the LC provides some points of reference. Thus, unless otherwise agreed, the temporary work agency is required to cover all employment-related expenses specified in Section 51(2), such as the employee’s costs of travel and the costs of a medical examination, should this be required for employment. When requested by the user undertaking, the temporary work agency has to supply the user enterprise, before the first day of employment, with a copy of: —— The notification submitted by the temporary work agency to the state tax authority concerning the data of the person employed by the employer and the payer, in accordance with relevant legislation on taxation, indicating the date of commencement of the insurance relationship; —— The document certifying registration as a temporary work agency in accordance with relevant legislation.

42 

Section 217(5) of the LC.

392  György Kiss Liabilities are regulated under Section 218(4) LC. During the assignment, the user enterprise exercises the employer’s rights and obligations relating to: a) b) c)

Occupational safety; The provisions of subsections (1), (3)–(5) of Section 51; Working time and rest periods, and keeping records thereof.

F.  Rights and Status of Temporary Agency Worker The requirement of equal treatment is of high importance in terms of the legal status of temporary agency employees. In this regard, the LC provides a differentiated rule. As a general provision, the basic working and employment conditions of temporary agency workers must, for the duration of their assignment, be at least the same as those available to other workers actually employed by the user enterprise under an employment relationship.43 These ‘basic working and employment conditions’ cover in particular: —— —— —— ——

The protection of pregnant women and nursing mothers; The protection of young workers; The amount and protection of wages, including other benefits; The provisions on equal treatment.

However, there is a specific rule on equal treatment that deviates from the general provisions. In accordance with Section 219(3), the provisions on equal treatment regarding payment of wages and other benefits shall only apply from the 184th day of employment with the user undertaking of any worker who: a) b) c)

43 

is engaged by a temporary work agency in an employment relationship established for an indefinite duration, and who receives pay in the absence of an assignment to a user undertaking; is recognised as a long-term absentee from the labour market as defined in Point 1 of subsection (2) of Section 1 of Act CXXIII of 2004;44 or works in the framework of temporary agency work at a business association under majority control by a municipal government or public benefit organisation, or at a registered public benefit organisation.

Section 209(1) of the LC. évi CXXIII. törvény a pályakezdő fiatalok, az ötven év feletti munkanélküliek, valamint a gyermek gondozását, illetve a családtag ápolását követően munkát keresők foglalkoztatásának elősegítéséről, továbbá az ösztöndíjas foglalkoztatásról. (Act CXXIII of 2004 on promoting employment of career entrants, unemployed persons over the age of fifty years, job seekers who are caring for children and family nurses, and academic employment.) 44 2004.

Atypical Employment Relationships: The Position in Hungary 393 These rules are rather controversial. Regarding point (a), this can be deduced from the content of the Directive. Point (b) deals with career entrants, long-term job seekers, etc. This rule was created due to the legislator’s view that it would be easier for such people to find work. However, this provision has not lived up to the expectations. It has proven that the labour market is not driven by the legal situation of the abovementioned persons, but by the needs of employers. Concerning point (c), what this provision apparently aims to achieve, in addition to social considerations, is budget savings. Otherwise, the rights of temporary employees are the same as those of other employees. How to apply them in practice is an entirely different question. The protection provided by trade unions and collective agreements is crucial for these employees, both at the temporary work agency and at the user undertaking.45 However, realisation of such protection in practice is almost impossible. The Hungarian regulation of collective labour law is fairly conservative: the concept of the legislation is based on the traditional employment relationship. An initiative has failed in relation to persons with a legal status similar to that of employees (see: employee v. worker).46 G. Information and Consultation/Representation of Temporary Agency Worker On the basis of the above, it is clear that if there was representation of temporary agency employees, the employer would be responsible for the information and consultation obligations. In addition, the user undertaking is required to inform the works council on the number of temporary agency workers.47 H. Strikes Under the regulations in Act VII of 1987,48 a strike is a fundamental right of employees. However, so-called sympathy or solidarity strikes can be 45  G Kártyás, Munkaerő-kölcsönzés Magyarországon és az Európai Unióban (Temporary agency employment in Hungary and in the European Union) (Budapest, 2011) pp 119–34. 46  G Kiss, ‘The Problem of Persons having similar Legal Status as Employees (Worker) and the Absence of Regulation of this Legal Status in the Hungarian Labour Code. The “third estate” of the Labour Market’ in G Kiss (ed), Recent Developments in Labour Law (Budapest, Akadémiai Kiadó, 2013) pp 259–79. 47  Section 262(3) of the LC. 48  1987. évi VII. törvény a sztrájkról.

394  György Kiss organised by trade unions only. The wording of the goal of the strike is instructive. Section 1(1) of the Act on strikes provides employees with the right to strike for assurance of their economic and social interests. This rule is important because, accordingly, the strike should not necessarily be interpreted in relation to one particular employer. For this reason, a strike can be initiated against a temporary work agency and a user undertaking. Consequently, if the temporary agency worker initiates a strike against the user undertaking, the general rules must be applied. For this reason, the initiation of a strike, and/or the participation in a legal strike is not classified as a violation of the duties originating from the employment relationship; neither may serve as a basis for discriminatory measures against the employee. The rights resulting from the employment relationship apply to the worker participating in a legal strike. However, no remuneration or other benefits after the work has been performed are due to the worker for the working hours lost because of the strike—failing agreement to the contrary. Finally, it is the legal rules on social security that regulate the social security rights and obligations resulting from employment, with the provision that the period of the legal strike is to be counted toward years of service. I. Collective Bargaining Agreements Deviating from Statutory Provisions The protection provided by a trade union and a collective agreement is crucial for these employees, both at the temporary agency and at the user undertaking.49 However, realisation of this protection in practice is almost impossible. The Hungarian regulation of collective labour law is fairly conservative: the concept of the legislation is based on the traditional employment relationship. An initiative has failed in relation to persons with a legal status similar to that of employees (see: employee v. worker in English labour law or Arbeitnehmer v. arbeitnehmerähnliche Person in the German labour law).50 Accordingly, temporary agency employees have the right to elect a works council and to conclude a so-called ‘works agreement’.51 These employees also have the right to establish a trade union and to conclude a collective agreement.

49  G Kártyás, Munkaerő-kölcsönzés Magyarországon és az Európai Unióban (Temporary agency employment in Hungary and in the European Union) (Budapest, 2011) pp 119–34. 50  G Kiss, ‘The Problem of Persons having similar Legal Status as Employees (Worker) and the Absence of Regulation of this Legal Status in the Hungarian Labour Code. The “third estate” of the Labour Market’ in G Kiss (ed), Recent Developments in Labour Law (Budapest, Akadémiai Kiadó, 2013) pp 259–79. 51  Sections 267–268 of the LC.

Atypical Employment Relationships: The Position in Hungary 395 The majority of provisions on temporary agency employment are ius cogens. These are: provisions of definitions and conditions of assignment (Sections 214–216); certain elements of content of the agreement between the temporary agency and user the undertaking (Section 217(1)); certain elements of content of the contract of temporary agency employment (­Section 218(1), (2), (4) paragraphs (a), (b)). Collective agreements can deviate from other statutory provisions in favour of the employee.

396

15 Atypical Employment Relationships—The Position in Iceland ELÍN BLÖNDAL AND INGA BJÖRG HJALTADÓTTIR

I. INTRODUCTION

T

HE THREE COMMISSION atypical work directives—Directives 97/81/EC, 99/70/EC and 2008/104/EC—have been transposed in Iceland by the Act on Part-Time Work, No 10/2004, the Act on FixedTerm Employment, No 139/2003 and by the Act on Temporary Agency Work No 139/2005 with amendments to that act, respectively. The Icelandic labour market does not distinguish between white- and blue-collar workers, in contrast to many other European countries. In Iceland, the primary distinction is between private and public sector employees. However, special legislation for specific categories of workers exists, namely for seamen, foremen and vocational trainees. Government employees have a unique position in the labour market and special legislation on their rights and obligations, the Government Employees Act, No 70/1996, has been issued.1 Similar rules apply to municipal employees.2 No similar Act or labour code exists for the private labour market, where workers’ rights are protected by various pieces of legislation in addition to collective agreements, which deal with specific aspects of the employment relationship and workers’ social rights. Existing legislation and collective agreements in Iceland are, in principle, based on the division of labour between two groups: those who are employed (employees, starfsmenn), and those who

1  The Government Employees Act No 70/1996, (Lög um réttindi og skyldur starfsmanna ríkisins) nwww.althingi.is/lagas/144a/1996070.html (accessed 3 March 2017). 2 According to The Act on Municipalities, No 138/2011, (Sveitarstjórnarlög) art 57, the rights and duties of municipal employees as well as their wages and terms are determined by collective agreements and their employment contracts. See www.althingi.is/lagas/nuna/2011138. html (accessed 4 March 2017).

398  Elín Blöndal and Inga Björg Hjaltadóttir work independently (self-employed persons, sjálfstætt starfandi).3 The definition of employee and consequently who is in an employment relationship with the employer has mainly evolved through judicial decisions.4 The term ‘employee’ under Icelandic labour law is not static since it is evaluated anew every time a decision is made whether the person concerned is to be considered an employee or a self-employed person. An employment relationship is generally based on an employment contract. In the absence of an employment contract, the court will evaluate various factors to determine whether an employment relationship has been established or not, such as the duration and continuity of the task.5 Iceland has been a member of the Agreement on the European Economic Area (the EEA Agreement) since 1994.6 On the basis of the EEA Agreement, Iceland, as well as Norway, participate in the Internal Market and are required to implement EU legislation relating to the internal market. Consequently, Iceland is, for all intents and purposes, bound by the same EU rules on the labour market as the Member States of the European Union.7 Several EU Directives and Regulations in the field of labour law have been implemented in Iceland, mainly by legislation, but also by collective agreements. The Directives have given rise to new, independent legislation.8 The majority of workers on the Icelandic labour market are employed on a full-time basis under an employment contract of indefinite duration. Other employment arrangements, such as part-time and fixed-term work are generally considered exceptions but are permissible and exist in various sectors of the labour market.9 The Icelandic labour market from a regulatory point of view is usually characterised as flexible compared to the labour markets in mainland Europe. The labour market is for the most part regulated by means of collective bargaining. The social partners play a crucial role in setting wages in different sectors of the economy, working time arrangements and various employment rights of workers. Collective agreements cover approximately 88 per cent of the workforce.10

3  The legal status of self-employed persons is quite different from that of employees, since contractors are not entitled to the same rights and benefits as employees, including minimum wages, sick leave and paid annual leave, terms of annulment and unemployment benefits. 4 Elín Blöndal and Ragnheiður M Sigurðardóttir, Labour Law in Iceland (Kluwer Law International, 2012) p 43. 5 These are factors such as separation from general operations, wage-related expenses, facilities, provision of tools and materials, tax payments, work supervision, working hours, etc. 6  Cf Act no 2/1993, on the European Economic Area. 7 Jens Kristiansen (ed), Europe and the Nordic Collective-Bargaining Model. The Complex Interaction between Nordic and European Labour Law (Nordic Council of Ministers, 2015) p 12. 8 Jens Kristiansen (ed), Europe and the Nordic Collective-Bargaining Model. The Complex Interaction between Nordic and European Labour Law (Nordic Council of Ministers, 2015) p 55. 9  The Icelandic Confederation of Labour (ASÍ), Icelandic labour law. A summary of basic rights and obligations on the private labour market, 6th edn (ASÍ, May 2013) p 29. 10 Ibid.

Atypical Employment Relationships—The Position in Iceland 399 A special court, Félagsdómur (the Labour Court), has jurisdiction in cases involving disputes on the interpretation of collective agreements or alleged violations of the collective agreement, according to the Act on Trade Unions and Industrial Disputes, No 80/1938, Article 44 and the Act on the Collective Agreements of Public Employees, No 94/1986, Article 26. When cases do not fall under the Labour Court’s competence, they are dealt with in the general court system. II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements The Fixed-Term Work Directive11 was transposed in Iceland in 2003 by the Act on Fixed-Term Employment, No 139/2003 (FTE-Act)12—the first comprehensive legislation on fixed-term work in Iceland. In addition to the FTE-Act, the Government Employees Act, No 70/1996 (GE-Act) applies to fixed-term contracts of state employees. The purpose of the FTE-Act is to improve fixed-term work by enforcing the principal rule of non-discrimination and to prevent abuse arising from the use of successive fixed-term employment contracts without objective reasons (Article 2 of the Act). The Act directly replicates the terms of Clause 3 of the Framework Agreement, ie the definitions of the terms ‘fixed-term worker’ and ‘comparable permanent worker’. Article 3(a) of the Act defines a ‘fixed-term worker as ‘an employee having an employment contract with an employer where the end of the contract is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event’. In Article 3(b), the term ‘comparable permanent worker’ is defined as a worker with an employment contract or relationship of indefinite duration, in the same establishment, engaged in the same or a similar work/occupation, due regard being given to qualifications/skills. In line with Clause 2 of the Framework Agreement, the Act excludes from its scope students that are temporarily hired on the basis of contracts for basic vocational education (grunnstarfsnám) or other educational contracts, and employees who are hired on the basis of fixed-term employment contracts which have been concluded within the framework of publicly-supported training, integration and vocational retraining programmes (Article 1(2)(a)–(b)). In addition, the Act does not apply to employees provided by temporary agencies to other undertakings,

11  Council Directive 99/70/EC of 28 June 1999 on the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP. 12 Act on Fixed-Term Employment No 139/2003 (Lög um tímabundna ráðningu starfsmanna).

400  Elín Blöndal and Inga Björg Hjaltadóttir or to civil servants under the Government Employment Act No 70/1996 (Article 2(2)(c)–(d)).13 Prior to the enactment of the 2003 FTE-Act, fixed-term work was considered to be exempt from the principal rules on employment and the termination of employment. The legislator clearly stated that the Act was not intended to amend this unwritten rule and it was therefore assumed that employment contracts of indefinite duration would remain the principal form of employment in Iceland.14 This is in line with the Framework Agreement on fixed-term work, which stipulates in its preamble ‘that contracts of an indefinite duration are, and will continue to be, the general form of employment relationship between employers and workers’ but ‘that fixedterm employment contracts respond, in certain circumstances, to the needs of both employers and workers’. As mentioned above, employment contracts of indefinite duration are the principal form of employment in Iceland. In case of disagreement, the party that maintains that a fixed-term contract has been concluded bears the burden of proof: see, for example, Supreme Court judgments in cases No 483/1998, 200/2005 and 148/2008.15 B.  Lawful Stipulation of the Contractual Terms According to the FTE-Act, Article 5, an employer shall always aim to hire an employee indefinitely. It is prohibited to extend or renew a fixed-term contract so its duration is more than two years, unless otherwise stated in law.

13  Art 22 of the GE-Act lists government employees who are civil servants and includes, amongst others, the Head of Staff of Althingi, the State Auditor General, the Parliamentary Ombudsman, the Secretary to the President, Permanent Secretaries of ministries, directors in ministerial offices, ambassadors and counsellors in the foreign service, justices of the Supreme Court, Secretary to the Supreme Court and regional court judges. Other employees who are not defined as civil servants are referred to in the Act as other government employees or general state employees. 14  Draft Act on Fixed-Term Employment submitted to Parliament at the 130th Parliamentary Assembly 2003–2004: www.althingi.is/altext/130/s/0558.html (accessed 4 March 2017). 15  See: The Icelandic Confederation of Labour (ASÍ): Tímabundnar ráðningar (Fixed-term employment):  www.asi.is/vinnurettarvefur/rettindi-og-skyldur/stofnun-radningarsambands/ timabundnar-radningar/sonnun-fyrir-timabundinni-radningu/ (accessed 28 December 2016) and Lára V Júlíusdóttir, Réttindi og skyldur á vinnumarkaði (The Icelandic Confederation of Labour, 1997) p 65. No formal requirements are needed to conclude a contract of employment. By customary law, an oral agreement is equally valid to a written agreement. The general statutory rules for concluding contracts apply to the conclusion of employment contracts, as well as customary rules of contract law. A valid employment contract can also be based on conduct implying the intention to establish a contract of employment or the commencement of performance of duties by an employee, eg when a person starts working for an employer who hires him/her and pays him/her a salary. Even though a formal written employment contract is not a requirement for establishing an employment relationship, it is the most common form in practice.

Atypical Employment Relationships—The Position in Iceland 401 However, a fixed-term contract of a manager,16 which has been concluded for four years or longer, may be extended, each for the same time. In 2003, when the FTE-Act came into force, the same rule already applied to other government employees (general state employees) than public servants under the 1996 Government Employees Act, Article 41.17 In this regard, the FTE-Act thus implemented similar rules for the general labour market to those applied to government employees, with the exception of civil servants.18 A new employment contract is considered successive if it is extended or if a new fixed-term contract is concluded between the same parties within six weeks after expiration of the previous contract. The social partners may negotiate a different arrangement concerning the extension or renewal of a fixed-term employment contract, taking into consideration the needs of the employee and of the employer in the industry to which the collective agreement applies. The agreement shall then apply to the extension or renewal of the employee (Article 5(3) of the Act). Violations of the FTE-Act may result in tort damages (Article 8 of the Act); see also Act No 50/1993 on Tort Damages. Such cases shall be referred to the general courts. C.  Termination/End of Fixed-Term Contracts The principal rule in Iceland is that employees are hired without a time limitation, ie the employment contract can only be cancelled with a notice period as stated in the collective agreement.19 The general rule of not requiring formal employment contracts is not without exception, since legislation in some instances stipulates requirements for a written employment contract, eg the 1985 Seamen Act, the 1998 Local Government Act, the 2002 Foreign Nationals’ Right to Work Act and the 2005 Act on Temporary Work Agencies. Under collective agreements, the employer must provide the employee who is hired for a period longer than one month and for more than eight hours per week on average, with a written employment contract or a letter of engagement. These exceptions do not form a basis for a formal requirement of a written employment contract, but have an effect on the burden of proof of the agreed upon terms of the employment contract that should have been made in writing. Where a written employment contract is required by law or collective agreement, a contract that has not been formalised can nonetheless be valid. 16  The term ‘manager’ is not defined in the Act. According to the legislative documents, the terms refer to the State Employees Act No 70/1996 where public servants shall be hired for a maximum five-year limited term, see Art 23 of Act No 70/1996. 17 Art 41 stipulates that government employees, other than civil servants, shall be hired indefinitely with a mutual notice period. Such a period shall be three months upon completion of a trial period, unless otherwise stated in a wage agreement. An employee may be hired on a fixed-term basis. Such an employment contract may contain a clause stating that the contract may be terminated by either party before the expiry of the contract. A fixed-term contract may not be continuously extended beyond two years. 18  See Draft Act on Fixed-Term Employment, submitted to Parliament at the 130th Parliamentary Assembly 2003–2004: www.althingi.is/altext/130/s/0558.html (accessed 4 March 2017). 19  The Icelandic Confederation of Labour (ASÍ), Icelandic labour law. A summary of basic rights and obligations on the private labour market, 6th edn (ASÍ, May 2013) p 14.

402  Elín Blöndal and Inga Björg Hjaltadóttir In case of a fixed-term employment contract, the parties to the contract agree in advance when the contract shall end. At that point in time, the legal effects of the employment contract also end.20 A fixed-term contract may not be terminated during the time of employment unless otherwise agreed: see Supreme Court judgment in case 1986:1690. Even if a fixed-term contract is concluded for a very long time, it may in general not be terminated, unless special circumstances arise that allow one of the parties to withdraw from meeting its obligations, such as bankruptcy of the company, or incidents that may lead to its annulment under the Act on Contracts No 7/1936. The annulment rules of the 1936 Act on Contracts—which make a contract voidable in part or in whole—apply to employment contracts as they do to other forms of contracts.21 The annulment rules in the Act on Contracts contain material rules for the annulment of a contract entered into either by unlawful means of duress, fraud, by taking advantage of another person’s distress, lack of knowledge, imprudence or dependence, or if a contract has changed materially from what was intended due to a misprint or other error on the part of the person concluding the contract. An annulment renders the contract as a whole non-binding on a specific party or in general.22 Additionally, the Act on Contracts entails annulment rules that can render specific contract clauses invalid and thus not binding on a party to an employment contract or employee in general, or allows the court to amend the terms of a contract.23 A contract term that is in breach of the law or contrary to public mores can be set aside, in full or in part, or amended according to the Act on Contracts. The unlawful contract term could also lead to the annulment of the employment contract as a whole.24

20  Lára V Júlíusdóttir, Réttindi og skyldur á vinnumarkaði (The Icelandic Confederation of Labour, 1997) p 65. 21  The Act on Contracts, agency and void legal instruments No 7/1936, arts 28–37. 22 Ibid. 23 The Act on Contracts, Agency and Void Legal Instruments No 7/1936, arts 36–37. Article 36provides that a contract may be set aside, in full or in part, or amended if it is considered unfair or contrary to good business practices, to invoke the contract. Article 37 contains annulment rules on non-competition clauses in employment contracts. An assurance to not compete is not necessarily binding under all circumstances, eg if the commitment goes beyond what is necessary to avoid competition, or if it unreasonably restricts the individual’s freedom of employment. If the commitment is intended to remain in effect once the individual’s employment at the undertaking ends, the commitment shall no longer be binding if the person’s employment is terminated or if s/he is dismissed without adequate cause, or if the person lawfully relinquishes the position on the grounds that the employer has failed to meet its obligations. 24 The Act on Contracts, Agency and Void Legal Instruments, No 7/1936, s 36. Þorgeir Örlyggson,‘Efndir in natura’, Tímarit lögfræðinga, vol 4, pp 285–366, 2000, Supreme Court decision in Case No 255/1992.

Atypical Employment Relationships—The Position in Iceland 403 D.  Rights and Status of Fixed-Term Workers (i)  Equal Treatment The FTW-Act aims to improve the terms of fixed-term work by ensuring the application of the principle of non-discrimination and by establishing a framework to prevent abuse arising from the use of successive fixed-term employment (Article 2). Fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers as regards their employment conditions solely because they have a fixed-term contract or relationship, unless differentiated treatment is justified on objective grounds (Article 4(1) of the Act).25 Employers shall, to the extent possible, facilitate fixed-term workers’ access to appropriate work-related education and training opportunities to enhance their skills, foster career development and occupational mobility (Article 6(2)). (ii)  Employment Opportunities Employers shall inform fixed-term workers in a timely manner about vacancies that become available in the undertaking, including part-time vacancies, to ensure that they have the same opportunity to secure permanent positions as other workers. Such information may be provided by way of a general announcement at a suitable place in the undertaking (Article 6(1) of the FTE-Act). Breach of this duty may result in tort damages under Article 8 of the FTE-Act in case of proven damage under the Act on Tort No 50/1993. E.  Information and Consultation Employers shall share all relevant information on fixed-term vacancies in the undertaking with employee representatives (Article 6(3)). Breach of this duty may result in tort damages under Article 8 of the FTE-Act in case of proven damage under the Act on Tort No 50/1993. No specific provisions stipulating a requirement to consult with fixed-term employees exist. The issue of information and consultation in undertakings is a relatively new aspect of Icelandic industrial relationships, but a general system of worker representation at the workplace does, however, exist, which is primarily based on collective agreements. This system relates primarily to issues of

25  See eg opinion of the Parliamentary Ombudsman in case No 4929/2007, where the continued temporary employment of a secondary school teacher after two years was found to be in breach of the Public Employees Act No 70/1996 and the Temporary Work Act No 139/2003. See also case No 6276/2011 and 5356/2008.

404  Elín Blöndal and Inga Björg Hjaltadóttir implementation of specific agreements and the protection of workers’ rights under the law and each collective agreement.26 F.  Specific Provisions In the public sector, civil servants shall be appointed for a fixed term of five years at a time, unless otherwise stated by law (the GE-Act, Article 23(1)). If an individual has been appointed as a civil servant for a fixed term of five years, s/he shall be informed no later than six months before his/her term of employment expires whether the post will be advertised as vacant. If this is not done, his/her term of appointment is automatically extended by five years, unless s/he wishes to resign in accordance with Article 37(1) of the Act. Other state employees may be hired on a fixed-term basis under Article 41 of the Act. Such an employment contract may contain a clause stating that the contract may be terminated by either party prior to the expiry of the contract. A fixed-term contract may not be extended continuously beyond two years (Article 41(2)). The employment of a fixed-term worker ceases without notice at the end of the term under Article 43(1) of the Act. The GE-Act includes the option of a probationary period at the beginning of the employment relationship (Article 41(1)), but does not provide for how long this probation period shall be. Therefore, directors of state agencies may determine the period of probation in each individual case: see Supreme Court judgment in case 296/1999. A probation period of three months is generally considered reasonable, but for jobs requiring expertise a longer probation period of up to six months—or even longer in exceptional cases—is often required. In Iceland, fixed-term employment is fairly common in the field of education, research and science. Under the Act on Public Universities, No 85/2008, Article 17(4), an employment contract for an academic position may be indefinite or for a predetermined period of up to five years. Under special circumstances, temporary recruitment may be extended for an additional two years, thus exceeding the five-year limit. The Act thereby provides for derogation from the principal rule of the GE-Act, which states that fixedterm work of general state employees (other than public servants) shall not exceed a period of two years. The argument behind this derogation—as stipulated in the preparatory legislative documents of the Act27—is the special

26  The Icelandic Confederation of Labour (ASÍ), Icelandic labour law. A summary of basic rights and obligations on the private labour market, 6th edn (ASÍ, May 2013) pp 34–35. 27  Draft Act on Public Universities, submitted to Parliament at its 135th Parliamentary Assembly 2007–2008: www.althingi.is/thingstorf/thingmalalistar-eftir-thingum/ferill/?ltg=135&mnr=546 (accessed 30 December 2016).

Atypical Employment Relationships—The Position in Iceland 405 situation involving employment in university teaching and research. This is based on the argument that the time needed for the employee to acquire and be trained for the academic position justifies a longer period of fixed-term employment than provided for in the GE-Act. The maximum fixed-term period of five years may be extended up to a total of seven years, subject to special circumstances.28 For students at the secondary level, work-based learning and job training (or apprenticeships) is based on the general provisions on work-based training in the National Curriculum Guide: see the Upper Secondary School Act, No 92/2008.29 Vocational training contracts shall stipulate the rights and duties of the employer, school and pupil/apprentice, the objectives and quality requirements of work-place learning, the duration of the contract, information on dealing with disputes and contract termination—Article 28(2) of the Upper Secondary School Act. Should it be necessary for a special job contract to be concluded between the pupil/apprentice and the employer, it shall be verified by the school. Such contracts must be concluded in accordance with current collective bargaining agreements for apprentices for the respective occupation (Article 28(3) of the Act). The first 12 weeks of the study period under the apprenticeship contract are treated as a probation period, or if the job training is less than 30 weeks, the probation period shall be a fixed percentage of the length of the vocational education programme. A probation period may not exceed one-third of the total period of the job training. Either party may terminate the vocational education contract without giving a reason at any point during the probation period (Regulation on Work-place Education and Job Training, No 840/2011, Article 10). The parties to a vocational training contract may terminate the contract if a pupil neglects his/her studies; if the pupil is incapacitated for the work in question due to health reasons; if an undertaking violates its contractual obligations; if an undertaking goes bankrupt or ceases operation due to other reasons (Article 12(1) of the Regulation). The parties may also terminate the apprenticeship if they agree to do so. When a vocational training contract is terminated, notification shall be sent to the administrative body of vocational trainee contracts.30 If a vocational training contract is terminated after the probation period, the administrative body shall register the reason for the termination. If a party unilaterally requests the cancellation

28 Ibid.

29  The upper secondary school is responsible for concluding the training contract with the employer, association or other parties qualified to provide the pupil with the necessary instructions and training. 30  According to the Regulation on Work-place Education and Job Training, No 840/2011, the Minister of Education may include the school or another party to administer the preparation and validation of the vocational training contract and monitor it. The same parties may decide to cancel the contract if this is deemed necessary (Art 4 of the Regulation).

406  Elín Blöndal and Inga Björg Hjaltadóttir of such a contract after the probation period, the request shall be made in writing and the other party to the agreement shall be given the opportunity to comment on the termination request. The notice period of the contract shall in such cases be one month (Article 12(2)–(3) of the Regulation). If a dispute arises between a pupil and an undertaking because of the termination of a vocational trainee contract it shall be referred to the administrative body of vocational training contracts, which provides guidance to pupils about the procedure and the possibility of completing their training (Article 13 of the Regulation). If the dispute is not resolved by these means, it may be referred to the Ministry of Education (Article 14 of the Regulation). Under the Health Service Act No 40/2007, Article 9, chief executives of healthcare facilities are appointed by the minister for a maximum period of five years at a time. A chief executive must have a university qualification and/or experience in management and administration useful for his/her work. Chief executives of healthcare facilities are in charge of appointing staff to the facility. Staff in management positions may be appointed temporarily for up to five years. Under the Act on Education and Employment of Teachers and School Administrators of Kindergartens, Primary and Secondary Schools, No 87/2008, it is prohibited to hire a primary school teacher unless he/she has attained permission from the Minister of Education to use the title ‘primary school teacher’ (Article 11(4)). A special committee may, however, issue exemptions to school administrators of primary schools to temporarily hire a specific employee, for up to one year at a time, if no other primary school teacher applies for an advertised job (Article 18(3) of the Act). The committee may waive the requirement to reissue the advertisement when an application has been submitted to reappoint an individual who is studying to obtain a teaching certificate. However, a school administrator is not obliged to send an application to the exemption committee in case of teaching of 240 minutes per week or less (Article 11(3) of the Act). If the committee grants permission to hire an individual in accordance with Article 18(3) or (5), s/he shall be recruited on a special fixed-term employment contract with a mutual notice period of three months. However, the notice period shall be one month during the first three months at work. Such an employee may not use the title ‘primary school teacher’ and may not be rehired without issued a prior advertisement (Article 18(6) of the Act). The Seamen Act No 35/1985 contains specific provisions on fixed-term work. Under the Seamen Act, a contract of employment shall not cease to be valid while the ship is still at sea, despite fixed-term clauses with a set termination date (Article 10(3)). If a seaman on a fixed-term contract or hired for a certain voyage stays on the ship after the employment contract has expired or the voyage has ended, and a new contract has not been concluded concerning the port at which the seaman is to leave the ship, Article 9(1)–(2) of the Act shall apply. Under these provisions, the reciprocal notice period

Atypical Employment Relationships—The Position in Iceland 407 for crews shall be one month, and seven days for Icelandic fishing vessels. The notice period for managers on ships shall be three months, unless negotiated differently. This also applies to crew that have worked as temporary workers for nine months continuously for the same operator. Under the Foreign Nationals’ Right to Work Act, No 97/2002,31 a work permit is granted in the name of the foreign national after s/he moves to Iceland. An employer who intends to hire a foreign national who is not a national of a state of the European Economic Area, of an EFTA state or of the Faroe Islands, must apply for and already have received a work permit prior to the commencement of work of the foreign national. Applications for work permits, including the necessary supporting documentation, must be submitted to the Directorate of Immigration, which then forwards the application to the Directorate of Labour to decide whether the conditions for issuance of a residence permit are met. If a foreigner is a national of a state from within the European Economic Area, an EFTA state or the Faroe Islands, then it is not necessary to apply for a work permit.32 A temporary work permit33 is usually restricted and only entitles the holder of the permit to work for a specific employer,34 and the foreign national may not work for another employer before a new permit has been granted (Article 19(4) of the Act). G. Collective Bargaining Agreements Deviating from Statutory Provisions The social partners may negotiate a different arrangement for extensions or renewals of fixed-term contracts, taking into account the needs of workers and employers in the sector covered by the collective agreement. Such an agreement shall then apply to extensions or renewals of fixedterm contracts of the employees covered (Article 5(3) of the FTW-Act).35 31 This Act contains regulations on approvals for work permits for foreign nationals in Iceland in accordance with government policy at any given time. The different categories of temporary work permits under the Act are: work permits for a job that requires expert knowledge; work permits due to labour shortages; work permits for athletes; work permits granted for special reasons; work permits based on family reunion; work permits for students; and work permits for specialised employees based on a service contract. 32  See: https://vinnumalastofnun.is/en/foreign-workers/work-permits  (accessed 4 March 2017). 33  According to Art 3 of the Act, a temporary work permit is a permit granted to a foreign national authorising him/her to temporarily work on the domestic labour market for a specific employer. An unrestricted work permit is a permit issued to a foreign national, authorising him/her to work on the domestic labour market without a time limitation. 34  Art 18(2). 35  Art 5(3) of the Act does not stipulate that the terms of such an agreement have to be more favourable for the employee than the statutory provisions. According to the regulations, such terms would have to be limited to the measures set out in Art 5 of the Framework Agreement on fixed-term work concluded by UNICE, CEEP and the ETUC.

408  Elín Blöndal and Inga Björg Hjaltadóttir Also, as a general rule of labour law, the social partners can maintain or introduce more favourable provisions for workers than those set out in the legislation. III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements The Part-Time Work Directive36 was first implemented in Iceland by the social partners in the private labour market in 2002.37 Public sector employees did not reach an agreement with their employers, however, and it was therefore deemed necessary to fully implement the Directive with legislation on part-time work, which would cover both the private and the public ­sector.38 The Act on Part-Time Work No 10/2004 (PTE-Act) is nearly identical to the collective agreement negotiated for the private labour market.39 The Act applies to employees that are not covered by collective agreements guaranteeing the minimal rights set forth in Directive 91/81/EC on part-time work (Article 2(1) of the Act). The Act does not affect the content of collective agreements concluded to implement the Directive, provided that they contain no less favourable conditions than those stipulated in the Directive (Article 2(2)). The term ‘part-time worker‘ is defined in Article 3 of the Act, as an employee whose normal hours of work, calculated on a weekly basis or over a period of employment of up to one year, are fewer on average than the regular hours of work of a comparable full-time worker. The term ‘comparable full-time worker’ refers to a full-time worker in the same establishment who is engaged in the same or a similar work/occupation, due regard being given to other considerations such as knowledge and skills. Where there is no comparable full-time worker in the same establishment, the comparison shall be made with reference to the applicable collective agreement or, where there is no applicable collective agreement, in accordance with national law,

36  Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC. 37 An agreement between the Business Iceland, SA and the Icelandic Confederation of Labour, ASÍ on part-time work. The agreement was signed in November 2002 and entered into force in January 2003: www.asi.is/media/160088/Hlutavinna-asi-sa-131102-FIN.pdf (accessed 30 December 2016). 38 See Draft Act on Part-Time Work, submitted to the Parliamentary Assembly in 2003–2004: www.althingi.is/altext/130/s/0559.html (accessed 30 December 2017). 39  Agreement between the Business Iceland, SA and the Icelandic Confederation of Labour, ASÍ on part-time work. www.asi.is/media/160088/Hlutavinna-asi-sa-131102-FIN.pdf (accessed 22 May 2017).

Atypical Employment Relationships—The Position in Iceland 409 collective agreements or practice.40 The term ‘part-time worker’ was discussed in the Labour Court ruling in case No 25/2015, where a worker was on an on-call list and worked on a casual basis. He had no specific obligation to work and could reject a call to work. The dispute concerned the acquisition of rights following consecutive service. The employer maintained that each time the worker came to work, a new temporary employment contract had been formed. The Court rejected this assertion and arrived at the conclusion that the employee had in fact worked part time, and that the claimant was thus a part-time worker, even though it had been on a casual basis. This judgment seems to be in line with the conclusions of the CJEU, eg judgment in Case C-313/02 Wippel v Peek & Cloppenburg GmbH.41 B.  Opportunities for/Right to Part-Time Work Employers shall, to the extent possible, give consideration to requests by workers who want to transfer from full-time to part-time work or their requests to decrease their working time, should the opportunity arise (Article 4(2)(a)–(b) of the Act). Employers shall also seek to facilitate access to part-time work for employees at all levels of the establishment, including skilled and managerial positions (Article 4(2)(c)) and provide timely information on the availability of part-time and full-time posts in the establishment in order to facilitate transfers from full-time to part-time work or vice versa (Article 4(2)(d)). Where appropriate, employers shall facilitate access by part-time workers to vocational training to enhance their career opportunities and occupational mobility (Article 4(2)(e)). These measures closely follow Clause 5(2) of the Framework Agreement, but in addition, employers shall seek to inform shop-stewards or employee representatives about part-time work opportunities at the workplace (Article 4(2)(f)). C.  Opportunities for/Right to Full-Time Work Employers shall, to the extent possible, give consideration to requests by workers who want to transfer from part-time to full-time work or their requests to increase their working time, should the opportunity arise (Article 4(2)(a)–(b) of the Act, see above). 40  Art 3 is based on a direct translation of the Framework Agreement, implemented by the Part-Time Work Directive, see Clause 3 of the Agreement. 41  Case C-313/02 Wippel v Peek & Cloppenburg GmbH, judgment of 12 October 2004, [2005] IRLR 211.

410  Elín Blöndal and Inga Björg Hjaltadóttir D.  Rights and Status of Part-Time Worker (i)  Equal Treatment The purpose of the PTW-Act is to protect part-time workers from discrimination and to improve the conditions of part-time work. It also aims to promote the development of opportunities for part-time work as well as flexible working time, due regard being given to the needs of both employers and workers (Article 1 of the Act). Part-time workers shall not be treated less favourably than comparable full-time workers solely because they work part time, unless the treatment can be objectively justified (Article 4(1) of the Act). Part-time workers must also not be treated less favourably than full-time workers in the reorganisation of work, unless such treatment can be objectively justified.42 Having worked part time previously, or working part time currently, should not prevent a worker from being promoted, regardless of whether the new post is full-time or part-time. When determining the criteria to select jobs for redundancy, such criteria must be objectively justified and part-time workers may not be treated less favourably than comparable full-time workers.43 However, the PTW-Act only applies to employees that are not covered by collective agreements guaranteeing the minimal rights set forth in Directive 91/81/EC on part-time work (Article 2(1) of the Act). The Act does not affect the content of collective agreements concluded to implement the Directive, provided they do not contain less favourable rights than those defined in the Directive (Article 2(2)). The article transposing the Fixed-term Work Directive applies primarily to workers who have not been guaranteed minimal rights (specified in the Directive) in the collective agreement.44 The collective agreements referred to in Article 2 apply to the agreement made between the Confederation of Icelandic Labour, ASÍ, and the Business Iceland, SA, in 2002.45 The reference in paragraph 2 applies to this agreement, and it is assumed that it can be modified, provided that the modification fulfils the Directive’s provisions.46 As the PTW-Act is based on the agreement, there is little difference between its content. Like the Act, the 2002 Agreement is based on the principle that a part-time worker has

42 According to the Holiday Act No 50/1987, it is comparable for part-time and fulltime employees, where a part-time employee earns pro rata rights to an annual holiday, see Art 7. 43  The Icelandic Confederation of Labour (ASÍ), Icelandic labour law. A summary of basic rights and obligations on the private labour market, 6th edn (ASÍ, May 2013) p 28. 44  Draft Act on Part-Time Work, submitted to the Parliamentary Assembly in 2003–2004: www.althingi.is/altext/130/s/0559.html (accessed 30 December 2017). 45 Agreement between Business Iceland and the Icelandic Confederation of Labour on Part-Time Work, concluded on 13 November 2002: www.asi.is/media/160088/ Hlutavinna-asi-sa-131102-FIN.pdf (accessed 22 May 2017). 46  Draft Act on Part-Time Work, submitted to the Parliamentary Assembly in 2003–2004: www.althingi.is/altext/130/s/0559.html (accessed 30 December 2017).

Atypical Employment Relationships—The Position in Iceland 411 the right to not be treated less favourably than other comparable full-time employees as regards the terms of his/her contract of employment.47 It also includes provisions on part-time work in collective agreements of some trade unions and confederations of unions.48 As an example, the right of part-time workers to salaries during extra holidays is ensured in collective agreements. Those who have concluded a permanent fixed-term work contract, whether for working part of the day or for one day a week, shall enjoy proportionally the same right to payment for contractual holidays, sickness or accident days as those who work full time and a full work week. A person who only works one day a week and has earned the right to permanent acquisition of wages has the right to payment of this wage if the one day s/he works per week happens to be a holiday.49 (ii)  Dismissal Protection The criteria determined to select jobs for redundancy must be objectively justified and part-time workers may not be treated less favourably than comparable full-time workers.50 A worker’s refusal to transfer from fulltime to part-time work or vice versa does not in itself constitute a valid reason for termination of employment. Termination of employment is not in violation of the Act if it is made without prejudice and in accordance with national law, collective agreements and practice, or for other reasons such as may arise from the undertaking’s operational requirements (Article 4(3) of the Act). E.  Information and Consultation Employers shall, to the extent possible, provide timely information on the availability of part-time and full-time posts in the undertaking to facilitate transfers from full-time to part-time work or vice versa (Article 4(2)(d)). In addition, employers shall inform shop-stewards or employee representatives about part-time work opportunities at the workplace (Article 4(2)(f)).

47  The Icelandic Confederation of Labour (ASÍ), Icelandic labour law. A summary of basic rights and obligations on the private labour market, 6th edn, (ASÍ, May 2013) p 29. 48 The Icelandic Confederation of Labour (ASÍ), Hlutastörf: www.asi.is/vinnurettarvefur/ rettindi-og-skyldur/stofnun-radningarsambands/hlutastorf/ (accessed 30 December 2016). See, eg, the Collective Agreement for Grammar School Teachers of the Icelandic Teachers Union and the Icelandic Association of Local Authorities, Art 2.3.4, valid until 30 November 2017: http:// ki.is/images/Skrar/FG/Kjaramal/Kjarasamningar/FG__Heildarsamningur_2016-2017_LOK. pdf (accessed 22 May 2017). 49  Lára Júlíusdóttir, Vinnumarkaðsréttur. Handrit til Kennslu, 2008, p 237. 50  The Icelandic Confederation of Labour (ASÍ), Icelandic labour law. A summary of basic rights and obligations on the private labour market, 6th edn (ASÍ, May 2013) p 29.

412  Elín Blöndal and Inga Björg Hjaltadóttir There are no specific provisions stipulating any requirements for consultation of part-time employees.51 F.  Other Part-Time Arrangements As regards the so-called new forms of employment, casual work—ie an employment relationship which does not oblige the employer to provide the employee with regular work—seems to be the only form of part-time work that has caused problems in practice, mainly because there has been a tendency by employers to avoid the rule of minimum wage under collective agreements.52 G. Collective Bargaining Agreements Deviating from Statutory Provisions According to the Framework Agreement, Clause 2(2) workers who work on a casual basis may, for objective reasons, be excluded fully or partly from the terms of the Member States, if certain conditions are being met. The preparatory legislative documents of the PTW-Act, with later amendments, state that so-called time-work employees (tímavinnustarfsmenn)—ie part-time employees who work on a casual basis—are not covered by the PTW-Act. There is a long tradition of distinguishing between time-work employees and others who receive a monthly salary. One of the main justifications for this arrangement is that time-work employees are not viewed as being in a permanent employment relationship, and their duties are therefore not comparable to those of workers in a permanent employment relationship.53 As this has been approved by the social partners for the public labour market on the basis of objective reasons, it is assumed by the legislator that in each case the social partners will reassess these permissions granted by collective agreements to time-work employment and payments, to affirm that they are based on objective reasons.54 IV.  TEMPORARY AGENCY WORK

Temporary agency work has been on the rise in Iceland since the construction of a large dam project and the construction of a Combined Heat 51  Eg, the Act on Collective Redundancies refers to number of employees; part-time workers are counted equally with full-time workers, Act No 63/2000, Art 1. 52  See, eg, the Labour Court judgment in case No 25/2015, see above. 53 Draft to the Act on Part-Time Work, submitted to the Parliamentary Assembly in 2003–2004: http://www.althingi.is/altext/130/s/0559.html (accessed 4 March 2017). 54 Ibid.

Atypical Employment Relationships—The Position in Iceland 413 and Power plant in East Iceland in the early 2000s. Temporary agency work declined after the financial crisis in 2008, but with unemployment at 2.6 per cent at present, there is high demand for temporary agency work.55 As of 4 March 2017, 24 temporary work agencies were registered in Iceland; at the end of 2014 there were four, and at the end of 2015 there were nine.56 A.  Legal Definitions/Formal Requirements Legal definitions of temporary agency work were introduced into law with Act No 139/2005 (Lög um starfsmannaleigur).57 The Act is based on an agreement between the social partners in a preparatory committee of representatives of the Ministry of Social Affairs and Labour, the Icelandic Confederation of Labour (ASÍ) and Business Iceland (SA),58 and transposes Directive 2008/104/EC of the European Parliament and of the Council on temporary agency work into Icelandic law.59 A ‘temporary work agency’ denotes a service company that hires out workers for a fee to carry out work at a user undertaking under the direction and supervision of the latter.60 Temporary work agencies that are not established in the European Economic Area or in an EFTA state may not provide services in Iceland, unless this is permitted under an agreement to which Iceland is a party.61 A user undertaking in this regard refers to an individual, company, public entity or other party operating an undertaking that hires temporary agency workers to carry out temporary work under its direction and supervision.62 The term ‘employee of a temporary work agency’ denotes an individual who is engaged by a temporary work agency to work on temporary projects for a user undertaking under its direction.63

55  Statistics Iceland: http://px.hagstofa.is/pxis/pxweb/is/Samfelag/Samfelag__vinnumarkadur__ vinnumarkadur/VIN00910.px (accessed 18 January 2017). 56 The Directorate of Labour: www.vinnumalastofnun.is/atvinnurekandi/erlend-thjonu stufyrirtaeki-og-starfsmannaleigur/starfsmannaleigur (accessed 4 March 2017). Icelandic Directorate of Labour, Annual Report for 2015: www.vinnumalastofnun.is/media/1689/arssk yrsla2015-final.pdf, pp 20–21 (accessed 17 January 2017). 57  Act on Temporary Work Agencies No 139/2005. 58 Notes on proposal for the Act on Temporary Agency Work: www.althingi.is/ altext/132/s/0420.html (accessed 18 January 2017). 59 Act on Temporary Work Agencies No 139/2005, Art 14(a), as amended by Act No 34/2013, in reference to the Decision of the EEA Joint Committee, No 149/2012. 60  Act on Temporary Work Agencies, Art 1(2). 61  Act on Temporary Work Agencies, Art 2(5). 62  Act on Temporary Work Agencies, Art 1(3). 63  Act on Temporary Work Agencies, Art 1(4).

414  Elín Blöndal and Inga Björg Hjaltadóttir The Act on Temporary Work Agencies sets down general provisions for the operation of temporary work agencies in Iceland, including a prohibition on charging an employee any type of fee for finding him/her employment, and sets time restrictions on temporary work agencies hiring out employees to a given user undertaking. The Act on Temporary Work ­Agencies additionally precludes any restrictions on the employee later taking up direct employment with the user undertaking.64 The general form of employment in Iceland is direct employment for an indefinite period between the employer and the employee who carries out work directly for the employer. A certain degree of flexibility exists as regards the formation and termination of employment contracts, enabling undertakings to make operational changes as needed. The notes on the proposal for the Act on Temporary Agency Work specifically state that the Act is not intended to alter this key principle, as agreed in the preparatory work for the Act by the social partners in the preparatory work group.65 The Posted Workers Act (POW-Act) No 45/200766 applies to undertakings that temporarily post workers in Iceland in connection with the provision of services, including services rendered by workers hired out for a fee to carry out work at a user undertaking under its direction.67 Temporary work agencies are thus covered by the POW-Act, but Articles 8–11 do not apply to them (Article 1 of the Act). These are provisions concerning undertakings’ obligation to provide information (Article 8), an exemption from this obligation (Article 9), a special representative (Article 10) and obligations of user undertakings (Article 11). The Act on Temporary Work Agencies, No 139/2005, with subsequent amendments, contains, inter alia, provisions on these matters. A temporary work agency operating in Iceland must conclude a w ­ ritten employment contract with the temporary agency worker. This is not a general requirement for employers in Iceland.68 B.  Registrations, Licensing, Financial Guarantees, etc Temporary work agencies, whether domestic or foreign, which provide ­services in Iceland must notify the Directorate of Labour about their operations

64 

Act on Temporary Work Agencies, Arts 5(1), 6(1), 7(1). on proposal for amendments to the Act on Temporary Agency Work that became Act No 34/2013, (Greinargerð með frumvarpi til laga nr 34/2013): www.althingi.is/ altext/132/s/0420.html (accessed 18 January 2017). 66  Act on Posted Workers No 45/2007, Lög um útsenda starfsmenn. 67  Act on Posted Workers No 45/2007, Art 1(1)(c). 68  Act on Temporary Work Agencies No 139/2005, Art 8, see further notes on proposed bill for the Act on Temporary Work Agencies. 65 Notes

Atypical Employment Relationships—The Position in Iceland 415 and must disclose certain information in accordance with the Act on Temporary Work Agencies.69 Any person, whether domestic or foreign, wishing to provide temporary work agency services in Iceland, must notify the Directorate of Labour of this plan no later than on the day that operations commence. The notification must include the name of the agency, its national identification number, address, and the name, ID number and address of its representative. If the temporary work agency is located in another EEA or EFTA state, the information must include proof of residence, incorporation, operational licence or registration, ie VAT number in the country of residence. The Directorate of Labour maintains a public register of temporary work agencies that have submitted notification of their operations in Iceland. Temporary work agencies may not provide services in Iceland without such registration.70 If a temporary work agency intends to provide services in Iceland for a total of more than 10 working days within a 12-month period, the Directorate of Labour must be provided with information on the workers who will be working in Iceland, their places of residence, the length of their stay, name and ID number of the user undertaking, and the temporary work agency must then nominate a representative in Iceland (it can be one of the employees being posted to work for a user undertaking).71 The right of foreign temporary work agencies to provide their services in Iceland without additionally registering with the local enterprise register, either as a primary or secondary establishment, is contingent on whether they are established elsewhere within the EEA area or not. Temporary work agencies that are established within the EEA and wish to provide their

69  Act on Temporary Work Agencies No 139/2005, Art 2. Based on the committee’s work with the participation of the social partners, the year 2007 saw a number of amendments to the POW Act that applies in part to temporary work agencies (see above). Service providers were ordered to report various data to the Directorate of Labour. However, temporary work agencies were excluded from this obligation under the POW Act, as the duty to register and report information is governed by the Act on temporary work agencies. The new POW Act (Act No 45/2007) gave rise to criticism from the EFTA Surveillance Authority, one point being that the obligation to report was too extensive and was in the nature of a system of prior approval for the provision of services in Iceland. This criticism led to an amendment of the reporting rule in the Act. The POW Act was subsequently amended; it is thus sufficient for companies posting workers in Iceland on the basis of Directive No 96/71/EC to submit the necessary information on the same day the work commences in Iceland. See Europe and the Nordic Collective Bargaining Model. The Complex Interaction between Nordic and European Labour Law, Jens Kristiansen (ed) (Nord 2015:541, Nordic Council of Ministers 2015) p 35. 70  Act on Temporary Work Agencies Art 2. 71 Act on Temporary Work Agencies, Art 4. The temporary work agency representative is responsible for submitting information to local authorities in accordance with the Act on Temporary Agency Work, and for submitting information in accordance with Art 2 of Act No 55/1980 on Employment Terms. (Art 2 of Act No 55/1980 as amended by Act No 145/2004 entered into force after a collective agreement between the social partners (the Icelandic Confederation of Labour and Business Iceland) on foreign workers in the Icelandic labour market of 7 March 2004).

416  Elín Blöndal and Inga Björg Hjaltadóttir services to user undertakings operating or established in Iceland are not under a legal requirement to establish their operations in Iceland by registering with the enterprise register.72 Both national and foreign temporary work agencies are required to provide information about any workers employed in Iceland and submit copies of their employment contracts.73 C. Relationship between Temporary Agency Worker and Temporary Work Agency (i)  Fixed-Term and Part-Time Contracts The employment agreement between a temporary agency worker and the temporary work agency can be concluded for a fixed term or indefinitely. As neither the Act on Temporary Work Agencies nor other statutes contain any specific restrictions in this respect, the general principles apply to fixed-term contracts or those of indefinite duration. The same rules apply to part-time contracts. (ii)  Rights and Obligations/Liability Temporary work agencies must provide their workers with a written contract of employment and written information about the work they will perform at each user undertaking.74 User undertakings do not establish a direct employment relationship with the workers and are therefore not legally responsible for their wages, unless otherwise stipulated in the collective agreement.75 As employers, temporary work agencies are bound by Icelandic collective agreements to pay their workers minimum wages and provide specific employment terms in the same 72  Temporary work agencies—legal framework in Iceland, Information for temporary work agencies and user undertakings, Icelandic Confederation of Labour (ASÍ), 2006: www.vsfk.is/ files/skjol-a-ensku/temporary_work_agenceis.pdf (accessed 4 March 2017). 73  Act on Temporary Work Agencies, Art 4(4) grants the Directorate of Labour a discretionary right to require a temporary work agency to supply further information confirming that a temporary work agency is providing services under Art 36 of the EEA Agreement, such as service agreements and employment contracts. According to the Directorate of Labour’s website, copies of service agreements and employment contracts are always requested. See: www.vinnumalastofnun.is/en/foreign-workers/foreign-service-companies-and-temporarywork-agencies (accessed 4 March 2017). According to the Act on Posted Workers No 45/2007 Art 14, local trade unions are entitled to receive copies of employment contracts between employers and their posted employees in Iceland from the Directorate of Labour. This provision applies to a temporary work agency’s employment contracts with employees in Iceland. 74  Act on Temporary Work Agencies, Art 8(1) and (2). 75  Temporary work agencies—legal framework in Iceland, information for temporary work agencies and user undertakings (Icelandic Confederation of Labour (ASÍ), 2006) p 9: www. vsfk.is/files/skjol-a-ensku/temporary_work_agenceis.pdf (accessed 4 March 2017).

Atypical Employment Relationships—The Position in Iceland 417 manner as if the temporary agency worker had been directly employed by the user undertaking.76 The temporary agency worker shall have the same access to facilities and equipment in the user undertaking (such as access to the canteen) as the regular employees of the user undertaking, unless differentiated treatment can be objectively justified.77 Temporary work agencies cannot negotiate or receive any type of fee from their workers for offering or providing them employment, whether at the start or during the course of the employment relationship.78 Temporary work agencies are prohibited from banning or restricting their workers from resigning from their employment contracts in order to form a direct employment relationship with any of the user undertakings where they have been working.79 (iii)  Dismissal Protection As neither the Act on Temporary Agency Work nor other statutes contain any specific measures, general principles apply to dismissal protection. D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship The Act on Temporary Work Agencies does not stipulate a maximum period of deployment of an employee to the same user undertaking. There is generally no direct contractual relationship between a user undertaking and the temporary agency worker, although exceptions are possible. A quasi-contractual obligation by the user undertaking for salary payments and deduction of taxes and payment of those taxes to local tax authorities was established in Impregilo v Antonio Augusto Monteiro and Impregilo v Icelandic Government. In both cases, reference was made to collective agreements entered into by Impregilo directly with local unions, containing contractual obligations for Impregilo as a user undertaking with regard to temporary agency workers. In the decision of the Supreme Court in case No 267/2006, Impregilo v Antonio Augusto Monteiro (A), the Supreme 76  Act on Temporary Work Agencies, Art 5a and Act No 55/1980 on Employment Terms, Arts 1 and 2, stipulate that the wages and working conditions agreed upon by the parties to collective agreements shall be minimum working conditions, irrespective of nationality, for all workers in the relevant occupation within the specific geographical area covered by the collective agreement, as amended by Act No 145/2004. 77  Act on Temporary Work Agencies, Art 5a(2). 78  Act on Temporary Work Agencies, Art 5(1). 79  The temporary agency worker shall also receive information on available posts in the user undertaking while carrying out work there. Act on Temporary Work Agencies, Art 7.

418  Elín Blöndal and Inga Björg Hjaltadóttir Court found that the temporary work agency was to be considered A’s employer, and not Impregilo. A, however, was found to be entitled to claim direct salary payments from Impregilo in accordance with the collective agreement Impregilo had entered into, amounting to the difference between the salaries paid by the Portuguese agency and the minimum wages under the applicable Icelandic collective agreement Impregilo had contracted to ensure the workers be paid. In the Supreme Court’s decision in case No 523/2006, Impregilo v Icelandic Government, the Supreme Court found that Impregilo, a user undertaking, could generally not be considered the employer of the temporary agency worker from a Portuguese agency as regards taxation and was thus not required to deduct income tax from the temporary agency worker and pay it to the Icelandic tax authorities. This was the responsibility of the Portuguese temporary work agency. Impregilo had, however, entered into a collective agreement with local unions. In that collective agreement, Impregilo had obligated itself to directly pay the Portuguese workers their monthly salaries amounting to the difference between their salaries and the Icelandic minimum wage according to local collective agreements. Impregilo was found to be an employer of the temporary agency worker as regards those salary payments and required to deduct the relevant income tax from the salaries and pay these to the local tax authorities.80 A statutory obligation by a user undertaking towards local unions was established in Icelandic Confederation of Labour v Sóleyjarbakki.81 Article 1 of Act No 55/1980 on Employment Terms stipulates that the wages and working conditions agreed upon by the parties to a collective agreement shall be the minimum working conditions, irrespective of nationality, for all workers in the relevant occupation within the specific geographical area covered by the collective agreement. In accordance with a collective agreement of 7 March 2004 between the social partners (the Icelandic Confederation of Labour and Business Iceland) on foreign workers in the Icelandic labour market and Article 2 of Act No 55/1980 on Employment Terms, giving that particular collective agreement legal standing as a collective agreement applicable to the employment terms of all foreign workers in Iceland, the user undertaking was found to have direct obligations towards local unions. The collective agreement gives union representatives supervisory authority in ensuring compliance with the Act on Employment Terms,82 but the Labour Court found that this authority did not result in an obligation for the user undertaking to provide union representatives with copies of

80  See also Supreme Court Decision in case No 166/2009, where the user undertaking was not found to be responsible for deducting and paying income tax from the temporary agency workers’ salaries. 81  Labour Court in case No 3/2006 Icelandic Confederation of Labour v Sóleyjarbakki. 82  Act No 55/1980.

Atypical Employment Relationships—The Position in Iceland 419 temporary agency workers’ employment contracts with the temporary work agency, as no employment relationship existed between the user undertaking and the temporary work agency. However, the Court did find that the user undertaking was in breach of Act No 80/1938 on Trade Unions and Labour Disputes by not ensuring that the temporary agency workers were paid the minimum wage by the temporary work agency in accordance with the Act on Employment Terms.83 (ii)  Rights and Obligations/Liability Based on the above cited case law, establishing a quasi-contract of employment with a user company is only possible when it is based on direct contractual obligations entered into by a user undertaking with local trade unions. A user undertaking can, however, be found liable for breach of the Act on Trade Unions and Labour Disputes by not ensuring that the temporary work agency complies with the local minimum wage and employment terms requirements, as the wages and other working terms agreed between the social partners shall be considered the minimum terms independent of sex, nationality or duration of appointment, for all wage earners in the relevant occupation within the area covered by the collective agreement.84 (iii)  Health and Safety Act No 46/1980 on Working Environment, Health and Safety of workers imposes a wide range of general duties relating to health and safety in the workplace. Employers are required to inform their workers of any hazards they may be exposed to in their working environment and which can be detrimental to their health and safety, and to carry out risk assessments. Employers are required to provide their workers with adequate training in order for them to execute their assignments in a safe manner. An added responsibility applies to companies that engage workers through temporary work agencies. User undertakings are required to take special measures to ensure that temporary agency workers enjoy the same safety and occupational health protection as those who are in a direct employment

83  Act No 55/1980 Arts 1 and 2. Decision by the Icelandic Labour Court in case No 3/2006. The user undertaking had not made provisions in the contract concluded with the temporary work agency to ensure that the minimum wage requirements were being met; neither were any references made to the salary and employment terms. By not ensuring that the temporary work agency would comply with Icelandic collective agreements as regards the minimum wage, the user undertaking was found to be in breach of Art 7 of Act No 80/1938 on Trade Unions and Labour Disputes (Art 7 sets out that employment contracts between employees and employers are void if they are in breach of collective agreements). 84  See Art 1 of Act 55/1980 on Employment Terms and Art 7 of Act No 80/1938 on Trade Unions and Labour Disputes.

420  Elín Blöndal and Inga Björg Hjaltadóttir relationship with them as employers, including the obligation of the user undertaking to inform this group of workers of the various hazards in their working environment.85 E. Relationship between Temporary Work Agency and User Undertaking There are in principle no statutory requirements with regard to the formal relationship between agencies and user undertakings, and these relationships can be structured in different ways. However, there are exceptions to this principle. The user undertaking can be found liable for not ensuring that the agency complies with local minimum wages and employment terms in accordance with collective agreements and the Act on Employment Terms (see section IV.C above), making terms to this effect important in contracts between temporary work agencies and user undertakings. Whether further liability could be found for breach of statutory requirements by a temporary work agency, such as limitations against claiming any payment from the temporary agency worker for ensuring employment, is not clear from current case law.86 An Icelandic user undertaking that makes use of the services of a temporary work agency is additionally required by statute to request written confirmation that the temporary work agency has discharged its duty to provide information to the Directorate of Labour of its operations in Iceland, this duty being an important component in an agreement between these parties.87 F.  Rights and Status of Temporary Agency Worker (i)  Equal Treatment Iceland guarantees the temporary agency worker rights set out in the Directive as regards the use of joint facilities and the provision of information on vacancies as well as training.88

85  Regulation No 433/1997 on measures to improve the safety and occupational health of workers employed through temporary work agencies or workers employed in a direct but temporary employment relationship based on Council Directive 91/383/EEC of 25 June 1991. 86 The Act on Temporary Work Agencies No 139/2005, Art 5 prohibits temporary work agencies from charging temporary agency workers any type of fee for finding them employment. 87  Act on Temporary Work Agencies No 139/2005, Art 4a. 88  Act on Temporary Work Agencies No 139/2005, Art 5a(2), Art 8(2).

Atypical Employment Relationships—The Position in Iceland 421 The Act on Temporary Work Agencies additionally ensures that a temporary agency worker is entitled to the same salary and other employment terms as would apply if s/he were directly employed by the user undertaking.89 A temporary work agency cannot include any restrictions in the employment contract preventing the temporary agency worker from forming a direct employment relationship with the user undertaking at the end of the assignment.90 (ii)  Other Matters N/A G. Information and Consultation/Representation of Temporary Agency Worker Temporary agency workers are not in essence to be treated differently from other employees in this context. The representation of workers is included in the collective agreements applicable to temporary agency workers.91 The Directorate of Labour is responsible for enforcing the Act on Temporary Work Agencies and for investigating reasoned complaints alleging that a temporary work agency has violated the provisions of the Act.92 The user undertaking is required to provide its union ombudsman or trade union with the same written documents as the Directorate of Labour, if requested (see Article 4a(3)). Temporary agency workers are not defined as employees of the user undertaking and are therefore not included in the user undertaking’s calculation of its total number of employees (ie under the Act on Collective Redundancies No 63/2000 Article 1). H. Strikes It is common for disputes to arise as to who may work during a strike and what work can be carried out by persons who may work.93 The Act

89  The preparatory legislative documents on wages; specifically, Art 1 of Act No 55/1980 on Employment Terms, Act on Temporary Work Agencies No 139/2005, Art 5a(1), See above. 90  Act on Temporary Work Agencies No 139/2005, Art 7(1). 91  See Act on Temporary Work Agencies No 139/2005, Art 5a, Act No 55/1980 on Employment Terms Art 1 and eg, see nn 15, 24 and 26 above. 92  Act on Temporary Work Agencies No 139/2005, Section IV. 93  Sigurður Líndal, Vinna og verkföll. Hverjir mega vinna og hverjir ekki í löglega boðuðum verkföllum, cf Act No 80/1938, Art 18. Úlfljótur, vol 4, (1978).

422  Elín Blöndal and Inga Björg Hjaltadóttir on Trade Unions and Labour Disputes sets out the general principle that employers targeted by a strike may not try to avert the consequences of the strike with the assistance of members of the unions that are on strike.94 Members of unions who are on strike and who are employed by a temporary work agency may not carry out work that is usually performed by those who are on strike. Members of other unions than those that are on strike can continue to carry out their usual assignments.95 In a case decided by the Icelandic Labour Court involving a strike by a trade union for chauffeurs in Reykjavík, an agency that had been contracted to drive passengers in place of the striking workers was not found to be in breach of the Act on Trade Unions and Labour Disputes by providing its services. The Court ruled that the agency was not an employer in this case, as it had contracted a sub-contractor.96 In cases where fish trawlers have been diverted from docking in harbours where dock workers are on strike and have docked and divested their cargo in different harbours where dock workers working for a different employer were not on strike, courts have based their decisions on assessments of where vessels commonly dock and divest their cargo.97 The Icelandic Confederation of Labour asserts that since the Act on Employment Terms sets statutory minimum employment terms for collective agreements, both for members of the negotiating trade unions and nonmembers working within the scope of the collective agreement, Article 18 of the Act on Trade Unions and Labour Disputes must then be interpreted as including all workers who work within the scope of the relevant collective agreement, including non-unionised workers. This would mean that non-unionised temporary agency workers cannot perform work in place of workers who are striking.98

94 

Act on Trade Unions and Labour Disputes No 80/1938, Art 18. Decision of the Icelandic Labour Court in case No II:63. 96  Decision of the Icelandic Labour Court in case No 11/1997. 97  A company in Ísafjörður operated both trawlers and a fish processing plant in the township. The fish processing plant mostly processed fish from the company’s own vessels. When a company vessel docked and discharged its cargo at a different harbour during a strike of workers in the harbour and fish processing plant at Ísafjörður, the Supreme Court found that this was not common procedure and was intended to circumvent the effects of the strike, thus breaching Art 18 of Act No 85/1938: Decision by the Supreme Court in case No 215/2000. In a different case, the Labour Court found no breach by the employer of Art 18 of Act No 85/1938 where a fishing vessel docked at a different location than where the strike action took place. The Labour Court found that even though documentation on where these vessels usually discharged their cargo indicated that this was often within the areas affected by the strike, this was in no way without exception. 98 Icelandic Confederation of Labour (ASÍ): www.asi.is/vinnurettarvefur/stettarfelog-ogvinnudeilur/vinnustodvanir/verkfoll/#vinna-i-verkfalli (accessed 20 January 2017). See further the decision by the Icelandic Labour Court in case No 4/1987, where non-unionised partners at an engineering company were included in the strike and not allowed to carry out work. 95 

Atypical Employment Relationships—The Position in Iceland 423 I.  Collective Bargaining Agreements Deviating from Statutory Provisions Iceland has an arrangement through the Act on Employment Terms for the general applicability of collective agreements.99 Employers who are not party to a collective agreement in a given industry must nonetheless comply with the wage and employment terms set out in the collective agreement that is applicable to that industry and area. Collective bargaining agreements are thus given statutory standing but cannot deviate from mandatory statutory provisions. This applies to temporary work agencies as well as to other employers.100

99 

Act No 55/1980, Art 1, see further Act No 80/1938 Art 7. Kristiansen (ed), Europe and the Nordic Collective-Bargaining Model. The Complex Interaction between Nordic and European Labour Law (Nordic Council of Ministers 2015) p 33. 100  Jens

424

16 Atypical Employment Relationships—The Position in Ireland ANTHONY KERR

I. INTRODUCTION

T

HE THREE ATYPICAL work directives—Directives 97/81/EC, 99/70/EC and 2008/104/EC—were implemented in Ireland by the Protection of Employees (Part-Time Work) Act 2001, the Protection of Employees (Fixed-Term Work) Act 2003 and the Protection of Employees (Temporary Agency Work) Act 2012 respectively. Directive 97/81/EC was to be brought into force not later than 20 January 2000 but Ireland sought, and was granted, a maximum of one more year for implementation and the 2001 Act came into operation on 20 December 2001.1 Directive 99/70/EC was to be brought into force not later than 10 July 2001 but the 2003 Act only came into operation on 14 July 2003.2 The belated implementation of the Directive led to the Court of Justice ruling, in IMPACT v Minister for Agriculture and Food,3 that the Irish Labour Court was required to apply the directly effective provisions of the Framework

1 Protection of Employees (Part-Time Work) Act 2001 (Commencement) Order 2001 (SI No 636 of 2001). For a detailed account of the 2001 Act see: D Ryan, ‘Part-Time Workers’ in A Murphy and M Regan (eds), Employment Law, 2nd edn (Bloomsbury, 2017) pp 401–28. Directive 97/81/EC was implemented in Northern Ireland by the Part-Time Workers (­Prevention of Less Favourable Treatment) Regulations (NI) 2000 (SR 2000 No 350 as amended by SR 2002 No 286). 2 Being the date the Act was signed into law by the President of Ireland. For a detailed account of the 2003 Act see D Ryan, ‘Fixed-Term Workers’ in A Murphy and M Regan (eds), Employment Law, 2nd edn (Bloomsbury, 2017) pp 429–68. Directive 99/70/EC was implemented in Northern Ireland by the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations (NI) 2002 (SR 2002 No 298 as amended by SR 2008 No 326). 3 Case C-268/06 IMPACT v Minister for Agriculture and Food, ECLI:EU:C:2008:223; [2008] ECR 1-2483.

426  Anthony Kerr Agreement annexed to the Directive notwithstanding that it had not been given express jurisdiction so to do under domestic law. As can be seen from the cases discussed in Section II, the impact of the 2003 Act is felt most keenly in the public sector, particularly education and health, which is due in large measure to the moratorium on permanent recruitment in that sector between 2009 and 2014. Directive 2008/14/EC was to be brought into force not later than 5 December 2011 but the implementing legislation did not complete its legislative passage until 16 May 2012. Section 1(2) of the 2012 Act ­provides, however, that the relevant sections of the Act (other than those creating criminal offences) were ‘deemed to have come into operation’ on 5 ­December 2011.4 Complaints of a contravention of the Acts are presented in the first instance to the Workplace Relations Commission (WRC) with an appeal to the Labour Court and a further appeal on a point of law only to the High Court. A WRC adjudication officer is empowered to require the employer to comply with the relevant provision and/or award compensation not exceeding two years’ remuneration. In the case of the 2003 Act, the adjudication officer is also empowered to require the employer to reinstate or re-engage the employee, including on a contract of indefinite duration. II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements Section 2(1) of the Protection of Employees (Fixed-Term Work) Act 2003 (the 2003 Act) defines a fixed-term employee as meaning: A person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event.5

The High Court has confirmed that the ability of the parties to bring a contract for a fixed-term to an end at an earlier date by the giving of notice does not make the contract anything other than a fixed-term contract.6 4  The remaining sections came into operation on 17 May 2012. For a detailed account of the 2012 Act see M Crowley, ‘Agency Workers’ in A Murphy and M Regan (eds), Employment Law, 2nd edn (Bloomsbury, 2017) pp 469–92. Directive 2008/14/EC was implemented in Northern Ireland by the Agency Workers Regulations (NI) 2011 (SR 2011 No 350). 5 For the purposes of the Safety, Health and Welfare at Work Act 2005, a fixed-term employee is defined as an employee ‘whose employment is governed by a contract of employment for a fixed-term or for a specified purpose being a purpose of a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment’. 6  Doyle v National College of Ireland [2006] ELR 267 (Laffoy J).

Atypical Employment Relationships—The Position in Ireland 427 In Athlone Institute of Technology v Holland7 the Labour Court said that, for a contract of employment to be a fixed-term contract, the completion of the task or the occurrence of the event must be foreseeable at the time the contract was concluded; otherwise every contract of employment could be designated as a fixed-term contract.8 In Nerney v Thomas Crosbie Holdings Ltd9 the High Court said that the phrase ‘objective condition’ in the statutory definition of a fixed-term employee meant a condition which was identifiable by reference to the object ‘without reference to the view or perception or intervention of either party to the contract’. Here, the term of the contract was expressed to be from the commencement date for a period of four years and continuing for further periods of four years unless determined by six months’ notice from the employer given at least six months before the expiration of any four-year period. Laffoy J concluded that this contract could not be said to be determined by an objective condition because ‘the intervention of the employer, which may or may not happen, and in this case did not happen over a period of eight years, is necessary to give rise to and identify the determining event’ and therefore the contract was not a fixed-term contract within the meaning of the 2003 Act.10 The 2003 Act does not require that a fixed-term contract be in writing but section 8(1) does provide that, where an employee is employed on a fixed-term contract, he or she shall be informed in writing ‘as soon as practicable’ by the employer of the objective condition determining the contract, whether it is either (a) arriving at a specific date, or (b) completing a specific task, or (c) the occurrence of a specific event.11 Section 3(1A) of the Terms of Employment (Information) Act 1994 (as inserted by section 7 of the Employment (Miscellaneous Provisions) Act 2018) also requires an employer, not later than five days after the commencement of an employee’s employment, to give to that employee a statement in writing containing five core seperate – terms of employment including, in the case of a 7 

Athlone Institute of Technology v Holland FTD 20/2011. in Irish Prison Service v Morris FTD 3/2007, the Labour Court held that a prison chaplain whose contract provided for the termination of his employment upon revocation of his nomination by his Bishop was not a fixed-term employee. 9  Nerney v Thomas Crosbie Holdings Ltd [2013] IEHC 127; [2013] ELR 238. 10  See also Board of Management of Malahide Community School v Conaty [2019] IEHC 486, where Simons J held that a contract with a nominal termination date contingent on future events was not a fixed-term contract. 11  The meaning of the phrase ‘as soon as practicable’ was considered by the Labour Court in North Dublin Muslim School v Naughton FTD 11/2008, which ruled that the information as to duration should be given ‘in close proximity to the commencement of the employment’. 8  So,

428  Anthony Kerr temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed-term, the date on which the contract expires. B.  Lawful Stipulation of the Contractual Terms Under Irish law, there are no preconditions or requirements concerning the initial entry into a fixed-term contract. The fact that the need for labour is unlimited does not prevent it being done on a fixed-term contract basis. The issue of objective grounds for the use of fixed-term contracts of employment only arises in the context of renewal of an initial or subsequent fixed-term contract. Section 8(2) of the 2003 Act provides that, where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.12

Section 9(2) of the 2003 Act (the marginal note to which is ‘successive fixedterm contracts’) provides that, subject to subsection (4), where a fixed-term employee is employed by his or her employer on ‘two or more continuous fixed-term contracts’, the aggregate duration of such contracts should not exceed four years. Subsection (4), however, provides that subsection (2) does not apply to the renewal of a contract of employment for fixed-terms of more than four years ‘where there are objective grounds justifying such a renewal’. Section 9(5) of the 2003 Act provides that the First Schedule to the Minimum Notice and Terms of Employment Act 1973 (the 1973 Act) applies for the purpose of ascertaining whether an employee’s service has been ‘continuous’. That Schedule provides, inter alia, that service is deemed to be continuous unless terminated either by dismissal or by the employee voluntarily leaving his or her employment. Continuity,however, is not broken by the dismissal of an employee followed by his or her ‘immediate re-employment’. It has been held by the Employment Appeals Tribunal that the word ‘immediate’, as used in the Schedule, is not to be read literally and that, 12  The Labour Court has ruled that s 8(2) is ‘a mandatory provision admitting of no exceptions’: Galway City Council v Mackey FTD 5/2006. The Labour Court has also ruled that an employer must provide and clearly communicate ‘very specific reasons’ as to why the contract was not being converted into one of indefinite duration: see Department of Social Protection v McLoughlin FTD 10/2016. A failure to comply with the s 8(2) requirement, however, does not automatically result in a fixed-term contract being deemed to be one of indefinite duration: see University College Dublin v McConnon FTD 23/2014.

Atypical Employment Relationships—The Position in Ireland 429 accordingly, a break of 24 days did not affect the employee’s continuity of service.13 Notwithstanding that clause 5.2(a) of the Framework Agreement left it open to the Oireachtas (the Irish Parliament) to provide an outer temporal limit beyond which renewed fixed-term contracts would not be regarded as successive, the legislature chose not to do so. It follows that cases may arise where the gap between two periods of employment is so long that the concept of ‘immediate re-employment’ cannot be deployed. One such case was Revenue Commissioners v Beary,14 where the largest gap between the complainant’s periods of fixed-term employment was 35 weeks. The Labour Court said that, prima facie, there appeared to be a conflict between the language used in section 9 of the 2003 Act and that used in clause 5 of the Framework Agreement. The Court noted that, while all periods of employment which were ‘continuous’ were necessarily ‘successive’, not all employment which was ‘successive’ was necessarily ‘continuous’. The approach adopted by the Labour Court was to construe the Schedule to the 1973 Act so as to produce the result envisaged by the Directive. The concept of ‘successive employment’ arose where a person was engaged to do the same job intermittently. Where a person’s employment was terminated because there was no longer work available for him or her to do, and it was envisaged at the time of termination that his or her service would be required again in the future, the employment could be regarded as ‘continuous’, with the intervening period being treated as ‘lay-off’. Where there was no reasonable expectation of re-employment following termination of a fixed-term contract, a seven-week gap between two periods of fixed-term employment was regarded by the Labour Court as breaking continuity.15 The meaning of the phrase ‘aggregate duration’, as used in section 9(2) of the 2003 Act, was considered by the Labour Court in Department of Arts, Heritage and the Gaeltacht v Dobson.16 Here the complainant had been employed on seven successive fixed-term contracts (separated by periods of lay-off), the first of which commenced on 17 February 2010 and the last of which commenced on 1 May 2014. The complainant sought a ‘contract 13  Kenny v Tegral Building Products Ltd UD 837/2004 (reported at [2006] ELR 309), a complaint under the Unfair Dismissals Act 1977 where continuity of service was in issue. See also Department of Foreign Affairs v Murphy FTD 1/2007 (reported at [2007] ELR 332). 14  Revenue Commissioners v Beary FTD 2/2011 (reported at [2011] ELR 137). See also Dublin Institute of Technology v Michaylova FTD 18/2013. 15  Carlow County Council v McSweeney FTD 7/2012. See also Donegal County Council v Joyce FTD 1/2011, where a four-month gap between two periods of fixed-term employment was regarded as breaking continuity of service because there had been no reasonable expectation of re-employment on the expiry of the first period of fixed-term employment, and Teagasc v Sorenson FTD 7/2016, where a seven-month gap was similarly regarded. 16  Department of Arts, Heritage and the Gaeltacht v Dobson FTD 15/2015 (reported at [2016] ELR 72).

430  Anthony Kerr of indefinite duration’ and the issue for the Labour Court was whether the periods of lay off between contracts should be included for the purpose of calculating her reckonable periods of service. The Court ruled that these periods were not part of the ‘aggregate duration’ of those contracts and continued: [T]he wording of the Act envisages the prospect that a worker may over a period of, say, five years be employed on a series of successive fixed-term contracts of employment the aggregate duration of which may or may not exceed four years. Where the duration of those contracts exceed four years, s 9(2) of the Act is triggered. Where it does not, s 9(2) has no effect. Had the Oireachtas intended otherwise it would not have included the term ‘aggregate duration’ in s 9(2). It could have used the term four years ‘service’ and omitted the word ‘aggregate’ from the statute. It did not do so and accordingly the Court finds that that term must have some meaning. The only logical meaning the Court can discern in this case is that periods of lay-off may be included for the purpose of determining whether a series of contracts of employment are continuous for the purposes of the Act but are not included for the purpose of calculating the aggregate duration of those contracts.

The Labour Court has consistently drawn a distinction between work undertaken for the purpose of meeting the fixed and permanent needs of an employer and work for the purpose of meeting some temporary or transient need.17 So, in Teagasc v McNamara,18 the Labour Court said that work in the former category should normally be undertaken on contracts of indefinite duration whereas fixed-term contracts would normally be suitable for work in the latter category. In this case, the complainant was employed as a field technician on two successive fixed-term contracts between July 2006 and February 2011 relating to specific projects for which external funding was available. The employer submitted that, as funding was provided on a project-by-project basis, there was no certainty that, on the completion of one project, funding would become available for replacement work. The Labour Court, however, held as follows: The question of whether the requirement for external funding can give rise to objective justification for the continued use of fixed-term contracts presents difficulties of principle. There are many forms of economic activity in which the viability of employment is dependent on funding generated by individual contracts or projects. That is the case in practically all employments providing professional services and in such industries as construction and civil e­ ngineering. That type of activity is dependent on a continuing supply of separate once-off contracts or projects in order to maintain employment. If it were to be held that the use of successive fixed-term contracts could be used indefinitely in such

17 Applying the distinction drawn by the Court of Justice in Case C-212/04, Adeneler v Ellinikos Organismos Galaktos (ELOG), ECLI: EU:C:2006:443; [2006] ECR 1-6057. 18  Teagasc v McNamara FTD 8/2013.

Atypical Employment Relationships—The Position in Ireland 431 employments so as to protect the employer against the possibility of an insufficient supply of work at some point in the future, the effectiveness of the Directive and the Act would be seriously subverted.

The Labour Court went on to say that if, due to economic circumstances, there was no longer sufficient work in order to maintain a person in employment, the employer’s ‘remedy’ lay in making surplus staff redundant. It followed that, although ‘the requirement to balance staff levels with available funding is a legitimate objective, the continuing use of fixed-term contracts is not always a proportionate and necessary means of achieving that objective’. The employer in this case also sought to rely on the 2009–14 moratorium on recruitment in the public service as justification for not issuing the complainant with a contract of indefinite duration. The Labour Court noted that the moratorium was of general application and did not relate to the circumstances of the particular work at issue. Accordingly, the prevailing public interest measures in place for the public service could not be accepted as a ground on which the successive use of fixed-term contracts could be objectively justified for the purpose of section 9(4).19 In National University of Ireland, Maynooth v O’Keeffe and Benson,20 the University contended that both complainants were employed on successive fixed-term contracts to cover the temporary absence of lecturers on sabbatical leave. The Labour Court was satisfied that the provision of sabbatical leave was a desirable objective which brought benefits to both the University and those lecturers who availed themselves of such leave.21 ­During the period of leave, the Labour Court accepted that the University must continue to provide tuition while recognising the right of the lecturer on leave to return to his or her position at the end of the leave. Accordingly, in the former case, the Court found as a fact that Dr O’Keeffe’s employment was for the purpose of replacing a lecturer during the currency of his sabbatical leave and that this was both appropriate and necessary. In the latter case, however, the University was unable to establish that Dr Benson’s contract was concluded for the purpose of providing cover for the duration of the temporary absence of any lecturer, and consequently her continued employment on a fixed-term contract was not objectively justified. 19  See also Arts Council v Harte FTD 1/2013 (reported at [2013] ELR 85). In Department of Employment Affairs and Social Protection v Keirnan FTD 4/2019, however, the Labour Court found that there were objective reasons justifying the issuance of successive fixed-term contracts to government Ministers’ civilian drivers. 20  National University of Ireland, Maynooth v O’Keeffe and Benson FTD 11 & 12/2014. 21  See also Irish Museum of Modern Art v Emoe FTD 1/2016, which concerned the replacement of a person on a career break. The Labour Court said that it was ‘well settled’ that the granting of career breaks to staff was a ‘family friendly facility that is designed to facilitate work-life balance’ and thus could constitute ‘objective grounds’ under the 2003 Act.

432  Anthony Kerr Section 9(3) of the 2003 Act provides that, where any term of a fixed-term contract purports to contravene subsection (2)—which provides that the ‘aggregate duration’ of successive fixed-term contracts should not exceed four years—that term shall have ‘no effect and the contract concerned shall be deemed to be a contract of indefinite duration’.22 The term ‘contract of indefinite duration’ is not defined in the 2003 Act but it has been judicially defined as meaning no more than a contract terminable upon the giving of reasonable notice.23 In Health Service Executive v Khan,24 the Labour Court ruled that the contract of indefinite duration to which a fixed-term employee might become entitled by operation of section 9(3) ‘is identical in its terms, including any express or implied terms as to training and qualifications, as the fixed-term contract from which it was derived’. The only term of the preceding fixed-term contract which was rendered void or severed was that relating to the contract’s expiry by effluxion of time. More recently, an issue has arisen as to the nature of the contract of indefinite duration provided to university researchers, previously employed on a series of fixed-term contracts, whose continued employment is dependent on external funding. In A Researcher v A University,25 the complainant had been employed as a Research Fellow on a number of fixed-term contracts and was eventually given a contract of indefinite duration. That contract, however, provided that it was subject to ‘termination … on completion of the contract’. She contended that the contract could not at the same time be one of ‘indefinite duration’ and also subject to termination in the manner stated in the contract. The University’s position was that, as with all externally-funded research positions, employment might be terminated upon the completion of the work on which the Fellow was engaged or in the event of the funding stream being terminated or withdrawn. If and when that occurred, the Fellow’s position would be redundant. The WRC adjudication officer said that the word ‘indefinite’ in its basic meaning ‘may simply be taken to mean without definition, in other words its duration has not been defined; it is

22 In HSE South v Hamdy FTD 14/2010, the Labour Court noted that s 9 did not expressly oblige an employer to grant a contract of indefinite duration to an employee whose aggregate fixed-term employment reaches or exceeds four years. Rather, s 9(3) operated so as to render void ab initio a term in a fixed-term contract which contravened s 9(2). In such a situation, the contract became one of indefinite duration ‘by operation of law’. The Labour Court has confirmed that the requirement of having two or more fixed-term contracts is a ‘condition p ­ recedent’ to the entitlement of an employee to secure a contract of indefinite duration: Department of Employment Affairs and Social Protection v Concarr FTD 4/2018 (reported at [2018] ELR 369). 23  See, eg, Sheehy v Ryan [2008] IESC 14; [2008] 4 IR 258. 24  Health Service Executive v Khan FTD 4/2006 (reported at [2006] ELR 313). See also Trinity College Dublin v Moriarty FTD 5/2012. 25  Available at: www.workplacerelations.ie/en/Cases/2017/April/ADJ-00005263.html.

Atypical Employment Relationships—The Position in Ireland 433 not a ­synonym for infinite’. The protection enjoyed by a person who has a contract of indefinite duration in relation to security of employment was that provided for by the Unfair Dismissals Act 1977, namely a g­ uarantee of employment unless substantial grounds (such as redundancy) could be found to terminate it and provided any such termination was effected following a fair process. Consequently, the complaint was not upheld. C.  Termination/End of Fixed-Term Contracts The 2003 Act does not specifically impose any notice requirements on an employer as regards the ending of a fixed-term contract. Where an employer wishes to terminate a contract of indefinite duration, the 1973 Act prescribes minimum periods of notice that must be given.26 In the case of a fixed-term contract, however, the contract comes to an end on the expiry of the fixed-term without the intervention of the employer. Nevertheless, if the fixed-term contract is not to be renewed, the requisite period of notice should be given. Section 1(1) of the Unfair Dismissals Act 1977 (the 1977 Act) defines ‘dismissal’ as including the expiration of a fixed-term contract without its being renewed. Consequently, a fixed-term employee whose contract is not renewed can, provided he or she has the requisite one year’s continuous service, bring proceedings for unfair dismissal. In such a case, the employer would have to show that there were substantial grounds justifying the nonrenewal of the fixed-term contract of employment.27 The position of employers is eased somewhat by section 2(2) of the 1977 Act (as amended) which provides that the Act shall not apply in relation to: (i)

Dismissal where the employment was under a contract of employment for a fixed-term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment) and the dismissal

26  Section 4(1) of the 1973 Act provides that an employer, in order to terminate the contract of employment of an employee who has been in its continuous service for 13 weeks or more, shall give to that employee a minimum period of notice calculated as follows:

—— one week, where the employee has been in the continuous service of the employer for less than two years; —— two weeks, where the continuous service is more than two, but less than five years; —— four weeks, where the continuous service is more than five, but less than 10 years; —— six weeks, where the continuous service is more than 10, but less than 15 years; and —— eight weeks, where the continuous service is more than 15 years. 27 See Fitzgerald v St Patrick’s College Maynooth UD 244/1978 (reproduced in D Madden and A Kerr, Unfair Dismissal: Cases and Commentary, 2nd edn (Irish Business and Employers Confederation, 1996) p 352). In cases of dismissal for trade union membership/activities, or for a pregnancy-related reason or for making a ‘protected disclosure’, there is no continuous service requirement.

434  Anthony Kerr consisted only of the expiry of the term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee at the commencement of their employment, and provides that the 1977 Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid;28 (ii) Dismissal where the employee’s employer at the commencement of the employment has informed the employee in writing that the employment will terminate on the return to work with that employer of another employee who is absent from work while on protective leave or natal care absence, within the meaning of the Maternity Protection Act 1994, or is absent from work attending ante-natal classes or for breastfeeding and the dismissal of the first mentioned employee duly occurs for the purpose of facilitating the return to work of that other employee;29 (iii) Dismissal where the employee’s employer at the commencement of the employment has informed the employee in writing that the employment will terminate on the return to work with that employer of an adopting parent who is absent from work in accordance with the Adoptive Leave Act 1995 during a period of adoptive leave or additional adoptive leave or a period of time off from work while attending certain pre-adoption classes or meetings, and the dismissal of the employee duly occurs for the purpose of facilitating the return to work of the adopting parent;30 (iv) Dismissal where the employer at the commencement of the employment has informed the employee in writing that the employment will terminate on the return to work with that employer of an employee who is absent from work while on carer’s leave under the Carer’s Leave Act 2001, and the dismissal of the employee duly occurs for the purpose of facilitating the return to work of the employee who has been on carer’s leave.31 The Employment Appeals Tribunal has held that, for an employer to avail himself or herself of any of these provisions, all of the conditions stated must be ‘completely satisfied’.32 It was recognised, however, that the use of fixed-term contracts was open to abuse, particularly by the use of a series of such contracts of less than one year with a short break between each, and to combat this the 1977 Act 28 In Limerick City & County Council v Moran UDD 2/2018, the Labour Court focused on the word ‘only’ and ruled that, where there was some other determining factor in the nonrenewal of a fixed-term contract, the exclusion did not apply. 29  This provision was inserted into s 2(2) by s 23 of the Maternity Protection (Amendment) Act 2004. 30  This provision was inserted into s 2(2) by s 18 of the Adoptive Leave Act 1995. 31  This provision was inserted into s 2(2) by s 27 of the Carer’s Leave Act 2001. 32 See Sheehan v Dublin Tribune Ltd UD 914/1991 (reported at [1992] ELR 239). In Board of Management of Malahide Community School v Conaty [2019] IEHC 486, Simons J held said that, as these provisions allowed for the waiver of an employee’s rights, it was necessary that it be given on the basis of ‘informed consent’.

Atypical Employment Relationships—The Position in Ireland 435 was amended in 1993 by the insertion of a proviso that, where the dismissal consisted only of the expiry of a fixed-term contract and the employee concerned was re-employed within three months under another fixed-term contract and the employee was then dismissed by reason of the expiry of the second or subsequent fixed-term contract, the terms of the various contracts could be added together and would be deemed to be continuous service.33 The operation of this proviso is conditional on it being found that the entry into the second or subsequent contract was wholly or partly for, or was connected with, the purpose of the avoidance of liability under the 1977 Act.34 In addition to the provisions of the 1977 Act, a fixed-term employee whose contract is not renewed may seek to rely on the provisions of section 13 of the 2003 Act. This section prohibits an employer from, inter alia, dismissing an employee from his or her employment ‘if the dismissal is wholly or partly for or connected with the purpose of avoidance of a fixedterm contract being deemed to be a contract of indefinite duration’. In Dublin Institute of Technology v Wogan,35 the complainant was employed on a series of fixed-term contracts, the last of which expired on 30 September 2011. In order to renew that contract, a Staff Registration Form had to be completed which, in this case, specified a further extension of 27 months in light of the work in hand and funding available. A renewal on that basis would have extended the aggregate duration of his continuous fixed-term employment beyond four years, ‘thus transmuting his contract to one of indefinite duration’. Because of this, sanction was only given for a further extension of 15 months which meant that the aggregate duration of his continuous fixed-term employment, on the expiry of that extension, was three years and nine months. When the Institute declined to renew that contract, the complainant instituted proceedings based on a breach of section 13 of the 2003 Act. The Labour Court noted that, at the time the decision was taken not to renew the complainant’s employment for 27 months, the Institute was ‘actively concerned to ensure that its permanent staffing levels were not unilaterally expanded by temporary fixed-term employees attaining permanency of tenure by operation of the [2003] Act’. Consequently, a strategy was adopted to avoid situations in which fixed-term employees could accrue more than four years’ continuous fixed-term employment.

33  See s 3 of the Unfair Dismissals (Amendment) Act 1993. The proviso has now been recast as s 2 (2A) and (2B) of the 1977 Act by virtue of s 25(1)(a) of the Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007. For a discussion of the ambit of these provisions, see the determination of the Employment Appeals Tribunal in Walshe v Department of Arts, Heritage and the Gaeltacht UD 569/2012. 34 Contrast Hooper v Mary Immaculate College UD 1167/2006 and Kierse v National University of Ireland, Galway UD 219/2000, where an intention to avoid liability was found in the former case but not in the latter. 35  Dublin Institute of Technology v Wogan FTD 4/2016.

436  Anthony Kerr The Labour Court found that the decision not to renew the complainant’s fixed-term contract was influenced by the probability that he would come within the protection of section 9(3) of the 2003 Act if his employment were further extended. Compensation of 112,932 EUR was awarded. D.  Rights and Status of Fixed-Term Worker (i)  Equal Treatment Section 6(1) of the 2003 Act provides that a fixed-term employee, in respect of his or her conditions of employment,36 should not be treated in a less favourable manner than a comparable permanent employee. Section 6(2), however, provides that, if treating a fixed-term employee in respect of a particular condition of employment in a less favourable manner than a comparable permanent employee can be justified on ‘objective grounds’, then that employee may, notwithstanding subsection (1), be so treated. Section 6(5) of the 2003 Act provides that subsection (1), insofar as it relates to any pension scheme or arrangement, shall not apply to a fixedterm employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable permanent employee. Section 5 of the 2003 Act addresses the identity of a ‘comparable permanent employee’. Subsection (1) provides that an employee is a comparable permanent employee in relation to a fixed-term employee if– (a) the permanent employee and the relevant fixed-term employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (2) is satisfied in respect of those employees, (b) in case paragraph (a) does not apply (including a case where the relevant fixed-term employee is the sole employee of the employer), the permanent employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant fixed-term employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable permanent employee in relation to the relevant fixed-term employee, or (c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant fixed-term employee 36  This term is defined as including conditions in respect of remuneration and matters relating thereto and, in relation to any pension scheme or arrangement, includes conditions for membership of the scheme or arrangement and entitlement to rights thereunder and conditions related to the making of contributions to the scheme or arrangement. An ex gratia redundancy payment does represent a condition of employment (see University College Cork v Bushin [2012] IEHC 76; [2012] ELR 251 per Kearns P) whereas conditions as to tenure do not (see Minister for Finance v McArdle [2007] IEHC 98; [2007] 2 ILRM 438 per Laffoy J). A contractual term that goes to the ‘status’ of an employee is capable of being a condition of employment: see Dundalk Town Council v Teather PTD 3/2011.

Atypical Employment Relationships—The Position in Ireland 437 and one of the conditions referred to in subsection (2) is satisfied in respect of those employees.

The conditions referred to in subsection (2) are that: (a) both of the employees concerned perform the same work under the same or similar conditions or each is inter-changeable with the other in relation to the work, or (b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, or (c) the work performed by the relevant fixed-term employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

These three conditions are similar to those contained in the Employment Equality Acts 1998 to 2015 relating to the definition of ‘like work’ for equal pay claims but, unlike the position under those Acts, a comparator can be drawn from the same industry or sector of employment in the absence of a comparable permanent employee in the employment where the fixed-term employee is employed.37 Section 7 of the 2003 Act provides that a ground shall not be regarded as an ‘objective ground’ unless it is based on ‘considerations other than the status of the employee concerned as a fixed-term employee’ and unless the less favourable treatment38 which it involves for that employee ‘is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose’.39 So, in An Post v Monaghan and Wade,40 the High Court had to consider whether the exclusion of ­fixed-term employees from the company’s voluntary severance scheme was justified by virtue of a legitimate objective and was appropriate and necessary. Hedigan J found that the company’s objective of reducing the number of employees voluntarily leaving was legitimate but that the exclusion of

37  So, in University College Cork v Bushin [2012] IEHC 76; [2012] ELR 251, the High Court upheld the Labour Court’s decision to allow Dr Bushin to compare herself with permanent employees of St Catherine’s College of Home Economics, the Royal College of Surgeons and the National University of Ireland, Maynooth. 38  Which treatment may include the renewal of a fixed-term employee’s contract for a further fixed term rather than an indefinite contract. 39  Section 7(2) provides that where, as regards any term of his or her contract, a fixed-term employee is treated less favourably, the treatment in question will be regarded as justified on objective grounds for the purposes of s 6(2) if the terms of the fixed-term employee’s contract, taken as a whole, are at least as favourable as the terms of the comparable permanent employee’s contract. 40  An Post v Monaghan and Wade [2013] IEHC 404.

438  Anthony Kerr fixed-term employees was not the minimum unfavourable treatment necessary to enable the company to attain that objective.41 (ii)  Employment Opportunities Section 10(1) of the 2003 Act requires an employer to inform a fixed-term employee in relation to vacancies which become available. The stated purpose of this obligation is to ensure that the fixed-term employee ‘shall have the same opportunity to secure a permanent position as other employees’.42 The Labour Court has held that this subsection requires that information on relevant vacancies be imparted personally to fixed-term employees or that a notice be placed in the workplace. Merely placing an advertisement in a newspaper did not meet those requirements.43 Section 10(3) further provides that an employer, as far as practicable, shall facilitate access by a fixed-term employee to ‘appropriate training opportunities to enhance his or her skills, career development and occupational mobility’. Failure to inform properly or facilitate access could give rise to a complaint to the Workplace Relations Commission. (iii)  Other Matters Section 11(1) of the 2003 Act provides that fixed-term employees shall be taken into account when calculating the average employee numbers threshold above which employees’ representative bodies may be constituted in an undertaking in accordance with section 4 of the Transnational Information and Consultation of Employees Act 1996. Section 7(1) of the Protection of Employment Act 1977 (which Act implements what is now Council Directive 98/59/EC) provides that the Act applies

41  See also Health Service Executive v Prasad FTD 2/2006; St Catherine’s College for Home Economics v Maloney FTD 19/2008 (reported at [2009] ELR 143); University College Cork v O’Riordan FTD 16/2011; National University of Ireland, Maynooth v Dorrian FTD 16/2012; National Gallery of Ireland v Coyne FTD 32/2012; University College Dublin v O’Mahony FTD 34/2012; and National Gallery of Ireland v Cleary FTD 36/2012 (reported at [2013] ELR 1). 42  The ambit of this subsection has been considered in Aer Lingus v IMPACT FTD 4/2005 (reported at [2005] ELR 201); St Patrick’s Classical School v O’Keeffe FTD 15/2013; Mount St Michael Secondary School v Nicholson FTD 13/2014; Kelly v National University of Ireland, Galway FTD 10/2015 (where the Labour Court ruled that employers were not obliged to inform fixed-term employees of fixed-term vacancies); and Wicklow County Council v Winters FTD 6/2016. 43  Scoil Iosagain v Henderson FTD 5/2005 (reported at [2005] ELR 271). See also Radio Telefís Éireann v Takahashi FTD 14/2014. The High Court has confirmed that s 10(1) is not limited to vacancies for posts at the same level and includes promotions: see Minister for Finance v McArdle [2007] IEHC 98; [2007] 2 ILRM 438, 455 (per Laffoy J).

Atypical Employment Relationships—The Position in Ireland 439 to all persons in employment in an establishment normally employing more than 20 persons. Although fixed-term employees are regarded as forming part of the employees normally employed in the establishment concerned, section 7(2)(a) of the 1977 Act makes it clear that fixed-term employees whose contracts are terminated on the expiry of the fixed-term are not to be taken into account in determining whether there is a ‘collective redundancy’ in that establishment. E.  Information and Consultation Section 11(2) of the 2003 Act merely provides that, as far as practicable, ‘employers shall consider providing information to employees’ representatives about fixed-term work in the undertaking’. F.  Specific Provisions Employees in ‘initial vocational training relationships or apprenticeship schemes’ are excluded from the scope of the 2003 Act, as are employees with a contract of employment which has been concluded ‘within the framework of a specific public or publicly-supported training, integration or vocational retraining programme’. G.  Collective Bargaining Agreements Deviating from Statutory Provisions The 2003 Act does not envisage any derogation from its provisions whether by way of collective or individual agreement.44 This does not prevent, however, collective agreements providing for more extensive rights. For example, the Public Service Stability Agreement 2013–1645 provides that teachers who were employed on a fixed-term basis are eligible for consideration for a contract of indefinite duration once they had in excess of three years’ continuous service in the same school.46 Similar provisions have applied to lecturers in third-level institutions with effect

44  Section 12 of the 2003 Act provides that a provision in an agreement shall be void ‘insofar as it purports to exclude or limit the application of, or is inconsistent with, any provision of the Act’. This section, however, does not preclude parties to a dispute from lawfully agreeing to settle or compromise claims based on the Act: see Sunday Newspapers Ltd v Kinsella [2007] IEHC 324; [2008] ELR 33 (per Smyth J). 45  The agreement is available at: www.per.gov.ie/en/haddington-road-agreement. 46 This was implemented for primary school teachers with effect from 1 July 2013 by Department of Education Circular 64/2003 (available at: www.education.ie/en/Circulars-andForms/Archive-Circulars/cl0064_2013.pdf).

440  Anthony Kerr from September 2013. A further reduction to two years, in the case of primary teachers, was implemented from the commencement of the school year 2015/2016.47 A similar reduction has now been recommended for third-level lecturers in a Report on Fixed-Term and Part-Time Employment in Lecturing in Third Level Education in Ireland.48 III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements Section 7(1) of the Protection of Employees (Part-Time Work) Act 2001 (the 2001 Act) defines a ‘part-time employee’ as meaning: ‘An employee whose normal hours of work are less than the normal hours of work of an employee who is a comparable employee in relation to him or her.’49 B.  Opportunities for/Right to Part-Time Work The 2001 Act does not provide an entitlement to work part-time. In cases under the Employment Equality Acts 1998 to 2015 (the 1998 Act), the Labour Court has ruled that female employees have no general right founded in equality law to a part-time or job-sharing position. In Bank of Ireland v Morgan,50 the Labour Court said that ‘it would be manifestly unreasonable to hold that an employer must provide a woman with a facility to job-share in every case in which such a facility is requested and such a result could not have been intended’. The Labour Court continued by saying that such facilities could only be made available within the ‘exigencies of the business’; in allocating ­part-time 47  See Department of Education Circular 23/2015 (available at: https://www.education.ie/ en/Circulars-and-Forms/Active-Circulars/Implementation-of-the-Recommendations-of-theExpert-Group-on-Fixed-Term-and-Part-Time-Employment-in-Primary-and-Second-Level-Education-in-Ireland-Primary-.pdf. 48  Available at: www.tui.ie_fileupload/Cush%20Report.pdf. 49 See Electricity Supply Board v McDonnell PTD 1/2008 (reported at [2009] ELR 20) in the context of an employee who worked seasonally for over 30 years on a series of full-time fixed-term contracts of seven months each year. The Labour Court held that he was a part-time employee in that he worked fewer hours than comparable full-time employees on an annualised basis. Part-time employment accounts for 23.1 per cent of total employment, with the most common reason for undertaking such employment being failure to find a full-time job: see www.cso.ie/en/releasesandpublications/er/qnhs-es/qnhsemploymentservicesq12016/. 50  Bank of Ireland v Morgan EDA 6/2009. Section 15A of the Parental Leave Act 1998 (inserted by reg 6 of the European Union (Parental Leave) Regulations 2013 (SI No 81 of 2013)) enables an employee, who exercises his or her right to return to work after taking parental leave, to request changes to his or her working hours, to apply for a set period of time following his or her return to work. Employers, however, are under no obligation to grant such a request.

Atypical Employment Relationships—The Position in Ireland 441 or job-sharing opportunities, however, an employer must not discriminate on any of the grounds (such as age, family or civil status, disability, sexual orientation or gender) prescribed by the 1998 Act. Section 13 of the 2001 Act requires what is now the Workplace Relations Commission (the Commission), if so requested by the Minister for Employment Affairs and Social Protection, to study every industry and sector of employment ‘for the purposes of identifying obstacles that may exist in that industry or sector to persons being able to perform part-time work in that industry or sector’ and to make recommendations as to how any such obstacles could be eliminated. No such requests have yet been made. The Commission’s predecessor (the Labour Relations Commission) prepared a Code of Practice,51 the aim of which was, inter alia, to promote the development of policies and procedures to assist employers to improve access to part-time work for those employees who wished to work on a part-time basis. The Code of Practice, however, does not address the issue of part-time workers who wish to work on a full-time basis. C.  Opportunities for/Right to an Extension of Working Time This issue does not arise under the 2001 Act. D.  Rights and Status of Part-Time Worker (i)  Equal Treatment Section 9(1) of the 2001 Act provides that a part-time employee shall not, in respect of his or her conditions of employment,52 be treated in a less favourable manner than a comparable full-time employee. Section 9(2), however, provides that, if treating a part-time employee in respect of a 51  The Industrial Relations Act 1990 (Code of Practice on Access to Part-Time Working) Declaration Order 2006 (SI No 8 of 2006). Section 42 of the Industrial Relations Act 1990 provides that, in any proceedings before a court, the Labour Court or a Workplace Relations Commission adjudication officer, a Code of Practice shall be admissible in evidence and that any of its provisions which appear relevant shall be taken into account. Failure to observe any provision of a code, however, does not of itself render a person liable to any proceedings. 52 This phrase is defined as including conditions in respect of remuneration and matters relating thereto and, in relation to any pension scheme or arrangement, includes conditions for membership of the scheme or arrangement and entitlement to rights thereunder and conditions related to the making of contributions to the scheme or arrangement. An ex gratia redundancy payment does represent a condition of employment (see University College Cork v Bushin [2012] IEHC 76; [2012] ELR 251 per Kearns P) whereas conditions as to tenure do not (see Minister for Finance v McArdle [2007] IEHC 87; [2007] 2 ILRM 438 per Laffoy J) A contractual term that goes to the ‘status’ of an employee is capable of being a condition of employment: see Dundalk Town Council v Teather PTD 3/2011.

442  Anthony Kerr particular c­ondition of employment in a less favourable manner than a ­comparable full-time employee can be justified on ‘objective grounds’, then that employee may, notwithstanding subsection (1), be so treated. Section 9(4) of the 2001 Act provides that subsection (1), insofar as it relates to any pension scheme or arrangement, shall not apply to a part-time employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable full-time employee. Section 9(1), however, is subject to section 11(2), which provides that a part-time employee who works on a ‘casual basis’ may be less favourably treated if such treatment can be justified on ‘objective grounds’. A casual part-time employee is defined by section 9(4) as a person who has been in the employer’s continuous service for less than 13 weeks and whose employment is not of ‘such a nature as could reasonably be regarded as regular or seasonal employment’. Section 7 of the 2001 Act addresses the identity of a ‘comparable full-time employee’. Subsection (2) provides that an employee is a comparable fulltime employee in relation to a relevant part-time employee if: (a) the employee and the relevant part-time employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (3) is satisfied in respect of those employees, (b) in case paragraph (a) does not apply (including a case where the relevant part-time employee is the sole employee of the employer), the employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant part-time employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable employee in relation to the relevant part-time employee, or (c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant part-time employee is employed in and one of the conditions referred to in subsection (3) is satisfied in respect of those employees.

The conditions referred to in subsection (3) are that: (a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work, (b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and (c) the work performed by the relevant part-time employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

Atypical Employment Relationships—The Position in Ireland 443 The issue of a ‘comparable full-time employee’ arose in National Concert Hall v Reilly,53 where the employer contended that the comparator identified by the complainant was not a valid comparator as he had different contractual obligations. The Labour Court ruled that the reference in the Framework Agreement to the ‘same type of contract’ could not be interpreted as meaning that a contract of employment for part-time work was of a different type to a similar contract for full-time work. To hold otherwise would defeat the very purpose of the legislation. The only test was whether the complainant and the comparator were engaged on ‘like work’ as defined in subsection (3). Section 12(1) of the 2001 Act provides that a ground shall not be regarded as an objective ground unless it is based on considerations other than the status of the employee concerned as a part-time employee and the less favourable treatment which it involves for that employee is for the purposes of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.

Section 12(2), however, provides that a ground which does not constitute an objective ground for the purposes of section 9(2) may be capable of constituting an objective ground for the purposes of section 11(2) (casual employment). In University College Cork v Noonan,54 the Labour Court ruled that neither the Public Service Stability Agreement 2013–2016 nor the Financial Emergency Measures in the Public Interest (No 2) Act 2009 could avail an employer in advancing a defence of objective justification on the basis of section 12(1). (ii)  Dismissal Protection Prior to the enactment of the 2001 Act, employees who had been dismissed could only maintain a claim for unfair dismissal if they were expected to work eight hours or more a week.55 The effect of section 8 of the 2001 Act is that a part-time employee, regardless of the number of hours he or she works each week, is entitled to claim, in the event that he or she is dismissed and satisfies the service and other requirements of the Unfair Dismissals Acts 1977 to 2015, that his or her dismissal is unfair. Section 15(1)(c) of the 2001 Act provides that an employer shall not penalise an employee for refusing to accede to a request to transfer from performing full-time work to performing part-time work or from part-time work to performing full-time work. Section 15(2), however, provides that dismissal, 53 

National Concert Hall v Reilly PTD 1/2019. University College Cork v Noonan PTD 1/2014. 55  Worker Protection (Regular Part-Time Employees) Act 1991, which Act was repealed by s 5 of the 2001 Act. 54 

444  Anthony Kerr unfavourable change in conditions of employment or any unfair treatment shall not constitute penalisation if, having regard to all the circumstances, there were substantial grounds both to justify the employer making the request and the employer taking the allegedly unfair action and that the taking of that action is in accordance with the employee’s contract of employment. E.  Information and Consultation The Code of Practice on Access to Part-time Work states that it is ‘important that employees availing of part-time work are not disadvantaged with regard to access to information’. The Code of Practice further recommends that ‘employers should periodically review how individuals are provided with information on the availability of posts, both part-time and full-time.’ The Code of Practice also states that it is important that employee representatives are kept informed about the employer’s policy and use of part-time working. F.  Other Part-Time Arrangements A particularly insidious form of part-time work is a ‘zero hours’ working practice whereby an employee is required to be available for work without any guarantee that work will actually be provided. This was addressed to some extent by section 18 of the Organisation of Working Time Act 1997 (the 1997 Act) which provided that, in the event of the employer failing to require an employee to work at least 25 per cent of the time he or she was required by his or her contract of employment to be available for work, the employee would be entitled to payment for 25 per cent of the contract hours or 15 hours, whichever was less. In Contract Personnel Marketing Ireland v Buckley,56 the Labour Court held that a merchandiser, whose working hours varied depending on client activity, was not employed under a zero hours contract. She was not obliged to remain available for work during defined periods. She was offered work from time to time as it became available and had the option for whatever reason to decline such work without sanction. In February 2015, the Kemmy Business School at the University of ­Limerick was appointed by the Department of Jobs, Enterprise and Innovation to undertake a study of the prevalence of zero hours contracts among Irish employers and their impact on employees. The study found that such contracts were not extensive in Ireland but there was evidence of so-called ‘If and When Contracts’. Both types of contracts involve non-guaranteed 56  Contract Personnel Marketing Ireland v Buckley DWT 45/2011. In Wicklow Recreational Services Ltd v Marciniuk DWT 38/2016, however, the complainant was employed under a zero-hours contract.

Atypical Employment Relationships—The Position in Ireland 445 hours of work but the difference between the two was that individuals with a zero hours contract are required to make themselves available for work whereas individuals on ‘If and When Contracts’ are not contractually required to make themselves available.57 The study made various recommendations including the repeal of section 18 of the 1997 Act. The Employment (Miscellaneous Provisions) Act 2018, which came into effect on 4 March 2019, replaces that section with a new provison prohibiting the use of zero hours contracts unless they relate to work done in emergency circumstances or short-term relief work to cover routine absences. The section now goes on to provide for minimum payments to be made where the employer does not require the employee to work at least 25 per cent of the contract hours or the hours where the employee is required to make himself or herself available. G.  Collective Bargaining Agreements Deviating from Statutory Provisions The 2001 Act does not envisage any derogation from its provisions whether by way of collective or individual agreement.58 Section 9(4)(b) of the 2001 Act, however, does provide that a collective agreement that stands approved by the Labour Court can specify which part-time employees are to be treated as being employed on a ‘casual basis’ for the purposes of section 11. To date, the Court has only been asked to approve one such agreement, the parties to which were the Irish National Teachers Organisation; the Association of Secondary Teachers, Ireland; the Teachers’ Union of Ireland; the Joint Managerial Body Secretariat of Secondary Schools; the Association of Community and Comprehensive Schools; the Irish Vocational Education Association; the Catholic Primary Schools Managers’ Association; and the Department of Education and Science. The agreement sets out the terms and conditions relating to an estimated 5,500 part-time teachers working on a casual basis. IV.  TEMPORARY AGENCY WORK

A.  Legal Definitions/Formal Requirements Section 2(1) of the Protection of Employees (Temporary Agency Work) Act 2012 (the 2012 Act) defines an ‘agency worker’ as ‘an individual employed

57 The study is available at: www.dbei.ie/en/Publications/Publications-files/Study-on-thePrevalence-of-Zero-Hours-Contracts.pdf. 58  Section 14 of the 2001 Act provides that a provision in an agreement shall be void ‘insofar as it purports to exclude or limit the application of, or is inconsistent with, any provision of this Act’. This section however, does not preclude parties to a dispute from lawfully agreeing to settle or compromise claims based on the Act: see Sunday Newspapers Ltd v Kinsella [2007] IEHC 324; [2008] ELR 53 (per Smyth J).

446  Anthony Kerr by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the employment agency’.59 The term ‘employment agency’ is defined in section 2(1) of the 2012 Act as meaning: A person (including a temporary work agency) engaged in an economic activity who employs an individual under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the first-mentioned person.

Section 2(1) of the Employment Equality Act 1998 defines ‘employment agency’, when not defined by reference to the Employment Agency Act 1971 (on which see below), as meaning ‘a person who, whether for profit or otherwise, provides services related to the finding of employment for prospective employees or the supplying of employees to employers’. The 2012 Act does not address the employment status of agency workers, in that a ‘contract of employment’ is defined as meaning either ‘a contract of service’ or ‘a contract under which an individual agrees with an employment agency to do any work for another person (whether or not that other person is a party to the contract)’. Such contracts need not be in writing to be enforceable. B.  Registrations, Licensing, Financial Guarantees etc Section 2 of the Employment Agency Act 1971 (the 1971 Act) provides that a person shall not ‘carry on the business of an employment agency’ except under and in accordance with a licence under the 1971 Act.60 Section 1(2) of the 1971 Act provides that, for the purposes of the Act, the business of an employment agency means the business of seeking, whether for reward or otherwise, on behalf of others, persons who will give or accept employment, and includes the obtaining or supplying for reward of persons who will accept employment from or render services to others.

A person proposing to carry on the business of an employment agency is required, by section 3 of the 1971 Act, to apply to the Minister for Business, 59 In Occipital Ltd v Ismail AWD 5/2018, the Labour Court was satisfied that the complainant was not an ‘agency worker’ as he was not, ‘by virtue of’ his contract, capable of being assigned to work for, and under the direction of, a person other than staff of the agency. 60  As of 2 July 2019, there were 763 licensed employment agencies. Prior to the enactment of the 1971 Act, the only legislation regulating employment agencies was the Public Health Acts (Amendment) Act 1907, s 85 of which enabled local authorities in Dublin and Cork to make regulations concerning the conduct of agencies engaged in the recruitment of female domestic servants.

Atypical Employment Relationships—The Position in Ireland 447 Enterprise and Innovation for a licence, and that person must cause to be published in at least one daily newspaper circulating in the State a notice in the prescribed form of his or her intention so to apply. The application to the Minister should be accompanied by a copy of the prescribed newspaper notice and the prescribed fee (currently 500 EUR).61 Where an application is made for a licence, section 3(3) of the 1971 Act provides that the Minister shall grant the licence if she is satisfied that the premises conform to the prescribed standards of accommodation,62 that the applicant conforms to the prescribed standards of suitability and fi ­ tness63 and that the applicant has not been convicted of an offence under the 1971 Act within the period of five years ending on the date of the application. The Minister is empowered to revoke a licence if the holder is convicted of an offence under the 1971 Act or has given false information in the application or where, in the Minister’s opinion, the holder is no longer a suitable person to carry on the business of an employment agency or the premises

61  See the Employment Agency Regulations 1972 (SI No 255 of 1972 as amended by SI Nos 318 of 1976, 288 of 1978, 319 of 1988 and 49 of 1993). The 1993 amending regulations increased the prescribed fee to 400 IEP which was converted to 500 EUR by virtue of s 1 of the Euro Changeover (Amounts) Act 2001. 62  Regulation 7 of the Employment Agency Regulations 1972 (SI No 255 of 1972) provides that the premises in which the business of an employment agency is carried on must conform to the following standards of accommodation:

(a) (b) (c) (d)

the means of access and egress shall be adequate having regard to the anticipated volume of business; the premises shall be kept in a clean and tidy condition, equipped with adequate heating, lighting and ventilation and shall not constitute a danger to persons using them; the premises shall contain accommodation to enable persons to be interviewed in privacy; and the premises shall be equipped with adequate seating for the number of persons likely to attend at the premises.

63  Regulation 8 of the Employment Agency Regulations 1972 (SI No 255 of 1972), as substituted by reg 3 of the Employment Agency Regulations 1978 (SI No 288 of 1978), provides that an applicant should conform to the following standards of suitability and fitness:

(a) (b) (c) (d) (e)

he or she shall be either the owner or a tenant of the premises in respect of which he or she has applied for the licence; he or she shall not be an undischarged bankrupt; he or she shall not have been, during the five years immediately preceding the date of the licence application, convicted of an offence under the Act; he or she shall not have been the holder of a licence which was revoked or be a person who was refused confirmation of a licence on appeal to the High Court, otherwise than on grounds of unsuitability of premises; and he or she shall in the opinion of the Minister be a person of good character and repute.

This last requirement is verified by means of two independent referees vouching for the ­applicant’s good character and by means of a vetting report from An Garda Síochána that there is nothing in their records that would render the applicant unsuitable to hold a licence. The meaning of ‘good character’ was judicially considered by Hogan J in Hussein v Minister for Justice, Equality and Law Reform [2011] IEHC 171 in the context of the Employment Permits Act 2006.

448  Anthony Kerr where the holder is carrying on business as an employment agency no longer conform to the prescribed standards. Where the Minister refuses to grant, or decides to revoke, a licence, section 5(2) of the 1971 Act provides that the applicant, or holder, may appeal to the High Court. Licences once granted are renewed on a yearly basis on payment of an annual fee of 500 EUR. It is generally accepted that the 1971 Act does not meet the needs of the Irish labour market. During the negotiations which led to the social partnership agreement known as Sustaining Progress,64 the government gave a commitment to review the legislation. A discussion paper was issued in May 2004 to which the Irish Congress of Trade Unions (Congress) responded in July 2004.65 Amongst the recommendations made by Congress were that agencies should be subject to a requirement to lodge a capital deposit ranging between 20,000 EUR and 500,000 EUR, depending on the annual salaries of workers hired out by the agency, and that internetbased agencies should be brought within the scope of the 1971 Act. The Department’s Review of the Employment Agency Act 1971 was published in June 2005 where it was indicated that the Act would be amended so as to include regulation of those agencies operating outside the State, including those operating over the internet.66 Eventually, the Employment Agency Regulation Bill 2009 was drafted in July 2009 and was introduced to the Oireachtas on 4 February 2010.67 The main purpose of the Bill was to repeal the 1971 Act and establish an enhanced and strengthened regulatory framework for the operation of employment agency services. This would require all employment agencies offering a service in Ireland, even if based abroad, to be licensed in Ireland, unless otherwise licensed or regulated in a Member State of the European Economic Area. There was no requirement, however, that agencies should lodge a deposit. The Bill was referred to the Select Committee on Enterprise, Trade and Employment on 25 February 201068 and was considered there on 2 June 2010.69 The Bill, however, progressed no further and has not been re-­ introduced following the changes of government since then.

64 

Available at: www.taoiseach.gov.ie/upload/SustProgagri.pdf. Available at: www.ictu.ie/download/pdf/employment-agencies-act.pdf. 66  This paper is no longer available online. 67 See 701 Dáil Debates 341–362. The provisions of the Bill were analysed in detail by E Dewhurst, ‘Migrant Worker Recruitment in an Era of Globalisation: Lessons for the Legal Regulation of Recruitment Agencies in Ireland’, Working Papers on International Studies No 8/2011 (Centre for International Studies, Dublin City University) available at: doras.dcu. ie/16653/1/1108.pdf. 68  See 703 Dáil Debates 521. 69 See: www.oireachtasdebates.oireachtas.ie/Debates%20Authoring/DebatesWebPack.nsf/ committeetakes/BUS2010060200004?opendocument. 65 

Atypical Employment Relationships—The Position in Ireland 449 C. Relationship between Temporary Agency Worker and Temporary Work Agency The traditional view was that employment, whereby an individual agreed with an employment agency to do or perform personally any work or service for a third person, did not give rise to an employment contract between the individual and agency.70 There are subsequent cases, however, in which an agency worker has been found to be an employee of the agency.71 The issue was fully considered by a Social Welfare Appeals Officer and, on appeal, by the High Court in Brightwater Selection (Ireland) Ltd v Minister for Social and Family Affairs.72 In this case, the Social Welfare Appeals Officer had upheld a Deciding Officer’s decision, under the Social Welfare (Consolidation) Act 2005, that an agency worker was employed under a ‘contract for service’ and was therefore in the insurable employment of the agency during a six-month period when she worked as a financial accountant in a university’s administration department covering for an employee on maternity leave. The agency appealed to the High Court and Gilligan J remitted the issue for reconsideration because the Appeals Officer had erred in law in failing to consider whether: (a) the agency possessed the right to control the worker both as regards the work to be done and the manner in which it was to be done; (b) the worker was employed under neither a contract of service nor a contract for services but under a contract sui generis; and (c) mutuality of obligation existed between the parties. On remittal, a different Appeals Officer decided that, having regard to the issues identified by Gilligan J, the agency worker was in the insurable employment of the agency during the relevant period. A further appeal to the High Court was settled in December 2014 without the Appeals Officer’s decision being vacated. (i)  Fixed-Term and Part-Time Contracts For the purposes of the 2003 Act, the definition of ‘contract of employment’ expressly does not include a contract whereby an individual agrees with

70 See Cervi v Atlas Staff Bureau UD 616/1985 (reproduced in D Madden and A Kerr, Unfair Dismissal: Cases and Commentary, 1st edn (Federation of Irish Employers, 1990) p 42). 71 See O’Brien v Eglington Personnel Group Ltd UD 818/1992 (reproduced in D Madden and A Kerr, Unfair Dismissal: Cases and Commentary, 2nd edn (Irish Business and Employers Confederation, 1996) p 49). 72  Brightwater Selection (Ireland) Ltd v Minister for Social and Family Affairs [2011] IEHC 510. A similar finding in respect of another employment agency was not appealed.

450  Anthony Kerr another person, who is carrying on the business of an employment agency within the meaning of the 1971 Act and is acting in the course of that business, to do or perform personally any work or service for a third person (whether the third person is a party to the contract or not). Agency workers who are employed under a contract of employment with an employment agency, however, are covered by the 2003 Act as the agency will be the employer.73 The position is more complex under the 2001 Act because the definition of ‘contract of employment’ expressly includes an agency contract (as defined above) but section 7(1) of the 2001 Act goes on to define ‘agency worker’ as an employee whose contract of employment is an agency contract. Section 7(4) then provides that, if the relevant part-time employee is an ‘agency worker’, the application of section 7(3)—which determines whether an employee is a ‘comparable employee’ for the purposes of the 2001 Act— shall not result in any employee other than another agency worker being regarded as a ‘comparable employee’ in relation to him or her. Equally, if the relevant part-time employee is a ‘non-agency worker’, the application of subsection (3) will not result in an ‘agency worker’ being regarded as a ‘comparable employee’ in relation to the relevant part-time employee. (ii)  Rights and Obligations/Liabilities Most employment legislation, other than the 2001 and 2003 Acts, routinely defines a contract of employment as including a contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971, and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract).74

Consequently, agency workers for most employment purposes are deemed to be employees. Most of those statutes then go on to provide that the ‘employer’ is deemed to be the person who is liable to pay the wages of the individual concerned in respect of the work or service.75 Accordingly, where it is the agency who pays the agency worker his or her wages, the agency, not the hirer, is responsible for ensuring the worker’s rights under the Maternity

73 

See the Minister at 569 Dáil Debates 1035–1036 (26 June 2003). See, eg, s 2(1) of the Maternity Protection Act 1994, s 2(1) of the Organisation of Working Time Act 1997 and s 2(1) of the Parental Leave Act 1998. 75 Ibid. 74 

Atypical Employment Relationships—The Position in Ireland 451 Protection Act 1994, the Organisation of Working Time Act 1997 and the Parental Leave Act 1998. The Employment Equality Act 1998 (the 1998 Act) defines an ‘agency worker’ as a person whose contract is one whereby he or she agrees with a person carrying on the business of an employment agency, within the meaning of the Employment Agency Act 1971, to do or perform personally any work or service for another person (whether or not the other person is a party to the contract).76

Section 7(2) of the 1998 Act provides that, in relation to the work which an ‘agency worker’ is employed to do, no person except another ‘agency worker’ may be regarded as employed to do ‘like work’. Equally, in relation to the work which a ‘non-agency worker’ is employed to do, an ‘agency worker’ may not be regarded as employed to do ‘like work’.77 Section 11 of the 1998 Act provides that, without prejudice to its obligations as an employer, an employment agency shall not discriminate against any person (a) who seeks the services of the agency to obtain employment with another person, or (b) who seeks from the agency guidance as to a career or any other services (including training) related to the employment of that person.

(iii)  Dismissal Protection Section 13 of the Unfair Dismissals (Amendment) Act 1993 provides that, where an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the 1971 Act and is acting in the course of that business, to do or perform personally any work or service for a third person (whether the third person is a party to the contract or not and whether the third person pays the wages or salary of the individual in respect of the work or service or not) then, for the purposes of the Unfair Dismissals Act 1977 as respects a dismissal: (a) the individual shall be deemed to be an employee employed by the third person under a contract of employment, and (b) any redress under the Act for unfair dismissal of the individual under the contract shall be awarded against the third person.

76  The 1998 Act (as amended) outlaws discrimination on the grounds of gender, age, disability, religion, sexual orientation, family status, civil status, race and membership of the Traveller community. 77  This section concerns an employee’s entitlement to equal pay, which is based on whether the claimant is engaged in ‘like work’ with his or her comparator.

452  Anthony Kerr Consequently, an agency worker, for the purposes of the unfair dismissals legislation, is deemed to be an employee of the hirer, not the agency. D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship The established view was that employment whereby an individual agreed with an employment agency to do or perform personally any work or service for a third person (‘the hirer’) did not give rise to an employment ­contract between the individual and the hirer.78 There are subsequent cases, however, in which an agency worker has been found to be an employee of the hirer. The issue was fully considered by the Labour Court in Rooney v Diageo Global Supply.79 In this case, the complainant had been working part-time in the Guinness brewery as a nurse, supplied by a licensed employment agency and paid by them, for 11 years. When her hours were reduced and she was denied payment while on sick leave, she complained that she had been less favourably treated on account of her part-time status contrary to the 2001 Act. The company contended that she was not their employee and that any complaint she might have lay against the employment agency. The Labour Court ruled that, given the extent of control exercised by the company over the ­complainant in the performance of her work, they were in law her employer, notwithstanding that she was paid by the agency. (ii)  Rights and Obligations/Liability As is set out above, for the purposes of most of the employment legislation, the agency is deemed to be the employer and therefore assumes responsibility for ensuring agency workers’ employment rights as regards annual leave, etc. Liability for unfair dismissal, however, is imposed on the hirer, not the agency.

78  See the High Court decision (Barron J) in Minister for Labour v PMPA Insurance Co, 16 April 1986 (reported at (1986) 5 Journal of the Irish Society for Labour Law 215). The word ‘hirer’, which is used in substitution for the term ‘user undertaking’, is defined in s 2(1) of the 2012 Act as ‘a person engaged in an economic activity for whom, and under the direction and supervision of whom, an agency worker carries out work pursuant to an agreement (whether in writing or not) between the employment agency by whom the agency worker is employed and the first mentioned person or any other person’. 79  Rooney v Diageo Global Supply PTD 2/2004 (reported at [2004] ELR 133). An appeal to the High Court was subsequently settled without the Labour Court’s determination being vacated.

Atypical Employment Relationships—The Position in Ireland 453 (iii)  Health and Safety Section 8 of the Safety, Health and Welfare at Work Act 2005 (the 2005 Act) imposes a general duty on employers to ensure, as far as is reasonably practicable, the safety, health and welfare at work of their employees. The word ‘employee’ is defined in section 2(1) of the 2005 Act as a person who works under a contract of employment and specifically includes a ‘temporary employee’. That term is then defined as an employee ‘who is assigned by a temporary employment business to work for and under the control of another undertaking availing of the employee’s services’. The term ‘temporary employment business’ is defined as meaning ‘a business, including an employment agency within the meaning of the Employment Agency Act 1971, which provides temporary employees to other undertakings availing of the services of those employees’. Section 2(4) of the 2005 Act provides that, where an individual agrees with a person who is carrying on the business of an employment agency within the meaning of the 1971 Act and is acting in the course of that business to do or perform personally any work or services for another person (whether the latter person is a party to the contract or not and whether the latter person pays the wages or salary of the individual in respect of the work of service or not), then the agency shall be ‘deemed’ to be the individual’s employer for the purpose of the relevant provisions of the 2005 Act. E.  Relationship between Temporary Work Agency and User Undertaking Section 15 of the 2012 Act imposes a duty on the hirer of an agency worker to provide the employment agency with all such information in the hirer’s possession ‘as the employment agency reasonably requires to enable the employment agency to comply with its statutory obligations’. If proceedings in respect of a contravention of the 2012 Act are brought by an agency worker against an employment agency, and the contravention is attributable to the hirer’s failure to comply with this section, the hirer is required to indemnify the agency in respect of any loss concerned by the agency that is attributable to such failure. F.  Rights and Status of Temporary Agency Worker (i)  Equal Treatment Section 6(1) of the 2012 Act provides that, subject to any Labour Court approved collective agreement, an agency worker, for the duration of his or her assignment, shall be entitled to the same ‘basic working and ­employment

454  Anthony Kerr conditions’ to which he or she would be entitled ‘if he or she were employed by the hirer under a contract of employment to do work that is the same as, or is similar to, the work that he or she is required to do during that assignment’. The term ‘basic working and employment conditions’ is defined in ­section 2(1) of the 2012 Act as meaning terms and conditions of employment required to be included in a contract of employment by virtue of any enactment or collective agreement, or any arrangement that applies generally in respect of employees, or any class of employees, of a hirer, and that relate to: (a) pay, (b) working time, (c) rest periods, (d) rest breaks during the working day, (e) night work, (f) overtime, (g) annual leave, or (h) public holidays. The word ‘pay’ is in turn defined as meaning ‘basic pay’ and any pay in excess of ‘basic pay’ in respect of: (a) shift work; (b) piece work; (c) overtime, (d) unsocial hours worked, or (e) hours worked on a Sunday.80 The definition of ‘pay’ also makes clear that sick pay, occupational pension schemes and financial participation schemes are not included. Section 6(1),insofar as it relates to ‘pay’, does not apply where the agency worker has a permanent contract of employment with the agency and continues to be paid between assignments.81 In Team Obair Ltd v Costello,82 the Labour Court said that there was ‘little difficulty in practice’ in identifying conditions derived from an ­ enactment or a collective agreement, but the term ‘any arrangement’ was less certain. It seemed clear to the Court that it was the arrangement that must be of general application rather than the rate of pay or conditions of

80  The term ‘basic pay’, however, is not defined. In Nurse on Call v Mahon AWD 1/2013 and Nurse on Call v Krankowska AWD 14/2015, the Labour Court ruled that various allowances were constituent elements of the pay to which the complainants were entitled. 81  Section 6(2): see Staffline Recruitment Ltd v Fitzgerald AWD 4/2018 where this derogation was successfully pleaded. 82  Team Obair Ltd v Costello AWD 4/2013 (reported at [2014] ELR 76).

Atypical Employment Relationships—The Position in Ireland 455 e­ mployment that resulted from the utilisation thereof. The Court said that the use of the term ‘any arrangement’ was intended to give section 6 ‘a wide ambit so as to encompass conditions of employment established within a hirer by systems used for that purpose in employments where collective bargaining does not take place’. Where a rate of pay was generally applicable to all workers performing the same work as that performed by the agency worker, ‘it may be readily inferred that if the agency worker was employed by the hirer he or she would be similarly paid’. The Labour Court acknowledged, however, that it might be that the generally applicable rate was in whole or in part attributable to factors that did not apply to the agency worker. The onus of establishing that there is a generally applicable rate of pay rests with the complainant, whereas the onus of proving that a generally applicable rate of pay would not in fact have applied to an agency worker, had he or she been directly employed, rests with the agency.83 In Noel Recruitment (Ireland) Ltd v McGrath,84 the issue arose as to who was the ‘hirer’. The agency worker had been assigned to work for GRM, which was under contract with a university hospital to box up x-ray files for off-site storage. During this time he was directed and supervised on a day-to-day basis by GRM. When the work associated with that contract came to an end, the worker was then assigned duties in the hospital and GRM ceased to have any day-to-day contact. The worker was effectively integrated into the hospital’s own staffing structure and was directed and supervised by hospital management. The Labour Court ruled that the term ‘hirer’ as used in the 2012 Act should be interpreted so as to accord with the definition of ‘user undertaking’ as used in the Directive. Accordingly, the agency was under an obligation to ensure that the worker was paid what he would have been paid had he been directly employed by the hospital. The fact that GRM had not advised the agency of the change in the worker’s deployment could not defeat his entitlements under the Act. (ii)  Other Matters Section 11 of the 2012 Act requires a hirer, when informing its employees of any vacant position of employment with the hirer, to also inform any agency worker ‘for the time being assigned to work for the hirer of that vacant position for the purposes of enabling the agency worker to apply for

83  Team Obair Ltd v Costello AWD 4/2013 (reported at [2014] ELR 76) and QED Recruitment Ltd v Mulholland AWD 6/2014 (upheld on appeal by Kearns P in the High Court: [2015] IEHC 151). 84  Noel Recruitment (Ireland) Ltd v McGrath AWD 1/2016.

456  Anthony Kerr that position’. Failure to inform such workers properly could give rise to a complaint to the Workplace Relations Commission. Section 14 of the 2012 Act requires a hirer to treat an agency worker no less favourably than an employee as respects such collective facilities and amenities as access to canteen or other similar facilities, child care facilities and transport services.85 In QED Contracts v Hickey,86 the Labour Court held that access to training was not such a facility or amenity, because Article 6(5) of the Directive stipulated that training was a matter ‘to be progressed by way of social partnership’. The section further provides, however, that the hirer may treat agency workers less favourably as regards access to a facility or amenity if there exist ‘objective grounds that justify less favourable treatment’. G. Information and Consultation/Representation of Temporary Agency Worker Section 10 of the Protection of Employment Act 1977 (as amended by ­section 17 of the 2012 Act) requires that the information to be disclosed to employees’ representatives in the context of proposed collective redundancies must include: the number (if any) of agency workers engaged to work for the employer; those parts of the employer’s business in which those agency workers are, for the time being, working; and the type of work that those agency workers are engaged to do. Regulation 8 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 200387 (as amended by section 20 of the 2012 Act) contains similar provisions in the context of the information that must be provided by the transferor and transferee to the employees’ representatives as regards a transfer of an undertaking, or part thereof. Section 3 of the Transnational Information and Consultation of Employees Act 1996 (as amended by section 18 of the 2012 Act) provides that agency workers, for the duration of their hiring, should be treated as being employed by the employment agency and thus do not count towards the numerical thresholds imposed by that Act as regards the establishment of a European Employees’ Forum or a European Works Council in the hirer. Section 1(1A) of the Employees (Provision of Information and Consultation)

85  J Cashman suggests that the term ‘collective facilities and amenities’ could also include car parking facilities, workplace gyms, vending machines, shower facilities and staff common rooms: see Industrial Relations News 20, 24 May 2012, p 31. 86  QED Contracts v Hickey AWD 10/2015. 87  European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (SI No 131 of 2003).

Atypical Employment Relationships—The Position in Ireland 457 Act 2006 (as inserted by section 19 of the 2012 Act) similarly provides as regards the establishment of an Information and Consultation Forum.88 H. Strikes Temporary agency workers come within the definition of ‘worker’ ­contained in section 8 of the Industrial Relations Act 1990, namely ‘any person who is employed, whether or not in the employment of the employer with whom a trade dispute arises’. Accordingly such workers are entitled to go on strike and, if they are members of a trade union holding a negotiation licence, are entitled to the protections afforded to such workers by sections 11 and 12 of the 1990 Act.89 In 2008 the government and social partners reviewed progress under the 10-year social partnership agreement known as Towards 201690 and the government agreed to prohibit, save in relation to essential services, the use of agency workers by an employer for the direct replacement of employees in cases of an official strike or lock-out, where the employees were acting in accordance with a Labour Court recommendation.91 No such legislation, however, was introduced before the change in government in 2011.92 I.  Collective Bargaining Agreements Deviating from Statutory Provisions Section 8 of the 2012 Act permits a collective agreement to be made between an employer or a hirer (or an association representing ­employers or hirers) and a body or bodies representative of employees, providing for working and employment conditions that differ from the basic e­ mployment and working conditions applicable by virtue of section 6 of the Act.

88 See also reg 2 of the European Communities (European Public Limited-Liability Company) (Employee Involvement) Regulations 2006 (SI No 623 of 2006), the European Communities (European Cooperative Society (Employee Involvement) Regulations 2007 (SI No 259 of 2007), and the European Communities (Cross-Border Mergers) Regulations 2008 (SI No 157 of 2008), all of which were amended by s 20 of the 2012 Act and all of which now provide that agency workers are to be treated as being employed by the employment agency and not the hirer. 89  On those protections, which cover, inter alia, picketing, see A Kerr, The Trade Union and Industrial Relations Acts, 5th edn (Round Hall, 2015) pp 201–09. 90  Available at: https://www.welfare.ie/en/downloads/Towards201626June06.pdf. 91 Transitional Agreement, s 8.6: available at: www.taoiseach.gov.ie/eng/Publications/ Publications_Archive/Publications_2008/Towards_2016_Review_and_Transitional_Agreement_2008-2009.html. 92  There is no evidence, however, of the widespread use of agency workers by employers in substitution of strikers.

458  Anthony Kerr The section further requires that such an agreement needs to be approved by the Labour Court, subject to the Court being satisfied of the matters specified in section 8(4), such as the bodies negotiating the agreement on behalf of employees being sufficiently representative of agency workers and the agreement being concluded in a manner usually employed in determining the pay or other conditions of employment of employees in the employment concerned. No such collective agreements have been made and/or approved by the Labour Court at the time of writing.

17 Atypical Employment Relationships: The Position in Italy EDOARDO ALES, ANTONIO RICCIO AND ANTONIO RIEFOLI*

I. INTRODUCTION

S

INCE THE LATE 1990s, Labour Law in Italy, like in many other ­European Union countries, looks like a ‘construction site’, with the legislator frantically working to improve the efficiency of the regulations on employment in the face of globalised economic challenges. Using a ‘stop-start’ approach due to changes in political majorities over the years, the catchphrase of amendment activities has been ‘adaptability’ of labour to the needs of employers, who in turn must also adapt to the rapidly changing global and internal market conditions. Inspired by the idea of flexicurity,1 labour market and labour law reforms, on the one hand, have been aimed at facilitating the use of atypical work, while on the other, especially in recent years, they have underlined the legislator’s preference for contracts of indefinite duration, as the standard employment relationship. The ‘liberalisation’ of atypical work must be considered in Italy within the framework of a comprehensive amendment of open-ended employment relationships, easing in particular restrictions on terminations on the part of the employer (dismissal). This was one of the underlying legislative objectives, together with the aim of making employment contracts of indefinite duration more attractive for employers when deciding under what type of contract to hire the worker. This must be borne in mind when exploring Italy’s regulations on ­fixed-term, part-time and temporary agency work. At the same time, one

* Although the work stems from a common reflection by the authors, Edoardo Ales drafted the Introduction (I) and the section on Part-time work (III), Antonio Riefoli the section on Fixed-term Work (II), Antonio Riccio the section on Agency work (IV). 1  M Corti, Flessibilità e sicurezza dopo il Jobs Act. La flexicurity italiana nell’ordinamento multilivello (Giappichelli, 2018).

460  Edoardo Ales, Antonio Riccio and Antonio Riefoli has to stress that, more recently, the Legislator has partially stepped back, showing a renewed sensitiveness for upper limits to the use of fixed-term and temporary agency work, looked at as two faces of the same coin. II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements Fixed-term work is an employment contract with a specific time limitation. Fixed-term work is currently regulated by Legislative Decree No 81 of 20152 (Articles 19 to 29) which has repealed the dispositions previously provided for in Legislative Decree No 368 of 20013 transposing Directive 1999/70/EC. The regulations on fixed-term work have been frequently amended over the last few years (in particular by Act No 92 of 20124 and Act No 78 of 2014)5 and the above-mentioned provisions of Legislative Decree No 81 of 2015 have been recently modified by Decree Law No 87 of 2018, converted (with amendments) into Law No 248 of 2018,6 which 2 Legislative Decree 15 June 2015, No 81, Disciplina organica dei contratti di lavoro e revisione della normativa in tema di mansioni, a norma dell’articolo 1, comma 7, della legge 10 dicembre 2014, No 183, OJ of 24 June 2015, No 144, Ordinary Supplement No 34. MP Aimo, Il lavoro a termine tra modello europeo e regole nazionali (Giappichelli, 2017); C Alessi, ‘Il lavoro a tempo determinato dopo il d. lgs. 81/2015’ in Z Grandi and MB Gaetano (eds), Commentario breve alla riforma ‘Jobs Act’ (Cedam, 2016) 19; A Pandolfo and P ­Passalacqua, ‘Il contratto a tempo determinato (artt 19–29, d.lgs. n. 81/2015)’ in M Magnani, A Pandolfo and PA Varesi (eds), I contratti di lavoro. Commentario al d.lgs. 15 giugno 2015, n. 81, recante la disciplina organica dei contratti di lavoro e revisione della normativa in tema di mansioni, a norma dell’art. 1, comma 7, della l. 10 dicembre 2014, n. 183 (Giappichelli, 2016) 109; P ­Saracini, ‘Il contratto a termine nel Jobs Act’, Diritti Lavori Mercati, 2015, vol 2, 419; V Speziale, ‘Lavoro a termine’ in Enciclopedia del Diritto, Annali IX, (Giuffrè, 2016) 497. 3  Legislative Decree 6 September 2001, No 368, OJ of 9 October 2001, No 235. S Ciucciovino, ‘Il contratto a tempo determinato: la prima stagione applicativa del d.lgs. n. 368/2001’, Giornale di diritto del lavoro e delle relazioni industriali, 455 (2007); L Menghini (ed), La nuova disciplina del lavoro a termine. D.Lgs. n. 368/2001, in F Carinci (directed by), Leggi e Lavoro (Ipsoa, 2002); G Perone (ed), Il contratto di lavoro a tempo determinato nel d.lgs. 6 settembre 2001, n. 368 (Giappichelli, 2002); P Saracini, Contratto a termine e stabilità del lavoro (ESI, 2013). 4  Act 28 June 2012, No 92, OJ of 3 July 2012, No 153, Ordinary Supplement No 136. D Costa and M Tiraboschi, ‘La riforma del contratto a tempo determinato’ in M Magnani and M Tiraboschi (eds), La nuova riforma del lavoro. Commentario alla legge 28 giugno 2012, no 92 recante disposizioni in materia di riforma del mercato del lavoro in una prospettiva di crescita, Le nuove leggi civili (Giuffré, 2012); R Del Punta and R Romei (eds), I rapporti di lavoro a termine (Giuffrè, 2013). 5  Act 16 May 2014, No 78, OJ of 19 May 2014, No 114. A Pandolfo and P Passalacqua, Il nuovo contratto di lavoro a termine (Giappichelli, 2014). 6 Decree Law 12 July 2018, No 87, Disposizioni urgenti per la dignità dei lavoratori e delle imprese, OJ of 13 July 2018, No 161, converted, with amendments, into Law 9 August 2018, No 96, OJ of 11 August 2018, No 186. L Zoppoli, ‘Il diritto del lavoro gialloverde: tra demagogia, cosmesi e paralisi regressiva’, Working Paper, Center for the Study of European Labor Law (WP CSDLE) ‘Massimo D’Antona’ IT—377/2018; A Bollani, ‘Contratto a termine

Atypical Employment Relationships: The Position in Italy 461 has brought significant changes affecting the rules governing fixed-term employment contracts. As regards the formal requirements, if the duration of the employment relationship exceeds 12 days, the term must be specified in the contract in writing, otherwise it will be considered a contract of indefinite duration.7 Furthermore, the objective reason (on which see section B. below) justifying the apposition of the term must be detailed in writing in the contract in the following cases: (i) fixed-term contract lasting more than 12 months; (ii) renewal of the fixed-term contract (regardless of the duration of the contract). B. Lawful Stipulation of the Contractual Terms Employers and employees are allowed to agree on the term of the employment relationship, relating to any kind of task, without specifying the grounds,8 for a period not exceeding 12 months.9 The fixed-term contract may have a longer duration, but in any case not exceeding 24 months, only if at least one of the following (objective) reasons occurs: (i) temporary and objective reasons, not related to the ordinary activity of the employer; (ii) need to replace temporarily absent employees; (iii) reasons related to temporary increases in ordinary activities which are significant and unpredictable.10 If a fixed-term contract lasting more than 12 months is concluded in the absence of one of the previously mentioned reasons, the contract will (by judicial order) be transformed into a contract of indefinite duration from the day on which the 12-month limit is exceeded.11 e somministrazione nelle scelte del legislatore del 2018’, Diritto e pratica del lavoro, Supplement, 40 (2018); P Passalacqua, ‘Il contratto di lavoro subordinato a tempo determinato e la somministrazione di lavoro alla prova del decreto dignità’, WP CSDLE ‘Massimo D’Antona’ IT—380/2018. 7  Art 19(4) Legislative Decree No 81 of 2015. A Pandolfo and P Passalacqua, ‘Il contratto a tempo determinato (artt. 19–29, d.lgs. n. 81/2015)’ in M Magnani A Pandolfo and PA Varesi (eds), I contratti di lavoro. Commentario al d.lgs. 15 giugno 2015, n. 81, recante la disciplina organica dei contratti di lavoro e revisione della normativa in tema di mansioni, a norma dell’art. 1, comma 7, della l. 10 dicembre 2014, n. 183 (Giappichelli, 2016) 111–12. 8  M Magnani, La disciplina del contratto di lavoro a tempo determinato: novità e implicazioni sistematiche, WP CSDLE ‘Massimo D’Antona’ IT—212/2014, p 3. On compliance of this regulation with Community law, see E Ales, ‘La nuova disciplina del contratto a termine è conforme al diritto comunitario? Una risposta (nel complesso) positiva’, Rivista italiana di diritto del lavoro, II, 304 (2015). 9  Art 19(1) Legislative Decree No 81 of 2015, as modified by Decree Law No 87 of 2018. M Saracino, ‘Il sistema delle tutele nella nuova disciplina del contratto a termine’ in E Ghera and D Garofalo (eds), Contratti di lavoro, mansioni e misure di conciliazione vita-lavoro nel Jobs Act 2 (Cacucci, 2015) 263. 10  Art 19(1) Legislative Decree No 81 of 2015, as modified by Decree Law No 87 of 2018. 11  Art 19(1-bis) Legislative Decree No 81 of 2015, introduced by Decree Law No 87 of 2018.

462  Edoardo Ales, Antonio Riccio and Antonio Riefoli Once a fixed-term contract expires, it may be renewed only if one of the reasons listed above occurs. This rule applies regardless of the duration of the contract, ie also if the duration of the renewed contract does not exceed 12 months.12 If not otherwise provided by a collective agreement,13 signed, at company or at national level, by the comparatively most representative trade unions, the total duration of a fixed-term contract, or series of contracts, concluded between the (same) employer and the (same) employee to perform tasks of the same professional level and legal category may not exceed 24 months. When calculating this limit, fixed-term assignments within the scope of temporary agency work must be included as well. If the 24-month limit is exceeded by a single or successive contract, the employment relationship will (by judicial order) be transformed into a contract of indefinite duration from the day on which the 24-month limit was reached.14 If the employer and employee want to conclude an additional fixed-term contract that exceeds the 24-month limit, such an extension may be authorised by the local labour office for a maximum duration of 12 months. If the 12-month limit is exceeded, the employment relationship will (by judicial order) be transformed into a contract of indefinite duration from the day on which the 12-month limit was reached.15 The duration of a single fixed-term contract may only be extended with the consent of the worker and only if its initial term did not exceed 24 months. A maximum of four extensions may be concluded within the maximum period of 24 months. The duration of the contract may be freely extended within the first 12 months. Thereafter, it may be extended only if one of the reasons, listed above and provided for as compulsory in case of stipulation of a single fixed-term contract lasting more than 12 months, occurs.16 If a fixed-term employment relationship continues after the expiry of the term initially agreed or successively extended, the employer must pay the worker a 20 per cent increased wage daily for the first 10 days, and a 40 per cent increase for any subsequent days. If the employment relationship continues after the 30th day, in case of a contract lasting less than six months, or after the 50th day, in case of a contract lasting more than six months, the contract will (by judicial order) be transformed into a contract of indefinite duration.17

12  Art 21(01) Legislative Decree No 81 of 2015, introduced by Decree Law 12 July 2018, No 87. This rule does not apply in case of renewals regarding seasonal work. 13  I Alvino, ‘Autonomia collettiva e legge nella regolamentazione dei rapporti di lavoro a termine’ in Del R Punta and R Romei (eds), I rapporti di lavoro a termine (Giuffrè, 2013) 57. 14  Art 19(2) Legislative Decree No 81 of 2015, as modified by Decree Law No 87 of 2018. 15  Art 19(3) Legislative Decree No 81 of 2015, as modified by Decree Law No 87 of 2018. 16  Art 21(01) Legislative Decree No 81 of 2015, introduced by Decree Law No 87 of 2018. This rule does not apply in case of extensions regarding seasonal work. 17  Art 22 Legislative Decree No 81 of 2015.

Atypical Employment Relationships: The Position in Italy 463 If that same worker has been re-hired on a fixed-term contract by the same employer within 10 days after the expiry of a preceding fixedterm contract lasting less than six months, or within 20 days if the preceding contract’s duration was more than six months, the second contract will (by judicial order) be transformed into a contract of indefinite ­duration.18 These rules do not apply to seasonal activities, as defined by decree of the Ministry of Labour and Social Affairs, or to workers hired by innovative start-up businesses (as a rule) within four years of their establishment.19 If not otherwise provided in the above-mentioned collective agreements, the number of fixed-term contracts within a company shall not exceed 20 per cent of the number of contracts of indefinite duration in place on 1 January of each year. According to Article 23(1), Legislative Decree No 81 of 2015, rounding up is permitted if the calculation results in a percentage of above 0.5. This limit does not apply to: (i) new activities if thus decided by collective agreement; (ii) innovative start-up businesses (as a rule) within four years of their establishment; (iii) seasonal activities as defined by decree of the Ministry of Labour and Social Affairs; (iv) specific shows or TV/radio broadcasts; (v) contracts signed in order to replace temporarily absent employees; (vi) contracts signed with workers over the age of 50; (vii) contracts signed within the higher education sector, by universities or research centres; (viii) contracts signed with workers assigned to work at temporary cultural exhibitions.20 Companies employing up to five workers may sign only one fixed-term contract.21 In case of violation of the 20 per cent limitation, the fixed-term employment relationship will not be transformed into an open-ended employment contract. For each fixed-term relationship exceeding the limit, an administrative fine is imposed amounting to: (i) 20 per cent of the wage for each month or part of the month exceeding 15 days, if the number of fixed-term contracts exceeding the limit is less than one; (ii) 50 per cent of the wages if the number of fixed-term contracts exceeding the limit is more than one.22

18  A Pandolfo and P Passalacqua, ‘Il contratto a tempo determinato (artt. 19–29, d.lgs. n. 81/2015)’ in M Magnani, A Pandolfo and PA Varesi (eds), I contratti di lavoro. Commentario al d.lgs. 15 giugno 2015, n. 81, recante la disciplina organica dei contratti di lavoro e revisione della normativa in tema di mansioni, a norma dell’art. 1, comma 7, della l. 10 dicembre 2014, n. 183 (Giappichelli, 2016) 121–23; L Fiorillo, ‘Il contratto di lavoro a tempo determinato’ in L Fiorillo and A Perulli (eds), Tipologie contrattuali e disciplina delle mansioni. Decreto legislativo 15 giugno 2015, n. 81 (Gippichelli, 2015) 126–29; EC Schiavone, ‘Contratto a termine: limiti e divieti’ in E Ghera and D Garofalo (eds), Contratti di lavoro, mansioni e misure di conciliazione vita-lavoro nel Jobs Act 2 (Cacucci, 2015) 249. 19  Art 21 Legislative Decree No 81 of 2015. 20  Art 23(2) Legislative Decree No 81 of 2015. 21  Art 23(1) Legislative Decree No 81 of 2015. 22  Art 23(4) Legislative Decree No 81 of 2015.

464  Edoardo Ales, Antonio Riccio and Antonio Riefoli Fixed-term contracts cannot be concluded: (i) in order to replace workers who are on strike; (ii) within six months by productive units in which collective dismissals have taken place (ie hiring fixed-term workers for posts affected by the collective dismissal), excluding, however, contracts signed in order to replace temporarily absent employees and contracts whose initial duration does not exceed three months; (iii) by productive units profiting from ongoing programmes of the Wage Integration Fund for the same post covered by the programme; (iv) if the relevant employer has not carried out risk assessment in application of the legislation protecting workers’ health and safety.23 C. Termination/End of Fixed-Term Contracts When the contract’s agreed term of duration expires, the employment relationship typically ends without the need of any further communication. A worker in a fixed-term employment relationship may only be dismissed before the end of the term for just cause, ie misconduct that is so serious that it does not allow the continuation of the employment relationship, even on a temporary basis.24 If the ‘just cause’ for the dismissal, as alleged by the employer, is found to be ungrounded, the judge will order the employer to pay the wages the worker would have received from the date of the dismissal to the date of expiration agreed in the fixed-term employment contract. D. Rights and Status of Fixed-Term Worker (i)  Equal Treatment The standard non-discrimination principle applies with reference to the terms and conditions of comparable permanent workers.25 In case of violation of that principle, the employer will be fined. The amount of the fine is linked to the number of workers that have been discriminated against.26 23 

Art 20 Legislative Decree No 81 of 2015. Art 2119 of the Civil Code. 25  See Corte di Cassazione, Labour Division, Judgment of 17 November 2015, No 23487 (on the subject of performance-related pay); Corte di Cassazione, Labour Division, Judgment of 17 February 2011, No 3871 (on the subject of paid leave for study purposes). In these two rulings, the Corte di Cassazione, Labour Division, stated that the non-discrimination principle applies both to performance-related pay and to paid leave for study purposes. 26  Art 25 Legislative Decree No 81 of 2015. The employer must pay a fine between EUR 25.82 and EUR 154.94 if the violation involves only one worker. If the violation involves more than five workers, the fine ranges from EUR 154.94 to EUR 1,032.91. See A Pandolfo and P Passalacqua, ‘Il contratto a tempo determinato (artt. 19–29, d.lgs. n. 81/2015)’ in M ­Magnani, A Pandolfo and PA Varesi (eds), I contratti di lavoro. Commentario al d.lgs. 15 giugno 2015, n. 81, recante la disciplina organica dei contratti di lavoro e revisione della normativa in tema di mansioni, a norma dell’art. 1, comma 7, della l. 10 dicembre 2014, n. 183 (Giappichelli, 24 

Atypical Employment Relationships: The Position in Italy 465 (ii)  Employment Opportunities If not otherwise provided for in the above-mentioned collective agreements, a worker who has been employed under a fixed-term contract for more than six months has priority if permanent employees are being hired within 12 months from the termination of his or her fixed-term employment contract for the same type of activity the fixed-term worker had carried out. Maternity leave counts as a working period in the calculation of the above-mentioned six months.27 Seasonal workers who have already worked for the company have priority in case of new seasonal hiring for the same activity.28 Collective agreements may include procedures and tools aimed at facilitating access of fixed-term workers to training programmes to upgrade their skills, promote their career opportunities and improve their mobility.29 (iii)  Other Matters The employee who deems the fixed-term contract unlawful shall, under penalty of forfeiture, challenge it in writing within 180 days from its expiry date. The act of challenge requires no formalities. It need only fit the purpose to acquaint the employer with the employee’s intention to challenge the fixed-term contract. The act of challenge will produce no effects if, within 180 days from the date of dispatch, the worker does not lodge a claim into court or does not communicate to the employer the request of a conciliation or arbitration procedure. If the employer will not accept the request for conciliation and arbitration or no agreement has been reached within it, the employee shall lodge the claim within 60 days from such refusal or failure to agree, under penalty of forfeiture.

2016) 139; M Saracino, ‘Il sistema delle tutele nella nuova disciplina del contratto a termine’ in E Ghera and D Garofalo (eds), Contratti di lavoro, mansioni e misure di conciliazione vitalavoro nel Jobs Act 2 (Cacucci, 2015) 272. 27 A Pandolfo and P Passalacqua, ‘Il contratto a tempo determinato (artt. 19–29, d.lgs. n. 81/2015)’ in M Magnani, A Pandolfo and PA Varesi (eds), I contratti di lavoro. ­Commentario al d.lgs. 15 giugno 2015, n. 81, recante la disciplina organica dei contratti di lavoro e revisione della normativa in tema di mansioni, a norma dell’art. 1, comma 7, della l. 10 dicembre 2014, n. 183 (Giappichelli, 2016) 136; F Chietera, ‘Contratto a termine: clausole di c­ ontingentamento e diritto di precedenza’ in Ghera Edoardo and D Garofalo (eds), Contratti di lavoro, mansioni e misure di conciliazione vita-lavoro nel Jobs Act 2 (Cacucci, 2015) 261; L Fiorillo, ‘Il contratto di lavoro a tempo determinato’ in L Fiorillo and A Perulli (eds), Tipologie contrattuali e disciplina delle mansioni. Decreto legislativo 15 giugno 2015, n. 81 (Giappichelli, 2015) 131–36. 28 Art 24 Legislative Decree No 81 of 2015. See Corte di Cassazione, Labour Division, ­Judgment of 14 May 2010, No 11737; See Corte di Cassazione, Labour Division, Judgment of 26 August 2003, No 12505. 29  Art 26 Legislative Decree No 81 of 2015.

466  Edoardo Ales, Antonio Riccio and Antonio Riefoli When a judge orders the transformation of a fixed-term contract into a contract of indefinite duration, the employer is simultaneously ordered to pay compensation in the form of an all-encompassing indemnity, amounting to a minimum of 2.5 months’ wages up to a maximum of 12 months’ wages, excluding occasional grants and reimbursements.30 E. Information and Consultation Under Article 23(5) of Legislative Decree No 81 of 2015, collective agreements shall define both the scope and the procedures of information to be provided to worker representatives on the use of fixed-term work.31 No other specific rules on information and consultation in relation to fixed-term employees are contained in Legislative Decree No 81 of 2015. F. Specific Provisions Article 29 of Legislative Decree No 81 of 2015 provides for several exclusions from the regulations contained therein. First, the provisions of Legislative Decree No 81 of 2015 do not apply to the category of ‘dirigenti’:32 they can be hired on a fixed-term basis for a maximum period of five years and may resign by notice after three years. The legislation also does not apply to schoolteachers substituting temporarily absent colleagues, and only partially applies to civil servants. Furthermore, as regards the maximum duration of fixed-term contracts, the limit of 24 months provided for in Article 19(1) of Legislative Decree No 81 of 2015 does not apply to scientific research contracts, which may have the same duration as the relevant research project.33 G. Collective Bargaining Agreements Deviating from Statutory Provisions Company collective agreements signed pursuant to Article 8 of Decree Law No 138/2011 (converted into law by Act No 148/2011) may derogate

30 

Art 28 Legislative Decree No 81 of 2015. Pandolfo and P Passalacqua, ‘Il contratto a tempo determinato (artt. 19–29, d.lgs. n. 81/2015)’ in M Magnani, A Pandolfo and PA Varesi (eds), I contratti di lavoro. Commentario al d.lgs. 15 giugno 2015, n. 81, recante la disciplina organica dei contratti di lavoro e revisione della normativa in tema di mansioni, a norma dell’art. 1, comma 7, della l. 10 dicembre 2014, n. 183 (Giappichelli, 2016) 135. 32  According to Art 2095 of the Civil Code and the prevailing case law, ‘dirigente’ is an employee who performs managerial functions and carries out his or her duties with a high degree of autonomy and relevant discretion. 33  Art 23(3) Legislative Decree No 81 of 2015. 31  A

Atypical Employment Relationships: The Position in Italy 467 from the rules governing fixed-term work contained in Legislative Decree No 81 of 2015. The aforementioned Article 8, in fact, provides that, in order to increase employment rates, improve the quality of employment relationships, stimulate competitiveness and wage increases, fight undeclared work and implement restructuring, collective agreements signed at company level by the comparatively most representative trade unions at national level or by their representative bodies at plant level may derogate from certain existing legal provisions provided that a generally binding effect results from the majority of the above-mentioned representative bodies signing them. These provisions concern: (a) the monitoring of workers using audio-visual devices and the introduction of new technologies in the field; (b) workers’ tasks and professional classifications; (c) fixed-term contracts, part-time or reduced-time contracts, joint and several liabilities in case of procurement, cases legitimating the use of temporary agency work; (d) working time; (e) hiring and working conditions; cases of conversion or transformation of the employment contracts; consequences of unlawful dismissal (with the exception of discriminatory dismissal; dismissal of the pregnant worker from the day in which she has reported her pregnancy to the employer to the day in which the 5 months mandatory abstention period expires and, in any case until the child has reached one year of age; dismissal of the worker because of the request of (or during) a parental leave and a leave for illness of the child; dismissal adopted in conjunction with marriage). The ability to negotiate the aforesaid derogations from existing legal provisions (including the rules governing fixed-term work contained in Legislative Decree No 81 of 2015) is, however, without prejudice to the constitutional principles and to the constraints arising from Community rules34 and from the International Labour Conventions.35 III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements Part-time work refers to an employment relationship with a working time or working hours that are lower than those usually provided for in collective agreements for a full-time employment contract.

34  Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP. 35  E Ales, ‘Dal caso FIAT al ‘caso Italia’. Il diritto del lavoro ‘di prossimità’, le sue scaturigini e i suoi limiti costituzionali’, Diritto delle relazioni industriali, 1061 (2011); A Perulli, ‘La contrattazione collettiva di prossimità: teoria, comparazione e prassi’, Rivista Italiana di Diritto del Lavoro, 928 (2012); A Bollani, ‘Contrattazione collettiva di prossimità e limiti costituzionali’, Argomenti di diritto del lavoro (2012) 1219; A Maresca, ‘La contrattazione collettiva aziendale dopo l’articolo 8 del decreto legge 13 agosto 2011, n. 138’, Diritto delle relazioni industriali (2012).

468  Edoardo Ales, Antonio Riccio and Antonio Riefoli Part-time work is currently regulated by Legislative Decree No 81 of 2015,36 which consolidates, with some modifications, the rules previously provided for by Legislative Decree No 61 of 2000,37 which had implemented Directive 97/81/EC. Part-time work contracts must be concluded in writing and must contain the precise indication of the job performance’s duration and of its distribution with reference to the day, week, month and year. This form is required ad probationem.38 In the absence of evidence that a part-time employment contract has been agreed, the existence of a full-time employment relationship between the parties may be declared (by judicial order) at the employee’s request from the date when the lack of a written contract was legally ­ascertained.39 In addition, the lack of any indication, in the contract, of the employee’s total working hours may give rise to a request by the worker for the employment relationship to be considered a full-time employment relationship from the date the lack of such a written indication was legally ascertained.40 If, by contrast, the omission concerns only the distribution of the w ­ orking hours, the judge will determine the temporal modalities of the part-time work performance, taking into account various elements such as the family responsibilities of the worker concerned, his/her need to supplement his/her income by performing other jobs and the employer’s needs.41

36  V Bavaro, ‘Il lavoro part-time dopo il d.lgs. n. 81/2015’ in E Ghera and D Garofalo (eds), Contratti di lavoro, mansioni e misure di conciliazione vita-lavoro nel Jobs Act 2 (Cacucci, 2015) 215; S Bellomo, ‘La riscrittura della disciplina in materia di contratto di lavoro a tempo parzale: semplificazione, unificazione e ricalibratura dell’equilibrio tra autonomia collettiva ed individuale’ in G Zilio Grandi and M Biasi (eds), Commentario breve alla riforma ‘Jobs Act’ (Cedam, 2016) 503; V Leccese, ‘Il lavoro a tempo parziale’ in L Fiorilloand A Perulli (eds), Tipologie contrattuali e disciplina delle mansioni. Decreto Legislativo 15 giugno 2015, n. 81 (Giappichelli, 2015) 41. 37  Legislative Decree 25 February 2000, No 61, OJ of 20 March 2000, No 66. A Lo Faro, ‘Il Part Time Italia’, Giornale di Diritto del Lavoro e di relazioni industriali 603 (2000); M Delfino, Il lavoro part-time nella prospettiva comunitaria (Jovene, 2008); V Bavaro and ML De Cristofaro, Lavoro part-time, Digesto, aggiornamento (Utet, 2000) 471; M Brollo, Le modifiche al d.lgs n. 61/200 sul lavoro a tempo parziale in M Brolloa, MG Mattarolo and L Menghini (eds), ‘Contratti di lavoro flessibili e contratti formativi’ in F Carinci (coordinated by), Commentario al d. lgs. 10 settembre 2003, n. 276 (Ipsoa, 2004) 121; V Leccese, ‘A volte ritornano: il diritto al ripensamento nel lavoro a tempo parziale’ in P Chieco (ed), Flessibilità e tutele nel lavoro. Commentario della legge 28 giugno 2012, n. 92 (Cacucci, 2013) 93. 38  Art 5(1) and (2) Legislative Decree No 81 of 2015. See Corte di Cassazione, Labour Division, Judgment of 25 July 2014, No 17009; Corte di Cassazione, Labour Division, Judgment of 1 February 2012, No 1430. 39  Art 10(1) Legislative Decree No 81 of 2015. 40  Art 10(2) Legislative Decree No 81 of 2015. 41  Art 10(2) Legislative Decree No 81 of 2015.

Atypical Employment Relationships: The Position in Italy 469 B. Opportunities for/Right to Part-Time Work Modifying the employment relationship from full-time to part-time work requires a formal agreement in writing between the contractual parties according to Article 8(2) Legislative Decree No 81 of 2015. As a logical consequence, the employee cannot be required by the employer to modify his or her employment relationship, nor does the employee has the right to obtain such a change. The employee only has the right to modify42 her or his full-time employment relationship into one of part time if s/he suffers from a disease which forces him/her to work at reduced capacity, or when s/he must undergo treatment or therapy, as ascertained by a medical commission set up at the AUSL (local health authority) with competence at territorial level.43 In such a case, the (temporary) part-time employment relationship will be changed back to a full-time employment relationship upon the employee’s request.44 Furthermore, in case of entitlement to parental leave, the employee has the right (only once) to modify his/her full-time employment relationship into a part-time one, provided that the reduction of working time does not exceed 50 per cent: the employer must comply with the employee’s request within 15 days.45 C. Opportunities for/Right to an Extension of Working Time Part-time workers do not have the right to increase their working hours. However, according to Article 8(6), of Legislative Decree No 81 of 2015, the worker whose employment relationship has changed from ­full-time to part-time work has priority to revert to full time if new full-time employees are being hired for the same type of work the part-time worker is performing.46

42  See V Leccese, ‘Il lavoro a tempo parziale’ in L Fiorillo and A Perulli (eds), Tipologie contrattuali e disciplina delle mansioni. Decreto legislativo 15 giugno 2015, n. 81 (­Gippichelli, 2015) 69; V Bavaro, ‘Il lavoro part-time dopo il d.lgs. n. 81/2015’ in E Ghera and D ­Garofalo (eds), Contratti di lavoro, mansioni e misure di conciliazione vita-lavoro nel Jobs Act 2 (Cacucci, 2015) 229. 43  Art 8(3) Legislative Decree No 81 of 2015. 44  Art 8(3) Legislative Decree No 81 of 2015. 45  Art 8(7) Legislative Decree No 81 of 2015. See V Bavaro, ‘Il lavoro part-time dopo il d.lgs. n. 81/2015’ in E Ghera and D Garofalo (eds), Contratti di lavoro, mansioni e misure di conciliazione vita-lavoro nel Jobs Act 2 (Cacucci, 2015) 229. 46 Ibid.

470  Edoardo Ales, Antonio Riccio and Antonio Riefoli D. Rights and Status of Part-Time Worker (i)  Equal Treatment By application of the non-discrimination principle, pursuant to Directive 97/81/EC, the part-time worker may not be treated less favourably than a comparable full-time worker—ie an employee classified at the same level pursuant to the classification guidelines established by the collective agreement—merely because s/he is only working part time (Article 7(1), Legislative Decree No 81 of 2015). At the same time, the so-called pro rata temporis principle applies to part-time work, according to which the treatment of the part-time worker must be re-proportioned ‘because of the reduced extent of the job performance’.47 (ii)  Dismissal Protection In case of dismissal, part-time workers enjoy the same protection guaranteed by law to full-time workers. (iii)  Other Matters The employee’s refusal to sign the elastic clause (see below) or to modify the employment relationship from one of full-time to part-time work or vice versa does not constitute a justified reason for the employee’s dismissal, ie the dismissal would be considered unlawful and null.48 E. Information and Consultation No specific rules on information and consultation in relation to part-time workers exist. However, it is worth noting that, according to Article 9 of Legislative Decree No 81 of 2015, for the purpose of applying any regulation provided for by law or by collective agreement in respect of which the total number of employees is relevant, part-time workers must be counted in proportion to their working time compared with the undertaking’s full-time employees. 47  Art 7(2) Legislative Decree No 81 of 2015. See V Leccese, ‘Il lavoro a tempo parziale’ in L Fiorillo and A Perulli (eds), Tipologie contrattuali e disciplina delle mansioni. Decreto legislativo 15 giugno 2015, n. 81 (Gippichelli, 2015) 67; V Bavaro, ‘Il lavoro part-time dopo il d.lgs. n. 81/2015’ in E Ghera and D Garofalo (eds), Contratti di lavoro, mansioni e misure di conciliazione vita-lavoro nel Jobs Act 2 (Cacucci, 2015) 220. 48  Art 6(8) Legislative Decree No 81 of 2015.

Atypical Employment Relationships: The Position in Italy 471 The above-described method must also be applied when calculating the threshold determined by Article 3(1) of Legislative Decree No 25 of 2007,49 which implemented Directive 2002/14/CE, establishing a general framework for informing and consulting employees in the European Community. F. Other Part-Time Arrangements Under the limitations on full-time work (provided for in Legislative Decree No 66/2003), supplementary working hours that exceed the total number of working hours stipulated in the individual employment contract are possible if provided for in the relevant collective agreement.50 If this is not the case, the employer may request the worker to work additional hours up to a maximum of 25 per cent of the working time stipulated in the employment contract: in this case, supplementary work entails a 15 per cent increase of the usual pay.51 Overtime is also allowed under the same conditions and following the same rules provided for by the law or by the collective agreement in case of full-time employment relationships.52 ‘Elastic clauses’, in the sense that the employer may request the employee to work longer hours (the differences between supplementary and overtime work are unclear in this case)53 or for a period of the day, week, month or year that diverges from that agreed in the contract, may be included within the individual contract if so provided by the relevant collective agreement or if the individual contract is signed before a Certification Commission. In any case, these clauses must specify, under penalty of nullity: (1) the duration of the notice period preceding the modification of the working time/period (minimum two days); (2) the conditions on which and the way in which the employer can modify the working time/periods; and (3) the upper ceiling of the modification, which may not exceed 25 per cent of the total working time or periods agreed in the individual part-time contract. If the employer uses such an elastic clause, the employee is entitled to specific c­ ompensation

49  Under Art 3(1) of Legislative Decree No 25 of 2007 (Attuazione della direttiva 2002/14/ CE che istituisce un quadro generale relativo all’informazione e alla consultazione dei lavoratori) the provisions regarding the duty of information and consultation apply to undertakings employing more than 50 workers. 50  Art 6(1) Legislative Decree No 81 of 2015. 51  Art 6(2) Legislative Decree No 81 of 2015. 52  Art 6(3) Legislative Decree No 81 of 2015. V Leccese, ‘Il lavoro a tempo parziale’ in L Fiorillo and A Perulli (eds), Tipologie contrattuali e disciplina delle mansioni. Decreto legislativo 15 giugno 2015, n. 81 (Gippichelli, 2015) 51. 53  Ibid; V Bavaro, ‘Il lavoro part-time dopo il d.lgs. n. 81/2015’ in E Ghera and D ­Garofalo (eds), Contratti di lavoro, mansioni e misure di conciliazione vita-lavoro nel Jobs Act 2 (Cacucci, 2015) 220.

472  Edoardo Ales, Antonio Riccio and Antonio Riefoli to the extent and in the forms established by the collective agreement54 and if the clause is not regulated in the relevant collective agreement, the employee has the right to a wage increase of 15 per cent.55 A specific type of employment relationship characterised by the reduction of working time is the ‘intermittent employment contract’ (also known as ‘on-call work’).56 The intermittent contract was introduced by Legislative Decree No 276/2003 (Article 33 and subsequent) and later repealed by Article 1(45) of Act No 247/2007. This peculiar type of employment contract was later reintroduced by Act No 133/2008 and its regulation was subsequently amended by Act No 92 of 2012 and by Law Decree No 76/2013. Intermittent work is currently regulated by Articles 13 to 18 of Legislative Decree No 81 of 2015, which have replaced the provisions previously in force without making any significant changes to its regulatory framework.57 Under Article 13(1) of Legislative Decree No 81 of 2015, an intermittent contract is an agreement through which an employee makes him-/herself available to an employer who can benefit from his/her activities discontinuously or intermittently. An intermittent employee is entitled to an ‘availability indemnity’ if the contract provides that s/he is obligated to answer the employer’s call for work;58 in this case, unjustified refusal of the employer’s call for work may entail the dismissal of the worker.59 By contrast, no indemnity is due and no liability exists when the contract leaves the worker free to accept or reject the call for work.60 54 

Article 6(5) Legislative Decree No 81 of 2015. 6(6) Legislative Decree No 81 of 2015. See C Alessi, Flessibilità del lavoro e potere organizzato (Giappichelli, 2012) 69; S Bellomo, ‘La riscrittura della disciplina in materia di contratto di lavoro a tempo parziale: semplificazione, unificazione e ricalibratura dell’equilibrio tra autonomia collettiva ed individuale’ in G Zilio Grandi and M Biasi (eds), Commentario breve alla riforma ‘Jobs Act’ (Cedam, 2016) 506; V Leccese, ‘Il lavoro a tempo parziale’ in L Fiorillo and A Perulli (eds), Tipologie contrattuali e disciplina delle mansioni. Decreto legislativo 15 giugno 2015, n. 81 (Gippichelli, 2015) 54. 56  E Ales, ‘I paradossi della tipizzazione: i “contratti” di lavoro intermittente’ in various authors, Diritto del lavoro. I nuovi problemi. Studi in onore di Mattia Persiani, vol II (Cedam, 2005) 857; D Gottardi, ‘Lavoro intermittente’ in E Gragnoli and A Perulli (eds), La riforma del mercato del lavoro e i nuovi modelli contrattuali. Commentario al decreto legislativo 10 settembre 2003, n. 276 (Cedam, 2004) 471. 57  A Mattei, ‘La continuità del lavoro intermittente’ in G Zilio Grandi and M Biasi (eds), Commentario breve alla riforma ‘Jobs Act’ (Cedam, 2016) 653; F Lunardon, ‘Il lavoro intermittente’ in L Fiorillo and A Perulli (eds), Tipologie contrattuali e disciplina delle mansioni. Decreto legislativo 15 giugno 2015, n. 81 (Gippichelli, 2015) 75–93; R Voza, ‘Gli ennesimi ritocchi alla disciplina del lavoro intermittente’ in E Ghera and D Garofalo (eds), Contratti di lavoro, mansioni e misure di conciliazione vita-lavoro nel Jobs Act 2 (Cacucci, 2015) 220. 58  Art 13(4) Legislative Decree No 81 of 2015. 59  Art 16(5) Legislative Decree No 81 of 2015. 60  L De Angelis, ‘Lavoro intermittente senza obbligo di risposta alla chiamata: contratto senza contratto’, Argomenti di diritto del lavoro, 885 (2004); L Corazza, ‘Lavoro intermittente senza obbligo di risposta e principi comunitari in tema di discriminazioni indirette’, Massimario di Giurisprudenza del Lavoro, 185 (2005). 55  Art

Atypical Employment Relationships: The Position in Italy 473 The use of this type of contract is subject to several limitations. First of all, an intermittent contract may only be used when specific needs of the employer, as indicated in the collective bargaining agreement (including with reference to the possibility of performing work in predetermined periods over the week, the month or the year), arise.61 In the absence of a collective bargaining agreement, the cases of legitimate use of such contracts are provided in a decree of the Ministry of Labour and Social Affairs. Such a contract may be concluded without the aforementioned limitations, if the workers are over 55 years old or under the age of 24.62 With the exception of the tourism sector, public commercial establishments and entertainment, intermittent contracts between the same employee and the same employer are permissible for a period not exceeding 400 days of effective work over three calendar years.63 In case of violations of the aforesaid limit, the intermittent contract will be transformed (by judicial order) into a full-time employment contract of indefinite duration. Moreover, intermittent contracts may not be concluded: (i) in order to replace workers who are on strike; (ii) within six months by productive units in which collective dismissals have taken place (ie hiring such workers for the posts that have been affected by the collective dismissal); (iii) by productive units profiting from ongoing programmes of the Wage Integration Fund (for posts covered by the programme); (iv) if the relevant employer has not carried out a risk assessment in application of the legislation protecting workers’ health and safety.64 Intermittent contracts must be concluded in writing to provide evidence (in form ad probationem) of several elements such as: i) the duration of the contract (since on-call jobs may also be fixed-term); ii) the reason permitting the conclusion of such a contract; iii) the place of work and the rules concerning availability, if guaranteed by the employee; iv) the economic and normative treatment of the worker.65 With reference to the periods of effective work, the intermittent employee shall enjoy working terms and conditions that are not less favourable than those which workers who perform the same tasks are entitled to.66 G. Collective Bargaining Agreements Deviating from Statutory Provisions Company collective agreements signed pursuant to the aforementioned Article 8 of Decree Law No 138 of 2011 (converted into law by Act 61 

Art 13(1) Legislative Decree No 81 of 2015. Art 13(2) Legislative Decree No 81 of 2015. 63  Art 13(3) Legislative Decree No 81 of 2015. 64  Art 14 Legislative Decree No 81 of 2015. 65  Art 15(1) Legislative Decree No 81 of 2015. 66  Art 17(1) Legislative Decree No 81 of 2015. 62 

474  Edoardo Ales, Antonio Riccio and Antonio Riefoli No 148/2011) may also derogate from the rules on part-time work contained in Legislative Decree No 81 of 2015. As for fixed-term contracts, derogations from existing legal provisions are without prejudice to the constitutional principles and to the constraints arising from Community rules67 and from the International Labour Conventions.68 IV.  TEMPORARY AGENCY WORK

A.  Legal Definitions/Formal Requirements The regulations on temporary agency work are currently contained in Articles 30 to 40 of Legislative Decree No 81 of 2015,69 which consolidate, with some modifications, the regulations already provided for in Legislative Decree No 276 of 2003 as modified by Act No 78 of 2014.70 However, some provisions concerning temporary agency work, such as those setting out the legal and financial requirements of agencies, are still contained in Legislative Decree No 276 of 2003 (Articles 2, 4, 5, 6 and 7). Furthermore, some of the above-mentioned provisions of Legislative Decree No 81 of 2015 have been recently modified by Decree Law No 87 of 2018, converted (with amendments) into Law No 248 of 2018. Temporary agency work is a twofold contractual relationship: an employment contract, concluded between the temporary agency worker and the temporary work agency; and a trade contract, named the Temporary Agency

67  See Directive 97/81/EC—Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC. 68  See ILO Convention on Part-Time Work 1994 (No 175). 69  V Filì and A Riccardi, ‘La somministrazione di lavoro’ in E Ghera and D Garofalo (eds), Contratti di lavoro, mansioni e misure di conciliazione vita-lavoro nel Jobs Act 2 (Cacucci, 2015) 293; F Furlan, ‘La somministrazione di lavoro all’indomani del Jobs Act’ in G Zilio Grandi and M Biasi (eds), Commentario breve alla riforma ‘Jobs Act’ (Cedam, 2016) 599; M Lamberti, ‘La somministrazione di lavoro’ in L Fiorillo and A Perulli (eds), Tipologie contrattuali e disciplina delle mansioni. Decreto Legislativo 15 giugno 2015, n. 81 (Giappichelli, 2015); M Aimo, ‘La nuova disciplina su lavoro a termine e somministrazione a confronto con le direttive europee: assolto il dovere di conformità?’, Giornale di diritto del lavoro e delle relazioni industriali, 635 (2015). 70  F Bano, ‘La somministrazione di lavoro’ in A Perulli (ed), Impiego flessibile e mercato del lavoro, (Giappichelli, 2004) 1; O Bonardi, ‘La somministrazione di lavoro, artt. 20–26’ in G Ghezzi (ed), Il lavoro tra progresso e mercificazione (Ediesse, 2004) 113; MT Carinci, ‘La somministrazione di lavoro altrui’ in MT Carinci and C Cester (eds), Somministrazione, comando, appalto, trasferimento di azienda, in F Carinci (directed by), Commentario al D.lgs. 10 settembre 2003 n. 276 (Ipsoa, 2004) 5; Del R Punta, ‘Le nuove regole dell’outsourcing’ in various authors, Studi in onore di Giorgio Ghezzi (Cedam, 2005) 625; P Ichino, ‘Somministrazione di lavoro, appalto di servizi, distacco’ in M Pedrazzoli (ed), Il nuovo mercato del

Atypical Employment Relationships: The Position in Italy 475 Work Contract, concluded between the temporary work agency and the user undertaking. Within the framework of a Temporary Agency Work Contract, an authorised temporary work agency may provide a user undertaking, for a fixed or indefinite term, with one or more employees who perform work for the user undertaking under its supervision and direction.71 If not otherwise provided by the applicable collective agreement, the number of agency workers working under an open-ended contract at the user undertaking shall not exceed 20 per cent of the total employment contracts of indefinite duration in place on 1 January of each year.72 Only workers hired indefinitely by the temporary work agency may be assigned under an indefinite Temporary Agency Work Contract. Indefinite Temporary Agency Work Contracts may not be used by public administrations. If not otherwise provided in the collective agreements applied by the user undertaking, the sum of fixed-term workers and agency workers working under a fixed-term contract cannot exceed 30 per cent of the number of workers with an indefinite contract employed by the user undertaking and in place on 1 January of each year.73 The Temporary Agency Work Contract must be concluded in writing and shall contain: (i) references to the authorisation released to the temporary work agency from the Ministry of Labour and Social Affairs; (ii) the number of workers to be provided; (iii) (where relevant) details of risks for their health and safety at the user undertaking; (iv) the starting date and the expected duration of the mission (‘assignment’ in the wording of the Directive 2008/104/EC); (v) tasks and professional qualifications of the workers; (vi) working time and workplace; and (vii) terms and conditions. If the Temporary Agency Work Contract has not been concluded in writing, it becomes null and void, and the temporary agency worker will be considered an employee of the user undertaking.74

lavoro (Zanichelli, 2004) 258; M Tiraboschi (ed), Le esternalizzazioni dopo la riforma Biagi. Somministrazione, appalto, distacco e trasferimento di azienda (Giuffré, 2006). 71 

Art 30 Legislative Decree No 81 of 2015. Art 31(1) Legislative Decree No 81 of 2015. 73  Art 31(2) Legislative Decree No 81 of 2015, as modified by by Decree Law No 87 of 2018. 74  V Filì and A Riccardi, ‘La somministrazione di lavoro’ in E Ghera and D Garofalo (eds), Contratti di lavoro, mansioni e misure di conciliazione vita-lavoro nel Jobs Act 2 (Cacucci, 2015) 316; F Furlan, ‘La somministrazione di lavoro all’indomani del Jobs Act’ in G Zilio Grandi and M Biasi (eds), Commentario breve alla riforma ‘Jobs Act’ (Cedam, 2016) 599; M Lamberti, ‘La somministrazione di lavoro’ in L Fiorillo and A Perulli (eds), Tipologie contrattuali e disciplina delle mansioni. Decreto Legislativo 15 giugno 2015, n. 81 (Giappichelli, 2015) 188. 72 

476  Edoardo Ales, Antonio Riccio and Antonio Riefoli Temporary Agency Work Contracts cannot be used:75 (i) to replace workers who are on strike;76 (ii) within six months by productive units in which a collective dismissal has taken place (ie hiring a temporary agency worker for the same post affected by the collective dismissal), excluding, however, contracts signed in order to replace temporarily absent employees and contracts whose initial duration does not exceed three months; (iii) by productive units profiting from ongoing programmes of the Wage Integration Fund (ie hiring a temporary agency worker for the same post covered by the programme); (iv) if the relevant employer has not carried out a risk assessment in application of the legislation protecting workers’ health and safety. B. Registrations, Licensing, Financial Guarantees, etc To operate in the labour market, temporary work agencies need to obtain an authorisation by the Ministry of Labour and Social Affairs; this authorisation is temporarily released upon determining the fulfilment of numerous legal and financial requirements. Two years after the commencement of the activity, the Ministry of Labour and Social Affairs may—upon the temporary work agency’s request—grant an authorisation to operate indefinitely after verifying the compliance with the legal obligations and collective agreement provisions as well as the proper performance of activities.77 The most significant legal requirements set out by law78 are: —— the establishment of the agency in the form of an Italian or EU capital company or co-operative; —— the agency’s legal seat or its productive unit in the territory of Italy or of an EU Member State; —— the availability of suitable premises and professional competence; —— the absence of criminal convictions of the legal representatives; —— ensuring that the activity is carried out at least in four Italian regions;

75  V Filì and A Riccardi, ‘La somministrazione di lavoro’ in E Ghera and D Garofalo (eds), Contratti di lavoro, mansioni e misure di conciliazione vita-lavoro nel Jobs Act 2 (Cacucci, 2015) 314. 76 See Corte di Cassazione, Labour Division, Judgment 16 December 2009, No 26368. See also A Stizia, ‘Potere organizzativo e condotta antisindacale: sostituzione di lavoratori scioperanti con non aderenti allo sciopero e sondaggio preventivo sull’adesione allo stesso’, Rivista italiana di diritto del lavoro, 422 (2008). 77 Art 4(2) Legislative Decree No 276 of 2003. P Tullini, ‘Agenzie per il lavoro’ in M ­Pedrazzoli (ed), Il nuovo mercato del lavoro (Zanichelli, 2004) 90; M Miscione, ‘Le agenzie per il lavoro’ in M Miscione and R Maurizio (eds), Organizzazione e disciplina del mercato del lavoro, in F Carinci, (directed by), Commentario al D.lgs. 10 settembre 2003 n. 276 (Ipsoa, 2004) 154. 78  Art 5 Legislative Decree No 81 of 2015.

Atypical Employment Relationships: The Position in Italy 477 —— regular payment of social security contributions; —— proof of the supply of temporary workers as the prevalent business objective. The most significant financial requirements provided by law79 are: —— acquisition of a share capital of no less than EUR 600,000; —— for the first two years of activity, the lodging of a security deposit of EUR 350,000 at a financial institution established in the European Union; —— from the third year of activity, a bank guarantee of no less than EUR 350,000 in place of the security deposit. C. Relationship between Temporary Agency Worker and Temporary Work Agency (i)  Fixed-Term and Part-Time Contracts The legal relationship between the temporary agency worker and the temporary work agency is an ordinary employment contract. Under Article 34 of Legislative Decree No 81 of 2015, it can be structured either as a fixed-term contract or as an open-ended contract. Moreover, the employment contract can be either a full-time or a part-time one. (ii)  Rights and Obligations/Liability If the temporary work agency hires the worker indefinitely, the regulations on employment contracts of indefinite duration apply. The individual employment contract shall indicate the amount of the grant the temporary work agency has to pay to the temporary agency worker during the period s/he is on standby for the assignment. The grant is determined in the collective agreement applied to the temporary work agency but cannot in any case be lower than that indicated by decree of the Ministry of Labour and Social Affairs.80 If the temporary work agency hires the worker on a fixed-term basis, the above-examined regulations on fixed-term contracts (Articles 19 to 29 of Legislative Decree No 81 of 2015), as recently modified by Decree Law No 87 of 2018, apply, with the exception of Articles 21(2), 23 and 24.81 Therefore, the following are not applicable to the fixed-term employment contract between the temporary work agency and the agency worker: (i) the obligation to respect specific intervals between the contracts in case of renewal 79 

Art 5 Legislative Decree No 81 of 2015. Art 34(1) Legislative Decree No 81 of 2015. 81  Art 34(2) Legislative Decree No 81 of 2015, as modified by Decree Law No 87 of 2018. 80 

478  Edoardo Ales, Antonio Riccio and Antonio Riefoli (namely, 10 days if the first contract has a duration of less than six months, or 20 days if the first contract has a duration of more than six months); (ii) the rules that provide for an overall maximum number of fixed-term contracts that may be concluded; (iii) the rules that provide for a priority, in favour of the fixed-time worker, in case of new hiring of permanent employees. Instead, some of the most important regulations introduced by Decree Law No 87 of 2018 apply to the fixed-term contract between the temporary work agency and the temporary agency worker and, in particular, the provision that sets the maximum duration of the contract at 24 months and the provision under which a fixed-term contract lasting more than 12 months (as well as every renewal, regardless of the duration of the contract) may be concluded only if one of the objective reasons indicated by the law occurs. However, this last provision, concerning the conditions of valid conclusion of the contract, finds a peculiar application within the temporary agency work, since the law provides that it shall apply exclusively to the user undertaking:82 therefore, it seems that the obligation to indicate the objective reasons that allow the stipulation (or renewal) of the fixed-term contract between the agency and the worker lies with the user undertaking.83 As regards the extension of the initially agreed duration of the fixed-term contract, a specific regulation is contained in Article 34(2) of Legislative Decree No 81 of 2015, under which such an extension is allowed, with the consent of the worker and in writing, in the cases and for the number of times laid down in the collective agreement applied to the temporary work agencies.84 The temporary work agency is required to pay the worker’s salary and social security contributions but the user undertaking and the temporary work agency are jointly and severally liable for the wages and social security contributions due for each temporary agency worker. The user may recoup these from the temporary work agency.85

82 

Art 2(1-ter) Decree Law No 87 of 2018, added by the conversion Law No 248 of 2018. Passalacqua, ‘Il contratto di lavoro subordinato a tempo determinato e la somministrazione di lavoro alla prova del decreto dignità’, WP CSDLE ‘Massimo D’Antona’ IT— 380/2018, p. 38 ss.; V Filì and A Riccardi, ‘La somministrazione di lavoro’ in E Ghera and D Garofalo (eds), Contratti di lavoro, mansioni e misure di conciliazione vita-lavoro nel Jobs Act 2 (Cacucci, 2015) 323; F Furlan, ‘La somministrazione di lavoro all’indomani del Jobs Act’ in G Zilio Grandi and M Biasi (eds), Commentario breve alla riforma ‘Jobs Act’ (Cedam, 2016) 619. 84 The National Collective Agreement on the category of temporary work agencies, currently in force, provides for a maximum number of six extensions, which may be increased to eight in some specific cases. 85  Art 35(2) Legislative Decree No 81 of 2015. F Bano, ‘Art 23. Tutela del prestatore di lavoro, esercizio del potere disciplinare e regime della solidarietà’ in E Gragnoli and A Perulli (eds), La riforma del mercato del lavoro e i nuovi modelli contrattuali (Cedam, 2004) 350; S Ciucciovino, ‘Tutela del prestatore di lavoro, esercizio del potere disciplinare e regime della solidarietà’ in MT Carinci and C Cester (eds), Somministrazione, comando, appalto, trasferimento d’azienda, in F Carinci (directed by), Commentario al D.lgs. 10 settembre 2003 n. 276 (Ipsoa, 2004) 97. 83 P

Atypical Employment Relationships: The Position in Italy 479 The temporary work agency exercises disciplinary power over the agency workers: to this end, the user undertaking communicates the facts to be contested against the worker(s) to the agency.86 The temporary work agency shall also inform the workers of any risks relating to health and safety generally connected with their activity at the user undertaking and must train and instruct them about the use of the equipment to perform the specific work they have been hired for.87 The Temporary Agency Work Contract may stipulate that these requirements must be fulfilled by the user undertaking. (iii)  Dismissal Protection Temporary agency workers enjoy the same protection against dismissal provided for by law for ‘ordinary’ workers. However, the rules on collective dismissals contained in Articles 4 and 24 of Act No 223 of 1991 (implementing Directive 98/59/EC) do not apply in case of termination of openended temporary agency work contracts.88 D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship Legislative Decree No 81 of 2015 does not indicate the legal relationship type between the temporary agency worker and the user undertaking. That relationship has a legal, rather than purely factual nature, since it becomes a source of specific rights and obligations for both parties as an effect of the Temporary Agency Work Contract. (ii)  Rights and Obligations/Liability An employee hired by a temporary work agency must perform his/her work for the user undertaking, which is entitled to benefit from the worker’s services and to exercise its managerial and directive power over the agency worker. As underlined above, the user undertaking and the temporary work agency are jointly and severally liable for the wages and social security contributions due for each temporary agency worker.89 86 

Art 35(6) Legislative Decree No 81 of 2015. Art 35(4) Legislative Decree No 81 of 2015. 88  Art 34(4) Legislative Decree No 81 of 2015. 89  V Filì and A Riccardi, ‘La somministrazione di lavoro’ in E Ghera and D Garofalo (eds), Contratti di lavoro, mansioni e misure di conciliazione vita-lavoro nel Jobs Act 2 (Cacucci, 2015) 324; M Lamberti, ‘La somministrazione di lavoro’ in L Fiorillo and A Perulli (eds), Tipologie contrattuali e disciplina delle mansioni. Decreto Legislativo 15 giugno 2015, n. 81 (Giappichelli, 2015) 194. 87 

480  Edoardo Ales, Antonio Riccio and Antonio Riefoli The user undertaking shall inform the temporary agency workers about any vacancies.90 (iii)  Health and Safety The user undertaking must apply the same requirements provided by law (Legislative Decree No 81 of 2008) and collective agreements on the protection of health and safety of its employees to temporary agency workers.91 E. Relationship between Temporary Work Agency and User Undertaking As underlined above, the relationship between the temporary work agency and the user undertaking is based on the Temporary Agency Work Contract, which is a special trade contract fully and strictly regulated by law (see ­Articles 30 to 33 of Legislative Decree No 81 of 2015). F. Rights and Status of Temporary Agency Worker (i)  Equal Treatment For the entire duration of their assignment, temporary agency workers shall generally enjoy working terms and conditions that are not less favourable than those the workers directly employed by the user undertaking and performing tasks of the same professional level are entitled to.92 Under Article 2(1)(a-ter) of Legislative Decree No 276 of 2003,93 working and employment terms and conditions refer to the conditions stipulated in legislation, regulations, administrative provisions, collective agreements and/or other binding general provisions in force in the user undertaking relating to: i) the duration of working time, overtime, breaks, rest periods,

90 

Art 31(3) Legislative Decree No 81 of 2015. P Pascucci, ‘Dopo la legge n. 123 del 2007. Titolo I del d.lgs. 9 aprile 2008, n. 81 in materia di tutela della salute e della sicurezza nei luoghi di lavoro’, WP CSDLE ‘Massimo D’Antona’ IT—73/2008, p 35; M Lai, ‘La sicurezza del lavoro nelle nuove tipologie contrattuali’, Diritti Lavori Mercati, 99 (2005); M Tiraboschi, ‘Campo di applicazione e tipologie contrattuali’ in M Tiraboschi, (eds), Il testo unico della salute e sicurezza nei luoghi di lavoro. Commentario al decreto legislativo 9 aprile 2008, n. 81 (Giuffrè, 2008) 65. 92  Art 35(1) Legislative Decree No 81 of 2015. O Rymkevitch, ‘Somministrazione di lavoro e prospettive di uniformazione a livello internazionale e comunitario’ in M Tiraboschi (eds), Le esternalizzazioni dopo la riforma Biagi. Somministrazione, appalto, distacco e ­trasferimento díazienda (Giuffré, 2006) 74. 93  Introduced by Art 2(1)(b) of Legislative Decree No 24 of 2012 (implementing Directive 2008/104/EC). 91  See

Atypical Employment Relationships: The Position in Italy 481 night work, holidays and public holidays; ii) pay; and iii) protection of ­pregnant and nursing women; protection of children and the young; equal treatment between men and women; other anti-discrimination rules. Violations of the equal treatment principle between temporary agency workers and workers directly employed by the user undertaking are punished with an administrative fine ranging between EUR 250 to EUR 1,250.94 Temporary agency workers are entitled to enjoy same the social and welfare services provided by the user undertaking to its employees engaged in the same productive unit.95 (ii)  Other Matters In case of violation of limits and conditions above indicated, as provided for in Articles 31(1) and (2), 32 and 33(1)(a), (b), (c) and (d) of Legislative Decree No 81 of 2015, the temporary agency worker can file a lawsuit in order to request the establishment (by judicial order) of the employment relationship with the user undertaking from the commencement of the assignment.96 This rule does not apply to public administrations.97 The worker who deems the Temporary Agency Work Contract unlawful shall, under penalty of forfeiture, challenge it in writing within 60 days from the date on which the worker ceased to carry out his activity at the user undertaking. The act of challenge requires no formalities. It serves only to acquaint the employer with employee’s intention to challenge the contract. The act of challenge will be ineffective if, within 180 days from the date of dispatch, the worker does not lodge a claim in court or does not communicate to the employer the request for a conciliation or arbitration procedure. If the employer will not accept the request for conciliation and arbitration or no agreement has been reached within it, the employee shall lodge the claim within 60 days from such refusal or failure to agree, under penalty of forfeiture.98 If the judge accepts the worker’s claim, declaring the establishment of the employment relationship with the user undertaking, s/he will instruct the user undertaking to pay compensation in the form of an all-encompassing compensation, amounting to a minimum of 2.5 months’ up to a maximum of 12 months’ wages, excluding occasional grants and reimbursements.99

94 

Art 40(2) Legislative Decree No 81 of 2015. Art 35(3) Legislative Decree No 81 of 2015. 96  Art 38(2) Legislative Decree No 81 of 2015. 97  Art 38(4) Legislative Decree No 81 of 2015. See E Ales, ‘L’utilizzo temporaneo del lavoro subordinato nelle pubbliche amministrazioni’ in R Del Punta and R Romei (eds), I rapporti di lavoro a termine (Giuffrè, 2013) 455. See also, Corte di Cassazione, Labour Division, ­Judgment 20 June 2012, No 10127; Corte Costituzionale, Judgment 27 March 2003, No 89. 98  Art 39(1) Legislative Decree No 81 of 2015. 99  Art 39(2) Legislative Decree No 81 of 2015. 95 

482  Edoardo Ales, Antonio Riccio and Antonio Riefoli Decree Law No 87 of 2018 has recently reintroduced the crime of fraudulent temporary agency work, which had been repealed by Legislative Decree No 81 of 2015. According to the new Article 38-bis of Legis­ lative Decree No 81 of 2015, introduced by Decree Law No 87 of 2018, in fact, when temporary agency work is used for the specific purpose of circumventing mandatory provisions expressed by law or by collective agreements, the temporary work agency and the user undertaking are punishable with a (criminal) fine of EUR 20 for each worker involved and for each day of assignment. Temporary agency workers shall be informed about vacancies at the user undertaking in order to have the same opportunities as other workers employed by the user undertaking to obtain an employment contract of indefinite duration. Information may also be provided in the form of a ­written notice posted within the premises of the user undertaking.100 G. Information and Consultation/Representation of Temporary Agency Worker According to Article 36(1) of Legislative Decree No 81 of 2015, agency workers are entitled to the trade union rights provided for in Act No 300 of 1970 (Workers’ Statute). Moreover, temporary agency workers are entitled to exercise all trade union rights of freedom and activity, including participation in meetings of the user undertaking’s staff throughout the entire duration of their assignment.101 Every 12 months, the user undertaking shall communicate to the trade unions both the number and duration of temporary agency work contracts concluded and the number and qualifications of temporary agency workers.102 However, it is worth pointing out that, with the sole exception of regulations concerning health and safety at work, temporary agency workers are not considered part of the user undertaking’s staff for the purpose of applying any regulation provided for by law or by collective agreements for which

100 

Art 31(3) Legislative Decree No 81 of 2015. 36(2) Legislative Decree No 81 of 2015. V Filì and A Riccardi, ‘La somministrazione di lavoro’ in E Ghera and D Garofalo (eds), Contratti di lavoro, mansioni e misure di conciliazione vita-lavoro nel Jobs Act 2 (Cacucci, 2015) 328; M Lamberti, ‘La s­ omministrazione di lavoro’ in L Fiorillo and A Perulli (eds), Tipologie contrattuali e disciplina delle ­mansioni. Decreto Legislativo 15 giugno 2015, n. 81 (Giappichelli, 2015) 199. 102  Art 36(3) Legislative Decree No 81 of 2015. 101  Art

Atypical Employment Relationships: The Position in Italy 483 the total number of employees is relevant, including the regulation on the duty of information and consultation provided for by Legislative Decree No 25 of 2007. H. Strikes As emphasised above, temporary agency workers are entitled to exercise all trade union rights, including the right to strike.103 I. Collective Bargaining Agreements Deviating from Statutory Provisions Collective agreements play a significant role within the legal framework of temporary agency work. In fact, as highlighted above, Legislative Decree No 81 of 2015 assigns to collective bargaining the task of regulating important aspects of the discipline. Beyond the cases expressly provided by law, however, no deviation in peius (ie to the detriment of the worker) from the statutory provisions is permitted in collective bargaining.

103  MP Monaco, ‘I diritti sindacali dei lavoratori somministrati’ in MT Carinci and C Cester (eds), Somministrazione, comando, appalto, trasferimento di azienda in F Carinci (directed by), Commentario al D.lgs. 10 settembre 2003 no 276 (Ipsoa, 2004) 121.

484

18 Atypical Employment Relationships: The Position in Latvia KRISTĪNE DUPATE

I. INTRODUCTION

L

ATVIAN LABOUR LAW only recognises and regulates three types of atypical employment—fixed-term work, part-time work and temporary agency work. The primary legal act regulating atypical employment is the Labour Code.1 II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements Labour law provides an exhaustive list of cases in which a person may be employed on the basis of a fixed-term contract. Article 44(1) of the Labour Code permits fixed-term employment contracts for the following activities and circumstances: —— Seasonal work; —— Work in areas where an employment contract is usually not entered into for an unspecified period, taking into account the nature of the relevant occupation or the temporary nature of the relevant work; —— Replacement of an employee who is absent or suspended from work, as well as replacement of an employee whose permanent position has become vacant until a new employee is hired; —— Casual work that is not usually performed in the employing undertaking; —— Specified temporary work related to short-term expansions of the undertaking’s scope of work or to an increase in the level of production;

1 

Darba likums, Official Gazette No 105, 6 July 2001.

486  Kristīne Dupate —— Emergency work to tackle the consequences caused by force majeure, an unexpected event or other exceptional circumstances which adversely affect or may affect the normal course of activities in an undertaking; —— Temporary paid work intended for an unemployed person, or other work related to his/her participation in active employment measures, or work related to the implementation of active employment measures; —— The work of a student participating in a professional or academic programme, if it is connected with preparing him/her for work in a profession. The work and circumstances defined in Article 44(1) and (2) of the Labour Code are further specified in the Regulations of the Cabinet of Ministers, leaving almost no room for interpretation about what type of work is considered seasonal2 and in which fields of employment a fixed-term contract is not normally concluded.3 B.  Lawful Stipulation of the Contractual Terms According to Article 44(4) of the Labour Code, a fixed-term contract must indicate the date of the expiration of the contract or specify the occurrence of events determining the end of the fixed-term contract. If no date or conditions are specified, then the contract is considered one of indefinite duration (Article 44(5)). The same applies to fixed-term employment contracts concluded for work in areas in which fixed-term work contracts are not permissible by law.4 Article 45(1) of the Labour Code provides that the total duration of a fixed-term employment contract may not exceed five years, including extensions, unless another maximum duration is stipulated in some other legal Act. Where an employer concludes a new contract with a worker previously employed on a fixed-term basis within 60 days after the termination of the previous one, the new contract will be considered an extension of the fixed-term employment contract. In the view of labour law experts, such conditions apply irrespective of whether the employee is employed 2  Currently, the Cabinet of Ministers Regulation No 272 ‘Regulation on seasonal types of work’ (Noteikumi par sezonas rakstura darbiem), Official Gazette No 98, 2 July 2002. 3  Currently, the Cabinet of Ministers Regulation No 353 ‘Regulation on work in areas in which employment contracts are not usually entered into for a fixed term’ (Noteikumi par darbiem jomās, kurās darba līgums parasti netiek slēgts uz nenoteiktu laiku), Official Gazette No 116, 15 August 2008. 4  See also the Supreme Court of Latvia, compilation of court practice ‘On the application of law in the adjuducation of disputes arising from terminations or amendments of an employment contract’, 2004, p 14, available in Latvian at: http://at.gov.lv/lv/judikatura/tiesu-praksesapkopojumi/civiltiesibas/ (accessed 24 May 2017).

Atypical Employment Relationships: The Position in Latvia 487 based on successive employment contracts for the same or for another post with the same employer.5 Regarding seasonal work, a fixed-term employment contract may not last longer than 10 months per year (Article 45(2)). Furthermore, Article 45(3) of the Labour Code specifies that if a fixedterm employment contract has been concluded for the purpose of replacing another employee, it may exceed the maximum term of five years provided in Article 45(1). However, if the replaced employee does not eventually resume work, the employment contract of the individual replacing the employee must be considered a contract of indefinite duration. The Supreme Court of Latvia has held that, in principle, any conversion of contracts of indefinite duration into fixed-term contracts is prohibited. It stated that the Labour Code does not provide for such a right and— since Article 6 prohibits the introduction of any less favourable employment terms in employment contracts, internal rules or collective agreements than are provided for in law—such conversions are illegal, save in specific cases regulated by law, ie in case of amendments to the law permitting the conclusion of fixed-term contracts only with a specific category of employees.6 C.  Termination/End of Fixed-Term Contracts According to Article 113 of the Labour Code, a fixed-term contract ends on the date indicated in the employment contract. If an employment contract is concluded until the occurrence of a specific event, the employer has the obligation to inform the employee about the occurrence of the respective event in writing no later than two weeks before the fixed-term contract ends. At the same time, however, as held by the Senate of the Supreme Court, failure to notify the employee in writing in due time, ie two weeks before the end of the contract, does not automatically lead to a conversion of the fixed-term contract into a contract of indefinite duration.7 The fact that a fixed-term contract is concluded for a particular period does not restrict an employer from terminating the contract before the specified term

5 See Bureau of Sworn Attorneys BDO Zelmenis & Liberte, Comments on the Labour Code, (Confederation of Free Trade Unions, 2010) p 108. 6  The Supreme Court of Latvia, compilation of court practice ‘On the application of law in the adjuducation of disputes arising from terminations or amendments of an employment contract’, 2004, p 14, available in Latvian at: http://at.gov.lv/lv/judikatura/tiesu-prakses-apkopo jumi/civiltiesibas/ (accessed 23 May 2017). 7  The Supreme Court of Latvia, compilation of court practice ‘On the application of law in the adjuducation of disputes arising from terminations or amendments of an employment contract’, 2004, p 15, available in Latvian at: http://at.gov.lv/lv/judikatura/tiesu-prakses-apkopo jumi/civiltiesibas/ (accessed 24 May 2017). See also Bureau of Sworn Attorneys BDO Zelmenis & Liberte, Comments on the Labour Code (Confederation of Free Trade Unions, 2010) p 106.

488  Kristīne Dupate based on legally stipulated grounds for dismissal as provided in Article 101 of the Labour Code. This follows from the principle of equal treatment between fixed-term and permanent employees as stipulated in Article 44(6).8 According to Article 45(4), if neither of the parties to the employment contract expresses an interest in terminating the employment relationship at the time of expiry of the term, the fixed-term employment contract will be considered to have been converted into one of indefinite duration. The Senate of the Supreme Court has clarified the application of Article 45(4) in cases in which the expiration date of a fixed-term contract coincides with a bank holiday. It held that in such a case (expiration date 31 December 2002), the date of expiration of the employment contract will be the first working day following the bank holiday (in this case, 6 January 2003). The claimant may not in such circumstances claim that his/her employment relationship factually continues and that his/her fixed-term contract must be considered a contract of indefinite duration.9 This regulation is based on Article 16(5) of the Labour Code, which stipulates the general conditions for the calculation of terms, and provides that when an end date of a term coincides with a day off or a bank holiday, the end of the term shall occur on the first working day following the day off or the bank holiday. The Senate has furthermore held that an extension of the expiry date of a fixed-term contract by mutual consent between the employer and the employee cannot be regarded as a conclusion of a contract of indefinite duration, but only an amendment to an existing fixed-term contract, which accordingly expires on the (new) date agreed upon.10 Article 109 prohibits issuing notices of dismissal during sick leave or other justified absences. According to the Supreme Court, such a restriction is not applicable if a fixed-term contract expires during the employee’s leave or other justified absence.11 If a dispute arises on the validity of a fixed-term contract, ie if the claim is based on Article 113 of the Labour Code, a court is required to examine whether a legal ground for the conclusion of a fixed-term contract existed in

8 See Bureau of Sworn Attorneys BDO Zelmenis & Liberte, Comments on the Labour Code (Confederation of Free Trade Unions, 2010) p 108. 9 The decision of the Senate of the Supreme Court of 9 February 2005 in case No SKC-53/2005, available in Latvian at: http://at.gov.lv/lv/judikatura/judikaturas-nolemumuarhivs/senata-civillietu-departaments/klasifikators/darba-tiesibas/3darba-likums-n/ (accessed 23 May 2017). 10 The decision of the Senate of the Supreme Court of 17 October 2012 in case No SKC-1618/2012, available in Latvian at: http://at.gov.lv/lv/judikatura/judikaturas-nolemumuarhivs/senata-civillietu-departaments/klasifikators/darba-tiesibas/3darba-likums-n/ (accessed 23 May 2017). 11  The Supreme Court of Latvia, compilation of court practice ‘On the application of law in the adjuducation of disputes arising from terminations or amendments of an employment contract’, 2004, p 15, available in Latvian at: http://at.gov.lv/lv/judikatura/tiesu-prakses-apkopo jumi/civiltiesibas/ (accessed 23 May 2017).

Atypical Employment Relationships: The Position in Latvia 489 the particular case, namely, whether that contract stipulates the end date or the occurrence of events indicating the end of the contract and whether the relevant circumstances correspond to the facts of the case.12 D.  Rights and Status of Fixed-Term Employee (i)  Equal Treatment Article 44(6) of the Labour Code implements Directive 1999/70/EC and requires the same employment conditions to apply to fixed-term employees as to permanent employees. The substance of the right to equal treatment is not regulated in more detail. (ii)  Employment Opportunities Article 44(7) of the Labour Code requires employers to inform fixed-term workers of any permanent vacancies in the undertaking. No relevant case law exists on the application of this provision; however, it is generally assumed that the employer has an obligation to share with fixed-term workers all relevant information on vacancies which may be suitable, taking into account their qualifications, education and work experience. Further, it is recommended to provide such information in writing, taking into account the fact that in case of a labour dispute before a court, the burden of proof lies with the employer.13 (iii)  Other Matters No other legal Acts include specific provisions for fixed-term workers. E.  Information and Consultation According to the equal treatment and equal rights obligation under Article 44(6) of the Labour Code, fixed-term employees enjoy the same information and consultation rights as permanent employees. In addition, according to Article 44(7), an employer has the obligation to inform workers’

12  The Supreme Court of Latvia, compilation of court practice ‘On the application of law in the adjuducation of disputes arising from terminations or amendments of an employment contract’, 2004, p 14, available in Latvian at: http://at.gov.lv/lv/judikatura/tiesu-praksesapkopojumi/civiltiesibas/ (accessed 24 May 2017). 13  See also Bureau of Sworn Attorneys BDO Zelmenis & Liberte, Comments on the Labour Code (Confederation of Free Trade Unions, 2010) p 107.

490  Kristīne Dupate representatives of the possibility of employing fixed-term employees indefinitely, if sharing such information is required. Article 10 provides the general conditions for the right to employee representation to foster employees’ economic and social rights. Employees employed by an undertaking with at least five employees are entitled to employee representation. According to Article 10(5), when calculating the number of total workers employed by the undertaking, fixed-term employees must be taken into account. F.  Specific Provisions There are a few specific exemptions with regard to fixed-term contracts apart from those provided in Article 44(1). Article 27(5) of the Law on Higher Education Establishments14 provides that restrictions on concluding successive fixed-term contracts as provided in Article 45(1) of the Labour Law are not applicable to academic staff, and that a fixed-term employment contract with a duration of six years must be concluded between the Dean of an establishment of higher education and academic staff (professors, associate professors, docents, lecturers, assistants). It is questionable whether such a provision complies with Directive 1999/70/EC in the light of the ECJ judgment in case Samohano,15 because the need for academic staff is fixed and permanent. According to an interpretation of Directive 1999/70/EC provided by the ECJ, an objective justification for the existence of fixed-term employment taking into account ‘precise and concrete circumstances characterising the given activity’ does not suffice, it must also be proven that the need addressed is neither fixed nor permanent.16 Provisions under the Public Agencies Law17 stipulate that a director of a municipal or state agency must be appointed to his/her post by the respective municipality or minister for a term of five years (Articles 9(4) and 21(4)). The collision between said provisions and Article 45(1) of the Labour Code has been reviewed by the Supreme Court, which found that the Public Agencies Law is lex specialis in relation to the Labour Code, and thus restrictions on successive fixed-term agreements do not apply to public agency directors.18 14 

Augstskolu likums, Official Gazette No 179, 17 November 1995. ECJ decision in Case C-190/13, Antonio Márquez Samohano v Universitat Pompeu Fabra, ECLI:EU:C:2014:146. 16  ibid, paras 45 and 55. 17  Publisko aģentūru likums, Official Gazette No 199, 18 December 2009. 18 The decision of the Senate of the Supreme Court of 9 February 2011 in case No SKC-283/2011, available in Latvian at: http://at.gov.lv/lv/judikatura/judikaturas-nolemumuarhivs/senata-civillietu-departaments/klasifikators/darba-tiesibas/3darba-likums-n/ (accessed 13 July 2016). 15  The

Atypical Employment Relationships: The Position in Latvia 491 G. Collective Bargaining Agreements Deviating from Statutory Provisions According to Article 6 of the Labour Code, the collective agreements may only provide more favourable terms than the minimum rights provided by law and may not be less favourable than the terms included in an employment contract. III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements Article 134(1) of the Labour Code stipulates that an employer and an employee may agree on part-time work which is shorter than the normal daily or weekly working time. Conversely, Article 131(1) provides that the regular daily working hours may not exceed eight hours per day, though the normal weekly working hours (40 hours) may be exceeded. B.  Opportunities for/Right to Part-Time Work It follows from Article 134(1) of the Labour Code that there is generally no right to part-time employment, considering that Article 131 stipulates that normal working time is full-time work (eight hours per day and 40 hours per week) and, secondly, part-time work must be mutually agreed; thus an employee does not have the right to demand part-time employment in general. This conclusion also follows from Article 134(5), which provides that an employer has the obligation to offer a full-time employee who requests a reduction in working hours a part-time post, if such a possibility exists in the undertaking. Consequently, workers have the right to work part time only if such a possibility exists in the undertaking. The only categories of workers who have the right to be employed part time are pregnant workers, during a worker’s post-maternity leave—up to one year after giving birth or while nursing, and workers who have a child under the age of 14 or a disabled child under the age of 18 (Article 134(2)).

C.  Opportunities for/Right to an Extension of Working Time According to Article 134(5), an employer has the obligation upon request to offer a part-time worker full-time employment, if such a possibility exists in the undertaking.

492  Kristīne Dupate D.  Rights and Status of Part-Time Employee (i)  Equal Treatment Article 134(3) provides that a part-time worker shall enjoy equal treatment in terms of his/her employment conditions compared to a regular full-time employee. Neither legislation nor case law stipulates specific provisions on what constitutes a comparable full-time employee. Latvian legal sources also do not advocate the pro rata temporis principle. Case law on the treatment of part-time employees compared to full-time employees only exists in terms of working time. The Senate of the Supreme Court has held that requirements relating to overtime work for employees who work regular working hours as provided in Article 136, are not applicable to part-time employees. Consequently, if a part-time employee is required to work longer hours than agreed in the employment contract, such work would not be considered overtime work as regulated in Article 136, unless the extra working hours of part-time employees exceed normal (full-time) working hours. However, similarly to full-time employees (Article 136(2)), if an employer wishes to employ a part-time employee to perform additional hours of work (Article 134(7)), they must conclude a mutual written agreement.19 As held by the Senate of the Supreme Court, if part-time employees work additional working hours, they are not entitled to higher pay for those additional hours of work unlike full-time employees who work overtime20 and who, according to Article 68, have the right to 100 per cent additional pay or, in other words, 200 per cent pay for overtime work. The Senate of the Supreme Court has held that Article 135 is not applicable to part-time employees. The said provision stipulates that a working day before an official bank holiday has to be one hour shorter if the employment agreement, collective agreement or internal rules do not provide for a shorter working time.21 Neither of the decisions of the Senate provides a detailed analysis of why part-time and full-time employees are not considered equal in such situations.

19 The decision of the Senate of the Supreme Court of 28 March 2014 in case No SKC-1609/2014, available in Latvian at: http://at.gov.lv/lv/judikatura/judikaturas-nole mumu-arhivs/senata-civillietu-departaments/klasifikators/darba-tiesibas/3darba-likums-n/ (accessed 13 July 2016). 20  The Supreme Court of Latvia, Questions on the Application of the Labour Code, 2005, p 8, available in Latvian at: http://at.gov.lv/lv/judikatura/tiesu-prakses-apkopojumi/civiltiesibas/ (accessed 23 May 2017). 21  The Supreme Court of Latvia, Questions on the Application of the Labour Code, 2005, p 9, available in Latvian at: http://at.gov.lv/lv/judikatura/tiesu-prakses-apkopojumi/civiltiesibas/ (accessed 23 May 2017).

Atypical Employment Relationships: The Position in Latvia 493 (ii)  Dismissal Protection It follows from Article 134(3) that part-time employees are subject to the same general dismissal rules as full-time employees. As regards dismissals in response to a part-time employee’s refusal to work full time or vice versa, Article 134(4) stipulates that such refusal in itself does not constitute a valid ground for dismissal. This was reiterated by the Senate of the Supreme Court, however, the Court noted that according to Article 98(1) of the Labour Code, an employer has the right to give notice of dismissal one month in advance, stating that if an employee does not agree to changes to his/her employment contract, s/he will be dismissed. According to Article 101, the employer may also dismiss the employee on economic, organisational or technological grounds or due to a reorganisation of the undertaking.22 (iii)  Other Matters No other specific provisions are provided in the legal Acts. E.  Information and Consultation According to the obligation of equal treatment and equal rights enshrined in Article 134(3) of the Labour Code, part-term employees enjoy the same information and consultation rights. The Labour Code does not explicitly exclude any atypical employees for the purpose of calculating thresholds; thus all employees actually employed in an undertaking must be taken into account in the calculation of total employees. In addition, according to Article 134(6), an employer has an obligation to inform employee representatives of the possibility to employ employees either part time or full time, if such information is required from the employer. F.  Other Part-Time Arrangements There are no provisions stipulating other part-time work arrangements. G. Collective Bargaining Agreements Deviating from Statutory Provisions According to Article 6 of the Labour Code, collective agreements may only provide for better terms than the minimum rights stipulated in law 22 The decision of the Senate of the Supreme Court of 10 February2010 in case No SKC-309/2010 available in Latvian at: http://at.gov.lv/lv/judikatura/judikaturas-nolemumuarhivs/senata-civillietu-departaments/klasifikators/darba-tiesibas/3darba-likums-n/ (accessed 13 July 2016).

494  Kristīne Dupate and they may not be less favourable than provided in an employment contract. IV.  TEMPORARY AGENCY WORK

A.  Legal Definitions/Formal Requirements The law does not provide an explicit definition of temporary agency work or a temporary agency worker. However, the concept follows from Article 4 of the Labour Code, which stipulates that if an employment contract is concluded with a temporary work agency (darbspēka pakalpojuma sniedzējs; literal translation: a provider of workforce services) for the assignment of an employee for work and under the supervision of a user undertaking, that employer must be considered a ‘provider of workforce services’ (temporary work agency). Furthermore, Article 7(4) of the Labour Code states that an assignment for work for a user undertaking is of a temporary nature. B.  Registration, Licensing, Financial Guarantees Latvian law requires registration or licensing of any undertaking providing recruitment services, including ‘providers of workforce services’. According to the Cabinet of Ministers Regulation No 458,23 an entrepreneur interested in providing recruitment services must register with the State Employment Office, pay a licence fee, obtain a licence and comply with special requirements monitored by the State Employment Office. The director of the State Employment Office has the right to award, suspend or annul a licence. In order to qualify for a licence as a temporary work agency, the agency must comply with the following requirements: —— The business has been registered in accordance with the laws and regulations governing commercial activities; —— The business owner has registered his/her personal data in accordance with the laws and regulations on personal data protection (appointed and registered a personal data protection expert with the State Data Inspectorate or registered personal data); —— The business has no tax debts, nor is it in arrears for mandatory state social insurance contributions;

23  Procedures for Licensing and Supervision of Merchants—Providers of Work Placement Services (Komersantu—darbiekārtošanas pakalpojumu sniedzēju—licencēšanas un uzraudzības kārtība), Official Gazette No 108, 6 July 2007.

Atypical Employment Relationships: The Position in Latvia 495 —— No administrative infringements in the field of labour law, employment protection and consumer rights protection and no unfair commercial practices in the business’s activities have been registered over the last year; —— Insolvency of the business has not been declared, the business is not in the process of liquidation, the economic activity thereof has not been suspended or discontinued, nor have any legal proceedings been initiated with respect to the termination of the activity, insolvency or bankruptcy; —— The members of administrative bodies have not been sentenced for committing an intentional criminal offence against the life, health, fundamental rights and freedoms of an individual, the freedom, honour, dignity, morality and sexual inviolability and property of a person, or criminal offences against the national economy or in the state authority service, nor do they have a criminal record that has removed or extinguished criminal offences mentioned; —— The members of administrative bodies of the business have not been members of administrative bodies of a business whose licence has been previously cancelled. An employer who applies for a temporary work agency licence must indicate, among other data, what type of recruitment services it will provide and submit a sample agreement. In addition, Regulation No 458 provides that a temporary work agency has no right to request a fee from an employee for finding him/her employment at a user undertaking. C. Relationship between Temporary Agency Worker and Temporary Work Agency (i)  Fixed-Term and Part-Time Contracts There are no special provisions regulating fixed-term or part-time contracts of temporary work agency workers, therefore, the general rules governing such forms of employment apply. (ii)  Rights and Obligations/Liability According to Article 7(4) of the Labour Code, temporary work agencies have the obligation to provide temporary agency workers with the same work conditions and employment rights applicable to regular employees of the user undertaking, ie as though an employment contract had been directly concluded between the temporary agency worker and the user undertaking. Furthermore, Article 7(5) specifies that the work conditions and employment rights referred to in Article 7(4) concern working and leisure time,

496  Kristīne Dupate pay, the protection of pregnant workers and workers in their post-maternity leave—up to one year after giving birth or during the entire nursing period, restrictions on employment of children and adolescents, and the principle of equal treatment and non-discrimination. Article 961(2) specifies that during the assignment, the temporary agency worker has the right to use and enjoy the facilities of the user undertaking, ie the common facilities or transport services, etc, on an equal basis to regular employees of the user undertaking. Differentiated treatment is permissible in exceptional cases, if justified by objective factors. Article 40 of the Labour Code, regulating the information that must be provided in the employment contract in writing, states that additional information must be included in the contracts of temporary agency workers. Specifically, such a contract must expressly stipulate that an employer is a temporary work agency and that during the assignment the worker must comply with the user undertaking’s instructions as far as they do not contradict those provided by the employer (the temporary work agency). Article 961(3) bans any clause precluding or restricting the right of a temporary agency worker to conclude a direct employment agreement with a user undertaking. If such a clause exists, it is void. Furthermore, Article 74(7) of the Labour Code requires paying the temporary agency worker the statutory minimum monthly wage for any periods between assignments to user undertakings. (iii)  Dismissal Protection There are no special provisions regulating dismissal; therefore, the general rules governing dismissal apply. D. Relationships between Temporary Agency Worker and User Undertaking (i)  Legal Relationship Type The legal relationship between a temporary agency worker and a user undertaking is not explicitly defined by law. However, since a legal regulation (the Labour Code) stipulating the rights and obligations between said persons exists, it could be concluded that the respective relationship is regulated by law. (ii)  Rights and Obligations/Liability According to Article 28(6) of the Labour Code, if a temporary agency worker suffers loss and/or damage caused by the user undertaking during

Atypical Employment Relationships: The Position in Latvia 497 his/her employment with that user undertaking, the latter is liable for such loss and/or damage caused to the temporary agency worker according to the general rules on employers’ responsibility for losses and/or damages caused to an employee. According to Article 28(5), the same obligation applies to a temporary agency worker in case he/she suffers loss or damage. In addition, it follows from Article 961(2) that it is most likely also the user undertaking’s duty to ensure that a temporary agency worker is effectively given the right to use and enjoy the facilities of a user undertaking during his/her assignment. (iii)  Health and Safety Article 28(4) of the Labour Code stipulates that the provision of health and safety protection is an obligation of the user undertaking, with the exception of providing mandatory medical checks, which is an obligation of the temporary work agency as the actual employer. E. Relationship between Temporary Work Agency and User Undertaking There are no special provisions regulating the relationship between temporary work agencies and user undertakings; thus, their relationship is subject to general contract law. F.  Rights and Status of Temporary Agency Worker (i)  Equal Treatment Article 7(4) of the Labour Code states that the temporary work agency has the obligation to provide the same work conditions and employment rights for agency workers as are provided for the regular employees of the user undertaking. Temporary agency workers are to be treated as though the employment contract were directly concluded between the temporary agency worker and the user undertaking. Article 7(5) specifies that the work conditions and employment rights referred to in Article 7(4) concern, among other aspects of employment conditions, the observance of the principle of equal treatment and non-discrimination. It is, however, questionable how compliance with such obligations and the enforcement of rights could be effective in practice. (ii)  Other Matters No other special provisions exist.

498  Kristīne Dupate G. Information and Consultation/Representation of Temporary Agency Worker There are no specific provisions on information and consultation in general with regard to temporary agency workers. However, there are a few related norms. Article 10 provides the general conditions for the right to worker representation for the promotion of agency workers’ economic and social rights. The employees employed by an undertaking with at least five employees are entitled to the right to representation. According to Article 10(5), when calculating the total number of workers employed by an undertaking, the user undertaking must take the temporary agency workers into account. Article 11 provides the right for employee representatives to request and receive information from the employer on the number of temporary agency workers performing work at that undertaking. H. Strikes There are no provisions in Latvian law precluding the employment of temporary agency workers during strikes.24 I. Collective Bargaining Agreements Deviating from Statutory Provisions According to Article 6 of the Labour Code, collective agreements may only provide more favourable terms than the minimum rights provided by law, and they may not be less favourable than the terms provided for in the employment contract.

24 

Strike Law (Steiku likums), Official Gazette No 130/131, 12 May 1998.

19 Atypical Employment Relationships: The Position in Lithuania TOMAS DAVULIS

I. INTRODUCTION

U

NTIL VERY RECENTLY, Lithuanian labour law was characterised by a high overall degree of homogeneity.1 Open-ended full-time work was the dominant form of employment, while fixed-term employment and temporary agency work (introduced only in 2008) were considered exceptions which were only permitted in exceptional cases based on special legal provisions.2 Forms of employment such as telework and part-time work were regulated in a fairly restrictive way and were thus not widely used. The labour market was not adapted to the needs of either employees or employers.3 The re-codification of labour law in 20164 has fundamentally changed this paradigm. In the course of the preparation of the new Labour Code, the objective was the achievement of flexibilisation, primarily by introducing (or legalising) new work patterns. In addition to the already known fixedterm contracts, contracts for seasonal work or for temporary employment,

1 T Davulis, ‘The Fifth Anniversary of the new Labour Code—A Time to Change?’ in R Blanpain (ed), The Modernisation of the Labour Law and Industrial Relations in the Comparative Perspective (Kluwer Law International, 2009) p 360, at 363–64. 2  T Davulis, ‘Darbo teisės modernizavimo perspektyvos’ (‘The Perspective of Modernisation of Labour Law’), Jurisprudencija, 2008, No 8, p 27, at 31. 3 T Davulis and D Petrylaite, ‘Tackling Economic Crisis: Labour Law in Lithuania’ in T Davulis and D Petrylaite (eds), Labour Regulations in the 21st Century. In search of ­flexibility and Security (Cambridge Scholars Publishing, 2012) p 8. 4  The new Labour Code (Darbo kodeksas, Register of Legal Acts, No 2016-23709) was adopted on 21 June 2016, but was vetoed by the President of the Republic of Lithuania because of its ‘lack of social sensibility’. The governing coalition succeeded in overriding the President’s veto on 14 September 2016. The new coalition postponed the entry into force of the Labour Code to 1 July 2017 instead of 1 January 2017, as initially intended. The social partners were given time to ameliorate the already adopted legal provisions. The Tripartite Council arrived at consensus on some sensitive points, but these new agreements do not concern atypical employment.

500  Tomas Davulis the new Labour Code (in force since 1 July 2017) introduced an entire set of new types of employment, namely employment contracts: for apprenticeships; for unforeseen increases in the volume of work (also known as ‘zero-hours’ or ‘on-call’ contracts); for portfolio work; for job-sharing; ­ and for employee-sharing. In response to the arising need for the reconciliation of work and private and family life of employees, telework and ­part-time work were also facilitated. The major breakthrough is, however, the ­liberalisation of fixed-term employment. II.  FIXED-TERM WORK

The number of employees working in fixed-term employment in Lithuania is one of the lowest among European countries.5 This can be explained by the fact that until 2017, the Lithuanian law took a very strict approach towards the conclusion and later the extension of fixed-term contracts. The new Labour Code 2016 modified this approach drastically by permitting the conclusion of fixed-term contracts based on the will of the parties and without the existence of objectively justified reasons. A.  Legal Definitions/Formal Requirements In accordance with Article 66 of the Labour Code 2016, a fixed-term employment contract is an employment contract concluded for a certain period of time or for a given period to carry out a specific assignment. The term of the contract may end on a specific calendar date, can be concluded for a certain period of time or, alternatively, may end upon completion of a specific task. The term may also relate to specific circumstances—such as, for instance, the duration of a project, replacement of an employee on parental leave or similar. If the circumstance stated in the contract of employment ceases to exist during the validity of the contract, the fixed-term contract will convert into a contract of indefinite duration. The condition of the contract’s ‘term’ legally qualifies as an essentialia negotii for this type of the contract6—if no provision on the term is included, the contract shall also be considered to be open-ended. 5  In accordance with data of Eurostat, in 2016, only 2.1% of all employees worked under a temporary work contract in Lithuania. See http://appsso.eurostat.ec.europa.eu/nui/show. do?dataset=lfsa_etpga&lang=en, accessed 10 October 2016. The OECD survey provides a similar percentage of 2.4% of the workforce employed under a fixed-term contract. 6  Supreme Court of Lithuania judgment of 23 December 2014 in case No 3K-3-572/2014. See also B Bubilaityte, ‘Terminuotų darbo sutarčių teisinio reguliavimo ypatumai pagal L ­ ietuvos teisę’ (‘The Features of Fixed-term Employment Regulation in Lithuania’), Teisė, 2008, No 69, p 132.

Atypical Employment Relationships: The Position in Lithuania 501 B.  Lawful Stipulation of the Contractual Terms The regulations for concluding fixed-term contracts of employment were very strict in the past.7 This rigidness was related to the fact that Lithuanian labour law placed restrictions on the initial conclusion of such contracts. Temporary work, casual work or work on demand were not consolidated in the legislation, and only seasonal work contracts and short-term contracts (up to two months) were acceptable to help employers adapt to a temporary increase/decrease in demand for workforce. To avoid the misuse of fixed-term contracts,8 Lithuanian legislation simply prohibited the initial conclusion (and not the renewal) of fixed-term contracts. It basically required the presence of objective grounds on which the conclusion of a fixed-term contract was justified (Article 109 of the Labour Code 2002).9 Objective justifications of the need for temporary employees were also scrutinised by the courts—the employer had to prove the temporal nature of the increased need for additional workforce. The justification for the temporary use of employees was often refused by the courts.10 If the employer failed to prove the existence of objective grounds, the court could declare the fixed-term contract to be one of indefinite duration and a termination of the contract would subsequently be void. On the other hand, unlimited possibilities for concluding fixed-term employment contracts were opened in the following two cases: 1. If other legislation provides for a specific exception to conclude fixed-term contracts11 (widely used in the public sector, where multiple extensions exceeding the maximum duration of five years were possible according to case law12);

7  In the period from 1991 to 2003, the legislator introduced some flexibility by allowing the conclusion of fixed-term contracts ‘on the written consent of the employee’. Such a fairly hypocritical provision manifested itself in the actual freedom of the employer by making the recruitment of employees conditional upon such a consent on the employee’s side. See V T ­ iazkijus, Darbo teisė: teorija ir praktika (Labour Law: Theory and Practice) (Justitia, 2005) p 375. 8  T Davulis, Darbo teisė: Europos Sąjunga ir Lietuva (Labour Law: European Union and Lithuania) (Teisinės informacijos centras, 2004) p 300. 9  Seasonal work is considered another type of fixed-term employment which is permitted if the employer’s activity and the employee’s work assignment meet the criteria of seasonal work. The presence of a temporary ground was also necessary for concluding a short-term fixed contract with a validity of up to two months. 10  Supreme Court of Lithuania judgment of 23 December 2014 in case No 3K-3-572/2014. 11  Eg, the former Labour Code provided for the possibility of concluding a fixed-term contract for a period of up to one year in case of vacancy of a post that must be filled by way of open competition, or, in accordance with the law, when a managerial employee must be appointed by collegial elective bodies that have their own term of office. Other laws such as, eg, the Law on Companies, required conclusion of fixed-term contracts (for a period not exceeding four years) with the heads of companies. 12  Supreme Court of Lithuania judgment of 20 June 2014 in case No 3K-3-329/2014.

502  Tomas Davulis 2. If collective bargaining agreements contain a clause of general exception to conclude fixed-term contracts (rarely used because of the lack of collective agreements).13 The Labour Code 2016 changes this model. Instead of requiring the presence of an objective ground or a special exception, legislation now focuses on restricting the duration of fixed-term employment, as provided in Directive 1999/70. First, Article 68(1) of the Labour Code 2016 abolishes the requirement of an objective reason for concluding fixed-term contracts. ­Secondly, it introduces the notion of ‘consecutive contracts’ which refers to renewals of fixed-term contracts separated by a period of no longer than two months (Article 68(2) of the Labour Code 2016). Thirdly, the allowed maximum duration of consecutive fixed-term contracts concluded with the same employer is two years. If the employee and the employer change the employee’s previous work function, then the maximum duration of consecutive contracts must not exceed five years. This restriction is not applicable if the employee is employed to temporarily substitute for another worker (Article 68(2) of the Labour Code 2016). Fourthly, the employer is not allowed to conclude fixed-term employment contracts for work that is of a permanent nature with more than 20 per cent of the total number of employees within the company (Article 67(4) of the Labour Code 2016). Notwithstanding this major novelty, several details need to be highlighted when comparing the Labour Code 2016 to previous legislation. The unlimited possibility to conclude fixed-term contracts the overall term of which may not exceed five years, does not apply to employees who are elected to their posts or appointed by collegial elective bodies or to employees for the purpose of protection of public interest, provided this possibility is established in special laws. Such contracts may be extended an unlimited number of times on the grounds established in those special laws. However, collective bargaining agreements may not provide for such an exception, as was the case in the past. Secondly, the law does not mention the existence of an ‘objective reason’ as a prerequisite for concluding a fixed-term contract. This means that even if an objective reason exists (for example, a three-year or longer project or if an employee is being replaced, who is on long-term leave), the conclusion of a fixed-term contract with a duration of three years is not allowed. The practical significance or rationale behind this provision is difficult to perceive. Pursuant to Article 68(2) of the Labour Code 2016, if the total duration of consecutive employment contracts exceeds the maximum of two (five) 13  These two exceptions created a problem of conformity with EU legislation. The ­possible violation lay in the fact that the law did not provide for any maximum limits and did not require the existence of objective reasons for concluding a fixed-term contract—national measures to prevent abuse of fixed-term contracts were lacking. This argument, however, had not been brought up in the national courts.

Atypical Employment Relationships: The Position in Lithuania 503 years, such a contract shall be deemed a contract of indefinite duration. The legislation stipulates that in that case, the periods between employment contracts shall be included in the total duration of the employment relationship. The same legal consequence arises if the circumstance in respect whereof the term of the contract has been defined ceases to exist during the validity of the employment relationship (Article 67(3) of the Labour Code 2016). C.  Termination/End of Fixed-Term Contracts Previous legislation was interpreted in a fairly ambiguous way as regards the expiry of the term of the contract. One provision of the Labour Code 2002 stipulated that, upon expiry, the employment relationship ceased to exist whilst another provision provided for a transformation of the fixed-term contract into one of indefinite duration, if neither of the parties ‘terminated the contract’. This ambiguity often resulted in situations in which the employee claimed s/he had an open-ended contract if the employer (by virtue of various objective and subjective reasons, such as leave or sick leave of the employee) did not finalise the procedure of termination of the contract on the last day of its term.14 The new Labour Code 2016 slightly improves the legal situation with the following new provisions: —— Expiry of the term is a sufficient ground for the employment relationship to cease, and no action from either side is necessary (Article 69(1) of the Labour Code). The employer has the duty to inform the State Social Insurance Fund that the employment relationship has ended; —— An employment contract is converted into a contract of indefinite duration only if the employment relationship continues for at least one working day after the expiry of the term (Article 69(2) of the Labour Code 2016); —— An employee’s sick leave does not prohibit the employer from declaring that the employment relationship has ceased on the ground of expiry of the term of the contract (Article 65(6) of the Labour Code 2016). However, the term of the employment de lege will be extended to the first day after the employee’s sick leave ends. Previously employers frequently chose to conclude fixed-term employment contracts because they did not have the duty to notify the employee in advance that the employment relationship would be terminated; nor did they have the duty to pay the employee severance pay. This has been modified with the new provisions of the Labour Code 2016, which require the 14  V Tiazkijus, Darbo teisė: teorija ir praktika (Labour Law: Theory and Practice) (Justitia, 2005) p 378.

504  Tomas Davulis employer to give the employee notice and to pay severance under c­ ertain conditions. The obligation to give the employee notice in writing that the employment relationship will be terminated applies to cases in which the fixed-term employment relationship has lasted for more than one year (five days’ notice) and if the employment relationship has lasted for more than three years a ten-day notice period is required. Violation of this regulation entitles the employee to claim compensation which equals his/her pay for those five or ten days (Article 69(3) of the Labour Code). The severance payment in the amount of one average month’s salary must be paid for employees whose fixed-term employment relationship lasted more than two years (Article 69(4) of the Labour Code). Before the entry into force of the new Labour Code 2016, fixedterm employment contracts could not be terminated at the initiative of the employer prior to the expiry of the term. Only in ‘exceptional circumstances’ could the employer initiate redundancy with a two- or fourmonth notice period and severance pay or compensation which totalled the employee’s salary for the remaining period of the contract’s total duration. Case law has softened the practical impact of these rigid legal provisions, allowing for more individual and looser interpretations of the term ‘in exceptional circumstances’.15 D.  Rights and Status of Fixed-Term Worker (i)  Equal Treatment The Labour Code 2016 explicitly prohibits discrimination against fixed-term employees compared to ‘employees working under a contract of indefinite duration and who perform identical or similar work functions in terms of qualifications and skills’ (Article 70(1) of the Labour Code 2016).16 It is very difficult to predict how this provision will be applied in practice. First, there is generally no evidence of the application of the non-discrimination principle to other types of employees (part-time and full-time workers,

15 The financial instability of the employer and organisational changes resulting in the redundancy of the worker’s post were recognised as acceptable grounds for the termination of a fixed-term contract prior to the expiry of the term. See, eg, Supreme Court judgment of 4 July 2013 in case No 3K-3-380/2013. If the employee no longer contributes to the achievement of the firm’s objectives, his or her relationship can end by way of redundancy. See Supreme Court judgment of 5 November 2012 in case No 3K-3-452/2012. 16  Even before that, some authors suggested that the difference in working conditions of fixed-term employees and those under a contract of indefinite duration was prohibited under the general non-discrimination principle. See T Davulis, Darbo teisė: Europos Sąjunga ir Lietuva (Labour Law: European Union and Lithuania) (Teisinės informacijos centras, 2004) p 302.

Atypical Employment Relationships: The Position in Lithuania 505 employees on parental leave and other employees, etc). Secondly, Lithuanian legislation does not include an explicit provision that a difference in treatment of employees under a fixed-term contract may be justified on objective grounds (Clause 5(1)(b) of the Framework Agreement annexed to the Directive 1999/70). Thirdly, the absoluteness of the principle of equal treatment is again manifested in Article 70(3) of the Labour Code 2016, which states that the fact that an employee works under a fixed-term contract shall not release the employer from the duty of ensuring the provision of training, in-service training, professional development and career progression of such an employee. The Labour Code 2016 does not stipulate whether the period of service should or should not justify different treatment of fixed-term workers compared to permanent workers. (ii)  Employment Opportunities Article 71 of the Labour Code 2016 provides for another novelty—­fixed-term workers should be given priority when filling an open-ended vacancy. If such a vacancy becomes available, the employer shall offer the open-ended contract to a fixed-term employee who is performing identical or similar tasks and meets the qualification requirements. If there are several such employees, the offer shall be made to the employee whose employment relationship with the employer has lasted the longest. There is no case law or evidence on how this or a similar provision would be implemented in practice in Lithuania. Transparency in recruiting was improved with the introduction of Article 71(2) of the Labour Code 2016, which requires the employer to inform the employees working under a fixed-term employment contract about vacancies and ensure that they have the same opportunity to secure permanent employment as other employees. Such information shall be published in the place of employment in accordance with the usual procedure of notifications and announcements. No legal consequences are foreseen if the employer fails to meet this obligation. E.  Information and Consultation Pursuant to Article 71(3) of the Labour Code 2016, the employer shall, upon the request of the works council, provide information to the works council annually on the number of fixed-term contracts in the enterprise, establishment or organisation by indicating the number of employees working under fixed-term contracts, the positions they occupy and the average wage by groups of occupation and gender. With this amendment of labour law, the establishment of works councils was made compulsory in enterprises employing more than 20 employees (Article 169(1) of the Labour Code 2016).

506  Tomas Davulis The duty of information is new in the Labour Code, and it is therefore difficult to predict how it will be implemented in practice. The new Labour Code 2016 enhances the works council’s right to receive information and it has become more easily enforceable than before. First, it is now possible to have legal recourse to the Commission of Labour Disputes with the request to compel the employer to provide the requested information. The Commission may grant the right to the works council to receive such information. Pursuant to Article 217(2) of the Labour Code 2016, if there is a breach of collective labour rights, the Commission has a right to impose a fine in the amount of up to EUR 3,000 on the party that is in breach of labour law regulations or agreements between the parties. The amount of the fine shall be proportionate to the gravity of the violation and shall aim to deter the employer from such breaches of law in the future.17 This strong enforcement mechanism is to ensure that the violation of collective rights to information is avoided. F.  Specific Provisions In accordance with Article 61 of the Higher Education and Research Act,18 science and research institutions may conclude employment contracts with a scientific or pedagogical employee for a period of up to five years. The contract with the same person for the same position may be renewed once before becoming a contract for indefinite period of time. The non-permanent staff, however, may be recruited for a period of up to two years and work under a fixed-term contract. Pursuant to the Law on Companies,19 the President, appointed by the Management Board or the Supervisory Board, shall have a fixed-term contract for his/her term of office, which may not exceed four years (Article 33 of the Law on Companies20). The Law on Professional Scene Art (former Law on Theatres and Concert Institutions21 (Article 11(3) establishes the requirement for national, state and municipal theatres and concert institutions to conclude fixed-term contracts of five years with the directors of the state and municipal theatrical and concert institutions. G.  Collective Bargaining Agreements Deviating from Statutory Provisions The Labour Code 2002 allowed parties to a collective bargaining agreement to include an exception in the agreement permitting the conclusion 17 

Vilnius Regional Court judgment of 14 March 2019 in case No e2A-1203-912/2019. State Gazette, 2009, No 54-2140. 19  State Gazette, 2000, No 64-1914. 20  State Gazette, 2003, No 123-5574. 21  Register of Legal Acts, No 2016-24188. 18 

Atypical Employment Relationships: The Position in Lithuania 507 of fixed-term contracts of employment with employees in permanent posts. This exception was abolished in the new Labour Code 2016. The practical importance of the collective bargaining agreement in this regard will also be diminished by the fact that under the new regulations, the personal scope of the collective agreement is limited to members of trade unions only (Article 197(1) Labour Code 2016) compared to the previous rule of being general binding for all employees in the enterprise. Under the new legislation, a generally binding collective agreement is possible in two precisely defined cases only—if the trade union and employer agree on this and the majority of employees in the enterprise agree (Article 197(1) of the Labour Code 2016), or if the sectoral collective agreement was given general applicability by a special administrative act of the Minister of Social Security and Labour (Article 198 of the Labour Code 2016). III.  PART-TIME WORK

Part-time employment is widespread in Lithuania. From a legal point of view, it is considered a so-called ‘additional agreement’ between the parties to the contract of employment. The parties may agree on part-time work, but, once agreed, it is established in the individually stipulated conditions of the contract. In practice, this means that the conditions cannot be changed unilaterally without the mutual consent of the parties. The qualification of part-time work as a ‘condition’ of the contract limits the employer’s ability to transfer the employee from part-time to full-time work and vice versa, but the new Labour Code 2016 allows employees to work part-time more flexibly than before. A.  Legal Definitions/Formal Requirements In accordance with Article 40(1) of the Labour Code 2016, upon the conclusion of an employment contract and during the performance thereof, the parties to the contract may agree on part-time work, ie on a working time that is shorter than the norm for the performance of the employee’s tasks. The Labour Code 2016 introduces the notion of a ‘norm’ for working time, referring to the regular (but also maximum) average number of working hours.22 The law stipulates that the norm for regular working time shall be 40 hours per week, unless labour regulations (laws, collective 22  Pursuant to Art 112(1) of the Labour Code 2016, the norm for working time is the average length of time during which an employee performs work for the employer over a certain period of time to carry out his/her duties under an employment contract (excluding additional work or overtime).

508  Tomas Davulis agreements, Government decrees, etc) provide for a shorter norm for working time,23 or if the parties agree on part-time work. Part-time work may be established by decreasing the number of working hours per day, decreasing the number of working days per working week or working month, or both. The novelty of the re-codification of the Labour Code 2016 is that the condition of part-time work can be established for both an indefinite period or for a fixed term. This reflects the flexible approach now taken towards part-time work patterns—the parties shall have more room to choose whether to work full time or part time.24 B.  Opportunities for/Right to Part-Time Work The Labour Code of 2002 was quite reluctant in acknowledging this right of the employee. Only few groups of workers shall be granted part-time work upon their request (although with no statutorily guaranteed right to change back to full-time work at a later date). Such groups included employees requesting to work part time due to their health status in accordance with the diagnosis of a medical institution; pregnant women, women who have recently given birth and women who are nursing; employees raising a child under the age of three years; employees who are single parents and are raising the child on their own until that child reaches the age of 14 years or employees who are raising a child with disabilities until that child reaches the age of 16 years; employees under the age of 18; persons who are disabled according to the conclusions of a health care institution; employees who are caring for a sick family member according to the diagnosis of a health care institution (Article 146(1) Labour Code 2002). Belonging to one of the above-mentioned groups implied an unrestricted possibility to engage in part-time employment. For all other employees, explicit mutual agreement (ie the consent of the employer) was necessary to change the number of working hours. The new Labour Code 2016 not only endorses part-time work for the groups of employees listed above, but also significantly increases the possibility for other employees to work part time as well. Article 40(4) of the Labour Code 2016 entitles any employee, whose employment relationship with the employer has been continuous for no less than three years, to submit a request in writing to temporarily work part time. The employee’s 23  The Government of the Republic of Lithuania is authorised to define the groups of workers who may perform work involving severe mental, emotional strain and individuals who work in working environments in which the concentrations of hazardous materials exceed acceptable limits. The government is also authorised to set shorter norms for working time for those categories of workers (eg, pedagogical workers—36 hours per week, medical staff— 31 to 38 hours per week, etc). 24 See the concept of the new labour legislation under www.socmodelis.lt, accessed 12 October 2016.

Atypical Employment Relationships: The Position in Lithuania 509 request shall be granted, provided that it has been submitted no less than 20 days prior to its desired entry into effect, and work shall be performed on a part-time basis for no longer than one year. The employee is only entitled to repeatedly request to work part time after s/he has worked full time for the period for which s/he wants to work part time. The employer’s refusal to allow an employee to work part time may be appealed to the Commission of Labour Disputes under the regional branch of the State Labour Inspectorate (Article 40(7) of the Labour code 2016). C.  Opportunities for/Right to an Extension of Working Time The law is silent on the right of the employee to return to his/her previous working time after a change in his/her personal circumstances or the objective grounds on which the part-time work was granted. However, the corresponding provision was established in case law. A dispute arose between a female tram driver and the tram company. Initially, the driver’s working time was reduced by 50 per cent on the ground of a certificate issued by a health institution, stating that the level of the driver’s working capacity had decreased to 50 per cent. Several months later, a new health assessment indicated that the driver’s working capacity was at 80 per cent. The company’s refusal to amend the contract of employment and to return the driver to full-time work was considered unlawful both by the District Court and the Regional Court. The Courts expressly stated that Article 146 of the Labour Code shall be interpreted as ‘taking into consideration the objectives and meaning of Directive 97/81/EC’. By pointing out the Directive’s objective to make part-time work optional on a voluntary basis and citing Article 5 of the Agreement on the Duties of Employers to consider employees’ requests to be transferred from one working regime to another, the Courts refused to accept the absolute right of the employer to unilaterally decide on the possibility of a part-time employee to return to full-time work.25 The limits of the new restrictions on the employer’s discretion are still unclear since the case covered a shift to part-time work on absolute grounds (ie a health institution certificate), but not a change of the contract by individual agreement. In this regard, significance shall be attributed to the new regulations of the Labour Code 2016. Article 40(5) of the Labour Code 2016 allows those groups of employees who have the right to request part-time work to return to full-time work upon written notification of the employer two weeks in advance, except in cases when the employer agrees to depart from this time limit. In addition, the Labour Code provides new opportunities for all employees to request an extension of their working time. According to Article 40(3) of the Labour Code, an employee who has concluded an agreement to work part time may not request changes to 25 

Kaunas Regional Court judgment of 15 September 2011 in case No 2A-1316-485/2011.

510  Tomas Davulis his/her working time more than once every six months. The employer shall consider such a request and notify the employee of his/her reasoned decision within 10 working days. The employer’s refusal to allow an employee to work part time may be appealed to the Commission of Labour Disputes under the regional branch of the State Labour Inspectorate (Article 40(7) of the Labour Code 2016). D.  Rights and Status of Part-Time Worker (i)  Equal Treatment Part-time work shall be paid proportionally to the hours worked or to the work carried out. Part-time work shall not result in any limitations when setting the duration of annual leave, calculating the length of service, promoting the employee, improving his/her qualifications through training, or with regard to other employment rights of the employee in comparison to employees who perform similar or equivalent work on a full-time basis, taking into account their length of service, qualifications and other circumstances (Article 40(6) of the Labour Code). The principle of non-discrimination against part-time workers has not been widely discussed in practice or doctrine. There are also no cases before the courts in which employees challenge differences in treatment (eg bonuses, vocational training opportunities, dismissal selection criteria). (ii)  Dismissal Protection Part-time work is perceived as an additional contractual arrangement; therefore, the employer is not allowed to unilaterally change it. The employee’s refusal to agree to the employer’s proposal to start working part time or to transfer to full-time work cannot per se result in the termination of the employee’s contract. However, under the general rule governing the amendment of the contract, an employee’s refusal to work under the said changed conditions may be considered a reason to terminate the employment relationship at the initiative of the employer without any fault of the employee (Article 45(2) of the Labour Code 2016). The employee will have to be notified in advance and severance pay of two months’ salary (or two weeks of the monthly salary, if the length of service does not exceed one year) must be paid. E.  Information and Consultation Pursuant to Article 40(8) of the Labour Code 2016, employers must provide the works council with information annually about the number of part-time

Atypical Employment Relationships: The Position in Lithuania 511 employees in the enterprise. The information must contain the number of part-time employees, their occupations and professions. Employers shall also provide a calculation of the average salaries of part-time employees classified by profession and gender. This employer’s duty of information will apply in companies employing more than 20 employees. If the employer violates his/her duty of information, the Commission on Labour Disputes under the territorial branch of the State Labour Inspectorate (Article 213(4) of the Labour Code 2016) may order the employer to provide the required information. The Commission also has the right to impose a fine in the amount of up to EUR 3,000 to be paid to the other party (Article 217(2) Labour Code). The amount of fine shall be proportionate to the gravity of the violation and should aim to deter any breaches of law in the future. F.  Other Part-Time Arrangements The Labour Code 2016 establishes two other entirely new types of employment contracts, which aim to provide more flexible possibilities to work less than full time: job-sharing contracts and contracts for unforeseen increases in the volume of work (so called ‘8-hours contracts’). Job-sharing contracts (darbo vietos dalijimosi sutartis) may be c­ oncluded as a new form of employment contract or by temporarily changing the existing employment contract for situations in which two employees occupy one job or position. Under a job-sharing contract, each of the two employees records their working time. However, the distribution thereof throughout a day or week depends on their agreement—in any case, the employees must substitute for each other in such a way that the achievement of the work tasks is not affected (Article 93(1) of the Labour Code 2016). Unless ­otherwise provided in the contract, it is assumed that the number of w ­ orking hours of both employees is equal. Legislation classifies agreements on job-sharing as a type of contract, which implies that both parties shall voluntarily enter into such an agreement. However, to facilitate this flexible working time arrangement for ­certain categories of workers, the legislator imposes the duty on the employer to consider some requests more seriously. Pursuant to Article 93(3) of the Labour Code 2016, the employer shall be required to consider—and, if it is organisationally possible, to consent to—requests from employees who are raising a child (also an adopted child) under the age of six years to temporarily replace the existing employment contract with a job-sharing contract until the child reaches the age of six years. Under the contract for unforeseen increases in the volume of work (nenustatytos apimties darbo sutartis), the number of working hours is not established in advance. Under such a contract, an employee undertakes to perform work following the employer’s call (Article 85(1) of the Labour Code 2016).

512  Tomas Davulis The employee’s wage is only paid for the time s/he performs work following the call of the employer; however, the minimum duration of work shall be eight hours per calendar month. The Labour Code specifies the obligations of the employee and the employer who calls upon the employee to work and the employee’s acceptance thereof, additional grounds for the expiry of the contract, prohibition on the employer preventing the employee from working for another employer under a contract of employment, regardless of type, during the term of the contract for unforeseen increases in the volume of work, and prohibition on the employer establishing less favourable working conditions because the employee refused to accept the call for work or to change the amount of work specified in the given call. A contract for unforeseen increases in the volume of work should encourage and facilitate the employment of youth and facilitate the employer’s adaptation to the changing demands of the market.26 G.  Collective Bargaining Agreements Deviating from Statutory Provisions There used to be no implications of collective bargaining for part-time work. Firstly, collective bargaining agreements were quite rare in Lithuania’s legal system. Secondly, they could not establish working conditions that were less favourable to employees than those established by labour law (Article 4 of the Labour Code 2002). Under the new Labour Code, the situation may change, since the parties to the collective bargaining agreement will be allowed to conclude deviating agreements at the sectoral, intersectoral and national levels (Article 193(2) of the Labour Code 2016). However, it is unlikely that any significant developments will take place in this regard, as the extension or restriction of part-time work opportunities is definitely not a current priority of the p ­ arties to collective bargaining. IV.  TEMPORARY AGENCY WORK

Temporary agency work was practically banned in Lithuania for a very long time because of the absence of relevant regulations.27 The special Law on Temporary Work Agencies was adopted in 201128 in order to transpose 26  The legalisation of such types of contract still sparks heated debates in Lithuania. After a change in the governing coalition, legislative initiatives are still being taken to abolish the regulation on contracts for unforeseen increases in the volume of work. 27  Darbo ir socialinių tyrimų institutas (Labour and Social Research Institute), Agentūrinio darbo teisinio reguliavimo Lietuvoje galimybių bei įtakos darbo rinkai tyrimas (Regulation of Temporary Agency Work in Lithuania: the research on opportunities and implications for labour market) (Vilnius, 2004) p 3. 28 The Law No XI-1379 of 19 May 2011 on Work under Temporary Work Agencies (Įdarbinimo per laikino įdarbinimo įmones įstatymas), State Gazette, 2011, No 69-3287.

Atypical Employment Relationships: The Position in Lithuania 513 European legislation.29 Lithuanian legislation has taken a rather liberal approach to this new phenomenon—the less restrictive state interference and control can be explained by the low number of workers employed under a temporary work contract.30 A.  Legal Definitions/Formal Requirements A temporary employment contract is an agreement between a temporary agency worker and an employer (temporary work agency) according to which the temporary agency worker undertakes to perform work for a certain period of time for a user undertaking under its direction and subordination. The employer (temporary work agency) undertakes to pay for the work performed by the temporary agency worker (Article 72(1) of the Labour Code 2016). B.  Registrations, Licensing, Financial Guarantees, etc The Law on Temporary Work Agencies allows any natural or legal person to establish a temporary work agency. Only one formal information duty has been imposed on such businesses—they shall inform the State Labour Inspectorate at the beginning of their activity of their providing temporary work services and the number of employed temporary workers (Article 11 of the Law). The new formal requirements were not tightened in the new Labour Code—an identical provision can also be found in Article 79(6) of the Labour Code of 2016.31 C. Relationship between Temporary Agency Worker and Temporary Work Agency (i)  Fixed-Term and Part-Time Contracts Temporary employment contracts may be concluded for a fixed or indefinite term. 29  Directive 2008/104 of the European Parliament and of the Council of 19 November 2008 on temporary agency work. [2008] OJ L327/9, 5 December 2008. 30  In 2016, there were 112 companies providing temporary work services registered with the State Labour Inspectorate. Only 33 of them were actively employing temporary workers and the total number of temporary workers amounted to 4,096 persons. Information available on the web page of the State Labour Inspectorate: www.vdi.lt/Tekstai/Tekstai1.aspx?Tekstai_ID=15, accessed 10 October 2016. 31  It should be mentioned that the licensing of temporary work agencies was one of the proposals of the President who vetoed the new Labour Code in June 2016. The governing coalition was able to override the veto, and the new Labour Code 2016 has no additional requirement for those operating temporary works agencies.

514  Tomas Davulis A fixed-term temporary employment contract may be concluded for one assignment at a user undertaking or until the completion of a certain task or the occurrence, change or cessation of specific circumstances (Article 72(3) of the Labour Code 2016). By way of derogation from the rules on fixedterm employment (namely a maximum duration of two years of consecutive contracts), the maximum term of a fixed-term temporary employment contract, as well as the maximum total duration of consecutive contracts concluded with the same employee for the same work, is three years. Employment contracts are considered consecutive where they are separated by a period which is not longer than two weeks (Articles 72(3)–(4) of the Labour Code 2016). Temporary workers employed under a temporary employment contract of indefinite duration, as well as temporary agency workers whose employment contract does not expire at the end of a single assignment at a particular user undertaking, will not be paid for the periods between assignments up to five consecutive working days, but only once a month (Article 76 of the Labour Code 2016). For the subsequent days between assignments, the temporary agency worker shall be paid at least the minimum monthly wage, unless the temporary agency worker has refused to work at a given user undertaking assigned to him/her by the employer (Article 76 of the Labour Code 2016). The latter provision does not seem reasonable, as it strongly discourages employers from concluding temporary employment contracts of indefinite duration. There is no special stipulation on temporary part-time employment. This practically means that temporary contracts of employment can be concluded for part-time work without any restrictions. (ii)  Rights and Obligations/Liability An employee should be given notice of an assignment to a user undertaking at least three calendar days in advance, unless the employee agrees to work with a shorter advanced notice. A temporary agency worker shall be entitled to refuse working at a user undertaking by notifying the temporary work agency no later than within one working day from the date of notification of the assignment. Such refusal shall not be deemed a violation of work duties (Article 74 of the Labour Code 2016). Agreements between a temporary work agency and a temporary agency worker (as well as between a temporary work agency and a user undertaking), which state that the conclusion of an employment contract directly between the temporary agency worker and the user undertaking is prohibited or restricted, shall be null and void. This provision does not, in fact, restrict the right for an agreement to be concluded between the temporary work agency and the user undertaking on recompense for services rendered to the user undertaking related to the assignment, recruitment and training of temporary agency workers (Article 79(1) of the Labour Code 2016).

Atypical Employment Relationships: The Position in Lithuania 515 The temporary work agency is also prohibited from requiring a temporary agency worker to compensate it or cover any expenses for the conclusion, implementation or termination of a temporary employment contract, as well as for concluding an employment contract with a user undertaking after completing the work at that undertaking (Article 79(2) paragraph 1 of the Labour Code 2016). The processing of the data of temporary agency workers for other purposes than work is also prohibited (Article 79(2) paragraph 2 of the Labour Code 2016). Pursuant to Article 77 of the Labour Code 2016, the temporary worker shall be liable to the temporary work agency within the procedure of recourse for any losses caused by the temporary agency worker to the user undertaking if the temporary agency worker’s fault and the amount of ­damage is proven. (iii)  Dismissal Protection The law does not explicitly stipulate additional grounds for a temporary work agency to terminate the contract with a temporary worker—a contract with a temporary agency worker may be terminated on the generally applicable grounds for other workers. However, if the user undertaking refuses to hire a given temporary agency worker, this constitutes a legitimate ground for terminating the fixed-term employment contract prior to its expiration.32 The Labour Code 2016 focuses on the additional rules on terminations of contracts on the initiative of the employee. In the period between assignments, a temporary agency worker is entitled to terminate a contract upon giving written notice to the temporary work agency at least five working days in advance. A collective agreement may establish a different notice period, but the period may not exceed one month (Article 80(2) of the Labour Code 2016). The legislation does not oblige the employee to notify the user undertaking about the employee’s resignation. D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship The legal nature of the relationship between the worker and the user undertaking is somewhat unclear.33 The current legislation does not consider the relationship to be a contractual one. However, both participants 32 

Vilnius Regional Court Judgment of 27 April 2017 in case No e2A-238-803/2017. J Usonis and T Bagdanskis, ‘Darbo nuoma ir jos teisinio reguliavimo perspektyvos Lietuvoje’ (‘Temporary Work and Perspectives of Its Regulation in Lithuania’), Jurisprudencija, 2008, No 110, p 65, 70. 33 

516  Tomas Davulis (the worker and the user undertaking) have statutorily defined mutual rights and obligations, the responsibility for fulfilment of which lies with the user undertaking. (ii)  Rights and Obligations/Liability The labour law provisions manifest the user undertaking’s duty to inform the temporary agency worker of the employment conditions, work regulations, and other legal acts regulating his/her work at the user undertaking (Article 78 of the Labour Code 2016). The user undertaking must inform temporary agency workers of any vacant posts in the user undertaking by specifying the work function and the requirements for it. Information on vacant posts may be publicly announced on information boards at the premises of the user undertaking, on the internet or by other means. The user undertaking is explicitly prohibited from restricting temporary workers’ access to permanent employment opportunities, and from preventing temporary workers from participating in vocational training and in-service training opportunities. The legislation does not provide explicit rules on the legal consequences if the employer violates these duties. We may, however, assume that in this case, the employee would be entitled to compensation of damages. If the temporary worker’s action causes damage to the user undertaking, the damage or loss shall be compensated by the temporary agency. (iii)  Health and Safety The law explicitly requires the user undertaking to ensure the health and safety of a temporary agency worker in accordance with the provisions of the Law on Safety and Health at Work (Article 78(1) of the Labour Code 2016). No special provisions can, however, be found in the health and safety regulations. The temporary work agency’s liability is not directly stipulated in the law but emanates from the employer’s general duties of employer to ensure safe and healthy working conditions. Since temporary work is not popular in Lithuania, there have been no cases before the courts so far on this particular problem. E.  Relationship between Temporary Work Agency and User Undertaking The new Labour Code 2016 provides extensive rules on the relationship between the user undertaking and the temporary work agency. First, the legislation bans agreements on the prohibition or other types of restrictions (for example, financial fines or compensation) on employing a temporary worker on a permanent employment contract at the user undertaking

Atypical Employment Relationships: The Position in Lithuania 517 (­Article 79(1) of the Labour Code 2016). Secondly, the user undertaking may not refuse to provide the temporary work agency with information about the safety and health at work measures and the employment conditions which would apply if the user undertaking recruited the temporary agency worker under a permanent employment contract to occupy the same job (Article 79(3) paragraph 4 of the Labour Code 2016). This provision intends to create possibilities for proper implementation of the principle of equal treatment. However, there is no indication how this principle is applied in practice since the ‘right to information’ is formulated in a rather declaratory way. Another declaratory provision is found in Article 79(3) paragraph 2 of the Labour Code 2016—temporary employment contracts must not be concluded to replace dismissed workers of the user undertaking. This rule, however, is not applied if the temporary work starts later than 30 days from the date of the termination of the employment contract by the user undertaking.

F.  Rights and Status of Temporary Agency Worker (i)  Equal Treatment For the duration of an assignment, the user undertaking must ensure that the same provisions of laws, collective agreements and other labour law norms applicable to the employees of the user undertaking at the workplace also apply to temporary workers (Article 75(1) of the Labour Code 2016). The legislation clearly differentiates between so-called ‘hard’ labour law provisions, which must be respected without exception, and other provisions. ‘Hard’ provisions are regulations relating to: —— protection of pregnant employees, employees who have recently given birth or are nursing, as well as the protection of persons under the age of 18 years, —— the prohibition of discrimination on the grounds of gender, sexual orientation, race, nationality, language, origin, citizenship and social status, religion, marital and family status, intention to have a child (children), beliefs or views, membership of political parties and public organisations, age; —— the duration of the maximum working time and the minimum rest period, overtime, night work, holidays and public holidays. Other provisions on the work conditions of a temporary worker may also differ. The conditions relating to remuneration deserve special attention. A temporary work agency must ensure that the temporary agency worker’s wages for the work period at the user undertaking are not less than those which would be paid to him/her had the user undertaking recruited

518  Tomas Davulis the ­temporary agency worker under a permanent employment contract to occupy the same job. Deviation from this rule is only possible if the temporary worker: —— works under a temporary employment contract of indefinite duration; and —— receives a wage between assignments from the temporary work agency, and —— the amount of wage between assignments is the same as during assignments. To ensure compliance with the obligation to pay the temporary agency worker equal pay, the user undertaking shall bear subsidiary liability (Article 75(2) of the Labour Code 2016). There is no case law on the application of the principle of equal treatment in Lithuania so far. (ii)  Other Matters Temporary agency workers must be given access to the working and rest facilities in the user undertaking, as well as all other facilities (eg recreation rooms, canteen, child care facilities and transport services), under the same conditions as workers employed by the user undertaking, except in cases where difference in treatment is justified by objective reasons (Article 75(3) of the Labour Code 2016). G. Information and Consultation/Representation of Temporary Agency Worker The user undertaking must, upon the request of the works council, provide information to the works council annually on the status of temporary agency work in the enterprise, establishment or organisation by indicating the number of temporary agency workers who have been or are working at the user undertaking within that year, the positions occupied and the average wage by groups of occupations and gender. Temporary agency workers are excluded from the calculation of the number of employees, if they work for a period of less than three months (Article 22(2) of the Labour Code 2016). H. Strikes The Labour Code explicitly prohibits user undertakings from replacing employees of the user undertaking who are on strike with temporary agency

Atypical Employment Relationships: The Position in Lithuania 519 workers to perform their respective functions (Article 79(3) paragraph 1 of the Labour Code 2016). The relationship between temporary agency ­workers and striking employees within the user undertaking has not yet been investigated. I.  Collective Bargaining Agreements Deviating from Statutory Provisions Collective bargaining agreements are not applied in the sector of temporary agency work. The nature of such work per se creates tremendous difficulties in organising the workforce in trade unions—trade unions at the sectoral level are almost non-existent. The employers do not feel obliged to initiate collective bargaining because of the lack of statutory incentives. The equal treatment principle is relatively new and is not applied in practice. Because of marginal numbers of temporary agency workers, their specific problems are definitely not among the major concerns of national and sectoral trade unions as yet.

520

20 Atypical Employment Relationships: The Position in Luxembourg JEAN-LUC PUTZ

I. INTRODUCTION

A

TYPICAL FORMS OF employment are restricted in Luxembourg. The classic forms of atypical employment, such as fixed-term contracts or temporary agency work, are strictly regulated. Newer forms of atypical employment barely exist. Protection against unfair dismissal is also quite substantial. There is a strong political will to retain contracts of indefinite duration as the standard form of employment. The legislator aims to simplify the regulations for part-time work because this type of employment meets employees’ needs or wishes in many cases. The Labour Code (Code du Travail—‘CT’) establishes the legal framework. Collective agreements only play a secondary role in relation to atypical employment. II.  FIXED-TERM WORK

In comparison with most other European countries, Luxembourg’s labour law is quite restrictive when it comes to fixed-term contracts (contrat à durée déterminée).1 The standard type of contract is a contract of indefinite duration (contrat à durée indéterminée),2 which represents more than 90 per cent of all employment contracts. This restrictive legislation was introduced in 19893 and since then, only minor changes have been implemented. The general form of fixed-term employment contracts will be evaluated in this report. Within the context of employment policy and labour market

1  HAAG Antoine, Mesure empirique de la flexibilité du marché du travail luxembourgeois, Les Cahiers du CEPS/Instead, Population & Emploi, Cahier No 2010-28, décembre 2010. 2  Art L 121-2 para 1 CT. 3  Loi du 24 mai 1989 sur le contrat de travail.

522  Jean-Luc Putz integration, different types of temporary contracts and traineeships do exist, but they are not considered employment contracts.4 A.  Legal Definitions/Formal Requirements All types of employment contracts must be concluded in writing; an employment contract must be signed at the latest on the date the employee starts working.5 The employee can prove the existence of an employment relationship by any means. However, the law specifically provides that a contract of employment is irrefutably deemed to be a contract of indefinite duration if there is no written clause that specifies that it is a fixed-term contract.6 Thus, if no such written clause is included, the contract will be deemed to be permanent. Oral agreements are of no validity. A written clause on the fixed term must exist before the employee starts working.7 Thus, in theory, a written fixed-term contract that is signed after the employee has started working will also have to be reclassified as indefinite. In practice, this is rarely the case, both because it is difficult to prove the date of signature and because such cases are not frequently brought before the courts. Fixed-term contracts must include all mandatory clauses of general employment contracts,8 as well as some additional information:9 —— The objective reason why a fixed-term contract is being concluded. According to case law, this clause cannot be generalised, it must be specific and precise.10 The court must, only by reading the clause, be able to determine whether the use of a fixed-term contract was justified and—if no specific duration is specified—determine when the contract ends. The specific and temporary character of the task must be clearly described in the clause. Judges do not accept general clauses (such as ‘exceptional workload’ or ‘specific task’), but require the employer to be very explicit and individualised. The employer cannot at a later date, especially if the case is brought before the court, complete this clause or enter additional details. —— If the task has a specific duration, the date of expiry represents the date of termination; otherwise a minimum duration is applicable to the contract. 4 

CSJ, 8e, 24 May 2012, No 37257. Art L 121-4(1) CT. 6  Art L 122-2(2) CT. 7  Art L 122-2(2) and L 121-4(1) CT. 8  Art L 131-4 CT. 9  Art L 122-2 CT. 10 CSJ, 3e, 5 February 2015, No 38506; CSJ, 8e, 30 November 2015, No 41438; CSJ, 3e, 20 March 2008, No 32462; CSJ, 3e, 28 June 2007, No 31669; CSJ, 3e, 30 March 2006, No 29881. 5 

Atypical Employment Relationships: The Position in Luxembourg 523 —— If the purpose is to replace an absent employee, the name of this particular employee must be mentioned. —— A renewal clause can be included. It is possible to include a probation period in any fixed-term employment contract. The probation period must be included in writing, at the latest when the employee starts working; it is also sufficient if the relevant collective agreement stipulates that every new contract shall include a probation period. With some exceptions, the rules on the probation period are the same as for indefinite contracts.11 Thus, in most cases, it is admissible to set a probation period of six months or even 12 months if the monthly salary exceeds a legal threshold. The entire fixed-term contract could thus be probationary; it has not yet been determined whether such a clause, though formally valid, could be considered abusive. If the fixed-term contract is extended or if a successive contract is concluded, it may not include another probation period.12 A new probation period may be permissible if there has been a real and effective interruption between two fixed-term contracts with the same employee. B.  Lawful Stipulation of the Contractual Terms As already mentioned, although certain categories of workers are subject to exceptions, the conclusion of fixed-term contracts is restricted in Luxembourg. All three anti-abuse mechanisms proposed in Directive 1999/70/EC have been transposed. First, a fixed-term employment contract may only be concluded when it is justified for objective reasons, ie when it is concluded for a specific and temporary task. The purpose of concluding such a contract may not be for the performance of the company’s normal and permanent activity.13 This restriction is applicable to all fixed-term contracts. There is no exception allowing conclusions of fixed-term contracts without reasonable grounds, as is the case, for example, in Germany (Befristung ohne Sachgrund). The Labour Code lists specific cases, which are only exemplary.14 Contracts of employment with a predetermined end date are the standard type of fixed-term contracts; they can be signed in the following cases:15 —— For the execution of an occasional and selective task that is not part of the employer’s ordinary activity. 11 

Art L 121-5 CT. Art L 122-8 CT. 13  Art L 122-1(1) CT. 14 This list is introduced with the term ‘notamment’ = ‘inter alia’/‘amongst others’; Art L 122-1(2) CT, ‘Sont notamment considérés comme tâche precise et non durable’. 15  Art L 122-3(1) CT. 12 

524  Jean-Luc Putz —— A specific and temporary task in the event of a momentary and exceptional increase in activity, or in case of a start-up or expansion of the company. —— Urgent work necessary to prevent accidents, carry out repairs, or organise rescue operations for the facilities and premises to avoid any prejudice for the company and staff. —— Certain types of contracts offered to registered jobseekers to ensure their integration or reintegration into the labour market. —— Certain types of contracts the purpose of which is to hire specific types of jobseekers. —— Contracts signed with the teaching and research staff of the University of Luxemburg. —— Certain contracts signed with students or researchers. Fixed-term contracts of employment limited by a specific purpose can only be signed in the limited cases mentioned by the law:16 —— To replace an employee who is absent or whose employment contract is suspended.17 A suspension is usually given in case of sick leave (incapacité de travail), maternity leave (congé de maternité) or parental leave (congé parental). —— To temporarily replace an employee whose position has become vacant, before his/her successor starts working. —— Seasonal contracts. Fixed-term seasonal contracts may be concluded on grounds established by a grand-ducal decree.18 They include jobs in agriculture, viniculture and in the tourist industry. There is no possibility to conclude similar ‘seasonal’ contracts in other sectors. Case law19 confirms that it is not possible to agree with an employee that his/her contract will be suspended for a certain period and that s/he will not be offered any work and no wages will be paid. Some employers working as service contractors for schools (cleaning, canteen, etc) tried to implement such clauses for the school holiday period, but these were declared invalid. —— Jobs for which contracts of indefinite duration are not generally concluded due to the type of activity or the temporary nature of the activity. The types of jobs that fall under this exception are exhaustively listed in a grand-ducal decree.20

16 

Art L 122-3(1) CT. With the exception of employees on strike. 18  Art 1 of the Règlement grand-ducal du 11 juillet 1989 portant application des dispositions 5, 8, 34 et 41 de la loi du 24 mai 1989 sur le contrat de travail. 19  CSJ, 3e, 27 January 2011, No 34516; CSJ, 3e, 24 April 2014, No 39509. 20  Art 2 of the Règlement grand-ducal du 11 juillet 1989 portant application des dispositions 5, 8, 34 et 41 de la loi du 24 mai 1989 sur le contrat de travail. 17 

Atypical Employment Relationships: The Position in Luxembourg 525 Secondly, there is a maximum total duration of successive fixed-term contracts that may not be exceeded. The ordinary maximum total duration is 24 months (renewals included).21 The Minister of Labour can authorise an extension of the maximum duration for highly specialised employees. Thirdly, fixed-term contracts have to meet certain requirements in connection with renewals and succession.22 A distinction is made between a succession of contracts (succession de contrats) and an extension of an existing contract (renouvellement). As regards the conclusion of successive contracts, any fixed-term employment contract must be based on objective reasons. That is, any new contract concluded must be based on objective reasons, regardless of whether the contract succeeds a previous fixed-term contract or not. Furthermore, once a fixed-term contract has come to an end, the employer cannot conclude another fixed-term contract (or hire a temporary agency worker) for the same position before the expiration of a waiting period, regardless of whether this contract is concluded with the same or a different employee. The waiting period corresponds to one-third of the duration of the previous contract (renewals included). For example, if the previous contract lasted three months, the employer has to wait one month before a new fixed-term contract for the same position can be concluded. The waiting period does not apply: —— —— —— ——

if a replaced employee is absent again, in case of urgent works, to seasonal contracts, to jobs for which contracts of indefinite duration are generally not concluded, —— if the contract was prematurely terminated upon the employee’s initiative, —— if the contract contains a renewal clause and the employee refuses to renew it, —— for specific types of contracts mentioned above, in favour of jobseekers. Anti-abuse measures apply to any extension/prolongation of an expiring fixed-term contract. Renewing a contract means that the same contract (with the same employee) is immediately extended. The following rules apply:23 —— Renewing a contract is only possible if the initial contract contains a renewal clause (clause de renouvellement). In practice, this is only a formal condition with no practical effect, both because all model contracts contain such a clause and because if the clause is missing, it can be inserted into the contract by means of an amendment agreement. 21 

Art L 122-4 (1) CT. Art L 122-5ff. CT. 23  Art L 122-7 CT. 22 

526  Jean-Luc Putz —— A contract cannot be renewed more than twice. More than two renewals are only permitted for specific types of contracts (certain researchers, ‘intermittents du spectacle’, teachers of religion, athletes and coaches, etc). —— The overall total duration of the contract, all renewals included, may not exceed the permissible duration (generally two years—see above). —— Finally, one of the reasons mentioned above allowing recourse to fixedterm contracts must be given (basically, the duration of the initial objective reason for concluding a fixed-term contract must last longer than initially expected). In practice, these rules are not always respected and the ‘objective reasons’ given by the employer are often questionable. However, only very few employees file claims, and even if they do, the outcome rarely dissuades employers. Unlike for temporary agency work, the employer is not liable to any criminal penalties/fines if he/she breaches the rules on fixed-term contracts. The penalty for not observing the regulations on fixed-term contracts is the reclassification of the contract as one of indefinite duration.24 In other words, the employee can request the continuation of the employment relationship. In practice, the contract will often be considered as having been terminated by the employer and it takes quite some time for the court to issue its decision. Case law is not entirely clear regarding the consequences of a reclassification of the contract. The decision of the court is usually issued months or years after the contract has ended, and the employee will have typically entered a new employment relationship by then. Reintegration into the company is therefore hardly ever a suitable solution; it is even unclear whether a court could impose a requirement on an employer to reinstate the worker. The employee is not necessarily entitled to claim his/her salary after the contract has ended or between two unlawfully concluded fixed-term contracts.25 Wages are only due if the employee has explicitly stated and informed the employer that s/he considers the contract to be ongoing and that s/he is willing to continue working.26 The fact that the contract has ended does not automatically mean that the employer has dismissed the employee, which could be challenged in court. A dismissal only occurs if the employer explicitly states the wish to end

24 

Art L 122-9 CT. CSJ, 8e, 12 January 2012, No 34648 & 34649: ‘A. ne saurait dès lors prétendre, du seul fait de la requalification des relations de travail, au paiement des salaires pour les périodes comprises entre les deux contrats à durée déterminée. Le contrat de travail étant un contrat synallagmatique, il faut pour que le salaire soit dû que la prestation de travail ait été accomplie ou du moins que le salarié ait été à la disposition de l’employeur’. 26  CSJ, 8e, 17 March 2011, No 35617. 25 

Atypical Employment Relationships: The Position in Luxembourg 527 the contract.27 This would be the case, for example, if the employee argued that the fixed-term contract was not valid and that s/he wishes the contract to continue, but the employer rejects the employee’s request. Since express statements are often missing, the employee will in many cases not be entitled to damages for unfair dismissal.28 C.  Termination/End of Fixed-Term Contracts A fixed-term contract automatically ends (depending on the type of limitation), if the calendar date has been reached or the purpose for which it was concluded has been achieved.29 To avoid any misunderstandings about whether this purpose has been met, courts require the purpose for the conclusion of the fixed-term contract to be expressly indicated in the contract. The employer does not need to give notice, as the contract ends automatically. In practice, the employer may inform the employee that the contract is ending, but such information has no specific legal effect. A fixed-term contract can be terminated in accordance with the general regulations on: —— cancellation agreements between the employer and employee to voluntarily end the employment relationship, —— automatic contract termination as provided by law (including on the employee’s death, disability, reaching retirement age, etc), or —— without giving any grounds during the probation period, if such a probation period has been agreed upon. A fixed-term contract cannot be ordinarily terminated, ie terminated with a notice period (dismissal/lay-off), either by the employer (licenciement avec préavis), or by the employee (démission avec préavis).30 In practice, however, the indemnity the employer has to pay in case of unfair dismissal is limited by law31 and can thus not be higher than the costs the employer has to bear if s/he ordinarily terminates the contract of a permanent employee and releases him/her from work during the notice period. A fixed-term contract can be terminated on important grounds either by the employer (licenciement avec effet immédiat) or by the employee (démission avec effet immédiat). Important grounds include serious misconduct (faute grave) by either party, making it impossible to maintain the employment relationship. The breach must be quite severe for the courts to rule

27 

For example: CSJ, ordonnance, 16 March 2006; CSJ, 3e, 31 March 2011, No 35289. CSJ, 3e, 21 February 2013, No 37966. 29  Art L 122-12 CT. 30  Art L 122-13 CT. 31  In general, two months’ salary. 28 

528  Jean-Luc Putz that either party has engaged in ‘serious misconduct’. The rules applicable for this form of termination are the same as for contracts of indefinite duration. Serious misconduct, for example, may be unjustified absence, verbal or physical violence, theft, embezzlement, etc. The conditions of accessing unemployment benefits do not differ for jobseekers who worked under a fixed-term contract and those who worked under a permanent contract.32 D.  Rights and Status of Fixed-Term Worker (i)  Equal Treatment The Labour Code only provides that all legal or contractual rules applicable to permanent employees are also applicable to fixed-term workers.33 Unfortunately, the principle of equal treatment is not as explicitly elaborated as might be required by European law.34 Due to the specificities of fixed-term contracts, the legislator deemed that absolute equality in treatment cannot be imposed.35 A first instance decision has also stated that no principle of equal treatment applies.36 There is no case law of the Court of Appeal on this issue. (ii)  Employment Opportunities Upon the European Commission’s recommendation to fully comply with European law, the legislator added the requirement in 201337 that the employer must inform fixed-term workers about vacancies that become available in the undertaking.38 There is no case law on what the penalty is if the employer violates this obligation. (iii)  Other Matters N/A

32 

Art L 521-3 CT. Art L 122-10 CT. 4 of the Framework Agreement on Fixed-term Work, Council Directive 1999/70/EC. 35  Projet de loi No 3222 sur le contrat de travail, Commentaire des articles, p 18: ‘Mais cet alignement ne peut être total compte tenu de la spécificité du contrat à durée limitée’. 36 Luxembourg Labour Tribunal (Tribunal du Travail de Luxembourg), 10 May 2005, No 2170/2005. 37  Loi du 23 décembre 2013 portant modification de l’article L 122-10 du Code du travail. 38  Art L 122-10 CT. 33 

34 Clause

Atypical Employment Relationships: The Position in Luxembourg 529 E.  Information and Consultation In Luxemburg, employee delegates (délégués du personnel) have to be elected in every undertaking employing 15 employees or more.39 To calculate the total workforce, fixed-term employees are counted proportionally (pro rata temporis) to their presence during the last 12 months, except for those hired to replace an absent (permanent) employee.40 If they meet the legal seniority requirements, fixed-term employees can take part in elections and can even be candidates and be elected as employee representatives. However, the special dismissal protection for employee representatives will not prevent the fixed-term contract from ending once the term is reached. Fixed-term workers have the right to turn to employee representatives for assistance and advice. Unlike for other atypical contracts, the employer is not required to inform or consult the employee representatives if new fixed-term posts are established. Co-determination (workers’ participation in negotiating contractual terms) applies in undertakings employing 150 employees or more;41 it does not, however, apply to the employer’s decision to offer fixed-term contracts or not. F.  Specific Provisions Special provisions exist for different categories of employees,42 including: —— Seasonal workers in agriculture, tourism and viniculture43 can be hired for a maximum duration of 10 months per season. Their contracts can be renewed every season. Depending on the formulation of the contract, seasonal employment can transform into a ‘globally indefinite relationship’ (relation à durée global indeterminée) after a number of years, a concept that is not clearly defined legally. —— Researchers can be subject to specific rules. Employment contracts for academic researchers/staff at the University of Luxembourg do not require objective reasons and their duration can be up to 60 months.44 The Constitutional Court has confirmed that this exception complies with the principle of equal treatment;45 national courts have also ruled that this 39 

Art L 411-1(1) CT. Art L 411-1(2) paras 4 and 5 CT. 41  Art L 414-9 CT. 42  Art L 122-1(3) CT. 43  Art 1 du Règlement grand-ducal du 11 juillet 1989 portant application des dispositions des articles 5, 8, 34 et 41 de la loi du 24 mai 1989 sur le contrat de travail. 44  Art L 122-4(4) CT. 45  Cour Constitutionnelle, 12 April 2013, No 97. 40 

530  Jean-Luc Putz practice does not violate the European rules on non-discrimination.46 Similar exceptions exist for some other research institutes. —— Teachers. Legislation has also introduced exceptions to the maximum number of contract extensions for replacement teachers in secondary schools (chargé de cours). The Constitutional Court has, however, ruled that this practice violates the principle of equal treatment.47 —— Artists are generally listed among the professions for which it is ‘not of general use to conclude a contract of indefinite duration’ and for whom fixed-term contracts are thus admissible, but must abide by the general restrictions mentioned above. For occasional workers in the entertainment industry (intermittents du spectacle), the Labour Code not only stated that the conclusion of fixed-term contracts was always permitted, but also that the contract could be renewed indefinitely.48 The idea behind this exception was that the fixed-term contract provided for more flexibility for the ‘intermittents du spectacle’ because they used to be hired as (more or less bogus) independent contractors. This regime was supposed to give them better access to the social benefits afforded by labour law. However, the CJEU determined that Luxembourg failed to comply with the Framework Agreement on Fixed-Term Work.49 A Law has now been passed50 to restrict the use of fixed-term contracts; an ‘intermittent du spectacle’ will now only be hired for specific projects of limited duration, and the total duration of successive fixed-term contracts may not exceed 24 months. However, within this period, the number of renewals will be unlimited. —— Students. For students, fixed-term contracts are permitted within the context of their training programme, but may not exceed an average of 15 hours per week, except during holidays. Furthermore, holiday jobs for academics and students (emploi des élèves et étudiants pendant les vacances scolaires) can be formalised by a specific type of employment contract that may not, however, exceed two months per year51 and must be performed during school holidays. G.  Collective Bargaining Agreements Deviating from Statutory Provisions In theory, collective bargaining agreements can modify the statutory provisions above if they are more favourable for the employee.52 It is thus 46 

CSJ, 8e, 13 March 2014, No 38046. Cour constitutionnelle, 20 Octobre 2006, No 36. 48  Art L 122-5(3) CT. 49 CJEU, 26 February 2015, C-238/14 European Commission v Grand Duchy of Luxembourg, ECLI:EU:C:2015:128. 50  Projet de loi No 6979, deposited on 1 April 2016. 51  Art L 151-1 CT. 52  Art L 162-12(6) CT: ‘Toute stipulation [d’une convention collective] contraire aux lois et règlements est nulle, à moins qu’elle ne soit plus favorable pour les salariés’. 47 

Atypical Employment Relationships: The Position in Luxembourg 531 ­ ossible to restrict the cases in which fixed-term contracts are permitted, to p restrict their maximum duration or to introduce stricter rules for renewals and successive contracts. It is also possible to define specific indemnities such as a fixed-term bonus (prime de précarité). In practice, however, collective agreements do not contain such clauses. Furthermore, Article L 122-1(2) CT of the Labour Code provides a list of cases in which fixed-term work is allowed (see above) and states that this list can be supplemented by a collective agreement. From a legal point of view, this provision seems futile, since this list is only illustrative and the general requirements (for a specific and temporary task) must always be fulfilled. No collective agreement containing such a clause is known. III.  PART-TIME WORK

Part-time employment has been regulated since 1993,53 following 10 years of animated parliamentary debates.54 The initial legal framework was very rigid but was softened five years later, when the 1998 Action Plan introduced more flexibility in working time.55 A.  Legal Definitions/Formal Requirements A part-time worker is defined as an ‘employee who is engaged in a regular activity, and has arranged a weekly working time with the employer, which is lower than the standard working time applicable in the establishment in accordance with the law or a collective agreement’.56 As the legal weekly working time is 40 hours and almost no collective agreement stipulates fewer weekly working hours, a part-time worker can in practice be defined as any worker hired for 39 hours per week or less. Part-time employment is deemed ‘voluntary’ (travail à temps partiel volontaire), which does not necessarily mean that the employee chooses or wishes to work part-time, but that the employer and employee have to agree on it. The law provides for a specific procedure which the employer can follow to unilaterally change the contractual working conditions (révision unilatérale

53 

Loi du 26 février 1993 concernant le travail volontaire à temps partiel. Projet de loi No 2671, Rapport de la Commission du Travail et de l’Emploi du 26 janvier 1993, p 3. 55  Loi du 12 février 1999 concernant la mise en œuvre du plan d’action national en faveur de l’emploi 1998. 56  Art L 123-1(1) CT: ‘Est considéré comme salarié à temps partiel le salarié qui convient avec un employeur, dans le cadre d’une activité régulière, un horaire de travail dont la durée hebdomadaire est inférieure à la durée normale de travail applicable dans l’établissement en vertu de la loi ou de la convention collective de travail sur cette même période’. 54 

532  Jean-Luc Putz du contrat).57 Whereas some older decisions58 stated that an employer could not implement this procedure to force an employee to work either part-time or full-time (or to change the employee’s weekly working hours), more recent decisions assert that such modification is possible (for example, a reduction of working time by one-third59 or even by 50 per cent60). The employer must have good reasons (motif reel et sérieux) to do so. The employee can object by rejecting the contractual change and leaving the company; s/he is consequently deemed to have been dismissed by the employer and can file a claim for unfair dismissal.61 Some fairly isolated court decisions62 have ruled in favour of flexible part-time work, ie recognised the employer’s right to unilaterally change the employee’s weekly working time. An employee could thus, for example, be hired for 30 to 35 hours a week. More recent decisions stated that such changes are not admissible; a clause stating a variable working time (la durée de travail est variable) is not admissible.63 In one case, for example, a worker was hired for ‘approximately 20 hours a week’. The judges ruled that any hours exceeding 20 had to be considered overtime.64 The law provides for some flexibility. If the parties agree on a part-time clause, the working time may vary by up to 20 per cent from week to week (ie if they agree on a 20-hour work week, the ordinary working time can range from 16 to 24 hours);65 this limit can even be overridden by a simple contractual clause (for example, to vary hours by 40 or 50 per cent). The use of such flexibility implies that the employer respects the constraints of a ‘work schedule’ (plan d’organisation du travail), which has recently been reformed.66 The work schedule must clearly differentiate between full-time and part-time employees67 to ensure that the specific restrictions for the latter are respected.

57 

Art L 121-7 CT. CSJ, 5 June 2003, No 26527; CSJ, 12 December 2002, No 26147. 59  CSJ, 13 January 2005, No 29133. 60  CSJ, 3e, 29 March 2007, No 30057 & 30400. 61  Art L 121-7 CT. 62  See eg CSJ, 20 January 2000, No 22497. 63  CSJ, 8e, 30 May 2016, No 39962. 64 CSJ, 26 June 2008, No 33313: ‘X. rappelle qu’il a été engagé sur base d’une durée de travail qui avait été fixée dans son contrat du 23 avril 1994 à “plus ou moins 20 heures de travail par semaine” … Un consentement éventuel du salarié quant à la fixation aléatoire du temps du travail est inopérant à ce sujet et l’offre de preuve de l’employeur tendant à établir un tel consentement est à rejeter … Par application des articles L.123-5 et L.123-1 (3) susvisés, toute prestation dépassant de 20 pour cent la tâche à mi-temps est à considérer comme heures supplémentaires’. 65  Art L 123-1(3) CT. 66  Loi du 23 décembre 2016 concernant l’organisation du temps de travail et portant modification du Code du travail. 67  Art L 123-1(4) CT. 58 

Atypical Employment Relationships: The Position in Luxembourg 533 —— If no collective agreement specifies a reference period, any undertaking can opt for a period of reference of up to four months. If the selected period exceeds one month, the employer must grant additional annual leave (from 1.5 to 3.5 days per year, depending on the duration of the reference period). The work schedule must be distributed to the employees at least five days before it takes effect and cover at least the upcoming month. —— In a collective agreement (convention collective) or a national agreement (accord en matière de dialogue social interprofessionnel), social partners can agree on a reference period of up to 12 months. The modalities for establishing and distributing the work plan, as well as the compensation relating to the increase in flexibility by additional annual leave or other means, can be freely negotiated. A work schedule should in principle be respected. According to the new legislation, the employer can modify the plan by giving notice of at least three days. If only the work schedule but not the duration of work is modified, no compensation is due for the first two hours; beyond those first two hours, the worker is entitled to 1.2 hours of rest time. If the notice period of three days is not respected, the employee under certain circumstances can refuse to comply with the updated schedule. Overtime is defined as any work exceeding the limitations set by the rules mentioned above.68 Usually, overtime is only possible by common agreement; the employer cannot require a part-time worker to work extra hours. However, the employment contract can define the limitations and conditions in advance under which the part-time worker can be requested to work overtime.69 Overtime is compensated or remunerated in accordance with the rules applicable to all employees. This means that the employee is entitled to 1.5 hours of rest for each hour of overtime;70 according to the law, compensation in the form of a wage increase of 40 per cent should only be used in exceptional circumstances, but in practice, financial compensation is common. The rules on flexibility and overtime do not permit working time to exceed the company’s regular working time. B.  Opportunities for/Right to Part-Time Work Employees of the company who have expressed a wish to change their working time from full-time to part-time work or vice versa should be given

68 

Art L 123-5 CT. Art L 123-4 CT. 70  Art L 211-27 CT. 69 

534  Jean-Luc Putz priority if they have the required professional qualifications or experience.71 The employees have the right to be informed about any vacancies. There is no case law on the penalty that would apply if the employer violates this obligation. The Minister of Labour has announced plans to implement a right to part-time work. The social partners have been given one year to arrive at an agreement; if no agreement is reached, the government might act on its own initiative. C.  Opportunities for/Right to an Extension of Working Time As already mentioned, the employer must first offer any vacancies to parttime workers who have expressed a wish to work full-time. If the law is interpreted strictly, this rule does not apply to part-time workers who want to extend their working time without becoming full-time workers. Furthermore, it can be assumed that if the government implements the right for part-time work, a solution for returning to full-time work or to extend working time will also be introduced. D.  Rights and Status of Part-Time Worker (i)  Equal Treatment The principle of non-discrimination is enshrined in Articles L 123-6 to 123-6 of the Labour Code: —— Same rights. Part-time employees benefit from the same rights as those applicable to full-time employees by law or by collective agreement. Collective agreements can, however, include specific rules for part-time workers.72 —— Wages. Based on their working time and their seniority in the undertaking, part-time workers must be paid proportionally to those equally qualified full-time employees working in an equivalent position in the undertaking or establishment. The concept of wages is defined very broadly and covers all payments to employees, particularly their main salary as well as all supplemental payments and benefits such as bonuses, allowances, free accommodation etc.73

71 

Art L 123-3 CT. These specific rules must, however, themselves be non-discriminatory. 73  Art L 221-1 CT. 72 

Atypical Employment Relationships: The Position in Luxembourg 535 —— Seniority. To determine the employee’s rights related to seniority, they must be calculated for part-time employees as if they had been working in a full-time position. —— Severance payment. Severance payments (indemnité de depart) for employees who have worked in the same undertaking both in full-time and in part-time posts are calculated proportionally to their periods of full-time and part-time employment since the commencement of employment in the undertaking. —— Probation period. The duration of the probation period for part-time employees may not exceed (in calendar days) the limits applicable to full-time employees. In other words, the employer cannot argue that an additional number of months is necessary to test the employee because s/he is present for fewer hours than a full-time worker. More generally, the courts deem that the principle of pro rata temporis is applicable to part-time workers. Though no case law exists, it is certain (in light of the European Court of Justice’s case law) that any unfavourable treatment of part-time worker would be considered indirect discrimination based on gender. The principle of non-discrimination is often difficult to enforce in practice. There is generally very little case law on the provisions for part-time employment. As regards parental leave (congé parental), the laws have recently been amended.74 The opportunities for part-time parental leave have been expanded and access to parental leave for part-time employees has been facilitated. Legislation now differentiates according to the number of weekly working hours and the number of employees: —— Part-time employees who work less than 10 hours per week are not entitled to any parental leave. —— All other employees are entitled to parental leave of four or six months. —— Part-time employees, who work 20 hours or more per week for a single employer, as well as full-time employees can opt for part-time (50 per cent) parental leave, the duration of which is thus doubled to eight or 12 months. —— Full-time employees can apply for one of two more flexible schemes of parental leave, ie either one day off per week for 20 months (80 per cent of their working time) or four months of parental leave distributed over a maximum period of 20 months. The employer must agree or at least submit a written counter-offer. If no agreement is reached, full-time parental leave must be taken.

74 

Loi du 3 novembre 2016 portant réforme du congé parental.

536  Jean-Luc Putz (ii)  Dismissal Protection Dismissal protection does not distinguish between full-time and part-time employees. Once the probation period has ended, the employer can only dismiss him/her for serious misconduct (faute grave) and—if the employee has a contract of indefinite duration—only for serious grounds (cause réelle et sérieuse); the employer must state the grounds for dismissal and provide evidence.75 The employee, in turn, can file a claim for wrongful dismissal, which cannot result in reintegration in the company, but s/he can claim damages. Employment benefits are not paid to jobseekers who worked for less than 16 hours a week.76 (iii)  Other Matters N/A E.  Information and Consultation Employee representatives (delegation du personnel) must be consulted if the employer intends to establish part-time posts within the company.77 The dedicated ‘equal rights representative’ (délégation à l’égalité) must also be informed.78 There is no case law on this subject, but the most reasonable interpretation of this provision is that the employer has the duty to inform the representatives each time a new part-time post is established, but not every time the employee occupying such a post changes or every time the weekly working time of a given position changes. To calculate the total number of the undertaking’s staff to determine if and how many employee representatives need to be elected, part-time employees working 16 hours or more per week are counted as full-time employees; if they work less than 16 hours a week, they are only counted in proportion to their working time. Part-time employees are fully entitled to assistance and consultation by the representatives.79 Part-time employees can also be elected as employee representatives. However, if they are employed by more than one company, they are only eligible to be elected in the company where they work the highest number of hours or, if the hours worked at the companies are identical, then 75  In case of dismissal with notice, grounds need only be provided if the employee requests them, which is mostly the case in practice. 76  Art L 521-1(2) CT. 77  Art L 123-2 CT. 78  Art L 414-15(2) para 2 point 11 CT. 79  Art L 411-1(2) CT.

Atypical Employment Relationships: The Position in Luxembourg 537 the employee may be elected as a representative in the company at which they have the highest seniority.80 No specific provision exists, but it can be assumed that they are entitled to the same number of representation hours (heures de délégation) as full-time employees. A certain number of representatives may be fully exempt from work (délégués-libérés); problems may arise for part-time employees, as the legislation is designed for full-time employees. F.  Other Part-Time Arrangements A situation in which an employee works part-time may also be related to one of the following cases: —— Part-time sick leave (mi-temps thérapeutique) is not (yet) codified in the Labour Code, but is recognised by the social security institutions. The aim is a progressive return to work, in line with the employee’s physical recovery. Employers generally accept this form of part-time work, primarily because it generally has no financial repercussions (parttime sickness allowance is paid by social security).81 Moreover, if the employer refused to accept this form of part-time work, the employee’s doctor could assert that his/her patient is fully unfit for work. —— Part-time parental leave (congé parental à mi-temps) is an option offered by the law (see III.D.(i) above). —— Part-time work may also be the consequence of short-time work (chômage partiel) due to a detrimental economic situation in the given sector (chômage conjoncturel), structural problems affecting a specific undertaking (chômage structurel), weather conditions making certain types of work impossible, especially in the building and construction industry (chômage-intempéries) or accidental breakdowns of the undertaking’s facilities (chômage accidentel). In such cases, the costs are shared between the employer (obligation to bear the initial losses), the employees (indemnities that are slightly lower than their regular wage) and public funds (bearing the additional costs). —— Finally, under certain conditions, it is possible to request a progressive early retirement scheme (préretraite progressive) from the age of 57. Part-time solutions may also be the result of a ‘time account’ (compte épargne-temps), where additional hours or overtime can be ‘saved’ as a

80 

Art L 413-5 CT. allowance (indemnité pécuniaire) will be paid during the employee’s first weeks of sick leave at 80 per cent by the employer’s insurance (Mutualité des employeurs); the remaining 20 per cent is paid by the employer. After the initial weeks of sick leave, health insurance (Caisse Nationale de Santé) will take over 100 per cent of the costs. 81  Sickness

538  Jean-Luc Putz time-credit for the future. The Labour Code only mentions the possibility for collective agreements to implement such time accounts.82 Some collective agreements, for example in the banking sector, provide detailed regulations. Discussions between the social partners on the legal provisions for time accounts are ongoing, but no clear direction seems to be emerging; an initial Bill was deposited, but withdrawn before it was discussed in Parliament.83 Shared workplaces (job sharing) as such do not exist in Luxembourg, as the employment relationship is individual and personal. An employer can of course hire several employees to perform a specific task. However, individual contracts must be signed. The liabilities remain personal and individual, both on the employer’s side (wage payments, health and safety, etc) and on the employee’s side (performing the required work). Contract termination (dismissal) must also be individual. An employer cannot sign a contract with two or more employees and then be free to decide who should work; such a contract would be considered an independent contract of service. On-call work is not mentioned in the Labour Code and would probably be considered illegal. The same applies to zero-hours contracts. The rules mentioned above offer some flexibility to conclude part-time contracts; an on-call clause would circumvent this legal protection. Furthermore, it has been decided that an employee cannot be hired for, say, ‘at least 100 hours per year’; such a flexible working scheme is not allowed.84 G.  Collective Bargaining Agreements Deviating from Statutory Provisions Collective bargaining agreements may deviate from statutory provisions, but only if they contain more favourable conditions for the employees.85 It is thus possible, for example, to define the conditions under which employees have the right to work part-time. It is also possible to make working time less flexible for employers than stipulated by law. However, such clauses have not been introduced to date. As mentioned above, it is also possible for employment contracts to increase flexibility by raising the percentage of permissible fluctuations of weekly working time.86 Although the law only refers to clauses in individual employment contracts, the courts consider such clauses to also be valid if they are agreed in collective agreements—meaning that employees’ individual consent is not required. As regards the collective agreement in the 82 

Art L 211-27(1) CT. de loi No 6234 portant introduction d’un compte épargne-temps pour les salariés de droit privé. 84  CSJ, 3e, 10 June 2010, No 34261. 85  Art L 162-12(6) CT. 86  This is an exception to the principle that deviations in collective agreements are only possible if they are more favourable for the employees. 83  Projet

Atypical Employment Relationships: The Position in Luxembourg 539 cleaning industry, the Court of Appeal accepted a clause on fluctuations in working time of up to 50 per cent;87 changes in working time between 95 and 142 hours per month are thus possible. IV.  TEMPORARY AGENCY WORK

Temporary agency work first appeared in Luxembourg in 1968.88 Only 25 years later, in 1994, was a legal framework established.89 Temporary workers represent no more than two per cent of Luxembourg’s total workforce. Seasonal and economic fluctuations have a very strong impact on the number of temporary agency workers.90 Whereas cross-border commuters represent around half of the workforce in Luxembourg, they also represent two-thirds of temporary work agency staff.91 A.  Legal Definitions/Formal Requirements In many regards, temporary employment is subject to the same rules as fixed-term employment. The definitions provided in the Labour Code are:92 —— ‘Temporary work agency’ (entrepreneur de travail intérimaire): any physical or legal person, whose commercial activity consists of hiring and remunerating employed workers to temporarily place them at the disposal of a user undertaking for the accomplishment of a specific and temporary task.93 —— ‘Work assignment contract’ (contrat de mission): the contract by which the temporary worker obliges him-/herself to be tied to a temporary work agency in exchange for remuneration, and to perform specific and temporary tasks for a user undertaking.

87 

CSJ, 3e, 6 December 2007, No 31624. Projet de loi No 3346 portant réglementation du travail intérimaire et du prêt temporaire de main-d’œuvre, Rapport de la Commission du Travail et de l’Emploi, 12 April 1994, p 1; Projet de loi No 3222, Rapport de la Commission du Travail, de la Sécurité Sociale, de la Santé et de la Famille du 20 avril 1989, p 1. 89  Loi du 19 mai 1994 portant réglementation du travail intérimaire et du prêt temporaire de main-d’oeuvre. 90 RETEL/Observatoire de l’Emploi, Tableau de bord du marché de l’emploi No 3, juin 2015. 91 Chambre des Salariés Luxembourg (CSL), Panorama Social 2015 No 1 (April 2015), p 103. 92  Art L 131-1 CT. 93  ‘Toute personne, physique ou morale, dont l’activité commerciale consiste à embaucher et à rémunérer des travailleurs salariés en vue de les mettre à la disposition provisoire d’utilisateurs pour l’accomplissement d’une tâche précise et non durable, dénommée ci-après “mission”.’ 88 

540  Jean-Luc Putz —— ‘Temporary worker’ (travailleur intérimaire): the employed worker who signs a task type contract and is temporarily placed at the disposal of one or more user undertakings to perform specific and temporary tasks. A user undertaking/employer can only hire a temporary worker to perform a specific and temporary task; the temporary work may not be provided on a long-term basis for a post that is part of the regular and permanent activity of the company.94 The situations in which temporary work is admissible are the same as for fixed-term contracts. Two types of contracts must be signed for temporary work: the labour supply contract (contrat de mise à disposition) signed by the user undertaking and the temporary work agency, and the work assignment contract (contrat de mission) between the temporary agency worker and the agency.95 The assignment contract is deemed to be an employment contract. It must be signed within two working days from the commencement of the task to be performed and must contain the same clauses as the labour supply contract, as well as: —— the end date or (if this date is not fixed by a calendar date) a minimum duration; —— if its purpose is to replace an absent employee, the name of that employee; —— a probation period, which cannot be renewed for the same task; and —— a renewal clause, where applicable. The maximum duration of the probation period is far more limited than for fixed-term contracts.96 Seniority is calculated by adding all of the temporary assignments the worker has carried out for the same user undertaking.97 Clauses preventing the temporary agency worker from being hired directly by the user undertaking,98 as well as clauses preventing the user undertaking from hiring him/her99 are not valid. The employee must be explicitly informed about his/her right to be hired. 94 

Art L 131-4(1) CT. Art L 131-6 and following CT. 96  Fixed-term contracts: three, six or 12 months according to qualifications and revenue. Temporary work: 95 

97 

Duration of assignment

Maximum probation period

≤ 1 month

3 days

> 1 month

5 days

> 2 months

8 days

Art L 131-14 CT. Art L 131-6(1) para 4 CT. 99  Art L 131-4(3) CT. 98 

Atypical Employment Relationships: The Position in Luxembourg 541 The total duration of a temporary task may not exceed 12 months (renewals included), ie only half of the admissible duration for fixed-term contracts.100 Exceptions exist for seasonal contracts. Moreover, the Minister of Labour may extend the limitation for certain categories of highly specialised employees. This limitation for each worker only applies if the assignments are performed at the same user undertaking and with the same temporary work agency. In one case, the Court of Appeal101 noted that the temporary worker had worked nearly continuously for the same user undertaking for more than 12 months; however, no penalty was incurred, because the contracts had been concluded with two different temporary work agencies. The term must usually be set for a specific calendar date and can be set for the same purposes as for fixed-term contracts.102 The work assignment contract can be renewed twice.103 However, it must contain a renewal clause. Once a temporary task has been completed, the employer cannot use a temporary worker again under a temporary agency work contract (nor under a fixed-term contract) for the same post prior to the expiration of a waiting period.104 The waiting period corresponds to one-third of the duration of the previous task (renewals included). Exceptions to the waiting period are the same as for fixed-term contracts. If the rules mentioned above are violated, criminal sanctions may apply. However, the fine of up to EUR 10,000 stipulated by Article L 134-3 CT of the Labour Code is rarely applied, because no lawsuits have been filed. From a civil law perspective, the penalty is a reclassification of the contract,105 but only if certain restrictions are violated. If the term or total duration of the contract is not respected, the work assignment contract is deemed to be a contract of indefinite duration. Unlike for fixed-term employment contracts (and for no obvious reasons), the law does not provide for reclassification for other types of infringements (such as missing clauses, excessive number of renewals, etc); it is unclear what civil law sanction would apply in this case. A reclassification would lead to an indefinite contract between the temporary agency worker and the agency; the user undertaking is not involved.106 There have been a few court cases on the matter, though very few resulted in a reclassification; this might be attributable to a broad interpretation of the law by the courts. 100 

Art L 131-8(2) CT. CSJ, ordonnance, 27 avril 2006. 102  Art L 131-8(1) CT. 103  Art L 131-9 CT. 104  Art L 131-11 CT. 105  Art L 131-8(3) CT. 106  CSJ, 3e, 21 March 2013, No 37491; CSJ, 3e, 21 March 2013, No 38017. 101 

542  Jean-Luc Putz For example, in one case, a temporary agency worker was able to prove that he had signed 50 contracts for the same user undertaking and the same activity as a technical operator over a two-year period. However, after analysing all documents, the judges came to the conclusion that although certain legal provisions had been violated, none that would legally imply a reclassification of the contract.107 In another case, the judges noted that the temporary worker had continuously worked for the same undertaking as a driver for nearly two years; the waiting time between successive contracts had not been respected, but none of the successive contracts had exceeded the maximum duration of 12 months; the claim for reclassification of the contract was therefore rejected.108 B.  Registrations, Licensing, Financial Guarantees, etc Temporary work agencies must obtain special authorisation from the Ministry of Labour and must provide a financial guarantee.109 This guarantee has to cover the payment of all salaries and supplements, as well as indemnities, taxes and social security contributions. The professional integrity and qualifications of the managers is also checked. Only temporary authorisations are initially issued. C. Relationship between Temporary Agency Worker and Temporary Work Agency (i)  Fixed-Term and Part-Time Contracts While the contract between the temporary agency worker and the temporary work agency could theoretically be of indefinite duration, only fixed-term contracts for the duration of each assignment are concluded in practice. The contract can be a full- or part-time contract. (ii)  Rights and Obligations/Liability The temporary work agency pays the salary of the temporary worker as well as the social security contributions and taxes. The social minimum wage (salaire social minimum) as well as the principle of non-discrimination must

107  CSJ, 3e, 10 May 2007, No 30950: ‘Ni une éventuelle violation de l’obligation concernant l’indication du nom du salarié remplacé, ni encore une violation de la règle imposant à l’entrepreneur de travail intérimaire de respecter une période de carence à l’expiration du contrat de mission égale au tiers de la durée de ce contrat, ne sauraient être sanctionnées par la requalification du contrat de mission en contrat de travail à durée indéterminée’. 108  CSJ, 8e, 13 February 2014, No 38846. 109  Art L 131-2 and L 131-3 CT.

Atypical Employment Relationships: The Position in Luxembourg 543 be respected (see below under IV.E.(i)). The user undertaking cannot be held liable for unpaid wages. As the official employer, the temporary work agency is also responsible for all administrative obligations. (iii)  Dismissal Protection The work assignment contract can be terminated with immediate effect (résiliation avec effet immédiat) either by the temporary work agency or by the temporary worker, if very serious grounds (motif grave) arise, ie for serious misconduct by either party. The possibility to ordinarily (ie with a period of notice; résiliation avec préavis) terminate a work assignment contract is not given. It is a fixedterm agreement that both parties must respect until it expires. If one of the parties decides to cancel the contract (without the existence of very serious grounds), it is liable to the other party: —— The temporary work agency would have to pay the wages due until the agreed date for the completion of the task, but (generally) limited to two months’ salary.110 —— The temporary worker would have to pay the actual and proven loss caused to the temporary work agency, but (generally) limited to one month’s salary.111

D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship No contract is signed between the worker and the user undertaking. There is no legal provision nor any case law or doctrine on how this factual relationship might be legally classified. (ii)  Rights and Obligations/Liability The user undertaking must guarantee fair and decent working conditions for the temporary worker, especially with reference to occupational health

110  Art L 131-16 CT; Art 13.1. of the collective agreement for temporary workers: Règlement grand-ducal du 10 juin 2014 portant déclaration d’obligation générale de la convention collective de travail du 28 mars 2014 applicable aux travailleurs intérimaires des entreprises de travail intérimaire, conclue entre la Fedil Employment Services (FES), d’une part et les syndicats OGB-L et LCGB, d’autre part. 111  Art L 131-17 CT.

544  Jean-Luc Putz and safety;112 the agency cannot be held responsible in this respect. The user undertaking has no payment obligation towards the temporary worker. The issue of civil liability towards the user undertaking is more complex. A permanent employee is only responsible towards the employer in case of gross negligence or wilful misconduct,113 whereas s/he remains fully responsible towards third parties.114 Article 14.4 of the collective agreement is applicable to temporary work and extends this limitation of civil liability to temporary workers; even if the user undertaking is a ‘third party’ from a legal point of view, the employee can only be held responsible in case of gross or wilful misconduct. (iii)  Health and Safety During the assignment, the user undertaking is responsible for the worker’s occupational health, hygiene and security, as well as all other (legal, contractual, administrative) regulations on employment conditions and employee protection. Article 8 of the collective agreement for temporary workers asserts that temporary workers are entitled to the same safety equipment as the user undertaking’s permanent staff. The user undertaking has to provide adequate equipment. If the temporary worker uses his/her own tools or equipment, compensation must be paid. The employee representatives in charge of occupational health and safety must be informed about every temporary agency worker hired.115 E.  Relationship between Temporary Work Agency and User Undertaking The relationship between the temporary work agency and the user undertaking is regulated by the labour supply contract (contrat de mise à disposition).116 This is a commercial contract between the user undertaking and the temporary work agency. Litigation relating to this contract must be brought before the commercial court. The contract must be concluded in writing at the latest within three working days after the commencement of the temporary worker’s assignment. It must contain certain clauses, such as the reason why a temporary worker is needed, the required professional qualifications, the date and location of the assignment and the salary paid by the user undertaking to its employees with

112 

Art L 131-12 CT. Art L 121-9 CT. 114 The national courts decided to not follow French case law on the limitation of civil ­liability between an employee and third parties; CSJ, 24 February 2010, No 33995. 115  Art L 312-3(7) CT. 116  Art L 131-4 CT. 113 

Atypical Employment Relationships: The Position in Luxembourg 545 the same or an equivalent qualification. Moreover, the principle of freedom of contract applies. The remuneration paid to the temporary work agency by the user undertaking can be freely agreed upon; there are no rules or limitations. F.  Rights and Status of Temporary Agency Worker (i)  Equal Treatment As regards remuneration, temporary workers must be paid at least the wages due to the permanent employees of the user undertaking, after completing their probation period, if they have the same or equivalent qualifications, and must be hired under the same conditions as permanent workers by the user undertaking.117 If there is no comparable employee, the comparison shall be based on the collective agreement or on the wages being paid for the same type of work in other companies in the relevant industry. Article 10.1. of the collective agreement for temporary workers specifies that the temporary worker’s salary must include all wage components paid in the user undertaking, including occasional wages such as bonuses and supplementary payments such as lunch vouchers (chèque-repas) or travel reimbursements (frais de déplacement) under the same conditions as those applicable in the user undertaking. Article 10.4. states that the temporary work agency must be notified of any salary increases at the user undertaking that take place during the temporary worker’s assignment and applied immediately to the temporary worker; this also applies to changes in premiums for overtime, night work, work on Sundays or public holidays, etc. Case law states that the principle of equal pay must be interpreted broadly and that it applies to all forms of remuneration.118 However, in practice, only very few cases involving temporary agency work have been heard, and most of the claims did not succeed. As the claimant bears the burden of proof, s/he has to provide information on the wages paid at the user undertaking—information that is nearly impossible to obtain. A first challenge is thus to identify comparable employees and to collect information on their level of remuneration. Furthermore, in the few cases that have been brought before the court, the Court of Appeal adopted a restrictive approach. For example, it was decided that the payment of a bonus in the user undertaking would only be due to the temporary worker if s/he was working on the day the bonus was paid out.119 The same was decided for a one-off premium granted by a collective agreement.120 117 

Art L 131-13 CT. 3e, 11 October 2012, No 37187; CSJ, 8e, 16 February 2012, No 36749; CSJ, 8e, 9 June 2011, No 35901; CSJ, 3e, 12 December 2013, No 38684; CSJ, 3e, 12 December 2013, No 37685. 119  CSJ, 8e, 8 March 2012, No 36504; CSJ, 8e, 9 June 2011, No 35901. 120  CSJ, 3e, 14 March 2013, No 38706; CSJ, 3e, 2 May 2013, No 36926. 118  CSJ,

546  Jean-Luc Putz Luxembourg’s law does not cover any salary increase or extra payment for temporary or precarious contracts, such as the French ‘prime de précarité’; the social security contributions are the same as for all other types of contracts. Temporary workers must have access to collective facilities under the same conditions (especially to the canteen facilities and transport, but also to showers, changing rooms, breakrooms or company-owned libraries121) as the employees employed by the user undertaking.122 (ii)  Other Matters N/A G. Information and Consultation/Representation of Temporary Agency Worker Temporary agency workers are taken into account when calculating the user undertaking’s total staff, by calculating the average number over 12 months, unless they have been hired for replacement purposes.123 They are not eligible and do not vote in elections for representatives within the user undertaking.124 However, they have the right to address and consult the representatives in the same way as any other permanent employee.125 The representatives must be consulted when the employer intends to use temporary agency workers, and the representatives have the right to review the contracts of assignment.126 H. Strikes The right to strike does not differentiate between temporary agency workers and any other workers. The right to strike is strictly regulated in Luxembourg. A conciliation procedure must be implemented before any strike can take place. Furthermore, according to case law, strikes must be based on an occupational claim. The strike must always be directed against the employer, ie against the temporary work agency and not the user undertaking.

121  Projet de loi No 3446 portant réglementation du travail intérimaire et du prêt temporaire de main-d’œuvre, Commentaire des articles, p 14. 122  Art L 131-15 CT. 123  Art L 411-1 (2) CT. 124  Art L 413-6 CT. 125  Art. 413-6 para 2 CT. 126  Art L 134-1 CT and L 414-3(3) CT.

Atypical Employment Relationships: The Position in Luxembourg 547 In practice, strikes are extremely uncommon in Luxembourg. For temporary agency workers, who work for multiple undertakings and are less unionised, the question of their right to strike seems to be very theoretical. As for fixed-term contracts, it is prohibited to use temporary workers as substitutes in case of strikes.127 The collective agreement also states that temporary work agencies must commit themselves to not hire out workers as substitutes in case of strikes.128 I.  Collective Bargaining Agreements Deviating from Statutory Provisions A collective agreement establishes the general working conditions for temporary agency workers.129 It has been declared to be of general application to all temporary work agencies; its territorial scope is the entire territory of the Grand-Duchy. Most of the provisions in the collective agreement have simply been copied from the Labour Code or do not go beyond the legal obligations. Some articles provide additional protection, such as the principle of equal treatment that is more precisely elaborated, some additional clauses on public holidays, and the principle that a temporary agency worker is entitled to refuse to work overtime. An important bargaining achievement is the implementation of a separate body, financed by temporary work agencies (0.6 per cent of staff expenses) to offer professional training to temporary agency workers (Fonds de formation sectoriel pour l’Intérim).

127  Art L 122-1(2) and L 131-4(1) CT: ‘Sont notamment considérés comme tâche précise et non durable … le remplacement d’un salarié temporairement absent ou dont le contrat de travail est suspendu pour des motifs autres qu’un conflit collectif de travail’. 128  Art 14.3. of the collective agreement: ‘Les entreprises de travail intérimaire s’engagent à ne pas mettre des travailleurs intérimaires à la disposition d’un utilisateur pour remplacer des travailleurs grévistes’. 129  Règlement grand-ducal du 10 juin 2014 portant déclaration d’obligation générale de la convention collective de travail du 28 mars 2014 applicable aux travailleurs intérimaires des entreprises de travail intérimaire, conclue entre la Fedil Employment Services (FES), d’une part et les syndicats OGB-L et LCGB, d’autre part.

548

21 Atypical Employment Relationships: The Position in Malta LORNA MIFSUD CACHIA

I. INTRODUCTION

A

TYPICAL WORKERS, PARTICULARLY fixed-term or part-time workers, are quite common in Malta. This is because atypical workers provide the flexibility that typical workers cannot. Employers need part-time and fixed-term workers, particularly for seasonal jobs in certain industries during the Christmas season and over the summer. Hence, Maltese legislation regulates atypical work contracts in line with European labour law, albeit with a local ‘flavour’. The atypical work contracts discussed in this report are covered by European directives which have been fully transposed into Maltese law. The atypical work contracts discussed here are fixed-term work contracts; part-time work contracts and temporary agency work contracts. II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements Fixed-term work is regulated in Malta by the Contracts of Service for a Fixed Term Act of 20071 (‘the Fixed-Term Regulations’). Regulation 2(1) stipulates that ‘contracts of service for a fixed-term’ refers to contracts of service entered into between an employer and a worker, where the end of the contract is determined by reaching a specific date, by completing a specific task, or by the occurrence of a specific event. Such contracts of service are frequently resorted to when workers are required to work on specific timedefined projects in the construction industry, for example. 1  Subsidiary Legislation 452.81 (The title in Maltese reads: Regolamenti dwar Kuntratti ta’ Servizz għal Żmien Fiss 2007). In Malta, laws are published in Maltese and in English, but in case of any conflict between the two versions, the Maltese text prevails (Constitution of Malta, art 74).

550  Lorna Mifsud Cachia B.  Legal Stipulation of the Contractual Terms Under Maltese law, a contract of work does not have to be concluded in writing, but if a contract is concluded for a fixed term, the employer has to ensure that the term is indicated either in the employment contract (if such a contract is entered into by the parties) or, alternatively, in the information provided to the worker2 on the work conditions. A contract for a fixed term cannot be established for a period of more than four years without the employer stating objective reasons in the contract, if any, why the contract cannot be converted into a contract of indefinite duration. In the absence of objective reasons, the contract will automatically convert into a contract of indefinite duration.3 It follows that a fixed-term contract cannot be extended beyond four years or be successively renewed for a period extending four years in total if no objective reasons exist justifying a renewal of the contract beyond this limitation.4 This is the general rule. However, there are a number of factors that need to be taken into consideration. The determination of the four-year period is well-defined. The four-year period refers to the commencement of the fixed-term contract and its end date, regardless of whether it was concluded for a four-year period at the start or whether successive shorter contracts were signed. Secondly, the relevant regulation refers to ‘continuous employment’. The term ‘continuous employment’ covers all contracts that have been renewed within six months from their termination, and the period between contracts shall be included in the calculation of the above-mentioned four-year period.5 The regulations require the existence of objective reasons justifying the successive renewal of fixed-term agreements or fixed-term contracts beyond the four-year period. By ‘objective reason’, the regulations mean reasons for which the retention of a worker on a fixed-term contract beyond the four-year period is justified due to specific circumstances related to the given activity. Activities exist that commonly justify an extension of fixed-term contracts. A construction project, for example, might take longer than originally planned, without warranting the retention of a worker beyond completion of the project. The regulations state that such circumstances ‘may result from the specific nature or from the inherent characteristics of the contract or of the tasks to be performed’.6 The regulations also refer to situations in which the worker was employed as a substitute or similar worker in a successive chain of contracts or as a temporary substitute for an absent worker; or if the worker occupies a top management position or a post that necessitates a higher level of trust or other similar exceptional circumstances.7 2 

Information to Employees Regulations 2003, reg 4(h). Fixed-Term Regulations 2007, reg 7(6)(i). 4  Ibid, reg 7(1) et seq. 5  Ibid, reg 7(5). 6  Ibid, reg 7(4). 7 Ibid. 3 

Atypical Employment Relationships: The Position in Malta 551 Hence, an employer cannot decide to retain a worker beyond the fouryear limitation without an objective justification. C.  Termination/End of Fixed-Term Contracts A contract for a fixed term generally ends when the term for which the contract was entered into expires.8 Any deviation from the general rule will result in a legal consequence, depending on the circumstances. If a fixedterm contract is terminated by either party before the expiry of the term for which it was entered into, for example, then the party terminating the contract is required to pay the other party half of the wages that would have been payable for the full term which has not yet elapsed.9 A contract for a fixed term may also be subject to a probation period if agreed by the parties, and such a contract may be terminated during the probation period without reason.10 A fixed-term contract may furthermore be terminated for reasons of redundancy; however, this cannot be done at random, but is only justified under certain circumstances.11 Furthermore, any termination due to redundancy must meet the ‘last-in-first-out’ requirement.12 The Employment and Industrial Relations Act of 2002 (‘EIRA 2002’) does not distinguish between contracts for a definite term and those for an indefinite term with reference to their termination on grounds of redundancy. The EIRA 2002 provides for workers who are retained by the employer following the expiry of the term of their fixed-term contract. Such workers are deemed to have been retained by the employer for an indefinite period if the worker does not conclude a new employment contract within 12 working days from the date of expiry of the previous fixed-term contract.13 Usually, a fixed-term contract is terminated and not renewed. However, there are a number of provisions dealing with the renewal of fixed-term

8  The contract expires upon completion of a specific task, if that was the reason for its conclusion. Employment and Industrial Relations Act, 2002, Chapter 452 of the Revised Edition of the Laws of Malta, arts 33 and 34 and Fixed-Term Regulations, definition of ‘contract of service for a fixed term’, reg 2(1). 9  Employment and Industrial Relations Act, 2002, Chapter 452 of the Revised Edition of the Laws of Malta, art 36(11) and (12). 10  Ibid, art 36(2). The Employment and Industrial Relations Act, 2002, does not distinguish between the termination of a fixed-term work contract during the probation period and the termination of a contract of indefinite duration. 11  Maltese courts have analysed the matter of redundancy numerous times and the salient points of this analysis can be found in, inter alia, the following judgments: (i) Josanne Cassar v Standard Publications Limited, Court of Appeal in its Inferior Jurisdiction, 30/9/2015; (ii) Victoria Spiteri v St Catherine’s High School, Court of Appeal in its Inferior Jurisdiction, 18/10/2006; (iii) John Bartolo v International Machinery Limited, Court of Appeal in its Inferior Jurisdiction, 9/5/2007. 12  Employment and Industrial Relations Act, 2002, Chapter 452 of the Revised Edition of the Laws of Malta, art 36(4). 13  EIRA, art 34(2).

552  Lorna Mifsud Cachia contracts. The general principle is that if a worker has been continuously employed under a fixed-term contract for a period exceeding four years, the fixed-term contract is automatically transformed into a contract of indefinite duration if the employer cannot provide objective reasons justifying the renewal of the contract for a fixed term only.14 When calculating the fouryear period, certain elements need to be taken into consideration. According to the regulations, the work is continuous when another contract of service for a fixed term is entered into within six months from the date of the lapse of the previous work period.15 Furthermore, if another contract of service for a fixed term is entered into after the lapse of the six-month period, the work will still be considered to have been continuous if the tasks under the new contract are largely the same as those performed under the preceding fixed-term contract,16 if they entail changes related to technological progress or changes in work practices or in the way tasks are carried out, or if the contract includes a promotion related to any work performed in a previous contract.17 An interesting point that has arisen before the Maltese courts is whether the payment of a termination bonus stipulated in a fixed-term agreement would dissolve the employment relationship, even if the worker is retained, and whether such payment would justify a change in the work conditions of the worker. The Court of Appeal decided that the payment of a termination bonus is only a contractual term which must be observed and hence does not in any manner preclude the application of the Fixed-Term Regulations 2007 and in this case (in view of the fact that the given worker had been in the service of the defendant employer since 18 October 2000) the contract must be converted into one of indefinite duration and that the conditions of the indefinite employment contract cannot be less favourable than those applied under the fixed-term contract.18 Another issue that has been dealt with by the Maltese courts is whether the notice period of termination given by a worker whose employment contract had been transformed from a fixed-term into one of indefinite duration is calculated from the date of the commencement of the employment relationship in general or from the date of the commencement of the contract of indefinite duration. The court, citing the EIRA 2002, stated that the valid date for determining the period of notice a worker must give, who had previously worked under a fixed-term contract which was transformed into a contract of indefinite duration, should be the date from the initial fixed-term contract.19

14 

Fixed-Term Regulations 2007, reg 7. Proviso to reg 7(5) of the Fixed-Term Regulations 2007. 16  Ibid, proviso 3. 17  Ibid, proviso 4. 18  Victor Hili v Bank of Valletta plc, 29/10/2009. 19  Dragonara Casino Limited v Rachel Falzon, Court of Appeal, 20/11/2009. 15 

Atypical Employment Relationships: The Position in Malta 553 D.  Rights and Status of Fixed-Term Worker (i)  Equal Treatment The general principle of equal treatment is contained in Article 34 of the EIRA 2002, which states that the conditions of work may not be less favourable for a fixed-term worker than those applicable to regular employees at the same workplace with a contract of indefinite duration, unless this is justified for objective reasons. The same principle is contained in the Fixed-Term Regulations 2007, which states that workers under a fixedterm contract shall not be treated less favourably than comparable permanent workers simply because they are employed on a fixed-term contract.20 However, an employer may differentiate between the conditions of work for fixed-term workers and comparable permanent workers21 based on ‘recognition of length of service, experience, qualifications or conditions of pay and work attached to the contract of service immediately preceding the contract of service for a fixed term, and other such differences as are justified on objective grounds’.22 Differences may furthermore arise if the task for which the fixed-term worker has been employed is specific or if he or she has been hired in a top management position and the job includes objective considerations that justify such differentiation.23 (ii)  Work Opportunities Fixed-term workers may not be discriminated against and must have equal access to work opportunities like regular employees with a contract of ­indefinite duration. In fact, the Fixed-Term Regulations 2007 impose the duty on the employer to inform fixed-term workers of any vacancies that become available and to give such workers the same opportunities as other workers to obtain a contract of indefinite duration at the place of work.24 The mere fact that a worker has been employed on a fixed-term basis does not in any manner preclude him/her—or should not preclude him/ her—from being considered for a permanent post. Hence, the Regulations create an obligation for the employer to not discriminate against fixed-term workers, even with regard to access to a permanent post. Should the worker believe that a right conferred on him/her by the Fixed-Term Regulations has been violated, s/he may file an official complaint against the employer with the Industrial Tribunal.25 Furthermore, any person violating the provisions 20 

EIRA, art 4. EIRA, Proviso to art 4. 22  Ibid (a). 23  Ibid (b). 24  Reg 5(1) Fixed-Term Regulations 2007. 25  Reg 8 Fixed-Term Regulations 2007. 21 

554  Lorna Mifsud Cachia of the Fixed-Term Regulations may also be criminally prosecuted and, if found guilty, is liable to pay a fine of a maximum of EUR 1,164.69. E.  Information and Consultation The Fixed-Term Regulations 2007 do not make reference to information and consultation of workers, but the Worker (Information and Consultation) Regulations 200626 cover the duties of employers in terms of information and consultation of workers and the Regulations do not, in any manner, differentiate between individuals with a contract of indefinite duration and those with a fixed-term contract. Where applicable, the employer is required to consult and inform all workers, independently of their status. The law does not establish any difference in treatment with respect to the information and consultation of workers. F.  Specific Provisions No specific provisions exist. G.  Collective Bargaining Agreements Deviating from Statutory Provisions There are no provisions in the law prohibiting any deviations but unlike for other categories of workers, there are no provisions explicitly permitting any deviations. More favourable provisions arising from collective bargaining agreements (or individual agreements) are recognised in the Fixed-Term Regulations 2007. III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements Part-time work in Malta is regulated by the Employment and Industrial Relations Act of 200227 (‘EIRA 2002’) and the Part-Time Employees Regulations 2003 (‘Part-Time Regulations’).28 Article 2(1) of EIRA 2002 stipulates that a ‘part-time worker’

26 

Subsidiary Legislation 452.96. 452 of the Revised Edition of the Laws of Malta: www.justiceservices.gov.mt/ DownloadDocument.aspx?app=lom&itemid=8918, last accessed 25 March 2017. 28 Subsidiary Legislation 452.79; www.justiceservices.gov.mt/DownloadDocument.aspx? app=lom&itemid=11213, last access 25 March 2017. 27  Chapter

Atypical Employment Relationships: The Position in Malta 555 means a worker whose normal hours of work, calculated on a weekly basis or on an average over a period of work of up to one year, are less than the normal hours of work of a comparable full-time worker and who is not a full-time worker with reduced hours.

A full-time worker refers to ‘a worker who is deemed to be a full-time worker in terms of any recognised conditions of work’.29 B.  Opportunities for/Right to Part-Time Work There is no right to part-time work as such in Maltese law. However, there is a right for a part-time worker to remain in part-time work (as discussed in section III.D below). Part-time workers have the right to be informed about the availability of full-time work opportunities and full-time workers have the right to be informed about part-time work opportunities at the same employer. Such information must be shared in a timely manner to allow interested workers to apply in time for any part-time or full-time vacancy.30 C.  Opportunities for/Right to an Extension of Working Time Nothing precludes a part-time worker from requesting that his/her working time be extended, but the employer is not required to comply with such requests. D.  Rights and Status of Part-Time Worker (i)  Equal Treatment Both the EIRA 2002 and the Part-Time Regulations 2003 lay down the principle that part-time workers shall not be treated any differently simply because they are part-time workers. Article 25(1) of the EIRA 2002 explicitly states that ‘Part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work parttime, unless different treatment is justified on objective grounds.’ Regulation 4(1) of the Part-Time Regulations 2003 contains the same principle, but places the responsibility on the employer. It states that it is the employer’s duty to ensure that part-time workers are not treated less favourably than comparable full-time workers, both with regard to the

29  30 

EIRA 2002, art 2(1). Part-Time Regulations 2003, reg 9.

556  Lorna Mifsud Cachia terms of the worker’s employment contract and to detrimental treatment by the employer. However, there is a clear exception to the general rule of equal treatment, namely objective grounds that justify differential treatment. Part-time workers have the right to receive pay at the same hourly rate as a full-time worker.31 No difference between full-time and part-time employees can be made with regard to wages for overtime work.32 Furthermore, all part-time workers have a pro rata entitlement to the minimum days of annual leave, leave for jury duty, public holidays, sick leave, parental leave and all other legal forms of leave established by the EIRA 2002.33 They are also entitled to statutory bonuses and other supplementary income payable to comparable full-time workers who work for the same employer.34 Both the EIRA 2002 and the Part-Time Regulations 2003 lay down the principle of equal treatment which is further elaborated in the Part-Time Regulations 2003. (ii)  Dismissal Protection The same rules apply to terminations of both part-time and full-time contracts. Hence, terminations of part-time contracts must follow the same rules as terminations of full-time contracts and part-time employees are likewise protected against unfair dismissal. Different rules apply during the probation period. In Malta, the first six months of any employment are deemed probationary.35 If the work is at an executive, managerial or administrative level and the salary is at least twice the national minimum wage, the probation period shall be one year.36 During the probation period, neither party needs to provide a reason for termination, ie either party can terminate the employment relationship without cause.37 However, one week’s notice must be given if the employment relationship has lasted more than one month.38 In this regard, it is also important to note that such work (if indefinite) may only be terminated by the employer either on grounds of redundancy39 or for good and sufficient cause.40 In case of termination on grounds of redundancy, the employer must give notice (including to part-time workers) as stipulated in Article 36 of the EIRA 2002. The longer the worker has been

31 

Part-Time Regulations 2003, reg 4(2). Ibid, proviso thereto. 33  Ibid, reg 6(1)(a). 34  Ibid, reg 6(1)(b). 35  EIRA 2002, art 36(1). 36  Ibid, proviso 1. 37  Ibid, art 36(2). 38  EIRA 2002, art 36(2) proviso 1. 39  Ibid, art 3. 40  Ibid, art 14. 32 

Atypical Employment Relationships: The Position in Malta 557 in the service of the employer, the longer the notice period.41 A part-time worker may also terminate his/her employment relationship, but does not need to provide any reason for the termination.42 As far as general grounds for termination are concerned, no distinction is made between part-time and full-time workers. A part-time worker may thus be dismissed for any good and sufficient reason and for redundancy. The Part-Time Regulations stipulate reasons that are not considered good and sufficient for the dismissal of a part-time worker. That is, part-time workers enjoy special protections against dismissal. A worker’s refusal to transfer from part-time to full-time work or vice versa, for example, does not in itself constitute a valid reason for termination of an employment relationship.43 However, this general stipulation does not in any manner prejudice justified terminations under the EIRA 2002.44 In other words, if a full-time employment relationship needs to be reduced to part-time due to a reduction in business and the only way to retain the employee is to change his/her contract to part-time work, and the worker refuses, the employer may terminate the employment relationship. A part-time worker may refuse to work full-time and vice versa, and a refusal to accept a change in the conditions of his/her employment contract does not justify termination of the employment relationship unless such a change in working hours is necessary on the part of the employer for business reasons. If there is good cause to terminate the employment relationship in accordance with the EIRA 2002 and the worker refuses to accept the change in working hours (say from part-time to full-time work), the employer may terminate the employment relationship for good and sufficient cause. The Part-Time Regulations 2003, regulation 11(1)(a) stipulate that the part-time worker shall be deemed to have been dismissed unfairly if the worker: (i) brought proceedings against the employer for violating the regulations;45 (ii) requested a written statement of the reasons for the employer’s differential treatment between the part-time employee and a comparable full-time worker but did not receive any;46 (iii) provided evidence or information of a violation in connection with proceedings under the Part-Time Regulations;47 (iv) reported a breach of the Part-Time Regulations by the employer or any other person;48 41 

Ibid, art 5. Ibid, art 3. 43  Part-Time Regulations 2003, reg 10. 44  Ibid, reg 10. 45  Ibid, reg 11(1)(a)(i). 46  Ibid, reg 11(1)(a)(ii). 47  Ibid, reg 11(1)(a)(iii). 48  Ibid, reg 11(1)(a)(v). 42 

558  Lorna Mifsud Cachia (v) alleged that the employer infringed the Part-Time Regulations;49 or (vi) refused (or proposed to refuse) to forgo a right stipulated in the PartTime Regulations.50 The presumption of dismissal for an unjust cause on the basis of (v) is forfeited by the worker if the allegation he/she makes is ‘false and not made in good faith’. The entire system of protection for part-time workers as stipulated in the Part-Time Regulations 2003 would otherwise collapse if part-time workers were to be presumed to have been dismissed unfairly on the basis of their own false allegations. The six grounds listed above essentially constitute the fundamental grounds of the presumption that the worker has been dismissed unfairly. In other words, if a worker, say, has testified in connection with proceedings under the Part-Time Regulations 2003 brought by another worker, and his/her employment contract is subsequently terminated, there is a presumption that his/her contract was terminated because s/he testified against the employer. However, the question arises whether such a presumption is juris et de jure or juris tantum. It is hereby submitted that the answer to this question lies in the remedy available to the worker. If the worker feels his/her contract was unfairly terminated, s/he can have recourse to the Industrial Tribunal which would be requested to determine whether the termination was for a just or unjust cause.51 The worker must file his/her claim stating that one of the above-mentioned grounds subsists. The onus of proof then shifts to the employer to prove that there was just cause to terminate the worker’s employment contract. In other words, no automatic right to compensation exists for unjust termination, if the termination is based on any of the grounds mentioned above. The Part-Time Regulations 2003 also state that the same presumption that a worker has been terminated for an unjust cause exists if the employer believes or suspects that the worker has engaged or intends to engage in any of the actions listed in (i) to (vi).52 Part-time workers are protected against dismissal just like full-time employees. In fact, part-time workers enjoy special protection, as discussed above. This puts part-time workers into a special category of workers who are afforded higher protection than full-time workers in view of the fact that certain reasons cannot be used as justifications by the employer for dismissing part-time employees.

49 Ibid. 50 

Ibid, reg 11(1)(a)(vi). According to the EIRA 2002 but not to the Part-Time Regulations 2003, because the PartTime Regulations 2003 speak of redress the part-time employee can have if his/her employer has infringed a right s/he is entitled to under the Part-Time Regulations 2003 (reg 12). The unlawfulness of termination without just cause (or redundancy) is not stipulated by the Regulations but by the EIRA 2002. 52  Part-Time Regulations 2003, reg 11(1)(b). 51 

Atypical Employment Relationships: The Position in Malta 559 (iii)  Other Matters The Part-Time Regulations 2003 stipulate that the employer shall ensure that vocational training is made available to part-time workers as is the case for full-time workers.53 E.  Information and Consultation The Part-Time Regulations 2003 do not make any reference to the information and consultation of workers, but the Employee (Information and Consultation) Regulations 200654 contain rules on information and consultation of workers and they do not differentiate between full-time and part-time workers. Where applicable, the employer is bound to consult and inform all workers independently. The law does not differentiate between full-time and part-time employees with respect to the information and consultation of workers. F.  Other Part-Time Arrangements There are none that are worthy of note. G.  Collective Bargaining Agreements Deviating from Statutory Provisions The Part-Time Regulations 2003 recognise more favourable provisions established in collective and individual work agreements. The Part-Time Regulations 2003 represent the national minimum standard, as it were, and any deviations, as long as they are more favourable to the employee than the Regulations themselves, will be accepted.55 IV.  TEMPORARY AGENCY WORK

A.  Legal Definitions/Formal Requirements Temporary agency work is regulated by the Temporary Agency Workers Regulations 2010 (or ‘the Regulations’).56 Regulation 2 of the T ­ emporary Agency Workers Regulations defines the key concepts of the said Regulations. 53 

Part-Time Regulations 2003, reg 8. (Information and Consultation) Regulations 2006. Subsidiary Legislation 452.96. 55  Part-Time Regulations 2003, reg 14. 56 Temporary Agency Workers Regulations 2010. Subsidiary Legislation 452.106: www. justiceservices.gov.mt/DownloadDocument.aspx?app=lom&itemid=11437&l=1 (last accessed 18 May 2017). 54 Employee

560  Lorna Mifsud Cachia The term ‘temporary agency worker’ is defined as a Worker who has entered into a contract of employment or an employment relationship with a temporary work agency and who is assigned, whether on a regular or on an irregular basis, to a user undertaking to work temporarily under its supervision and direction.57

‘Temporary work agency’ is defined as Any natural or legal person who enters into contracts of employment or employment relationships with temporary agency workers and who assigns, whether on a regular or on an irregular basis, the temporary agency workers to user undertakings to work there temporarily under their supervision and direction, whether or not such activity is the main or ancillary activity of the temporary work agency.58

‘User undertaking’ is defined as ‘any natural or legal person for whom and under the supervision and direction of whom a temporary agency worker works temporarily.’ The formal elements are quite clear. First, the worker and the temporary work agency must have entered into an employment relationship. The Regulations would not apply without the existence of an employment relationship. Furthermore, the temporary work agency must assign the workers to user undertakings. This is an important factor, as the temporary work agency otherwise loses its scope to operate as such. Finally, the worker must be assigned to a user undertaking which is in charge of the supervision and direction of the temporary agency worker during the duration of the assignment. This is the classic scenario of such atypical work arrangements: a triangular arrangement whereby the supervision and direction of the worker is transferred from the temporary work agency to the user undertaking. The question may arise who is the effective employer of the temporary agency worker whilst s/he is on an assignment? What happens, for example, if the agency worker receives conflicting instructions from the temporary work agency and the user undertaking? It is submitted that the uniqueness of this particular atypical work contract lies in this feature of the relationship. The worker seems to have two superiors and serves ‘two masters’. Temporary work agencies generally do not give conflicting instructions to the workers, but it is not impossible for such a situation to arise, in which case the worker may find him-/herself in the unpleasant situation of having to choose between two ‘employers’. The Regulations are silent on this point and the formal requirements for establishing a temporary work agency relationship are quite clear as to leave no doubt that it is the user undertaking that is in charge of the supervision and d ­ irection

57  58 

Temporary Agency Workers Regulations 2010, reg 2 (definition 3). Ibid (definition 4).

Atypical Employment Relationships: The Position in Malta 561 of the worker during the assignment. The issue becomes even murkier when one takes into consideration the very important fact that for all intents and purposes of the law, the temporary work agency shall always be considered the employer of the temporary agency worker and the temporary agency worker is considered to be the employee of the temporary work agency. Hence, any provisions relating to the employer in the Temporary Agency Workers Regulations 2010 are deemed to only refer to the temporary work agency, and that the user undertaking must not, under any circumstance, be deemed the employer of the temporary agency worker.59 However, the supervision and direction lie with the user undertaking during an assignment. Hence, whilst it is clear that all obligations incumbent on the employer in accordance with the Regulations are only binding on the temporary work agency, the Regulations do not specify what a temporary agency worker should do if s/he receives conflicting instructions from the temporary work agency and the user undertaking and whether the violation of one set of instructions, which conflicts with the other, constitutes a ground for fair dismissal by the temporary work agency. The matter must, of course, be examined on a case-by-case basis, but it is argued that the solution to such conundrum could lie in the Civil Code.60 All subjects of law are required to act in accordance with the diligentia bonus paterfamilias.61 This essentially means that the bonus paterfamilias62 has to carry out his/her duties with all the care and diligence ordinarily expected in any given situation. In this case, the ordinary reasonable individual would be expected to perform his/her duties for the user undertaking and if the temporary work agency gives him/her instructions that would somehow violate fundamental obligations, the worker should take up the matter with the agency and keep the user undertaking informed. The user undertaking is, after all, the agency’s client and it is definitely not in the best interest of the client and the commercial relationship between the agency and user undertaking for the client to be dissatisfied. It is thus submitted that the worker would still be required to act with reasonable care towards the user undertaking—which, after all, is in charge of the supervision and direction of the worker. It is nonetheless crucial for the worker to continue liaising with the temporary work agency in view of the fact that he/she has to protect him-/herself against dismissal for breach of instructions and insubordination. 59 

Temporary Agency Worker Regulations 2010, reg 3(2). Chapter 16 of the Revised Edition of the Laws of Malta. 61  Civil Code, art 1032(1) ‘A person shall be deemed to be in fault if, in his own acts, he does not use the prudence, diligence, and attention of a bonus paterfamilias. (2) No person shall, in the absence of an express provision of the law, be liable for any ­damage caused by want of prudence, diligence, or attention in a higher degree.’ 62  Which can literally be translated as ‘the good father of the family’ and which is also translated as the ‘ordinary, reasonable man’. 60 

562  Lorna Mifsud Cachia B.  Registrations, Licensing, Financial Guarantees, etc There is no licensing requirement for a temporary work agency to operate. Such agencies are treated as regular employers by the Department of Industrial and Employment Relations. The Temporary Agency Workers Regulations 2010 do not impose any licensing or registration obligations, and neither do they require any financial guarantees or any special consideration that would not also be applicable to any other employer. C. Relationship between Temporary Agency Worker and Temporary Work Agency The basic principle in the relationship between the temporary agency worker and the temporary work agency is that it is one of employment. The law is clear in this regard. Regulation 3(2) of the Regulations stipulates that: for all intents and purposes of the Employment and Industrial Relations Act of 2002, and of any regulations made thereunder (that is, under the labour law acquis) and under the Temporary Agency Worker Regulations 2010, the temporary work agency shall be considered the employer of the temporary agency worker; and that all provisions contained in all said legislation shall be applicable to this relationship mutatis mutandis. This, of course, is of fundamental significance. It is thus indisputable that the relationship between the temporary agency worker and the temporary work agency is one of employment and that the temporary agency worker shall be considered to be the employee of the temporary work agency. (i)  Fixed-Term and Part-Time Contracts In view of the fundamental and basic principle contained in the Temporary Agency Workers Regulations 2010, namely that the temporary work agency is an employer, it follows that any provisions in the Fixed-Term Regulations 2007 and Part-Time Regulations 2002 are applicable mutatis mutandis to the relationship between the temporary agency worker and the temporary work agency. Essentially, therefore, the same protection afforded to fixed-term and part-time workers employed by ‘regular’ employers, is also afforded to temporary agency workers. The Temporary Agency Workers Regulations 2010 do not make any distinction between workers and in fact put temporary agency workers on the same footing as any other worker. That is, temporary agency workers enjoy the same rights as both fixed-term and part-time workers. (ii)  Rights and Obligations/Liability Temporary agency workers have the same rights and obligations of any other worker in Malta. The right to equal treatment of temporary agency

Atypical Employment Relationships: The Position in Malta 563 workers (discussed below at IV.F.(i)) is one such right, but the temporary agency worker has less liability than other workers and enjoys some other rights that are inherent in his/her very fluid employment situation. For example, a temporary agency worker has the right to be informed by the user undertaking about any vacant posts in the user undertaking, giving such a worker the same opportunity as any other worker in the undertaking to find a permanent post.63 (iii)  Dismissal Protection The EIRA 2002 applies in full to the temporary agency worker.64 The temporary agency worker can only be dismissed for good cause or redundancy, should s/he have concluded a contract of indefinite duration and in the case of a contract for a fixed term, upon the expiration of the term. S/he cannot be dismissed at will, and the temporary work agency may only dismiss the temporary agency worker for the same reason any other workers can be dismissed. D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship The user undertaking shall not, in any manner whatsoever, be deemed the employer of the temporary agency worker.65 This is the only issue the Regulations stipulate about the terms of the relationship between the two parties. This therefore begs the question: what type of relationship actually exists between the two parties? The law does not specify so, but it is assumed that the relationship between a temporary work agency and a user undertaking is a sui generis relationship of two independent parties (the user undertaking usually does not pay the worker’s salary and the worker is not employed by or with the user undertaking), which builds on two separate relationships: the commercial relationship (a legal contractual relationship of service) between the user undertaking and the temporary work agency, and the employment relationship between the temporary agency worker and the temporary work agency. The natural reply to the question regarding the legal type of relationship is that the worker, through his/her obligations towards the temporary work agency (the employer) has the obligation to provide services for his/her employer’s client (ie the user undertaking) in the best possible manner. The temporary agency worker has to exercise diligentia bonus paterfamilias in the performance of

63 

Temporary Agency Workers Regulations 2010, reg 6(1). EIRA 2002, art 36. 65  Temporary Agency Workers Regulations 2010, reg 3(2). 64 

564  Lorna Mifsud Cachia his/her obligations in the service of the employer’s client (the user undertaking). The relationship between the temporary agency worker and the user undertaking is thus not one of employment, but rather one with elements of a civil law contract (without payment, but with direction and supervision). (ii)  Rights and Obligations/Liability The user undertaking does not have the usual rights and obligations towards the temporary agency worker that a ‘regular’ employer has towards his/her employees. This does not, however, mean that the user undertaking has no obligations whatsoever. First, the user undertaking has the obligation to inform the temporary agency worker of any vacant posts available within the user undertaking to ensure that such a worker has the same opportunity as any other worker in the undertaking of finding permanent employment.66 The Regulations stipulate that the information shall be ‘displayed in a suitable place in the user undertaking and shall be given in a timely manner in order to allow the worker to apply for the vacancy’.67 Furthermore, the temporary agency worker cannot be requested to pay any fee for recruitment by a user undertaking.68 (iii)  Health and Safety The Temporary Agency Workers Regulations 2010 are silent on health and safety issues, but the General Provisions for Health and Safety at Work Places Regulations 200369 (‘Health and Safety Regulations 2003’) ­specifically ­mention (inter alia) temporary workers. The Health and Safety Regulations 2003 define the term ‘temporary worker’, stating that this term includes any worker under a fixed-term contract of employment and any worker who has a temporary employment relationship with an employer, including: (b) a worker having a temporary employment relationship with an employer who has a temporary employment business, and where the worker is assigned to work for, and under the control of an undertaking and, or an employment making use of his services.70

Regulation 18(1) of the Health and Safety Regulations 2003 states that an employer shall ensure that temporary workers are afforded the same level of occupational health and safety protection as that of other workers in the user 66 

Ibid, reg 6(1). Ibid, reg 6(2). 68  Ibid, reg 6(3). 69  General Provisions for Health and Safety at Work Places Regulations 2003. Subsidiary Legislation 424.18 www.justiceservices.gov.mt/DownloadDocument.aspx?app=lom&itemid= 10723&l=1 (last accessed 18 May 2017). 70  Health and Safety Regulations 2003, reg 3(b). 67 

Atypical Employment Relationships: The Position in Malta 565 undertaking … and for this purpose shall remain responsible for the duration of the assignment for the conditions related to safety, hygiene and health at work regulating the performance of work (emphasis added).

This is an interesting provision which, however, may conflict with Regulation 3(2) of the Temporary Agency Worker Regulations 2010, which states that notwithstanding any contrary regulation,71 the user undertaking shall not be deemed to be the employer of a temporary agency worker. On the other hand, however, the Health and Safety Regulations 2003 assert that the employer (without defining the employer in the same manner as the Temporary Agency Worker Regulations 2010) shall ensure that temporary workers are provided the same level of protection. In terms of health and safety regulations, the employer is deemed to be Any person for whom work or service is performed by a worker or who has an employment relationship with a worker, and includes a contractor or subcontractor who performs work or supplies a service or undertakes to perform any work or to supply services.72

It would transpire from this definition that the health and safety obligations in relation to the temporary agency worker fall both on the user undertaking by virtue of the first part of this definition (‘any person for whom work or service is performed by a worker’ and a user undertaking is indeed a person for whom the temporary agency worker performs work), but also on the temporary work agency (by virtue of the second part of the definition: ‘or who has an employment relationship with a worker’). This would be a logical conclusion from the raison d’être behind the occupational health and safety acquis in Maltese law because, whilst the temporary work agency should ensure that it is assigning the worker to a healthy and safe workplace, it is the user undertaking that is in charge of the day-to-day management of the workplace, meaning the user undertaking should also be responsible for the occupational health and safety of the temporary agency worker. The employer also has other important obligations, namely the obligation to provide temporary workers with detailed information on any special occupational qualifications or skills to ensure that they can work safely,73 any health surveillance required to be provided under the Health and Safety Regulations 2003 or indeed any other regulations under the Occupational

71  It is important here to reproduce in full Regulation 3(2) of the 2010 Regulations: ‘For all intents and purposes of the Act, any regulations made thereunder and under any other law, the temporary work agency shall be considered the employer of the temporary agency worker, and such temporary agency worker shall be considered the employee of the said temporary work agency, and the provisions contained therein shall apply mutatis mutandis to such a contract of employment or employment relationship, and that notwithstanding anything to the contrary, the user undertaking shall not be considered as the employer of the temporary agency worker.’ 72 Chapter 424 of the Revised Edition of the Laws of Malta. Occupational Health and Safety Authority Act 2001, art 2. 73  Health and Safety Regulations 2003, reg 18(2)(a).

566  Lorna Mifsud Cachia Health and Safety Act,74 and the specific features of the job to be filled by the temporary agency worker, including any additional specific risks insofar as these features are likely to affect occupational health and safety.75 Each temporary agency worker is to be provided with said information prior to the commencement of his/her duties76 and the employer also has the obligation to provide the temporary worker with any training on risks inherent in the tasks s/he has been assigned. The training shall be commensurate to the particular characteristics of the job, taking into account the temporary agency worker’s qualifications and experience.77 Furthermore, where the work to be assigned to a temporary agency worker requires medical surveillance by virtue of the work being associated with severe risks to the health and/or safety of the worker, the employer shall not allow the worker to carry out such work unless adequate medical surveillance is provided, the adequacy of which shall be proportionate to the work assigned.78 The Health and Safety Regulations 2003 stipulate that it shall be the obligation of the employer to inform the temporary work agency79 of the qualifications required for the job to which the temporary agency worker will be assigned.80 Furthermore, the temporary work agency has the obligation to inform the temporary agency worker of these facts and must also ensure that any contract signed between the temporary work agency and the user undertaking specifies the medical surveillance required.81 The Maltese legislator does not want any lacunae in the law governing parties responsible for the health and safety of temporary agency workers at the place of assignment within the user undertaking. In spite of the fact that the terminology used in the respective legislative instruments differs, the rationale and objective is very clear. Furthermore, it is also important to note that both Acts are, in a manner of speaking, intertwined to ensure that the temporary agency worker is protected. E.  Relationship between Temporary Work Agency and User Undertaking This relationship is not regulated in the Temporary Agency Workers Regulations 2010, but is clearly a matter of private law (which is referred 74 

Ibid, reg 18(2)(b). Ibid, reg 18(2)(c). 76  Ibid, reg 18(2) (proviso 1 thereto). 77  Ibid, reg 18(2) (proviso 2 thereto). 78  Ibid, reg 18(3). 79  This is the terminology used in these regulations. 80  Health and Safety Regulations 2003, reg 18(4). 81 Ibid. 75 

Atypical Employment Relationships: The Position in Malta 567 to as ‘civil law’ in Maltese law) and is thus regulated in the Civil Code (Chapter 16 of the Revised Edition of the Laws of Malta). Hence, both parties are considered private contracting parties that enter into a private contract regulated by standard contractual laws. There is no specific legislation regulating this relationship. F.  Rights and Status of Temporary Agency Worker (i)  Equal Treatment The Temporary Agency Workers Regulations 2010 make it exceptionally clear that the temporary agency worker shall enjoy the same basic working and employment conditions for the duration of the assignment at a user undertaking as s/he would be entitled to had s/he been employed directly with the user undertaking to occupy the same job, by virtue of the EIRA 2002 or any regulations issued thereunder, or any other legislation or by virtue of any applicable collective agreement.82 The Regulations also state that ‘basic working and employment conditions’ refer to those regarding pay, the duration of working time, overtime, rest breaks, rest periods, night work, annual leave, public holidays, the protection of pregnant women, women who have just given birth or who are nursing, the protection of children and young people and equal treatment for men and women and any action to combat discrimination based on sex, race or ethnic origin, religion, beliefs, disabilities, age or sexual orientation.83 The concept of ‘pay’ is also defined as Remuneration or earnings payable to the worker by his employer, that is, the basic wage, any statutory cost of living increase payable under the Act or under any other law, any statutory bonuses and allowances payable under the Act or under any other law, the payment for overtime work at the applicable rate, payment in respect of public holidays, payment in respect of annual leave, payment in respect of maternity leave and any applicable shift allowances.84

However, if the temporary agency worker has concluded an employment contract of indefinite duration with the temporary work agency that pays the temporary agency worker’s wages in between assignments, the equal treatment in relation to pay shall not apply to that particular worker’s situation.85 Furthermore, should the temporary agency worker have a contract that does not provide for payment between assignments, the equal ­treatment

82 

Temporary Agency Worker Regulations 2010, reg 4(1). Temporary Agency Worker Regulations 2010, reg 4(2). 84  Ibid, reg 4(3). 85  Ibid, reg 5(1). 83 

568  Lorna Mifsud Cachia regulation in relation to pay shall not apply for the first four weeks of an assignment, if the assignment lasts 14 weeks or more.86 The Temporary Agency Workers Regulations 2010 also impose the obligation on the temporary work agency to give the temporary agency worker an explanatory written statement (upon the worker’s request), if s/he considers that the agency may have treated him/her in a manner that infringes the right to equal treatment.87 If the temporary work agency fails to issue such a statement to the worker explaining the difference in treatment within 21 days from the date of the request,88 the temporary work agency may refer the matter to the Industrial Tribunal.89 The right to equal treatment is enshrined in the Temporary Agency Workers Regulations 2010 and any exceptions are only in relation to pay as discussed above. (ii)  Other Matters The Temporary Agency Workers Regulations 2010 explicitly state that temporary agency workers shall be given access to any amenities or collective facilities in the user undertaking and that services and facilities such as child care, canteen facilities, transport services and other services should be available to the temporary agency worker as they are to workers employed with the user undertaking, and that any difference in treatment must be justified by objective reasons.90 Furthermore, any vocational training programmes available at the user undertaking should also be available to the temporary agency worker, and if there is any difference in treatment between the temporary agency worker and the workers employed directed by the user undertaking, it must be justified by objective reasons.91 G. Information and Consultation/Representation of Temporary Agency Worker The temporary agency worker shall be included in the calculations: for determining thresholds for the purposes of worker representation; for the purposes of information and consultation rights in terms of Article 38 of the EIRA 2002, the Transfer of Business (Protection of Employment) Regulations 2003, and of the Employee (Information and Consultation) Regulations 2006; for the purpose of determining a collective redundancy in terms of Article 37 86 

Ibid, reg 5(2). Ibid, reg 11(1). 88  Ibid, reg 11(2). 89  Ibid, reg 12(1). 90  Temporary Agency WorkerRegulations 2010, reg 8(a). 91  Ibid, reg 8(b). 87 

Atypical Employment Relationships: The Position in Malta 569 of the EIRA 2002 and the Collective Redundancies (Protection of Employment) Regulations 2003. This inclusion, however, shall only be made insofar as the temporary work agency is concerned. That is, temporary agency workers are not included in the workforce of the user undertaking for the purposes of this legislation.92 However, the user undertaking must provide suitable i­nformation on the use of temporary agency workers when providing ­information on its employment situation to bodies representing workers in terms of the EIRA 2002 and of regulations that are passed under the EIRA 2002.93 H. Strikes Strikes are not covered by the Temporary Agency Workers Regulations 2010; trade disputes are regulated by the EIRA 2002.94 The legal provisions regulating trade disputes do not preclude temporary agency workers from engaging in such action, providing that the conditions for the lawfulness of the action are abided by. Part II of the EIRA 2002 does not specifically mention temporary agency workers, nor are any other atypical workers mentioned. Hence, there is no provision precluding temporary agency workers from entering trade disputes. Maltese law does not specifically regulate whether temporary agency workers may replace striking workers. However, it is argued that whilst the law does not specifically prohibit it, given that the spirit of the law allows workers the right to strike (and the right not to strike) in case of a trade dispute, it would certainly violate the spirit of the law (and hence the right of workers to strike) if the employer were allowed to hire temporary workers to replace the striking workers. Hence, it is submitted that this would not be permitted under Maltese law. I.  Collective Bargaining Agreements Deviating from Statutory Provisions The Temporary Agency Workers Regulations 2010 are the national minimum provisions regulating temporary agency work. The Regulations are without prejudice to any more favourable conditions contained in any individual contract or any collective agreements.

92 

Ibid, reg 9. Ibid, reg 10. 94  The legal provisions in Part II of the EIRA 2002 regulate trade disputes, the organisation of trade unions and employers’ associations, etc. 93 

570

22 Atypical Employment Relationships: The Position in Montenegro VESNA SIMOVIĆ-ZVICER

I. INTRODUCTION

T

HE LABOUR LAW,1 which has been in force since 2008, is continually amended to adapt the regulations on employment ­ ­relationships to the conditions of the market economy. Further harmonisation of the existing regulations with ILO conventions, with the Revised European Social Charter—which was ratified at the end of 2009—as well as with a number of EU directives, was needed. The Labour Law has therefore been amended multiple times. However, the most significant amendments to the Law were introduced in December 2011, with the recognition of new forms of employment and the creation of conditions for more flexible regulation of employment relationships, such as the leasing of employees. The amendments to the Labour Law also provided solutions aimed at establishing a balance of interests between employees and employers, in accordance with international labour standards, including fixed-term employment contracts. In addition, Montenegro’s Labour Law also covers other atypical forms of employment such as: part-time contracts, contracts on reduced working hours, temporary and occasional work contracts, as well as contracts to perform activities outside of the employer’s premises.2

1  Zakon o radu (Official Gazette of Montenegro, No 49/2008, 26/2009, 88/2009, 26/2010, 59/2011, 66/2012, 31/2014 and 53/2014). 2  These contracts can be concluded for the manufacturing of certain products and for the provision of services in the employer’s sector, and they are performed outside the employer’s premises (production at home, collection of secondary raw materials, sale of books, brochures, newspapers, provision of services electronically, etc). See art 164 of the Labour Law.

572  Vesna Simović-Zvicer II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements One of the most significant amendments to the Labour Law was the introduction of regulations on the conclusion of employment contracts of ­indefinite duration. There are, of course, exceptions to this rule, as is the case for any rule. These exceptions are provided for in Article 25 of the Labour Law; paragraph 1 states that a contract of employment may be concluded for a fixed term either for the purpose of performing certain jobs the duration of which is predetermined for objective reasons, or due to the occurrence of unforeseeable circumstances or events. It should be noted that one of the essential elements of the employment contract is the period for which it is concluded (a definite or indefinite term).3 To prevent possible misuses, it is envisaged that the employment contract shall be deemed to have been concluded for an indefinite period if the contract does not specify its duration (Article 24(3)). Moreover, the employer must conclude the employment contract with the employee prior to the commencement of work. Otherwise, if an employee begins working without a signed employment contract, s/he will be considered to have commenced working for an indefinite period on his/her first day of work (Article 22(1) and (2)). The position of case law is that this provision applies to employees who are engaged for an indefinite period as well as those engaged for a fixed term.4 B.  Lawful Stipulation of the Contractual Terms The possibility of concluding a fixed-term contract is limited so that employers cannot conclude one or more continuous or successive fixed-term contracts with the same employee for a total of more than 24 months (paragraph 2). In addition, to further protect against potential misuses, the law stipulates that if the interruption of contracts is less than 60 days, it shall be deemed that the employee has been continuously employed by the employer (paragraph 3). The legal solution is not particularly clear-cut, ie it is not expressly stated whether an employee who has been employed by the employer for 24 months may conclude another fixed-term contract or a contract of indefinite duration at a later point in time with that same employer if the work has been interrupted for a certain period. The exception to the limitation on concluding a fixed-term contract for a period of more than 24 months is reserved for three cases only: 1) to replace a temporarily absent employee; 2) to perform seasonal work, and 3  4 

See art 24(1) item 7. Supreme Court of Montenegro, Rev No 583/14 of 26 March 2014.

Atypical Employment Relationships: The Position in Montenegro 573 3) to work on a given project until its completion, in accordance with the law and the relevant collective agreement. The replacement of an absent worker is one of the most common reasons for concluding a fixed-term contract. A temporary absence may exist in the following cases: maternity and parental leave;5 leave for adoptive parents; temporary incapacity for work due to illness; the suspension of rights and obligations;6 unpaid leave, and others. The Labour Law does not contain a definition of seasonal work, which may leave some room for misuse of fixed-term contracts. In practice, seasonal work refers to jobs that are to be carried out during a particular season (eg the picking of fruit and vegetables, or preserving green spaces) and may last for several months out of the year, either continuously or with interruptions. Work on a project is envisaged as an exceptional case for concluding a fixed-term contract. The law stipulates that the contract in this case may remain valid until the completion of the project, in accordance with the Labour Law and the collective agreement. However, no lex specialis deals with this type of employment relationship, and it has not even been considered in the context of collective agreements. The justification for such a solution exists in the fact that there is a need to engage individuals in certain scientific projects, in theatre projects, television, construction, etc. However, in practice this type of contract is mostly found in the NGO sector, the functioning (and funding) of which is predominantly based on projects. Labour Law regulations restricting the conclusion of fixed-term contracts do not contribute to the aim the legislator had in mind when

5 Amendments to the Labour Law of 2011 provide for significant changes in maternity leave. The Law focuses on the protection of the rights of employees who are taking care of their children. In accordance with the principle of reconciliation of professional and family obligations, the protection of rights to parental leave of both parents (parental leave in addition to maternity leave). Maternity leave for a working mother conists of 45 days’ leave following the child’s birth and 28 days’ mandatory leave before delivery. Parental leave can be used for a period of 365 days from the date of the child’s birth; this right can be exercised by both parents equally, or if the mother terminates the use of this right, the father can use the remaining days of the leave. See arts 111 and 111a of the Labour Law. 6  According to art 76(1) of the Labour Law, the rights and obligations of an employee related to labour are suspended, if s/he is absent from work due to: 1) an assignment to work abroad as part of an international technical or cultural and educational cooperation, in diplomatic, consular and other missions, as well as to complete vocational training or education, with the consent of the employer; 2) election or appointment to a state function in accordance with the law, whose performance requires a temporary cessation of work with the employer until the expiry of the term of office; 3) serving a prison sentence, a safety measure, corrective or protective measure for up to six months. The spouse of an employee who is sent to work abroad in terms of paragraph 1, item 1 of this article has the right to suspension of employment (art 76(2)).

574  Vesna Simović-Zvicer adopting the amendments to the Labour Law, namely: the limitation of fixed-term employment. This resulted from the fact that Labour Law did not limit the number of successive contracts that can be concluded between an employer and an employee within a 24-month period. The major disadvantage of this solution is that the limitation on the conclusion of a fixed-term contract is not linked to the workplace, but to the person, ie to an employee. This means that the employer may conclude an unlimited number of fixed-term contracts for a specific post with different persons, if a continuous need therefor arises. To prevent potential misuses of the legal norms regulating the conclusion of fixed-term contracts, the Labour Law in Article 26 provides that if a fixed-term contract is concluded contrary to the aforementioned provisions or if an employee continues to work for an employer after the expiration of the fixed-term contract as initially agreed, it shall be regarded as having been concluded for an indefinite period, provided that the employee agrees to such employment. Thus, it can be concluded that the law provides for the transformation of a fixed-term contract into one of indefinite duration against the employer’s wishes in the following cases: —— if a fixed-term contract is concluded contrary to the provisions of Labour Law, or contrary to the cases provided by the Law; —— if an employee continues to work for the employer upon the expiration of 24 months. In this case, it suffices for the employee to continue working for the employer just one day after the expiry of this period for the fixed-term contract to be transformed into one of indefinite duration. Additionally, the employee’s consent is essential, ie s/he must accept the transformation of his/her fixed-term employment relationship into one of indefinite duration. On the other hand, an exception to the principle of voluntariness is made as regards the employer. Fines are provided for both the employer as a legal entity (ranging from EUR 500 to EUR 20,000) and for the person responsible at the undertaking (ranging from EUR 30 to EUR 2,000). It should be noted that the General Collective Agreement7 (Opšti ­kolektivni ugovor) provides that the transformation of a fixed-term employment into one of indefinite duration may be regulated in an annex to the contract of employment.8 However, for such a transformation to take place, the fixed-term employment contract must have been concluded based on the legally stipulated procedure. This procedure is regulated by the Law on ­Employment and Exercising of Rights with Respect to Unemployment

7  Official Gazette of Montenegro, No 14/14. The General Collective Agreement applies to all employers and employees in Montenegro. 8  See art 7 of the General Collective Agreement.

Atypical Employment Relationships: The Position in Montenegro 575 Insurance9 (Zakon o zapošljavanju i ostvarivanju prava iz osiguranja od nezaposlenosti), which in Article 27 provides for the obligation of public announcement. In this regard, if the employment relationship is not concluded on the basis of a public announcement, it will be considered illegal. Case law treats such situations as de facto work, and thus if a person worked under a ­fixed-term ­contract that was concluded without a prior public announcement procedure, there are no conditions for the transformation of such a contract into one of indefinite duration.10 This implies that the post must be publicly advertised, otherwise, the employment relationship will be deemed unlawful. As regards fixed-term employment, it should be noted that the amendments to the Labour Law of 2011 provide that the period for which a female employee has concluded a fixed-term contract will be extended until the expiration of the employee’s entitlement to maternity leave if her contract expires during the period she is on maternity leave (Article 108(4)). In this case, the General Collective Agreement provides for the extension of employment contracts through annexes to the contracts (Article 7 of the General Collective Agreements), which have become an integral part of the contract. Hence, the question arises whether the transformation of the fixed-term contract into one of indefinite duration takes place if the woman, after the extension of her employment contract due to maternity leave, has been employed with the undertaking for more than 24 months. It can be concluded that in this case, no transformation of the employment contract will take place, because the employer did not have the opportunity to express his/her free will (which is based on voluntariness as an essential element of the concept of employment) regarding the extension of the employment contract, but the contract will be extended in accordance with the Law. Another issue that is often the subject of attention is trainees. Pursuant to Article 39 of the Labour Law, a fixed-term contract may be concluded with trainees to allow them to learn to work independently. Case law demonstrates that in this situation, the fixed-term employment contract will not be transformed into one of indefinite duration, even if the employee continues to work for the employer upon the expiration of the probation period, or if the internship is extended in case of absence from work due to a temporary incapacity for work in accordance with the regulations on health care, health insurance and maternity leave, ie if the duration of the probation period cannot be included in the full duration of the fixed-term contract.11

9 

Official Gazette of Montenegro, No 14/10, 40/11, 45/12, 61/13 and 20/15. Supreme Court of Montenegro, Rev No 240/15 of 6 May 2015. 11  Supreme Court of Montenegro, Rev No 315/15 of 1 April 2015. 10 

576  Vesna Simović-Zvicer C.  Termination/End of Fixed-Term Contracts The most common method of terminating a fixed-term contract is the expiry of the contract (date): in this case, there is a legal vacuum in the Labour Law because it does not define how the decision on the termination of the employment relationship should be adopted. Since the adoption of such a decision is a condition for exercising the rights the worker is entitled to upon termination of the employment relationship (such as rights in case of unemployment), the provisions concerning the decision on the termination of the employment contract shall apply in this situation. This implies that a formal decision to terminate the employment relationship must be made in situations in which the employment relationship has ended due to the expiration of the employment contract. This solution is not appropriate, because the decision to terminate an employment relationship usually involves a reason, meaning the content of the decision in the case of termination a fixed-term employment contract must be arranged differently. The majority of rulings in case law indicate the inadequacy of this solution. In fact, in some cases, the Supreme Court delivered a judgment stating that the employee could not request the transformation of his/her fixed-term contract into one of indefinite duration unless s/he refuted the decision on the termination of the employment relationship, and in the event s/he did not refute that decision, it would be held that s/he agreed with the consequences a­ rising from that decision.12 In another judgment, the Supreme Court stated that the decision on termination of the employment relationship had a declarative character, ie that the ‘termination of the fixed-term employment contract is not bound by the adoption of such an act, since it ends with the expiry of the contract, which is limited in time’.13 The current legal solutions and case law reveal the existence of legal uncertainty, since the Labour Law does not include this particular case in the legitimate grounds for termination of the employment relationship, even though this is the case due to the nature of fixed-term employment contracts. It is possible to terminate a fixed-term contract before the expiry of the initially agreed date if one of the parties terminates the employment relationship prematurely or if it terminates due to force majeure.14 If the employment relationship is to be terminated due to employee misconduct, two approaches are provided in Montenegrin law: the employment

12 

Supreme Court of Montenegro, Rev No 226/15 of 3 April 2015. Supreme Court of Montenegro, Rev No 396/15 of 21 April 2015. 14  These cases are defined in art 139 of the Labour Law. 13 

Atypical Employment Relationships: The Position in Montenegro 577 relationship can be terminated through dismissal15 or by adopting a decision on the termination of the employment relationship in disciplinary proceedings (due to a serious breach of a work obligation). D.  Rights and Status of Fixed-Term Worker (i)  Equal Treatment Pursuant to Article 25(5) of the Labour Law, employees who have concluded a fixed-term contract are entitled to the same rights, obligations and responsibilities related to work as an employee who has an employment contract of indefinite duration. However, equal treatment is not guaranteed in relation to the scope of rights, especially those rights that are exercised in proportion to the time spent at work. This applies specifically to the right to annual leave. ­Pursuant to Article 63(3) of the Labour Law, an employee is entitled to 1/12 of his/her annual leave for each full month of employment with the employer, if s/he concluded the employment contract in that calendar year or if his/her employment relationship with the employer terminates. (ii)  Employment Opportunities There are no provisions within Montenegrin law on the conclusion of a permanent employment contract with priority given to individuals who were previously employed with the employer. This is because an employment relationship is based on voluntariness, ie the employer has the discretionary power to choose the candidate among the applicants who meets the necessary requirements for employment. (iii)  Other Matters N/A E.  Information and Consultation Equality, in exercising the employment rights that are provided in Article 25(5) of the Labour Law, refers to both individual and collective rights. This means that employees with a fixed-term contract may formally be members

15  The cases in which the employer may terminate the employment contract are provided by the Labour Law (art 143) and the General Collective Agreement (art 51).

578  Vesna Simović-Zvicer of trade unions and may thus exercise other collective rights such as the right to be informed and consulted. However, in practice, the trade union activity of fixed-term workers is minimal due to the fact that they do not have steady employment. F.  Specific Provisions Pursuant to Article 2 of the Labour Law, the Law applies to employees who work for an employer in the territory of Montenegro, as well as to employees who have been sent by an employer situated in Montenegro to work abroad; to employees in state bodies, in state administration bodies, local authorities and public services; and to foreign citizens and stateless persons working for an employer on the territory of Montenegro, unless otherwise specified by the Law. Different regulations on fixed-term employment are contained in the Law on Civil Servants and State Employees,16 which in Article 48(2) provides that a fixed-term employment relationship may be concluded for the purpose of: —— replacement of a temporarily absent civil servant or state employee for the period of his/her absence, but for no longer than two years; —— performance of project-related tasks with a specific duration, for the life-time of the project, but for no longer than two years; —— performance of work during a period of a temporary increase in the workload, which cannot be taken over by the available civil servants and state employees, for the period of the temporary increase in the workload, but for no longer than six months; —— training of interns, for the duration of the internship. The Law on Civil Servants and State Employees leaves no possibility of transformation of a fixed-term employment relationship into one of indefinite duration; rather Article 126 provides that fixed-term employment relationships shall terminate upon the expiration of the period for which the contract was concluded or upon completion of the tasks for which the worker was initially employed. Bearing in mind the specifics of the employment relationship of civil servants and state employees—particularly the fact that they do not conclude an employment relationship based on an employment contract, but based on an appointment decision, which has the characteristics of an administrative act—case law indicates that the provisions of the Labour Law concerning the transformation of fixed-term contracts into contracts

16 

Official Gazette of Montenegro, No 39/11, 50/11, 66/12, 34/14 and 53/14.

Atypical Employment Relationships: The Position in Montenegro 579 of indefinite duration do not apply to civil servants and state employees, because a difference in their legal status prevents a single solution for all by application of the same rules to civil servants and state employees as to the employees of an employer.17 G.  Collective Bargaining Agreements Deviating from Statutory Provisions The Labour Law does not leave the possibility for other cases for concluding fixed-term contracts to be regulated by collective agreement. However, in terms of the scope of rights and conditions for exercising employment rights, collective agreements may provide more favourable conditions than those stipulated in the Labour Law.18 III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements Labour Law recognises part-time employment contracts as a special type of employment contract (Article 31). This contract, as well as the standard employment contract, may be concluded for an indefinite or definite period. However, Article 46 of the Law provides for a limitation to the employer’s right to conclude part-time employment contracts: ‘A part-time employment contract may be concluded, but for no less than ¼ (10 hours) of full-time employment’. In Montenegro, full-time employment amounts to 40 hours per week (Article 44). By its nature, the part-time employment contract is concluded to meet certain needs. To prevent misuse of such contracts, the Law provides that the posts for which part-time employment contracts are to be concluded shall be specified in a systematisation act, depending on the nature of the work and the type of organisation (Article 46(2)). In addition to part-time work, the Labour Law provides for the possibility of concluding contracts with reduced working hours, which was introduced for employees who work in particularly difficult, arduous and harmful jobs (Article 47). Their working hours are reduced proportionally to the detrimental effect of the work on the employee’s health or ability to work. Such a contract may not be for less than 36 working hours per week. Posts in which employees perform part-time work shall be defined in the systematisation act in accordance with the collective agreement. Unlike employees

17  18 

Supreme Court of Montenegro, Rev No 249/16 of 13 April 2016. See art 4(2) of the Labour Law.

580  Vesna Simović-Zvicer who have concluded a part-time employment contract, an employee with reduced working hours shall have the same rights as a full-time employee, but may not work overtime or conclude an employment contract for a similar job with another employer. Such contracts must be concluded in writing. One of the essential ­elements of the employment contract is the duration of working hours (Article 23(1) item 10). B.  Opportunities for/Right to Part-Time Work The Labour Law provides for the right of employees to work part time (20 hours per week). This is possible in two cases: —— For either working parent19 or adoptive parent of a child,20 or for a guardian who is taking care of a child, the possibility to work part time is provided until the child reaches the age of three years.21 —— For a parent, adoptive parent or guardian of a child with developmental disabilities and for whom care is being provided, or a person taking care of an individual with severe disabilities, in accordance with special regulations.22 Part-time employees have the same rights as full-time employees. The Law on Social and Child Protection23 provides for the right of the employer to a reimbursement of funds based on the pay-outs of salary to an employee who performs part-time work. This reimbursement of funds is provided in the amount of 50 per cent of the paid salary. However, not all employers are granted this reimbursement from state funds, as the payment of these funds is linked to the previous duration of the employee’s employment with that employer. Thus, if prior to benefitting from this right the employee was in an employment relationship with the employer for at least 12 continuous months, the employer is entitled to a reimbursement of 50 per cent

19  Pursuant to the Labour Law, a female worker is entitled to maternity leave of 45 days, and (mandatory) 28 days prior to delivery. After the birth of a child, a mother has the right to mandatory leave for a period of 45 days. Thereafter, the right to parental leave can be used by one working parent until the child reaches the age of one year (see: Labour Law, arts 111 and 111a). 20  Pursuant to art 116 of the Labour Law, one of the adoptive parents of a child under the age of eight shall be entitled to leave from work for the purpose of nursing the child for a continuous period of one year from the date of adoption, with a salary reimbursment, as though s/he were working. 21  See art 113 of the Labour Law. 22  See art 114 of the Labour Law. 23 Official Gazette of Montenegro, No 27/2013, 1/2015, 42/2015, 47/2015, 56/2016, 66/2016, 1/2017 and 31/2017.

Atypical Employment Relationships: The Position in Montenegro 581 of the employee’s average salary for the 12 months preceding the month when s/he exercises her/his right to work part time. If the employee, prior to applying for the right to work part time, was employed by the employer for less than 12 months, the employer will be entitled to the reimbursement for the period of work preceding the month when the employee decides to exercise his/her right to work part time.24 A possibility to ‘reduce working time’ of employees who have concluded a full-time employment contract is not envisaged. This possibility was available in the original text of the Labour Law of 2008, due to improvements in technology and the introduction of shift work, but was deleted by the amendments to the Labour Law of 2011.25 C.  Opportunities for/Right to an Extension of Working Time The Labour Law does not provide for cases in which the employer is required to extend the duration of a part-time employee’s working time. However, if there is good will on the part of the employer, a part-time employment contract can be transformed into a full-time employment contract. This possibility is provided for in Article 7 of the General Collective Agreement. Employees who work part time may conclude employment contracts with several employers to achieve full-time work (40 hours per week). The Labour Law (Article 45) provides that the manner of exercising the rights and obligations and the schedule of working hours of employees who work part time for several employers shall be regulated by agreement between the employers. However, such a legal solution has not been realised in practice, since a negligible number of employers have signed such an agreement, considering that no clear penalties were envisaged for employers who did not sign such an agreement. In addition, the Law does not provide for the obligation to keep records of such agreements. For employees with reduced working hours, the possibility to extend the duration of working time is not provided, due to the nature of the work involved (especially difficult, strenuous jobs that are harmful to the employee’s health). In addition, the Labour Law provides for the introduction of a ban on working overtime for employees who work in such jobs, and it is prohibited to conclude an employment contract for such a job with another employer.26

24 

See art 55 of the Law on Social and Child Protection. Official Gazette of Montenegro, No 59/11. 26  See art 47(4) of the Labour Law. 25 

582  Vesna Simović-Zvicer D.  Rights and Status of Part-Time Worker (i)  Equal Treatment The prohibition of discrimination in the field of employment is provided by the Law on Prohibition of Discrimination,27 which, in Article 16, stipulates that discrimination also covers payment of an unequal salary or remuneration for work of equal value. This prohibition applies to employees engaged on the basis of a standard employment contract, as well as to those engaged under a contract for temporary or occasional work, under a special contract, and to all workers who, on any given grounds, perform work for an employer. However, this provision must be treated in the spirit of regulations contained in the Labour Law, which in Article 31(2) provides that a part-time employee shall be entitled to all the rights arising from and based on employment in proportion to his/her working hours. In this regard, the right to pay is applied proportionally depending on the employee’s working hours. Proportionality also applies with reference to the right to a break during working hours and annual leave. Thus, employees who work full time are entitled to a break of 30 minutes during their working hours, while employees who work fewer hours or more than four but less than six hours per day have a right to a break of 15 minutes during their working hours.28 It follows from this provision that some categories of employees who work part time are not entitled to a break during their working hours, such as employees who have a contract with a working time that is shorter than 20 hours per week, if those working hours are allocated across five working days. The principle of proportionality of the employee’s working hours also applies to the right to annual leave.29 However, as already mentioned, employees with reduced working hours enjoy the same rights as a full-time employee, including the right to a break during their working hours due to the difficult working conditions. On the other hand, in exercising the (equal) right to annual leave, this category of employees benefits from a greater scope of rights, ie a longer duration of annual leave. While the minimum duration of annual leave of 20 working days per calendar year is provided for full-time employees, employees in arduous and harmful professions with reduced working hours are entitled to annual leave of at least 30 working days per calendar year.30

27 

Official Gazette of Montenegro, No 46/2010 and 18/2014. See art 59(2) of the Labour Law. 29  See art 63(2) of the Labour Law. 30  See art 65(1) and (3) of the Labour Law. 28 

Atypical Employment Relationships: The Position in Montenegro 583 (ii)  Dismissal Protection As regards protection against termination of employment, the Labour Law does not make any exceptions on the basis of working hours, implying that the provisions of the Law relating to the validity of the dismissal, as well as to disciplinary liability, will be equally applied to all employees. (iii)  Other Matters N/A

E.  Information and Consultation Employees who work less than full time may fully exercise their collective rights in the employment relationship just like full-time employees. There are no restrictions on the choice of trade union representatives, given that this issue is regulated by internal acts of the trade union organisations.

F.  Other Part-Time Arrangements There are no other part-time arrangements in Montenegro, such as the allocation of working time, extension of working hours, on-call work or shared workplace (job-sharing). However, the Labour Law provides for the possibility of rescheduling working hours, which means that fulltime employees work longer in one period during the year and less in another period, providing that the total working time does not on average exceed full-time work throughout the year. According to Article 54 of the Labour Law, working hours may be rescheduled as required by the nature of the activity, work organisation, the need for better usage of assets, a more rational distribution of working hours and the performance of certain activities within defined time-limits. Therefore, employees who in one period during the year work longer hours than full-time work will not be entitled to a salary increase on that ground (as would be the case, eg if they worked longer hours than full-time work, or overtime).

G.  Collective Bargaining Agreements Deviating from Statutory Provisions The Labour Law provides for the possibility for working hours of less than 40 hours per week to be established by collective agreement, but in practice, no collective agreement that provides for such deviation actually exists.

584  Vesna Simović-Zvicer IV.  TEMPORARY AGENCY WORK

A.  Legal Definitions/Formal Requirements The Law on Amendments to the Labour Law introduced a new concept of temporary work, namely the temporary leasing of employees through a temporary work agency to another employer: the user undertaking.31 Temporary agency work involves the following parties: —— The temporary work agency, which operates as the employer; —— The employee; and —— The employer, ie the user undertaking to which the employee is transferred (typically employers who carry out cyclical activities and who only hire employees for a specific job). The temporary leasing of employees is established in two documents: —— The agreement regulating the relationship between the temporary work agency and the user undertaking, and —— The employment contract between the employee and the temporary work agency. In the opinion of the trade unions, a legal mechanism for the assignment of employees by temporary work agencies is being misused in M ­ ontenegro because a large number of employers use the services of temporary work agencies to avoid the legal obligation to transform the fixed-term ­employment contracts of workers who have worked for them for 24 months into contracts of indefinite duration. Instead, employers use the ‘assignment of employees’; hence, after the expiration of a period of 24 months, they send employees to the aforementioned agencies, through which they can be re-engaged again in the same workplace, since the Labour Law does not provide any restrictions in this regard. B.  Registrations, Licensing, Financial Guarantees, etc The temporary work agency shall obtain the capacity of a legal person when entering into the registry maintained by the public administration authority in charge of labour affairs. The temporary work agency may only assign temporary agency workers to a user undertaking provided that this is its sole activity and that it holds a licence to operate as such issued by the Ministry. To carry out the activity of assigning temporary ­employees, the temporary work agency must meet the conditions defined 31  The activity of the temporary work agency, namely the assignment of employees, is regulated in arts 43a to 43g of the Labour Law.

Atypical Employment Relationships: The Position in Montenegro 585 by the Act issued by the Ministry of Labour and Social Welfare (conditions for the work space, number of staff in administrative work, etc). The Law provides for a short period to make a decision on the granting of a licence to an agency, namely seven days from the date of application.32 C. Relationship between Temporary Agency Worker and Temporary Work Agency (i)  Fixed-Term and Part-Time Contracts A temporary agency worker is employed by the temporary work agency with which s/he concludes an employment contract for a definite or indefinite period. Given that the temporary work agency has the status of employer, the limitations regarding the conclusion of fixed-term employment contracts, as well as regarding part-time work, apply to this contract. An employment contract that an employee signs with the temporary work agency must contain all the elements of a standard contract, but must also contain the following information:33 —— That the contract is concluded for the purpose of assignment for the temporary performance of specific work for a user undertaking; —— Obligations of the temporary work agency towards the employee during his/her assignment to the user undertaking. (ii)  Rights and Obligations/Liabilities In addition to the rights of employees in an employment relationship, the Labour Law provides additional protection for employees who have concluded an employment contract with a temporary work agency for the assignment to a user undertaking. During periods when the worker is not assigned to an employer (user undertaking), s/he is entitled to remuneration. In addition, the Labour Law imposes the following obligations on the temporary work agency as an employer:34 —— The temporary work agency shall introduce an employee to the content of the agreement and deliver the agreement upon his/her request no later than on the day of the commencement of work at the user undertaking. —— Prior to the assignment of the worker to a user undertaking, the temporary work agency shall inform the employee about all the risks of 32 

See art 43a of the Labour Law. See art 43c(3) of the Labour Law 34  See art 43e of the Labour Law. 33 

586  Vesna Simović-Zvicer performing the work with the user undertaking with reference to health and safety protection at work and for that purpose, train him/her to work in such jobs in accordance with the regulations on protection at work, unless the assignment agreement stipulates that these obligations are to be met by the user undertaking. —— The temporary work agency shall introduce new technologies to the employee, which s/he will need to perform the work, unless the assignment agreement stipulates that the user undertaking shall fulfil that obligation. —— The temporary work agency shall pay the employee the agreed salary for the work s/he performs for the user undertaking, even if the user undertaking does not deliver the agreed pay slip to the temporary work agency, or does not meet its obligations towards the agency. In addition, given that the temporary work agency is the actual employer, the employee will, depending on the degree to which his/her employment rights are being violated by the user undertaking, exercise his/her right to protection of the violated rights against the temporary work agency. (iii)  Dismissal Protection As regards the termination of the employment relationships of temporary agency workers, the provisions of the Labour Law and collective agreements apply, as is the case for all other employees. However, one limitation is defined in the Law: if the temporary agency worker’s labour is no longer needed by the user undertaking prior to the expiry of the period for which s/he was assigned to the user undertaking, it may not constitute a reason for termination of the employment contract.35 D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship A temporary agency worker is not in a contractual relationship with the user undertaking, but performs tasks for it on the basis of the agreement signed by the temporary work agency (as his/her factual employer) and the user undertaking.

35 

See art 43d(1) of the Labour Law.

Atypical Employment Relationships: The Position in Montenegro 587 (ii)  Rights and Obligations/Liability The Labour Law regulates the compensation of damages within a legal mechanism of the ‘assignment of employees’. Thus, if an employee suffers damage at work and in connection to the work s/he performs for the user undertaking, s/he shall be compensated by the temporary work agency, unless otherwise stipulated in the assignment agreement. As regards compensation for damage caused by the temporary agency worker at work and in connection with his/her work for the user undertaking the principle of liability for damage to a third party applies. Thus, if the worker caused any damage to the user undertaking, it shall be compensated by the temporary work agency. On the other hand, if the employee caused damage to a third party (ie a client or business partner of the user undertaking), the damage will be compensated for by the user undertaking. This implies that the user undertaking will later be entitled to a reimbursement of the damages it has paid, from the temporary work agency.36 (iii)  Health and Safety The temporary work agency is formally the employer of the temporary agency worker who will be assigned, because it has concluded an employment contract on the basis of which it exercises the rights arising from employment. However, there are some exceptions to this rule. Thus, it is provided that the user undertaking is considered the employer of the temporarily assigned worker in terms of obligations to apply regulations on the protection of health, safety at work and special protection of certain categories of employees. This implies that the user undertaking has the obligation not only to provide adequate safety measures at work, but is also responsible for any damage suffered by the worker in connection with the safety measures. E.  Relationship between Temporary Work Agency and User Undertaking The Labour Law provides that the activity of assigning temporary workers shall be performed on the basis of an agreement signed between the temporary work agency and the user undertaking (employer). The agreement regulating the relationship between the temporary work agency and the user undertaking must include the following components: the number of employees assigned to the user undertaking; the duration of

36 

See art 43g of the Labour Law.

588  Vesna Simović-Zvicer the assignment; the employee’s place of work; the tasks s/he will perform; the applicability of safety measures at work where the employee will carry out his/her tasks; the manner and time in which the user undertaking must provide the temporary work agency with records of the payment of wages and the regulations the user undertaking applies to determine the worker’s wage; and the responsibility of the temporary work agency if an employee who is assigned to work does not fulfil his/her obligations.37 It is important to note that in order to prevent abuse of this form of work, the Law stipulates cases in which an agreement on the temporary leasing of employees may not be concluded, namely: the replacement by the user undertaking where a strike is underway of employees who are on strike in accordance with the law; the assignment of an employee to perform tasks initially carried out by workers in the user undertaking whose employment contracts were terminated in the past 12 months due to redundancy; the performance of tasks related to the temporary work agency’s activities, and the performance of tasks in other cases stipulated by the collective agreement applicable in the user undertaking. To prevent abuse by the user undertaking, the Law requires it to inform its trade union of the number of temporary agency workers and the grounds for concluding such contracts at least once every six months.38 F.  Rights and Status of Temporary Agency Worker (i)  Equal Treatment Although the temporary work agency is treated as an employer in relation to the temporary workers it assigns, the Law envisages some exceptions to protect temporary agency workers’ rights more effectively. Specifically, it is provided that the salary of a temporary agency worker cannot be lower than that earned by a regular employee working for the user undertaking in the same or similar job and with the same qualifications or level of education and occupation. It is worth noting that the salaries of temporary agency workers are paid by the temporary work agency, which it is obligated to do even when the user undertaking does not submit the calculation of the agreed salary to the agency or does not fulfil its obligations towards the agency. Also, even when a temporary agency worker is not assigned to a user undertaking, s/he will be entitled to salary remuneration in accordance with the Law and employment contract.39

37 

See art 43b(1) of the Labour Law. See art 43b(2) of the Labour Law. 39  See art 43c(4) and (5) of the Labour Law. 38 

Atypical Employment Relationships: The Position in Montenegro 589 (ii)  Other Matters N/A G. Information and Consultation/Representation of Temporary Agency Worker Although all employees are entitled to formal collective rights, including temporary agency workers, their realisation is hardly possible in practice. This is because temporary agency workers are not physically present in the agency (on its premises) but are assigned to one or more employers (user undertakings). The Labour Law stipulates that a user undertaking shall notify its trade union of the number of temporary agency workers and the reasons for engaging them at least once every six months.40 H. Strikes In Montenegro, the right to strike is a constitutionally guaranteed right. Thus, Article 66(1) of the Constitution of Montenegro41 provides that employees have the right to strike. The definition of strike indicates that it is a collective right of employees, ie a right that is achieved collectively, by gathering all employees (through a representative trade union or by participation of the majority of employees). Strikes as a method of ­resolving labour disputes are regulated by the Law on Strikes.42 Pursuant to Article 13(4) of this Law, the decision to strike against the employer involves the competent authority or the representative trade union or the majority of employees at the employer. Bearing in mind the specifics of the employment relationships of temporary agency workers, it is easy to conclude that the exercise of their right to strike is nearly impossible in practice. Montenegro does not have a single registered trade union of employees whose employer is a temporary work agency. In addition, employees who are temporarily assigned to a user undertaking cannot organise a strike because they have not concluded an employment contract with the user undertaking. On the other hand, the Labour Law stipulates that the user undertaking cannot use the services of a temporary work agency if a strike is organised at the enterprise level in accordance with the law.

40 

See art 43f(1) of the Labour Law. Official Gazette of Montenegro, No 1/07 and 38/13. 42  Official Gazette of Montenegro, No 11/15. 41 

590  Vesna Simović-Zvicer I.  Collective Bargaining Agreements Deviating from Statutory Provisions Given that pursuant to the Law on Trade Union Representativeness, the right to collective bargaining only applies to a representative trade union at the employer, the exercise of this right for temporary agency workers is nearly impossible in practice. So far it has not been possible to conclude such a collective agreement, because this category of employees has not yet organised in trade unions, which could be a consequence of the fact that the legal mechanism of temporary agency work is still new in Montenegro.

23 Atypical Employment Relationships: The Position in the Netherlands GUUS HEERMA VAN VOSS

I. INTRODUCTION

T

HE EMPLOYMENT CONTRACT is primarily regulated in the Netherlands’ Civil Code (since 1997 in Book 7, Title 7.10 of the New Civil Code). Over the last decades, this title has been adapted several times and additional Acts have been introduced to deal with new types of employment relationships. The most important changes in this regard have been: —— 1996: Act prohibiting discrimination based on working time, implementing Directive 97/81/EC on part-time work;1 —— 1998: Act on Placement of Personnel by Intermediaries, governing ­temporary work agencies and other actors on the labour market;2 —— 1999: Act on Flexibility and Security, introducing new provisions in the Netherlands’ Civil Code on fixed-term contracts and on-call c­ ontracts and introducing temporary agency work contracts;3 —— 2000: separate Working Hours Adjustment Act, providing for the right of employees to ask for a reduction or extension of working hours;4 —— 2002: Act on Implementation of Directive 1999/70/EC on fixed-term work;5 —— 2012: Act on Implementation of Directive 2008/104/EC on temporary agency work;6 —— 2015: Act on Work and Security, providing for new rules in the Civil Code on fixed-term contracts, flexible employment relationships and 1 

Act of 3 July 1996, Stb 1996, 391 (Wet verbod van onderscheid naar arbeidsduur, WOA). of 14 May 1998, Stb 1998, 306 (Wet allocatie arbeidskrachten door intermediairs, Waadi). 3  Act of 14 May 1998, Stb 1998, 300 (Wet flexibiliteit en zekerheid, Wfz). 4  Act of 19 February 2000, Stb 2000, 114 (Wet aanpassing arbeidsduur, Waa). 5  Act of 7 November 2002, Stb 2002, 560. 6  Act of 19 April 2012, Stb 2012, 173. 2  Act

592  Guus Heerma van Voss dismissal procedures as well as amendments of other Acts, such as reducing the duration of unemployment benefits;7 —— 2016: Act on Work after Pensionable Age, entailing specific rules in the Civil Code for persons who work beyond the general retirement age; —— 2016: separate Flexible Work Act, replacing the Working Hours Adjustment Act, including promoting flexibility in the workplace.8 —— 2020: Act on Balancing the Labour Market, aiming to promote the use of permanent employment contracts.9 Over the last decades, the number of atypical employment relationships in the Netherlands has increased. According to government data for 2019, 26.1 per cent of the labour force worked in atypical employment.10 With a complete revision of dismissal law in 2015, the government attempted to rebalance flexibility and security, particularly in response to the imbalance the duality in the labour market has caused between atypical and permanent employment. The tendency to use atypical employment relationships is rising. It should also be mentioned that the number of ‘independent contractors without personnel’ (‘zelfstandigen zonder personeel’ or ‘zzp-ers’) has been rapidly growing, stimulated by tax reductions and due to the lower costs of the use of this type of labour because labour and social security law are not applicable to service contracts concluded with these parties.11 II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements The provisions on fixed-term work are covered in Section 9, Title 10 of Book 7 of the Netherlands’ Civil Code on the termination of the employment contract. The legislation does not provide a definition for fixed-term employment contracts as such. It should be noted that at the time the provision was developed and when amending it, the government did not find it

7 

Act of 14 June 2014, Stb 2014, 216 (Wet werk en zekerheid, Wwz). Act of 9 June 2015, Stb 2015, 245 (Wet flexibel werken, Wfw). 9  Act of 29 May 2019, Stb. 2019, 219 (Wet arbeidsmarkt in balans, Wab). 10  In the first quarter of 2019, 16.6% of all workers in the Netherlands were self-employed (of whom 12.5% without personnel), more than 21.7% were working under a form of flexible work contract and 61.7% were working under a permanent employment contract. The group of workers on flexible working contracts were divided as follows: 28% on-call/replacer; 20% fixed-term with expectation of permanent employment; 14% temporary agency worker; 12% fixed-term without stable working hours; 10% fixed term for less than 1 year; 8% permanent without stable working hours; 8% fixed term for over 1 year; Source: TNO/ABU/FNV/CBS: www.flexbarometer.nl/. 11  The Minimum Wage Act was also made applicable to certain forms of service contracts, Act of 29 March 2017, Stb. 2017, 290. 8 

Atypical Employment Relationships: The Netherlands  593 necessary to define the fixed-term employment contract as such.12 What is defined, however, is how a fixed-term contract ends, namely automatically, either upon its expiration as specified in the contract or by operation of law (Article 7:667(1) Netherlands’ Civil Code). The legislation differentiates between those fixed-term contracts that end on a specific calendar date and those that do not. This is the case for the calculation of the maximum duration of a probation period (Article 7:652(6) Netherlands’ Civil Code) and the duty to announce the end of the fixed-term (Article 7:668(2) Netherlands’ Civil Code). There is no statutory requirement to conclude the fixed-term contract in writing. B.  Lawful Stipulation of the Contractual Terms In principle, the use of fixed-term employment contracts as such is neither prohibited nor restricted to certain purposes. In practice, fixed-term employment contracts are often concluded for the duration of a specific project, for the replacement of a sick or pregnant employee or as a form of probation period. Many companies hire employees on fixed-term contracts and continue this practice for as long as legally possible before offering them a permanent employment contract. In some cases, employers will typically conclude fixed-term contracts for certain jobs, due to the high replaceability of employees for the given job and the high costs for health insurance or protection of permanent employees against dismissal. (i)  Prevention of Abuse (Chain Rule) Abuse of successive fixed-term contracts is limited, in line with Framework Directive 1999/70/EC.13 The Directive provides three possible measures to tackle such abuse. The Netherlands has applied two of these since 1999. In line with clause 5(1)(b) and (c) of the Framework Agreement, the number of successive fixed-term contracts as well as their maximum total duration is limited. The combination of these two measures exceeds the (minimum) requirements of the Directive. This regulation is known in the N ­ etherlands as the ‘chain rule’ (ketenregeling). It is laid down in A ­ rticle 7:668a ­Netherlands’ Civil Code.

12  Diana de Wolff, De arbeidsovereenkomst voor bepaalde tijd (Deventer, Kluwer, 1999) p 58 (referring to AE Bles, De wet op de Arbeidsovereenkomst, Deel IV (Den Haag, 1909) p 3 and Kamerstukken II 1996/97, 25 263, no 6, p 12). 13 Directive 1999/70/EC on the framework agreement on fixed-term work, [1999] OJ L175/43.

594  Guus Heerma van Voss In 1999, the Act on Flexibility and Security restricted the maximum number of successive fixed-term contracts to three. The maximum total duration of successive fixed-term contracts was reduced to three years. However, collective agreements could establish exceptions to these rules without any restrictions. It was also stipulated that two fixed-term contracts were only considered ‘successive’ if the period between the two contracts was at most three months. Because of the increased use of these options by employers, the opportunities for concluding fixed-term contracts were further narrowed in 2015 by the Act on Work and Security. The total duration of successive fixedterm contracts was limited to two years; the maximum period of interruption between two consecutive fixed-term contracts has been extended to six months; and the possibility to exclude these rules by collective agreement has been limited.14 However, in the Act on Balancing the Labour Market of 2020, the limitation of the total duration of successive fixed-term contracts was extended again to three years. The Netherlands’ Supreme Court held that the chain rule is also applicable when an undertaking is taken over by another firm following bankruptcy procedures involving the former owner. According to the Netherlands’ Civil Code, the rules on acquired rights of employees are not applicable following bankruptcy procedures (Article 7:666 Netherlands’ Civil Code). However, if the transferee hires employees who previously worked under an employment contract with the former owner of the undertaking, the chain rule is applicable to their contracts. This implies that fixed-term contracts concluded with a previous employer are included in the maximum number of three consecutive contracts within two years.15 A specific provision has been introduced that deals with cases in which an employment contract of indefinite duration is followed by the conclusion of a fixed-term contract. In a case in which an employee accepted the termination of the permanent employment contract by mutual consent in exchange for a new fixed-term contract, the Supreme Court held that the fixed-term contract would have to be terminated by giving notice. This implied that dismissal protection was applicable to fixed-term contracts.16 This judgment was codified in 1999 in Article 7:667(4) and (5) Netherlands’ Civil Code. The duty to give notice is applicable if the previous contract was not ‘lawfully’ terminated through standard dismissal procedures or because the employee reached retirement age. Resignation of the employee does not qualify as an ordinary dismissal in this respect.17 The period between concluding the two

14 Miriam Kullmann, ‘Unused Potential? The Risks of Unemployed “Older” Workers’ (2016) 7 European Labour Law Journal 442. 15  HR 14 July 2006, NJ 2007/101, JAR 2006/190, RAR 2006/122 (Boekenvoordeel/Isik). 16  HR 4 April 1986, NJ 1987/678 (Ragetlie/SLM). 17  HR 20 December 2013, NJ 2016/373, JAR 2014/34, RAR 2014/62 (Pekel/Witte).

Atypical Employment Relationships: The Netherlands  595 contracts may not be more than six months. The calculation of the notice period has to start with the conclusion of the first contract. This provision is named after the case, namely the ‘Ragetlie rule’ (Ragetlieregel). As already mentioned, there is no statutory requirement to conclude a fixed-term contract in writing. However, some collective agreements prescribe this. In line with Directive 91/533/EEC, the employer is required to inform the employee in writing about certain elements, inter alia, about the end of the fixed-term employment contract (Article 7:655 Civil Code). In case of non-observance of this obligation, it can be concluded from the case law of the Court of Justice of the EU that the burden of proof will fall on the employer. According to national law, it is usually the employer who carries the burden of proof that the nature of the contract is for a fixed-term and the agreed end date, if the claimant contests the contract’s validity. The division of the burden of proof follows from the principle that the party claiming the fixed-term of the contract must also be in a position to prove it. It is therefore of practical importance for employers to conclude fixed-term contracts in writing. C.  Termination/End of Fixed-Term Contracts Fixed-term employment contracts can end in one of three ways. First, the most common fixed-term contract type ends automatically when the agreed term comes to an end (Article 7:667 Netherlands’ Civil Code). This can either occur after a certain period, on a specific date, once a project has been completed18 or upon the occurrence of a specific event.19 The fixed term may also relate to the replacement of a sick or pregnant employee, thus terminating upon his/her return to work. In that case, however, the contract does not terminate with the death of the replaced employee, unless this is explicitly stated.20 What is of relevance in this regard is that the time of termination of the employment contract is objectively defined and not subject to the parties’ wishes.21 The wording of the provision allows for a clause that states that the employment contract shall end automatically (ex lege) on the date the employee reaches his/her retirement age.22 However, such a clause needs to be explicitly entered in the contract. It cannot be implied, based on custom, as was argued in the past. The Act on Work and Security of 2015 has excluded ‘custom’ as a ground for automatic termination of the employment contract. 18 

HR 12 November 1936, NJ 1937/247. HR 11 June 1937, NJ 1937/987. 20  HR 27 November 1998, NJ 1999/198, JAR 1999/13 (Kool/Hageveld). 21  HR 8 January 1952, NJ 1952/243 (Steencampagne-arrest). Critically assessed by LH van den Heuvel, Tussen vrijheid en bescherming (Deventer, Kluwer, 1988). 22  HR 13 July 2012, NJ 2012/547, JAR 2012/209, RAR 2012/133 (Van de Pol e.a./KLM). 19 

596  Guus Heerma van Voss The Court of Justice of the European Union has deemed that an express provision for termination of the contract on the date the employee reaches his/ her retirement age does not represent discrimination on the ground of age, as retirement age can be justified by legitimate goals, such as employment, the labour market or vocational training.23 Giving notice and the observation of the notice period is only required for the termination of a contract of indefinite duration. It may be agreed in the fixed-term contract or in a collective agreement that notice is required, but this is rarely the case. A consequence thereof is that the employee lacks the dismissal protection that s/he would enjoy if s/he had an employment contract of indefinite duration. A fixed-term employee enjoys some level of protection with regard to possible renewals of the contract, the silent continuation of the contract as well as so-called transition payment. Protection regarding possible renewals of the contract requires the employer to consider offering the employee a renewal of the contract and to inform the employee about that decision. The employer must inform the employee at least one month before the contract ends whether s/he intends to renew the employment contract. In case the employer offers the employee a renewal of the employment contract, s/he must also inform the employee about the conditions under which s/he proposes to renew the contract. This regulation is not applicable if the expiry of the contract is not determined by a calendar date or is agreed for a period shorter than six months (Article 7:668(1)–(2) Netherlands’ Civil Code). If the employer does not comply with this obligation, s/he will be required to pay compensation to the employee in the amount of one month’s salary. If the employer does comply with this obligation too late, but within a month before the end of the contract, the compensation will be due pro rata. The compensation has to be paid within one month from the date the obligation arose (Article 7:668(3) Netherlands’ Civil Code). If the employment relationship continues after the expiry of the fixed term without the employer informing the employee of the expiry of the term or without discussing further options with the employee, the employment contract will be deemed to have been extended on the basis of the same previous conditions for the same period, but at most for one year. This also applies if notice is required but was not given and the consequence of a continuation of the employment relationship is not expressly specified (Article 7:668(4)–(5) Netherlands’ Civil Code). Another form of protection for fixed-term employees relates to the socalled ‘transition payment’ (transitievergoeding). A transition payment is a

23  CJEU 16 October 2007, Case C-411/05 Félix Palacios de la Villa v Cortefiel Servicios SA, [2007] ECR I-8531; NJ 2008/38, JAR 2007/288.

Atypical Employment Relationships: The Netherlands  597 form of severance pay in case of dismissal. Its function is partially to provide for compensation for the loss of employment but it also aims to facilitate the search for a new job. In principle, any employee who has been dismissed by the employer is entitled to a transition payment (Article 7:673 Netherlands’ Civil Code). The transition payment does not have to be paid if the employment contract is terminated before the employee turns 18 years of age, and whose average number of working hours per week is at most 12 hours per week (Article 7:673(7) of the Netherlands’ Civil Code). The employee loses the right to a transition payment if the termination of the contract is the result of serious misconduct or neglect (Article 7:673(7) Civil Code). In case of termination before the end of the contract’s fixed term, cumulating compensation for the untimely termination and a transition payment is possible.24 However, because a chain of successive fixed-term contracts is not possible for a period exceeding 24 months, the transition payment is only relevant when either the term of the first contract is 24 months or more, or when the maximum period for consecutive fixed-term contracts has been reached. The second procedure for ending a fixed-term contract is an intermediate termination prior to the expiry of the term of the contract. Such a termination can be regular or irregular. For a regular intermediate termination, the employer and the employee state in the fixed-term contract that each party is allowed to give notice that the fixed-term employment contract will terminate before the fixed end date (Article 7:667(3) Netherlands’ Civil Code). Such a clause is only valid if it has been mutually agreed and is concluded in writing. The parties may decide to include such a condition in their employment contract even if the contract has already started.25 If a clause permitting intermediate termination has been included in the contract, the employee enjoys full dismissal protection if the clause is invoked, just as though s/he had concluded a contract of indefinite duration. If the parties did not agree on such a clause, a fixed-term employment contract cannot be legally terminated by one party prior to the expiry of the term. If the employee or the employer terminates the fixed-term employment contract without having previously agreed on an intermediate termination clause, the party terminating the contract is required to pay compensation to the other party equal to the amount of wages that would have normally been paid up to the expiry of the term. The court may reduce the amount of compensation if it deems this fair given the circumstances. If the claim is higher than three months’ salary, the compensation may not be reduced 24 

Diana de Wolff, Arbeidsovereenkomst (Kluwer, 2015), art 7:667 BW, para 3.5.2. Heerma van Voss, C Assers, Handleiding tot de beoefening van het Nederlands Burgerlijk Recht. 7. Bijzondere overeenkomsten, Deel V, Arbeidsovereenkomst (Kluwer, 2015), no 329, with reference to Kamerstukken II, 25 263, no 5, p 40. 25 GJJ

598  Guus Heerma van Voss below the fixed salary over a period of three months (Article 7:677(4) ­Netherlands’ Civil Code). If the employer terminates the employment contract prior to the expiry of the fixed term without the option of intermediate termination having been included in the contract, the employee can request the court to annul the dismissal. If the employee wants to continue working for the remaining duration of the fixed term, this option may be preferable to receiving a pecuniary compensation. Thirdly, when the parties have not included the option to terminate the contract prematurely in the fixed-term contract, either party may initiate a procedure requesting the court to dissolve the employment contract (Articles 7:671b(1)(c) and (9) and 7:671c(3) Netherlands’ Civil Code). In this case, the court may award the employee compensation in the amount of wages that would have been paid for the remaining duration of the contract. The court can also award this compensation to the employer, in case of gross misconduct by the employee. In case of gross misconduct by the employer, the employee can additionally be awarded compensation in accordance with the principle of fairness to the employee. (Article 7:671b(9) and 7:671c(3) Netherlands’ Civil Code). Provided the duration of the consecutive fixedterm contracts has been 24 months, the employee is entitled to a transition payment, unless s/he has engaged in gross misconduct. However, since the maximum total duration of consecutive fixed-term contracts is restricted to a period of 24 months, this possibility only applies if two or more consecutive fixed-term contracts have been concluded for the maximum term of 24 months in total and expire at the end of this term. As a result, there is a tendency among employers to conclude consecutive fixed-term contracts for terms that are slightly shorter than 24 months in total in order to avoid the obligation to pay transition payments. Certain risks are involved in the employee requesting the court to dissolve the employment contract if s/he has engaged in gross misconduct. In that case, the judge may order the employee to pay compensation to the employer, and the employee would lose his/her entitlement to a transition payment. In case of collective redundancies, fixed-term employment contracts are among the first to be terminated (Article 7:671a(5)(a) Netherlands’ Civil Code).26 If the employer is considering a collective redundancy, s/he must first request permission from the Employee Social Insurance Institute (Uitvoeringsinstuut werknemersverzekeringen, UWV) for every single dismissal. Before the UWV issues such permission, the employer is required to terminate all fixed-term employment contracts first.27 This also applies to employees hired through a temporary work agency (see below). 26  For exceptions to this rule, see art 17 Ontslagregeling (Dismissal Regulation of 23 April 2015, Stcrt 11 May 2015, 12685). 27  ET Visser and RMR Ngalle, ‘WWZ en gelijke behandeling’ (2014) ArbeidsRecht 61.

Atypical Employment Relationships: The Netherlands  599 D.  Rights and Status of Fixed-Term Worker (i)  Equal Treatment An employer may not discriminate between employees on the ground of the fixed-term or indefinite character of their employment contract, except when such a distinction is objectively justified.28 Any stipulation that has been agreed upon in breach of this provision is null and void (Article 7:648(1)–(2) Netherlands’ Civil Code). The aforementioned provision prohibits differentiating between employees with a fixed-term employment contract and those with a contract of indefinite duration. This, however, implies that it is possible to differentiate between fixed-term and permanent employees on the basis of other grounds, for example, knowledge or experience. The employer may not place an employee who has invoked the provision in or out of court, or has assisted in invoking this provision, at a disadvantage (Article 7:649(4) Netherlands’ Civil Code). If the employer dismisses the employee in breach of one of these provisions, the employee can request the court to annul the dismissal (Article 7:681(1)(c) Netherlands’ Civil Code). The non-discrimination provision applies to all working conditions. These can be agreed on in collective agreements as well as—either in writing or orally—in individual employment contracts. The Netherlands’ legislation does not distinguish between primary (eg remuneration or annual leave) or secondary working conditions (eg training and beneftis, bonuses).29 Stipulations on the termination of the employment contract fall within the scope of working conditions and are thus covered by the non-discrimination provisions.30 Since the Work and Security Act was introduced in 2015, protection in relation to successive fixed-term contracts and their maximum duration does not apply to employees aged below 18 years of age who do not work more than 12 hours per week (Article 7:668a(11) Netherlands’ Civil Code). This might be contradictory to the principle of non-­ discrimination based on age, as regulated by Directive 2000/78/EC. This prohibition applies to the establishment, continuation or termination of the employment contract. It is also questionable whether this is in conformity with Clause 4 of the Framework Agreement under the Part Time Work

28 GJJ Heerma van Voss, C Assers, Handleiding tot de beoefening van het Nederlands Burgerlijk Recht. 7. Bijzondere overeenkomsten. Deel V, Arbeidsovereenkomst (Kluwer, 2015), para 212. 29  Diana de Wolff, Arbeid voor bepaalde tijd: nieuwe regels en rechtspraak (Kluwer, 2003) p 30. 30  Diana de Wolff, Arbeid voor bepaalde tijd: nieuwe regels en rechtspraak (Kluwer, 2003) p 30 with reference to Kamerstukken II 2000/01, 27 661, no 10, p 6.

600  Guus Heerma van Voss Directive 97/81/EC. Although the directive concerns only employment conditions, and it is unclear whether the protective rules on ­fixed-term employment would be covered by it.31 (ii)  Employment Opportunities The employer is required to inform fixed-term employees in a timely and clear manner about any permanent vacancy. This follows from Article 7:657 Netherlands’ Civil Code. The provision emphasises that this obligation does not apply to an employment contract that falls within the scope of Article 7:690 Netherlands’ Civil Code on Temporary Agency Work.32 The provision does not entitle fixed-term workers to be hired to fill a vacancy. It only provides that the employer must inform fixed-term employees about vacancies in order to give them the opportunity to apply for the job and in order for the employer to become aware of which employees are interested in a permanent post. No specific sanction is foreseen for the violation of this provision. Works councils and unions could monitor the compliance with this provision. The general sanctions of the Civil Code apply (such as compensation for damage as result of non-conformity), but since concrete damage is difficult to prove, given that it cannot be established that the job would have actually been awarded to the employee, the applicability of such sanctions is unsure. There is no case law in the Netherlands on this issue. (iii) Other Matters (Protection against Abuse by Changing Employers: Principle of ‘Successive Employership’) According to Article 7:668a(1) Netherlands’ Civil Code, the rules on successive fixed-term employment contracts and their maximum duration shall also apply mutatis mutandis to successive employment contracts between an employee and different employers who should reasonably be considered successors. This is known as the rule of ‘successive employership’.33 This provision is important to protect the employee from being abused and to prevent the illegitimate conclusion of successive employment contracts.

31  For a critical reflection on this in relation to European labour law, see: ET Visser and RMR Ngalle, ‘WWZ en gelijke behandeling’ (2014) ArbeidsRecht 61 and W Bouwens, ‘Wet werk en zekerheid: Uitzonderingen voor jongeren in strijd met Europees recht’, 2014 Nederlands Juristenblad 32, pp 2237–43. However, comparable rules were accepted by CJEU 1 October 2015, C-432/14, O v Bio Philippe Auguste SARL ECLI:EU:C:2015:643, JAR 2015/281 (SARL). 32 GJJ Heerma van Voss, C Assers, Handleiding tot de beoefening van het Nederlands Burgerlijk Recht. 7. Bijzondere overeenkomsten. Deel V, Arbeidsovereenkomst (Deventer, ­Kluwer, 2015) para 248. 33  This rule is also applicable in relation to the above discussed so-called ‘Ragetlie rule’ of Article 7:667(5) Netherlands’ Civil Code.

Atypical Employment Relationships: The Netherlands  601 In the 1980s, employers developed the so-called ‘revolving door construction’ (draaideurconstructie). This method implied that between periods during which the employee was hired by the company itself, the same employee was hired through a temporary work agency. While the employer may have formally not concluded successive contracts with the same employee, s/he performed the same work at the same place under the same supervision in consecutive periods, albeit under a formally different employer. The Supreme Court did not accept this policy, at least when it was used for lengthy periods.34 In 1999, the above-mentioned statutory provision excluded this practice. The application of Article 7:668a(1) of the Civil Code is not restricted to temporary agency work between consecutive fixed-term contracts. It can, for instance, also apply to two employers of a joint venture operation who alternate in acting as employers. Decisive for applicability of the provision, is whether both employers could be considered each other’s successor ‘in relation to the work performed’. This implies that the work would in principle have to be the same, though it does not necessarily imply that the work would be performed at the same place of work. If the two jobs under separate formal employment contracts differ in nature (for instance, working as driver for one employer and working in a factory for the other employer), the rule does not apply. In this respect, the rule is narrower than the so-called ‘chain rule’ mentioned above under section II.B. For the calculation of the maximum period of fixed-term contracts under the same employer, all periods of work for the same employer are included, regardless of what type of work the employee actually performed. The Netherlands’ Supreme Court in 2012 ruled that ‘successive employership’ exists when (1) the new contract essentially requires the same skills and responsibilities as the previous one, and (2) the ties between the new and the former employer are so intertwined that the characteristics of the work and the skills the employee acquired by working for the previous employer can reasonably be linked to the work to be performed for the new employer.35 However, the second rule implies that in case of the transfer of a concession for transport, for example, the successive concession holder will not be bound by the chain rule. In order to redress this during the general revision of the dismissal legislation in 2015 (Wet werk en zekerheid), the legislator expressly set aside the second requirement. Consequently, the rule is now also applicable if the successive employer does not yet have any information on the characteristics and capability of the employee involved at the time of the transfer.

34  35 

HR 22 November 1991, NJ 1992/707 (Bootsma and others/DMV Campina). HR 11 May 2012, NJ 2013/171, JAR 2012/150, RAR 2012/109 (Van Tuinen/Wolters).

602  Guus Heerma van Voss E.  Information and Consultation As regards the company policy on the use of fixed-term employment contracts, the works council has the right of consent (in practice: the right to veto) in accordance with Article 27(1) Works Councils Act (Wet op de Ondernemingsraden) with regard to company regulations dealing with appointment, dismissal and promotion policies at company level. However, it must be noted that most companies do not have an explicit policy regarding the use of fixed-term contracts and not many works councils actively make use of this right. A works council has to be installed when, as a rule, the company employs at least 50 employees (Article 2 Works Councils Act). The definition of ‘persons working within the company’ includes all employees with an employment contract and makes no distinction between permanent and fixed-term employees (Article 1(2) Works Councils Act). However, in order to have the right to vote in elections for the works council, the employee must have been working for the company for at least six months. To be eligible to become a member of the works council, the employee must have been employed in the company for at least one year (Article 6(2)–(3) Works Councils Act). F.  Specific Provisions The legislation of the Netherlands generally does not stipulate separate rules for fixed-term contracts in specific branches of work. However, the so-called ‘chain rule’, described above under section II.B, leaves room for exceptions in collective agreements as mentioned below under section II.G. One exception to the chain rule is the possibility to exclude it by written agreement for the members of the executive board of the company (par. 7), Besides this, the chain rule is not applicable in case of agreements meant for education of the employee (par. 9), for apprentices in official forms of education (par. 10), for young employees who work no more than 12 hours per week (par. 11), and for employees in a school for primary education who is replacing a sick teacher or teaching assistant (par. 15). In case of employees who have reached the national retirement age the period of consecutive fixed-term contracts after this age is extended to four years and the number of consecutive fixed-term contracts after this age is extended to six (par. 12). G.  Collective Agreements Deviating from Statutory Provisions The restriction of successive fixed-term contracts to a period of 36 months mentioned under section II.B may be extended by collective agreement to a

Atypical Employment Relationships: The Netherlands  603 maximum of 48 months. The maximum number of three successive fixedterm contracts may also be increased by collective agreement to a maximum of six However, this possibility only applies if it follows from the collective agreement that this extension of the duration or increase in the number of fixed-term contracts is required for the functions or groups of functions indicated in the collective agreement due to the intrinsic nature of the operations (art. 7:668a par. 5 Netherlands’ Civil code). This, for instance, can be applied in case of project-financed work in the media and cultural, as well as academic, sectors. In addition, the entire chain rule can be excluded by collective agreement for specific functions in a branch in case the position is indicated by the Minister, because for these positions it is durable custom and because of the intrinsic nature of the operational management and of those positions it is necessary to perform this work exclusively on the basis of fixedterm contracts, not being temporary agency work contracts (par. 8). In this regulation, the Minister of Social Affairs and Employment (Sociale zaken en werkgelegenheid, SZW) has provided very detailed exceptions for specific functions such as for professional soccer players and officials in this industry, trainers and directors of national sports unions, dancers, actors, substitute musicians in orchestras and television presenters who work for RTL Netherlands and have a gross salary of more than EUR 100,000 annually.36 The selection of these functions is based on requests by the involved parties. This might explain why, for instance, the broadcaster RTL Netherlands is allowed to make an exception, while its competitors are not. The legislator probably assumes that the persons involved are not regular employees due to their high income and are thus more capable than the average employee of bearing the risks associated with fixed-term contracts. III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements Part-time workers are covered by the general rules of Title 7.10, Book 7 of the Netherlands’ Civil Code, which correspond to the rules for full-time workers. Since the Netherlands has a relatively high rate of part-time work, it is generally accepted in society and employers usually treat part-time workers equally with full-time workers.37

36  Regulation of the Minister SZW of 24 June 2015, Stcrt 30 June 2015, no 17972 (Regeling ketenregeling bijzondere functies en hogere vergoeding kantonrechter). 37  In 2018 the part-time employment rate in the Netherlands was 46.8%, while the average for the EU-28 was 18.5%, according to figures of the Eurostat website, consulted on 28 May 2019.

604  Guus Heerma van Voss The Flexible Work Act is also particularly relevant for part-time employees. According to Article 1 Flexible Work Act,38 an employer is defined as someone who provides work for individuals (ie workers) based on an employment contract within the meaning of civil law or an appointment under public law. In the case of temporary agency work, this does not include the user undertaking, but only the (formal) employer of the temporary agency worker, namely the temporary work agency.39 If, however, the ‘employers’ can be considered each other’s successor, the period during which the employee performed work must be considered when assessing whether the employee has been in the service of the employer for at least one year.40 This period is a prerequisite for making any requests for changes to the working time. The Flexible Work Act does not cover military officials (Article 2(2)). Employers with fewer than 10 employees are not bound by this Act (Article 2(16)). Employees who have reached the statutory retirement age as determined by Article 7a General Old Age Act41 fall outside the scope of the Flexible Work Act and can thus not benefit from any adjustments under this Act. The parties to an employment contract may, of course, come to a different agreement. B.  Opportunities for/Right to Part-Time Work Following Article 2 Flexible Work Act, the employee may request the employer to change his/her agreed working time, the work schedule or the workplace. A request relating to the working time may concern an increase or decrease in working hours. A transfer from full-time to part-time work or vice versa requires several conditions to be met. Before a request for changes in working time can be granted, an employee must have been employed with the employer for at least 26 weeks (Article 2(1) Flexible Work Act). The notion behind this regulation is that a stable relationship between the employee and the employer should have been established. This provision does not exclude cases in which such a request is made at the beginning of the employment relationship, as long as the commencement date of the newly adjusted working time is at least 26 weeks after the employment relationship was established. The Act mostly covers changes to structural working hours;

38  Prior to 1 January 2016, the Act was called Wet aanpassing arbeidsduur (Working Hours Adjustment Act). 39  Kamerstukken II 1998/99, 26 358, no 5, p 29. 40  Kamerstukken II 1998/99, 26 358, no 3, p 15. 41  Algemene Ouderdomswet (AOW).

Atypical Employment Relationships: The Netherlands  605 temporary adjustments can be agreed upon but fall outside the scope of the Act. Secondly, the request must be lodged at least two months before the change is to become effective. This allows the employer to arrange the organisation of the work based on the employee’s adjusted working time. Moreover, the request must be submitted in writing. The employee’s reasons for requesting a change in working time/duration or workplace do not need to be justified but when no reasons are given, the employer cannot take them into account when considering the request. The employer has to put his/her decision in writing. If the employer declines the request, s/he must provide the reasons for his/her decision in writing (Article 2(3)–(4) and (8) Flexible Work Act). Principally, requests for a change in working time or the work schedule must be granted as far as the timeframe for implementing the changes and their extent is concerned. An employer can only reject the request if s/he can prove that substantial operational interests against it exist (Article 2(6) Flexible Work Act). Substantial operational interests are affected when the reduction in working hours will lead to serious operational problems, has consequences for safety at work, or will substantially affect the structure of work schedules (Article 2(9)). If a change to an employee’s working time will result in serious problems with regard to safety, the structure of work schedules, or the employer’s financial or organisational structure, the employer is entitled to reject the request (Article 2(11)). The employer must in principle accept the employee’s request to redistribute his/her weekly working hours (work schedule). However, the employer may change the employee’s working hours for operational reasons and reject the employee’s request for reasons of reasonableness and fairness (Article 2(6)). The employee’s request for changes in working hours will be deemed to have been accepted if the employer does not respond within one month before the changes are intended to take effect (Article 2(12) Flexible Work Act). C.  Opportunities for/Right to an Extension of Working Time The rules mentioned under III.B apply equally to requests for extensions of working time. The employer has more room to reject requests to extend an employee’s working time. For instance, if the extension of working hours will lead to serious problems of a financial or organisational nature, if there is a lack of available work or an absence of vacancies or insufficient staff budget, the employer can reject the request based on substantial operational interests.

606  Guus Heerma van Voss D.  Rights and Status of Part-Time Worker (i)  Equal Treatment42 Employers may not discriminate between workers on the basis of their working hours with reference to the conditions under which the employment contract is concluded, continued or terminated, unless justified by objective reasons. Any stipulation that has been agreed upon in breach of this provision is null and void (Article 7:648(1)–(2) Netherlands’ Civil Code).43 The employer may not put an employee who has invoked the provision in or out of court, or has assisted in invoking this provision, at a disadvantage (Article 7:648(4) Netherlands’ Civil Code). If the employer dismisses the employee in breach of one of these provisions, the employee can request the court to annul the dismissal (Article 7:681(1)(c) Netherlands’ Civil Code). A difference in treatment of employees is justified if the employer can prove that such treatment is based on circumstances that are unrelated to unjustified discrimination. The test used to assess whether the difference in treatment can be objectively justified determines whether the measure in question is legitimate, suitable and proportionate. In other words, the measure must relate to the employer’s actual need, it must be suitable to achieve that aim and it must be necessary. This definition is provided in Article 7:646 Netherlands’ Civil Code for the justification of indirect discrimination between men and women and is based on the case law of the Court of Justice of the EU. These criteria are not specifically repeated in the text of Article 7:648, but the criterion ‘objective justification’ is the same. The Minister’s explanatory memorandum mentions that the same interpretation applies.44 The pro rata temporis principle applies to part-time workers. Generally, there is no discrimination if a part-time worker receives lower remuneration, overtime payment, or holiday allowances on a pro rata basis. However, there are situations in which such a pro rata reduction seems unjustified. On a case-by-case basis, the employment conditions must be assessed in the light of the general course of action, with regard to the nature and objective of the employment measure. For instance, the travel reimbursement of a part-time worker who works 20 hours (five days) a week must be the same as that of a full-time worker whose working hours are spread over five days.45 42 GJJ Heerma van Voss, C Assers, Handleiding tot de beoefening van het Nederlands Burgerlijk Recht. 7. Bijzondere overeenkomsten, Deel V, Arbeidsovereenkomst (Deventer, ­Kluwer, 2015) para 211–12. 43  Wet verbod van onderscheid naar arbeidsduur (WOA—Act prohibiting discrimination based on working time), Stb 1996, 391. 44  DJB de Wolff, Wet aanpassing arbeidsduur (Deventer, Kluwer, 2000) p 100. 45  AEL Rehbock and AJ van Dijk, ‘Overzicht gelijkebehandelingswetgeving’, Arbeidsrecht 2005, 29, p 12.

Atypical Employment Relationships: The Netherlands  607 (ii)  Dismissal Protection According to Article 3 Flexible Work Act, the employer may not terminate the employment relationship of an employee because of his/her request for a change in his or her working time/hours or workplace. (iii)  Other Matters The social security legislation has for the most part been modified on the basis of the fact that many employees work part time. Unemployment benefits are paid in case of a loss of a specific number of working hours. Workers may be entitled to a number of unemployment benefits if they lose parts of their job or various part-time jobs at separate times. The benefits for disabled workers are adjusted to the severity of the worker’s disability. Although the social security legislation is to a high degree ‘part-timeproof’, problems still exist with regard to certain thresholds and practical obstacles for part-time workers to be treated equally in this respect.46 E.  Information and Consultation The works council has the right of consent (in practice: the right to veto) with company regulations regarding to appointment, dismissal and promotion policies for part-time employees at company level (Article 27(1) Works Councils Act (Wet op de Ondernemingsraden)). However, it must be noted that most companies do not have an explicit policy on the use of part-time work, and not many works councils actively make use of this right. With regard to the threshold for the duty to establish a works council and its composition, each part-time worker is counted as a full-time worker. There are no restrictions on the right of part-time workers to vote for the works council or their eligibility to become members of a works council (Articles 1, 2 and 6 Works Councils Act). F.  Other Part-Time Arrangements On-call work (oproepwerk) is quite common in the Netherlands, especially for small jobs with irregular working patterns. On-call work is often used by companies that need a pool of additional workers who are available to work when additional capacity is needed. The rules on part-time work also generally apply to this category. An on-call contract (oproepovereenkomst) is defined by the Balanced Labour Market Act (to come into force in 2020) (Article 7:628a(9) 46  Suzanne Burri, Tijd delen, Deeltijd, gelijkheid en gender in Europees—en nationaalrechtelijk perspectief (Deventer, Kluwer, 2000) pp 40–41.

608  Guus Heerma van Voss Netherlands’ Civil Code). The definition for the purpose of that article is that an on-call contract is at stake when: (a) The size of work is not fixed as a single number of hours during a time unit of 1 at most one month; or 2 at most one year and the right to wages of the employee is evenly spread over that time unit; or (b) The employee is not entitled to wages if he has not performed the agreed work.

On occasion, it is denied that on-call workers have an employment contract. However, labour law theory assumes that on-call workers have an employment contract, at the very least in the form of a fixed-term contract for the periods they perform work. When an on-call worker regularly performs work, s/he is generally deemed to have concluded an employment contract with a ‘postponed duty to perform’ (uitgestelde prestatieplicht). This means that the employer only has to pay for the hours the employee actually worked. It also implies that the employer has the duty to call on the worker to work when work becomes available. The employer may not end the employment relationship without following the normal dismissal procedures. An on-call worker is entitled to equally divide the available work among the on-call workers. This obligation is reciprocal in the sense that if the worker is expected to answer calls for work whenever requested, the employer also has the obligation to equally call on the worker to work when work becomes available. Once a call is made, the employer has to pay for the agreed work period, even if s/he does not actually make use of the worker. Labour law generally applies to on-call workers as it does to regular employees. However, in practice, on-call workers are often in a weak position and are hesitant to stand up for their rights. Often, on-call workers are students, pensioners and others who do not fully rely on the income they receive from the on-call work. To prevent on-call workers from becoming dependent on on-call work for their livelihoods, a specific provision has been introduced for workers who work less than 15 hours per week at irregular hours, or have an oncall contract (oproepovereenkomst). Such employees are minimally entitled to wages for three working hours each time they are called on to work for less than three hours (Article 7:628a Netherlands’ Civil Code). The objective of this rule is to prevent employers from calling on these workers to work for only very short periods, eg for one hour. In a case involving a taxi driver who made several separate short trips in one day, the Supreme Court decided that this regulation led to the conclusion that the taxi driver should have been awarded several payments of three hours’ pay, adding up to a salary for a total number of working hours higher than a regular working day.47 With its decision, the Supreme Court reiterated that the employer’s 47 

HR 3 May 2013, NJ 2015/105, JAR 2013/140, RAR 2013/100 (Van der Meulen/Wolters).

Atypical Employment Relationships: The Netherlands  609 duty is to provide the employee with some work security and to not expose the employee to the risk of availability of work. Further forms of protection are established by the Act on Balancing the Labour Market of 2020. The on call-employee cannot not be required to comply with a call from the employer to come to work, if the employer did not announce the times of work at least four days in advance in writing or electronically to the employee (Article 7:628a(2) Netherlands’ Civil Code). If the employer in the framework of an on-call contract withdraws or changes partly or complete his call to work within four days before the planned time of working, the employee is entitled to the wage he would have been entitled to if he had performed the work he originally was called to do. If the call to work is withdrawn or changed, this must be done in writing or electronically (Article 7:628a(3) Netherlands’ Civil Code). The term of four days mentioned in the previous two paragraphs, may be reduced by collective agreement, providing that the term is at least 24 hours (Article 7:628a(4) Netherlands’ Civil Code). In case of an on-call contract, the employer has after every period of 12 months it has lasted within one month make the employee an offer for a fixed scope, that is at least equal to the average amount of the working time in the preceding period of 12 months. The employee has one month to accept the offer. For the calculation of the period of 12 months, contracts that are interrupted for six months at most, are counted together. This is also applied to consecutive contracts between an employee and different employers who, regardless whether they have insight in the capacity and abilities of the employee are reasonably to be considered as each other’s successor in relation to the performed work. During the term that the employer has not complied with these provisions, the employee is entitled to the wage he would have received for the amount of work the employer should have provided (Article 7:628a(5)–(8) Netherlands’ Civil Code). An exception to the application of these rules is made for positions, who are indicated by collective agreement, that by result of climatologic or natural circumstances can be performed during a period of at most nine months per year and cannot be performed subsequently by the same employee during a period of more than nine months per year. (Article 7:628a (11) Netherlands’ Civil Code). This rule has been introduced in order to protect seasonal work that cannot provide for jobs over the entire year (like work on the beach or in tourist areas). G.  Collective Agreements Deviating from Statutory Provisions As regards the right to the extension of working hours, a deviation from the regulations of the Flexible Work Act (see III.C.) can be included in a collective agreement. If no collective agreement is applicable or the collective

610  Guus Heerma van Voss agreement does not address this matter, it can be agreed in writing with the works council or employee representative (Article 2(15) Flexible Work Act). This possibility is not used in practice often. The trade unions and works councils are not particularly fond of waving this right and employers do not seem too concerned about many requests from employees and thus do not see an urgent need to push such an agreement. IV.  TEMPORARY AGENCY WORK

A.  Legal Definitions/Formal Requirements The Act on Placement of Personnel by Intermediaries regulates the activities of institutions active on the labour market. This includes every private actor who intermediates between employees and employers with regard to work. It also includes temporary work agencies. The Act stipulates principal rules for their operation on the labour market, in line with ILO Convention No 181. The relationship between temporary agency workers and the temporary work agency is established through a temporary employment contract. This contract is legally recognised and regulated in Articles 7:690 and 7:691 Netherlands’ Civil Code. These provisions are applicable to any employee who has concluded a temporary employment contract with the employer and is assigned to a third party (Article 7:690(1) Netherlands’ Civil Code). The temporary work agency is considered the actual employer. The temporary agency worker has no contractual, but only a factual relationship with the user undertaking. The temporary work agency and the user undertaking conclude a contract for services setting out their mutual rights and duties. According to the Netherlands’ Civil Code, a ‘temporary employment ­contract’ is defined as an employment contract whereby, within the framework of the conduct of a profession or business of the employer, the employee is placed by the employer at the disposal of a third party in order to perform work under the supervision and direction of that third party by virtue of a contract for services granted by the third party to the employer.48

In fact, temporary agency work involves three parties: the employee (temporary agency worker), the employer (usually a temporary work agency) and the user undertaking (which supervises and directs the employee on behalf of the employer and has requested the employer to send an employee to work for him/her). According to the Netherlands’ employment law, the temporary agency worker is an employee of the temporary work agency and has no contractual relationship with the user undertaking. The temporary employment agency must fulfil the employer’s duties such as payment of 48 

Art 7:690 Netherlands’ Civil Code.

Atypical Employment Relationships: The Netherlands  611 wages, and deductions of social security premiums and tax payments from the employee’s salary to be paid to the Tax Service, but also protection of safety at work. However, the user undertaking may also be held liable in case of an accident at work. With regard to the notion of ‘authority’ in the employment contract, it is assumed that the temporary work agency delegates much of its authority over the employee to the user undertaking, but remains responsible for the employee as the actual employer. (i) Payrolling Another contract type related to temporary agency work is that of ‘payrolling’. This is a concept that was introduced at the beginning of the twenty-first century in the Netherlands. Payrolling has many similarities with temporary agency work. The major difference is that the payroll employee is selected by the user undertaking itself, while a temporary agency worker is selected by the temporary work agency and then sent to the user undertaking. The payroll company is usually an independent company, separated from the user undertaking. The payroll company acts as the formal employer of the payroll employee. This form of employment construction has been used more frequently in the Netherlands since 2010 by employers who do not want to assume the responsibilities of an employer, especially with regard to payment during sick leave and dismissal procedures. They use the service of the payroll companies to outsource the role of employer. Payroll companies can be temporary work agencies or specialised companies that may operate in specific sectors. The use of payroll companies is controversial, mainly because this practice may lead to a deterioration of employees’ rights. Another controversial issue is whether payroll work should be based on the special provisions established for temporary agency work. Opponents argue that the special position of temporary employment agencies in the Netherlands’ legislation is only justified because such agencies fulfil an ‘allocation function’ in the labour market; that is, they manage demand and supply of labour. Payroll companies, on the other hand, do not intermediate between user undertakings and workers and therefore should not deserve a privileged position in labour law. However, the Netherlands’ Supreme Court decided that the present definition of the temporary employment contract in Article 7:690 Netherlands’ Civil Code does not require the employer to fulfil an allocation function in the labour market.49 In some cases, lower courts have concluded that the payroll relationship was ambiguous and that the employee had to be considered an employee of the hiring company. Within the framework of dismissal law, the legislator introduced some level of protection for payroll employees

49 

HR 4 November 2016, NJ 2017/370, JAR 2016/286, RAR 2017/26 (C4C/Stipp).

612  Guus Heerma van Voss in a Regulation based on the Act on Work and Security of 2015. In terms of dismissal law, payroll workers are principally treated as employees of the hiring undertaking.50 The Act on Balancing the Labour Market of 2020 included more extensive provisions for payroll work.51 It introduced a legal definition of the payroll contract: The payroll contract is the temporary employment contract, whereby the contract for services between the employer and the third party has not been established in the framework of bringing together demand and supply on the labour market and whereby the employer only with permission of the third party is allowed to put the employee at the disposal of another party.52

In addition, it is stipulated that some legal provisions can only be applied in case this is done in the company where the payroll employee is actually working, like derogations of the legislation by collective agreement and options to reduce the wages in periods without work (Article 7:692a ­Netherlands’ Civil Code). (ii)  Intra-concern Posting of Workers Another problem is the position of groups of companies who have an internal ‘staff corporation’. This practice implies that all employees are hired by one limited company within the structure of the group as a whole, even when the employees factually work in the service of one of the other parties of the group. The main purpose of this practice is simplification of employee administration, especially if the employees change positions within the group often. Such employees may have a stable position because they work under a contract of indefinite duration. The employment construction as such does not have to be harmful for their legal status. However, they are to some degree comparable with temporary agency workers, since they work under the authority of a company that is not their formal employer. One exemplary case is the Albron case, in which Heineken sold a limited company that was responsible for catering. The employees who were assigned to this work were legally employees of Heineken Personnel Limited. The contracting partners assumed that the rules on transfers of undertakings were not applicable, because the employees were not formally employed by Heineken Catering. However, the EU Court of Justice decided that the rules on transfers of undertakings were also applicable in this case

50  Para 9 of the Regulation on dismissals, Decision of 23 April 2015, Stcrt 2015, 12685 (Ontslagregeling). 51  Bill no 34837, nos 1–2. 52  Art 7:692a Netherlands’ Civil Code. In Article 1(1)(d) Act on Placement of Personnel by Intermediaries a corresponding definition of payrolling is added.

Atypical Employment Relationships: The Netherlands  613 and that the given employees had been transferred to Albron and were thus able to keep their acquired rights.53 B.  Registrations, Licensing, Financial Guarantees, etc Since 1998 Temporary Work Agencies do not longer need a licence to operate in the Netherlands. Beforehand, their activities were strictly controlled by the government and assignments were limited in time. The law of 1998 was an almost complete liberalisation of this branch. Statutory restrictions are now limited to four basic elements. Firstly, no consideration may be requested for the assignment of workers (Article 9 of the Act on Placement of Personnel by Intermediaries). Secondly, it is not possible to send temporary agency workers to a company where a collective strike action is taking place.54 Thirdly, temporary agency workers must receive the same remuneration as regular workers employed at the undertaking, unless the collective agreement stipulates otherwise (Article 8(1) Act on Placement of Personnel by Intermediaries). Finally, the temporary work agency is responsible for informing the temporary agency workers on safety instructions and health protection.55 However, since after the liberalisation of the temporary work agency sector, fraudulent practices were signalled, the legislation was then made stricter. In order to keep track of the number of temporary work agencies and to improve monitoring and law enforcement in the temporary agency work sector, the Netherlands introduced a registration system. It seems to be in accordance with Article 4(4) of the Temporary Agency Work Directive, which states that licensing and registration obligations for agencies are exempt from the review Member States are required to carry out with reference to measures that might limit the use of temporary agency work. Since 1 July 2012, temporary work agencies are required to register, regardless of whether they are established in the Netherlands or abroad if they want to assign employees to the Netherlands labour market. This obligation facilitates the sector’s own quality control in the form of a certificate that is issued to reliable temporary work agencies. As regards temporary work agencies established abroad, the physical location of the undertaking abroad will be registered, or if the undertaking has no physical address, the address where the entrepreneur is registered and can be contacted. In July 2012, about 19,000 agencies were registered with the Dutch

53  CJEU 21 October 2010, Case C-242/09 Albron Catering BV v FNV Bondgenoten and John Roest, [2010] ECJ I-10309; NJ 2010/576, JAR 2010/298, RAR 2011/3 (Albron/Roest). 54  Art 10 Act on Placement of Personnel by Intermediaries. 55  Art 11 Act on Placement of Personnel by Intermediaries in connection with Art 5, section 3 of the Health and Safety Act (Arbeidsomstandighedenwet).

614  Guus Heerma van Voss Chamber of Commerce. Three objectives are ascribed to the registration obligation, namely increasing: (1) transparency in the labour market; (2) the self-­policing capacity of the sector; and (3) monitoring and enforcement by authorities. These aims are a reflection of the fact that regulation, monitoring, and enforcement in the temporary work agency sector consist of a public/private mix. Registration of such agencies helps to prevent abuse and applies to Dutch and foreign temporary work agencies alike.56 In 2015 the Act on fighting bogus employment (Wet aanpak schijnconstructies) was introduced. This Act introduced a shared accountability of commissioning parties for the payment of wages to the employee working for contractors.57 The Act makes an exception for those who are not liable for the non-payment of wages. Also the temporary work agency sector itself developed a quality mark organised by the so-called ‘Foundation on Standard Setting of Labour’ (Stichting Normering Arbeid). The basic idea is that commissioning parties that make use of a contractor with such a hallmark will be considered not liable in case of unpaid wages to employees. However, it is ultimately the court that will have to decide on this. C. Relationship between Temporary Agency Worker and Temporary Work Agency (i)  Fixed-Term and Part-Time Contracts The temporary agency work contract is a ‘special’ type of employment contract. In principle, temporary agency work is carried out on the basis of an employment contract. According to Article 7:690 Netherlands’ Civil Code, a temporary agency work contract is an employment contract according to which the temporary agency worker is assigned to another party (the user undertaking) by his/her employer to work for the other party under his/her direction. In general, the conditions under which an employment relationship is presumed to exist depend on the existence of a contract which is concluded between the user undertaking and the temporary agency worker.58 An employment contract concluded with the aim of performing temporary agency work is presumed to be similar to a regular employment contract. Authority is presumed to be partly delegated to the user undertaking, which provides the work instructions. 56  M Kullmann, Enforcement of Labour Law in Cross-Border Situations: A legal study of the EU’s influence on the Dutch, German, and Swedish enforcement systems, Law of Business and Finance, vol 14 (Deventer, Kluwer, 2015) p 263. 57  Arts 7:616a and 7:616b Book 7 Title 7.10 Netherlands’ Civil Code. 58  HR 6 April 2002, NJ 2003/124, JAR 2002/100 (ABN AMRO/Malhi).

Atypical Employment Relationships: The Netherlands  615 In relation to the use of fixed-term employment contracts in the context of temporary agency work, the law stipulates that the rules of Article 7:668a Netherlands’ Civil Code on the maximum number and duration of fixedterm employment contracts do not apply to temporary agency work for the first 26 weeks of the employment relationship between the worker and the agency. Derogation is possible by collective agreement, according to which the period of 26 weeks may be extended to a maximum of 78 weeks (Article 7:668a(8) Netherlands’ Civil Code). A collective agreement can also contract out of the principle of equal pay for equal work within the user undertaking.59 The user undertaking is not required to pay wages and other working conditions since it has not concluded an employment contract with the temporary agency worker. The principle that the user undertaking is not required to pay wages is also valid if the collective agreement of the user undertaking contains clauses that require the employer to ensure that employees who were made available to the company are paid their applicable wages and other fees in accordance with that collective agreement. (ii)  Rights and Obligations/Liability The temporary work agency may not obstruct the establishment of an employment contract between the temporary agency worker and the user undertaking following an assignment. This provision furthermore determines that any clause contrary to this regulation is null and void. Parties may, however, agree on a clause determining that the user undertaking has the obligation to pay the temporary work agency reasonable compensation for costs accumulated in relation to the assignment, recruitment and selection or training.60 According to Article 7:658(1) Netherlands’ Civil Code, an employer is required to provide a safe workplace, including premises, instruments and equipment used to carry out work, whereby the employer must take the necessary measures and give instructions to the workers to ensure they do not suffer any damage or injury when performing work. This provision also applies to the relationship between the temporary agency worker and the user undertaking. In practice, the temporary work agency and the user undertaking will conclude an agreement for services, in which they usually divide the responsibility for damages. In case of injury or damage to the worker as a result of the work s/he performs, s/he can claim compensation not only from his/her employer, but also from the user undertaking.61 59 

Art 8 Act on Placement of Personnel by Intermediaries. Article 9a Act on Placement of Personnel by Intermediaries 61  Article 7:658(4) Netherlands’ Civil Code. 60 

616  Guus Heerma van Voss (iii)  Dismissal Protection With respect to dismissals, the general provisions on terminations of employment relationships generally apply as they do in the situation of regular workers. However, two exceptions are made to the general rules. Firstly, as mentioned earlier, the general rule that more than three consecutive fixedterm employment contracts will automatically convert into an employment contract of indefinite duration is not applicable until the temporary agency worker has performed work for a period of more than 26 weeks.62 This period can be extended by collective agreement, which is often the case in practice.63 Secondly, the temporary work agency may stipulate a condition that the contract will automatically (ex lege) terminate on request of the user undertaking.64 This is known as the ‘temporary agency work clause’. Such a clause will only be valid during the first 26 weeks in which the temporary agency worker performs work for the user undertaking. This period of 26 weeks can also be extended by collective agreement, which is also usually the case in practice (Article 7:691(8) Netherlands’ Civil Code). A third exception to the general rules is the order of dismissed persons in case of a collective dismissal on economic grounds. The temporary agency workers are eligible for dismissal before the employees who are directly employed by the undertaking are dismissed.65 There is a controversy in literature with regard to the question about the legal validity of a clause in the temporary agency employment contract (or in the applicable collective agreement) that the contract is terminated ex lege if the employee falls ill. In practice, temporary work agencies often assume this to be a legally acceptable provision, since it may be assumed that the user undertaking will request the end of the contract when the temporary agency worker falls ill. In the author’s view, this goes beyond the statutory exception. In this view, the contract may be terminated on the basis of such a provision in case of illness, but this has to be a decision of the user undertaking at the time the illness occurs and cannot be assumed in advance. It must be noted that in the relationship between a temporary work agency and its workers, the temporary work agency as an employer is bound to the above described regulations on expiry of fixed-term contracts. That is, if the duration of the employment contract has been at least six months, the employer is required to inform the worker in writing no later than one month before the end of the fixed-term employment contract that s/he does not intend to continue the employment relationship. If the employer decides 62 

Article 7:668a Netherlands’ Civil Code. an English version of the generally binding collective agreement of the temporary agency work sector, see: www.abu.nl/yourpassage/collective_labour_agreement_temporary_ agency_workers/index.html. 64  Article 7:691(2) and (3) Netherlands’ Civil Code. 65  Article 7:671a (5)(d) Netherlands’ Civil Code. 63 For

Atypical Employment Relationships: The Netherlands  617 to continue the employment relationship, the employer must inform the worker about the conditions under which the relationship will be continued. Any failure on behalf of the employer to comply with these regulations entitles the employee to compensation in the amount of one month’s salary (Article 7:668(1)–(3) Netherlands’ Civil Code). The purpose of the information obligation is for the worker to be informed in a timely manner whether the employment relationship will be continued.66 D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship According to Dutch employment law, no legal relationship exists between the temporary agency worker and the user undertaking. The worker only has an employment contract with the temporary work agency. That agency has a contract for services with the user undertaking, stipulating that the agency will assign one or more of its workers to the user undertaking. The relationship between the temporary agency worker and the user undertaking is considered a factual relationship. Nevertheless, legal consequences of this relationship may be determined in specific cases in law, eg an obligation to pay damages in case of accidents at work. One could also call such an employment relationship a ‘relationship sui generis’. (ii)  Rights and Obligations/Liability Several provisions exist on rights and liability. First, the user undertaking must ensure in accordance with Article 8b Act on Placement of Personnel by Intermediaries that temporary agency workers have equal access to amenities or services such as the canteen, child care facilities and transport services, with the user undertaking’s own employees who have the same or similar functions, unless the difference in treatment is justified on objective grounds. Secondly, pursuant to Article 8c Act on Placement of Personnel by Intermediaries, the user undertaking is required to inform the temporary agency worker in a timely manner of any vacancies that become available. The workers thus have the same opportunity as employees directly employed by the user undertaking to conclude a permanent employment contract. Thirdly, as mentioned under section IV.C., the user undertaking may be held directly liable for any damages or injuries related to the performance 66  Tekst & Commentaar Burgerlijk Wetboek, commentaar op art 7:690 BW, aant 8 (FBJ Grapperhaus), with reference to Kamerstukken II 2013/14, 33 818, no 3, p 17.

618  Guus Heerma van Voss of work for/at the user undertaking (Article 7:658(1) and (4) Netherlands’ Civil Code). The injured temporary agency worker may hold both parties (the temporary work agency and the user undertaking) equally liable. (iii)  Health and Safety According to Article 11 Act on Placement of Personnel by Intermediaries, the individual who offers the temporary agency work is also responsible for providing information about the necessary occupational qualifications and provides the worker with the work description referred to in Article 5(5) Health and Safety Act (Arbeidsomstandighedenwet) prior to the commencement of work. The latter provision determines that if the employer (read: ‘the user undertaking’) makes use of temporary agency workers who have been assigned to it, the employer must provide them with a description of the risks and hazards in a timely manner via the temporary work agency prior to the commencement of their assignment, with the aim of mitigating the risks and hazards. E. Relationship between Temporary Work Agency or Payroll Company and User Undertaking The relationship between the temporary work agency or the payroll company and the user undertaking is not regulated by legislation. In practice, they usually conclude a contract for services. In this contract, the assigning of the worker is determined, together with the price for the agency’s or payroll company’s services and other conditions such as the duration of the contract and liabilities, mostly on the basis of the General Conditions of the Temporary Work Agency or Payroll company. In practice, it is often agreed that the user undertaking will be liable for work-related accidents and that the temporary work agency or payroll company may claim reimbursement from the user undertaking in case it is held liable. F.  Rights and Status of Temporary Agency and Payroll Workers (i)  Equal Treatment An important provision on the fair treatment of temporary agency workers is that on equal treatment.67 Accordingly, a temporary agency worker, in line with Directive 2008/104/EC, is entitled to at least the same working

67 

Article 8 Act on Placement of Personnel by Intermediaries.

Atypical Employment Relationships: The Netherlands  619 conditions as those applicable to employees working in equal positions or positions of equal value in the user undertaking. If the company where the worker works has no employees in equal positions or positions of equal value, the worker is entitled to the same working conditions as are applied for employees working in equal positions or positions of equal value in the branch of industry in which the company is acting. The principle of equal treatment applies to wages and other allowances as well as those following a collective agreement that is applicable in the user undertaking in relation to working hours, including overtime, rest periods, night shifts, breaks, extended holidays and payment for work on bank holidays. The article explicitly includes provisions for the protection of pregnant workers, workers who are breast-feeding, children and young workers, health and safety and to promote equality between men and women, as well as measures to combat discrimination based on sex, race, religion or belief, disability, age or sexual orientation, applicable under a collective agreement or other legal provisions of general application in force in the user undertaking. However, according to the same article, a collective agreement may derogate from the provision that temporary agency workers are entitled to at least the same working conditions as those applicable to workers employed in equal position or positions of equal value in the user undertaking, if the following two cumulative conditions are met. Firstly, if the period during which the deviation applies is limited and the agreement provides for a system under which abuse is combated by preventing successive periods of assignment. Secondly, if the collective agreement that is applicable in the user undertaking determines that the user undertaking must ensure that the temporary agency workers assigned to this company must benefit from the working conditions as applicable in this undertaking. The temporary work agency is legally responsible for complying with this provision. But of course when the user undertaking is practically more in the position to apply it, the employee will first contact the direct responsible person. A comparable provision is foreseen for payroll workers.68 The payroll worker is entitled to at least the same working conditions as those applicable to employees working in equal or positions of equal value in the service of the user undertaking. If the company where the worker works has no employees in equal positions or positions of equal value, the worker is entitled to the same working conditions as are applied for employees working in equal positions or positions of equal value in the branch of industry in which the company is acting.

68 

Article 8a Act on Placement of Personnel by Intermediaries.

620  Guus Heerma van Voss The contribution that the employer normally is obliged to pay to funds for his employees has to be paid yearly directly to the payroll worker. The payroll worker is also entitled to an adequate supplementary pension scheme, provided: (a) Employees working in equal positons of in positions of equal value in the service of the user undertaking are entitled to a supplementary pension scheme; or (b) Employees working in equal positions or in positions of equal value in the branch of industry in which the user undertaking is acting, are entitled to a supplementary pension scheme, in case the user undertaking itself has no employees in its own service in equal positons or in positions of equal value.

The requirements for an adequate supplementary pension scheme can be worked out by Decree.69 Two specific provisions are directed to the user undertaking, both in case of temporary agency workers as of payroll workers. In the first place the user undertaking is obliged to provide access to temporary agency and payroll workers to company services, especially canteens, childcare and transport facilities on an equal footing with its own employees in equal positions or positions of equal value. Except for payroll workers it is allowed to deviate from this rule, in case the difference in treatment is justified by objective reasons.70 Temporary agency workers and payroll workers must also be informed in a timely and clear manner by the user undertaking in case of internal vacancies, so as to have the same opportunities to be employed for an indefinite term as the employees of the user undertaking.71 (ii)  Other Matters The collective agreements for temporary workers usually have their own salary schemes, which allow temporary work agencies to raise salaries for those workers who have higher seniority in working for the agency. This allows the temporary work agencies to implement their own human resources policy. Since temporary agency work is allowed in the Netherlands without time limits, the collective agreements for temporary agency workers also foresee a certain protection against dismissal (like fixed terms for the duration of assignments) if the relationship lasts longer and in pension schemes for workers with a certain seniority.72 69 

The introduction of this part of the Act is postponed to 2021. Article 8b Act on Placement of Personnel by Intermediaries. 71  Article 8c Act on Placement of Personnel by Intermediaries. 72  FBJ Grapperhaus and M Jansen, De uitzendovereenkomst (Deventer, Kluwer, 1999) ch 8. 70 

Atypical Employment Relationships: The Netherlands  621 G. Information and Consultation/Representation of Temporary Agency Worker Temporary agency workers, like ‘regular’ workers, enjoy workers’ rights to participation in the company of their formal employer (that is the temporary work agency). This means that on the basis of Article 6 Works Councils Act, temporary agency workers have, after six months, a right to vote and they may, after 12 months, become elected. If it is conducive to the participation in the company, these periods may be extended. However, in practice most temporary agency workers do not work for such long periods consecutively for the same temporary work agency. The provision is specifically meant for temporary agency workers who have long-term relationships on this basis. In addition, temporary agency workers are also considered as employees working in the user undertaking once they have worked at least 24 months for the user undertaking (Article 3 Works Councils Act).73 This implies that those temporary agency workers who work for a long period for the same user undertaking have voting rights for the work council as well being eligible for election as a member of the works council in both companies: the temporary work agency as well as the hiring company. This rule also implies that these employees are also taken into account for the calculation of the threshold of 50 employees for the obligation to establish a works council in the hiring company. H. Strikes Insofar as it is known or can reasonably be expected to be known that there is a strike, lockout or sit-ins in a company or business (or part thereof), the company or business (or part thereof) may not make use of temporary agency workers for the duration of the strike, lockout or sit-in (Article 10 Act on Placement of Personnel by Intermediaries). I.  Collective Bargaining Agreements Deviating from Statutory Provisions As was already mentioned above, with regard to temporary agency work, several statutory provisions for employees may be set aside in collective agreements.

73  Tekst & Commentaar Burgerlijk Wetboek, commentaar op art 7:690 BW, aant 2 (FBJ Grapperhaus).

622

24 Atypical Employment Relationships: The Position in Norway HELGA AUNE

I. INTRODUCTION

A

TYPICAL EMPLOYMENT RELATIONSHIPS in the form of parttime and temporary work have been incorporated in Norwegian employment laws for decades. Of the total population, 69.6 per cent are employed; of those, 72.4 per cent are male and 66.7 per cent are female.1 In the last decades, the percentage of temporary/fixed-term workers has been around 10–15 per cent, with as much as 25 per cent of all employed persons working part time. Permanent positions are the norm according to Norwegian law, and part-time workers will often be permanently employed, but some may have a fixed-term employment contract. Norway is a member of the European Economic Area Agreement and the relevant EU Directives—Directive 97/81/EC, 99/70/EC and 2008/104/ EC—have been transposed in the Working Environment Agreement (WEA)2 and in collective agreements. The WEA applies to the entire labour market and supplements the Civil Servants Act,3 which provides special rules on work for the state. In the following, the legislation in the WEA is described in detail; the regulation in the Civil Servants Act only deviates to a minor degree regarding the positions in the state administration for which temporary employees may be hired. Collective agreements may not, as a general rule, provide less protection than specified in the legislation. Historically, part-time work was widely used to organise predominantly female professions in health care, education and cleaning. As the gender roles have changed in the meantime, there has been an increased focus on

1  www.ssb.no/arbeid-og-lonn/statistikker/aku/kvartal, Statistics Norway, Arbeidskraftundersøkelsen/workforce survey, 27 April 2017. 2  Lov om arbeidsmiljø, arbeidstid og stillingsvern mv. (arbeidsmiljøloven) av 17 Juni 2005 No 62. See Ombudsreport on pregnancy discrimination: www.ldo.no/nyheiter-ogfag/nyheiter. 3 Lov om statens tjenestemenn (tjenestemannsloven) av 4 March 1983 no 3 replaced by new Civil Servants Act in force from 1 July 2017, see Lov om statens ansatte m.v. (statsansatteloven) av 16. juni 2017, nr. 67.

624  Helga Aune the difficulties some employees have in finding full-time work in professions that historically have only offered part-time posts. This has resulted in legislation in recent years which provides employees with the right to expand the hours of their part-time posts to the actual number of hours they work (the hours they officially work in their part-time post plus any extra work they carry out on a regular basis). Temporary employees have made up 8–12 per cent of the workforce over the last few decades.4 Temporary work is often linked to part-time work. Past experience with abuses of successive fixed-term/temporary work contracts in situations in which permanent employment contracts would have been more appropriate has resulted in stricter and more clear-cut legislation on the conditions under which fixed-term/temporary work ­contracts are permissible as well as explicit legislation stating the right to permanent employment in case of unlawful use of fixed-term contracts. Temporary work agencies have witnessed a steady growth in the last few decades, along with increased cross-border work. Norway has therefore had to develop more protective legislation. Employees at temporary work agencies will—as a rule—be permanently employed at the ­temporary work agency. Temporary work contracts may only be used when the conditions for temporary work established in the WEA are met. II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements In Norway, there is no statutory definition of the term ‘fixed-term employment’ (midlertidig ansettelse/åremål) as such, but the legislation sets forth a number of conditions in order for a temporary employment contract to be deemed valid. ‘Fixed-term employment’ means temporary employment; ie the employment is limited to the performance of a specific assignment which is of a temporary nature or is limited to a specific period.5 The sections on fixed-term employment in the WEA Chapter 14 are applicable to both the public and the private sector and the rules equally apply to small and large enterprises. The Civil Servants Act regulates government activities and provides similar provisions on fixed-term work in Section 9. There are two types of fixed-term employment; the Norwegian term åremål is a historical term with known reference to fixed-term employment for leading positions that usually last six years; åremål is frequently

4 See White Paper on temporary work and work agencies from 2013: www.regjeringen.no/ globalassets/upload/asd/dokumenter/2014/horing_ams/midlertidig_ansettelse_mm.pdf. 5  See s 14-9(1) WEA.

Atypical Employment Relationships: The Position in Norway 625 extended for an additional term of six years. Åremål is commonly used for high-ranking administrative positions in public service, but the WEA allows for the conclusion of åremål agreements with CEOs of private enterprises as well. The term midlertidig ansettelse refers to temporary employment in any type of position, ie for leadership positions as well. The main difference between fixed-term employment and temporary employment is that fixedterm employment is established for a specific period and, in contrast to temporary employment, for a job that is usually permanently filled. The åremål form of fixed-term employment is only applicable to certain positions (directors at the highest levels of the executive management), or when it is required due to an agreement with a foreign state or international organisation. By contrast, temporary employment is the most common form of temporary work as long as the general conditions for temporary work are met. There was a case before the Municipal Court of Bergen in February 2017, in which six Polish employees of the temporary work agency ‘Clockwork Bemanning’ claimed that the condition ‘no pay between jobs’ (a form of zero-hours contract/permanent employment without a guaranteed salary) breached the WEA’s main principle ensuring full payment while permanently employed. The Court agreed with the employees that the system applied at Clockwork Bemanning was insufficient with reference to the main principle of the WEA. Clockwork Bemanning did not appeal the case.6 Permanent employment contracts without a guaranteed salary are discussed in the legal literature as well.7 B.  Lawful Stipulation of the Contractual Terms The norm is permanent employment (fast ansettelse).8 Fixed-term employment is only permitted if the conditions established in the WEA Section 14-9 and 14-10 are met. Fixed-term contracts with chief executives (åremål)9 may be concluded when such agreements are necessary based on an agreement with a foreign state or international organisation.10 WEA Section 14-9(2) (a)–(e) provides that temporary appointments (midlertidige ansettelser) may be agreed for the following reasons: a) b)

when the work is of a temporary nature, for work to temporarily replace another person or persons,

6 Case TBERG-2016-131720, February 2017. See the unions’ comments on the case in May 2017 in the Union Magazine: Magasin for Fagorganiserte 5/2017 p 20. The case is not accessible at the normal case database, Lovdata. 7  The magazine Arbeidsrett issued two articles in vol 1, 2017: Christel Søreide, ‘Grensen mellom fast og midlertidig ansettelse’ and Nina Melsom, ‘Fast ansettelse uten garantilønn’. 8  See WEA s 14-9(1). 9  See WEA s 14-10(1). 10  See WEA s 14-10(2).

626  Helga Aune c) d) e)

for work as a trainee, with participants in labour market schemes under the auspices of or in cooperation with the Labour and Welfare Service,11 with athletes, trainers, referees and other leaders within organised sports.

Paragraph (2) (f) provides that temporary appointments may in any case be agreed for a maximum period of 12 months. Such agreements may apply to a maximum of 15 per cent of the undertaking’s employees, rounded upwards, but temporary employment may be agreed upon with at least one employee. When considering whether the work is of a ‘temporary nature’, differences in both the nature of the labour and the workload may give grounds for temporary employment. If there is a permanent need for that particular labour, temporary employment will not be lawful. The main factor in the evaluation of the work’s nature is whether the employee performs work that is usually carried out on a continuous basis as part of the firm’s daily operations. If that is the case, the work will usually not be of a ‘temporary nature’. The fixed-term employment contract must be concluded in writing,12 and the anticipated duration of the employment relationship should be stated in the contract in accordance with WEA Section 14-6. A temporary employment contract that meets the statutory requirements at the commencement of the employment relationship may become illegal at a later stage when the facts change. For instance, an employee who has worked under a temporary employment contract for more than four years will be considered a permanent employee if the case is brought before the court, since the maximum duration of a temporary employment contract has been exceeded. Even if the need for a temporary employee existed at the commencement of the employment relationship, the character of the employment relationship may change after the contract has been entered into, for instance, if the need for labour is of a continuous nature. The N ­ orwegian Supreme Court asserted in a case involving an ambulance driver that the employee had fulfilled a constant and permanent need of the employer for the employee’s services and accordingly, the appropriate contract type was a permanent employment contract.13 When a temporary contract is ruled to be unlawful, the employee will generally be considered a permanent employee. According to the Working Environment Act Section 14-11, a court may issue a judgment asserting that the employment relationship is of a permanent nature. If the employee files a claim against the employer once the fixed period of employment has ended, 11 The Norwegian National Insurance Scheme/welfare system, which is called NAV in ­Norwegian, see: www.nav.no/en/Home, accessed on 13 May 2017. 12  See WEA s 14-5. 13  Norwegian Supreme Court, HR-2006-1605-A—Rt-2006-1158.

Atypical Employment Relationships: The Position in Norway 627 the employee may request the employment relationship to continue, unless a continuation of the relationship is obviously unreasonable for the employer. The employee may also claim compensation. Compensation is calculated on the basis of the general rules of compensation, with an employee typically claiming financial compensation for economic losses as a result of the breach. This claim typically involves the employee’s salary (which was not paid because the employee was not allowed to work), plus interest; a claim for non-pecuniary damages is also often submitted by the employee. The employee has the duty to limit any damage. This includes efforts to find a new source of income. The employee must provide some form of evidence that s/he has tried to find another job. The period deemed reasonable within which compensation must be paid may vary between six and 24 months, depending on the given profession and the local labour market conditions. No standard amount of compensation is awarded as the compensation will vary depending on the salary level of the given employee’s position. The abuse of (successive) temporary employment contracts is addressed in the legislation, particularly in the WEA Section 14-11, which stipulates that an employee will be considered a permanent employee in case of an unlawful temporary employment relationship. Section 14-9(7) states that employees who have been temporarily employed for more than four years pursuant to WEA Section 14-9(2)(a) or for more than three years pursuant to Section 14-9(2)(b) and (f) shall be considered permanent employees. C.  Termination/End of Fixed-Term Contracts A fixed-term contract ends upon the expiry of the agreed period or when the specific assignment is completed, unless otherwise agreed in writing or laid down in a collective agreement. During the fixed-term employment relationship, the provisions in Chapter 15 of the WEA on terminations of employment relationships shall apply.14 This means that the regular rules on terminations apply in addition to the condition that the employment contract shall last for the agreed period. Termination of an employment contract must be based on a valid reason (just cause) either relating to the enterprise (financial difficulties or introduction of a new business strategy) or to the employee (poor/under-performance). The same rules apply to terminations of fixed-term contracts, specifically as regards the formal requirements, namely the form and type of information that needs to be included in a notice of termination in order for the notice to be valid. Where an employee has been employed under a temporary contract for more than one year, the employee is entitled to a written notification (varsel) regarding the end date of his/her employment relationship no later than one 14 

WEA s 14-9(5).

628  Helga Aune month in advance.15 This applies regardless of the fact that the expiry of the agreed period is stated in the contract. What is decisive for the requirement to notify the employee is whether the employee will have been employed for over a year at the time of notification. If the notification is issued too late, the employment relationship is extended correspondingly. However, the employee is entitled to resign on the agreed date of expiry. The employer’s right to give notice of termination prior to the agreed end of the contract of temporary employees is not specifically stated in ­Section 14-9, but as already mentioned, the standard rules on valid reasons for termination apply. A notice of termination may be included in the temporary employment agreement. Otherwise, the standard rules on protection against unfair dismissal apply. However, this does not affect the employer’s right to summarily dismiss due to a severe breach of duty.16 Employees who have been temporarily employed for over four years pursuant to WEA Section 14-9(2)(a) or for more than three years pursuant to Section 14-9(2)(b) and (f) shall be deemed to be permanently employed. The regular provisions on terminations of employment relationships apply.17 This means that the employee will be considered permanently employed when s/he has been temporarily employed for four or three years. D.  Rights and Status of Fixed-Term Workers (i)  Equal Treatment According to WEA Section 13-1(3), temporarily employed persons are covered by the Act’s general protection against discrimination, which includes both direct and indirect discrimination. This protection against discrimination means it is prohibited to treat temporary employees in a less favourable way than permanent employees, and the protection encompasses all working conditions, including wages. Differentiated treatment is only acceptable if an objective ground for such differentiated treatment exists and the less favourable treatment of that employee relates to the achievement of a legitimate objective of the employer. In addition, such treatment must be appropriate and necessary for that specific purpose (see Section 13-3). The necessary requirement is interpreted strictly, and the employer will have to prove that no other solutions are available. Regardless of the prohibition of discrimination in relation to pregnancy,18 the Equality and Discrimination Ombud reports annually that in a large

15 

WEA s 14-9(4). WEA s 15-14. 17  WEA chapter 15. 18  See the Gender Equality Act, s 2 (now EDA, s 6). 16 

Atypical Employment Relationships: The Position in Norway 629 number of cases fixed-term contracts are not renewed due to pregnancy, maternity or parental leave.19 The legislation is quite detailed on the circumstances under which fixed-term work is permitted, and the consequences for breaching the rules are strict, and entail an automatic conversion of the fixed term contract into one of indefinite duration. (ii)  Employment Opportunities The number of temporary employees has generally remained between ­10–15 per cent in recent years.20 Temporary workers are often used to replace permanent employees who are on long-term leave, parental leave, etc. Temporary work is common in the health- and education sectors but is generally found in all parts of the labour market. The legislation was loosened in 2015 when the WEA Section 14-9(2) (f) allowed temporary employment for periods of up to 12 months without stating a specific reason. Such agreements may be entered into with a maximum of up to 15 per cent of the employees or a minimum of one employee regardless of the number of employees working at the enterprise. The 12-month rule was deemed a measure to stimulate the hiring of workers during a period of financial difficulties for certain sectors.21 The employer is required to inform temporary employees about vacant posts in the enterprise; this obligation to inform does not require extensive measures; however, the information must be made available for all employees, both permanent and temporary employees. Providing the information on the company’s website homepage is sufficient. Temporary employees shall be given priority (fortrinnsrett) when new posts become available in the firm rather than a ‘new’ person being hired. This priority right applies in cases where the temporary employee did not have the opportunity to gain permanent employment on expiry of his/her contract, due to the developments in the firm.22 The priority right does not apply to temporary workers who have been employed as substitutes for an employee who is on leave.23 19 See Ombudsreport on pregnancy discrimination: www.ldo.no/nyheiter-og-fag/nyheiter/ nyheiter-2015/gravide-diskrimineres/. See Statistics Norway: www.ssb.no/statistikkbanken/ SelectVarVal/saveselections.asp, accessed 16 May 2017. See Table 16 regarding temporary employment/fixed-term work, which shows that in 2016, 21.4% of all employed persons were temporarily employed, while the figure for the first quarter of 2017 is 18.9%. The increase of temporary workers could be explained by the more lenient approach taken towards hiring temporary employees as well as a more unstable labour market due to the difficulties in the oil industry over the last three years. 20  Statistics Norway: www.ssb.no/en/arbeid-og-lonn/statistikker/aku/kvartal, accessed 16 May 2017. 21  See amendments to the WEA, of 24 April 2015 No 20, in force since 1 July 2015 according to Royal Decree of 24 April 2015 No 399. See preparatory papers: Proposition 39 L (2014–15). 22  See WEA s 14-2(2) re (1). 23  See WEA s 14.2(2).

630  Helga Aune (iii)  Other Matters The rules on temporary work apply equally to all enterprises and the public and private sector alike. The decisive point is whether the enterprise fulfils the requirements stipulated in the WEA Section 14-9, ie whether it is filling a temporary need for additional workforce. The legislation on fixed-term work is effective. The need for additional provisions in collective agreements has been reduced to a minimum. This is attributable to the Norwegian tradition, whereby the social partners are represented in the committees preparing proposals for new legislation. There are no categories of fixed-term workers that are explicitly excluded from statutory social security schemes and/or statutory old-age pension schemes. There are no minimum requirements or thresholds to be met that disadvantage fixed-term workers. There is no case law to report. The statutory security and pension rights for temporary workers are in line with the EU acquis on gender equality. E.  Information and Consultation The number of temporary employees and the consequences for the working environment within a given undertaking must be subject to discussions with employee representatives at least once a year.24 Unions are often entitled to detailed rights to information and meetings to discuss the enterprise’s needs for temporary labour according to their collective agreements. Such information meetings are usually held once or twice annually. These meetings with the employer will typically cover the extent of temporary work and the reasons for the continued need for such work, the figures and overview of salaries and working conditions of employees. The rules on information ensure both awareness on the employer’s side for the actual need to hire temporary or permanent employees and that the rules are respected in practice. F.  Specific Provisions Temporary employment contracts can be concluded with athletes, coaches, referees and other leaders within organised sports.25 G.  Collective Bargaining Agreements Deviating from Statutory Provisions National unions may enter into collective agreements with an employer or an employers’ association concerning the right to conclude temporary 24  25 

See WEA s 14-9(2) last para. See WEA s 14-9(1) (e).

Atypical Employment Relationships: The Position in Norway 631 employment contracts within a specific group of workers employed to perform artistic work, research work or work related to sport.26 III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements Part-time work is not defined as such in the WEA, but is a term to describe all types of contracts for work that is for fewer hours than the equivalent amount of a 100 per cent that is common for the given post in a given profession or field of employment. Part-time contracts may either be permanent or temporary if the conditions for temporary work exist.27 The term part-time work is thus used for both students working part-time to earn additional income while they are studying as well as for persons who have a permanent post but work less than 100 per cent of the time for that given post. B.  Opportunities for/Right to Part-Time Work Part-time work is facilitated in the WEA, which provides the right to work part time for employees with particular needs. This, for example, includes workers with family responsibilities, or employees who for health, social or other weighty welfare reasons need adjustments in their working hours, or who have reached the age of 62 (Section 10-2(4)). Such working time adjustments may be in form of partial leave of absence (Section 12-6). If an employee suffers reduced capacity for work as a result of an accident, sickness, fatigue or the like, the employer shall, as far as possible, implement the necessary measures to enable the employee to retain or be given suitable work. The employee shall preferably be given the opportunity to continue his normal work, possibly after special adaptation of the work or working hours, which includes part-time work (Section 4-6). There is also a right to partial leave for further education (Section 12-11). Upon returning from maternity leave (in accordance with Article 15 of Directive 2006/54/EC), the WEA provides for a right to work reduced hours for a certain period to facilitate the reconciliation of work and family obligations under WEA Section 10-2(4) and Section 12-6. The WEA does not specifically provide for a right to reduced working hours due to a need to care for elderly relatives, but such leave may be granted on the basis of ­Section 10-2(4). Some unions have discussed the need to provide expressly for such an option in view of the growing elderly population. 26  27 

See WEA s 14-9(3). See WEA s 14-9.

632  Helga Aune Part-time work is common in Norway, especially in traditionally female-dominated professions such as health care and education, retail and cleaning. The number of part-time employees has been quite stable since the 1980s until today, remaining around 40 per cent of all employed women.28 Part-time work may be seen as a voluntary choice, but research reveals that it is also the result of gender stereotypes, with some enterprises heavily relying on organising job schedules around a large pool of part-time workers, making it nearly impossible for such employees to find full-time posts.29 The definition of involuntary part-time work is when an employee wants to work more hours, but is unable to find a full-time post. This led to legislative changes in the WEA in 2013, giving part-time workers a preferential right to increasing their working hours instead of the enterprise hiring a new employee, WEA section 14-3. There have also been several proposals on re-organising work schedules and rota-arrangements30 to ensure that those employees who want to work more hours are given that opportunity. Part-time work is increasingly being addressed in the light of stereotypical gender roles. This factor has been repeatedly raised in the various committees appointed by the government over the last few years.31 All of these committees identify part-time work as a direct result of a lack of gender equality. The committees have called for a comprehensive approach, where the shaping of gender roles in families (eg longer paternity leave) is viewed with reference to education and work as major components in the greater picture of society. The government presented the Gender Equality Report to Parliament on 21 June 2013 and addressed the issue in depth.32 The Report concluded that the gender-segregated employment market should not be viewed in isolation but as an end result of norms (or absence of norms on gender equality) in the education sector as well as in the private sphere, in addition to the norms in the labour market. The labour market norms will be reviewed by a tripartite council consisting of representatives from the

28  H Aune, Deltidsarbeid: Vern mot diskriminering på strukturelt og individuelt grunnlag (‘Part-time work: Protection against discrimination at the structural and individual level’) (Cappelen Damm Publishing House, Norway, 2013). See ch 2 for statistics. See also Statistics Norway, which states that the percentage for 2016 was 39.3%. Arbeidskraftundersøkelsen, table 10, www.ssb.no/arbeid-og-lonn/statistikker/aku/kvartal, accessed 16 May 2017. 29 Ibid. 30  The term ‘rota-arrangements’ refers to three shifts within a 24-hour period, day/evening and night. 31  See, for instance, the Equal Pay Commission (NOU 2008:6), Structure for Equality (NOU 2011:18) and Gender Equality and Politics (NOU 2012:15). See for statistics, White Paper NOU 2008:6 Kjønn og Lønn: Fakta, analyser og virkemidler for likelønn. See especially chs 4, 5, 6 and 13 at: www.regjeringen.no/nb/dep/bld/dok/nouer/2008/nou-2008-6.html?id=501088, accessed 14 May 2017. 32 See Meld Storting 44 (2012–2013) Likestilling kommer ikke av seg selv (‘Gender Equality does not just happen on its own’) at: www.regjeringen.no/nb/dep/bld/dok/regpubl/ stmeld/2012-2013/meld-st-44-20122013.html?id=731019, accessed 14 May 2017.

Atypical Employment Relationships: The Position in Norway 633 largest trade unions on the employers’ and the employees’ side, as well as government representatives. There are two sets of legislation on equal treatment that may possibly affect part-time workers: the prohibition of indirect sex discrimination in the Equality and Discrimination Act (EDA) (likestillings- og diskrimineringsloven33), sections 1, 6 and 8; and the prohibition of discrimination against part-time workers in the WEA. EDA Sections 1, 6 and 8 are applicable in cases where part-time workers are predominantly women. However, as the WEA system provides specific legislation on part-time work, these cases are no longer addressed under the EDA for practical matters, but under the WEA. WEA Section 13-1 and 13-3 implement the principle of equal treatment in relation to the Directive on Part-time Work. Section 13-1(1) stipulates the prohibition of direct and indirect discrimination, and Section 13-1(2) includes all forms of discrimination covered by the WEA, while S­ ection 13-1(3) states that this prohibition also specifically applies to part-time and fixed-term employees. Section 13-3(2) expressly defines when differentiated treatment does not constitute indirect discrimination of part-time or fixed-term workers, namely when differentiated treatment is necessary and has a legitimate ground/objective reason and when this treatment is not disproportionately invasive for the person or persons being treated differently. The prohibition of discrimination applies to all working conditions (eg basic pay, overtime supplements, training facilities, promotion, workers’ representatives and dismissal) in full or in accordance with the principle of pro rata temporis. There are no thresholds in the Law in relation to specific rights. C.  Opportunities for/Right to an Extension of Working Time Part-time employees have a preferential right (fortrinnsrett) to increase their working hours over the employer hiring a new employee, see WEA Section 14-3(1).34 However, this preferential right yields to the preferential right under Section 14-2, which provides for a preferential right to an employee whose temporary work contract has been terminated due to conditions on the part of the enterprise. Part-time workers’ preferential right to increased working hours according to Section 14-3 is conditional and presupposes that the employee is qualified for the position and that increasing the working time of the p ­ art-time 33  Lov om Likestilling- og forbud mot diskriminering (likestillings- og diskrimineringsloven), LOV-2017-06-16-51 in force from 1 January 2018. The Act of 2017 replaced the previous Gender Equality Act of 2007 (GEA). 34  See WEA s 14-3(1), enacted on 4 June 2013 and has been in force since 1 January 2014.

634  Helga Aune employee’s post does not impose serious hardships on the enterprise.35 Before the employer makes a decision on the employee’s demand to make use of his/her preferential right, the issue shall be discussed between the parties, unless the employee does not want to participate in such a discussion.36 Any disputes on claims of a preferential right according to Section 14-3 may be brought before the WEA Labour Dispute Tribunal (Tvisteløsningsnemnda).37,38 The tribunal is free of charge and consists of neutral members with experience, such as judges and representatives appointed by each side of the dispute. The complainant and the employer will have to present their arguments, and the employer must provide evidence that increasing the employee’s working hours is problematic.39 Because the tribunal is relatively efficient, very few cases are brought before the courts. In addition to the aforementioned regulation, Section 14-3 provides for a right to a post equalling the average working hours over the past 12 months (a measure to fight involuntary part-time work, which consequently indicates that a change would only entail more, not fewer working hours as contractually agreed).40 The amendments to the WEA, i.e. the effort to fight involuntary part-time work, are: —— Section 14-1: the employer is required to discuss the use of part-time employees in the enterprise with the employee representatives at least once a year; —— Section 14-3(3): when an employee has made use of his/her preferential right to request an increase in working hours to work full time or to work more hours (according to Section 14-3(1) and (2), the employer has the obligation to discuss/consult the issue with the employee before making a final decision. —— Section 14-4a: part-time employees are entitled to an employment contract for a post that is equal to the average of the actual time they have worked over the past 12 months, unless the employer can provide documentary proof that the need for additional work is no longer present. —— Section 14-4b regulates the consequences of violations of part-time workers’ rights to additional working hours in accordance with ­Section 14-4a. The court may award the claimant the right to work more

35 

See s 14-3(2). See s 14-3(3). 37 See the decisions of the Tribunal (Tvisteløsningsnemnda) on the web-pages of the ­Norwegian Labour Inspection Authority: www.arbeidstilsynet.no. 38  See WEA s 14-3(5) re s 17-2(1). 39  See, eg, the Tvisteløsningsnemndas case 52/17 in which the tribunal did not agree with the employer who increased the part-time worker’s hours to 60% instead of 100%. 40 See preparatory work (Prop 83 L (2012–2013) of the government’s proposals: www. regjeringen.no//dep///regpubl/prop/2012-2013/prop-83-l-20122013.html?id=717709, accessed 14 May 2017. Act of 14 June 2013 No 32 and Royal Decree: resolution 14 June 2013 No 617, amendments in force 1 January 2014. 36 

Atypical Employment Relationships: The Position in Norway 635 hours (equal to the average hours worked over the last 12 months). In addition, the employee may be awarded damages. The new legislation in WEA Chapter 14 of 2014 introduced several steps to address the structural part of the unequal treatment of men and women in the labour market. The ‘structural part’ refers to the labour market’s strong dependence on part-time work (organised in such a way so employers can reduce costs), the price of which is being paid by women who cannot find full-time posts. The new provisions of 2014 in the WEA emphasise the importance of full-time jobs, and (female) employees are at least provided with the right to a contract reflecting their actual working time. Protection against discrimination at the individual level does not provide much help in these cases where the actual problem is the structural level, however. As already mentioned, an employer’s decision in response to a request in accordance with the provisions mentioned above may be appealed before the WEA Labour Dispute Tribunal (Tvisteløsningsnemnda); filing such a complaint is also a prerequisite before the dispute can be brought before the court according to WEA Section 17-1. The tribunal will assess the conditions for the preferential right in depth: any refusal of a part-time employee’s request to increase his/her working time must be based on necessity. Increasing an employee’s working hours may not pose a major inconvenience for the employer, or the negative effect on the employer may not be greater than the positive effect for the employee. The tribunal does not, however, address the gender equality perspective in accordance with the EDA (previously GEA). The strengths of national legislation are that it addresses the need for the option to work part-time at certain stages of life. WEA Section 14-3 explicitly ensures the right to work and promotes awareness at the enterprise level. Protection against discrimination is also clearly stipulated in the Law. The weakness of the legislation is that due to its division of part-time work into two separate strands of legislation (employment law and anti-discrimination law), the result is that the gender perspective is lost. This leads to an under-use of gender equality legislation, because sex discrimination in employment law is disappearing from the courts. The Acts on Additional Occupational Pension as well as the provisions in the collective agreement regarding additional occupational pensions include a threshold for participation; namely the employee must work more than 14 hours per week to qualify for membership. This legislation was amended following a landmark case before the Labour Court on 24 June 2013; see the analysis of the case below.41 41 Labour Court judgment of 21 June 2013, Case No 20/2013 Landsorganisasjonen i ­Norge med Fagforbundet mot Kommunesektorens organisasjon (KS).

636  Helga Aune Legislation is ‘gender sensitive’ only to the extent that the EDA42 ­Sections 1, 6 and 8 state that the objective of the Act is to ensure gender equality. To achieve this aim without addressing gender stereotypes is not possible. Convention on the Elimination of Discrimination Against Women was implemented into Norwegian law through its enactment in the Human Rights Act of 21 May 1999, Section 2. Norway is therefore under a double obligation to ensure the fulfilment of the requirements on gender stereotypes as specified in CEDAW Article 5a. D.  Rights and Status of Part-Time Worker (i)  Equal Treatment According to WEA Section 13-1(3), part-time employees are covered by the Act’s general protection against direct and indirect discrimination. The protection against discrimination prohibits less favourable treatment of parttime workers compared to permanent employees just because they work fewer hours, and applies to all working conditions including wages. As stated above, under III.B there are two sets of legislation on equal treatment that affect part-time workers: the prohibition of gender discrimination in the EDA and the prohibition of discrimination against part-time workers in the WEA. As the WEA system provides specific legislation on part-time work, these cases are for the most part addressed under the WEA.43 WEA Section 13-1 and Section 13-3 implement the principle of equal treatment in relation to part-time work. Section 13-1(1) stipulates the prohibition of direct and indirect discrimination and Section 13-1(2) includes all cases of discrimination covered by the WEA, while Section 13-1(3) states that this prohibition specifically applies to part-time and fixed-term employees. ­Section 13-3(2) explicitly defines when differentiated treatment does not constitute indirect discrimination against part-time or fixed-term workers, namely when differentiated treatment is necessary and has a legitimate ground/objective reason and when such treatment is not disproportionately invasive for the person or persons being treated differently. 42  Lov om Likestilling- og forbud mot diskriminering (likestillings- og diskrimineringsloven), LOV-2017-06-16-51 in force from 1 January 2018. 43  European Network of Legal Experts in the Field of Gender Equality, S Burri and H Aune, Sex Discrimination in Relation to Part-Time and Fixed-Term Work: The application of EU and national law in practice in 33 European countries, November 2013, European Commission, Directorate-General For Justice, Unit JUST/D/1, available at: http://ec.europa.eu/justice/ gender-equality/files/your_rights/sex_discrimination_in_relation_to_part_time_and_fixed_ term_final_en.pdf; H Aune and S Burri, ‘Sex Discrimination in Relation to Part-time and Fixedterm work’ in: European Network of Legal Experts in the Field of Gender Equality, European Gender Equality Law Review 1/2014, European Commission, Directorate-General for J­ ustice, Unit JUST/D1, available at: http://ec.europa.eu/justice/gender-equality/files/law_reviews/egelr_ 2014_1_final_web_en.pdf.

Atypical Employment Relationships: The Position in Norway 637 This legislation is applicable to all businesses, regardless of size and regardless of whether they are private or public undertakings. There are no thresholds in the Law in relation to specific rights. The prohibition of discrimination applies to all working conditions (eg basic pay, overtime supplements, training facilities, promotion, workers’ representatives and dismissal) in full or in accordance with the principle of pro rata temporis. No categories of part-time workers are explicitly excluded from statutory social security schemes and/or old-age statutory pension schemes. Part-time workers have a right to unemployment benefits. There are no specific requirements for entitlements to statutory leave (eg parental leave). Benefits are paid proportionately to the worker’s income. A case before the Labour Court, as well as cases before the Tribunal serve as examples of problems that have arisen in relation to part-time work. The Labour Court case No 20/201344 involved a dispute similar to those in ECJ cases Bilka, Vroege and Dietz.45 In the relevant case, a threshold in the collective agreement required workers to work 14 hours a week in order to participate in an additional pension scheme. This was deemed illegal and discriminatory and in violation of the protection against discrimination against part-time workers in WEA Chapter 13 (based on the Part-time Directive). However, the employee union’s claim that the workers had been discriminated against since the implementation of the Directive was not accepted by the Court. The Court declared that although the threshold of 14 hours was illegal, it did not imply that ‘a threshold’ (whatever that threshold might be) is illegal, and that this was in fact for the parties to decide. The employee unions stated that they believed that there ought to be no threshold. Negotiations will now take place to decide how to correct this situation. The discussions will include part-time employees who have already retired, employees who have partly retired, and those currently working. This Labour Court judgment will most likely have consequences for similar thresholds (ie a given amount of weekly working hours required to participate in occupational additional pension schemes.46 The thresholds in the Acts governing additional occupational pension systems were amended following the Labour Court judgment of June 2013. Cases dealt with by the WEA Tribunal/Dispute Tribunal (Tvisteløsningenemnda) based on claims involving WEA Section 14-3 predominantly

44  Case No 20/2013 Labour Court judgment of 21 June 2013. The parties in the case were Landsorganisasjonen i Norge med Fagforbundet mot Kommunesektorens organisasjon (KS). 45  Cases 170/84 Bilka Kaufhaus GmbH v Karin Weber von Hartz [1986] ECR I-00607, C-57/93 Anna Adriaantje Vroege v NCIV Instituut voor Volkshuisvesting BV & Stichting Pensioenfonds [1994] ECR I-04541, and C-435/93 Francina Johanna Maria Dietz v Stichting Thuiszorg Rotterdam [1996] ECR I-05223, respectively. 46 Law on the State Pension Fund (Lov om Statens Pensjonskasse) 28 July 1949 No 26 para 5, Pensions Act (Foretakspensjonsloven) 24 March 2000 No 16 paras 3–5 and Defined Contribution Pension Act (Innskuddspensjonsloven) 24 November 2000 No 81 paras 2–4.

638  Helga Aune concern health care workers who want to work more hours but find themselves ‘trapped’ in the part-time work pattern at their workplace.47 An analysis of court cases and decisions from tribunals on part-time work over the last 30 years reveals the following:48 —— From a historical perspective, older cases (from the mid-1960s until the mid-1990s) reveal that part-time workers were viewed as support service workers for full-time employees. Some work shifts were even referred to as the ‘housekeepers’ shift’ by the social partners and Labour Court. This clearly reflects the opinion of part-time workers— they were considered support service staff whose main activity was housekeeping, ie stay-at-home mums/housewives.49 —— In the majority of cases before the Labour Court, the question of how a collective agreement was to be interpreted with reference to part-time workers was clearly not an issue the parties to the collective agreement had considered when negotiating the agreement. The question came up retrospectively. —— The GEA (the Gender Equality Act until EDA went into force in 2018) and protection against indirect gender discrimination has rarely been used by the Labour Court in their rulings (approximately 70 cases touch upon the issue of part-time work during the period 1965–2017). The employee representatives argue in many cases that the protection against indirect gender discrimination (GEA) has been violated and that the traditional contract interpretation (ie what the parties believe is the appropriate interpretation of the contract based on the evidence of the case) is widespread.50 —— The Court has in the majority of the cases issued a decision based on the facts and following reasonable interpretations of the agreement, closely following the indirect gender discrimination legislation. —— The most recent cases before the Labour Court rely on the court rulings issued by the ECJ. The Labour Court seems to prefer the rules on protection against discrimination on the ground of part-time work over those providing protection against gender discrimination.51 —— Since the rules on protection against discrimination against part-time (as well as fixed-term) workers were introduced in the WEA in 2006,

47 The cases of the Dispute Tribunal are available at: www.arbeidstilsynet.no/fakta. html?tid=78505, accessed 16 May 2017. 48  H Aune, Deltidsarbeid: Vern mot diskriminering på strukturelt og individuelt grunnlag (‘Part-time work: Protection against discrimination at the structural and individual level’) (Cappelen Damm Publishing House, Norway, 2013). The book is based on Aune’s PhD of 2009, faculty of Law, University of Oslo, Norway. 49  ARD-1970-96, ARD-1988-176 and ARD-1999-207. 50  ARD-2008-6, ARD-1997-253, ARD 2003-116. 51  ARD-2012-23 and Labour Court judgment of 21 June 2013.

Atypical Employment Relationships: The Position in Norway 639 and these cases have been channelled to the tribunal of the WEA, the gender perspective has largely been lost. The evaluation criteria according to this legislation are whether or not the employee’s request will impact on the needs of the enterprise. There is no connection to the question whether the action is in breach of the gender equality principle following the obligations in the GEA/EEA (EU Directives). —— Before 2006, a higher number of complaints of indirect gender discrimination against part-time workers were submitted to the Equality Ombud and Equality Tribunal.52 Approximately 70 cases on part-time work have been decided by the Labour Court based on the WEA while there have been very few cases before the courts involving part-time workers over the last 30 years in relation to the GEA. The Labour Court has only decided 13 cases in relation to the GEA within a period of 40 years. The Supreme Court has only decided one case involving a part-time worker and the GEA in particular. The Appeals Courts have only applied the rules on indirect gender discrimination in a total of 10 cases, not a single one of which involved a part-time worker. The courts of first instance reviewed a total of 12 cases on indirect gender discrimination, and only one case involved a part-time worker. This low number of cases should raise concerns. One may question whether the effectiveness of enforcement of the principle of equal treatment complies with the EU acquis as long as the tribunals do not have authority to grant compensation. An overall assessment on the situation of part-time work indicates that protection from discrimination against part-time workers (Part-time Work Directive) is quite efficient on paper, but fairly weak in practice. This is a serious allegation, as gender equality legislation is the only legislation that addresses the structural level that recreates and strengthens the gender-­ stereotypical patterns in society. Possible solutions to this challenge may be the establishment of a connection between the WEA and the EDA (­previously GEA) to ensure that the gender perspective gains strength in employment law, which currently reflects the gender-segregated reality. Another solution may be the strengthening of legislation on the activity and reporting duty of employers on gender equality at the enterprise level, including the added level of a tripartite council on gender equality in the labour market. (ii)  Dismissal Protection The general rules on dismissal protection apply to part-time workers in the same way they do for full-time employees. An employer needs to have a

52 

See LKN-1992-2, LKN-1989-7 and LKN-1987-4.

640  Helga Aune valid reason to dismiss an employee relating either to the employee’s or the employer’s side.53 (iii)  Other Matters The same rules on part-time workers’ rights apply to enterprises, regardless of size. The only threshold that may apply to part-time workers is for occupational pension schemes (where a part is paid by the employee and a part is paid by the employer), but this only applies to employees with very few weekly working hours. The authorities have established a threshold of minimum 20 per cent working time to be entitled to the right to be a member of an additional pension scheme provided at the workplace.54 This has been deemed a valid objective threshold, as many part-time employees who work less than 20 per cent of full-time working hours are students and seasonal workers. Part-time employees are taken into account as regular employees when calculating an undertaking’s total number of employees. E.  Information and Consultation The total number of part-time workers must be subject to discussions with employee representatives at least once a year.55 F.  Other Part-Time Arrangements Part-time workers have a right to work in a post for which the required working hours (percentage) are equal to the average number of working hours they have worked over the last 12 months, if those hours exceeded their contractual hours of work.56 The exception is if the employer can provide evidence that the need for additional hours, which so far were regularly required, no longer exists. The period of 12 months is calculated from the time the employee forwarded the claim to the employer, see ­Section 14-4 a(1) fourth sentence. Any dispute involving a claim of preferential rights in accordance with Section 14-4 a may be brought before

53 

See WEA s 15-7. on the State Pension Fund (Lov om Statens Pensjonskasse) 28 July 1949 No 26, para 5, Pensions Act (Foretakspensjonsloven) 24 March 2000 No 16 paras 3–5 and Defined Contribution Pension Act (Innskuddspensjonsloven) 24 November 2000 No 81 para 4-2 (3). 55  See WEA s 14-1 a. 56  See WEA s 14-4 a(1). 54  Law

Atypical Employment Relationships: The Position in Norway 641 the Labour Dispute Tribunal (Tvisteløsningsnemnda).57 Once the tribunal has made its decision, either of the parties may bring the case before court. If the court finds that the part-time worker has a right to increase his/her working hours equal to the hours s/he regularly worked in accordance with Section 14-4 a, the court may determine that the part-time worker’s working time shall be increased.58 The employee may in addition demand compensation.59 G.  Collective Bargaining Agreements Deviating from Statutory Provisions Collective parties may not deviate from the provisions in the WEA on parttime work. With regard to part-time work, the social partners’ wording in the collective agreements is clear, stating that equal treatment must be respected with regard to both gender and part-time work. Part-time work is viewed as more problematic for the unions representing sectors with higher numbers of part-time workers. The main national collective agreements regulate part-time work by simply including the principle of equal treatment and stating the parties’ obligation to achieve gender equality.60 These clauses do not go beyond the requirements already stated in the WEA. The clauses on working time referring to employees’ right to work part time do not go beyond the requirements already stated in the WEA. One example of ‘good practice’ is that the unions challenge all thresholds that do not guarantee equal treatment of part-time workers in comparison to full-time workers. IV.  TEMPORARY AGENCY WORK

A.  Legal Definitions/Formal Requirements Temporary agency work is allowed under Norwegian law. The WEA covers two different types of temporary agency work: companies that hire out employees (ie professional temporary work agencies) and companies that do not operate as temporary work agencies as such, but that do on

57 

See WEA s 17-2. See WEA s 14-4 b(1). 59  See WEA s 14-4 b(2). 60  See, eg, the basic agreement between LO and NHO, Part C Supplementary Agreement No 2 on gender equality: www.lo.no/hovedavtalen1/?tabid=131—in English: www.lo.no/ Documents/english/Basic_Agreement_2010_2013.pdf, both accessed 14 May 2017. 58 

642  Helga Aune occasion hire out employees. The WEA does not provide a clear-cut definition of temporary agency work but the definition follows indirectly on the basis of the restrictions and requirements in the sections on temporary agency work. B.  Registrations, Licensing, Financial Guarantees, etc A (professional) temporary work agency must register in the Company Registry (Brønnøysundregisteret)61 in addition to registering with the National Work Inspection Authority (Arbeidstilsynet).62 Registration with the national tax authorities is also a requirement. The temporary work agency needs to present a financial guarantee of a minimum of NOK 30,000. It is also required to have a representative in Norway. Regulations on temporary work agencies provide details on the requirements for conducting business activities in Norway.63 C. Relationship between Temporary Agency Worker and Temporary Work Agency An employee of a temporary work agency is employed by the agency. The norm is a permanent post in accordance with the main principle of the WEA. (i)  Fixed-Term and Part-Time Contracts Temporary employment is possible under the same conditions as for any other worker in the WEA Section 14-9. Part-time employment is permitted if the relevant rules described above are followed.64 (ii)  Rights and Obligations/Liability The employees of a temporary work agency have the same rights and obligations as stipulated for any other employee or employer in the WEA. (iii)  Dismissal Protection The same rules apply to employees of a temporary work agency as to any other employees and employers. That is, temporary agency employees can be dismissed for just cause and for other valid reasons.65 61 

See www.bronnoysundregisteret.no. See www.Arbeidstilsynet.no. 63  Forskrift om bemanningsforetak, FOR-2008-06-04-541. 64  See ss 14-3, 14-4, 14-4 a and 14-4 b. 65  See the WEA ch 15. 62 

Atypical Employment Relationships: The Position in Norway 643 D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship The user undertaking (the company hiring a worker from the temporary work agency) concludes a contract with the temporary work agency on the number of workers hired, wages, etc. This contract will state the temporary agency worker’s minimum terms, provide regulations on the practical work administration and health, environment and security regulations (HES). (ii)  Rights and Obligations/Liability The WEA Section 14-12 a guarantees the right to equal treatment in relation to pay and working conditions for temporary agency workers hired by a user undertaking. It is the temporary work agency’s obligation to ensure that their employees are as a minimum guaranteed the same level of pay and other working conditions equal to those of the workers directly hired by the user undertaking. This is stipulated in separate clauses in the contract between the temporary work agency and the user undertaking. Temporary agency workers are to be treated as though they had been directly employed by the user undertaking to perform the same work they are hired for.66 This refers in particular to working time (duration as well as start and end time of day or night shifts), overtime work, duration and length of rest and breaks, night work, annual leave, holiday pay, time off and pay during those days, as well as salary levels and compensation for expenses.67 The temporary agency workers are in addition entitled to equal access to other common benefits and services with the regular employees at the user undertaking, unless objective reasons exist that this is not possible.68 These may be anything from gym use to a holiday home the employer offers to the employees, etc. The user undertaking is responsible jointly with the temporary work agency for the temporary agency worker’s salary, holiday pay and any other payments due according to the rules on equal treatment in Section 14-12 a.69 The employee must present his/her claim in writing no later than three months after the incident of less favourable treatment which the claim covers. If the complainant’s claim is justified, compensation must be paid within three weeks.70 The user undertaking may refuse to pay the compensation

66 

See WEA s 14-12 a(1). See WEA s 14-12 a(1)(a)–(f). 68  See s 14-12 a(2). 69  See s 14-12 c. 70  See s 14-12 c(2). 67 

644  Helga Aune if the employee knew in advance that s/he would have to submit a claim against the user undertaking to receive payment of his/her salary because the temporary work agency was not able to pay the employee’s salary or because it did not intend to pay it.71 The rule on the user undertaking’s responsibility in this regard does not apply in cases in which the temporary work agency has filed for bankruptcy.72 (iii)  Health and Safety There is no separate section under the WEA regulating the health and safety of employees of temporary work agencies in particular. This is covered under the general requirement of equal treatment between temporary agency workers and regular employees.73 Detailed regulations on health and safety have been stipulated and the Labour Inspectorate regularly carries out inspections.74 E.  Relationship between Temporary Work Agency and User Undertaking The WEA Section 14-12 b(1) establishes an obligation on the user undertaking to provide information and give temporary agency workers access to necessary documents in order for the agency to fulfil its requirement to ensure equal treatment of its workers according to Section 14-12 a. S­ ection 14-12 a entails a number of legal requirements that the parties are under obligation to meet. The temporary work agency is obliged to provide the necessary documentation when the user undertaking requests it, in order to review the salary and working conditions agreed with the temporary agency worker who is working at the user undertaking.75 This obligation to provide information is a standard clause in the commercial contract between the two companies. F.  Rights and Status of Temporary Agency Worker (i)  Equal Treatment The temporary work agency is under obligation to provide the necessary documentation, when the employee (temporary agency worker) requests it, 71 

See s 14-12 c(3). See s 14-12 c(4). 73  See s 14-12 a. 74 FOR-1996-12-06-1127—Forskrift om systematisk helse-, miljø- og sikkerhetsarbeid i virksomheter (Internkontrollforskriften). 75  See WEA s 14-12 b(3). 72 

Atypical Employment Relationships: The Position in Norway 645 so that s/he can ensure that the salary and working conditions meet the requirements for equal treatment as stated in Section 14-12 a.76 The consequence of illegally hiring a temporary employee according to Section 14-12 is that the employee will be deemed by the court to have a permanent post at the user undertaking. Illegal hiring of temporary agency workers occurs when the underlying basic conditions for hiring such employees instead of offering permanent employment in accordance with the rules in the WEA Section 14-9 are not met. In some cases, the court can rule that the temporary agency worker will not have to be permanently employed if this has obvious negative consequences for the user undertaking.77 The temporary agency worker hired through a temporary work agency may demand compensation from the user undertaking.78 The compensation will be determined in accordance with the general rules on compensation for economic loss.79 As stated above, compensation is calculated on the basis of the general rules of compensation whereby an employee will typically claim economic compensation for his/her ­economic losses as a result of the employer’s wrongdoing. This claim typically involves the employee’s salary (which was not paid because the employee was not allowed to work), plus interest; a claim for non-pecuniary damages is also often submitted by the employee. The employee has the duty to limit any damages payable by the employer. This includes efforts to find a new job. The employee must be able to provide at least some form of evidence that s/he has tried to find another job. The length of time deemed reasonable to pay compensation may vary between 6 and 24 months depending on the given profession and the local labour market. No standard amount is awarded, as compensation will vary depending on the level of salary of the position at stake. (ii)  Other Matters N/A G. Information and Consultation/Representation of Temporary Agency Worker Upon the request of the employee representatives at the user undertaking, the user undertaking is obliged to provide documentation on the salary and

76 

See WEA s 14-12 b(2). See WEA s 14-4(1). This rule is a ‘safety valve’ for special cases and there is no court case to refer to yet. 78  See WEA s 14-14(2). 79  See WEA ss 15-12(2) and 14-14(2). 77 

646  Helga Aune working conditions agreed between the temporary agency worker and the temporary work agency.80 The temporary work agency, user undertaking and employee representative(s) who have access to information on the basis of the rules in the WEA are obliged to respect the duty of confidentiality. The information obtained may only be used to ensure and monitor whether the equal treatment provisions as described in Section 14-12 a are being met or not, or whether the obligations as described in Section 14-12 b are being fulfilled.81 H. Strikes In case of a strike, the use of temporary agency workers is allowed as long as they are not covered under the same collective agreements as the workers who are on strike. The temporary agency workers may carry out the regular employees’ work, including the normal use of overtime. Excessive use of overtime to compensate for the workers who are on strike is not permitted.82 I.  Collective Bargaining Agreements Deviating from Statutory Provisions The Ministry of Labour and Social Affairs has the option to grant collective parties the right to deviate from the equal treatment sections in the WEA, but the general protection of employees must be respected in all cases.83 The Ministry has not yet granted this right to any social partner.

80 

See WEA s 14-12 b(4). See WEA s 14-12 b(5). 82  See H Aune and H Jakhelln et al, Kommentar til arbeidstvistloven/Commentary to the Labour Disputes Act, www.Arbeidsrett.no (Fagbokforlaget Publishing House, 2012). 83  See WEA s 14-12 a(3). 81 

25 Atypical Employment Relationships: The Position in Poland LESZEK MITRUS

I. INTRODUCTION

A

TYPICAL EMPLOYMENT RELATIONSHIPS are regulated by the Labour Code (Kodeks pracy),1 as well as the Law of 9 July 2003 on Employment of Temporary Workers (ustawa o zatrudnianiu ­pracowników tymczasowych).2 There are no further specific statutes or individual sections of the Labour Code that regulate fixed-term or parttime work. Instead, there are various statutory provisions on specific issues. Polish regulations on atypical employment have been strongly influenced by EU directives, eg Directive 97/81 concerning the Framework Agreement on part-time work,3 Directive 99/70 concerning the Framework Agreement on fixed-term work4 and Directive 2008/104 on temporary agency work.5 Poland has not ratified ILO Convention No 175 of 1994 concerning ­part-time work. One of the major problems of the Polish labour market is deep segmentation. Workers employed under an employment contract of indefinite duration enjoy the full range of employee rights and protection against dismissal, as well as social security protection. Atypical workers enjoy employee s­ tatus, employee rights and social security protection, but fixed-term w ­ orkers and temporary agency workers are not, in practice, protected against dismissal. In addition, there is a very high ratio of fixed-term employees in Poland, amounting to 28 per cent of the total workforce, one of the highest in the 1  The Labour Code (Kodeks pracy) of 26 June 1974, Consolidated text: Journal of Laws 2018, item 917, with further amendments. For the English translation, see: A Jamroży (translation), N Faulkner (Language editor), The Labour Code. Kodeks pracy (CH Beck, Warsaw, 2014). 2  Consolidated text: Journal of Laws 2018, item 1608, with further amendments. 3  [1998] OJ L14/9. 4  [1999] OJ L175/43. 5  [2008] OJ L327/9.

648  Leszek Mitrus European Union.6 On 25 June 2015, the amendment to the Labour Code was adopted to fight abuse of fixed-term employment.7 The amendment introduced a major change to the concept of fixed-term work and protection against the abuse of this form of employment (see below, section II). The amendment was for the most part triggered by the necessity to adapt national law to the requirements of EU law. In October 2013, in response to the complaint lodged by the ‘Solidarity’ trade union, the European Commission initiated an infringement proceeding against Poland on the incompatibility of Polish law with Directive 99/70.8 In addition, in Case C-38/13 Nierodzik9 the CJEU declared that Polish regulations on periods of notice for fixed-term contracts breach the above-mentioned directive. There are currently three types of employment contracts in Poland: contracts for a probation period, contracts of indefinite duration, and fixedterm contracts. The above-mentioned amendment abrogated contracts for completion of a specific task as well as a sub-type of fixed-term contracts, contracts for replacement. The rules on contracts for probation have been amended as well, although a discussion thereof remains outside the scope of the present study.10 There are no reported judicial decisions on the new rules on fixed-term employment contracts. Moreover, the long–term impact on the Polish labour market remains to be seen. II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements In Poland, there is no express definition of ‘fixed-term work’ or ‘fixed-term worker’. This type of contract is the result of the will of the parties, who are free to agree on a given period of employment, the date of the contract’s expiry, or the task to be completed. The Labour Code introduces formal requirements for all types of ­employment contracts, including fixed-term contracts Thus, according to Article 29 § 1 LC, a contract should specify the parties, type of contract, date of conclusion, as well as the working conditions and remuneration. The contract must furthermore specify the type of work, place of work, 6 http://ec.europa.eu/eurostat/statistics-explained/index.php/File:Proportion_of_employees_with_a_contract_of_limited_duration,_age_group_15%E2%80%9364,_2014_(%25_of_ total_employees)_YB16.png (accessed on 9 August 2017). 7  Journal of Laws 2015, item 1220. The amendment took effect on 22 February 2016. 8  No 2013/4161. 9 Judgment of 13 March 2014 in Case C-38/13 Małgorzata Nierodzik v Samodzielny ­Publiczny Psychiatryczny Zakład Opieki Zdrowotnej im. dr Stanisława Deresza w C ­ horoszczy, ECLI:EU:C:2014:152. 10  For an analysis of the amendment, see eg L Mitrus, ‘Projekt nowelizacji Kodeksu pracy dotyczący umów terminowych’, Monitor Prawa Pracy no 6/2015, p 285 ff.

Atypical Employment Relationships: The Position in Poland 649 remuneration and its components, length of working time, and the date of commencement. Under § 2, the contract must be concluded in writing. In addition, the information duties of the employer apply to all types of employment contracts. The scope of information duties in principle reflects the requirements of Directive 91/533 on an employer’s obligation to inform employees about the conditions applicable to the contract or employment relationship.11 The amendment of 25 June 2015 introduced a maximum period for fixedterm employment contracts (33 months) as well as their maximum number (no more than three contracts). These contracts are not subject to any additional requirements. It should be emphasised that concluding such a contract does not require stating the reason why it has been concluded for a fixed term. However, there are exceptions allowing for longer fixed term periods or a higher number of admissible fixed-term contracts (see below section II.B). With regard to these fixed-term contracts, the new Article 29 § 11 LC introduced further formal requirements specifying the purpose or circumstances that justify fixed-term employment and indicating the relevant information in the contract. In addition, according to Article 251 § 5 LC, the employer is required to prove to the regional Labour Inspectorate that the conclusion of the contract is justified on objective grounds, and that the employees have been hired to meet the genuine and temporary need of the employer. Failure to comply with the latter requirement violates employee rights and is subject to a fine.12 B.  Lawful Stipulation of the Contractual Terms The amendment to the Labour Code of 25 June 2015 introduced a major change to protection against abuse of successive fixed-term contracts.13 Currently, according to the new wording of Article 251 LC, fixed-term 11 [1991] OJ L288/32. For further analysis of Polish law, see E Maniewska, Obowiązki informacyjne pracodawcy wobec pracownika w umownym stosunku pracy (WoltersKluwer Business, Warszawa, 2013) p 62 ff. 12  New art 281 § 1a LC. 13  Previously, there was no statutory time limit for fixed-term employment. In addition, the third contract for a fixed term was considered a contract of indefinite duration, provided that the interval between contracts was not longer than one month. Thus, it was very easy to avoid concluding a contract of indefinite duration by introducing longer intervals between subsequent fixed-term contracts. For an analysis of previous legal regulations and their s­hortcomings, see eg L Mitrus, ‘Fixed-term employment in Poland’ in JJ Abrantes (ed), Congresso Europeu De Direito Do Trabalho. Comunicacoes appresentadas no Congresso organizado pela ELSA Nova Lisboa e pela Faculdade de Direito da Universidade Nova de Lisboa, ­realizado nos dias 12, 13, e 14 de Abril de 2012 (Lisboa, 2014) p 309 and following, Ł Pisarczyk, ‘Fixedterm Employment Contracts in Poland—in Search of Equilibrium between Flexicurity and ­Protection’ in Tomas Davulis and Daiva Petrylait (eds), Labour Market of the 21st Century: Looking for Flexibility and Security (Cambridge Scholars, 2012) 257 p 366 f.

650  Leszek Mitrus contract(s) may not exceed 33 months in total, and the total number of such contracts may not exceed three. Where the parties agree upon a longer period of work while the initial contract is still valid, it is deemed that the parties have concluded a subsequent fixed-term contract. Where the period of work exceeds 33 months or the number of fixed-term contracts is higher than three, it is deemed that a worker is employed under a contract for an indefinite duration. Thus, protection against abuse of fixed-term contracts is based on two complementary factors. First, the maximum total period of fixed-term employment is 33 months. Secondly, the total number of permissible fixed-term employment contracts is three. There are no regulations on intervals between contracts; therefore, all fixed-term contracts must be taken into account when calculating the statutory limits.14 The Labour Code expressly provides the legal consequences of exceeding the above-mentioned limits. Article 251 § 3 LC states that where the period of fixed-term work is longer than 33 months, or the number of fixed-term contracts is higher than three, it is deemed that the worker is employed on the basis of a contract of indefinite duration from the day that period elapses or from the day of conclusion of the fourth contract. There is a statutory maximum time-limit for fixed-term contracts. In practice, it usually amounts to three years, ie three months for a probation contract and 33 months for a fixed-term contract. Thereafter, a fixed-term contract automatically converts into a contract of indefinite duration. This eliminates long-term fixed-term employment contracts, which should be evaluated positively. Previously, fixed-term contracts for 10 years or even longer were not uncommon. Yet, there are exceptions to the above-mentioned limits. Thus, in certain situations it is admissible to conclude a fixed-term contract with a duration of more than 33 months, or to conclude a fourth fixed-term contract. According to Article 251 § 4 LC, the above-mentioned limits do not apply where: (1) a worker is employed under a fixed-term contract to substitute for an employee during his/her justified absence, (2) to complete occasional or seasonal work, (3) for performance of work for a term of office, or (4) where the employer states objective reasons, where a fixed-term contract in a specific case serves the employer’s genuine temporary needs. The abovementioned list of admissible exceptions is exhaustive. As already mentioned, additional formal requirements apply in order to conclude such fixed-term contracts (see above, section II.A.) There are currently two categories of fixed-term contracts in Poland. First, ‘regular’ fixed-term contracts that cannot be concluded for a duration beyond the statutory limits. There are no restrictions on concluding such a contract. In addition, it is very easy to terminate them before the agreed date (see below, section II.C). Therefore, it seems that in practice employers can be e­ ncouraged 14  See also M Rylski, ‘Przeciwdziałanie nadużywaniu umów na czas określony po ­nowelizacji kodeksu pracy’, Praca i Zabezpieczenie Społeczne, November 2016, p 20 ff.

Atypical Employment Relationships: The Position in Poland 651 to make a fixed-term contract instead of a contract for an indefinite duration, even where there is no particular reason for that. Secondly, there are ‘exceptional’ fixed-term contracts, that can exceed the statutory limit of 33 months or can be concluded for the fourth time, where there is objective reason for that, and additional formal requirements are fulfilled.15 In the view of the ­present author, however, it is relatively easy to have recourse to such a contract, especially with regard to ‘objective reasons lying on the employer’s side’. Thus, there is a risk that concluding a fixed-term contract can remain a widespread practice, instead of fixed-term contracts being regarded as atypical and exceptional. It seems that the rules on fixed-term contracts are too flexible and do not provide sufficient protection against abuses of fixed-term work.16 C.  Termination/End of Fixed-Term Contracts As a rule, a fixed-term contract is automatically terminated after the expiry of the time period for which it has been concluded.17 From a theoretical point of view, its earlier termination by one of the parties should be an exception.18 However, under the current wording of Article 32 LC, either party may terminate an employment contract with notice. Thus, according to statutory regulations, any type of an employment contract (ie for a probationary period, for a fixed-term and for an indefinite period) can be terminated with notice. The possibility of earlier termination applies to both above-mentioned categories of fixed-term employment contracts, ie ‘regular’ and ‘exceptional’ ones, that go beyond statutory limits. More­ over, the protection against dismissal covers an employment contract for an indefinite duration only. Its components are: the justification of the termination, the consultation with the trade union organisation representing an employee, and the claim for reinstatement. None of these elements apply to a fixed-term employment contract.19 Therefore, according to statutory regulations, a fixed-term employment contract can be unilaterally terminated at 15 See also K Jaśkowski, ‘Nowa umowa o pracę na czas określony’, Praca i Zabezpieczenie Społeczne November 2015, p 3 f; L Florek, ‘Umowa o pracę na czas określony’, Praca i Zabezpieczenie Społeczne, December 2015, p 2 f; Ł Pisarczyk, ‘Nowy model zatrudnienia terminowego w prawie pracy? Część 1’, Monitor Prawa Pracy, April 2016, p 178 ff. 16  See also, Z Hajn in Z Hajn and L Mitrus, Labour Law in Poland, 2nd edn (­WoltersKluwer, Alphen aan den Rijn, 2019) p 97 ff; K Walczak, ‘Contract of Employment’ in KW Baran (ed), Outline of Polish Labour Law System (Wolters Kluwer, Warszawa, 2016) p 140 ff. 17  Art 30 § 1 point 3 LC. 18  Previously, earlier termination of a fixed-term employment contract was admissible under Polish law in case of employer liquidation, collective redundancies or for a contract concluded for a period longer than six months, if this was contractually agreed by the parties. In practice, the latter possibility became the rule. See also elaborations mentioned in n 13 above. 19 For further analysis, see A Wypych et al, ‘Ustanie umownego stosunku pracy’ in KW Baran, G Goździewicz (eds) System prawa pracy, Tom II, Indywidualne prawo pracy. Część Ogólna (Wolters Kluwer, Warszawa, 2017) p 506 ff.

652  Leszek Mitrus any moment, without the need for justification or consultation with a trade union. A dismissed employee can claim pecuniary compensation only.20 In the recent literature it has been submitted, however, that the termination of a fixed-term contract requires a justification as well. Article 111 LC, which obliges employers to respect workers’ dignity and other personal rights, could constitute the legal basis of such a requirement. Moreover, the legal nature of a contract for an indefinite duration and of a fixed-term contract is the same, ie the realisation of a human right to work. Therefore, employers should not enjoy discretionary power to terminate a fixed-term contract without a reason.21 However, since an employer is not obliged to state the reason of a termination of a fixed-term contract,22 it seems that de lege lata it is not possible in practice to enforce such protection against dismissal with regard to fixed-term workers. It seems that currently both expiry of the agreed time period and earlier termination with notice constitute regular ways of termination of a fixedterm employment contract. In practice, 36 months (ie three months for probation and 33 months of a fixed-term contract) constitutes the qualifying period for getting a contract for an indefinite duration, and—as a consequence—a protection against dismissal. The new regulations on terminations of fixed-term employment contracts should therefore be evaluated negatively. In practice, the new regulations on fixed-term employment can be compared to the American concept of ‘employment at will’. In the present author’s view, the protection of fixed-term workers has deteriorated in comparison to previous regulations. It can be expected that employers will be encouraged to have recourse to fixed-term employment contracts because they have become a very flexible form of employment, with the statutory opportunity to easily terminate such employees. In the present author’s view, current Polish regulations grant employers too many competences to conclude and terminate fixedterm contracts. Although meeting the requirements of Directive 99/70 was one of the major objectives of the 2015 amendment, there is no balance of interests of both parties as envisaged in the preamble to the framework agreement, which provides that ‘fixed-term employment contracts respond, in certain circumstances, to the needs of both employers and workers’. Another change introduced by the 2015 amendment relates to the length of the notice period of a fixed-term contract.23 Under a new wording of 20 D Dörre-Kolasa, ‘Uprawnienia pracownika w razie wadliwego wypowiedzenia lub rozwiązania terminowej umowy o pracę’ in M Mędrala (ed), Terminowe umowy o pracę. Aktualne problemy zatrudnienia (Wolters Kluwer, Warszawa, 2017) p 180 ff. 21  See A Sobczyk, ‘Obowiązek uzasadnienia wypowiedzenia umowy terminowej’, Praca i Zabezpieczenie Społeczne, June 2017, p 6 ff. 22  This requirement applies to contracts of indefinite duration only. 23  Previously the length of the notice period for fixed-term contracts always amounted to 2 weeks, irrespective of the agreed period of employment.

Atypical Employment Relationships: The Position in Poland 653 Article 36 LC, the periods of notice for contracts of indefinite duration and for fixed-term contracts are the same. They depend upon the period of employment at the given undertaking and are two weeks if the employee has been employed for less than six months; one month if the employee has been employed for at least six months; and three months if the employee has been employed for at least three years. The new regulation is the result of the ruling in the Nierodzik case.24 Hence, in comparison to previous legal regulations, fixed-term workers are now entitled to longer periods of notice that are connected to their seniority at the given undertaking. To sum up: the concept of fixed-term work, ie a guarantee of work until the agreed term expires, is being questioned by the amendment of 25 June 2015.25 Moreover, from the perspective of dismissal protection, there is still a polarisation of the labour market, with considerable differences between fixed-term contracts and contracts of indefinite duration. D.  Rights and Status of Fixed-Term Workers (i)  Equal Treatment Polish regulations on equal treatment are the result of the transposition of the relevant EU directives. According to Article 113 LC, any form of discrimination in employment, be it direct or indirect, in particular with respect to gender, age, disability, race, religion, nationality, political views, trade union membership, ethnic origin, creed, sexual orientation, as well as with respect to employment for a definite or indefinite term or on a fulltime or part-time basis, is prohibited. According to Article 183a § 1 LC, all employees should be treated equally in relation to establishing and terminating employment relationships, employment conditions and promotions, as well as access to training to improve professional qualifications, regardless of whether they are employed for a definite or an indefinite period.26 Thus, national law expressly prohibits differentiation between fixed-term and indefinite employees with reference to general employment conditions. Moreover, Article 94 point 2b LC states that one of the employer’s duties is to prevent discrimination in employment, with respect to the above-­ mentioned criteria, fixed-term and part-time work included.27 24 

Case C-38/13 Nierodzik, n 9 above, especially paras 38–40. See also J Stelina, ‘Nowa koncepcja umowy o pracę na czas określony’, Państwo i Prawo, November 2015, p 41 f. 26  The above-mentioned regulations also apply to the prohibition of discrimination against full-time or part-time workers. See below section III.D.(i). 27 See also A Giżejowska, ‘Dyskryminacja oraz równe traktowanie w zatrudnieniu a terminowe umowy o pracę’ in M Mędrala (ed), Terminowe umowy o pracę. Aktualne problemy zatrudnienia (Wolters Kluwer, Warszawa, 2017) p 180 ff; L Mitrus, in Z Hajn and L Mitrus, Labour Law in Poland, 2nd edn (Wolters Kluwer, Alphen aan den Rijn, 2019) p 70 ff. 25 

654  Leszek Mitrus (ii)  Employment Opportunities Article 942 LC provides that in relation to fixed-term workers, the employer must inform them, by the standard method used at the establishment— about vacant job positions. Thus, fixed-term workers should be informed about employment opportunities at the establishment where they work. There is no requirement to inform each worker individually; the general information distributed in the method used at the establishment meets the statutory requirements. It should be emphasised that in practice a fixed-term worker does not have an enforceable claim to be given a contract for an indefinite duration. (iii)  Other Matters As it was already mentioned, there is a major difference between a fixedterm contract and a contract for an indefinite duration with regard to protection against dismissal. Fixed-term workers enjoy the right to the same employment conditions, but not the same protection against dismissal. Apart from this factor, fixed-term workers enjoy the full range of employee rights, both collective and individual, as well as being covered by the social insurance scheme. Particular regulations concern pregnant female workers. Under Article 177 § 3 LC, a fixed-term contract, or a contract for probation that exceeds one month, that would terminate after the third month of pregnancy, is extended until the date of birth. Thus, a fixed-term contract is extended ex lege, so that after its termination upon the delivery a female worker has the right to maternity benefit, as provided by the social security scheme.28 E.  Information and Consultation The Law of 7 April 2006 on Informing and Consulting Employees (Ustawa o informowaniu pracowników i przeprowadzaniu z nimi konsultacji)29 introduces the legal framework for information and consultation rights. The law introduced the general, permanent and statutory system of employee representation at the establishment. The information and consultation of workers shall be carried out regularly at establishments with a commercial activity and which employ at least 50 workers. There are no specific provisions on participation rights of fixed-term workers. They enjoy information and consultation rights, as provided by national law, on equal footing

28 J Czerniak-Swedziol, ‘Zakres uprawnień związanych z rodzicielstwem w przypadku zatrudnienia na podstawie terminowej umowy o pracę’ in M Mędrala (ed), Terminowe umowy o pracę. Aktualne problemy zatrudnienia (Wolters Kluwer, Warszawa, 2017) p 135 ff. 29  Journal of Laws 2006, No 79, item 550 with further amendments.

Atypical Employment Relationships: The Position in Poland 655 with workers employed for an indefinite period. Fixed-term workers must be taken into account to determine the threshold for the establishment of an employee council or a European works council.30 F.  Specific Provisions There are specific provisions that regulate the situation of particular occupational groups and that take precedence over the Labour Code. Some of these provide special regulations for fixed-term workers. For example, the Teacher’s Charter (Karta Nauczyciela) of 26 January 198231 provides that a fixed-term contract should be concluded with new teachers for that ­particular school year.32 The Law of 21 November 2008 on self-employed government employees (Ustawa o pracownikach samorządowych)33 provides that a fixed-term contract for a period of no more than six months should be concluded for the first assignment of such employees.34 G.  Collective Bargaining Agreements Deviating from Statutory Provisions The Labour Code is of primary importance in individual labour law. Polish labour law consists mainly of statutory law; collective labour agreements only play a secondary role in practice (eg by providing additional rights to particular categories of workers). In principle, there are no deviations from the concept of fixed-term work in the framework of collective labour agreements. At the same time, such agreements can improve the conditions for workers. For example, a collective labour agreement can introduce a period that is shorter than the statutory 33 months, after which a fixed-term contract will automatically convert into a contract of indefinite duration. The period of notice can also be extended in a collective labour agreement. However, it seems that such provisions are not common in practice.35 30  See also M Latos-Miłkowska, ‘Workers’ Representation at the Level of the Workplace. Current Status and Prospects’ in J Carby-Hall and M Rycak (eds), Trade unions and non-union employee representation in Europe—the current state of play and prospects for the future (CH Beck, Warszawa, 2016) p 340 ff; L Mitrus, ‘Works Councils in Poland’ in R Blanpain (ed), N Lyutov (Guest ed), Workers’ Representation in Central and Eastern Europe. Challenges and Opportunities for the Works Councils’ System, Bulletin of Comparative Labour Relations, vol 85 (Wolters Kluwer Law & Business, Alphen aan den Rijn, 2014) p 151 ff. 31  Consolidated text: Journal of Laws 2018, item 967, with further amendments. 32  Ibid art 10 s 2. 33  Consolidated text: Journal of Laws 2018, item 1260, with further amendments. 34  Ibid art 16 s 2. 35  See also KW Baran, ‘Sources of labour law’ in KW Baran (ed), Outline of Polish Labour Law System (Wolters Kluwer, Warszawa, 2016) p 83 ff; Ł Pisarczyk, ‘The Role of Employee Representatives in Creating Employment Conditions at the Workplace Level’ in J Carby-Hall and M Rycak (eds), Trade unions and non-union employee representation in Europe—the current state of play and prospects for the future (CH Beck, Warszawa, 2016) p 196 ff.

656  Leszek Mitrus III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements Any amount of work below the statutory level (ie eight hours per day and 40 hours per week) represents part-time work, and can be agreed between the parties to the employment contract. In Poland, there are no express definitions of ‘part-time work’ and ‘part-time worker’. In practice, these notions would be defined as the opposite of ‘full-time work’ and ‘fulltime worker’, which, however, are not expressly defined either. There is no explicit d ­ efinition of ‘comparable full-time worker’ as far as the prohibition of discrimination is concerned. Certainly, there is room for pro-union interpretation of Polish law, in the light of clause 3 of the Framework Agreement on art-time Work, as implemented by Directive 98/71. There are no specific formal requirements concerning part-time contracts. The general requirements for employment contracts apply, eg the necessity to specify the type of contract and its conditions, as well as the written form (see above, section II.A.). There is no legal requirement to specify the reason why the contract is being concluded for part-time work as opposed to fulltime work. However, according to Article 29 § 1 point 4 LC, an employment contract should specify, inter alia, the length of working time. Where this has not been specifically stated in the contract, it is assumed that the contract has been concluded for full-time work. Moreover, under Article 151 § 5 LC, the parties should specify the permissible number of working hours above the normal working time in contracts for part-time employees, which, if exceeded, entitles the employee to the overtime bonus in addition to his/ her regular remuneration (see below section II.D.(i)). In the recent literature, it has been submitted, however, that the right to work is violated where the employer could provide the employee with fulltime work but instead concludes a part-time contract. In other words, an employer is obligated to conclude a full-time contract, if possible, even in the absence of a statutory requirement to state the reasons for concluding a part-time contract. Otherwise, the principles of justice, equality and nondiscrimination would be violated.36 B.  Opportunities for/Right to Part-Time Work Under Article 942 LC, the employer must inform the employees using the standard method in the undertaking about the possibility of full-time 36  A Sobczyk, ‘Prawo do pracy a zatrudnienie terminowe i niepełnowymiarowe’, Praca i Zabezpieczenie Społeczne, November 2016, p 2 ff. In the Author’s view, the same reasoning leads to the opinion that employer is obliged to make a contract for an indefinite duration, if objectively possible, instead of a fixed–term contract.

Atypical Employment Relationships: The Position in Poland 657 or p ­ art-time employment. Moreover, according to Article 29 § 2 LC, an employer should, to the extent possible, accept a worker’s request to modify his/her working time. This refers to both reducing and increasing the working time. It is debatable whether a worker has an enforceable claim to reduce or increase his/her working time. Under Article 29 § 2 LC, the employer must accept the employee’s request to reduce or increase his/her working hours ‘as far as possible’ (w miarę możliwości). It can be argued that where the employer has the objective possibility to modify the employee’s working time, s/he is required to do so. On the other hand, the employer is not required to state the reasons for refusal to modify the employee’s working time. There are no provisions on sanctions if the employer does not comply with the employee’s request. It seems that in practice, the worker does not have the legal ability to enforce a reduction or increase of his/her working time.37 Yet the worker can effectively claim reduction of his/her working time by having recourse to his/her rights on parental leave. Under Article 1867 LC, an employee is entitled to child care leave and may file a request to reduce his/her working time to not less than half of the full scope of working time for the period during which child care leave can be taken. The employer is required to accept the employee’s request.38 This regulation was introduced in 2004. However, the flat-rate social security benefits are relatively low; therefore, child care leave has negative consequences for the employee’s financial situation. The scope of workers’ rights connected to parental leave has recently been extended.39 Since January 2016, parental leave amounts to 32 or 34 weeks.40 The worker can combine parental leave with part-time work up to an level that does not exceed half of full-time working hours. In that case, parental leave is granted for the remaining amount of working time. The employer has the obligation to agree to the worker’s request, unless it is not possible for work organisation reasons or due to the type of work performed by the employee. The employer must inform the worker in ­writing 37  For further analysis, see L Mitrus, ‘The Right to Work Part—Time? Some Remarks on the Development of Part-Time Employment’ in M Rönnmar and J Julén Votinius (eds), Festskrift till Ann Numhauser-Henning (Juristförlager i Lund, Lund, 2017) p 483 ff. For an extensive analysis of Polish law on part-time employment see I Jaroszewska-Ignatowska, Zatrudnienie w niepełnym wymiarze czasu pracy (Wolters Kluwer, Warszawa, 2018) p 159 ff. 38 Child care leave can be granted to an employee who has been employed for at least six months. It amounts to 36 months before the end of the year during which the child reaches the age of six years. Child care leave may not be used in more than four segments in total. Both parents and custodians are entitled to such leave (Art 186 LC ff). 39  See also L Mitrus, ‘Recent Developments of Polish Labour Law’, Europäische Zeitschrift für Arbeitsrecht, no 3/2014, pp 417 ff. 40  In practice, parental leave is an extension of maternity leave. Both parents and custodians can take and share this leave. It can be used in no more than four segments before the end of the year during which the child reaches the age of six years (Art 1821a LC ff).

658  Leszek Mitrus about the reasons for refusal.41 If the worker combines part-time work with parental leave, the duration of parental leave shall be extended proportionally, but for a period of no longer than 64 or 68 weeks.42 The reduced remuneration is supplemented by maternity benefit.43 Thus, full-time workers can request the reduction of their working time to combine work with child care. The worker can choose whether s/he wants to take full-time child care leave or parental leave, or reduce his/her amount of working time. C.  Opportunities for/Right to an Extension of Working Time As already indicated, the employer has the obligation to inform workers about full-time and part-time vacancies.44 In addition, an employer should, to the extent possible, accept a worker’s request to modify the length of his/her working time.45 Thus, a part-time worker can request to increase his/her working time up to the statutory length of full-time work. The above-mentioned considerations (section III.B above) apply. In principle, Polish regulations on opportunities to increase working time do not go beyond the requirements of Directive 97/81, ie prohibition of discrimination against part-time employees and facilitating part-time work on a voluntary basis (clause 1 of the Framework Agreement). There are no comprehensive regulations that promote part-time work as an instrument of labour market organisation. There are no provisions on particular w ­ orkers’ groups, workers below or above a certain age, or workers who combine work with studies, etc. D.  Rights and Status of Part-Time Workers (i)  Equal Treatment Under Article 113 LC, any form of discrimination in employment, be it direct or indirect discrimination, in particular with respect to gender, age, disability, race, religion, nationality, political views, trade union membership, ethnic origin, creed, sexual orientation, as well as employment for a definite or indefinite term, or full-time or part-time employment, is p ­ rohibited. 41 

Art 1821e LC. Art 1821f LC. 43  See also U Torbus, ‘Zmiany w zakresie uprawnień rodzicielskich ułatwiających łączenie obowiązków zawodowych z pracą nad dzieckiem’ in J Czerniak-Swędzioł (ed), U ­ prawnienia pracowników związane z rodzicielstwem w świetle przepisów prawa pracy i ubezpieczeń społecznych (Wolters Kluwer, Warszawa, 2016) p 199 ff. 44  Art 942 LC. 45  Art 29 § 2 LC. 42 

Atypical Employment Relationships: The Position in Poland 659 According to Article 183a § 1 LC, all employees must be treated equally in relation to establishing and terminating employment relationships, employment conditions, promotions, as well as access to training to improve their professional qualifications, regardless of whether they work full-time or part-time.46 Thus, Poland has transposed the EU directives on equal treatment in employment.47 In principle, part-time work does not constitute a ground for a differentiation of employee rights. It should be emphasised that part-time workers enjoy the full range of employee rights, both collective and individual rights. Where applicable, the pro rata temporis principle applies. Article 292 § 1 LC expressly provides that concluding a part-time employment contract must not establish work or remuneration conditions that are less favourable than those of employees who perform the same or similar work full time, albeit taking into account the principle of proportionality in terms of remuneration for work and of other work-related benefits and in relation to the length of the worker’s working time.48 Moreover, according to Article 1542 § 2 LC, the length of a part-time worker’s annual leave is proportional to his/her working time based on the length of a full-time employee’s leave (ie 20 or 26 days). A half-day of leave should be rounded up as a full day of leave.49 The overtime bonus for a part-time worker represents a particular problem. Under Article 151 § 5 LC, the parties should stipulate the permissible ­number of working hours above the working time specified in the employment contract for part-time employees, which, if exceeded, entitles the employee to an overtime bonus in addition to his/her regular remuneration. The Supreme Court is of the opinion that part-time workers have no right to an overtime bonus where an allowable number of working hours above the parttime hours has not been agreed by the parties.50 In other words, parties must decide whether the part-time worker has the right to an overtime bonus when s/he performs work above the actual working hours agreed by the parties. Where the parties did not stipulate this, the right to an overtime bonus arises only if the part-time worker performs work above the statutory working time limits, ie above eight hours a day and above the average of 40 hours per week.51

46 See also H Szewczyk, ‘Ochrona przed nierównym traktowaniem i dyskryminacją ze względu na pracownicze zatrudnienie w pełnym lub niepełnym wymiarze czasu pracy’ in L Mitrus (ed), Studia z zakresu prawa pracy i polityki społecznej, Liber Amicorum Prof Dr habil Andrzej Marian Świątkowski (Musica Iagellonica, Kraków, 2009) p 501 ff 47  These regulations apply to fixed-term employment as well, see above section II.D. 48  See J Wratny, ‘Z problematyki prawnej zatrudnienia w niepełnym wymiarze czasu pracy’ in A Kosut and W Perdeus (eds), Przemiany prawa pracy od kodyfikacji do współczesności. Księga Jubileuszowa w siedemdziesięciolecie urodzin Profesor Teresy Liszcz (Lublin, 2015) p 287 ff. 49  See A Bigaj, Prawo do urlopu wypoczynkowego (Warszawa, 2015) p 185 ff. 50  Judgment of April 2014, I PK 249/13, OSNP 9/2015, item 121. 51  See also A Sobczyk, ‘Komentarz do art 151’ in A Sobczyk (ed), Kodeks pracy. Komentarz, 3rd edn (CH Beck, Warszawa, 2017) p 646 ff.

660  Leszek Mitrus (ii)  Dismissal Protection Part-time work as such does not affect dismissal protection. Under Polish law, protection against dismissal depends upon the type of employment contract. The termination of a contract of indefinite duration must be justified; consultation with the trade union organisation representing the employee is required; and the dismissed employee can claim reinstatement. These requirements apply to employment contracts of indefinite duration, regardless of whether the contract has been concluded for full-time or part-time work. An employee cannot be dismissed during parental or child care leave.52 This regulation also applies to those employees who have applied for a reduction of working time rather than taking full parental or child care leave (see above, section III.B). (iii)  Other Matters The Law of 13 October 2013 on solutions for job protection (ustawa o ­szczególnych rozwiązaniach związanych z ochroną miejsc pracy)53 (so called anti-crisis law) provides financial assistance to employers and workers in times of economic slowdown to prevent redundancies. Alongside economic stoppage, one of the solutions provided by the Law is reduced working time, ie reduced working hours of employees for reasons that do not ‘lie on the employee’s side’, yet by not more than half of the employee’s regular working time.54 Such a reduction of working time can be introduced by collective labour agreement. Where there is no trade union at the undertaking, it can be introduced in another collective arrangement concluded with ad hoc employee representation. An employer is not obligated to terminate the existing working conditions for individual employees.55 The employee is entitled to remuneration that amounts to at least the statutory minimum wage, supplemented by an allowance paid from the Fund of Outstanding Employee Claims.56 This financial support from the state authorities can be granted for a total period of six months within a 12-month period.57 Within this period, the employer may not terminate the employment contract for reasons that do not ‘lie on the 52  With some exceptions, eg liquidation of the employer. See also A Dral, ‘Szczególna ­ochrona umownego stosunku pracy radnych’ in System prawa pracy, vol II, Indywidualne prawo pracy. Część ogólna, G. Goździewicz (ed), (Warszawa, 2017); KW Baran and G Goździewicz (ed), System prawa pracy; Tom II, Indywidualne prawo pracy, Część Ogólna (Wolters Kluwer, ­Warszawa, 2017) p 701 ff. 53  Consolidated text: Journal of Laws 2017, item 842 with further amendments. 54  Art 2 point 2 of the Law. 55  Art 4 of the Law. 56  Art 5 of the Law. 57  Art 6 of the Law.

Atypical Employment Relationships: The Position in Poland 661 employee’s side’.58 A collective reduction of employees’ working time at an undertaking that is affected by an economic crisis (in addition to financial support from the state) is one way of preventing collective redundancies. In this case, part-time work is not the result of the free will of the parties, but is used to overcome economic difficulties.59 E.  Information and Consultation Part-time workers are entitled to participation rights. They enjoy the right to information and consultation, and must be included in the calculation of the threshold for establishing an employee council or a European works council. The remarks on fixed-term workers also apply to part-time workers (see also section II.E. above). F.  Other Part-Time Arrangements There are no express provisions on job sharing, employee sharing or shared workplace. Job sharing refers to a single employer who hires a group of workers to jointly fill a specific post on a rotation basis. The group of workers conducts the same task within the same company. Under Polish law, there is no possibility for a single employer to conclude such a contract with a group of employees. Moreover, it is the employer who is required to organise work in such a manner as to ensure effective use of working time.60 Job sharing implies that this burden would be passed onto the workers. At the same time, there is no legal obstacle preventing two or more part-time workers from filling a particular position. However, this would be more in the nature of shift work performed by part-time workers under the supervision of the employer, and not ‘job sharing’ as such, where a group of employees independently determines the organisation of work. Article 22 § 1 LC defines the notion of an employment relationship and states inter alia that the employer is required ‘to employ an employee in return for remuneration’. Thus, an employer has the obligation to provide the employee with work on a continuous basis. Therefore, on-call work, with an employer calling on an employee to carry out work only where such 58 Art 13 of the Law. For further analysis, see A Drabek and T Wrocławska, ‘Nowe rozwiązania na rzecz ochrony miejsc pracy—warunki uruchomienia pomocy’, Praca i Zabezpieczenie Społeczne January 2014, p 19 ff; Ł Pisarczyk, ‘Przestój ekonomiczny i obniżony wymiar czasu pracy—powrót do znanych instrumentów antykryzysowych’, Monitor Prawa Pracy, December 2013, pp 623 ff. 59  Art 1(d) of ILO convention No 175 provides that full-time workers affected by partial unemployment, that is, by a collective and temporary reduction in their normal hours of work for economic, technical or structural reasons, are not considered part-time workers. 60  Art 94 § 1 point 2 LC.

662  Leszek Mitrus a need arises, is inadmissible. This reasoning applies to zero-hours contracts as well. Such arrangements would pass the burden of obtaining work onto the workers.61 G.  Collective Bargaining Agreements Deviating from Statutory Provisions It is impermissible to alter the definitions, although certain rights and duties of part-time employees can be regulated by collective labour agreements. Discrimination is prohibited and the pro rata temporis principle applies. Collective labour agreements may introduce provisions that are more favourable to the worker, although such agreements play a secondary role in Poland (see also section II.G. above). IV.  TEMPORARY AGENCY WORK

A.  Legal Definitions/Formal Requirements The Law of 9 July 2003 on the Employment of Temporary Workers62 is compatible with Directive 2008/104, although it was enacted earlier. These regulations have recently been substantially changed by the Law of 7 April 2017 on the amendment of the Law on Employment of Temporary Workers and other statutes. The amendment took effect on 1 June 2017.63 According to Article 1, the Law sets out the principles for an employer, ie a temporary work agency, to employ temporary agency workers, as well as the principles for assigning workers and individuals who are not temporary agency workers to perform work for a user undertaking. A temporary work agency can employ workers on the basis of a fixed-term contract and hire out individuals on the basis of a civil law contract (see below, section IV.C.(i)). Article 2 of the Law introduces relevant definitions. A ‘user undertaking’ is an employer or an entity that is not an employer within the meaning of the Labour Code, and that assigns tasks to a temporary agency worker and 61 For further analysis, see also L Mitrus, ‘New Forms of Employment in Poland’ in R Blanpain and F Hendrickx (eds), B Waas (Guest ed), New Forms of Employment in Europe. Bulletin of Comparative Labour Relations, vol 94 (Wolters Kluwer, Alphen aan den Rijn, 2016) pp 305 ff. 62  Consolidated text: Journal of Laws 2018, item 594, with further amendments. English translation see: N Faulkner, B Glogier-Osińska, J Sikora (trans), A Collection of Labour Law Acts and Ordinances (Prawo pracy—zbiór ustaw i rozporządzeń) (Warsaw, 2013) pp 87 ff. For further analysis, see eg: B Wagner, ‘Jednolitość, wielopostaciowość czy ewolucja f­unkcji ochronnej prawa pracy’ in A Sobczyk (ed), Z problematyki zatrudnienia tymczasowego ­ (Wolters Kluwer business, Warszawa, 2011) pp 52 ff. 63  Journal of Laws 2017, item 962.

Atypical Employment Relationships: The Position in Poland 663 supervises his/her performance. A ‘temporary agency worker’ is a worker employed by a temporary agency work exclusively for the purposes of performing temporary work for and under the direction of a user undertaking. ‘Temporary work’ refers to the performance of tasks for a specific user undertaking, for a term that is no longer than specified in the Law: seasonal, periodic or casual work; work that the workers of the user undertaking cannot complete on time; or the work duties of an absent worker. There are statutory restrictions that limit this type of work and certain formal requirements must be fulfilled. Thus, according to Article 4 of the Law, the employer may not act as a user undertaking for its own workers. Under Article 8 of the Law, a temporary worker may not be assigned to perform certain types of activities, ie activities that are particularly dangerous under the provisions on health and safety protection; s/he may not be assigned to a position occupied by a worker of the user undertaking who is participating in a strike; or to a position that was occupied in the preceding three months by a worker of the undertaking who was dismissed for reasons not attributable to that worker. The latter case refers to a situation where collective redundancies have recently been carried out. The amendment of 7 April 2017 introduced further restrictions. It is now also prohibited to request a temporary agency worker to work in a position that requires him/her to carry a gun (new Article 8 paragraph 4). In practice, this provision applies to private security agencies. Article 20 of the Law imposes time limitations for the recourse to temporary agency work. A temporary work agency may assign a temporary agency worker to carry out temporary work for a user undertaking for a total period not exceeding 18 months within a 36-month period. Where temporary work is performed to carry out the tasks of an absent worker at the user undertaking, the maximum period may not exceed 36 months. In the latter case, the temporary agency worker may not be reassigned to temporarily work at the same user undertaking within the subsequent 36 months. According to the above-mentioned amendment, the 36-month time limit applies to all situations where a temporary agency worker is assigned to a specific user undertaking, even if s/he is assigned to that same user undertaking by various different temporary work agencies. This amendment intends to reduce the possibilities to circumvent statutory restrictions. Previously, it was not uncommon that particular temporary agency workers were assigned to the same user undertaking by various temporary work agencies for successive period(s), to perform the same work in the same position. Thus, in practice, it was possible to avoid the maximum time limitations for temporary agency work. The user undertaking is required to inform the representative trade union organisation about the intention to assign work to a temporary agency worker. If a user undertaking intends to hire a temporary agency worker for a period longer than six months, it must reach an agreement with the trade

664  Leszek Mitrus union. All relevant information must be provided to the trade union.64 This regulation is an exception, since trade unions under Polish law do not in principle enjoy competences relating to the hiring of workers. It is estimated that temporary agency workers constitute 1.3 per cent of the workforce, and the number of temporary workers is gradually ­increasing.65 It seems that the statutory regulations on this matter are flexible. It may be the case that recourse to temporary work is had even where there is no genuine need to do so. Thereby, the user undertaking can circumvent the obligation to conclude contracts of indefinite duration.66 The major objective of the above-mentioned Law of 7 April is to strengthen the protection of temporary agency workers, as well as of user undertakings that have recourse to this form of employment. The changes should be evaluated positively. However, the real impact of the new provisions on the activities of temporary work agencies remains to be seen. B.  Registration, Licensing, Financial Guarantees, etc A temporary work agency is an undertaking that recruits and employs individuals for assignment to another entity, ie a user undertaking. In addition to the above-mentioned Law of 2003, temporary work agencies are covered by regulations concerning the labour market, ie by the Law of 20 April 2004 on the promotion of employment and the organisation of the labour market (ustawa o promocji zatrudnienia i organizacji rynku pracy)67 According to Article 6, paragraph 4 of the Law, employment agencies are entities that provide employment agency services, agency services relating to posting of workers abroad to foreign employers, vocational consulting, personal consultancy, or temporary employment. The activities relating to temporary workers and their assignment to perform work for a user undertaking as defined by the provisions on temporary agency work constitute a regulated activity, as stipulated in the regulations on commercial activities.68 Thus, temporary work agencies can be regarded as entities that carry out private job placement activities, complementing the tasks of public employment services. In 2008, Poland ratified ILO Convention No 181 on Private Employment Agencies of 19 June 1997.69 64 

Art 23 paras 1 and 2 of the Law. eg http://admin.polskieforumhr.pl/dir_upload/site/70c12353731d477c8cda02 04c7564695/raport2017.pdf (accessed on 9 August 2017). 66 Eg, it was even reported that temporary work is used in certain clerical posts in the administration of justice, which seems to go beyond the purpose of this form of employment. See also A Reda-Ciszewska, ‘Praca tymczasowa w sądach’, Monitor Prawa Pracy, October 2015, pp 515 ff. 67  Consolidated text: Journal of Laws 2018, item 1265. 68  Art 18 section 1 point 4 of the Law. 69  Journal of Laws 2008, No 222, item 1448. 65  See

Atypical Employment Relationships: The Position in Poland 665 To establish a temporary work agency, certain requirements need to be fulfilled. Temporary work agencies are subject to registration by the Marshall of the Voivodship (ie province).70 The process of registration is subject to Chapter 6 of the Law on the promotion of employment and organisation of the labour market (‘Employment agencies’), Article 18 and following. Assigning temporary agency workers to user undertakings is one of the types of activities that can be carried out by an employment agency (Article 18 paragraph 1 point 4). In practice, entities exist that focus exclusively on temporary work. Commercial activities of such agencies are considered ‘regulated activities’ and are subject to registration (Article 18d and following). The register is managed by the voivodship marshal and is accessible to the public. The Marshal of Voivodship issues a certificate of registration (Article 18i of the Law). S/he also supervises the activities and is competent to refuse registration of an agency or to remove it from the register. The above-mentioned amendment of 7 April 2017 also changed the Law on the promotion of employment and the organisation of the labour market. Under the new provisions, two types of employment agency exist. The first type provides outplacement services, as well as personal and professional advice. The second type is an agency that only provides temporary work services. Each type receives a different certificate upon registration. Moreover, employment agencies are required to have premises where the activities are carried out. The idea of this amendment is to eliminate ‘letterbox companies’. The voivodship marshal shares the information with the Minister of Labour (Article 18p). Only agencies that do not have any tax and social security contribution arrears, that have not been punished for certain types of crimes, and are not subject to any liquidation or bankruptcy proceedings (Article 19) may register. The agencies are required to inform the voivodship marshal of any changes, as well as (by 31 January of the given year) about the activities during the preceding year (Article 19e and Article 19f), including information about the number of temporary workers. The job offer should be described as ‘temporary work’ (Article 19g). No financial deposit from the temporary work agency is required. C. Relationship between Temporary Agency Worker and Temporary Work Agency (i)  Fixed-Term and Part-Time Contracts Article 7 of the Law provides that a temporary work agency must employ temporary workers on the basis of a fixed-term contract. These contracts, 70  ‘Voivodship’ is a territorial unit of an administrative division in Poland. A marshal of a voivodship is an executive organ of a territorial self-government unit.

666  Leszek Mitrus however, are not subject to Article 251 LC. Thus, the regular statutory ­limitation on fixed-term contracts does not apply to temporary agency workers (see above, section II.B). The contract must specify the parties to the contract, the date of the contract, as well as the user undertaking and the agreed period during which temporary work will be performed. The employment conditions should be specified as well: inter alia, the type of work the temporary agency worker will be carrying out, the length of his/her working time and the place of performance of work.71 Thus, it is possible to conclude a part-time contract with a temporary agency worker. Contracts must be concluded in writing. If the contract has not been concluded in writing, the temporary agency must provide the temporary agency worker with a written confirmation of the terms of the contract, no later than the second day following the commencement of the temporary work.72 Under the amendment of 7 April 2017, the temporary work agency must provide the worker within seven days with the agency’s contact details (address, phone number, hours of possible contact, etc).73 Moreover, the protection of pregnant temporary workers has been extended by the amendment. Under the new provisions, Article 177 § 3 LC will now apply to this category of workers (see above, section III.D.(iii)). Currently, a fixed-term employment contract that will expire after the third month of pregnancy will be automatically extended until the day of delivery. The requirement is that the temporary agency worker has been assigned to the user undertaking for at least two months.74 In other words, the regular provisions on fixed-term contracts, as provided by the Labour Code, apply to a pregnant temporary agency worker, by extending her contract to the date of delivery. In the present author’s view, this amendment contradicts the idea of temporary work and places an unreasonable burden on the temporary work agency. Civil law contracts between the temporary work agency and the temporary agency worker are admissible.75 According to Article 7 paragraph 2 of the Law, the temporary agency work may, under a civil law contract, assign individuals who are not employees, to perform temporary work. In practice, both fixed-term employment contracts and civil law contracts can constitute the legal basis for the activities of temporary agency workers. In the view 71 

Art 13 para 1. Art 13 para 4. 73  Art 13, para 2a. 74  Art 13, paras 3–3a. 75  On the characteristics and role of civil law contracts in Poland, see eg I Florczak and B Muszyńska, ‘Selected differences between civil law and employment contracts related to work on the grounds of Polish legislation’ in I Florczak and Z Góral (eds), Development in Labour Law from a Comparative Perspective (Wydawnictwo Uniwersytetu Łódzkiego, Łódź 2015) pp 43 ff; AM Świątkowski, ‘The Protection of Working Relationships in Poland’ in F Pennings and C Bosse (eds), The Protection of Working Relationships. A Comparative Study (Wolters Kluwer Law & Business, Alphen aan den Rijn, 2011) pp 109 ff. 72 

Atypical Employment Relationships: The Position in Poland 667 of the present author the above-mentioned regulation should be evaluated negatively, since it opens room for abuses. Moreover, under the amendment of 7 April 2017, temporary workers employed on the basis of a civil law contract will have the right to receive a written statement specifying the period of temporary work. The Law provides that it is not permissible to stipulate a contractual clause that would prohibit the conclusion of subsequent employment relationships directly between the worker and the user undertaking.76 Previously, it was prohibited to introduce such a clause only for the temporary worker employed on the basis of an employment contract. Currently, under Article 25a of the Law, this prohibition applies also to individuals who have been assigned temporary work under civil law contract. (ii)  Rights and Obligations/Liability The temporary work agency recruits the worker, must fulfil the requirements, keep documentation, etc. The rights and obligations are stipulated in the Law. Article 25 of the Law provides that any rights and duties of the parties not determined by law can be decided by the parties. According to Article 16 of the Law, if a user undertaking has violated the principle of equal treatment of the temporary agency worker, s/he can seek damages from the temporary work agency in the amount set out in the provisions of the Labour Code. The temporary work agency is also required to issue a work certificate for the temporary worker.77 (iii)  Dismissal Protection As already mentioned, the temporary agency worker is employed on the basis of a fixed-term contract. Article 18 paragraph 1 of the Law provides that a contract with a temporary agency worker expires when the period of temporary work at the user undertaking ends. Moreover, under Article 13 paragraph 2, the parties can stipulate the possibility of earlier termination by one of the parties. The period of notice must be three days where the contract has been concluded for a period not exceeding two weeks, and one week where the contract has been concluded for a longer period. ­Neither justification for the termination, nor consultation with trade unions is necessary. In practice, temporary agency workers are not protected against dismissal. Article 6 of the Law provides that the Law of 13 March 2003 on Particular Rules for Terminating Employment Relationships with Employees for Reasons Not Related to Individual Employees78 does not apply to 76 

Art 12. Arts 18a and 18b of the Law. 78  Consolidated text: Journal of Laws 2018, item 1474, with further amendments. 77 

668  Leszek Mitrus temporary workers. This means that temporary workers are not covered by the regulations on collective dismissals. Thus, the procedure for redundancies does not apply, and temporary workers do not have the right to severance pay. D.  Relationship between Temporary Work Agency and User Undertaking (i)  Legal Type of Relationship A contract is concluded between a temporary work agency and a user undertaking. Before such a contract is concluded, a number of formal requirements need to be fulfilled (see below, section D.(ii)). Any agreement between a temporary work agency and a user undertaking stating that the temporary agency worker cannot be permanently employed by the user undertaking upon the expiry of the temporary work contract is null and void.79 (ii)  Rights and Obligations/Liability Before the contract between the temporary work agency and the worker is concluded, the user undertaking and temporary work agency must agree on the following terms in writing: the type of work the temporary agency worker will be carrying out, the qualifications required from the worker, the anticipated period of temporary work, the temporary agency worker’s working hours, as well as the place where the temporary work will be performed.80 The user undertaking must inform the temporary work agency about the remuneration for work assigned to the temporary agency worker, as stipulated by the remuneration regulations at the user undertaking, and the conditions of health and safety at work for performing the temporary work.81 In addition, the agency and user undertaking must also agree on: (i) the scope of information concerning the performance of temporary work, which is provided to the agency to calculate the temporary agency worker’s remuneration; (ii) the extent to which a user undertaking assumes the employer obligations with respect to health and safety; and (iii) the extent to which the user undertaking assumes the employer obligations with respect to business travel expenses.82 The temporary work agency and the user undertaking may agree that the temporary agency worker will use all or part of his/ her annual leave during the period in which the temporary work for the user undertaking is being carried out.83 The temporary agency worker assigned 79 

Art 12 of the Law. Art 9 para 1 of the Law. 81  Art 9 para 2 of the Law. 82  Art 9 para 3 of the Law. 83  Art 10 of the Law. 80 

Atypical Employment Relationships: The Position in Poland 669 to perform the temporary work must be notified of the above-mentioned arrangements.84 (iii)  Health and Safety The user undertaking carries out the duties and assumes the rights of an employer to the extent necessary to organise the work of the temporary agency worker. The user undertaking also has the obligation to provide the temporary agency worker with safe working conditions and ensure the health of the worker in the temporary agency worker’s place of work; the user undertaking must also keep records of the hours worked.85 The user undertaking must provide the temporary agency worker with any necessary work clothing and personal protective equipment, must provide meals and drinks, conduct training on health and safety at work, must determine the causes of any accidents at work, and assess occupational risks and report these. The provisions of the Labour Code apply accordingly in relation to the procedure and deadlines for training in health and safety at work.86 E.  Rights and Status of Temporary Agency Worker (i)  Equal Treatment According to Article 15 of the Law, a temporary agency worker may not be treated less favourably than the user undertaking’s own employees who are employed in the same or similar positions in terms of the working conditions and other employment conditions, while performing work for a user undertaking. However, the above-mentioned rule does not apply to access to training organised by the user undertaking to improve employee qualifications, if the temporary agency worker works for the user undertaking for a period of less than six weeks.87 (ii)  Other Matters It is the user undertaking that organises the work process, eg by providing instructions to the temporary agency worker, and supervises the execution of work. However, the user undertaking is not entitled to apply 84 

Art 11 of the Law. Art 14 of the Law. 86  Art 9 paras 2a and 2b of the Law. 87 See also D Dörre-Nowak, ‘Zatrudnienie tymczasowe a regulacje dyskryminacyjne’ in A Sobczyk (ed), Z problematyki zatrudnienia tymczasowego (Wolters Kluwer business, Warszawa, 2011) pp 166 ff. 85 

670  Leszek Mitrus Article 42 § 4 LC.88 It implies that the user undertaking is not allowed to instruct a temporary worker to perform work other than agreed in the contract for up to three months within a calendar year, as is the case with ‘regular’ employees. Moreover, the user undertaking cannot assign work to the temporary agency worker for and under the direction of another entity.89 A temporary agency worker is entitled to two days of annual leave for each month of work for a user undertaking. The worker is not entitled to annual leave for the period for which s/he used annual leave at the previous employer. If the worker has not used his/her right to annual leave, the temporary work agency must pay the worker the cash equivalent.90 According to Article 23 paragraph 3 of the Law, the user undertaking is required to inform the temporary agency worker, in the standard method used by the undertaking, to distribute information on vacant positions. Temporary agency workers should be given access to the social facilities of the user undertaking on equal terms with the user undertaking’s regular employees.91 F. Information and Consultation/Representation of Temporary Agency Worker In Poland, the Law of 7 April 2006 on Informing and Consulting Employees applies (see above, section II.E.). There are no specific regulations on information or consultation rights of temporary workers. In practice, there are no works councils at temporary work agencies at all. It has been submitted in the literature that temporary agency workers should not be taken into account when calculating the threshold for the establishment of a works council at the user undertaking.92 G. Strikes The Law on the Settlement of Collective Disputes (ustawa o rozwiązywaniu sporów zbiorowych)93 provides the right to strike to each worker employed 88 According to this provision, notice of termination of work and pay conditions is not required if the employee is assigned, when it is justifiable by the interest of the employer, work other than that specified in the employment contract for a period not longer than three months in a calendar year, if that does not result in reduction of remuneration and corresponds to employee’s qualifications. 89  Art 14 para 2 of the Law. 90  Art 17 of the Law. 91  Art 22 of the Law. 92 KW Baran, ‘Zatrudnienie tymczasowe a zbiorowe prawo pracy’ in A Sobczyk (ed), Z problematyki zatrudnienia tymczasowego (Wolters Kluwer business, Warszawa, 2011) pp 48. 93  Consolidated text Journal of Laws 2019, item 174, with further amendments.

Atypical Employment Relationships: The Position in Poland 671 under a contract of employment, temporary agency workers included. A legal strike can be organised by trade unions only. No strikes organised by temporary workers against a temporary work agency have been reported. There are also no reported strikes against a user undertaking, either.94 Article 8 point 2 of the Law on Employment of Temporary Workers expressly states that a temporary worker cannot be assigned to carry out work for the user undertaking in a position occupied by a user undertaking’s worker who is participating in a strike. Therefore, it is not permissible to hire a temporary worker(s) to break strike action at the user undertaking. H.  Collective Bargaining Agreements Deviating from Statutory Provisions The status of temporary agency workers is subject to the above-mentioned Law of 9 July 2003. Under Polish law, only trade unions are competent to conclude a collective labour agreement. In practice, there are no collective labour agreements between the agencies and unions representing temporary agency workers. Where there is a plant collective agreement at the user undertaking, its provisions on working conditions apply both to workers employed directly by the user undertaking and to the temporary agency workers. The basis of this conclusion is Article 15 of the Law on Employment of Temporary Workers that introduces the prohibition of discrimination. A collective labour agreement can thereby influence the conditions of temporary agency workers.95

94  For further analysis, see B Cudowski, ‘Zbiorowe stosunki pracy z udziałem pracowników tymczasowych’, Monitor Prawa Pracy, April 2005, pp 96–97. 95  KW Baran, ‘Zatrudnienie tymczasowe’, n 92 above, pp 38 ff.

672

26 Atypical Employment Relationships: The Position in Portugal JOSÉ JOÃO ABRANTES AND RITA CANAS DA SILVA

I. INTRODUCTION

P

ORTUGAL HAS A demanding system of terminations of employment contracts by the employer: under Portuguese law, the employer may unilaterally terminate an employment contract of indefinite duration only in exceptional cases. This arises from Article 53 of the Portuguese Constitution, which safeguards the employee’s right to job security. Hence, although an employer can terminate a contract based on economic grounds, may only in exceptional cases and once substantial and procedural mandatory requirements are met, end the employment relationship. This principle also justifies the exceptional nature of atypical employment, including fixed or unfixed term contracts and temporary work. Employment relationships are governed by the Portuguese Labour Code, approved by Law No 7/2009 of 12 February1 (PLC). Article 11 of the PLC defines an employment contract as an agreement ‘in which a natural person undertakes, upon remuneration, to provide its activity to another or others, within an organisation and under their authority’.2 The PLC does not provide definitions of the parties (employee/employer). However, such notions arise from the legal notion of the employment contract: the employee is the natural person (legal persons are excluded) who provides its activity, upon remuneration, to the employer(s) (natural or legal person(s)).3 The employer(s) is/are granted disciplinary authority and the 1 Amended by Laws No 105/2009 of 14 September, 53/2011 of 14 October, 23/2012 of 25 June, 47/2012 of 29 August, 69/2013 of 30 August, 27/2014 of 8 May, 55/2014 of 25 August, 28/2015 of 14 April, 120/2015 of 1 September, 8/2016 of 1 April, 28/2016 of 23 August, 73/2017 of 16 August and 14/2018 of 19 March. See also Rectifications No 38/2012 of 10 July and 28/2017 of 2 October. 2  Please refer also to Art 1152 of the Portuguese Civil Code. 3  Notwithstanding this, the PLC entails definitions of specific types of employees, providing for a set of rules to be applied to such categories as ‘pregnant, recently having given birth or employee who are nursing’ (Art 36, para 1), ‘underage employee’ (Art 68) or ‘student

674  José João Abrantes and Rita Canas da Silva power to direct and supervise the employee’s activity and the contract’s compliance. Legal subordination remains the main criterion distinguishing employment contracts from other similar contracts (namely services agreements): if legal subordination is determined, an employment contract is deemed to exist without further assessment. Nevertheless, given the complexity of the facts, it is often difficult to assess whether this element can be verified. To determine its occurrence, Portuguese courts apply the ‘facts index’ system.4 According to the general principles of the burden of proof, the employee would have to prove the existence of the employment contract;5 however, a legal presumption upon the conclusion of an employment agreement is foreseen in Article 12 of the PLC.6 The PLC and all forms of employment regulated therein (namely fixed and unfixedterm employment, part-time work, and temporary agency work) require the work to be performed with legal subordination. Work performed independently—service providers/self-employed workers—is excluded. Apart from the typical employment contract (open-ended and full-time), the PLC covers: (i) term employment contracts and temporary agency work to meet the transitional needs of enterprises and user undertakings, but only for the required period to comply with those needs; and (ii) parttime work. employee’ (Art 89). Furthermore, should the employer be an undertaking, the PLC defines what shall be considered, for the purposes of the Labour Code, a ‘micro’, ‘small’, ‘medium’ and ‘large’ undertaking (Art 100, para 1). 4  According to this evaluation, each element is only approximate and does not automatically provide an accurate and definitive qualification. Thus, Portuguese courts conduct an overall assessment of all factors that can be proven. Only by balancing their overall relevance, is it possible to arrive at a conclusion regarding the contract’s legal classification. Portuguese case law refers to the following main criteria: whether the workplace and working time is determined by the beneficiary of the activity, whether a fixed timetable must be complied with, whether the services are provided under the orders and instructions of the beneficiary of the activity, whether the activity is performed within the beneficiary of the activity’s organisation, which party is the owner of the work instruments, the regularity of payments, payment of Christmas and vacation allowances, the applicable tax and social security regime, whether the activity is carried out personally or whether it can be provided by third parties, whether the work is performed with exclusivity and who bears the risk of the activity. 5  Civil Code, Art 342, para 1. 6  ‘The existence of an employment contract is presumed when, in the relationship between the person that performs an activity and the other (or others) that benefit from it, some of the following elements can be verified’—only two elements seem to suffice: ‘a) the activity takes place in a place that belongs to the beneficiary of the activity or in a place determined by him; b) the equipment and working tools belong to the beneficiary of the activity; c) the person that performs the activity complies with a specific start and end time, as determined by the beneficiary; d) an amount is paid to the provider within a certain period in return for the activity performed; e) the provider performs management or leadership functions in the enterprise’. This legal presumption may, however, be rebutted by evidence to the contrary (Civil Code, Art 350, para 2).

Atypical Employment Relationships: The Position in Portugal 675 II.  TERM WORK

A.  Legal Definitions/Formal Requirements According to the PLC, ‘term work’ (‘trabalho a termo’) may be performed (i) for a ‘fixed term’ (‘termo certo’), ie determined by a specific date, or (ii) for an ‘unfixed term’ (‘termo incerto’), which expires upon completion of a specific task or the occurrence of a specific event. Considering that term work is deemed an exception to the principle of stability of employment, these contracts may only be entered into for specific grounds explicitly provided by law.7 Pursuant to Article 140, paragraph 1 of PCL, a fixed-term employment contract may only be entered into to meet the temporary needs of the undertaking and only for the period strictly necessary to meet such needs. Consequently, Article 140, paragraph 2 entails some examples of what, for this purpose, shall be considered ‘temporary needs’:8 (i)

(ii)

Direct or indirect replacement of an absent employee or of an employee who, for any given reason, is not able to render his or her services.9 Reference to an ‘indirect’ replacement means that the term employee does not necessarily have to fulfil the work duties of the absent employee. For example, A is employed on a term basis to replace employee B, who was assigned to the functions previously performed by the absent employee (C). Therefore, A (hired on a temporary basis) replaces B, while B replaces C; Direct or indirect replacement of an employee in relation to whom there is pending legal action concerning the fairness of the dismissal;

7  In a decision of 25 June 2014 (Proc No 3098/08.0TTLSB.L1.S1) the Portuguese Supreme Court ruled on the legality of term work, finding that the special nature of academic work is not compatible with the general (restrictive) rules foreseen in the PLC on fixed-term employment contracts, given the mandatory submission to public examinations, in order to assure scientific and pedagogic abilities. The Court concluded that the PLC should not be applicable to these specific contracts and, therefore, that term employment contracts under these particular circumstances did not have to be entered into in writing; nor would the employee be entitled to any compensation in case of termination (decision available at: www.dgsi.pt/jstj.nsf/954f0 ce6ad9dd8b980256b5f003fa814/da8ea99b906424ea80257d0300315ad4?OpenDocument— Portuguese version). 8  The probation period for term work is generally 30 days. However, if the duration of the term is less than six months, the probation period is reduced to 15 days. During the probationary period, both the employer and employee may terminate the agreement without giving prior notice or arguing just cause, and neither party is entitled to compensation (Art 112, para 2 of PLC). 9 If the reason for concluding a fixed-term contract is the replacement of an employee who is on annual leave (duly identified in the contract), the employer shall prove its truthfulness, ie that the employee identified in the contract was effectively on annual leave during the period the replacing employee worked for the employer (Oporto’s Court ruling of 7 May 2012, Proc No 376/10.1TTVLG.P1, available at: www.dgsi.pt/jtrp.nsf/d1d5ce625d24df5380257583004ee7d7/f215e3bbbcf92815802579ff0032759b?OpenDocument—Portuguese version).

676  José João Abrantes and Rita Canas da Silva (iii) Direct or indirect replacement of an employee on unpaid leave; (iv) Replacement of an employee who went from working full time to part time for a limited period; (v) Seasonal activities or other activities whose annual cycle of production presents irregularities due to the structural characteristics of the respective specific market, including those resultant from the supply of raw materials; (vi) Exceptional increase in business activity;10 (vii) Performance of occasional tasks or of predetermined, precise and nonlasting services;11 (viii) Performance of work, a project or other precise and temporary activity, including the execution, coordination or supervision of building construction, public works, industrial maintenance and repairs in accordance with a works contract regime (‘regime de empreitada’) or by direct adjustment (‘administração directa’), including core projects or other supplementary activities of control and assistance. In addition, the parties can agree on the conclusion of an unfixed term in the employment contract (‘termo incerto’), which expires with the occurrence of a specific event or completion of a task. The following example illustrates the differences between fixed and unfixed terms: an employee may be hired on a temporary basis to replace an employee who is on sick leave: under a fixed-term contract, the employee is hired for a limited period of time, ending on a specific date;12 under an unfixed term, the employee is hired until the return of the employee s/he is replacing. Notwithstanding this, Article 140, paragraph 3 of the PLC only allows the conclusion of such contracts on the grounds established in paragraphs (i) to (iii) and (v) to (viii). Apart from these cases, the PLC refers to other reasons that do not correspond to any transitory needs of the undertaking, which allow the conclusion of a fixed-term employment contract determined by a specific date. This is possible in the following situations:13 (i)

The launching of a new activity of uncertain duration, or the beginning of operations by an undertaking or establishment with fewer

10  In this regard, please refer to Oporto’s Court of Appeal ruling of 18 April 2016, Proc No 2236/15.0T8AVR.P1, available at: www.dgsi.pt/jtrp.nsf/56a6e7121657f91e80257cda003 81fdf/89f9fe1abab5bc6b80257fa4005444d3?OpenDocument (Portuguese version). 11  See Portuguese Supreme Court decision of 6 February 2013, Proc No 154/11.0TTVNF. P1.S1, available at: www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/29c869e9c79 9bf5980257b0b004b1786?OpenDocument (Portuguese version). 12  In this case, complex questions may arise, for example, what happens when the replaced employee does not return to work or if s/he returns earlier than expected. Referring to the latter situation, see Lisbon Court of Appeal ruling of 12 January 1994, Proc No 9066, Colectânea de Jurisprudência, 19, vol 1, pp 157–58. 13  Art 140, para 4 of PLC.

Atypical Employment Relationships: The Position in Portugal 677

(ii)

than 750 employees—this solution aims to reduce entrepreneurial risk by encouraging entrepreneurship initiative.14 Hiring of workers seeking their first employment,15 long-term unemployed or workers in other situations set forth in special legislation on employment policies.

Term employment contracts shall be entered into in writing and must include:16 (i) Identification, signatures and residence of the parties; (ii) Activity to be performed by the employee; (iii) Remuneration; (iv) Place of work; (v) Normal working hours; (vi) Starting date of work performance; (vii) Term and grounds/motives justifying the duration of the contract; (viii) Date of signing of the contract and, in case of a fixed-term contract, date of termination. According to Article 141, paragraph 3 of PLC, the grounds supporting the term of the contract must be indicated by specifying the facts underlying the grounds and establishing a link between those facts and the duration of the contract. If the contract is not concluded in writing or if the signatures of the parties, their identification or the date on which the contract was entered into and the date on which the work will commence are missing, the contract will be classified as a contract of indefinite duration. This will also be the case if the description of the justifying grounds is missing or insufficient.17 The legal framework for term contracts includes a specific provision (­Article 142 of PLC) on fixed-term employment contracts of very short duration (‘Casos especiais de contrato de trabalho de muito curta duração’): such agreements are concluded for seasonal agricultural or tourist-related work and must not exceed 15 days (and a maximum of 70 days within a calendar year). Although these contracts do not need to be entered into in writing, the employer must electronically inform the competent social ­security services of their conclusion.

14 In this regard, see Coimbra Court of Appeal ruling of 2 May 2013, Proc No 273/12.6T4AVR.C1, available at: www.dgsi.pt/jtrc.nsf/c3fb530030ea1c61802568d9005c d5bb/31241ffc1f8ef63080257b6e004ccf73?OpenDocument (Portuguese version). 15  Concerning the notion of ‘worker seeking first employment’, see Oporto Court of Appeal ruling of 22 October 2012, Proc No 173/11.7TTGMR.P1, available at: www.dgsi.pt/jtrp.nsf/ c3fb530030ea1c61802568d9005cd5bb/34ba9e1e342efc2c80257ac900410e43?OpenDocum ent (Portuguese version). 16  Art 141, para 1 of PLC. 17  Art 147, para 1(c) of PLC.

678  José João Abrantes and Rita Canas da Silva Finally, a special regime is also set forth in Article 348 of PLC, according to which permanent employment will be converted into a fixed-term contract 30 days after the parties acknowledge that the employee retired on the grounds of old age18 or, regardless of retirement, if the employee has turned 70 years of age.19 In both situations, the legal framework on term employment contracts is eased since: (i) The term contract does not have to be entered into in writing; (ii) The contract lasts for six months, renewable for equal and successive periods, without being subject to maximum limits; (iii) Prior notice of 60 or 15 days is applicable, depending on which party terminates the contract (the employer or the employee); and (iv) The expiry of the contract does not entitle the employee to any compensation (this framework can be compared with the general rules described below in sections II.B. and II.C.). B.  Lawful Stipulation of Contractual Terms Measures have been introduced to prevent abuse due to the exceptional nature of this type of agreement. Only in specific situations (see above, section II.A) may parties enter into term employment contracts; to discourage fraud, Article 140, paragraph 5 of PLC states that it is the employer’s responsibility to provide evidence of the facts justifying the conclusion of term employment, and that any agreement with the purpose of violating term employment regulations will render the employment contract a permanent one.20 On the one hand, term employment contracts shall automatically convert into a permanent contract if entered into on the basis of unlawful grounds or if the circumstances justifying those grounds are not specified.21 On the other 18  In addition to age, other requirements must be met as well. In summary, ‘workers are not obliged to retire; retirement is voluntary under Portuguese law, save for the civil service, workers have the right, but not the obligation, to retire. That is to say, despite the mechanism of Art 348, para 1 NLC, workers not only have the right to remain working after the retirement age, they also may continue working after having retired’ (J Almeida, ‘Report on Portugal’, Age Discrimination Law in Europe (Wolters Kluwer, 2009) pp 271 ff, pp 280–81). 19  Concerning this specific situation (ie an employee who has not retired and has reached the age of 70 years versus the automatic conversion of his/her permanent contract into a term contract), J Almeida concludes that ‘the provision’s policy aim is … to free job positions for younger workers.’ However, one should recall that Art 348 para 3 affects workers of the age of 70 and above, who have not retired with sufficient social security contributions; as such, those workers do not receive a retirement pension. Hence, ‘particularly following the ECJ’s ruling in Palacios (Case C-411/05 Félix Palacios de la Villa v Cortefiel Servicios SA [2007] ECR I-0531), it is therefore questionable whether the Portuguese rule is consistent with Community law’ (J Almeida, ibid, pp 279–80). See also, R Canas da Silva, Labour Discrimination on Grounds of Age, Congresso Europeu de Direito do Trabalho (org. J-J Abrantes) (Almedina, 2014) pp 237–89. 20  Art 147, para 1 (a) of PLC. 21  Art 141, paras 1(e) and 3 and Art 147, para 1(b) and (c) of PLC.

Atypical Employment Relationships: The Position in Portugal 679 hand, in case of breach of duties, several misdemeanours might apply.22 If the employer terminates the term employment contract, the employee may decide to bring a case before the labour court, arguing unlawful termination and claiming that the contract should be (re)classified as a permanent contract. In case of conversion of the term contract into a permanent one (eg due to lack of grounds for a term contract), the employee is entitled to all rights inherent in a permanent employment relationship and a unilateral termination by the employer shall be considered unfair dismissal. As regards the duration of the contract, the PLC provides that fixed-term employment contracts shall not, as a rule, exceed three years—although lower limits of 18 months or two years may apply—and may not be renewed more than three times.23 However, unfixed term contracts (‘termo incerto’) may not exceed six years in total.24 Article 149, paragraph 3 of PLC also states that the renewal of a fixed-term employment contract requires that the legal grounds that existed at the time it was initially concluded be verified on the date of contract renewal, the same being applicable to the formal requirements should a different duration be established. To prevent the misuse of fixed-term employment contracts, Article 148, paragraph 5 of PLC states that the maximum limit of three years shall include the duration of any previous term employment contracts or temporary agency work relating to the same job position, as well as the duration of any service contracts concluded for the same purpose entered into between the employee and the employer, or between the employee and other holdings or affiliated companies or company holdings with the previous employer with common organisational structures. In addition, and as a general principle, immediate successive conclusions of term employment contracts are prohibited and only admitted in exceptional cases. Pursuant to Article 143 of PLC, the termination of a term employment contract for reasons not attributable to the employee prevents the conclusion (within a specified timeframe) of a new term employment contract, temporary agency work or contract of services for the same job position entered into by the employee not only with the previous employer, but also with its holdings or affiliated companies or with companies

22 

Eg, in Arts 140, para 6, 141, para 4, 143, para 3, 144, para 5 and 145, para 4 of PLC. Art 148, para 1 of the PLC. These limits were temporarily extended by Law No 3/2012, of January 10 (available at: https://dre.pt/pdf1sdip/2012/01/00700/0005200052.pdf—Portuguese version) and by Law No 76/2013, of November 7 (available at: https://dre.pt/pdf1sdip/2013/ 11/21600/0641706417.pdf—Portuguese version). Through these Acts a certain number of term employment contracts were broadened beyond the maximum duration set forth in the PLC—without being deemed permanent contracts. These transitional measures aimed to increase the continuation of employment during a period of crisis—when finding an alternative job might have been particularly difficult. 24  Art 148, para 4 of PLC. 23 

680  José João Abrantes and Rita Canas da Silva with common organisational structures with the previous employer. This ­limitation is applicable before the expiry of a period equivalent to one-third of the duration of the contract, including renewals. Nevertheless, an exception exists according to which such a prohibition shall not apply in case of: (i) A new absence of the replaced employee, if the term employment contract was concluded to replace him/her; (ii) An exceptional increase in business activity following the termination of the contract; (iii) Seasonal activity; or (iv) An employee previously employed as a ‘worker seeking his/her first employment’.25 Failure to meet these requirements leads to the classification of the contract as a permanent employment contract.26 C.  Termination/End of Fixed-Term Contracts Upon completion of the contracted work within the expected duration, the parties may terminate a fixed-term employment contract which is determined by a specific date in writing, with prior notice of 15 days (by the employer) or 8 days (by the employee).27 If the contract continues to be performed after the completion of its expected duration, the contract will be renewed (unless the maximum admissible renewals have been reached) or classified as a permanent contract.28 Similarly, in case of an unfixed term employment contract, the employer may freely terminate the agreement in writing upon completion within the expected duration, with prior notice of 7, 30 or 60 days, depending on whether the contract lasted up to six months, from six months to two years or for a longer period.29 If the contract continues to be performed after the employer’s communication of termination or, in the absence of such communication, the contract will be classified as a permanent contract 15 days after the completion of the term.30

25  Art 143, para 2(d) of PLC. Addressing the difficulties faced in the coordination of Arts 143 and 148, para 5, see J Nunes Vicente, ‘O Fenómeno da Sucessão de Contrato (A Termo)— Breves Considerações à Luz do Código do Trabalho Revisto’, O Contrato de T ­ rabalho a Termo, CEJ, 2013, pp 70–98, available at: www.cej.mj.pt/cej/recursos/ebooks/trabalho/Cader no_Contrato_trabalho_termo.pdf?id=9 (Portuguese version). 26  Art 147, para 2(b) and (d) of PLC. 27  Art 344, para 1 of PLC. 28  Art 147, para 2(b) of PLC. 29  Art 345, para 1 of PLC. 30  Art 147, para 2(c) of PLC.

Atypical Employment Relationships: The Position in Portugal 681 In case of termination on the employer’s initiative, the employee is ­entitled to compensation;31 however, the rules on compensation were changed in 2011, 2012 and 2013, which means that the regime varies depending on whether it applies to contracts concluded after 1 October 2013, to contracts entered into between 1 November 2011 and 30 September 2013, or contracts concluded before 1 November 2011.32 For fixed-term contracts entered into after 1 October 2013, compensation corresponds to 18 days’ basic pay and seniority allowances for each year of employment (in the case of a fraction of a year, payment is calculated proportionally).33 For unfixed term contracts entered into after 1 October 2013, compensation corresponds to the sum of 18 days of basic pay and seniority allowances for each year of employment for the first three years of the contract, plus 12 days’ basic pay and seniority allowances for each year of employment for the subsequent years (in the case of a fraction of a year, payment is calculated proportionally).34 Nevertheless, the following limits apply to both situations (fixed and unfixed term contracts): (i) the base for calculation may not exceed 20 times the guaranteed minimum monthly salary;35 and (ii) the total value of the compensation may not exceed 240 times the minimum wage.36 Under Portuguese law, a term employee may also be included in a collective dismissal or be made redundant. In such cases, the employee will be entitled to severance pay, which shall be paid by the employer in accordance with the amounts legally established. Moreover, should the employee infringe his/her duties and if such behaviour reveals a significant breach of his/her obligations towards the employer, the latter may dismiss the former with just cause.

31 It should be noted that regardless of the forms of termination, employees are always entitled to the labour credits related to the work they performed up to the termination date: salary, vocational training credits, accrued and untaken days of annual leave and respective allowances and pay, and, in proportion to the services rendered in the year of termination, annual leave and Christmas allowances. 32 For contracts entered into before 1 October 2013, different rules apply: before Law No 53/2011 of 14 October and Law No 23/2012 of 25 June, compensation amounted to 1 month’s basic salary for each full year of seniority. Law No 53/2011 and No 23/2012 had reduced this amount to 20 days’ basic salary for each full year of seniority and eliminated the former minimum 3-month payment. Finally, Law No 69/2013 of 30 August reduced this amount to the current 12/18 days of basic pay and seniority allowances for each year of employment. Transitional measures have been put in place for contracts of employment already in place when each of these acts entered into force—accordingly, the calculation of the amount due in each case varies. 33  Art 344, para 4 of PLC. 34  Art 345, para 4 of PLC. 35  Pursuant to Art 274 of the PLC, the following provisions should be taken into consideration when calculating the MMGW: a) the provision of remuneration in kind, including food or accommodation; b) sales commissions or production allowances; and c) bonuses that constitute remuneration, under point a) of para 3 of Art 260 of PLC. 36  Arts 344, para 2 and 345, para 5 of PLC.

682  José João Abrantes and Rita Canas da Silva D.  Rights and Status of Fixed-Term Worker (i)  Equal Treatment In addition to the general rules on prohibition of discrimination (Articles 23 to 28 of PLC), Article 146, paragraph 1 of PLC stipulates that employ­ees are entitled to the rights and subject to the duties of permanent employ­­ees in a comparable situation, unless legal grounds justify different treatment. Moreover, to determine the company’s social obligations on the number of people employed, term employees shall be counted by reference to the average of total term employees working in the undertaking by the end of each month of the previous calendar year.37 (ii)  Employment Opportunities Within 30 days after termination of the contract, should the employer carry out external recruitment for the performance functions identical to those previously executed by the term employee, the latter is entitled, under equal conditions, to a (legal) right of preference to permanent employment. The infringement of this duty requires the employer to compensate the employee in the amount of three months’ basic salary.38 (iii)  Other Matters Portuguese legislation does not provide for other relevant provisions that may be treated as supplementary rights for employees who have concluded term work contracts. E.  Information and Consultation The general information and consultation duties also apply to term employees.39 In addition, within five working days, the employer must report the justification for concluding any term employment contract, as well as its termination: (i) to the works council and trade union to which the employee is affiliated, and (ii) to the General Labour Inspectorate.40 The Commission for Equality in Labour and Employment41 shall also be

37 

Art 146, para 2 of PLC. Art 145 of PLC. 39  Arts 106 ff of PLC. 40  Official webpage at: www.act.gov.pt/(pt-PT)/Paginas/default.aspx. 41  Official webpage at: www.cite.gov.pt/en/about_us.html. The Commission for Equality in Labour and Employment (‘CITE’) was created in 1979 to fight discrimination and promote equality between women and men in labour, in employment and in vocational training. Its main 38 

Atypical Employment Relationships: The Position in Portugal 683 informed within five working days about the reasons for the non-renewal of a fixed-term employment contract entered into with a pregnant employee, an employee who has recently given birth or one who is nursing. The PLC also requires the employer to publicise information on permanent posts available in the undertaking or establishment.42 F.  Specific Provisions Apart from the general regime provided in the PLC, special regimes exist that have been adapted to certain sectors and activities: Article 9 of PLC sets forth that ‘the general rules of the Code may be applicable to employment contracts under a special regime in accordance with the specificities of such contracts’. These special provisions cover the particularities of several activities, which do not always correspond to the general rules laid down in the PLC for the majority of employees. Illustrative of such specificities is the legal framework applicable to performing artists (eg members of orchestras, theatres or dance companies), approved by Law No 4/2008, of 7 ­February,43 which provides that an employment agreement may be entered into with a plurality of employees for the performance of an artistic activity. The contract may be entered into directly with each employee or with a joint representative thereof;44 nevertheless, each employee is part of an individual employment relationship with the employer45 and the contract shall indicate the remuneration and the regime applicable to each individual employee.46 Regarding the conclusion of a term agreement, this legal framework stipulates that all employment relationships shall terminate simultaneously; however, the impossibility to perform work by one employee does not entail the termination of the relationships with the remaining employees, unless the circumstances do not allow for the agreed performance.47 Moreover, Law No 4/2008 provides for a specific regime for term employment contracts (fixed or unfixed) to be concluded with performing artists: fixed-term employment contracts may have a maximum duration of six years and the application of the maximum number of renewals as well as the prohibition of successive term contracts as set forth in the PLC are excluded.48 In a ruling responsibilities are: (i) to promote equality and non-discrimination between women and men in labour, in employment and in vocational training; (ii) protection of parenthood (maternity, paternity and adoption); and (iii) reconciliation of professional, personal and family life. 42 

Art 144, paras 1 to 4 of PLC. by Law No 105/2009 of 14 September, by Law No 28/2011 of 6 June and by Law No 22/2019 of 26 February. 44  Art 9, para 1. 45  Art 9, para 5. 46  Art 10, para 5. 47  Art 9, paras 6 and 7. 48  See Art 7 of Law No 4/2008. 43  Modified

684  José João Abrantes and Rita Canas da Silva of 21 April 2016, the Portuguese Supreme Court decided that under these circumstances, the employer does not have to make reference to any specific temporary ground to justify the conclusion of a term employment contract— the artistic activity carried out by the employer should suffice—but also that the employee is not entitled to any compensation in case of termination.49 G.  Collective Bargaining Agreements Deviating from Statutory Provisions Pursuant to Article 139 of PLC, the legal rules on term employment contracts may be set aside by collective labour regulation instruments, with the exception of: (i) the legal ground for the conclusion of a term employment contract in case of ‘hiring workers seeking their first employment or longterm unemployed or in other situations set forth in special legislation on employment policies’50 and (ii) the provisions on the maximum duration and renewals of term contracts.51 III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements A contract is considered ‘part time’ if the weekly working time is lower than the weekly working time in an equivalent full-time employment contract in a comparable situation.52 Pursuant to PLC, part-time and full-time employment are comparable when the employees provide the same work in the same establishment or, if no comparable employee exists in the same establishment, in another similar company pursuing the same activity, taking into account seniority and professional qualifications.53 Part-time work can only be performed a few days per week, per month or per year, and the number of working days must be established by agreement.54 With the exceptions of the provisions specially included to accommodate the particularities of part-time contracts, such contracts are subject to the same legislation as full-time contracts.55 It should, however, be noted

49 Proc No 2716/13.2TTLSB.L1.S1, available at: www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b9802 56b5f003fa814/bf393dbbdfeab62680257f9c0056547f?OpenDocument (Portuguese version). 50  Art 140, para 4(b) of PLC. 51  Art 148, paras 1, 4 and 5 of PLC. 52  Art 150, para 1 PLC. If the normal working hours are not the same each week, the respective average within the relevant reference period shall be considered (Art 150, para 2 of PLC). 53  Art 150, para 4 of PLC. 54  Art 150, para 3 of PLC. 55  For further developments, see C Carvalho, A Desarticulação do Regime Legal do Tempo de Trabalho, O Tempo de Trabalho, CEJ, 2014, pp 17–57, available at: www.cej.mj.pt/cej/recursos/ ebooks/trabalho/o_tempo_de_trabalho.pdf?id=9&username=guest (Portuguese version).

Atypical Employment Relationships: The Position in Portugal 685 that part-time employment contracts must be concluded in writing and include: (i) The identification, signature and residence or registered office of the parties; and (ii) The daily and weekly working time, with a comparative reference to full-time work.56 The contract will be qualified as a full-time employment agreement (­Article 153, paragraphs 2 and 3) if not entered into in writing or if reference to the daily and weekly working time is missing with a comparative reference to fulltime work. The Labour Code states that a part-time employee is entitled to start working full time (or vice versa), either permanently or for a limited period of time.57 Nevertheless, the employee may terminate such an arrangement in a written communication sent to the employer within seven days following the conclusion of the amendment.58 B.  Opportunities for/Right to Part-Time Work Collective bargaining shall provide preference criteria for the selection of part-time employees, and thus benefit employees with family responsibilities, reduced work capacity, disability or chronic illness or those attending an educational institution.59 Nevertheless, whenever possible, the employer shall take the request of a full-time employee to work part-time into consideration. The Labour Code also states that the employer shall facilitate access to part-time work for all levels of responsibility in the enterprise, including to those performing management functions.60 When a full-time employee starts working part-time for a limited period of time, s/he is entitled to later resume full-time work.61,62 56  Art 153 of PLC. An exception to this regime is envisaged in the event that the enterprise faces a crisis. Arts 298 to 308 of PLC establish two different measures: a temporary reduction of the normal working hours or suspension (such as a reduction to zero hours) of the employment contract due to a business crisis. Under these circumstances, when market, structural, technological grounds, catastrophes or other occurrences seriously affect the normal business operation and such measures are indispensable to ensure the viability of the undertaking and of jobs, the employer may unilaterally and temporarily (for a predefined duration—Art 301 of PLC) reduce the normal working time or suspend employment contracts. The enforcement of such measures requires an information and consultation procedure similar to the one foreseen for collective dismissal (Arts 299 and 300 of PLC). 57  Art 155, para 1 of PLC. 58  Save if the modification was duly dated and the signatures were recognised by a public notary (Art 155, para 3 of PLC). 59  Art 152, para 1 of PLC. 60  Art 156, para 1(a) and (c) of PLC. 61  Art 155, para 4 of PLC. 62 Part-time work is also foreseen as a right of employees with family responsibilities (Arts 35, para 1(o), 51, para 1(b), 55 and 57of PLC). A special regime is also foreseen for underage employees (Art 67, para 4 of PLC).

686  José João Abrantes and Rita Canas da Silva C.  Opportunities for/Right to an Extension of Working Time The Labour Code expressly states that whenever possible, the employer shall take the request of a part-time employee to work full time or to extend his/her working time into consideration.63 D.  Rights and Status of Part-Time Worker (i)  Equal Treatment In general, the PLC establishes a general prohibition of discrimination, which is also applicable to part-time employees.64 It is, however, expressly stated that legal provisions and collective bargaining regulations which, by their nature, do not refer to full-time work, are applicable to part-time employees65 who may not be treated less favourably than full-time employees in a comparable situation, unless different treatment is justified by objective reasons, which may be established in collective bargaining.66 Part-time employees are entitled to: (i) Basic salary and other benefits established in law or collective bargaining or, if more favourable, to the amounts paid to a full-time employee in a comparable situation, proportionally to the normal weekly work period67 and (ii) Meal allowances in the amount set forth in collective bargaining or, if more favourable, in the amount paid in the enterprise, except when the normal daily work period is less than five hours, in which case it is calculated in proportion to the corresponding normal weekly work period.68 (ii)  Dismissal Protection The termination of employment contracts is governed by the PLC and ­Article 53 of the Portuguese Constitution, which establishes the principle of employment protection. Under Portuguese law, the employer may unilaterally terminate a permanent employment contract in exceptional cases only, namely:69 (i) During the probation period;70 (ii) On the basis of disciplinary grounds;71 63 

Art 156, para 1(b) of PLC. Arts 23 to 28 of PLC. 65  Art 154, para 1 of PLC. 66  Art 154, para 2 of PLC. 67  Art 154, para 3(a) of PLC. 68  Art 154, para 3 of PLC. 69  Art 340 of PLC. 70  Art 114 of PLC. 71  Arts 351 to 358 of PLC. 64 

Atypical Employment Relationships: The Position in Portugal 687 (iii) Due to collective dismissal;72 (iv) Loss of labour position due to market, structural or technological reasons related to the enterprise;73 (v) On the basis of the employee’s failure to adapt (‘despedimento por inadaptação’);74 (vi) Termination of special services (‘comissão de serviço’).75 These rules are applicable to part-time as well as full-time employees, without any specific distinction. (iii)  Other Matters Portuguese labour legislation does not entail other provisions that may be treated as supplementary rights to employees who have concluded part-time work contracts. E.  Information and Consultation The general information and consultation duties also apply to part-time employees. In addition, the employer shall provide: (i) employees with information on part-time and full-time posts available in the undertaking, and (ii) employee representatives with information on part-time employment performed in the enterprise.76 F.  Other Part-Time Arrangements The legal framework on part-time work has been described above. Given the admissibility of multiple forms of employment,77 the part-time legal model can be adapted to different employment situations. However, in such cases, the specificities of the work performed do not arise from the legal regime of part-time employment, but from other particularities of the given activity (on-call work, shared workplace, etc). Although the PLC envisages the possibility of an employee entering into an employment contract with a plurality of employers, it does not seem to allow the conclusion of a single employment contract with a plurality

72 

Arts 359 to 366 of PLC. Arts 367 to 372 of PLC. 74  Arts 373 to 380 of PLC. 75  Arts 161 to 164 of PLC. 76  Art 156, para 2 of PLC. 77  Eg, in the mornings, the employee may have an employment contract with employer A and in the afternoons with employer B—provided that there is no infringement of loyalty duties (such as confidentiality or non-competition). 73 

688  José João Abrantes and Rita Canas da Silva of employees (an ‘external’ or ‘independent’ group of employees): save if expressly regulated,78 these contracts are not expressly recognised and their legality is questionable. According to some legal literature, pursuant to the free will of the parties and given the lack of general statutory regulations, these agreements should be permissible.79 However, others assert that the legal definition of an employment contract as an agreement ‘in which a natural person undertakes, upon remuneration, to perform his/her activity to another or others’.80 describes the employee as one individual, thus excluding the possibility of a group of persons providing the same activity under a single employment contract.81 Moreover, it is questionable how multiple labour provisions—namely, guarantees the employee is entitled to—would apply without specific (and explicit) adaptation. G.  Collective Bargaining Agreements Deviating from Statutory Provisions The Labour Code expressly states that the possibility of working part-time may not be excluded by collective bargaining.82 As mentioned above (see section III.A), a contract is considered ‘part-time’ if the weekly working time is lower than the weekly working time of an equivalent full-time employee in a comparable situation.83 To determine which employees are ‘in a comparable situation’, the PLC refers to employees that provide the same work in the same establishment or in another establishment of the same company, taking into account seniority and professional qualifications.84 However, if there is no existing employee in a comparable situation, attention must be paid to the provisions set forth in law or in a collective bargaining agreement applicable to full-time employees with the same seniority and professional qualification.85 Collective bargaining may also establish different comparative criteria as well as the maximum rate of full-time work which might determine the classification of work as part time.86 Finally, the Labour Code states that collective bargaining shall provide preference criteria for the selection of part-time employees by benefiting employees with

78  As in accordance with the special framework applicable to performing artists (eg members of orchestras, theatres or dance companies), approved by Law No 4/2008 of 7 February and amended by Law No 105/2009 of 14 September, by Law No 28/2011 of 6 June and by Law No 22/2019 of 26 February. 79  A Menezes Cordeiro, Manual de Direito do Trabalho (Almedina, 1991) p 610 ff. 80  Art 11 of PLC. 81  C Ferreira de Almeida, Contratos II, Conteúdo, Contratos de troca (Almedina, 2007) pp 179 f. 82  Art 151 PLC. 83  Art 150, para 1 PLC. 84  Art 150, para 4 PLC. 85  Art 150, para 5 of PLC. 86  Art 150, para 6 of PLC.

Atypical Employment Relationships: The Position in Portugal 689 family responsibilities, reduced work capacity, disability or chronic illness or who attend educational institutions.87 IV.  TEMPORARY AGENCY WORK

A.  Legal Definitions/Formal Requirements Temporary agency work (‘trabalho temporário’) is also covered by the PLC and is permitted in limited circumstances (PLC, Articles 172 ff).88 Temporary agency work refers to fixed or unfixed term or permanent contracts entered into between a temporary work agency and an employee, whereby the latter provides his/her work, upon remuneration, to different enterprises (‘user undertakings’), the employment relationship thus remaining with the temporary work agency.89 In addition to the Labour Code, Decree Law No 260/2009 of 25 ­September90 provides the legal framework for the activity and the permit procedure for temporary work agencies.91 Accordingly, a temporary work agency is described as the natural or legal person that temporarily transfers employees to provide their work to user undertakings: for this purpose, temporary work agencies recruit and remunerate their employees. Pursuant to Article 185, paragraph 2 of PLC, during the assignment to the user undertaking, the employee is subject to the authority and supervision of the user, although the employment status remains with the temporary work agency, which is the holder of disciplinary power.92 Finally, the user undertaking is described as a natural or legal person, whether for profit or not, for whom the assigned employee performs his/her activity.93 The performance of temporary agency work relies on the existence of (i) a services agreement entered into between the temporary work agency and the user undertaking; and (ii) a temporary employment contract concluded between the temporary work agency and the employee (a fixed, unfixed term or permanent contract). When employment contracts are entered into between an employee and a temporary work agency for a limited period of time only (fixed or unfixed term), certain grounds explicitly provided by law are required

87 

Art 152, para 1 of PLC. this regard, see Trabalho Temporário, CEJ, 2007, available at: www.cej.mj.pt/cej/ recursos/ebooks/trabalho/e-book_Trabalho_temporario.pdf?id=9&username=guest (Portuguese version). 89  Art 172 of PLC. 90  Amended by Law No 146/2015, of 9 September. 91  Arts 3 to 13. 92  Art 185, para 4 of PLC. 93  Art 2(h) of Decree Law No 260/2009. 88 In

690  José João Abrantes and Rita Canas da Silva (eg replacement of an absent employee, the need to fill posts that are vacant while a recruitment process is underway, a temporary or exceptional increase in work). These grounds generally relate to situations that are transitional and/or unpredictable (see below IV.C).94 B.  Registrations, Licensing, Financial Guarantees, etc Decree Law No 260/2009 determines that the scope of activity of a temporary work agency is the temporary allocation of employees for the performance of their activity at a user undertaking, being entitled as well to developing activities of recruitment, guidance and vocational training, consultancy and human resources management.95 Temporary work agencies shall hold a licence and provide a financial guarantee—for an amount that varies in accordance with the number of employed workers—to the Institute of Employment and Vocational Training. In addition, the PLC states that contracts entered into by a temporary work agency without a licence shall be considered null and void.96 Moreover, in case the temporary work agency does not hold a licence, Article 174, paragraph 1 of PLC prescribes joint and several liability of the user undertaking and of the temporary work agency for the employee’s earnings emerging from the employment contract, its breach or termination in the last three years, as for related social charges. Nevertheless, Article 174, ­paragraph 2 of PLC also states subsidiary responsibility of the user undertaking for the employee’s earnings related to the 12 first months of work as well as for the related social charges. Finally, in case of breach of duties, several misdemeanours may apply97 and in some cases, the temporary work agency may be sanctioned with an order of temporary closure.98 C. Relationship between Temporary Agency Worker and Temporary Work Agency (i)  Fixed-Term and Part-Time Contracts As already explained above (see section II.A), employment contracts entered into for a limited period of time must be justified by particular legal grounds 94 

Art 180 of PLC. Art 3 of PLC. 96  Art 173, para 1 of PLC. 97  As, eg, set forth in Arts 173, para 7, 175, para 6, 177, para 6, 179, para 3, 181, para 5, 183, para 4, 184, para 3, 185, para 12, 186, para 9 and 189, para 5 of PLC. 98  Art 192, paras 1 and 3 of PLC. 95 

Atypical Employment Relationships: The Position in Portugal 691 (eg replacement of an absent employee, the need to fill jobs that are vacant when a recruitment process is under way, a temporary or exceptional increase in work). These grounds are generally related to situations that are transitory and/or unpredictable. A temporary work contract entered into between the temporary work agency and the employee might be concluded: (i) under a fixed or unfixed term99 or (ii) for an indefinite duration.100 Both term and permanent employment contracts may be concluded for part-time or full-time work. Fixed or unfixed term employment contracts may only be entered into in accordance with the grounds established for services agreements concluded between the user undertaking and the temporary work agency (see below, section IV.D).101 Amongst other obligations, the term contract must be entered into in writing and include:102 —— Identification, signatures and residence or headquarters of the parties, number and date of registration of the temporary work agency’s permit; —— Grounds for the temporary employment by describing the facts that support these grounds; —— Activity to be performed by the employee; —— Place and normal working hours of the employee; —— Remuneration; —— Date of commencement of the contract; —— Term of the contract; —— Date of signing of the contract. If the contract is not concluded in writing or does not provide proper references to the term and justifying ground, it shall be considered a permanent contract of employment.103 The duration of the contract must not exceed that of the services agreement entered into between the user undertaking and the temporary work agency.104 The duration of the fixed-term contract, including renewals, must not exceed the limit of two years. However, if the agreement is entered into to fill a vacant post during a recruitment process or due to an unusual increase in activity, it shall not exceed six or 12 months, respectively.105 The duration of an unfixed term contract is the period required to satisfy the temporary needs of the user undertaking, but shall not exceed the maximum limit of two years, six months or 12 months.106 99 

Art 180, para 1 of PLC. Arts 183 and 184 of PLC. 101  Art 180, para 1 of PLC. In case law, see Evora Court of Appeal ruling of 13 February 2014, Proc No 628/12.6TTSTB.E1, available at: www.dgsi.pt/jtre.nsf/134973db04f39bf2802579bf00 5f080b/37e6b3d2185bc7cd80257de10056fe30?OpenDocument (Portuguese version). 102  Art 181, para 1 of PLC. 103  Art 181, para 2 of PLC. 104  Art 182, para 1 of PLC. 105  Art 182, para 3 of PLC. 106  Art 182, para 4 of PLC. 100 

692  José João Abrantes and Rita Canas da Silva Upon completion of the activity within the expected duration, the parties may terminate the fixed-term employment contract in writing, with prior notice of 15 (given by the employer) or 8 days (given by the employee);107 termination by the employer entitles the employee to compensation.108 In case of an unfixed term contract, as a rule, upon completion within the expected duration, the employer may terminate the contract in writing, with prior notice of 7, 30 or 60 days, depending on whether the duration of the contract was for up to six months, between six months and two years, or for a longer period;109 termination by the employer also entitles the employee to compensation.110 Finally, in case of an employment contract entered into between the temporary work agency and the employee for an indefinite duration, amongst other obligations, it must be entered into in writing and include:111 —— Identification, signatures and residence or headquarters of the parties, number and date of the temporary work agency’s permit; —— Express mention of the employee’s consent to be temporarily assigned to user undertakings; —— The activity to be performed by the employee or a general description of the functions to be performed and evidence of adequate professional skills and of the geographical area within which the employee may be requested to work; —— Minimum remuneration to be paid during the assignment. (ii)  Rights and Obligations/Liability Temporary agency work has a tripartite structure, with the main powers granted to an employer—ie, disciplinary and direction/supervision powers—being shared between the temporary work agency and the user undertaking; during the period of assignment to the user undertaking, the employee is subject to the authority and supervision of the user, although the employment status remains with the temporary work agency, which holds disciplinary power.112 Nevertheless, health examinations on admission, and subsequent regular and occasional health examinations are the responsibility of the temporary work agency, whose occupational physician must keep all of the temporary agency workers’ medical records.113

107 

Arts 182, para 6 and 344, para 1 of PLC. Arts 182, para 6 and 344, para 2 of PLC. 109  Arts 182, para 6 and 345, para 1 of PLC. 110  Arts 182, para 6, 345, para 4 and 344, para 2 of PLC. 111  Art 183, para 1 of PLC. 112  Art 185, para 4 of PLC. 113  Art 186, para 4 of PLC. 108 

Atypical Employment Relationships: The Position in Portugal 693 (iii)  Dismissal Protection Termination of employment contracts is governed by PLC and Article 53 of the Portuguese Constitution, which establishes the principle of employment protection. Under Portuguese law, the employer may unilaterally terminate a permanent employment contract in exceptional cases only, namely:114 During the probation period;115 On the basis of disciplinary grounds;116 Collective dismissal;117 Loss of labour position due to market, structural or technological reasons related to the enterprise;118 (v) On the basis of the employee’s failure to adapt (‘despedimento por inadaptação’).119 (i) (ii) (iii) (iv)

These rules are also applicable to employees who have entered into an employment contract with a temporary work agency. In the event of conclusion of a term contract (fixed or unfixed), the provisions on termination described above (see section IV.C.(ii)) are also applicable. D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship During the assignment to the user undertaking, the employee is subject to the authority and supervision of the user, although the employment status remains with the temporary work agency which is the holder of disciplinary power. Nevertheless, failure to comply with the rules on temporary employment contracts may, in several instances, determine that the activity will be considered as being performed on a permanent (employment) basis for the user undertaking or the temporary work agency.120 For example, if the legal grounds justifying the conclusion of the contract entered into between the user undertaking and the temporary work agency cannot be verified, the employee may argue that s/he has concluded a contract of indefinite duration with the user undertaking.121 On the other hand, if the

114 

Art 340 of PLC. Art 114 of PLC. 116  Arts 351 to 358 of PLC. 117  Arts 359 to 366 of PLC. 118  Arts 367 to 372 of PLC. 119  Arts 373 to 380 of PLC. 120  Eg, see Arts 176, para 3, 177, paras 5 and 6, 178, para 4, 180, para 3, 181, para 2 and 183, para 3 of PLC. 121  Art 176, para 3 of PLC. 115 

694  José João Abrantes and Rita Canas da Silva temporary work agency did not enter into an employment contract with the employee in writing, he/she may claim to have a permanent contract with the agency.122 (ii)  Rights and Obligations/Liability As mentioned above, temporary agency work entails a tripartite structure, with the main powers being granted to an employer—ie disciplinary and direction/ supervision powers—being shared between the temporary work agency and the user undertaking; during the period of assignment, the employee is subject to the authority and supervision of the user undertaking, although the employment status remains with the temporary work agency which holds disciplinary power.123 Accordingly, through the assignment, the employee is subject to the legal framework applicable to the user undertaking as regards the place, duration and possible suspension of the employment contract, safety and security at work and access to social benefits. Moreover, the user undertaking shall provide the employee’s timetable and schedule his/her annual leave.124 (iii)  Health and Safety As regards health and safety, the employee is entitled to the same level of protection applicable to the user undertaking’s regular employees.125 According to Article 186, para 6 of PLC, the user undertaking must provide the employee with adequate training for his/her post, considering the employee’s professional skills and experience. In addition, Article 187 of PLC states that the temporary work agency must ensure adequate occupational training for its employees, including term employees. Prior to the assignment, the user undertaking must inform the temporary work agency in writing of:126 (i)

The risks to health and safety of the employee, which are inherent to the job position and, in case of high risks relating to a particularly dangerous job, the need for adequate vocational training and special medical surveillance; (ii) Instructions on the measures to be taken in case of serious and imminent danger; (iii) First aid measures, fire-fighting measures and measures for evacuation of employees in case of accident, and information on the e­ mployees or departments responsible for implementing such measures; how

122 

Art 183, para 3 of PLC. Art 185, para 4 of PLC. 124  Art 185, paras 2 and 3 of PLC. 125  Art 186, para 1 of PLC. 126  Art 186, para 2 of PLC. 123 

Atypical Employment Relationships: The Position in Portugal 695 the occupational physician or the hygiene and safety technician have access to the job position. An employee who is exposed to high risks related to a particularly dangerous job is entitled to special medical supervision under the user undertaking’s responsibility, whose occupational physician must inform the temporary work agency’s occupational physician of any eventual contraindication.127 E.  Relationship between Temporary Work Agency and User Undertaking Only in exceptional situations may a services agreement be entered into between a user undertaking and a temporary work agency for the assignment of employees. Thus, Article 175, paragraph 1 of PLC states that a services agreement may only be concluded in the following cases: (i) (ii) (iii) (iv) (v) (vi) (vii)

Direct or indirect replacement of an absent employee or of an employee who, for any given reason, is not able to render his/her services; Direct or indirect replacement of an employee in relation to whom there is pending legal action concerning dismissal; Direct or indirect replacement of an employee with a non-remunerated licence; Replacement of an employee who went from working full time to half time for a limited period of time; Seasonal activities or other activities with irregular annual cycles of production arising from the structural nature of the corresponding market, including the supply of raw materials; Exceptional increase in activity, and Performance of occasional tasks or determined, precise and nonlasting services.

The agreement may also be entered into in case of: A vacant post during a recruitment process;128 Intermittent need of a labour force given the fluctuation of the activity during days or parts of the day, provided that the work performed does not, per week, exceed half of the normal weekly work period mainly in place in the user undertaking;129 (iii) Intermittent need to provide direct family support, of a social nature, for days or parts of a day;130 and (i) (ii)

127 

Art 186, para 7 of PLC. Art 175, para 1(a) of PLC. 129  Art 175, para 1(b) of PLC. 130  Art 175, para 1(c) of PLC. 128 

696  José João Abrantes and Rita Canas da Silva (iv) Performance of a temporary project, namely building or restructuring an enterprise or undertaking, industrial installation or repair.131 In order to discourage fraud, Article 176, paragraph 1 of PLC expressly states that it is the user undertaking’s responsibility to provide evidence for the facts that justify the agreement. Amongst other obligations, the services agreement must be entered into in writing and include:132 —— Identification, signatures and residence or headquarters of the parties, tax registration number, social security number, number and date of registration of the temporary work agency’s permit; —— Indication of the ground justifying the agreement; —— Job description, indication of occupational risks, and if applicable, high risks or risks related to an especially dangerous job; —— Reference to the required professional qualification, as well as the modality of safety and health services adopted by the user undertaking and its contract; —— Place and normal working hours of the employee; —— Remuneration paid to an employee of the user undertaking who performs the same functions; —— Remuneration due by the user undertaking to the temporary work agency; —— Starting time and duration of the temporary work; —— Signing of the date of the contract. Special attention should be given to the fact that it is mandatory to indicate the legal ground that justifies the contract, by describing the facts that support this ground, and establishing a link between the ground and the duration period of the contract.133 A services agreement must be entered into for a fixed or unfixed term: the agreement shall last for the agreed period but shall not exceed the duration of the ground that justifies the term or a maximum of two years. However, if the contract is entered into to fill a vacant post during a recruitment process or due to an exceptional increase in activity, it shall not exceed six or 12 months, respectively.134 Similar rules apply to the grounds, duration and legal form of temporary employment contracts entered into between the temporary work agency and the employee (see section IV.C above). Finally, as a rule, after the full duration of a services agreement, immediate succession in the same post of a temporary or term employee is only permitted in exceptional cases.135 131 

Art 175, para 1(d) of PLC. Art 177, para 1 of PLC. 133  Art 177, para 2 of PLC. 134  Art 178, paras 1 and 2 of PLC. 135  Art 179 of PLC. 132 

Atypical Employment Relationships: The Position in Portugal 697 F.  Rights and Status of Temporary Agency Worker (i)  Equal Treatment According to Article 185, paragraph 5 of the Labour Code, temporary employees are entitled to the minimum remuneration established in collective agreements in force in the temporary work agency or in the user undertaking, or to the remuneration paid by the user undertaking for equal work, whichever is more favourable. Article 185, paragraph 6 of PLC also provides that the temporary employee is entitled to the same annual leave, vacation and Christmas allowances and other regular payments as are paid to the employees of the user undertaking who perform equal work. Additionally, the PLC establishes a general prohibition of discrimination, which is also applicable to temporary agency workers.136 (ii)  Other Matters Portuguese legislation does not provide for other provisions that may be treated as supplementary rights to temporary agency workers. G. Information and Consultation/Representation of Temporary Agency Worker The general information, consultation and representation duties also apply to temporary agency workers. In addition, pursuant to Article 185 ­paragraph 11 of PLC, the user undertaking must inform the employee of available posts in the establishment or undertaking for functions identical to those performed by the employee. Moreover, within five working days, the user undertaking must also inform the occupational security and health services, the employee representatives for occupational safety and health, employees with specific functions in this area and the works council about the commencement of the employee’s activity.137 H. Strikes Pursuant to Article 535, paragraph 1 of PLC, during a strike, the employer may not replace the strikers with workers who were not working in the establishment or department at the time the strike commenced. Moreover, the striking employee’s job may not be carried out by a temporary agency

136  137 

Arts 23 to 28 of PLC. Art 186, para 8 of PLC.

698  José João Abrantes and Rita Canas da Silva worker hired to replace the striking employee, except in case of default of the minimum services necessary to meet essential social needs or to ensure the safety and maintenance of equipment or facilities and in any case, only to the necessary extent to provide such services.138 I.  Collective Bargaining Agreements Deviating from Statutory Provisions General rules on the hierarchy of the sources of law apply.139 Nevertheless, the Labour Code expressly envisages that the employee is entitled to the minimum wage set forth for his/her tasks in collective bargaining regulations applicable to the temporary work agency or to the user undertaking, or practised within the latter for the same work or work of equal value, whichever is more favourable.140 Article 185, paragraph 10 of PLC also states that 60 days after the assigned employee has started work, the collective bargaining agreement applicable to employees of the user undertaking carrying out the same functions will also be applicable to that employee.

138 

Art 535, para 2 of PLC. Art 3 of PLC. 140  Art 185, para 5 of PLC. 139 

27 Atypical Employment Relationships: The Position in Romania RALUCA DIMITRIU

I. INTRODUCTION

T

HE PERCENTAGE OF atypical employment contracts in Romania compared with standard ones is one of the lowest in the European Union.1 Although the percentage of atypical employment contracts is gradually increasing, particularly since the restrictions on concluding such contracts have been eased following amendments to the Labour Code2 by Law No 40/2011,3 the standard, full-time, indefinite contract remains by far the most commonly used form of employment in Romania’s labour market. Romanian regulations on part-time work were adopted taking into account the provisions of Council Directive 97/81/EC of 15 December 1997 on the framework agreement on part-time work. Romania also transposed Council Directive 1999/70/EC on the framework agreement on fixed-term work, as well as Directive 2008/104/EC on temporary agency work. All three forms of atypical employment are governed by detailed regulations based on the principle of equal treatment with standard employees. Romanian legislation does not recognise the validity of ‘very atypical’ employment contracts, not even certain atypical employment contracts that are common in other legal systems. For instance, telework has only

1  According to Eurostat, only 1% of all contracts in 2015 were concluded for a fixed term, compared to the EU average of 11.1%: http://ec.europa.eu/eurostat/statistics-explained/index. php/Employment_statistics#Part-time_and_fixed-term_contracts. The ‘Household Labour Force Survey’ (AMIGO) (2017) reinforced the predominance of full-time employment contracts (Labour Force in Romania. Employment and Unemployment in 2016): www.insse.ro/ cms/sites/default/files/field/publicatii/forta_de_munca_ocupare_si_somaj_in_anul_2016.pdf). According to this study, out of 6,200,639 employees in 2016, only 86,971 had fixed-term contracts. 2 Law No 53/2003, republished in the Official Gazette of Romania, No 345 of 18 May 2011, subsequently amended. 3  Published in the Official Gazette of Romania, No 225 of 31 March 2011.

700  Raluca Dimitriu recently been regulated for the first time,4 while on-call agreements are still not accepted. As a result, courts often find themselves in situations in which they have to interpret such contracts as belonging to one of the categories of typical employment contracts.5 Romanian regulations are essentially characterised by a lack of flexibility. To provide just one example, the law prohibits overtime work by part-time workers,6 which represents a disadvantage, with the consequence of putting certain forms of flexible working time arrangements outside the law. II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements According to the Law of Employment Contracts of 1929, Fixed-term employment contracts (contracte de muncă pe durată determinată) were the rule in the interwar period in Romania. Today, according to Article 12 of the Labour Code, employment contracts are generally concluded for an indefinite period. Fixed-term contracts can only be concluded as an e­ xception,7 their validity depending on the fulfilment of certain legal conditions. Beyond these provisions, the fixed-term contract is regulated in a separate section of the Labour Code, which highlights its exceptional nature in Article 82: ‘by way of exception to the rule laid down in Article 12(1), employers have the possibility to hire, in circumstances and under the terms prescribed by the Labour Code, employees under an individual employment contract of limited duration’. From the outset, the fixed-term contract is deemed a benefit for employers who ‘have the option’ to recruit employees under this type of contract.8

4 

By Law No 81/2018, published in the Official Gazette of Romania, No 296 of 2 April 2018. contract of a medical worker, who only worked in certain shifts (was only on duty) upon request—was interpreted as having a part-time employment contract. When the h ­ ospital no longer requested the medical worker’s services, as the number of necessary shifts was already covered, the court held that neither a suspension of contract (for reasons other than those strictly regulated by law for standard workers) nor dismissal of the employee (without complying with the legal provisions in this matter) can intervene, and ordered the reinstatement of the employee as well as compensation. See Decision of Bucharest Court of Appeal No 880 of 06 July 2015 (www.rolii.ro/). 6  Art 105(1) c of the Labour Code. 7  In line with the ETUC-UNICE-CEEP Framework Agreement on Fixed-term Work, implemented by Council Directive 1999/70/EC of 28 June 1999, which begins with an acknowledgement of the prominent position of the standard contract in relation to that of limited duration. 8 In contrast to the ETUC-UNICE-CEEP Framework Agreement on Fixed-term Work, which in the Preamble provides that the parties ‘recognise that fixed-term employment contracts respond, in certain circumstances, to the needs of both employers and workers’. 5  The

Atypical Employment Relationships: The Position in Romania 701 The fixed-term contract may only be concluded in writing, expressly stating its duration. This provision became a derogation from the common law (which required no such formality), the form required by the law for the valid conclusion of employment contracts being recently amended (again). Thus, after six years during which the Labour Code provided the essence of the employment contract, which had no effect unless concluded in writing according to Government Emergency Ordinance No 53/2017, amending and supplementing the Labour Code,9 the consensual form of the individual labour contract was reintroduced. As a result, only atypical employment contracts are currently concluded in writing. The law does not, however, stipulate the consequence of failure to conclude such contracts in writing: is the contract in that case null and void? Or is it valid, but considered to have been concluded for an indefinite period? By virtue of the civil law principle of upholding the contract,10 it is very likely that the contract will be deemed to have been concluded for an indefinite period, with only the provision on the contract’s duration being affected by the nullity. The same solution would also apply to the non-­ conclusion of other atypical contracts in writing such as part-time, temporary agency contracts or domestic work contracts. To regulate fixed-term work, the Romanian Labour Code introduced all three conditions laid down by Council Directive 1999/70/EC (although only ‘one or more of the following measures’ was required): a) It is compulsory to specify an objective reason from those expressly listed in Article 83 of the Labour Code, not only for the renewal of a fixed-term contract, but also for the conclusion of such a contract in the first instance; b) The contract must provide for a maximum duration of 36 months.11 As an exception, in case of replacement of an employee whose contract has been suspended, the contract will end when the suspension of the replaced employee’s employment contract has ceased to exist; c) A maximum number of three successive contracts may be concluded.12 As stated in case law, the mere agreement of the parties on the limited duration of the period for which the contract is being concluded is not sufficient;

9  Published in the Official Gazette of Romania, No 644 of 7 August 2017, approved by Law No 88/2018, published in the Official Gazette of Romania, No 315 of 10 April 2018. 10  According to Art 1.255(1) of the Civil Code (Law No 287/2009, republished in the Official Gazette of Romania No 505 of 15 July 2011): ‘Provisions contrary to the law, public policy or morality and not considered to be unwritten determine the nullity of the contract as a whole only if they are, by their nature, essential or if, in their absence, the contract would have not been concluded’. Therefore, the rule is partial nullity, the contract being upheld whenever possible. 11  Art 84(1) of the Labour Code. 12  Art 82(4) of the Labour Code.

702  Raluca Dimitriu the relevant aspects being the nature of the job and the genuineness of the justification provided by the parties.13 Fixed-term contracts may be exclusively concluded for the following reasons:14 a) b) c) d) e) f) g) h)

To replace an employee in case of suspension of his/her employment contract, unless that employee is participating in a strike;15 Increase and/or temporary change in the structure of the employer’s activity;16 Performance of seasonal activities;17 When it is concluded under statutory provisions issued to temporarily benefit certain categories of unemployed workers; Hiring a person who, within five years from the date of employment, will qualify for statutory retirement;18 Filling eligible positions within trade unions, employers’ organisations and non-governmental organisations for the period of the mandate; Employment of retired persons who, under the terms of the law, may supplement their pension with a wage; In other cases expressly provided for by special laws or for carrying out assignments, projects or programmes.

Of these reasons, the most commonly used (and the most vaguely defined by law), is the increase and/or temporary change in the structure of the 13 Timişoara Court of Appeal, civil section, decision No 622/R/2005, cited by A Ţiclea, Tratat de dreptul muncii. Legislaţie. Doctrină. Jurisprudenţă (Treatise on Labour Law. Legislation, Doctrine. Case law), 9th edn (Universul Juridic, Bucharest, 2015) 386. 14  Art 83 of the Labour Code. 15  In this case, the duration of the fixed-term contract may exceed 36 months. The date of termination of the contract in this case is that of the return of the replaced worker; therefore, the contract is concluded for an uncertain period. Moreover, as stated, even if a date of expiry of the contract was expressly provided, if the replaced worker returns earlier, the contract with the substitute worker shall cease. The employer has no obligation to maintain the substitute worker until the end of the term stipulated in the contract. (Bucharest Court of Appeal, Decision No 1393 of 27 April 2015, www.avocat-dreptul-muncii.eu/jurisprudenta_muncii. php?id=416). 16  In case law, however, it was stated that ‘the fluctuation relating to the dynamics of the volume of activity inherent in any production activity, is not circumscribed by the exceptional nature of the condition provided by Art 83 b of the Labour Code’. (Bacău Court of Appeal, Decision No 135 of 27 January 2016: www.avocatura.com/speta/476926/actiune-in-consta tare-curtea-de-apel-bacau.html#ixzz4lao7ILH5). 17  Legal literature has proposed de lege ferenda, using the phrase ‘work that is temporary by its nature’, which would be more flexible than the strict reference to seasonal work. See IT Ştefănescu, Tratat teoretic şi practic de dreptul muncii (Theoretical and Practical Treatise on Labour Law), 4th edn (Universul Juridic, Bucharest, 2017) 562. 18  This rule is designed to support the reintegration of people into the labour market who are at the end of their careers. We note, however, that similar rules contained in special laws were regarded by the Constitutional Court as being discriminatory. And even this text was described in legal literature as affecting the principle of non-discrimination on the grounds of age. See O Ţinca, ‘Comentarii referitoare la discriminarea pe criteriul vârstei în raporturile de muncă’ (‘Commentary on discrimination based on age in employment relationships’), Dreptul (The Law) issue 8, pp 72–84, 2009.

Atypical Employment Relationships: The Position in Romania 703 employer’s activity. Up until 2011,19 the Labour Code prescribed a stricter condition, ie an increase in the employer’s activity.20 The amendment extended the scope to situations in which the employer could base its decision to conclude fixed-term employment contracts on unpredictability in business, especially in the development of a long-term business plan. As a result of this extension, this text can be invoked both in times of growth and in periods of declining activity, as well as in periods when the activity remains quantitatively the same, but changes in terms of structure. The concept of ‘temporary change in structure’ is not defined in legislation and can, in fact, cover (almost) any change in the employment policy decided on by the employer. Consequently, beyond the appearance of the requirement of Article 83 of the Labour Code, fixed-term employment contracts may be concluded in countless situations, which creates conditions to multiply the circumstances for concluding such contracts in the future. B.  Lawful Stipulation of the Contractual Terms According to Article 82(4) and (5) of the Labour Code: The same parties may successively conclude no more than three individual employment contracts of limited duration. Individual employment contracts of limited duration concluded within three months from the termination of a fixedterm employment contract are considered consecutive and cannot be longer than 12 months each.21

Article 84(1) states that the duration of such an agreement may not exceed 36 months, and the question was raised whether all subsequent contracts would be framed within this period, or only the first.22 Currently, practice and doctrine affirm that the time-limit of 36 months applies only to the first contract, with the possibility of subsequently concluding two more successive contracts which may not exceed 12 months. This consequently implies

19 

When amending Law No 40/2011 was introduced. shown, ‘growth is reflected unequivocally in the economic and financial parameters of the employer, and in the event of a conflict between the parties, the employer is required to submit evidence in his defence, which does not exclude the right of the employee to come up with his own evidence, claiming otherwise.’ (Constitutional Court, Decision No 409/2006, published in the Official Gazette of Romania, No 510 of 13 June 2006). 21  In practice, one court noted: ‘To the extent that an employer uses the same individuals several times over a short period of time to conclude fixed-term contracts for the same activity, it is assumed that in reality, the employer permanently needs the position held by that employee, the temporary nature being virtually simulated.’ Iaşi Court of Appeal, Division of Labour Disputes and Social Insurance, Decision No 825 of 7 July 2009, decision cited by IT Ştefănescu, Tratat teoretic şi practic de dreptul muncii, (Theoretical and Practical Treatise on Labour Law), 4th edn (Universul Juridic, Bucharest, 2017) 567. 22  Prior to the amendment of the Labour Code by Law No 40/2011, three successive contracts could be concluded, but they could not total more than 24 months. 20  As

704  Raluca Dimitriu that an employment relationship based on fixed-term contracts may have a maximum duration of five years.23 Difficulties have arisen in the interpretation of Article 82(3) of the Labour Code, according to which a fixed-term employment contract may be extended beyond its initial end date, with the written agreement of the parties and provided there is an objective reason, for the period of the implementation of a project, programme, or work assignment. Is this extension subject to the limitation of maximum three successive fixed-term contracts? Generally, the answer is no. It is thus acknowledged that if fixed-term contracts are concluded to complete a project, programme or work assignment, they may be extended as needed, without being subject to restrictions on the maximum duration of the contract, or to the maximum number of successive contracts.24 Theoretically, a distinction25 is made between extending a contract (which should occur before the date of expiry of the contract) and the conclusion of a new contract consecutively to the first (which occurs after the first contract has expired, but not later than three months thereafter). In other words, Article 82(3) contains an exception to the general rules on the conclusion of fixed-term contracts, although its wording is not very precise (it is unclear what the term ‘project, programme or work assignment’ actually means). The conclusion of fixed-term contracts outside the legal limitation (ie more than three successive contracts, for a longer period or for a reason other than those exhaustively laid down by the law) will lead to the judicial classification of the contract as one of indefinite duration.26 In other words, the contract is valid, but the duration clause will be void and replaced with the general rule, namely that the contract was concluded for an indefinite period.

23 IT Ştefănescu, Tratat teoretic şi practic de dreptul muncii (Theoretical and Practical Treatise on Labour Law), 4th edn (Universul Juridic, Bucharest, 2017) 568; A Ţiclea, Tratat de dreptul muncii. Legislaţie. Doctrină. Jurisprudenţă (Treatise on Labour Law. Legislation, ­Doctrine. Case law) (Universul Juridic, Bucharest, 2015) 387. 24  This led some authors to argue that ‘by providing a lax and somewhat equivocal formulation on the conclusion of employment contracts for projects, etc., one may resort to fixed-term contracts any time. … What has fundamentally changed the physiognomy of fixed-term contracts is that they may be renewed indefinitely beyond the maximum period of 36 months laid down by law. The fact that the extension of contracts takes place on the basis of the written consent of the employee is a fragile guarantee for the achievement of the legal protection of the right to work.’ A Athanasiu, Codul muncii. Comentariu pe articole. Actualizare la vol. I–II (The Labour Code. Comments by arts. Update to vol. I–II) (CH Beck, Bucharest, 2012) 74. 25  See IT Stefanescu, Tratat teoretic şi practic de dreptul muncii, (Theoretical and ­ Practical Treatise on Labour Law), 4th edn (Universul Juridic, Bucharest, 2017) 568; R Dimitriu, ­Consilier—Codul muncii (Adviser—the Labour Code) (Rentrop & Straton, Bucharest, 2015) D 30/004. 26  See, eg Dolj Court, civil sentence No 353 of 27 January 2015: www.jurisprudenta.com/ jurisprudenta/speta-vwwh08c/; Suceava Court of Appeal, Decision no 572 of 25 June 2015, www.rolii.ro/.

Atypical Employment Relationships: The Position in Romania 705 C.  Termination/End of Fixed-Term Contracts The expiry of the fixed-term contract, or the return of the worker who was replaced, entails a termination of the fixed-term employment contract according to Article 56 (i) of the Labour Code. As this is a cessation de jure (încetare de drept), no dismissal procedure needs to be followed, and no notice needs to be given. In the case of unlawful dismissal of a fixed-term worker (ie prior to the expiry of the term), he/she will be entitled—like any other employee—to challenge the dismissal in court, requesting compensation and even reinstatement. If on the date of the irrevocable judgment of the court the expiry date of the contract has passed, the court will no longer be able to order reinstatement (because the post no longer exists), and compensation will be calculated by reference to the period until the expiry of the contract. Prior to August 2017, the employment contract would have been effective only if it had been concluded in writing. Currently, as a result of the amendment of the Labour Code by Government Emergency Ordinance No 53/2017, this rule has changed.27 By way of exception, in the case of fixed-term contracts (as well as other atypical employment contracts), the law continues to require the written form. Thus, Article 82(2) provides that ‘the employment contract may only be concluded in written form, expressly specifying the duration for which it is concluded’. A fixed-term contract cannot be considered to have been renewed if the employee continues to work although his/her contract has expired because the provision on the duration of the contract is required by the law ad validitatem. On the other hand, due to the new Labour Code amendment, an unwritten contract of indefinite duration may have been concluded between the parties (one that produces effects on the basis of the current consensual nature of the employment contract). The work carried out by the employee after the expiry of the contract will be considered undeclared work, the consequence being administrative sanctions stipulated in the Labour Code.28 If a fourth successive contract29 is concluded for the same position, but in accordance with the requirement of the written form, only the duration 27  the last sentence was removed from Art 16(1), namely: ‘the written form is mandatory for the valid conclusion of the contract’. 28  According to Art 260(1)(e) of the Labour Code, as amended by Emergency Ordinance No 53/2017, requesting an individual to work without concluding a contract of employment in writing shall be sanctioned with a fine of LEI 20,000 for each identified unregistered worker. The fine cannot exceed 200,000 lei in total. Prior to the amendment in August 2017, the Labour Code provided a dual system: an administrative sanction for fewer than five undocumented workers and criminal proceedings for five or more undocumented workers. The new regulation eliminates the penal sanction and tightens the administrative sanction, which is considered to be more effective. 29  In violation of the provisions of Art 82(4) of the Labour Code, which prescribes a limit of three successive contracts.

706  Raluca Dimitriu clause will be null and void and automatically replaced by the legal provision. Consequently, the contract will be valid, but will be deemed to have been concluded for an indefinite period.30 D.  Rights and Status of Fixed-Term Worker (i)  Equal Treatment As regards fixed-term workers’ employment and working conditions, they shall not be treated less favourably than comparable permanent employees (salariat comparabil) simply because of the duration of their employment contract, except in cases where a difference in treatment is justified on objective grounds. A comparable permanent employee is defined by law as an employee whose employment contract has been concluded for an indefinite period and who performs the same or a similar activity in the same unit, due regard being given to qualifications/professional skills. If no comparable employee with an employment contract of indefinite duration exists within the same establishment, the provisions of the applicable collective labour agreement shall be taken into account or, in the absence of such an agreement, the legal regulations in the given field.31 The current expression of the principle of equal treatment was introduced by Law No 40/2011, which amended the Labour Code.32 In general, Romanian labour legislation provides a legal regime for fixed-term workers similar to that of workers with contracts of indefinite duration. The dismissal procedures are the same; fixed-term workers are taken into account in the classification of a redundancy as a collective dismissal; wages and training must be equal, etc. Likewise, collective rights are exercised by employees with both fixed-term and open-ended contracts. ­Moreover, collective bargaining is mandatory if the establishment has more than 21 employees,33 regardless of the duration of the workers’ contracts. There are, however, some differences: —— The maximum probation period differs for fixed-term and open-ended contracts. A shorter probation period, proportionate to the ­duration

30  See R Dimitriu, Dreptul muncii. Anxietăţi ale prezentului (Labour law. Anxieties of the present) (Rentrop & Straton, Bucharest, 2016) 100. 31  Art 87 of the Labour Code. 32  Prior to that, it was only stipulated that ‘unless otherwise provided by this Code, legal regulations and those contained in collective labour agreements applicable to employees with an employment contract of indefinite duration apply equally to employees with an employment contract of limited duration’. 33  According to Art 129(1) of Social Dialogue Law No 62/2011, republished in the Official Gazette of Romania, No 625 of 31 August 2011.

Atypical Employment Relationships: The Position in Romania 707 of the contract, is used when hiring an employee on a fixed-term contract;34 —— A number of social insurance benefits are conditional on earning an income for a certain period prior to the occurrence of the situation in which insurance applies.35 (ii)  Employment Opportunities According to Article 86(1) of the Labour Code, employers must inform fixedterm workers about current or future vacancies that correspond to their particular professional background and ensure access to such jobs under equal terms with employees with an open-ended contract. This information shall be issued by notice displayed at the employer’s headquarters. Information not only on existing vacancies must be shared with fixed-term workers, but also on jobs that will eventually become available (for e­ xample, if an employee with an open-ended contract communicated his/her intention to resign in the future). The law does not establish a priority for the fixed-term employee to be hired to fill the vacancy; only the employer’s obligation to inform the fixedterm employee thereof. According to paragraph (2) of Article 86, a copy of this notice shall be immediately forwarded to the trade union or employee representatives. This provision in the legal literature was deemed as being fairly formal, since the notice must already be displayed at the employer’s headquarters.36 (iii)  Other Matters Employees with a fixed-term contract essentially have the same rights as those employed for an indefinite period. In addition, when the law indicates a certain threshold for the recognition of certain rights, it does so without distinguishing between employees who have concluded a fixed-term or an open-ended contract. For example, a collective dismissal is defined37 by reference to the total number of employees, irrespective of their type of contract.

34 

Art 85 of the Labour Code. Eg, only persons who in the two years preceding the date of the birth of a child earned an income for at least 12 months, benefit from parental leave and child care allowance (Art 2 of Government Emergency Ordinance No 111/2010 on parental leave and indemnity, published in the Official Gazette of Romania, No 830 of 10 December 10 2010). 36 M Volonciu, ‘Contractul individual de muncă pe durată determinată’ (‘The individual employment contract on a limited duration’) in A Athanasiu et al, Codul muncii. Comentariu pe articole, vol I (The Labour Code. Comments by article, vol I) (CH Beck, Bucharest, 2007) 468. 37  In Art 68 of the Labour Code. 35 

708  Raluca Dimitriu E.  Information and Consultation Information and consultation of employees is subject to Law No 467/2006 on establishing the general framework for information and consultation of employees,38 which does not differentiate in any way between employees with a fixed-term and an open-ended contract. F.  Specific Provisions Although no explicit provision exists in this respect, if the employer is a legal person which has established itself for a fixed term, the employment contracts concluded by it will be for a fixed term as well. Beyond the general rules applicable to fixed-term contracts as provided by the Labour Code, there are a number of special laws that set out exceptional situations in which fixed-term contracts may be concluded occasionally, to encourage employment of certain categories of vulnerable persons. Thus, for example, Law No 72/2007 on stimulating employment of pupils and students39 provides for the possibility to conclude contracts of employment during school holidays, with the state paying a monthly financial incentive. Other legal provisions limit the duration of the employment contract associated with the employee’s training. Law No 279/2005 regulates ­periods of traineeships and apprenticeships.40 Finally, other regulations cover certain categories of fixed-term employees in relation to the nature of their professional activity. Thus, for example, fixed-term contracts may be concluded by: —— Navigation personnel, according to Government Ordinance No 42/1997;41 —— Doctoral students, who may be employed in universities for a limited period according to the Law of National Education No 1/2011;42 —— Retired university staff, who can be maintained in the university based on fixed-term contracts of one year,43 etc. Some of these (many) special laws allow for the conclusion of fixed-term contracts, practically without any restrictions. For instance, Government Ordinance No 42/2004 on the organisation of sanitary veterinary and food

38  Published in the Official Gazette of Romania No 1006 of 18 December 2006. The law transposed Directive 2002/14/EC, establishing a general framework for informing and consulting employees in the European Community. 39  Published in the Official Gazette of Romania No 217 of 30 March 2007. 40  Published in the Official Gazette of Romania No 498 of 7 August 2013. 41  Republished in the Official Gazette of Romania No 210 of 10 March 2004. 42  Published in the Official Gazette of Romania No 18 of 10 January 2011. 43  Art 289(3) of the Law of National Education No 1/2011.

Atypical Employment Relationships: The Position in Romania 709 safety activities44 provides45 that fixed-term contracts in this sector may be extended, if the parties mutually agree, for as long as the circumstances under which they were concluded continue to exist, until a new employment contract is concluded following the arrangement of a competition.46 With respect to this piece of legislation, the Court of Appeal Craiova (Romania) submitted a request to the Court of Justice of the European Union for a preliminary ruling in Case C-614/15 Rodica Popescu v Direcţia Sanitar Veterinară şi pentru Siguranţa Alimentelor Gorj.47 The Court of Justice of the European Union ruled that the provisions of Directive 1999/70 must be interpreted as precluding national regulations, such as those at issue in the main proceedings, under which the renewal of successive fixed-term work in the public sector is deemed justified by ‘objective reasons’ within the meaning of that clause of the Framework Agreement on the sole ground that inspections performed by staff employed in the veterinary health sector are temporary in nature due to the variations in volume of activities of the establishments to be inspected, unless the renewal of those contracts was actually aimed at covering a specific need in the relevant sector, without the underlying reason being budgetary considerations, which it is for the national court to verify.48 This ruling will also have an impact on other legal acts of the same type, because when regulating employment relationships in the public sector, the legislator might resort to derogations from the restrictive rules of the Labour Code concerning the conclusion of fixed-term contracts. For example, Emergency Ordinance No 48/2016 amending and supplementing ­certain acts in the field of culture49 allows50 for the conclusion of fixed-term 44  Published in the Official Gazette of Romania No 94 of 31 January 2004, subsequently amended. 45  In Art 19(4). 46  For instance, by sentence No 1742/2015, the Gorj Court, under this special law, dismissed the request to re-classify a fixed-term contract as an open-ended contract, although the work was performed for the same job for 96 months (www.rolii.ro/). 47  In this case, Mrs Popescu was employed as a veterinary assistant at the Veterinary Sanitary Direction under a fixed-term employment contract from 14 May 2007 to 31 December 2007. This contract was subsequently the subject of seven successive renewals, each for a period of one year. Under that contract, Mrs. Popescu worked uninterruptedly in the same job, performing the same tasks. The questions referred to the Court of Justice of the European Union were: 1) Is the fact that the activity of the staff specifically responsible for inspections in the ­veterinary health sector is intrinsically linked to the continuation of the activity of this type of establishment sufficient grounds for the repeated conclusion of fixed-term contracts, by way of derogation from the general rule adopted in order to transpose Directive 70/1999? 2) Does the retention in national legislation of special provisions permitting the repeated conclusion, for a period such as that described, of fixed-term employment contracts in the veterinary health inspection sector constitute a failure to fulfil an obligation of the state when transposing Directive 70/1999? 48  The Court in a similar manner also established this in Case C-16/15 María Elena Pérez López v Servicio Madrileño de Salud of 14 September 2016. 49  Published in the Official Gazette of Romania No 689 of 6 September 2016. 50  In Art 13(4) and (5).

710  Raluca Dimitriu contracts without restrictions, arguing that due to the specific activity, fixedterm employment contracts can be concluded in derogation from the provisions of the Labour Code.51 G.  Collective Bargaining Agreements Deviating from Statutory Provisions The Labour Code, prior to its amendment by Law No 40/2011, made explicit reference to the possibility of specifying in collective labour agreements certain projects or programmes where fixed-term employment contracts could be concluded.52 However, any reference to the collective agreement was abolished. In this respect, the amendment of the Labour Code was the object of criticism in the legal literature.53 In principle, any derogation from the legal provisions is only possible for the benefit of the employee; for example, the provision allowing the conclusion of fixed-term contracts in a collective agreement in other situations than those expressly established by law is not applicable. Yet, even though it is not expressly provided by the law, nothing prevents a collective labour agreement from stipulating that fixed-term employment contracts may only be concluded for certain programmes or work assignments explicitly determined by the social partners. Collective agreements may only depart from the provisions of the law to the benefit of the employee, and any derogation in pejus is excluded. In practice, collective agreements do not contain special provisions for ­workers on fixed-term contracts, but all categories of employees fall under the same regime. However, the Labour Code refers to collective agreements with a view to defining the concept of comparable employee in relation to which the application of the principle of equal opportunities and treatment to fixed-term workers is considered. It is thus provided that when there is no comparable employee with an open-ended contract in the same unit, the provisions of the applicable collective agreement—or, in its absence, the legal regulations in the given field—are considered.54

51  According to this piece of legislation, employment contracts concluded for an indefinite period may be modified by mutual agreement of the parties into fixed-term contracts. Furthermore, the explanatory memorandum states that it is necessary for cultural institutions, due to the specific nature of their activities, to be able to conclude individual employment contracts for an indefinite or definite period, without imposing normatively any preference for any of these durations, in order to allow these institutions to have a higher share of individual employment contracts concluded for a fixed period than for an indefinite period. 52  Art 81 (e) of the Labour Code, according to the numbering at that time. 53  ‘Taking collective labour agreements out of the game represents a major shortage of professional and industrial democracy, a notable setback in the development of dialogue between the social partners’. A Athanasiu, Codul muncii. Comentariu pe articole. Actualizare la vol I–II (The Labour Code. Comments by article, Updates to vol I–II) (CH Beck, Bucharest, 2012) 78. 54  Art 87(3) of the Labour Code.

Atypical Employment Relationships: The Position in Romania 711 III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements According to Article 103 of the Romanian Labour Code, an employee who concludes a part-time contract (contract cu fracţiune de normă) is one whose normal working hours, calculated as a weekly or monthly average, is lower than the number of normal working hours of a comparable full-time employee (salariat cu normă întreagă). A comparable employee is a full-time employee in the same establishment, who has the same type of employment contract, performs the same or a similar activity as that of the part-time worker, taking into account other considerations as well, such as seniority and qualifications/vocational skills. If there is no comparable employee in the same establishment, then the provisions of the applicable collective labour agreement or, in the absence of such an agreement, the legal regulations in the given field, are considered. Initially, the Labour Code stipulated that the daily work covered in an employment contract must exceed two hours daily. Part-time employment contracts were thus only valid if they were concluded for a period of more than two hours per day and 10 hours per week. In 2006, the Labour Code was amended to allow for the conclusion of employment contracts for any daily working time.55 The law expressly provides that part-time contracts must be concluded in writing.56 As already noted, as a result of the amendment of the Labour Code by Government Emergency Ordinance No 53/2017, the standard employment contract no longer needs to be a formal contract. Therefore, the rule on concluding part-time contracts in writing has become derogatory. If the part-time contract is not concluded in writing, it will be deemed to have been concluded for full-time work (and will, in addition, entail administrative sanctions provided by law for undeclared work). The amendment to the Labour Code also addressed another aspect: the work carried out by part-time employees, in addition to the explicit mention of working hours in the contract, is sanctioned as a special case of

55 Concerning the calculation of part-time work in hours, not minutes, A Ţiclea, Tratat de dreptul muncii. Legislaţie. Doctrină. Jurisprudenţă (Treatise on Labour Law. Legislation, Doctrine. Case law) (Universul Juridic, Bucharest, 2015) 372. The reality is that the law-maker does not include any indication of the minimum hours of work, which resulted in very different views among employers, with some interpreting that this limit was implicitly one hour per day (for a working time below an hour a day, a civil contract is more appropriate). See, IT Ştefănescu, Tratat teoretic şi practic de dreptul muncii (Theoretical and Practical Treatise on Labour Law) (Universul juridic, Bucharest, 2017) 582. 56  Art 104(2) of the Labour Code.

712  Raluca Dimitriu undeclared work.57 In addition, Article 119 of the Labour Code was also amended by Government Emergency Ordinance No 53/2017, currently providing that the employer has the obligation to keep records of the hours worked by each employee on a daily basis, highlighting the start and end hour of the work programme, and to provide this record to labour inspectors, when required.58

The text hence initially required the employer to keep track of the parttime employee’s working hours, without specifying the daily hours worked. The change aims at making it possible to monitor the daily working hours, especially of part-time employees (who cannot provide overtime) as closely as possible. A part-time employment contract comprises the same elements as a fulltime one, but in addition, it states the hours of work and distribution of working hours, conditions under which the working hours can be modified, and the prohibition of overtime. If these additional elements are not specified in the individual part-time employment contract, the contract will be considered as having been concluded for full-time work.59 Notably, the law-maker took into account the provisions of the International Labour Organisation Convention No 175/1994 (although it has still not been ratified by Romania). B.  Opportunities for/Right to Part-Time Work Article 107 of the Labour Code requires the employer to take into account to the extent possible the requests of employees to be transferred from a fulltime to a part-time job or from a part-time to a full-time job or to increase

57  According to Art 15(d), introduced in August 2017, the work of an employee outside the work schedule established under part-time employment contracts constitutes undeclared work. Thus, a part-time worker will provide the working hours, eg, from 8:00 to 12:00. But what should the sanction be if the labour inspector finds the employee working at 14:00? In this regard, the practice of the regional labour inspectorates was divided: some considered this to contravene Art 260(1) (i) of the Labour Code: ‘non-compliance with the provisions on overtime’, while other inspectorates considered this to be undeclared work. The amendment to the Labour Code represents the latter approach. Government Emergency Ordinance No 53/2017 also introduced a special sanction for the use of employees beyond the fraction of the time specified in the contract. Thus, Art 260(1) (e) provides that requesting an employee to work outside the working hours established under the individual part-time employment contract is punishable with a fine of LEI 10,000 for each identified worker. 58 The rule was supplemented in 2018 by the law approving the ordinance, postulating that the employer must keep records of the hours worked daily by each mobile worker and employee working from home, under the conditions established in the written agreement, depending on the specific activity being carried out. 59  Art 105(2) of the Labour Code.

Atypical Employment Relationships: The Position in Romania 713 their working time should such an opportunity arise.60 It is also provided that ‘the employer shall ensure, to the extent possible, access to part-time jobs at all levels’. There are, however, certain categories of employees who under special laws are entitled to reduced working time, on occasion even without a corresponding reduction in pay. The main examples follow: a)

b)

c)

d)

Regular working hours for young people aged 16 (or 15 years if there is consent from their parents) to 18 are six hours per day and 30 hours per week.61 The legal provision is supported by a prohibition of overtime for young people up to the age of 18 years, established in ­Article 124 of the Labour Code; Employees who work in jobs with special conditions—laborious, harmful or dangerous—benefit from a reduction of the normal duration of working time to under eight hours a day,62 according to a Law that establishes the procedure for classifying these jobs as ones with special conditions and specific effects.63 Reducing the working hours to less than eight hours per day does not affect the employees’ salary and seniority. The reduced working time also does not affect the contribution period necessary for entitlement to social insurance rights;64 Night workers (performing at least three hours of work between the hours of 22.00 and 6.00) either have their working hours reduced by one hour compared to the normal working hours, without this leading to a lower basic salary, or benefit from additional pay of at least 25 per cent of the basic salary for each hour of night work performed;65 According to Article 13 of Government Ordinance No 96/2003 on maternity protection at the workplace,66 a pregnant employee who cannot perform activities for the duration of the normal working ­ time for health reasons based on the recommendations of the f­amily ­physician, is entitled to a reduction by 25 per cent of the normal

60  Which, in principle, corresponds to ILO Recommendation No 182— Part-Time Work Recommendation, 1994. 61  Art 112(2) of the Labour Code. 62  Art 1 para (1) of Law No 31/1991, published in the Official Gazette of Romania No 64 of 27 March 1991. 63  The criteria are: the nature of the harmful factors—physical, chemical and biological— and effects on the body; the intensity of the harmful factors or the combination of these factors; duration of exposure to harmful factors; working conditions involving great physical effort, an unfavourable microclimate, intense noise or vibration; working conditions involving great mental strain, very tense and multilateral attention or intense concentration and work rhythm; working conditions involving mental overload due to risk of injury or illness; the structure and level of morbidity in relation to the specific workplace; or other harmful, heavy or dangerous working conditions that can lead to premature deterioration of the body. 64  Art 1 para (2) of Law No 31/1991. 65  Art 126 of the Labour Code. 66  Published in the Official Gazette of Romania No 750 of 27 October 2003, subsequently amended.

714  Raluca Dimitriu

e)

f)

g) h) i)

j)

working hours, while maintaining the same wage, entirely on the employer’s payroll; Breast-feeding employees who are entitled to two nursing breaks of one hour each during working hours. The time necessary for commuting to and from the child’s location is included in these intervals. At the request of the employee, the nursing breaks can be replaced by a reduction of the normal duration of the working time by two hours daily;67 According to Article 19 of Government Emergency Ordinance No 158/2005 on leave and health insurance allowances,68 if the employee can no longer perform work for the normal duration of working time for health reasons, his/her physician may recommend a reduction of working hours; Employees who work during periods of extreme temperatures also benefit from a reduction of working hours;69 Employees who are caring for a dependent elderly person are, upon request, entitled to reduce their normal working hours by 50 per cent.70 Wages are paid in full, the difference being paid by the local budget; Third-degree disabled persons71 who are simultaneously receiving a pension and other wages may only be employed for up to 50 per cent of the normal working hours. If they take up a full-time job, they lose the right to a disability pension;72 Certain categories of personnel in the health sector (physicians working in health facilities, staff working in pathology, morphology and anatomy, radiology and radiation therapy, nuclear medicine, medicalpharmaceutical scientific research, etc) have a regular working day of six or seven hours a day.73

C.  Opportunities for/Right to an Extension of Working Time The employer has no actual obligation to transfer an employee from a parttime to a full-time job, but the employer is required to take such requests 67 

Art 17 of Government Emergency Ordinance No 96/2003. in the Official Gazette of Romania No 1074 of 29 November 2005, subsequently amended. 69  Extreme temperatures are considered to be above 37 degrees Celsius or below -20 degrees Celsius, according to Government Emergency Ordinance No 99/2000, published in the Official Gazette of Romania No 304 of 4 July 2000, subsequently amended. 70 According to Law No 17/2000 on social assistance for the elderly, republished in the Official Gazette of Romania No 157 of 6 March 2007, subsequently amended. 71  Third degree disability is characterised by loss of at least half the capacity for work, the person being still able to perform a professional activity. 72  Art 69(c) of Law No 263/2010 on the unitary pension system, published in the Official Gazette of Romania No 852 of 20 December 2010, subsequently amended. 73  According to Ministry of Health Decision No 245/2003, published in the Official Gazette of Romania No 217 of 2 April 2003. 68 Published

Atypical Employment Relationships: The Position in Romania 715 into account ‘to the extent possible’. Conversely, an employee does not have the obligation to take on such a job; a change in working time must be mutually agreed by the parties and by concluding an addendum to the employment contract.74 As is the case for fixed-term employees, the employer has the obligation to duly inform part-time employees on the availability of full-time jobs. This information shall be issued by a notice displayed at the employer’s headquarters. A copy of this notice must be immediately forwarded to the trade union or employee representatives.75 The employer, to the extent possible, must ensure access to part-time jobs at all levels,76 but this is more a desideratum than an imperative rule, as it is not accompanied by sanctions. Notably, Article 105(1)(c) of the Labour Code prohibits part-time employees from working overtime except in cases of force majeure or for other urgent work to prevent accidents or to minimise their consequences.77 As the workload often fluctuates, this prohibition may represent an additional obstacle in the way of internal flexibility. Emergency Ordinance No 53/2017 tightened the sanctioning regime for non-compliance with the work schedule included in the part-time employment contract. While there was so far no uniformity of opinion in the practice of territorial labour inspectorates—some sanctioned such a violation more harshly (as undeclared work), while others were less stringent (and considered it a violation of the working time regime)—the sanction is now expressly provided in the Labour Code: requesting an employee to work outside the working hours established in the individual part-time employment contract constitutes undeclared work and is sanctioned with a fine of LEI 10,000 for each identified person.78 D.  Rights and Status of Part-Time Worker (i)  Equal Treatment Part-time workers generally enjoy the same legal standing as full-time ­workers. As a result, the vulnerability of this category of workers is not necessarily legal but rather economic: their salary—in proportion to the work performed—may be insufficient to cover the costs of living. The principle 74 

Art 107(1) of the Labour Code. Art 107(2) and (3) of the Labour Code. 76  Art 107(4) of the Labour Code. 77 It is assumed that the eventual production or activity peaks are not considered here. See M Ioan, ‘Contractul individual de muncă cu timp parţial’ (‘The part-time employment contract’), Revista română de dreptul muncii (Romanian Journal of Labour Law) issue 4, p 80, 2006. 78 Art 260(1)(e) of the Labour Code, introduced by Government Emergency Ordinance No 53/2017. 75 

716  Raluca Dimitriu of equal treatment enshrined in Article 106(1) of the Labour Code provides that part-time employees enjoy the same rights as full-time employees under the conditions provided by law and the applicable collective labour agreements. The law prohibits discrimination against part-time employees, but equally does not encourage this type of employment (and, in general, flexible contractual arrangements) in any way, which might explain the lower number of part-time contracts compared with the European average. Part-time employees enjoy two categories of rights: —— Rights arising from their employee status, which are not likely to be granted proportionally: the right to equal opportunities and equal treatment, the right to dignity at work, the right to health and safety at work, the right to access to vocational training, the right to information and consultation, the right to take part in the determination and improvement of working conditions and the working environment, the right to protection in case of dismissal, the right to collective bargaining, the right to participate in collective action, the right to form a union or join a union, etc.79 Following the amendment of the Labour Code in 2011, the right to paid leave is no longer part of the category of rights granted in proportion to working time; only the right to adequate compensation is.80 Part-time employees are entitled to full annual leave. —— Rights that are granted in proportion to the actual time worked: the right to salary81 and other benefits which are granted pro rata temporis. Part-time employees who earn a lower salary than the national minimum wage pay social contributions on the salary they earn. Their employers have to pay the difference up to the level of the national minimum wage.82 It was thus intended that for every employee, irrespective of his/her salary, the level of his/her contribution could not be lower than the minimum wage. However, it has now become more costly for an employer to employ such a parttime employee because the employer will have to pay contributions that are not due for full-time employees. The problem lies not with employees who earn wages that, even as a fraction, exceed the minimum wage, but rather affects precisely the most vulnerable categories of employees.83 The contribution to the Unemployment Fund has a different legal status, yet has not generated any less controversy. According to Law No 76/2002 79 

Art 39(1) (d)–(n) of the Labour Code. Art 145(2) of the Labour Code. 81  Art 39(1) (a) of the Labour Code. 82  As a result of Government Emergency Ordinance No 3/2018, published in the Official Gazette of Romania No 125 of 8 February 2018. 83  These provisions do not apply to part-time employees who: 80 

a) are pupils or students up to the age of 26 years; b) are apprentices up to the age of 18 years;

Atypical Employment Relationships: The Position in Romania 717 on the unemployment insurance system and employment stimulation,84 the duration of the contribution period of part-time employees is determined in proportion to their actual working time. As a result, those who work less than four hours per day will not be entitled to unemployment benefits because they cannot accumulate the minimum contribution period required by law.85 However, as employees, they also pay unemployment insurance contributions. This provision was challenged before the Constitutional Court, considering that it is allegedly discriminatory; nonetheless, the Constitutional Court dismissed the appeal.86 (ii)  Dismissal Protection Part-time employees enjoy the same protection against dismissal as fulltime employees. In addition, their notice period has the same length, regardless of the number of their daily working hours. Thus, the terms of termination of the employment contract87 are applicable to all types of employment contracts, without distinction. However, as shown, after termination of the employment relationship, part-time workers will receive

c) a re persons with disabilities who by law are allowed to work less than eight hours a day; d) are pensioners, except those who benefit from service pensions and those who cumulate a public pension with pensions not integrated into the public pensions system; or e)  cumulate their working time from several employment contracts, thus earning a higher income than the national gross minimum wage. This legislative initiative built on an assessment of part-time employment contracts, noting that in many situations, workers are employed and paid for a part-time job, but in reality work eight hours per day. Frequently, as a form of tax evasion and underreporting of wages, these workers receive the salary difference ‘in an envelope’. However, issuing a legislative solution for a tax evasion problem, which is otherwise the responsibility of the fiscal control bodies, will presumably also affect the employers of regular part-time employees, who do actually work the number of hours provided for in the contract. The measure is likely to cause a substantial reduction in the number of part-time contracts concluded in Romania. 84  Published in the Official Gazette of Romania No 103 of 6 February 2002, subsequently amended. 85  According to Art 34 Law No 76/2002, unemployed persons receive unemployment benefits if they have contributed for at least 12 months during the preceding 24-month period on the date of filing the request for unemployment benefits. For persons with part-time employment contracts, the length of contribution is determined in proportion to their actual time worked, by cumulating the contribution periods made on the basis of their part-time contracts. 86  By Decision 789/2009, published in the Official Gazette of Romania No 562 of 27 July 2008, the Constitutional Court held that ‘the mere fact of contributing to the budget of unemployment insurance is not likely to equalise the situation of those who have worked a higher number of hours and thus are able to obtain unemployment benefits compared to those who worked fewer hours’. 87  Listed in Art 55 of the Labour Code: ‘termination by operation of the law, as a result of the parties’ agreement and as a result of the unilateral will of one of the parties.’

718  Raluca Dimitriu proportionately reduced unemployment benefits or may not even be entitled to unemployment benefits.88 (iii)  Other Matters With the exceptions set out above, part-time workers enjoy the same status as full-time workers. If the law provides for a certain threshold for the application of regulations, the number of workers, not their working hours, is included in the calculation. For example, a redundancy is considered a collective dismissal if it involves at least 10 employees (out of a total of 20 to 100 employees),89 and the fact that the 10 employees are part-time workers while full-time employees are not laid off is irrelevant. Another example is negotiations for a collective labour agreement, which are mandatory if the establishment has more than 21 employees, regardless of whether they are employed part time.90 E.  Information and Consultation Article 107(2) of the Labour Code provides that the employer is required to duly inform employees on the availability of part-time jobs and to facilitate the transfer of employees from one job to another in accordance with their interests. No priority is given to any category of employees. Law No 467/2006 on establishing a general framework for informing and consulting employees,91 transposing Directive 2002/14/EC, does not distinguish between full-time and part-time employees in terms of rights to information and consultation. F.  Other Part-Time Arrangements Given the absence in Romania of ‘very’ atypical employment contracts, such as the on-call contract, part-time contracts are often used to make the contractual relationship more flexible. In addition to the initial employment contract, part-time employment contracts—sometimes on a fixed-term basis—are concluded between the parties to allow activities to be carried

88  If, under Art 34 of Law No 76/2002, the employees did not achieve at least half of the contribution period during the last 24 months; in other words, if they did not, on average, work at least half of the normal working time (see n 85 above). 89  According to Art 68(1) (a) of the Labour Code. 90  According to Art 129 of Social Dialogue Law No 62/2011. 91  Published in the Official Gazette of Romania No 1006 of 18 December 2006.

Atypical Employment Relationships: The Position in Romania 719 out during peak periods.92 For example, a special regulation on part-time work can be found for doctors. According to the Law of Remuneration No 153/2017,93 physicians must conclude an individual part-time contract with the individual health care unit for any hours worked outside the legal working time and the normal work schedule.94 Physicians thereby benefit from ‘rights relating to on-call duty’, ie wages and bonuses related to their working conditions, which they are also entitled to in their normal work ­schedule.95 Part-time contracts are used to solve the problem of duty hours to be carried out by medical workers who do not have a contractual relationship with the clinic: they conclude a part-time contract with the health care unit for the activity performed in on-duty hours.96 In other situations, the activity is reduced below the normal working time without the contract itself being modified. For example, in case of a temporary reduction of activity for economic, technological, structural or similar reasons, the employer may reduce working hours from five days to four days per week for periods not exceeding 30 working days, with a corresponding reduction in salary, until the situation that caused this reduction is resolved, following prior consultation with the trade union representative at company level or employee representatives, as appropriate.97 This reduction of the work week from five to four days is stipulated in the Labour Code in the chapter dedicated to suspension of the contract, and not in the chapter on working time. As a result, the employer must issue a decision every week to suspend the employment contracts for one day and must issue a decision to resume work on the next day. Therefore, technically, the legislator does not perceive this allocation of hours as a reduction in the work schedule, but as a weekly suspension of the employment contract. This measure in the Labour Code is criticised in the legal literature

92  As regards working time, it must be noted that according to framework regulations on the freedom of work in multiple work schedules, Romania has transposed the Working Time Directive No 2003/88/EC per contract and not per worker, which makes it possible to conclude two employment contracts with the same employer. Thus, Art 35(1) of the Labour Code provides that any employee has the right to work for different employers or for the same employer on the basis of different employment contracts, with the appropriate salary for each of them. 93  Published in the Official Gazette of Romania No 492 of 28 June 2017. A similar provision was found in the previous regulation, namely Annex II, Chapter II, Art 3(2) of Law No 284/2010 regarding the unitary remuneration of the personnel paid from public funds, published in the Official Gazette No 877 of 28 December 2010. 94  Annex II, ch II, Art 5 of Law No 153/2017. 95  For an analysis of wage rights of doctors performing on-duty hours under part-time contracts, see V Rotilă (ed), Calitatea vieţii profesionale a salariaţilor din Sănătate; studii, analize şi demersuri privind unii dintre indicatori (Quality of professional lives of health care ­workers; Studies, analysis and approaches on some of the indicators) (Sodalitas, Bucharest, 2016) 57–59. 96  Annex II, ch II, Art 3(5) of Law No 153/2017. 97  Art 52(3) of the Labour Code.

720  Raluca Dimitriu in terms of the legislative procedure98 as being an unnecessary and burdensome bureaucratic obligation. Another case is the temporary interruption of activity when employees remain available to work, benefiting from an allowance of 75 per cent of their salary, but due to the reduction and/or interruption of the employer’s activity, they do not work.99 This situation is also regulated as a cause for suspension of the employment contract. According to Article 122(3) of the Labour Code, in periods of reductions in activity, the employer has the opportunity to grant paid time off which can be compensated by overtime provided by the employee over the next 12 months. This results in a temporary reduction of the working week, with subsequent compensation through overtime. G.  Collective Bargaining Agreements Deviating from Statutory Provisions The collective labour agreement concluded at national level for 2007–10 provided that employers had the obligation to grant pregnant employees up to 16 paid hours off per month for prenatal consultations.100 This was the last collective labour agreement of general application; since then, such a reduction in working time is only recognised to the extent that it is expressly provided for in the applicable collective agreement (at company level or at corporate group level). In practice, collective labour agreements rarely provide exemptions in terms of part-time contracts. As in the case of fixed-term workers, the law provides that where there is no comparable employee in the same undertaking, the provisions of the applicable collective agreement or, in its absence, the legal regulations in the given field are considered.101 IV.  TEMPORARY AGENCY WORK

A.  Legal Definitions/Formal Requirements Regulations on the temporary work agency and temporary agency contracts (contracte de muncă temporară) are found in the Labour Code (Articles 88–102); Government Decision No 1256/2011 on the operating conditions

98 A Athanasiu, Codul muncii, Comentariu pe articole, Actualizare la vol. I–II, (The Labour Code. Comments by article, Updates to vol I–II) (CH Beck, Bucharest, 2012) 50. 99  Art 53 of the Labour Code. 100  Art 17(3) of the Collective Labour Contract concluded at the national level 2007–10. 101  Art 104(4) of the Labour Code.

Atypical Employment Relationships: The Position in Romania 721 and the procedure for authorising temporary agency work;102 the Order of the Ministry of Labour, Family and Social Protection No 208/2012. Thus, Article 88(1) of the Labour Code defines temporary agency work as work performed by a worker who has concluded a temporary employment contract with a temporary work agency (agent de muncă temporară) and is made available to a user undertaking (utilizator) to work on a temporary basis under the management and supervision of the latter. Romanian citizens, as well as foreigners or stateless persons with a domicile or residence in Romania may be employed by a temporary work agency based on a valid work permit (autorizaţie de muncă) or stay permit (permis de şedere) for working purposes issued in accordance with the law.103 According to Article 94 of the Labour Code, a temporary employment contract is an employment contract concluded in writing between the temporary work agency and the temporary employee for the duration of an assignment (misiune). Until 2011, the law provided an exhaustive list of situations in which the worker could be sent on an assignment (similar to that in which fixed-term contracts could be concluded); currently, the law allows for the use of this type of contract for the performance of any ‘specific tasks of a temporary nature’. The duration of an assignment may be up to 24 months; it can be extended for successive periods provided it does not exceed 36 months in total.104 The temporary employment contract is an individual contract of employment and temporary workers are always considered employees. The temporary employment contract, in addition to the elements provided in any employment contract, must contain the conditions of the assignment, the duration of the assignment, the identity and location of the user undertaking, the wage and how the temporary employee is to be remunerated.105 If a temporary employment contract does not contain the above-mentioned specific details in addition to the general elements of a contract of employment, it is classified by the courts as a standard employment contract.106 In the temporary employment contract, a probation period may be established, its duration depending on the duration of the assignment.107 B.  Registrations, Licensing, and Financial Guarantees Operating conditions and the procedure for authorising legal entities to operate as temporary work agencies are regulated by Government Decision 102 

Published in the Official Gazette of Romania No 5 of 4 January 2012. Art 2(2) of Government Decision No 1256/2011. 104  Art 90 of the Labour Code. 105  Art 94(2) of the Labour Code. 106 Timiş Court, civil sentence No 2533 of 24 September 2015: www.rolii.ro/. 107  Art 97 of the Labour Code. 103 

722  Raluca Dimitriu No 1256/2011. Conducting activities specific to temporary work agencies without authorisation is sanctioned by a fine.108 To obtain authorisation to operate as a temporary work agency, the legal entity must meet a number of conditions. Among them is the requirement to be established as a legal entity with budgetary obligations paid in full and up to date, and not bankrupt or insolvent. According to Romanian law, the temporary work agency cannot be a natural person,109 which is not entirely consistent with the definition contained in Article 3(1)(b) of Directive 2008/104/EC on temporary agency work. The temporary work agency is required to set up a financial guarantee representing the equivalent of 25 times the minimum basic national gross wage,110 plus contributions due by the employer to the social insurance budget, the unemployment insurance budget and the budget of the National Unique Fund for Health Insurance. The financial guarantee may only be used by the temporary work agency for the payment of wages and social contributions.111 The operating permit is withdrawn if insolvency proceedings are initiated, or, as a sanction, if the temporary work agency has: a) b) c) d) e)

not respected the principle of equal treatment of temporary agency workers and employees recruited directly by that user; failed to keep records of the temporary agency workers and register them in the General Register of Employees; failed to notify the territorial agency for benefits of any changes regarding its name, registered office or the establishment of subunits without legal personality; failed to submit the operation permit, upon ceasing the service, to the territorial agency for social benefits; hired out to a user undertaking up to five workers without concluding a temporary employment contract. In addition, this offence is punishable by a fine. If the number of workers working without a contract is higher, it will no longer be considered just an offence but a crime.112

Although Romania has not yet ratified ILO Convention No 181/1997 on private employment agencies, Romanian regulations are generally ­consistent with those contained in the Convention.

108  LEI 10,000–30,000 (approximately EUR 2,220–EUR 6,650). Art 22(3) of Government Decision No 1256/2011. 109  Art 88(3) of the Labour Code defines the temporary work agency as a legal person. 110  LEI 47,500 (approximately EUR 10,550). 111  Art 5(1) and (2) of Government Decision No 1256/2011. 112  Arts 16 and 22 of Government Decision No 1256/2011.

Atypical Employment Relationships: The Position in Romania 723 C. Relationship between Temporary Agency Worker and Temporary Work Agency (i)  Fixed-Term and Part-Time Contracts Romanian law does not preclude the application of the legal regime of temporary agency workers to part-time or fixed-term employees. While, according to the general provisions of labour law, contracts of indefinite duration are the rule and fixed-term contracts are the exception, when it comes to temporary employment, the rule is to conclude contracts for the duration of one or more assignments. The temporary employment contract generally ceases at the end of the assignment(s) for which it was concluded. However, the temporary work agency and the employee may conclude an open-ended employment contract, in which case the temporary employee is available to work for the temporary work agency during the period between two assignments.113 In between assignments, the employee has access to the facilities of the temporary work agency in terms of training and has the benefit of the legal provisions on child care.114 Therefore, the employee works temporarily on assignments, which may last for a maximum of 24 months, while s/he can be employed indefinitely by the employer (temporary work agency), being hired out to different user undertakings for successive assignments. (ii)  Rights and Obligations/Liability Throughout the assignment, the temporary employee receives a salary that is paid by the temporary work agency. The salary received by the temporary employee for each assignment is determined by negotiation with the temporary work agency and may not be lower than the gross national minimum wage. The temporary work agency retains and pays the contributions and taxes owed by the temporary employee to the state, and pays all contributions due under the law. If, within 15 days of the date on which the payment obligations for the salary, contributions and taxes became due and payable, the temporary work agency fails to meet these, they will be paid by the user, based on a request from the temporary employee. The user who has paid the amounts owed by the temporary work agency is subrogated for the amounts paid to the rights of the temporary employee against the temporary work agency for payment.115

113 

Art 95 para (2) of the Labour Code. Art 20 of Government Decision No 1256/2011. 115  Art 96 of the Labour Code. 114 

724  Raluca Dimitriu As regards the subsidiary liability of the user for the payment of wages, in practice, the issue of the lack of legal standing to bring proceedings in court for failure to pay these has been addressed. If a temporary employee brings a court action against the temporary work agency, claiming non-payment of full wages, would the lack of (passive) capacity to participate in the trial be invoked, with the argument that the user should have first been requested to pay the salary? Courts have held that the right of the employee to request the user to pay the salary cannot deprive him/her of the ability to act—even in the absence of such a request—against his/her employer, the temporary work agency.116 Temporary work agencies are required to keep records and register temporary employment contracts in the General Registry of Employees, or be penalised by a fine. Temporary work agencies shall not charge temporary employees any fee for arranging their recruitment by a user undertaking or for concluding a contract of temporary employment.117 Failure to comply with this requirement is punishable by a fine. Article 95(2) provides that in between two assignments, the employee is ‘at the employer’s disposal’, but does not expressly stipulate the employer’s obligation to pay him/her during this time. In addition, the temporary agency worker, even when employed under an open-ended contract, does not have the right but the chance to be sent on an assignment, even if such an opportunity would arise for the temporary work agency. In other words, unlike a typical employer who can only suspend the contract for objective reasons (in the event of an interruption or a temporary reduction in activity), the temporary work agency may simply not send the temporary worker on an assignment for a period of time, and the latter is still under the obligation to remain at its disposal. The text of the law is unclear about the status of the employee in between assignments; in practice, the employee is often asked to file a request for unpaid leave. (iii)  Dismissal Protection According to Article 95(4), the temporary agency contract shall cease at the end of the assignment for which it was concluded or if the user renounces the services of the temporary worker before the end of the assignment, under

116  In that case, the temporary work agency defended himself by showing that he was not able to keep track of the actual working days of the temporary employee, other than those provided by the user, and if the temporary employee contested the timesheets, then he should take action against the user undertaking. The court admitted that the temporary work agency (and not necessarily the user undertaking) could be sued, but requested him to pay the salary entitlements that were consistent with the timesheets provided by the user (Satu Mare Court, civil judgment No 476 of 28 May 2015 www.rolii.ro/). 117  Art 102 of the Labour Code.

Atypical Employment Relationships: The Position in Romania 725 the terms of the hiring-out contract. The law does not expressly provide that these grounds for cessation are causes of automatic termination of the contract (de jure), but this seems to be the only possibility. Indeed, the end of the assignment by the user’s ‘renunciation’ of the temporary worker’s services cannot be a dismissal, since it is not a manifestation of the employer’s will. However, as a rule, the termination de jure of an employment contract should be applied for objective, not subjective reasons.118 In addition, the regulation as a whole is quite confusing: a temporary agency contract can also be concluded for several assignments (as stipulated in Article 95(1) of the Labour Code); therefore, the end of an assignment would not be a reason to automatically terminate the temporary agency contract. A temporary worker does not benefit from any form of protection in the event of termination of the assignment by renunciation of the user undertaking—a unilateral act which, in the absence of any legal rules limiting it, may be purely discretionary. The only reference contained in ­Article 95(4) is ‘the terms of the hiring-out contract’, yet not only is the worker not a party to this contract, but s/he has not necessarily been informed of its content. However, the practice is only in its infancy, and there is therefore no case law available on the issue. Article 100 of the Labour Code provides that a temporary work agency that dismisses the temporary employee before the end date provided in the contract of temporary employment on grounds other than disciplinary ones, must comply with the legal regulations on the termination of employment contracts for grounds not related to the employee. This wording is deficient because there are other types of dismissals, apart from disciplinary dismissals and terminations for reasons not related to the person of the employee.119 What the law-maker meant is that a temporary employee who is dismissed on grounds not attributable to him/her will be entitled to notice and subsequent unemployment benefits, just like a standard employee. D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship The legal literature does not provide a specific theoretical construction around the relationship between the temporary employee and the user 118  Art 56 of the Labour Code lists the causes of termination by law, without referring to the situation of the termination of the temporary worker’s assignment. However, the enumeration is not exhaustive; there are other cases of termination that are not listed. 119  For instance, dismissal due to physical and/or mental inability (Art 61 (c) of the Labour Code).

726  Raluca Dimitriu undertaking, confining itself to finding that no contractual relationship exists between the two. However, the development of certain nuances has been observed in both the legislation and doctrine. Thus, for example, the number of temporary workers is taken into account when setting the minimum threshold for electing employee representatives at the user undertaking.120 On the other hand, as regards vicarious liability, the existence of a certain relationship between the user undertaking and the temporary worker is acknowledged. Thus, as a rule, in the case of a standard employment contract, the employer will assume the position of principal and the worker, the position of the agent in relation to third parties. However, in the case of temporary agency work, it is not the employer who directs, supervises and controls, but the user undertaking. Therefore, as shown,121 the principal will not be the temporary work agency (the employer of the temporary worker), but the user undertaking. At the end of the assignment, the temporary worker and the user undertaking may conclude an employment contract; it is not possible to stipulate in the hiring-out contract any prohibition of the user undertaking hiring a temporary agency worker directly at the end of the assignment.122 Maintaining the temporary worker at work after the end of the temporary employment contract is considered undeclared work. The Labour Code currently has no provision on the fate of the legal relationship between the employee and the user in such a circumstance, ie keeping the temporary worker following the expiry of the temporary agency contract. However, as the standard employment contract has become consensual without writing (as of August 2017 when the Labour Code was amended by Government Emergency Ordinance No 53/2017), it will be possible to consider that a verbal work contract has been concluded between the parties, the worker maintaining the status of employee. (ii)  Rights and Obligations/Liability Although the temporary employee is not in a contractual relationship with the user undertaking, s/he enjoys a number of rights with respect to the latter. Thus, during the assignment, the user is responsible for the working conditions of the temporary agency worker. User undertakings of temporary agency workers have a number of obligations that aim to ensure equal treatment of temporary workers with its own

120 

Art 21 of Government Decision No 1256/2011. Lipcanu, ‘Unele reflecţii asupra reglementării răspunderii comitenţilor pentru prepuşi în noul Cod civil român’ (‘Some reflections on the regulation of the liability of the principals through agents in the new Romanian Civil Code’), Dreptul (The Law) issue 1, p 33, 2010. 122  Art 91(3) of the Labour Code. 121  E

Atypical Employment Relationships: The Position in Romania 727 employees and to ensure their right to information. Failure to comply with these obligations is punishable by a fine. Thus, the temporary agency worker has access to all the services and facilities provided by the user undertaking under the same conditions as the user’s other workers.123 The basic working and employment conditions related to working time, overtime, daily and weekly rest periods, night work, leave and public holidays and salaries applicable to temporary agency workers are, during the assignment to the user undertaking, at least those which would apply to workers directly recruited by the user undertaking for the same job. All basic employment and working conditions laid down by legislation, internal regulations, the applicable collective agreement and any other specific regulations applicable to the user undertaking are also directly applicable to temporary agency workers during the assignment.124 More specifically, the user of temporary agency workers has the following obligations:125 a)

b) c) d)

e)

To inform temporary agency workers about all existing vacancies to ensure equal opportunities with other workers to obtain a permanent job, by displaying a general notice in a place accessible to all employees working at that user undertaking; To ensure that the temporary agency worker has access to training courses organised for its employees; To make information on the use of temporary agency workers available to employee representatives within the framework of general information on employment; To ensure temporary agency workers have the same rights as workers employed by the user, whether provided by the law, internal regulations or collective agreements applicable to the user undertaking, as well as by any other specific regulations applicable to the user; To provide and present accurate and real information on the use of temporary agency workers when trade unions or, where appropriate, employee representatives, require information on the situation of employment of their own staff.

(iii)  Health and Safety During the assignment, the user is responsible for ensuring working conditions for the temporary agency worker and shall immediately notify the

123 

Art 92(1) of the Labour Code. Art 11(3) of Government Decision No 1256/2011. 125  Art 19 of Government Decision No 1256/2011. 124 

728  Raluca Dimitriu temporary work agency of any accident or occupational disease that has come to its knowledge of which a temporary worker hired out by the temporary work agency is the victim. If the assignment provided by the temporary work agency endangers the life and physical and/or mental integrity of the temporary employee, he/she is entitled to refuse the assignment. The employee’s refusal is made in writing and cannot constitute grounds for penalties or dismissal.126 E.  Relationship between Temporary Work Agency and User Undertaking The temporary work agency places at the disposal of the user undertaking an employee hired through a temporary work contract, under a hiring-out contract concluded in written form. The hiring-out contract shall include:127 a) b) c) d) e) f) g)

the duration of the assignment; the characteristics of the job, especially the necessary qualifications, the location in which the assignment will be carried out and the working hours; the actual working conditions; any personal protective equipment and working gear that must be used by the temporary employee; any other services and facilities available to the temporary agency worker; the amount of the fee received by the temporary work agency, and the remuneration to which the employee is entitled; the conditions under which the user can refuse a temporary agency worker hired out by a temporary work agency.

This is a contract of civil law; court proceedings regarding its performance are within the jurisdiction of the civil courts. F.  Rights and Status of Temporary Agency Worker (i)  Equal Treatment The basic conditions of work and employment relating to working time, overtime, daily and weekly rest periods, night work, public holidays and remuneration applicable to temporary employees are, throughout the duration of their assignment at a user undertaking, at least those which would

126  127 

Art 11(4) and (5) of Government Decision No 1256/2011. According to Art 91 of the Labour Code.

Atypical Employment Relationships: The Position in Romania 729 apply to the employees if they had been recruited directly by that user to fill the same job.128 Thus, the user undertaking must ensure temporary agency workers the same rights as those granted to their own employees, regardless of whether those rights are conferred by law, internal regulations or collective labour agreements applicable to the user undertaking, or any other specific regulations applicable to the user. Hence, temporary agency workers have access to all services and facilities provided by the user under the same conditions as its own employees, and the user undertaking must ensure the provision of personal protection and work equipment (unless the hiring-out contract expressly provides that the equipment is the responsibility of the temporary work agency). Likewise, the user must provide temporary employees access to training it organises for its own employees.129 According to Article 92(3) and (4), the salary of the temporary employee for each assignment cannot be lower than that of the user’s regular ­employees130 who perform the same job or one similar to that of the temporary employee. To the extent that the user has no such employee, the salary of the temporary employee will be determined taking into account the salary of a person employed under an individual employment contract providing the same job or a similar one, as established by the applicable collective labour agreement. This text was introduced by Law No 12/2015, amending the Labour Code.131 According to the previous formulation, the minimum wage of temporary agency workers were not the wages received by the regular employees of the user undertaking, but the national minimal wage. As stated in the legal literature,132 this provision did not comply with Article 5(1) in Directive 2008/104/EC, which expressly and imperatively enshrines the principle of non-discrimination against temporary agency workers. As a result, amending the text by inserting an explicit reference to the salary of a comparable employee of the user undertaking is consistent with the provisions of the Directive.

128 

Art 11(3) of Government Decision No 1256/2011. Art 92(1) of the Labour Code. 130  The Constitutional Court has ruled on the constitutionality of this text. According to the authors of the objection, by the use of the term ‘salary’ instead of ‘remuneration’, Parliament has not correctly transposed Directive No 2008/104 on temporary agency work, which in Art 3(1)(f)(ii) uses the concept of ‘pay’. However, the Constitutional Court held that since according to Art 3(2) of the Directive, ‘the provisions of this Directive shall be without prejudice to national law as regards the definition of pay’, the distinction claimed by the authors between ‘salary’ and ‘remuneration’ in the matter of equal treatment of temporary workers and the workers of the user undertaking is constitutionally irrelevant (Constitutional Court, Decision No 760/2014, published in the Official Gazette of Romania, No 91 from 3 February 2015). 131  Published in the Official Gazette of Romania No 52 of 22 January 2015. 132  A Athanasiu, Codul muncii, Comentariu pe articole (The Labour Code. Comments by article) (CH Beck, Bucharest, 2012) 90. 129 

730  Raluca Dimitriu All terms and conditions for working and employment established by legislation, internal regulations, the applicable collective labour agreement, and any other specific regulations applicable to the user are directly applicable to the temporary employees during their temporary work assignment.133 Failure to comply with these obligations is punishable by a fine. (ii)  Other Matters In the contract between the temporary work agency and the user undertaking, any clause prohibiting the employment by the user of the temporary employee after the end of the assignment is void.134 Nullity only affects the clause in question, without having effects on the validity of the entire hiring-out contract. If the user undertaking, following an assignment, hires the temporary employee directly, the duration of the assignment already completed is taken into account when determining the employee’s salary rights and other rights provided by labour law.135 G. Information and Consultation/Representation of Temporary Agency Worker The user of temporary employees must inform the employee about all existing job vacancies to ensure equal opportunities with its other employees who have open-ended employment contracts to obtain a permanent job, by displaying a general notice in a place accessible to all employees who carry out activities for that user.136 Additionally, the user must provide real and accurate information on the use of temporary employees, when this is requested by trade unions or, where appropriate, by representatives of the user’s staff.137 There is no obligation to inform temporary agency workers on the terms of the hiring-out contract, although some of them could affect them directly (such as, for example, the terms under which the user might renounce their services before termination of the assignment, under Article 95(4) of the Labour Code, with the consequence of termination of the temporary agency contract). According to Article 221(1) of the Labour Code, if there is no trade union in an establishment that has more than 20 employees, the right to information and consultation will be exercised by appointed representatives.

133 

Art 101 of the Labour Code. Art 91(3) of the Labour Code. 135  Art 98(2) of the Labour Code. 136  Art 19 (a) of Government Decision No 1256/2011. 137  Art 19 (e) of Government Decision No 1256/2011. 134 

Atypical Employment Relationships: The Position in Romania 731 Government Decision No 1256/2011 provides that the number of temporary employees will be taken into account in determining the minimum threshold of 20 employees for representatives to be elected at the user undertaking. H. Strikes A user undertaking can call on the temporary workers to perform any tasks of a temporary nature; the only legal restriction concerns the replacement of workers on strike. Thus, Article 93 of the Labour Code provides that the user cannot benefit from the work of temporary employees, if it thereby seeks to replace its own employees whose employment contracts are ­suspended due to participation in the strike. I.  Collective Bargaining Agreements Deviating from Statutory Provisions Collective labour agreements applicable to the user are equally applicable to temporary agency workers. Thus, according to Article 101 of the Labour Code, except if expressly provided otherwise, the provisions of collective agreements applicable to workers employed by the user undertaking shall equally apply to temporary agency workers during their assignment. The collective labour agreement concluded at the level of the temporary work agency is fully applicable to temporary employees. If a collective agreement exists at the level of the user undertaking and another one at the level of the temporary work agency, the temporary agency worker will be subject to the more favourable rights.138 Social Dialogue Law No 62/2011 does not make any distinction, requiring the mandatory initiation of collective bargaining for all employers with over 21 employees, and therefore also for temporary work agencies. However, in practice, collective labour agreements are rarely concluded in such agencies because, among other reasons, temporary workers are sent on assignments to different users, do not carry out activities together and usually do not even know one another, so it may be difficult for them to actually organise.

138  See M Volonciu, ‘Munca prin agent de muncă temporară’ (‘Work through a temporary work agency’) in A Athanasiu et al, Codul muncii. Comentariu pe articole (The Labour Code. Comments by article) (CH Beck, 2007) 518.

732

28 Atypical Employment Relationships: The Position in Russia NIKITA LYUTOV AND ELENA GERASIMOVA1

I. INTRODUCTION

I

T SEEMS THAT Russia’s labour law has shifted towards deeper ­fragmentation with the introduction of new special norms on different types of employment.2 The new regulations on remote work, professional athletes, academic staff and many other groups of employees have recently been included in the Labour Code of the Russian Federation (Трудовой кодекс Российской Федерации, ‘the Labour Code’)3 and other laws. From one perspective, these additional special norms allow consideration of the specificities of different types of employment. From another point of view, the fragmentation of legal regulations poses the threat of eroding the single protective foundation for employees. The distinction between employment and civil law relationships has also become more blurred.4 This concern is particularly relevant when discussing so-called atypical forms of employment relationships, such as fixed-term employment contracts, part-time work and temporary agency work.

1 We are grateful for the assistance from Ilona Voitkovskaya, LLM student at Kutafin ­ oscow State Law University, in identifying the relevant case law for this chapter. The views M expressed are not necessarily those of the ILO. 2  СЮ Головина, ‘Основания и пределы дифференциации в трудовом праве’ in Российское трудовое право на рубеже тысячелетий. Ч. 1 (Saint Petersburg, 2001) 79–80; ГС Скачкова, Расширение сферы действия трудового права и дифференциации его норм (Moscow, 2003); AM Лушников, ‘Проблемы дифференциации в правовом регулировании отношений в сфере труда’ in КН Гусов (ed), Проблемы дифференциации в правовом регулировании отношений в сфере труда и социального обеспечения. Мат-лы межд. науч. практ. конф. (Moscow, Prospect, 2009) 10–12. 3 Sobraniye Zakonodatelstva Rossiyskoy Federazii of 7 January 2002, No 1, Item 3. As amended by the Federal Law of 2 May 2014 No 116-FZ (Sobraniye Zakonodatelstva Rossiyskoy Federazii of 12 May 2014, No 19, Item 2321). 4  N Lyutov and E Gerasimova, ‘The Concept of “Employee”: the Position in Russia’ in B Waas and G Heerma van Voos (eds), Restatement of Labour Law in Europe. Vol I. The Concept of Employee (Oxford and Portland, Hart Publishing, 2017) 577–98.

734  Nikita Lyutov and Elena Gerasimova II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements According to Article 58 of the Labour Code, employment contracts may either be concluded for an indefinite term (трудовой договор на неопределенный срок) or with a maximum duration of five years (literally—‘for a fixed term of up to five years’ (fixed-term contract))5 (трудовой договор на определённый срок не более пяти лет (срочный трудовой договор)). However, the very fact that the two parties agree to conclude a fixed-term contract does not suffice. Such a contract may only be concluded if the employment relationship cannot be established for an indefinite period due to the particularities of the work or the conditions of its performance. Article 59 of the Labour Code provides an exhaustive list of situations in which it is permissible to conclude a fixed-term contract. The list of cases in which a fixed-term contract may be concluded in accordance with the mandatory regulations6 includes the conclusion of an employment contract for the substitution of an employee who is temporarily absent from work; the performance of short-term work for up to two months; seasonal work; persons assigned to work abroad,7 etc.8 The list of cases in which a fixed-term contract may be concluded if the parties agree to it9 includes the conclusion of an employment contract for work for a small business employing no more than 35 employees (or no more than 20 employees in the case of a retail business or domestic services); work by persons who have reached pension age,10 creative ­employees involved

5 

Further the term ‘contract for fixed- term work’ is also used. Art 59(1) of the Labour Code. 7  The maximum term of employment is three years (Art 338(1) of the Labour Code) with the right to renew it. 8  The performance of work which lies outside of scope of the employer’s usual activity (reconstruction, installation, initial and adjustment works, etc) as well as temporary (up to one year) expansion of production or service activity of the employer; employment in companies established for a temporary period or for the performance of work that is of a deliberately temporary character; employment of persons hired for deliberately temporary work when termination cannot be specified in advance by a specific date; performance of work associated with training or an apprenticeship or additional vocational training in the form of an internship; election for a specified term to an elective body or for paid work in an elective position as well as work that is directly linked to assisting the work of members of elective bodies or state or municipal officials, political parties or non-governmental organisations; employment of persons assigned by the state employment service to perform temporary or communal work; employment of persons assigned to perform alternative civil service, and some other cases directly prescribed in the Labour Code or other federal laws—see section II.F for further details. 9  Art 59(2) of the Labour Code. 10 The regular pensionable age is 55 years for women and 60 years for men, as established by Article 7(1) of the Federal Law ‘On labour pensions in the Russian Federation’ of 17 December 2001 No 173-FZ (Federalny Zakon ‘O trudovykh pensiyakh v Rossiyskoy 6 

Atypical Employment Relationships: The Position in Russia 735 in mass media, cinema production, theatre, circus and concert companies and other employees engaged in arts according to the list established by the Government of the Russian Federation;11 chief executive officers, their deputies and chief accountants; persons employed in second job (работа по совместительству);12 as well as other cases addressed in the Labour Code or other federal laws.13 In the cases established under Article 59(2) of the Labour Code (possibility to conclude a fixed-term employment contract if the parties agree to it), the agreement between the parties to conclude such an employment contract must be voluntary. As the Supreme Court of the Russian Federation has concluded, if it determines that the employee signed the fixed-term contract involuntarily, the Court shall consider such employment contract as having been concluded for an indefinite duration.14 However, the burden of proof of the involuntary inclusion of a fixed term in the employment contract lies with the employee. If the employee cannot prove that s/he was pressured into concluding a fixed-term employment contract, the courts will usually dismiss the employee’s claim.15 An employment contract that has been concluded for a fixed term in the absence of justifiable reasons will be considered to be a contract of indefinite duration.16 It is also prohibited to conclude employment contracts for a fixed term with the aim of circumventing the rights and guarantees

­ ederazii’) Sobraniye Zakonodatelstva Rossiyskoy Federazii of 24 December 2001, No 52, F part 1, Item 4920). 11  The list of such professions is contained in a special resolution of the Government of the Russian Federation and includes 189 professions. See: Postanovlenie Pravitelstva Rossiyskoy Federatsii of 28 April 2007 No 252 (Sobraniye Zakonodatelstva Rossiyskoy Federazii of 7 May 2007, No 19, Item 2356). Hereinafter, court cases are cited based on the ‘Consultantplus’ and ‘Pravo.ru’ databases. 12  Namely the combination of regular work and specified secondary work. 13  Other cases prescribed in Art 59(2) of the Labour Code include: persons who can only perform temporary work due to medical reasons according to an official medical statement; work in regions of the Far North and the territories with a status equal to the Far North, if the performance of such work requires a change of residence for the employee; emergency work that is aimed at preventing natural disasters, epidemics, epizootics, technical emergencies and catastrophes and dealing with the consequences of such events as well as other emergency situations; work of persons elected by competition to occupy a specific work position according to law; work of persons who are simultaneously in full-time education; and the crew of maritime and river ships. Some additional cases are addressed in section II.F. 14  Resolution of the Plenum of the Supreme Court of the Russian Federation ‘On the application by courts of the Russian Federation of the Labour Code of the Russian Federation’ of 17 March 2004 No 2 (Bulletin of the Supreme Court of the Russian Federation [Bulleten Verhovnogo Suda Rossiyskoy Federacii]. No 3, March 2004), para 13. 15 See, for example: Appeal Ruling of Court Collegium on civil cases of Perm Regional Court of 12 October 2016 in Case No 33-12381/2016; Ruling of Moscow City Court of 23 June 2016 in Case No 4г-4949/2016, and other cases. 16  Art 58(5) of the Labour Code.

736  Nikita Lyutov and Elena Gerasimova stipulated by law which permanent employees are entitled to.17 The Labour Code also requires employment contracts to be concluded in writing.18 B.  Lawful Stipulation of the Contractual Terms A general provision of the Labour Code19 is that any conditions included in the employment contract may not affect the employee’s rights or working conditions set down by law. Another article of the Labour Code20 lists the general rights and obligations of parties to the employment contract and states that the ‘non-inclusion of rights or obligations towards the employee in the text of the employment contract shall not be interpreted as the reason for denial of these rights and obligations’.21 This implies that if the parties to the contract did not include any of the mandatory provisions in the employment contract in accordance with Article 57 of the Labour Code, the contract itself will not generally be invalid, but will require the claimant to prove that the parties agreed on the terms. The duration of the fixed-term employment contract as well as the specific legal grounds for its conclusion (see Section II.A above) are listed in Article 57 of the Labour Code as mandatory conditions that must be included in the text of the employment contract. While it is obvious that the employer has the obligation to include information on the duration of the employment contract in the text, the consequences of breaching this obligation are less clear. In certain cases the courts consider that lack of such a provision in the text automatically classifies the employment contract as having been concluded for an indefinite term, even if there is evidence that the employee was willing to conclude the contract for a fixed term.22 In other cases, courts have stated that the most important factor to be taken into account is the parties’ actual will rather than adherence to the formal requirements.23 There are no legal limitations on the conclusion of successive contracts for fixed-term work, ie there is neither a maximum overall duration when adding all contracts together (each single fixed-term contract may not be longer than for five years in total), nor a maximum number of successive fixed-term contracts. However, the Supreme Court of the Russian F ­ ederation

17 

Art 58(6) of the Labour Code. Art 67 of the Labour Code. 19  Art 9(2) of the Labour Code. 20  Art 57 of the Labour Code. 21  Art 57(5) of the Labour Code. 22  Decision of Lipetsk Region Court of 25 April 2016 in Case No 33-1264/2016; Decision of the Court Collegium on Civil Cases of the Sverdlovsk Region Court of 2 November 2016 in Case No 33-19196/2016. 23  Pskov City Court of Pskov Region Decision of 2016 (exact date is unavailable) in Case No 2-833/2016, 2-5833/2015; Moscow City Court Ruling of 24 May 2016 No 4г-4658/2016. 18 

Atypical Employment Relationships: The Position in Russia 737 has asserted24 that courts may deem the employment contract to have been concluded indefinitely in cases of multiple successive short-term contracts for similar work. However, there is no clear explanation of the term ‘similar work’ or for ‘multiplicity’ of successive employment contracts and what is considered ‘short’ in such a case. The courts rarely rule in the applicant’s favour in the majority of cases in which employees claim that a successive conclusion of their fixed-term contract is in fact an attempt to conceal an employment contract of indefinite duration.25 The cases in which the consecutive conclusion of a fixed-term employment contract was deemed by the court to be proof of concealment of employment contracts of indefinite duration are exceptions rather than the rule.26 In one known case, the court used the consecutive conclusion of a fixed-term contract as a supplementary argument together with other evidence of the employment relationship’s permanent character (namely, the lack of reference to the ground for concluding a fixed-term contract, which is mandatory according to Article 57 of the Labour Code, see Section II.A above).27 The most arguable aspect regarding the conclusion of fixed-term employment contracts is the limitation of action. The majority of employees only claim that the inclusion of the fixed-term condition in their contract was made contrary to the requirements of Article 59 of the Labour Code at the time of dismissal. Regular labour disputes must be brought before the court within three months;28 for disputes on dismissals, the time limitation is even shorter at one month.29 There is no clear indication in the law when precisely this limitation to challenge the inclusion of a ground for the conclusion of a fixed-term contract starts, ie whether this period starts at the time of dismissal or at the time of inclusion of the term in the contract. In the latter situation, the employee usually would not have the possibility to dispute the dismissal due to the expiration of the term: the contract is usually concluded much earlier than three months before the dismissal. Some courts consider that the limitation period starts from the moment the contract is 24 

Supreme Court Resolution of 17 March 2004 No 2 (n 14 above), para 14. City Court Ruling of 24 May 2016 No 4г-4658/2016; Omsk Regional Court Ruling of September 28 2016 in Case No 33-9337/2016; Gagarinsky District Court of ­Moscow Decision of 31 October 2016 in Case No 02-6892/2016; Perm Regional Court ­Ruling of (exact date unavailable) 2016 in Case No 33-12381/2016; Court Collegium on Civil Cases of the Supreme Court of Udmurt Republic of (exact date unavailable) 2016 in Case No 33-4007/2016; Moscow City Court Ruling of 14 March 2016 in Case No33-8770/2016, and many others. 26  Sverdlovsk Regional Court Ruling of (exact date unavailable) 2016 in Case No 33-12125/2016; Labytnangi City Court Decision of 25 March 2016 in Case No 2-359/2016; Court Collegium on Civil Cases of the Samara Region Court Ruling of (exact date unavailable) 2016 in Case No 33-2099/2016. 27 Pskov City Court Decision of (exact date unavailable) 2016 in Case No 2-833/2016, 2-5833/2015. 28  Art 392(1) of the Labour Code. 29 Ibid. 25  Moscow

738  Nikita Lyutov and Elena Gerasimova concluded30 and therefore dismiss the employee’s claim, while others take the opposite approach and count this period as starting from the moment of dismissal.31 Case law on the time of commencement of the term for action in such cases is abundant and controversial, and it is very difficult to assert which approach is more common among the courts and judges. C.  Termination/End of Contract for Fixed-Term Work Fixed-term contracts may be terminated on the same grounds as employment contracts of indefinite duration. The employee has the right to terminate the fixed-term contract prior to its expiration with two weeks’ notice to the employer,32 as is the case when terminating a permanent contract of employment, and on the same grounds as when terminating a regular contract.33 In addition to common grounds for dismissal, fixed-term contracts may be terminated upon their expiration.34 In such a case, the employer has the obligation to issue three days’ notice of the contract’s expiration and of dismissal due to the expiration of the contract (except for cases of fixed-term contracts concluded to substitute for a temporarily absent employee). If the employer failed to issue such notice and the employee continues working and neither party objects to the continuation of work, the employment contract must be automatically considered as having been concluded for an indefinite term.35 An automatic conversion of the contract is applied in the cases provided in Article 59(2) of the Labour Code (see above), if the employment contract was concluded for a fixed term upon agreement between the parties. However, there is a lack of clarity in the cases established in Article 59(1) of the Labour Code, according to which it is not up to the parties to decide on the nature of the contract (whether it is fixed or indefinite). The courts usually rule that the breach of the employer’s obligation to issue a notice is not sufficient grounds for the reinstatement of the employee.36 In one notable case, even the lack of a written employment 30  Surgut City Court Decision of (exact date unavailable) 2016 in Case No 2-3264/2016; Basmanniy District Court of Moscow Decision of 25 January 2015 in Case No 02-0464/2016. 31  Appeal Ruling of Krasnoyarsk Regional Court of 30 March 2016 in Case No 33-3939/2016; Supreme Court of the Komi Republic Ruling of (exact date unavailable) 2016 in Case No 33-6502/2016; Elizov District Court of Kamchatskiy Kray Decision of 30 August 2016 in Case No2-2028/2016. 32  Art 80 of the Labour Code. 33  Grounds for dismissal are exhaustively listed in Art 81 of the Labour Code (list of general grounds) and some specific grounds are additionally listed in other articles of the Labour Code and federal laws. 34  Art 79(1) of the Labour Code. 35  Art 58(2) of the Labour Code. 36  See Volgograd Regional Court Appeal Ruling of 15 July 2016 in Case No 33-9695/2016; Sochi Central City Court Decision of (exact date unavailable) 2016 in Case No 2-2005/2016, and others.

Atypical Employment Relationships: The Position in Russia 739 contract (to substitute for a temporarily absent employee) did not prevent the court from deciding that the failure of the employer to issue a notice did not in itself imply a permanent contract of employment with the substitute worker.37 Some court decisions deem a dismissal of the employee who has concluded a fixed-term contract to be illegal.38 The courts do not even re-classify the fixed-term contract as one of indefinite duration in such cases, as required by Article 58(2) of the Labour Code. Fixed-term contracts have only been converted into contracts of indefinite duration in exceptional cases in accordance with this regulation,39 and in some cases, such decisions were taken in situations in which the conclusion of a fixed-term employment contract was mandatory.40 The provision of Article 58(2) does not seem to be applied very effectively by the courts, irrespective of the type of employment contract. D.  Rights and Status of Fixed-Term Workers (i)  Equal Treatment Formally, the majority of fixed-term employees must be treated equally with other employees. The only difference is the additional ground for dismissal, ie the expiration of their employment contract.41 Special norms exist for employment relationships that are shorter than two months. These include the prohibition of a probation period (условие об испытании) in such contracts,42 the possibility of requesting such employees to work on holidays with their written consent and on the condition of double payment for such work,43 paid leave being calculated as two days’ leave for each month of work44 and shorter notice periods in case of termination on the employee’s initiative and in cases of redundancy and liquidation of the business (see Section II.E for further details). As a rule, fixed-term employees are not entitled to severance payment after dismissal.45 The same

37 

Abazinskiy District Court Decision of 12 August 2016 in Case No2-435/2016. City Court of Primorskiy Krai Decision of (exact date unavailable) 2016 in Case No2-702/2016. 39  Omsk Regional Court Appeal Ruling of 8 September 2016 in Case No 33-8093/2016. 40  The Supreme Court of Republic of Ingushetia Cassation Ruling of (exact date unavailable) 2010 (available at: http://docs.pravo.ru/document/view/16875726) (seasonal heating communal services employees); the Supreme Court of Republic of Bashkortostan Cassation Ruling of (exact date unavailable) 2011 (Кассационное Ruling Верховного Суда Республики Башкортостан) available at: http://docs.pravo.ru/document/view/23807942 (employees with fixed-term contracts according to the Federal Law ‘On defence’). 41  Art 77(2) of the Labour Code. 42  Art 289 of the Labour Code. 43  Art 290 of the Labour Code. 44  Art 291 of the Labour Code. 45  Art 291(3) of the Labour Code. 38  Fokino

740  Nikita Lyutov and Elena Gerasimova regulations apply to leave46 and dismissal notices47 for seasonal workers, though they are entitled to two weeks’ severance payment in the same situation48 and there is no prohibition on agreeing on a probation period. However, as long as the possibility of concluding a fixed-term employment contract puts a specific group of employees in a weaker position compared to other employees, the very existence of the possibility to conclude a fixedterm employment contract may be considered unequal treatment if other employees perform the same job under a contract of indefinite duration. One prominent case in this regard was a case examined by the Constitutional Court of Russia concerning employees who were entitled to an oldage pension. As already mentioned above, reaching pensionable age is one of the grounds for concluding a fixed-term employment contract if agreed by the parties (see above). Taking into account that ageing employees are in a weaker position on the labour market49 and that age seems to be the most common justification for discrimination against employees,50 it is not difficult to understand that in the majority of cases, such employees have no choice but to agree to a fixed-term employment contract. Nevertheless, the Constitutional Court in 2007 has refused to acknowledge this regulation as being discriminatory.51 It is worthwhile noting that in 1992, the Constitutional Court found that the regulation in the previous Code of Laws on Labour in Russia,52 which stipulated that using the reaching of pensionable age as a ground for dismissal on the employer’s initiative53 was ­discriminatory and incompatible with ILO Convention No 111. Although the special grounds for dismissal and the permissibility of concluding a ­fixed-term employment 46 

Art 295 of the Labour Code. Art 296 of the Labour Code. 48  Art 296(3) of the Labour Code. 49  For further details, see 5th Annual Legal Seminar of the European Labour Law Network (ELLN) ‘Labour Law in a Greying Labour Market: Challenges of Active Ageing’. Seminar Report (The Hague, 11–12 October 2012). Available on the ELLN site: http://www.labourlawnetwork. eu/frontend/file.php?id=317&dl=1. For the Russian situation, see: ТА Васильева, ‘Специфика дискриминации по признаку пола и правовых механизмов ее предотвращения’ [‘The Specifics of Age Discrimination and of the Legal Mechanisms Aimed at its Prevention’] in ТА Васильева (ed), Защита личности от дискриминации по признаку возраста: сборник документов [Protection of persons from the age discrimination: a collection of documents], (Iuriks, Moscow, 2010) 7–12. 50 See ВА Бизюков, ‘Социологическое исследование “Дискриминация в сфере труда: распространенность, формы и причины существования”’ (Tsentr sotsial’no-trudovykh prav, Moscow, 2008). Available at: http://trudprava.ru/expert/research/discriminsurv/565. 51  Opredelenie Konstitutsionnogo Suda Rossiiskoi Federatsii, ‘Ob otkaze v priniatii k rassmotreniiu zaprosa Amurskogo gorodskogo suda Khabarovskogo kraia o proverke konstitutsionnosti polozheniia stat’i 59 Trudovogo Kodeksa Rossiiskoi Federatsii’ (15 May 2007), No 378-O-P, Vestnik Verkhovnogo Suda RF (2007) No 6. 52 Art 33(1.1), Kodeks zakonov o trude Rossiiskoi Federatsii. Vedomosti Verkhovnogo ­Soveta RSFSR (1971) No 50 item 1007. This paragraph was rescinded by Federal Law (12 March 1992) No 2502-1 adopted after this Constitutional Court Ruling (see n 53 below). 53 Postanovlenie Konstitutsionnogo Suda RSFSR, ‘Po delu o proverke konstitutsionnosti pravoprimenitel’noi praktiki rastorzheniia trudovogo dogovora po osnovaniiu, predusmotrennomu punktom 1.1 stat’i 33 KZoT RSFSR’ (4 February 1992) No 2-P-Z, Vedomosti Soveta Narodnykh Deputatov i Verkhovnogo Soveta RSFSR (1992) No 13 item 669. 47 

Atypical Employment Relationships: The Position in Russia 741 contract are not strictly identical, there is a clear parallel between these two provisions. It seems that the Constitutional Court took a decision in 2007 that is contrary to its own approach of 1992. The provision of the current Labour Code on fixed-term contracts has been criticised in several academic publications.54 The main reasoning of the Constitutional Court in support of its approach was that the ground of ‘differentiation’ is not age but the additional source of income (ie the pension). It is difficult to agree with these arguments, not only because the old-age pension is very low in Russia, but also because any other sources of income are not considered legitimate grounds for concluding a fixed-term contract. It is therefore not surprising that the Constitutional Court judge specialising in labour law (Olga S Khokhriakova) has expressed her personal opinion, which is contrary to this decision.55 As long as fixed-term contracts are a more flexible tool that is convenient for employers, they will continue pressuring employees to conclude such contracts. In one of the Supreme Court’s cases56 on pilots and navigators, the employer was found guilty of discrimination for offering more favourable conditions of employment to the employee in exchange for the employee’s agreement to conclude a fixed-term contract. (ii)  Employment Opportunities There are no provisions in Russian law for supplementary norms aimed at balancing the opportunities of fixed-term and permanent employees. The only norms that can be considered an exception are shorter (three days) notice periods in case of voluntary termination of the contracts of shortterm57 and seasonal58 employees. E.  Information and Consultation There are no special regulations on information and consultation procedures for fixed-term employees. Such employees have the same representation rights as others and there are no special requirements for consulting and informing them separately, except for workers with a shorter notice period (three days in the case of short-term work59 and seven days in case of

54  КН Гусов, ‘Единство и дифференциация трудового права: некоторые вопросы’ in КН Гусов (ed), Проблемы дифференциации в правовом регулировании труда и социального обеспечения (Prospect, Moscow, 2009), 31–36. 55  Ibid. 56  The Supreme Court of the Russian Federation Ruling of (exact date unavailable) 2005 in Case No 5-В05-120. 57  Art 292(1) of the Labour Code. 58  Art 296(1) of the Labour Code. 59  Art 292(2) of the Labour Code.

742  Nikita Lyutov and Elena Gerasimova seasonal work60) for termination on the employee’s initiative and in case of redundancy and business liquidation. F.  Specific Provisions Beside the categories of employees explicitly mentioned in Article 59 of the Labour Code (see Section II.A above), the Labour Code stipulates that the employment contracts of certain categories of employees may be temporary. This is the case for: —— Staff of religious organisations;61 —— Deputy heads of state or municipal academic organisations (for a term that is no longer than that of the head of this organisation).62 It is up to the parties to the contract to decide on the term for: —— Employees of physical persons;63 —— Teaching64 and academic (scholarly)65 staff (both are subject to periodic ‘competition’ for their position, which in practice serves as an attestation of their qualifications); —— Professional athletes and trainers.66 G.  Collective Bargaining Agreements Deviating from Statutory Provisions It is illegal for collective bargaining agreements to deviate from the legislative provisions on fixed-term contracts. The plant-level collective agreement may contain provisions that are more favourable for employees than the applicable labour law regulations (ie the Labour Code, other legislation, higher-level collective agreements).67 III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements Article 91 of the Labour Code stipulates that the regular working time (нормальная продолжительность рабочего времени) shall not exceed 40 hours 60 

Art 296(2) of the Labour Code. Art 344(1) of the Labour Code. 62  Art 3336.2(3) of the Labour Code. 63  Art 304 of the Labour Code. 64  Art 332(1) of the Labour Code. 65  Art 336.1(1) of the Labour Code. 66  Art 348(2) of the Labour Code. 67  Art 41(4) of the Labour Code. 61 

Atypical Employment Relationships: The Position in Russia 743 per week, and further68 provides that certain categories of employees (under 18 years of age, employees with disabilities, and others, as well as those in certain types of work such as teaching, medical work and others) have reduced weekly working hours (сокращенное рабочее время). As a rule, such reduced working time is paid in the same amount as regular working time. Moreover, according to Article 93 of the Labour Code, the parties to the employment contract may agree to include the condition of part-time work in the contract (неполное рабочее время) at the time of entering into the employment contract or at any time thereafter. Payment is then due in proportion with the actual work performed. Another provision of the Labour Code deals with the so-called ‘combination of work’ (совместительство), which may be ‘internal’ or ‘external’,69 ie work for one or several employers, respectively. In the course of an ‘internal combination of work’ (внутреннее совместительство), an employee may sign an additional employment contract with the same employer but for a different position (which in practice may actually be for the same post but with a slightly different name) for a maximum of four hours a day and for no more than half of the normal weekly working time.70 For an ‘external combination of work’ (внешнее совместительство), there is no requirement that the job be different, and although the same limitation on the maximum duration of such combined work applies, there is no limit to the number of ‘additional employers’ which a regular employee may have. In reality this means that an employee who works for a corporation that carries out its activities through a number of legal entities may appear to be employed by different companies which are in fact, for all intents and purposes, one employer only. Such an employee’s real wage payment would be shared by these fictionally independent employers (legal entities affiliated with each other). Given that the minimum wage is very low, it is usually not particularly difficult for the employer to establish such a system. Given that labour law unlike civil law in Russia does not take into account the fact of legal affiliation of employers to each other, and does not have any similar scheme to the UK’s ‘associated employer’ concept or piercing the ‘corporate veil’,71 there seems to be no case law in which the employee has successfully proved 68 

Art 92 of the Labour Code. Art 60.1 of the Labour Code. 70  Art 284 of the Labour Code. 71 For a comparative review of the issue, see, for example: M Morin, ‘Labour Law and New Forms of Corporate Organization’ (2005) 144 International Labour Review 14–15. ­Russian research on multiplicity of employers can be found at: НЛ Лютов, ‘Права работников при смене собственника имущества организации: проблемы российского законодательства и нормы европейского союза’ (2008) 4 Российский ежегодник трудового права 467–94; АА Хаваяшхов, ‘Аффилированные лица в трудовом праве’ (2012) 4 Кадровик. Трудовое право для кадровика 8; AA Хаваяшхов, Множественность лиц на стороне работодателя: сравнительно-правовой анализ. Дисс. … к.ю.н., М., 2015; MM Харитонов, Множественность лиц на стороне работодателя. Научно-практическое пособие (М: Юстицинформ, 2011) 144. 69 

744  Nikita Lyutov and Elena Gerasimova abuse of his/her right to limitations on working time by the employer who uses fictitious ‘combination of work’ schemes. B.  Opportunities for/Right to Part-Time Work The employer has the obligation to grant employees part-time working hours (неполное рабочее время) on a daily or weekly basis upon request by: a pregnant employee, one of the parents of a child under the age of 14 years or of a child with disabilities under the age of 18 years, or by an employee who is taking care of a sick family member (with a medical statement).72 Only little case law is available on this issue, but in the rare cases when an employee contests his/her employer’s refusal to conclude a part-time work contract (when the mandatory requirements for the conclusion of a parttime employment contract are met), employees have mostly been successful, if they could prove that they belonged to one of the above-mentioned categories of employees.73 In other cases, the establishment of the part-time condition in the employment contract is subject to agreement between the parties. No case law was found for employers imposing part-time work on an employee without his/her consent. The explanation for this might be that at the time of conclusion of the employment contract, the employer (except in the cases covered Article 93(1) of the Labour Code mentioned above) is free to not conclude the contract at all, if no agreement on the total amount of working time is reached between the parties. A full-time employment contract can only be amended with the mutual consent of both parties. It is more likely that in situations in which the employer wants a full-time employee to work part time, s/he will threaten the employee with dismissal, which is illegal but quite difficult to prove. C.  Opportunities for/Right to an Extension of Working Time There are no special regulations on the employer’s obligation to offer a part-time employee full-time work or to extend the amount of his/her working hours. D.  Rights and Status of Part-Time Worker (i)  Equal Treatment Part-time employees are entitled to equal pay compared with other employees on the basis of the pro rata temporis principle. The Labour Code 72 

Art 93(1) of the Labour Code. Regional Court Appeal Ruling of 31 October 2013 in Case No 33-2641-2013; Omsk Regional Court Appeal Ruling of 20 November 2013 in Case No 33-7505/2013; ­Yaroslavl Regional Appeal Ruling of 3 August 2015 in Case No 33-4782/2015. 73  Kursk

Atypical Employment Relationships: The Position in Russia 745 s­ tipulates that part-time work cannot result in any limitations to the employee’s annual leave or to any of his/her other employee rights.74 However, employment contracts for secondary work (which is always part-time work with a working time of no more than four hours per day and no more than half of the working time or the regular working hours for this type of work or employment relationship75) are a widespread means for unequal treatment by employers. For example, the National Research University ‘Higher School of Economics’ provides additional payments to teaching staff for publication activities.76 To receive such payments, professors must have a full-time employment contract with the university. In our particular case, for example, we are both co-authors of this publication and we can both say that the University is our employer, but only one of us is entitled to receive additional payment for the publication activity, while the other is not. As case law shows, this factor can be successfully contested in the courts, but it seems that only one decision of this kind exists despite this widely spread system of discrimination in practice.77 (ii)  Dismissal Protection If the work for which a contract is concluded is an employee’s second job, s/he may be dismissed with two weeks’ notice and is not entitled to severance pay if that worker concludes an employment contract with another employer for a primary job.78 The type of work (secondary or primary job) must be specified in the employment contract. There is no employer obligation to eventually offer ‘secondary’ employees a contract to perform ‘primary work’ (основная работа) and there is no formal requirement for a ‘secondary’ employee to be employed in a ‘primary job’ elsewhere. There is case law involving employees who were dismissed because another person was hired in their position even though they were able and willing to continue working in those jobs despite becoming ‘primary work’.79

74 

Art 93(3) of the Labour Code. Art 284 of the Labour Code. 76 See Polozhenie ob akademicheskikh nadbavkakh federal’nogo gosudarstvennogo avtonomnogo obrazovatel’nogo uchrezhdeniya vysshego professional’nogo obrazovaniya, ‘Natisonal’niy issledovatel’skiy Universitet ‘Vysshaya shkola ekonomiki’ (Положение об академических надбавках федерального государственного автономного образовательного учреждения высшего профессионального образования ‘Национальный исследовательский университет ‘Высшая школа экономики’), adopted by the Academic Council of NRU HSE. 24 November 2017. Available at: https://www.hse.ru/docs/212898410.html. 77  Supreme Court of the Russian Federation Appeal Ruling of 6 April 2016 in Case No 2-АПГ16-2. 78  Art 288 of the Labour Code. 79  Supreme Court of the Republic of Khakassia of 2 August 2016 in Case No 33-2467/2016; Sverdlovsk Region Court Appeal Ruling of 12 July 2016 in Case No 33-11985/2016; Moscow City Court Appeal Ruling of 16 August 2016 in Case No 33-25754/2016. 75 

746  Nikita Lyutov and Elena Gerasimova E.  Information and Consultation There are no special regulations on information and consultation procedures for part-time employees. Part-time employees are entitled to the same consultation and information rights as other workers. In practice, they do not have much influence on the employer’s decision making, but Russian employees generally have inadequate information and consultation possibilities,80 and this is therefore not specific to this particular category of workers. F.  Other Part-Time Arrangements According to the Russian Labour Code, the ‘normal’ working time may not exceed 40 hours per week.81 This provision is in line with the relevant international labour standards. There are, however, special regulations allowing these limits to be extended. The Labour Code provides employers with the opportunity to establish a so-called ‘atypical working day scheme’ (режим ненормированного рабочего дня; ненормированный рабочий день),82 which means that the employer has the power to draw up a list of certain positions within the entity that may require the employee to ‘periodically’ (эпизодически, episodicheski)83 work ‘beyond the normal working time’. There are no clear limitations for the ­categories of employees who may be asked to work longer hours under this type of regime. Nor are there any restrictions on how many additional hours a worker may work, nor any guarantees for extra pay. The only provision in the Labour Code is that the employee should be offered three days’ paid annual leave.84 However, if the employee submits a claim of breach of

80 For more details, see: N Lyutov and E Gerasimova, ‘Chapter 13: Non-Trade Union Employees’ Representation in Russia’ in R Blanpain (ed), Workers’ Representation in Central and Eastern Europe. Challenges and Opportunities for the Works Councils System (New York, Wolters Kluwer Law & Business, 2013) 183–203; A Kashlakova, ‘Social Partnerships as a Means of Providing Labour Protection’ in V Lebedev and E Radevich (eds), Labour Law in Russia (Newcastle upon Tyne, Cambridge Scholars Publishing, 2014) 121–38. 81  Art 91 of the Labour Code. 82  Art 101 of the Labour Code. 83  No one knows what the ‘periodic’ character of work actually means. The Federal Agency on Labour and Employment (Rostrud), which performs labour inspections in Russia, issued an official letter in response to a request by non-governmental organisations on the interpretation of the requirements of Article 101 of the Labour Code, and specifically how many hours per day and times per week are not considered a breach of the ‘periodic’ nature of work. The answer was based on the notion that such additional work ‘may not be systematic’, ie this ‘response’ did not provide any further explanation at all. In practice, it fully depends on the discretion of the Labour Inspector. 84  Art 119 of the Labour Code.

Atypical Employment Relationships: The Position in Russia 747 the limitation of the ‘periodic’ character of the atypical working day scheme before court, the court is likely to rule in favour of the employee in such situations.85 There is no legislation in Russia that provides for shared work. Each post is held by one specific employee. The work may be performed in shifts,86 but each particular post is held by one specific employee at the specified time. No regulations on so-called ‘zero-hours’ work schemes exist, either. The working time (full time or in the case of part-time work, precisely specifying the number of working hours in comparison with regular working time, which in any case must be above zero hours) must be specified in the employment contract.87 If the employer fails to offer the employee work for the working hours specified in the employment contract, this may be considered work stoppage (простой). If this situation (work stoppage) is considered to be outside the parties’ control, the employee is entitled to two-thirds of his/her fixed salary for that period (no premium and other additional payments are calculated).88 If the work stoppage is the employer’s fault, the employee is entitled to two-thirds of his/her average wage in full (including all premium payments as well).89 G.  Collective Bargaining Agreements Deviating from Statutory Provisions It is illegal to deviate from the legislative provisions on part-time contracts in collective bargaining agreements. Any in favorem norms on part-time workers may not contradict labour legislation. However, the existence of such provisions in practice is unclear. IV.  TEMPORARY AGENCY WORK

A.  Legal Definitions/Formal Requirements Two terms are used in Russia’s Labour Code: ‘leased labour’90 (заемный труд)91 and ‘work of employees, assigned temporarily by the employer 85  Supreme Court of the Chuvash Republic Appeal Ruling of 27 April 2015 in Case No 33-1461/2015; Moscow City Court Ruling of 21 November 2016 in Case No 4г-11353/2013, and others. 86  Art 103 of the Labour Code. 87  Art 57 of the Labour Code. 88  Art 157(2) of the Labour Code. 89  Art 157(1) of the Labour Code. 90  Art 56.1 of the Labour Code. 91  No specific definitions exist to translate these terms. Some use the term ‘agency labour’ or ‘agency work’ when speaking of ‘zaemniy trud’, others use the term ‘leased labour’. We will use ‘leased labour’ and ‘leased work’ in this chapter.

748  Nikita Lyutov and Elena Gerasimova to other individuals or legal entities under a contract on the provision of labour by employees (personnel)’92 (работники, направляемые временно работодателем к другим физическим лицам или юридическим лицам по договору о предоставлении труда работников (персонала)). Regulations of such types of work were introduced by Federal Law No 116-FZ of 5 May 2014.93 The Law came into force on 1 January 2016. This Law is the result of several years of difficult debate following the introduction of the draft law on the prohibition of temporary agency work by pro-trade union deputies in the State Duma in 2010.94 For years before the introduction of the draft law, private temporary employment agencies had lobbied for temporary agency work to be regulated. The draft law on temporary agency work was finalised in 2004, but did not enter into force for several years.95 The introduction of the draft law prohibiting temporary agency work triggered a heated debate between trade unions that opposed agency work and private employment agencies in favour of regulation of such work.96 Trade unions did not succeed in prohibiting temporary agency work, but only in limiting its use. According to State Duma regulations, a Bill cannot be significantly changed once it has been introduced in the State Duma, and thus the regulations enshrined in the Labour Code are highly contradictory. According to Article 56 of the Labour Code, leased work is prohibited. ‘Leased work’ is defined as work carried out by an employee as requested by the employer, under the direction and control of an individual or legal entity other than the employee’s employer.97 The same article states that any deviations from regulations on temporarily assigned employees to other individuals or entities under a contract of

92 

Art 56.1, Chapter 53.1 of the Labour Code. Law No 116-FZ of 5 May 2014 ‘On changes in particular normative Acts’ (Sobraniye Zakonodatelstva Rossiyskoy Federazii of 12 May 2014, No 19, Item 2321). 94  Draft of Federal Law No 451173-5 ‘On changes in particular normative Acts’. 95  On the debate on the regulation of temporary agency work, see: МС Власенко, Проблемы правового регулирования заемного труда в России: Дис. … канд. юрид. наук: 12.00.05 М., 2009; ЯВ Кривой, Правовое регулирование заемного труда: международно-правовой, сравнительный и национальный аспекты. Дис. … канд. юрид. наук: 12.00.05 М., 2006; ОП Рымкевич, Сравнительно-правовой анализ регулирования отношений по заемному труду: Дис. … канд. юрид. наук: 12.00.05 СПб., 2005; И Киселев, Б Карабельников, Э Черкасова, С Кукса, В Юдкин, А Леонов, В Свечкаренко, ‘Концепция регулирования заемного труда.’ Хозяйство и право, № 2, 3, 2004; МВ Лушникова, АМ Лушников, ‘Заемный труд: исторический опыт и перспективы правового регулирования’. Человек и труд, № 7, 2004; А Нуртдинова, ‘Заемный труд: особенности организации и возможности правового регулирования.’ Хозяйство и право, № 9, 2004; СЮ Головина, ‘Содержание трудового договора при заемном труде.’ Хозяйство и право, № 10, 2004. 96  ЕС Герасимова, ‘Кому выгоден заемный труд?’ Московские новости, 29 June 2011: http:// www.mn.ru/newspaper_opinions/20110629/302366852.html; ЕС Герасимова, П.В Бизюков, ‘Рабы напрокат.’ Газета.ру, 5 March 2011: http://www.gazeta.ru/comments/2011/03/05_a_354 6529.shtml. 97  Art 56.1 of the Labour Code. 93 Federal

Atypical Employment Relationships: The Position in Russia 749 provision of labour by employees (personnel) (договор о предоставлении труда работников (персонала)), are specified in Chapter 53.1 of the Labour Code (in addition—‘work of employees temporarily assigned to other individuals or legal entities’, ‘assigned employees’). Two options exist in the Labour Code to assign employees to others: employees can be assigned to another person through a private employment agency (частное агентство занятости, chastnoye agentstvo zanyatosti) (PEA, TWA), or through another legal entity which, in accordance with the legislation of the Russian Federation on employment, has the right to carry out activities related to the provision of employees (staff) (‘other legal entity’).98 Other legal entities, including foreign ones and their affiliates (with the exception of individuals), can temporarily assign employees, with their consent, in the following cases:99 —— To a legal entity affiliated with the assigning legal entity; —— To a legal entity that is a joint stock company, if the assigning entity is part of the joint stock agreement or is supported by stocks of the joint stock company; —— To a legal entity that is part of a joint stock agreement with the assigning entity. The Labour Code currently regulates the conditions of work of employees who are temporarily assigned to other individuals or legal entities through private employment agencies;100 the working conditions of employees who are temporarily assigned to other individuals or legal entities should be regulated in a special federal law.101 Such a federal law has not yet been adopted, but is currently being developed by the Ministry of Economic Development, ie this type of work is not applicable in Russia yet, and only private employment agencies can assign employees to other individuals or legal entities for work. After 20 January, Labour Inspectors will monitor the implementation of this legislation. If an employment contract is signed by a legal entity that is not an accredited private employment agency, an administrative penalty for violation of employment legislation under Article 5.27 of the Code of the Russian Federation on Administrative Offences102 may be imposed.103 The general provisions of the Labour Code on the working conditions of employees who are temporarily assigned to other individuals or legal 98 

Art 341.1(1) of the Labour Code. Art 18.1(3) of the Law ‘On employment in the Russian Federation’. 100  Art 341.2 of the Labour Code. 101  Art 341.3 of the Labour Code. 102  The Code of the Russian Federation on Administrative Offences of 30 December 2001 No 195-FZ (Sobraniye Zakonodatelstva Rossiyskoy Federazii of 1 January 2002, No 11 (part 1), Item 1). 103  Supreme Court of the Republic of Karelia of 3 October 2016 in Case No 21-425/2016. 99 

750  Nikita Lyutov and Elena Gerasimova entities stipulate that private employment agencies and other entities can assign their employees to other individuals or legal entities under the conditions set forth in Chapter 53.1 of the Labour Code. The employee’s consent is required for the assignment, and employees will be requested to perform the work defined in the employment contract, in the interest, and under the control and supervision of the said individual or legal entity.104 Though this type of work is formally defined differently from leased work in the Labour Code,105 the regulations on assigned employees de facto have all the features of leased work. The following terms and abbreviations are used in this chapter for the purpose of uniformity and to avoid repetition of long definitions as used in the Labour Code: —— PEA—private employment agency (as defined in the LC) or TWA (­temporary work agency) which are equivalent; —— User undertaking, host country (принимающая сторона, prinimayuschaya storona) – individual or legal entity other than the employer (PEA), in whose interests and under the direction and control of which the assigned employee shall perform work (as defined in the LC); —— Worker, assigned worker—employees who are temporarily assigned by the employer (PEA or other entity) to other individuals or legal entities under the contract on provision of labour by employees (personnel) (работник, направляемыq для работы у принимающей стороны по договору о предоставлении труда работников (персонала)). B.  Registrations, Licensing, Financial Guarantees, etc PEAs must obtain accreditation in order to be able to assign workers to others. They cannot make use of the general tax regime to perform this activity.106 Regulations on the accreditation of PEAs for the purpose of assigning workers (personnel) were approved by the Government of ­Russia in 2015.107 Accreditation is granted by the State Body on Labour 104  Art 341.1(1) of the Labour Code; Article 18.1(3) of the Law ‘On employment in the Russian Federation’ of 19 April 1991 No 1032-1 (Sobraniye Zakonodatelstva Rossiyskoy Federazii of 22 April 1996, No 11, Item 1915) as amended by Federal Law No 116-FZ of 5 May 2014 ‘On changes in specific normative acts’ (Sobraniye Zakonodatelstva Rossiyskoy Federazii of 12 May 2014, No 19, Item 2321) (further—Law ‘On employment in the Russian Federation’). 105  Art 57.1 of the Labour Code. 106  Art 18.1(8) of the Law ‘On employment in the Russian Federation’. 107  Regulations on accreditation of private employment agencies for the purpose of evaluating the activity of assigning employees (personnel), approved by the Government of the Russian Federation on 10 October 2015, No 1165 (Sobraniye Zakonodatelstva Rossiyskoy Federazii of 9 November 2015, No 45, Item 6255) (further—Rules of accreditation of private employment agencies).

Atypical Employment Relationships: The Position in Russia 751 and Employment (hereafter ‘the State Body’) following the application of the PEA. Requirements for accreditation include:108 1) The PEA’s authorised capital must be a minimum of RUR 1 million (around EUR 16,160 in March 2017); 2) The PEA may not be in arrears on the payment of taxes, fees and other mandatory payments to the federal budget of the Russian Federation; 3) The head of the PEA should have a higher education, as well as work experience in the field of employment or the promotion of employment in Russia of at least two years during the last three years; 4) The head of the PEA may not have been convicted of any offences against the person or of any economic crimes. The State Body will make a decision on the applicant’s accreditation within 15 days from receiving all necessary documents, ie when all documents have been presented and all requirements fulfilled.109 A PEA can be accredited for up to three years. The accreditation can be extended, denied or withdrawn.110 The PEA must submit an annual report to the State Body on its activity of assigning workers before 15 January. The report must include information about the PEA, such as its address, its director, applied tax regime, authorised capital and details of its activity of assigning workers. This refers to information on the number of contracts concluded for the provision of labour by employees (personnel); the number of workers assigned to different types of user undertaking; compliance with the requirements of legislation on working conditions (as a result of controls and inspections conducted by the PEA); the number of workplace accidents involving assigned workers; the number of cases of delayed salary payments to the assigned workers.111 The State Body keeps records in the Registry of PEAs accredited to assign workers, in order to evaluate PEAs’ activities. Between January 2016 and 15 March 2017, the records of 579 PEAs were included in the Register by the State Body.112 The State Body is required to control whether PEAs fulfil the requirements of accreditation, including PEAs’ obligations under employment contracts concluded earlier.113 Accreditation can be suspended by the State Body in case of violations discovered within 10 days after registration of 108 

Art 18.1(6) of the Law ‘On employment in the Russian Federation’. Para 10 of the Rules of accreditation of private employment agencies. 110  Para 14 of the Rules of accreditation of private employment agencies. 111  Reporting form of the PEA, attached to the Rules of accreditation of private employment agencies. 112 Register of the accredited PEA: https://www.rostrud.ru/opendata/7712345678-chaz/ table.html. 113  Para 27 of the Rules of accreditation of private employment agencies. 109 

752  Nikita Lyutov and Elena Gerasimova the documents. If the violations are corrected within 30 days, accreditation will be reissued.114 If no improvements have been made, accreditation will be withdrawn. In case of suspension of accreditation, the PEA has no right to sign new employment contracts with assigned workers, but must implement its obligations under previously signed contracts.115 C. Relationship between Temporary Agency Worker and Temporary Work Agency According to the Labour Code, employment contracts are to be concluded between the PEA and the worker. In addition to the standard provisions, the contract must include the conditions regarding the performance of work defined in the employment contract, by order of the employer, in the interests of and under the control and supervision of the user undertaking.116 An employment contract can be concluded between the PEA and a worker for the purpose of assigning him/her to the user undertaking in the following three cases:117 1. If the user undertaking is an individual who is not an entrepreneur, for the purpose of providing personal care, assistance in the household, etc; 2. If the user undertaking is an individual entrepreneur or legal entity, for the purpose of replacement of a temporarily absent employee, whose workplace is secure in accordance with labour legislation, the collective agreement, employment contract, local normative Acts, etc; 3. If the user undertaking is an individual entrepreneur or legal entity, for the purpose of performing temporary work related to the temporary (up to nine months) expansion of production or increase in the volume of services provided. In all three cases, the work is performed on a fixed-term basis, and a fixedterm employment contract is concluded in all cases. An employment contract between the PEA and certain categories of workers can also be concluded for the purpose of assigning them to a user undertaking. These categories include individuals enrolled in full-time education; single parents raising minors and parents who have three or more children; as well as persons released from prison. A contract can also be concluded between the PEA and individuals looking for temporary work,118 when an employment contract for fixed-term work is to be concluded or when it can

114 

Para 28 of the Rules of accreditation of private employment agencies. Art 18.1(9) of the Law ‘On employment in Russian Federation’. 116  Art 341.2(1) of the Labour Code. 117  Art 341.2(2) of the Labour Code. 118  Art 59 of the Labour Code. 115 

Atypical Employment Relationships: The Position in Russia 753 be concluded under the Labour Code provisions.119 This provision, presented as a means to provide additional protection to vulnerable groups of people and opening up opportunities for them to access the labour market, will have the opposite effect in practice. This norm has a discriminatory nature and will put vulnerable categories of workers in a weaker position than other workers and will keep them in lower-level jobs. Unfortunately, no research on the impact of this new legislation on employees has been carried out yet. The PEA and worker shall sign an Additional Agreement (дополнительное соглашение к трудовому договору) to the employment contract which provides information about the user undertaking (including the individual’s name and family name), the user undertaking’s documents (including individual identification number), and information about the contract between the PEA and the user undertaking, including data on the place of work, the number and duration of the contract.120 If a worker is assigned to another user undertaking, a new Additional Agreement must be concluded between the PEA and the worker including all of the above-mentioned information.121 Such Additional Agreements to the employment contract are an integral part of the employment contract. Just like ordinary employment contracts, such agreements must be concluded in writing, drawn up in two copies, each signed by the parties. One copy of the Additional Agreement is handed to the worker (this is confirmed by the worker’s signature on the copy of the Additional Agreement, kept by the employer); the other copy shall be kept by the PEA.122 (i)  Fixed-Term and Part-Time Contracts No limitations are included in the Labour Code on how many employment contracts concluded by a PEA should be fixed-term contracts. It can thus be concluded that PEA can sign both fixed-term contracts and contracts of indefinite duration. The PEA is not limited to assigning the employee to only a few different user undertakings when concluding a contract of indefinite duration.123 The list of cases when an employment contract with an assigned worker can be concluded includes work of a temporary nature (one of the accepted justifications for concluding a fixed-term work contract). A contract for the purpose of substitution of a temporarily absent employee can be concluded as contract for fixed-term work for the period of the employee’s absence.124 119 

Art 341.2(3) of the Labour Code. Art 341.2(5) of the Labour Code. 121  Art 341.2(6) of the Labour Code. 122  Art 341.2(7) of the Labour Code. 123  Art 341.2(6) of the Labour Code. 124  Art 59(1) point 1 of the Labour Code. 120 

754  Nikita Lyutov and Elena Gerasimova A fixed-term work contract can also be concluded for the purpose of performing temporary work (up to nine months) related to an expansion of production or an increase in the volume of services provided.125 There are no limitations to concluding a successive contract or contracts for another nine-month period. In other cases, a fixed-term contract or a contract of indefinite duration may be concluded on general grounds126 (see section II.A.–C. above). The contract can be concluded for part-time or full-time work depending on the agreement between the employer and the worker (see section II.B. above). In practice, the majority of contracts are concluded for fixed-term work with the assigned workers. Part-time contracts between the PEA and the worker can be concluded without restriction when based on the general regulations of the Labour Code. (ii)  Rights and Obligations/Liability The PEA must fulfil all the rights and obligations of the employer, though exceptions exist, as described in paragraph D of this section. The PEA, in particular, is required to include information about the work the assigned worker must carry out for another individual or entity in his/ her work book. PEAs should ensure that the labour provided by the assigned worker to the user undertaking is the same as that established in the employment contract with the user and that the user undertaking complies with all labour law provisions.127 Mechanisms to control for this are not developed in law. The user undertaking does not have the right to interfere with the PEA’s control,128 but no penalties are established in law for any violations. (iii)  Dismissal Protection The general provisions of the Labour Code on dismissal protection apply to employment contracts with assigned workers. D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship According to the Labour Code, when assigning a worker to work for a user undertaking under a contract on the provision of labour by employees ­(personnel), the employment relationship between the worker and the PEA 125 

Art 59(1) point 5 of the Labour Code. Art 59 of the Labour Code. 127  Art 341.2(10) of the Labour Code. 128  Art 341.2(10) of the Labour Code. 126 

Atypical Employment Relationships: The Position in Russia 755 does not end, and no employment relationship between the worker and the user undertaking is established.129 No agreement is signed between the worker and the user undertaking. In accordance with the contract on the provision of labour by employees (personnel), the rights and obligations between the worker and the user undertaking are established in the Additional Agreement to the employment contract signed between the PEA and the worker. (ii)  Rights and Obligations/Liability The following rights of the user undertaking are established in the Additional Agreement to the employment contract signed between the PEA and the worker: —— To require the worker to perform his/her working duties; —— That the worker respect the property of the user undertaking (including the property of third parties) and its employees; —— That the worker follow the work rules of the user undertaking. The following obligations of the user undertaking are established: —— To provide the worker with the equipment, tools, technical documentation and other resources necessary to perform his/her working duties; —— To ensure the worker’s everyday needs are met, in order for him/her to perform his/her work duties; —— To take the worker off the job or prevent him/her from performing the work in circumstances established in the Labour Code130 and to immediately inform the PEA about these developments. (iii)  Health and Safety The obligation of the user undertaking to adhere to the labour laws and to ensure healthy and safe working conditions must be included in the contract on the provision of labour by employees (personnel).131 An accident involving the assigned worker who participates in the user undertaking’s industrial activity should be investigated by a commission set up by the user undertaking. A representative of the PEA (or other entity) that assigned the worker must be represented in the commission, but if s/he does not appear, the investigation should not be postponed.132

129 

Art 341.2(4) of the Labour Code. Art 76 of the Labour Code. 131  Art 18.1(11) of the Law ‘On employment in Russian Federation’. 132  Art 341.4 of the Labour Code. 130 

756  Nikita Lyutov and Elena Gerasimova No other special regulations on the health and safety of assigned workers are enshrined in law, and all general provisions of the Labour Code are applicable.133 E.  Relationship between Temporary Work Agency and User Undertaking The contract on the provision of labour by employees (personnel), which is concluded between the PEA and the user undertaking, mandates that the PEA (исполнитель) shall assign its employees, with their consent, to the user undertaking (zakazchik, заказчик) and evaluate their work functions, as defined in the employment contract, which are carried out in the interests and under the direction and control of the user undertaking. The user undertaking shall pay the PEA for its services, and may use the labour of assigned employees (workers) in accordance with their employment contracts.134 This type of contract is a variety of the contract of provision of services, which is regulated by the Civil Code of Russia.135 The user undertaking has subsidiary liability in terms of financial obligation to the worker, including the obligation to pay wages and other amounts due, financial compensation for violations of the terms of payment of wages, vacation pay, severance pay or other payments due.136 The PEA may not assign workers to user undertakings in the following cases:137 1) to replace employees of the user undertaking, who are participating in a strike at the user undertaking; 2) during the temporary suspension of work by the user undertaking due to lack of work, bankruptcy proceedings, or introduction of parttime work to maintain jobs in case of the threat of mass dismissals of employees; 3) to replace employees of the user undertaking who refuse to work in circumstances established by law, including when the work was temporarily suspended due to the delay of payment of salaries of more than 15 days.

133 

Articles 227–231 of the Labour Code. 18.1 of the Law ‘On employment in the Russian Federation’ of 19 April 1991 No 1032-1 (Sobraniye Zakonodatelstva Rossiyskoy Federazii of 22 April 1996, No 11, Item 1915) as amended by Federal Law No 116-FZ of 5 May 2014 ‘On changes in specific normative Acts’ (Sobraniye Zakonodatelstva Rossiyskoy Federazii of 12 May 2014, No 19, Item 2321). 135  Civil Code of the Russian Federation. Part 1 of 30 November 1994 No 51-FZ (Sobraniye Zakonodatelstva Rossiyskoy Federazii of 5 December 1994, No 32, Item 3301); Civil Code of the Russian Federation. Part 2 of 26 January 1996 No 14-FZ (Sobraniye Zakonodatelstva Rossiyskoy Federazii of 29 January 1996, No 5, Item 410). 136  Art 341.5 of the Labour Code. 137  Art 18.1(12) of the Law ‘On employment in the Russian Federation’. 134  Art

Atypical Employment Relationships: The Position in Russia 757 The PEA may also not assign workers to user undertakings in the following cases:138 1) to work at hazardous production facilities (I and II classification of danger), and certain types of work, lists of which are approved by the government;139 2) to work in jobs with harmful working conditions (level III or IV) or dangerous working conditions; 3) to replace employees of the user undertaking whose work is in the ­process of being licensed or for which another special permit is in the process of being issued, employees who are members of a self-­ regulatory organisation or for whom a certificate for certain types of work of a self-regulatory organisation is in the process of being issued; 4) to work as crew members of sea and mixed (river–sea) vessels. Federal law may establish additional restrictions on the assignment of workers, but no such laws have yet been adopted. F.  Rights and Status of Temporary Agency Worker (i)  Equal Treatment Under the legislation, the terms of remuneration for assigned workers may not be inferior to those of regular employees of the user undertaking who perform the same work and have the same qualifications.140 No research has been carried out since the new legislation entered into force, and reliable information on the implementation of this provision in practice is not accessible. (ii)  Other Matters The regular provisions of the Labour Code apply to temporary agency workers. Compensation for working in harmful and (or) dangerous working conditions, if the worker is assigned to work under such conditions, should be established based on the information about the working conditions at the workplace provided by the user undertaking.141 138 

Art 18.1(13) of the Law ‘On employment in the Russian Federation’. of the Ministry of Labour of Russia No 858n, of Rostekhnadzor No 455 of 11 November 2015 (on approval of the list of types of work to be carried out at sites classified as hazardous production facilities (I and II classification of danger) in accordance with the legislation of the Russian Federation, to which PEA are not permitted to assign employees) (Rossiyskaya gazeta, No 9, 20 January 2016). 140  Art 341.1(2) of the Labour Code. 141  Art 341.1(3) of the Labour Code. 139 Decree

758  Nikita Lyutov and Elena Gerasimova G. Information and Consultation/Representation of Temporary Agency Worker Consultations on the conclusion of the contract of the provision of employees (staff) should be conducted with the elected representative body of the most representative trade unions, if the number of assigned workers temporarily hired (for up to nine months) due to the expansion of production or an increase in the volume of services exceeds 10 per cent of the average number of employees at the user undertaking.142 H. Strikes The PEA may not assign workers to user undertakings to replace employees who are participating in a strike at the user undertaking.143 Assigned workers are not prohibited by law from participating in strikes, and no special regulation on their right to strike exists. The general provisions of the Labour Code apply. I.  Collective Bargaining Agreements Deviating from Statutory Provisions No regulation on the right to bargain collectively exists for assigned workers. The general provisions of the Labour Code apply. This means that assigned employees can bargain collectively with the PEA, which is their formal employer, but not with the user undertaking. If more than one collective agreements apply to employees, the principle of favourability shall apply. No practice of collective bargaining and collective agreements exists for PEAs.

142  143 

Art 18.1(10) of the Law ‘On employment in the Russian Federation’. Art 18.1(12) of the Law ‘On employment in the Russian Federation’.

29 Atypical Employment Relationships: The Position in Serbia SENAD JAŠAREVIĆ

I. INTRODUCTION

A

PART FROM THE ‘standard’ employment relationship—full time employment—the Serbian Labour Code, Zakon o radu (LC),1 provides for several types of ‘atypical employment relationships’. According to the LC, the following types of ‘atypical’ labour contracts (Rad izvan radnog odnosa) may be concluded: fixed-term contracts, parttime contracts, temporary or occasional work contracts, contracts for services—locatio operis—apprenticeship or professional development contracts, and additional labour contracts.2 Although these contracts are covered by labour legislation, flexible forms of work are quite rare in practice in Serbia. Fixed-term contracts and temporary or occasional work contracts are slightly more common. There have recently been numerous cases of misuse of ‘flexible forms of work’. Over the past 20 years, a number of cases of bogus flexible work contracts, ie fictitious engagement on the basis of occasional and temporary work or fixed-term work (disguised employment), has slightly increased.3 In addition, although they are not regulated by the LC, a number of ‘contracts on assignment’ have been concluded in practice with agencies (temporary agency work). These contracts are primarily used by employers to circumvent legal obligations towards full-time employees (safeguarding decent working conditions, payment of social security contributions, taxes, etc). 1  The Labour Code was published in the Official Gazette of the Republic of Serbia (RS), No 24/2005, and the remaining amendments in Nos 61/2005, 54/2009, 32/2013, 74/2014. Note: in Serbian legislation, the date of the actual enforcement of the law is not considered to be of significance and the date itself is therefore not included. 2  These contracts are regulated in Arts 31, 37, 39–41, 197–202 of the LC under the title ‘Work outside employment’ (Rad van radnog odnosa). 3  It is estimated that every tenth worker in Serbia works part time. See M Rilak, ‘­ Fleksibilni rad u Srbiji: pola posla’ (‘Flexible work in Serbia, part-time job’), Biznis & Finansije: http://bif.rs/2013/09/fleksibilni-rad-u-srbiji-pola-posla/, accessed 22 June 2016.

760  Senad Jašarević II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements In Article 37(1) of the Labour Code indirectly defines fixed-term employment: A labour contract may be concluded for a definite period for a work assignment whose duration is predetermined by objective reasons justified by the time ­limitation or for the performance of specific work or the occurrence of a specific event for the duration of these needs.

1) The labour contract’s duration is predetermined by objective reasons, 2) it is justified by: a) the time limitation, b) the performance of specific work, c) the occurrence of a specific event.4 In practice, fixed-term employment contracts are primarily concluded in the following situations: replacement of a temporarily absent worker; a temporary increase in the employer’s workload (objective reasons);5 directing theatre performances (performance of specific work); seasonal jobs (limited duration of work). One irregularity is verbally concluded fixed-term contracts. In this case, pursuant to Article 32 of the LC, if the employee commences work for an employer upon a verbal agreement with him/her, it ‘shall be deemed that the employee has entered into an employment relationship of indefinite duration on the day s/he assumed work.’6 The Supreme Cassation Court holds that in that case, even though a contract/agreement has not been entered into, there is a legal presumption that the employee has entered into an employment relationship of indefinite duration.7 B.  Lawful Stipulation of Contractual Terms In July 2014, amendments to the Labour Code8 provided for flexible work arrangements under a fixed-term contract.9 These amendments were introduced due to the influence of foreign investors’ demands and the ­ 4  Although the Code does not specify it, it is presumed that, as with other labour contracts, a written form of the contract is required. 5  See Decision of the Appellate Court of Novi Sad, Gž1 600/2012 of 19 September 2012. 6  See Municipal Court in the Town of Gornji Milanovac, P No 396/03 of 29 April 2004, District Court of the Town of Čačak, Gžl No 756/04 of 7 July 2004 and Supreme Court of the Republic of Serbia, Rev 1248/04 of 22 September 2005, Supreme Cassation Court, Rev 2 602/2014 of 23 October 2014. 7  See Supreme Cassation Court, Rev 2 761/2012 of 23 January 2013 and Supreme ­Cassation Court, Rev 2 602/2014 of 23 October 2014. 8 Amendments to the Labour Code were adopted on 18 July 2014 and published in the Official Gazette of RS No 75/2014. 9 The option to use fixed-term work has increased. In addition, the total duration of ­fixed-term contracts has been extended from 12 months to 24 months. See Art 37 of the Labour Code.

Atypical Employment Relationships: The Position in Serbia 761 International Monetary Fund in order to ‘make the labour market more flexible’.10 Pursuant to Article 37 of the LC, an employer may conclude one or more fixed-term work contracts (including contracts of definite duration) on the basis of which an employment relationship with the same employee shall be concluded for a period which, with or without interruptions, may not be longer than 24 months. A period of discontinuation that is shorter than 30 days shall not represent the interruption of this period. Exceptionally, a labour contract for a fixed period may be concluded in the following cases for a period exceeding 24 months: 1) if required for the purpose of replacement of a temporarily absent employee until his/her return; 2) to work on a project with a predetermined ending time (ie for no longer than the duration of the project); 3) with a foreign citizen on the basis of a work permit in accordance with the law, for no longer than the validity period of the work permit; 4) to perform work duties for a newly established employer which has been entered in the register of the competent authority for no longer than one year at the time of concluding the labour contract, for a total duration of up to 36 months; 5) with an unemployed person who must work up to another five years to meet one of the conditions for entitlement to an old age pension, and for no longer than until s/he reaches pensionable age in accordance with the regulations on pension and disability insurance.11 Although legislation states that fixed-term contracts may be concluded ‘exceptionally’ in the cases listed above, the next paragraph of Article 37 contradicts this regulation. Paragraph 5 of Article 37 asserts that if the reasons provided under paragraph 4, items 1)–3) cease, the employer may conclude a new fixed-term contract with the same employee on the basis of any of the above-mentioned reasons. Hence, by combining these criteria, the conclusion of fixed-term employment contracts may continue indefinitely, ie until the end of the employee’s career. To avoid confusion and misuses in practice, pursuant to paragraph 1, item 7 of Article 33 of the LC (which determines the required contents of employment contracts), ‘employment contracts shall contain: … 7) the duration of the fixed-term employment contract and the reason for entering into a fixed-term employment relationship.’ This prevents the employer

10  See ‘Poslodavci pišu novi Zakon o radu’ (‘Employers are writing a new labour law’), B 92 online, 30 September 2012: www.b92.net/info/vesti/index.php?yyyy=2012&mm=09&dd=30&nav_ id=6. The article states, inter alia, that the labour law should be amended in line with European standards and the guidelines of the International Monetary Fund. 11  Art 37(2) of the LC.

762  Senad Jašarević from circumventing the statement of the reason for concluding a fixed-term contract, which is often the case in practice in order to obstruct control of such contracts. Pursuant to Article 273 of the LC, an employer who fails to comply with this obligation will be fined between EUR 6,500 and EUR 16,000. The total duration of a fixed-term contract was extended from 12 to 24 months in 2014.12 The number and duration of fixed-term contracts within that period is irrelevant, but the grounds for concluding such a contract must be ‘reasonable’. A fixed-term contract may not be concluded for occasional jobs or permanent jobs that require full-time employment. This is often misused in practice. Workers are frequently employed for a fixed period because such workers are ‘significantly cheaper’ (they generally earn lower salaries, are not paid for overtime, and are often denied the rights and other benefits of full-time employees). They are much more cooperative and willing to endure abuses by the employer, to work for much lower salaries, have fewer benefits than permanent employees and the formal procedure of cancellation of such contracts is much simpler (thus avoiding expensive litigation). Workers are often assured by the employers that they will be permanently employed if they ‘prove they are good workers’, but are often fired when another person is hired. Proceedings due to ‘false fixed-term employment’ are even more frequent, but are difficult to prove in practice. The courts are not yet ready to essentially engage in the evaluation of the real objectivity of the reason for concluding a fixed-term employment contract (‘objective reason’). They generally assess whether the formal requirements with reference to the maximum duration of employment (24 months) are met and whether the relationship lasted longer than ­permitted or required by the contract.13 In some cases, for example, employees worked for four or more years (ie four times longer than the maximum period permitted by law), or in one case they successively, within a period of several years, even concluded 17 temporary or occasional work contracts (the jobs were de facto permanent), but the court did not deliver a judgment that the employers had violated the norms of the ‘fixed-term contract’, ie that it was in fact a permanent employment.14 The court did not declare 12 

See amendments to the Labour Code of 2014 (n 8 above). Pravno shvatanje Građanskog odeljenja Vrhovnog kasacionog suda od 25 D ­ ecember 2012 (Legal interpretation of the Civil Division of the Supreme Cassation Court of 25 D ­ ecember 2012), Supreme Cassation Court of the Republic of Serbia, Belgrade; Appellate Court of Kragujevac, Gž1 507/2013 of 28 January 2014; Appellate Court of Novi Sad, Gž1 882/2011 of 23 November 2011. 14  For instance, according to the Supreme Cassation Court of the Republic of Serbia: ‘If the employer does not want this provision to be applied (eg fictitious existence of an employment relationship), he will have to conclude a contract for occasional and temporary work, if the work to be performed falls within the scope of the business carried out by the employer, or some other contract that does not expressly create a labour relationship.’ See: Supreme ­Cassation Court, Rev 2 761/2012 of 23 January 2013, Belgrade; Supreme Cassation Court, 13 See

Atypical Employment Relationships: The Position in Serbia 763 such contracts to be irregular. This approach was finally changed following a judgment of the Supreme Court of Cassation in December 2016.15 In its decision, the Court stated that the legal nature of the contract is not determined by its name, but by the substance of the legal relationship upon which it is based. The Court concluded that a fictitious reason for a fixedterm or part-time employment contract is essentially an abuse of the law and it will be deemed that an employment contract of indefinite duration was concluded. A fixed-term contract can be concluded for the replacement of a ­temporarily absent employee until his/her return. Such contracts are quite common in Serbia (eg for replacement of a female employee during ­maternity leave, a sick employee, an employee who is in vocational training, or an employee who has taken political office). Misuses on this ground are very rare because it can easily be proven whether the replaced employee is absent or not.16 Fixed-term contracts may be concluded for work on projects with ­predetermined end dates (the contract may not exceed the completion of the project). Such contracts have been concluded in Serbia for quite some time. They are mostly concluded for artistic activities (work in theatres, TV), ­scientific work, construction and similar projects. Misuses are rare (eg falsely claiming that employees worked on a project, who were in fact ­permanently employed). Concluding fixed-term contracts with foreign citizens (on the basis of a work permit, not exceeding the validity period of the work permit) is also possible, and was introduced by amendments to the LC in July 2014. The aim is to attract foreign investments and facilitate entry to the Serbian labour market of foreign companies’ management and other relevant staff (eg persons who will train the local workforce). To increase flexibility, a new Act on Employment of Foreign Citizens was adopted in 2014.17 Fixed-term contracts for performing work duties for a newly established employer (which has been entered in the register of the competent authority for less than one year at the time of concluding the labour contract) may be concluded for a total duration of up to 36 months. The aim is to ­facilitate the operations of new employers at the start and keep labour costs low.

Rev 2 602/2014 of 23 October 2014; Supreme Cassation Court, Rev 2 486/2014, of 17 September 2014; Appellate Court of Belgrade, Gž1 1351/2010(3) of 6 October 2010; Basic Court of Novi Sad, P1-1753/2014 of 29 February 2016. 15 

See: Supreme Cassation Court, Rev 601/2015 of 27 December 2016. were proceedings in this situation, too. See, eg, Appellate Court of Belgrade, Gž1 4313/2012 of 15 April 2015. 17  Official Gazette of the RS, No 128/2014. See The Government of Serbia, Predlog Zakona o zapošljavanju stranih državljana I lica bez državljanstva, sa obrazloženjem odredaba (Draft law on employment of foreign citizens and stateless persons with explanation of the provisions), p 15: www.parlament.gov.rs/upload/archive/files/lat/pdf/predlozi_zakona/3737-14Lat.pdf. 16  There

764  Senad Jašarević The aim is to give them more flexibility in hiring and firing employees at the beginning. The conclusion of fixed-term contracts with unemployed persons who are within five years of meeting one of the conditions for entitlement to an old age pension (for no longer than up to the fulfilment of that condition in accordance with the regulations on pension and disability insurance) was introduced in 2014. The aim is to facilitate employment of this category of employees (older employees) until they reach pensionable age, many of who have lost their jobs in recent years as ‘surplus’ employees (redundant employees). In fact, this category of workers is extremely difficult to employ because of high unemployment in Serbia as well as hidden discrimination against older workers.18 One indirect opportunity for concluding a fixed-term contract is for probation. According to Article 36 of the LC: (1) The employment contract may stipulate a probation period for performing one or more connected or related jobs specified in the ­ employment contract. (2) The probation period may last a maximum of six months. (3) The employer or employee may terminate the contract with no less than five working days’ notice before the period of probation has expired. The employer must provide reasons for terminating the employment contract. (4) Should an employee fail to successfully carry out the required work and show professional competence during the probation period, the employment relationship shall be deemed terminated with the expiry of the fixed-term labour contract. As shown in Article 36 of the LC, fixed-term employment is only indirectly mentioned in the Labour Code as a means for concluding a contract for a probation period (last paragraph). One legal option is the conclusion of a permanent employment contract. If a contract for probation is concluded, the permanent employment relationship will be terminated if the employee does not prove to be a satisfactory worker during the probation period (so-called resolutory condition). However, fixed-term employment contracts have often been used in recent years to conclude a probation period because it is easier to fire this employee (the notice period is shorter as well, at only five days). 18 According to data from the research of the foundation Centre for Democracy, age ­ iscrimination is the third most prevalent form of discrimination, followed by racial discrimid nation and gender discrimination. Of the millions of unemployed in Serbia, more than 190,000 are older than 50 years, and more than 120,000 are women in their fifties. See M Konsalting, ‘Beznađe nezaposlenih radnika Srbije’ (‘Hopelessness of unemployed workers in Serbia’), 20 April 2012, http://www.mena.rs/cms/index.php?option=com_content&view=article&id=3 79%3Abeznae-nezaposlenih-radnika-srbije&catid=47%3Avesti&Itemid=50&lang=sr.

Atypical Employment Relationships: The Position in Serbia 765 Concluding successive fixed-term contracts is not prohibited in S­ erbian law. The number of fixed-term contracts can be unlimited, but may not exceed the legal time limit (24 months) and their legal basis must be ­legitimate. A protective provision in Article 37 paragraph 6 of the LC aims to prevent misuses: If the labour contract for a fixed term has been concluded contrary to the provisions of this law or if the employee continues working for the employer for at least five working days beyond the expiry of the contract, it shall be considered that the employment relationship has been concluded for an indefinite duration.

A permanent employment relationship shall be deemed to exist in two instances: 1) if a fixed-term employment contract has been concluded ­contrary to the provisions of the LC, or 2) if the employee continues working for the employer for at least five working days beyond the expiry of the contract.19 Although it seems that these provisions give a clear guideline for avoiding misuses of fixed-term contracts, it does not work in practice. The courts ­contribute to this detrimental situation. They sometimes interpret the LC ­provisions literally or unreasonably in cases in which fixed-term employment is largely being misused, ie employers are violating the Labour Code. Employers may, for example, conclude fixed-term contracts with workers (exceeding 24 months), with interruptions of more than five days between the individual contracts, and courts accept this as a legitimate practice.20 Moreover, following the expiration of the legal limitation (24 months), many employers only formally change the contents of the fixed-term contract, ie many e­ mployees continue performing the same work for numerous years by concluding ­successive fixed-term contracts for other (bogus) types of work. The courts do not deem this to be a violation of the Labour Code, provided that the time limitation has not been exceeded for each individual contract.21 One way of misusing fixed-term contracts is concluding alternate fixed-term contracts and temporary and occasional work contracts successively, although the employee performs identical tasks under each contract.22 In certain cases, although the legal limitation has been exceeded, the fixed-term employment relationship does not automatically transform

19  See Supreme Cassation Court, Rev 2. 486/2014 of 17 September 2014; Appellate Court of Novi Sad, Gž1 526/2011 of 18 January 2012; Appellate Court of Novi Sad, Gž1 3148/2010 of 17 October 2011. 20  See legal opinion of the Civil Division of the Supreme Cassation Court, adopted at the session of 25 December 2012; Supreme Cassation Court; Rev 2 486/2014 of 17 September 2014; Appellate Court of Novi Sad, Gž1 3148/10 of 17 October 2011. 21  See Appellate Court of Novi Sad, Gž1 313/2014 of 14 February 2014. 22  See previously mentioned case law, as well as: Basic Court of Novi Sad, P1-401/2014 of 26 October 2016; Appellate Court of Novi Sad, Gž1 3201/2015 of 11 January 2016;

766  Senad Jašarević into a permanent one. According to the position taken by the courts, a ­fixed-term employment relationship cannot automatically transform into one of indefinite duration if the employee took annual leave, was absent due to illness, or took days off after the expiration of the labour contract. For a fixed-term employment relationship to automatically transform into a ­permanent one, the employee needs to continue working for the employer without interruption.23 Finally, as already mentioned, pursuant to the last paragraph of Article 37 of the LC, there is a sanction for invalid stipulations of contract terms. If an employment contract of indefinite duration has been concluded contrary to the provisions of the LC (or if the employee continues working for at least five working days upon the expiry of the contract), the employment contract will be deemed to have been concluded for an indefinite duration. Under Article 195 of the LC, employees can initiate proceedings before the court within 60 days. The limitation period starts on the day the conditions for the transformation of the fixed-term employment relationship into a permanent one were fulfilled. Article 31 of the LC states that ‘An employment contract that does not specify the duration of the contract shall be considered an open-ended ­contract of employment.’ It can indirectly be concluded from this provision that the fixed-term clause must be concluded in writing (like the ­employment contract in general). Courts have confirmed these legal provisions in many court decisions. To determine whether conditions exist for an automatic transformation of a fixed-term employment relationship into one of indefinite duration, the courts mainly apply the principle of ‘primacy of facts’, irrespective of the ‘labelling’ of the contract by the parties. A ‘bogus fixed-term contract’ will be penalised.24 However, the courts’ rulings are not consistent. The assessment criteria to determine ‘abuse of the legal foundation’ of ­fixed-term ­employment contracts are not always entirely clear. For example, in one decision, the court rejected the transformation of a fixed-term ­employment contract into one of indefinite duration even though it found that the employee had continued performing the same work-related tasks for more than five days after

Supreme Cassation Court, Rev 2 347/2015 of 10 June 2015; Supreme Cassation Court, Rev 2 813/2015 of 28 May 2015; Appellate Court of Belgrade, Gž1 2137/11 of 25 May 2011; Appellate Court of Novi Sad, Gž1 3335/2012 of 2 October 2013; Appellate Court of Belgrade, Gž1 1351/2010(3) of 6 October 2010. 23  See Appellate Court of Novi Sad, Gž1 2088/2011 of 4 November 2011. The court in this case actually followed the previously mentioned Pravno shvatanje Građanskog odeljenja Vrhovnog kasacionog suda od 25. December 2012. (Legal interpretation of the Civil Division of the Supreme Cassation Court of 25 December 2012). 24  See Supreme Cassation Court, Rev 2 761/2012 of 23 January 2013 and Supreme Cassation Court, Rev 2 602/2014 of 23 October 2014; District Court in Valjevo, Gž I. No 266/05 of 26 May 2005.

Atypical Employment Relationships: The Position in Serbia 767 the return of the employee the fixed-term worker had replaced.25 The case in which an employee concluded 17 ­successive ­contracts for ­temporary work has also already been mentioned (in fact, it was a fixed-term employment relationship), and that the Belgrade court did not rule that the employer had violated the LC, since he renamed the d ­ ifferent contracts.26 Such an approach encourages employers to abuse fixed-term contracts, and creates legal uncertainty for employees. Many employees, hoping to sign a permanent employment contract (often a promise by their employer), do not immediately file a claim against the employer, but only do so once their employment contract is terminated. If the employee misses the deadline of 60 days, the court rejects the claim, although it is evident that the legal foundation for concluding a fixed-term contract was violated. In such a case, a ‘preclusion’ is inevitable according to the court, regardless of any other circumstances.27 C.  Termination/End of Fixed-Term Contracts A fixed-term contract ends when the end date agreed by the parties is reached or when the legal grounds for concluding the contract have expired. This does not, however, take place automatically. The employer must adopt a ‘decision’, namely a written document indicating a termination of the ­contract.28 According to case law, the adoption of such a document is a condition for the fixed-term employment relationship to not automatically be transformed into a permanent one if the employee continues to work for the employer (under a new contract or without it).29 Fixed-term contracts can be terminated extraordinarily, if the worker grossly violates a principle of work (ie if another general reason for ­termination exists) or if the expiration date of the contract was ‘­ semi-open’.30 In practice, some contracts are concluded for the longest possible duration with the formulation: ‘the contract shall be concluded for a period of no less

25 

Appellate Court of Belgrade, Gž1 5383/2011 of 23 December 2011. Supreme Cassation Court, Rev 2 761/2012, of 23 January 2013; Supreme Cassation Court, Rev 2 602/2014 of 23 October 2014; Supreme Cassation Court, Rev 2 486/2014 of 17 September 2014; Appellate Court of Belgrade, Gž1 1351/2010(3), of 6 October 2010; Basic Court of Novi Sad, P1-1753/2014 of 29 February 2016. 27  Supreme Cassation Court, Rev 2 301/2011 of 22 December 2011, Appellate Court of Kragujevac, Gž I 163/2010 of 2 February 2010. 28 This follows from Art 193 of the LC: ‘Any decision on exercising rights, duties and responsibilities accompanied by pertinent substantiation and recommendations on a legal remedy shall be served to the employee in writing …’. 29 Supreme Cassation Court, Rev 2 431/2009 of 2 April 2009; Appellate Court of Belgrade, Gž 1 1351/2010 (3) of 6 October 2010, Appellate Court of Niš, Gž 1.2895/2010 of 25 ­February 2011. 30  See Art 179 of the LC. 26  See

768  Senad Jašarević than …’.31 According to case law, in that case, the employer may terminate the employment contract without justification at any time.32 D.  Rights and Status of Fixed-Term Worker (i)  Equal Treatment Formally, a legal fixed-term worker must be treated equally to a permanent employee. According to Article 31 paragraph 1 of the LC, ‘An employment contract may be concluded for a definite or indefinite term.’ This means that both forms of work are considered legitimate forms of employment to which the provisions of the Labour Code apply, as well as the regulations on health and safety at work, the laws governing social security and all other provisions regulating the status of employees.33 According to the Anti-discrimination Act of 2009,34 ‘discrimination at work’ is a form of discrimination. Article 16 of this Act prohibits discrimination in the sphere of employment, namely the violation of the principle of equal opportunity in employment or equal conditions as regards entitlement to rights in the sphere of employment. Protection against discrimination shall include all persons in an employment relationship,35 as well as any other persons performing any work based on any other ground. Similar protection is also defined by the Act on Gender Equality of 2009.36 However, in reality, fixed-term employees do not enjoy equal treatment with permanent employees. They are paid significantly less than permanent employees, and they are not entitled to the possibility of promotion, participation in training and development, to proper annual leave, to pay for overtime work (or they are only paid partially for overtime). Fixed-term employment contracts do not, of course, openly stipulate unequal treatment; unequal treatment is veiled in the labour process. Fixed-term employees are treated as ‘second-class workers’, ie as a labour force of ‘transient character’, so their rights are simply ignored. These workers accept such treatment because the employer promises them permanent employment. 31 

In this case, employers must respect the maximum duration of 24 months as well. Eg, when a fixed-term contract is concluded for a period of ‘up to six months’, the court asserts that ‘it can be terminated at any time up to the agreed six months.’ See Appellate Court of Novi Sad, Gž 882/2011 of 23 November 2011; Supreme Cassation Court, Rev 2 501/2006 of 5 April 2006; Supreme Cassation Court, Rev 2 879/2007 of 20 March 2008. 33 Pursuant to Art 5 of the LC: ‘An employee, pursuant to this law, shall be a natural ­person in an employment relationship with the employer’. Employment relationships with the employer are effectuated by labour contracts (Art 30 para 1 of the LC). 34  Official Gazette of the RS, No 22/2009. 35 Pursuant to said Art 30 of the LC, it applies to employees in both permanent and ­fixed-term employment. 36  Official Gazette of the RS, No 14/2009. See Arts 11, 15 of the Act. 32 

Atypical Employment Relationships: The Position in Serbia 769 A large number of employers do not fulfil their promise, but it is then, according to the regulations, too late for the fixed-term employees to get legal protection. In many cases, they cannot prove unequal treatment, since many such actions are not recorded.37 (ii)  Employment Opportunities Unlike the practice that exists in some countries where fixed-term employees have priority in case of open permanent posts, this does not exist in Serbian legislation. It does not even exist in collective agreements. The employer is free to hire any person s/he considers the most suitable for the job, ­regardless of the fact that other individuals have worked in the same post on the basis of a fixed-term contract.38 (iii)  Other Matters Serbian labour law does not stipulate other provisions that may be treated as supplementary rights for workers who have concluded fixed-term work contracts. E.  Information and Consultation Formally, legal fixed-term employees are entitled to the same rights as permanent employees. This also applies to information, consultation and participation in the representation of the company. But this is very rare in practice. The reason is that fixed-term employees are considered ‘­transient’, so they are generally not elected to representative bodies.39 However, there are some cases where this does happen, especially among employers who have recently established their business, with a large representation of ­fixed-term employees. According to a decision of the High Commercial Court in Belgrade, ‘During a period of the employment relationship, a ­fixed-term employee is entitled to participate in the election of representative bodies, to be proposed and elected to these bodies.’40

37 See Zakon o radu—najčešće zloupotrebe prava i obaveza, Savez samostalnih sindikata grada Novog Sada i opština (Labour Code—the most common abuses of rights and ­obligations, Confederation of Trade Unions City of Novi Sad and Municipalities): www.gf.uns.ac.rs/…/ ZOR_najcesce%20zloupotrebe%20prava%20i%20obaveza.ppt. 38 See, eg, already mentioned decisions: Basic Court of Novi Sad, P1-401/2014 of 26 October 2016; Appellate Court of Novi Sad, Gž1 3201/2015 of 11 January 2016 39  See Decision of the High Commercial Court in Belgrade, Pž 6551/2002 of 14 April 2002. 40 Ibid.

770  Senad Jašarević F.  Specific Provisions The provisions in the Labour Code on the conclusion and effects of ­fixed-term contracts are binding for all employees. However, some laws define specific provisions on fixed-term contracts for specific categories. Such p ­ rovisions can be found in the Law on Civil Servants (Article 63),41 the Law on Employment in the Autonomous Provinces and Local Self-governments (Article 70),42 and the Law on the Foundations of the Education System (Article 132).43 Such provisions adjust this form of work to the specificities of these activities. The reasons and duration of the fixed-term employment are modified in relation to the LC. Thus, for example, according to Article 63 of the Law on Civil Servants, fixed-term employment in state bodies can be concluded: 1) for the purpose of replacing an absent civil servant until his/ her return; 2) due to a temporary increase in the workload which the existing number of civil servants cannot perform, for a maximum of six months; 3) in work places in the cabinet, for the duration of the official’s mandate; 4) for the training of a trainee during the training period. Fixed-term employment is concluded with no internal or public competition, except for the hiring of trainees (when public competition must be carried out). Since such employment relationships are concluded without public competition, and represent significant activities for the state, it was decided that ­fixed-term employment contracts could not automatically be transformed into an employment relationship of indefinite duration.44 An identical prohibition applies to employees in the Autonomous Province of Vojvodina and the municipalities, as well as in the field of education.45 G.  Collective Bargaining Agreements Deviating from Statutory Provisions The provisions of the Labour Code and other aforementioned legislation on fixed-term employment are formulated in such a way that, as a rule, they cannot be modified by collective agreements or other acts of the employer, even if they are more favourable to the employee (which is generally permitted in Article 8 of the LC).46 These provisions have been largely established in the past, and the legislator did not want to leave room for manipulation.

41  Official Gazette of the RS, Nos 79/2005, 81/2005, 83/2005, 64/2007, 67/2007, 116/2008, 104/2009, 99/2014. 42  Official Gazette of the RS, No 21/2016. 43  Official Gazette of the RS, Nos 72/2009, 52/2011, 55/2013, 35/2015, 68/2015. 44  Exceptions are trainees. 45  See the Law on Employment in the Autonomous Provinces and Local Self-governments (Art 70) and the Law on the Foundations of the Education System (Art 132). 46  Pursuant to Art 8 para 2 of the LC, general documents (collective agreements of work rules) or employment contracts may introduce more favourable rights and working conditions

Atypical Employment Relationships: The Position in Serbia 771 III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements Article 39 states: ‘An employment relationship may be effectuated for part-time work, for an indefinite or definite (fixed-term) period.’ Part-time employment, Rad sa nepunim radnim vremenom, is defined in Article 51 of the LC: ‘Part-time work, pursuant to this law, shall be defined as work that is shorter than full time.’ Full-time work entails 40 hours per week.47 The Labour Code has dedicated a special chapter (three articles) to this type of work—‘Employment relationship for part-time work’ in the section on concluding an employment relationship (‘Entry into Employment Relationships’). Like other employment contracts, part-time employment contracts must be concluded in writing and each must specify whether it is concluded for a fixed term or indefinitely.48 If this is not indicated in the contract, it shall be deemed that the employee has concluded an employment relationship for an indefinite duration.49 According to the Supreme Cassation Court of Serbia, these rules apply to all forms of employment (employment contracts of indefinite duration, for fixed-term work, probation period, part-time work, work at the employer’s premises and to the employment of domestic servants).50 B.  Opportunities for/Right to Part-Time Work Part-time work is mainly used in Serbia by employers who do not need full-time workers. This form of part-time work is most traditionally used in education (primary and secondary schools), as well as in the field of health (when medical staff—doctors and nurses—work in several places).51

than stipulated in the law and other rights not covered by the law, unless the law stipulates otherwise. 47 

See Art 51 of the LC. Pursuant to Art 31 para 2 of the LC ‘The employment contract in which the term/­duration of the contract is not specifically determined shall be considered to be one of indefinite duration.’ Also, according to Art 32 of the LC, ‘the employment contract shall be concluded in writing before the employee actually assumes work. Should the employer fail to conclude an employment contract, it shall be deemed that the employee has entered into an employment relationship of indefinite duration on the day he/she has assumed work.’ 49 See also Supreme Cassation Court, Rev 2 761/2012 of 23 January 2013; Supreme Cassation Court, Rev 2 62/2015 of 9 September 2015. 50  See Supreme Cassation Court, Rev 2 761/2012 of 23 January 2013. 51  See ‘U prosveti 30.000 nastavnika s nepunim radnim vremenom’, Blic (dnevne novine) (‘In education 30,000 teachers with part-time work’, Blic (daily newspapers), 26 March 2014, www. blic.rs/vesti/drustvo/u-prosveti-30000-nastavnika-s-nepunim-radnim-vremenom/2v3qfwv. 48 

772  Senad Jašarević Pursuant to Article 41 of the LC, a part-time employee who works for one employer may enter into an employment relationship with another employer for the remaining hours to reach his/her full-time quota.52 Article 40 paragraph 3 of the LC states that the employer should notify the employees in a timely manner about available part-time and full-time jobs following the procedures and deadlines determined in the generally applicable document (these are, pursuant to the LC, collective agreements or work rules). The aim is to induce employees to move to part-time work, which is very rare in Serbia because it is very difficult to return to full-time work later. Since the salaries in Serbia are relatively low, employees cannot survive even with an income earned from full-time work. Trade union representatives believe that ‘If redistribution of hours means that the reduction of salaries will bring employees into a situation that they can no longer live from their work, then the flexibility of this type of work does not make sense.’53 Sometimes, the reason for moving to a part-time job is a temporary or permanent reduction in the scope of the employer’s work. Part-time work, but not less than half time, is one of the options offered to redundant employees.54 The aim of this legal solution is for redundant employees to partially keep their job, and to eventually move back to full-time work when the employer’s economic situation improves. Certain categories of workers have the ‘right to part-time work’. Pursuant to Article 96 of the LC, one of the parents of a child in need of special care due to a severe disability is entitled to work half-time until the child reaches the age of five years old. In that case, while the employee is working half time, s/he will receive half of his/her salary from the employer and the rest to his/ her full-time salary (compensation of salary) from the health insurance fund. Moreover, pursuant to Article 98 of the LC, a parent, guardian or ­caregiver of a person disabled by cerebral palsy, any kind of paralysis or muscular dystrophy and other severe diseases, may, upon recommendation of a competent medical authority and at his/her own request, work reduced working hours, but not less than half of full-time working hours. In that case, the employee will receive a proportionately reduced salary. In principle, if an employee transfers from full-time to part-time work to reduce his/her working time for another reason, the contract will be amended with ‘an annex to the employment contract’.55 52 According to a decision of the Supreme Cassation Court, an employee may conclude a part-time employment contract if s/he does not work for another employer full time. See Supreme Cassation Court, Rev 2 368/2015 of 23 September 2015. 53  According to Zoran Ristić from the United Branch Unions ‘Nezavisnost’. See ‘Fleksibilni rad u Srbiji: pola posla’ (‘Flexible work in Serbia, part-time job’), n 3 above. 54  Art 155(1), item 5 of the LC. See Supreme Cassation Court, Rev 2 929/2015 of 16 July 2015. 55  Pursuant to Art 171(1), item 6 of the LC. See ‘Nepuno radno vreme—aneks ugovora, propisi i mišljenja Ministarstva’ (‘Part-time work—annex to the contract, regulations and opinions of the Ministry’), Overa: www.overa.rs/nepuno-radno-vreme-aneks-ugovora-propisi-i-misljenjaministarstva.html (2 June 2016).

Atypical Employment Relationships: The Position in Serbia 773 C.  Opportunities for/Right to an Extension of Working Time Pursuant to paragraph 4, Article 40 of the LC, the employer is required to consider the request of a part-time employee to transfer to full-time work as well as vice versa. This is one of the novelties introduced in Serbia’s labour legislation in 2005, when the Labour Code was adopted. The aim is to encourage flexible forms of work and for employees to use more opportunities for part-time employment. In practice, this option did not materialise, since the employer is only required to ‘consider’ but not to fulfil the request of a part-time employee to transfer to full-time work and vice versa. D.  Rights and Status of Part-Time Worker (i)  Equal Treatment Pursuant to Article 40 of the LC, an employer shall be required to provide the same working conditions for part-time employees as for full-time employees who perform the same or similar jobs. An employee hired for part-time work shall be entitled to the applicable salary, forms of emoluments and other rights resulting from the employment relationship proportionally to his/her working time, except if stipulated otherwise in the law, general document and labour contract. As a part-time employee works fewer hours, s/he will have a proportionally lower salary and fewer other rights.56 By the same logic, other rights will be reduced such as salary compensation (if the employee falls ill), vacation bonus, severance pay upon retirement, jubilee awards (award for the duration of work in the company), etc. However, the ‘indivisible rights’ cannot be proportionally reduced, but are available in their entirety. These include rights such as protection of health and safety at work, maternity protection, maternity leave, child care, protection of disabled persons, daily or weekly rest periods, suspension of employment, right to pension and health insurance.57 (ii)  Dismissal Protection Part-time employees enjoy the same protection against dismissal as full-time employees. The procedure in case of dismissal by the employer is identical, as well as the possible reasons for dismissal.58 They enjoy the same

56 

See Supreme Cassation Court, Rev 2 205/10 of 6 July 2010. Z Ivošević and M Ivošević, Komentar Zakona o radu (Commentary on the Labour Code) (Belgrade, 2006) pp 125–27; M Đuričić and Ž Kulić, Radno pravo (Labour Law) (Belgrade, 2009) p 156; Announcement: Nepotpuno radno vreme (Part-time work), Net Posao: http://netposao.rs/nepotpuno-radno-vreme/, (2 June 2016). 58  See, eg, Supreme Cassation Court, Rev 2 448/2015 of 1 October 2015. 57  See

774  Senad Jašarević judicial protection. The same applies to the legal consequences of unlawful dismissal. The only thing that differs is the amount of salary compensation, since part-time employees earn proportionally less.59 (iii)  Other Matters Serbian labour law does not provide for other provisions that may be treated as supplementary rights for workers who have concluded part-time work contracts. E.  Information and Consultation Pursuant to the last paragraph of Article 40 of the LC, a collective agreement shall regulate cooperation with and ways of informing the trade union on part-time jobs. In practice, this provision has not been applied at all; hence the legislator’s intentions for providing this article are not quite clear. F.  Other Part-Time Arrangements Other part-time arrangements in Serbia are still not regulated. The legislator regulated ‘on-call work’, commencing in 2014. Pursuant to Article 50 of the LC, the employee and employer may agree that the employee can perform his/ her work from home for some of his/her contracted working hours. The working time shall not include the hours an employee is on standby to respond to the employer’s call to carry out work duties if such a need arises, during which the employee is not present at his/her workplace. The time spent on standby and compensation for it shall be laid down by the law, general document or employment contract. The standby hours an employee works following the employer’s call for work shall be considered working time. Other possibilities of ‘flexibilisation of working time’ currently being used worldwide, such as the allocation of working time, extending working hours and shared workplace (job-sharing), are still not represented in Serbian law. A few, mostly foreign, companies based in Serbia have introduced some of these new forms of work, but the number of such examples is extremely low.60

59 

See Art 191 of the LC. eg, ‘Da li smo dovoljno fleksibilni za fleksibilno radno vreme?’ (‘Are we enough flexible for flexible working hours?’), Infostud: https://poslovi.infostud.com/savet/Da-lismo-dovoljno-fleksibilni-za-fleksibilno-radno-vreme/330, accessed on 22 June 2016. 60 See,

Atypical Employment Relationships: The Position in Serbia 775 G.  Collective Bargaining Agreements Deviating from Statutory Provisions Trade unions have not used the legal possibility of establishing more favourable conditions for part-time workers. In the existing collective agreements in Serbia, the provisions on such issues are extremely rare. One example is the Special collective agreement of 2015 for employees in primary and secondary schools and boarding schools.61 According to Article 5 of that agreement part-time employees have priority if a full-time post becomes available in another institution (they have priority to be hired by another school or boarding school in order to work full time). Article 34 of the same agreement stipulates equal treatment of part-time employees with full-time ones in case of redundancy (years of working part time will be counted as full-time working years). IV.  TEMPORARY AGENCY WORK

A.  Legal Definitions/Formal Requirements Temporary agency work is not regulated in the Labour Code at all. ­However, following international experience, the ‘leasing of workers’ has been implemented in Serbia in recent years. The leasing of workers is governed by the temporary employment agencies act. These are, in fact, classic private employment agencies, most of which have recently started ‘leasing of workers’. Their legal basis derives from the Act on Employment and Insurance in Case of Unemployment (‘the Act on Employment’).62 The state accepts the leasing of workers by private agencies, since it is not prohibited by the LC and Serbia ratified ILO Convention No 181 on private employment agencies in 2013.63 The only regulation on ‘temporary agency work’ is found in secondary legislation, ie the Regulation on Classification of Activities,64 issued by the Government of Serbia in 2010. Agencies can register the activity (of leasing workers) due to this Regulation. There is an interesting description of activities referred to as ‘temporary employment’ in the said Regulation. This activity (under paragraph 78.2—‘Activities of temporary employment agencies’) is described as follows: It includes the provision of workers to clients for a certain period, as a supplement or temporary replacement of the client’s workforce, where employed individuals

61 

Official Gazette of the RS, No 21/2015. 4 of the Act on Employment and Insurance in Case of Unemployment, published in the Official Gazette of the RS, Nos 36/2009, 88/2010. 63  Official Gazette of the RS, International Treaties, No 2/2013. 64  Official Gazette of the RS, No 54/2010. 62  Art

776  Senad Jašarević are permanently employed in the units for the temporary provision of services. The units classified in this group do not exercise direct control over their employees who work in work places to which they are allocated by the client-employer.

Some experts believe that this provision is illegal because the Labour Code, as an overarching Law, does not recognise ‘temporary work agencies’. The Regulation cannot independently govern such matters. In addition, the Labour Code does not recognise the term ‘worker’, while the Regulation uses the terms ‘worker’, ‘client’, ‘unit’ and ‘client-employer’.65 Regardless of the fact that this type of work is not regulated, in practice, this type of work is becoming increasingly common. It is estimated that between 60,000 and 80,000 individuals work through temporary employment agencies (of a total of about 2.5 million employees).66 This type of work is popularly called the ‘leasing of workers’, ‘renting of employees’, ‘assignment of employees’ or ‘assignment of labour force’. According to an agency that organises such services: The assignment (leasing) of the labour force is a mechanism of employment, where the worker is selected and employed in a company that is a provider of HR services/leasing, but in fact works for another company which is the user of services/leasing, according to the contract on providing services by assignment of workers, in order to execute certain tasks for the client.67

These services are used when the employer needs to replace workers who are on maternity leave, absent due to illness, for short-term projects in the company, when organising promotions, fairs, exhibitions, conferences, for market research, auxiliary physical and intellectual activities, and in case of increased workloads during a particular season. The ‘replaceable labour force’ is mostly engaged through leasing manual and less qualified workers, but often, a highly-skilled labour force is employed. Generally, persons are employed in the private sector (large and small companies) through ­agencies, but also in the public sector.68

65  See M Reljanović, ‘Ko (ne) štiti prava radnika na lizing?’ (‘Who (do not) protects w ­ orkers’ rights on leasing?’) Biznis & Finansije (Business & Finance): http://bif.rs/2016/06/ko-nestitiprava-adnika-na-lizing/ (23 June 2016). 66 The Director General of the Petroleum Industry of Serbia, one of the most important companies in Serbia, stated in March 2015 that more than half of the total number of employees of the company, nearly 6,000, were leased. See Vodič: Radnici na lizing—Vodič o pravima radnika privremeno angažovanih preko agencija za zapošljavanje (Share fondacija i Međunaroni centar Olof Palme, Beograd, Mart 2016). (Guidelines: Workers on leasing— Guidelines on the rights of workers hired through temporary employment agencies (Share foundations and International Center Olof Palme, Belgrade, March 2016)): http://savez.rs/ wp-content/uploads/2016/03/RADNICI-NA-LIZING-VODIC.pdf. 67  Ustupanje radnika (Assignment of workers), HR Bulevar: www.ustupanje-radnika.com, accessed on 23 June 2016. 68 Ranka Savić, ‘Bez prave zaštite 70.000 radnika-najamnika’ (‘70,000 workers without the legal protection’), B 92 online, 16 March 2016: www.b92.net/biz/vesti/srbija. php?yyyy=2016&mm=03&dd=16&nav_id=1108535.

Atypical Employment Relationships: The Position in Serbia 777 Court practice tolerates such employment,69 although direct court decisions on ‘temporary agency work’ have not yet been issued in S­ erbia. Several proceedings are in progress regarding dismissal, compensation for injuries at work, and determining the existence of an employment relationship. Serbian legislation neither prohibits nor allows the leasing of workers. However, tens of thousands of workers work in this way and their number is growing. B.  Registrations, Licensing, Financial Guarantees, etc Pursuant to the Act on Employment, any employment agency must hold a work permit issued by the ministry responsible for employment and must be entered in the register. To obtain a permit (which is valid for five years), an employment agency must meet certain requirements regarding: 1) ­spatial and technical equipment; and 2) qualification of employees. The agency must have at least one employee with a university degree, and all employees should have passed examinations for work in employment.70 Spatial and technical requirements for the work of the agency, the requirements in terms of qualifications of employees, as well as the programme, contents and manner of taking the exam for work in employment shall be defined in the specific Regulation prescribed by the minister responsible for employment.71 There are about 60 private employment agencies in Serbia. The problem is that this type of work is also performed by unlicensed agencies, which register for ‘temporary employment’ based on the Regulation on Classification of Activities. As the regulation on employment relationships does not address this type of work engagement, the Labour Inspectorate has no legal basis for controlling such agencies from the ­perspective of labour rights. Licensed agencies are controlled by the ministry, but only in terms of meeting space and technical requirements and p ­ rofessional qualifications of staff. Therefore, there is complete ‘legal chaos’ in this area of business.

69  Basic Court of Novi Sad, P1-401/2014 of 26 October 2016. Confirmed by the Appellate Court of Novi Sad, Gž1 3201/2015 of 11 January 2016. The decision states: ‘Furthermore, engagement of service companies to provide various kinds of services and hiring of workers outside the employment relationship, pursuant to this court, represents the business policy of the employer, this defendant …’. 70  Arts 20–27 of the Act. 71  Regulation on spatial and technical requirements for the work of the temporary work agency, requirements for the qualification of staff, programme, contents and manner of taking the exam for work in employment. Official Gazette of the RS, No 98/2009.

778  Senad Jašarević C. Relationship between Temporary Agency Worker and Temporary Work Agency (i)  Fixed-Term and Part-Time Contracts Upon receiving a request from a client (user of services), the temporary work agency selects employees who best meet the employer’s needs and concludes a corresponding labour contract with the employee in accordance with the user undertaking’s instructions. Predominantly fixed-term or temporary and occasional work contracts are concluded for such assignments. The agency is responsible for all administrative tasks related to the employees (registering them, their social security contributions, etc). In fact, the temporary work agency assumes the role of formal and legal employer and is in charge of the entire process of administrative management of employees.72 Selected workers with available documentation are sent to the ordering party (user undertaking). The ordering party is only required to keep documents issued for each worker for the period the worker is engaged by him/her.73 (ii)  Rights and Obligations/Liability The legal status of temporary agency workers is unclear, ie it is not clear who is responsible for specific rights of these employees. In terms of administration, the temporary work agency is the employer but actually, the real employer is the client/user undertaking. This ambiguity results in a large variation of rights to assigned workers, which is reflected in the ‘deprivation’ of many legal rights that regular employees have. According to the trade unions, leased workers have practically no legal protection and are left to the will of the employer and employment agencies. Their rights are far fewer than those of the employees who work under contracts of indefinite duration or who are directly employed by the employer, without the mediation of employment agencies: they do not have a meal allowance, transport, or paid overtime; they mostly work for a minimum salary, and they can be transferred from one company to another.74 The rights of this group of workers are so poor that the assignment of workers is, in the public perception, equivalent to the exploitation of people

72 

Ustupanje radnika (Assignment of workers), HR Bulevar: www.ustupanje-radnika.com. Pravni okvir i rupe u zakonu—ustupanje i lizing radnika u Srbiji (Legal framework and loopholes in the law—assignment and leasing of workers in Serbia), HR Bulevar: www. ustupanje-radnika.com/#!Pravni-okvir-i-rupe-u-zakonu-ustupanje-i-lizing-radnika-u-Srbiji/ c219o/571e1d4c0cf232b075cd7e06, accessed on 23 June 2016. 74 According to Ranka Savić, chairwoman of the Association of Free and Independent Unions. See ‘Bez prave zaštite 70.000 radnika-najamnika’ (‘70,000 workers without the legal protection’), n 68 above. 73 Eg,

Atypical Employment Relationships: The Position in Serbia 779 in a form of ‘legalised slavery’. Such workers, by their own account, regularly work more than eight hours a day (the legal limit of working hours), without the right to free weekends or annual leave, with a salary that is half that of permanently employed colleagues in the same company.75 (iii)  Dismissal Protection Workers employed through temporary work agencies do not have any formal legal protection from dismissal. In practice, they have a high degree of ‘job insecurity’ because they never know for how long they will have work or whether other workers will be hired in their place for any given reason. As the trade unions have pointed out, ‘workers who are engaged through leasing are in constant fear of potentially losing their job.’76 D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship During the entire period of employment with the same ‘user undertaking’, temporarily assigned workers remain employed by the temporary work agency, while in fact the user undertaking makes all the decisions related to their work. Assigned employees under a contract with the temporary work agency have an obligation to follow all instructions given by the user undertaking. At the same time, they usually do not have a contract with the employer for whom they work, which is in fact the objective of this type of work arrangement. Consequently, financial and other commitments to the temporarily assigned worker can be circumvented.77 (ii)  Rights and Obligations/Liability The user undertaking usually carries certain obligations according to the contract it concludes with the temporary work agency. Upon employing the temporary agency worker, the user undertaking is required to introduce the process and means of work, the work duties and disciplinary rules at work, the safety rules and other standards of the employer. The employer is also required to regularly pay a fee to the temporary work agency (which, in turn, pays the employee and the contributions to the state). 75  Pravni okvir i rupe u zakonu—ustupanje i lizing radnika u Srbiji (Legal framework and loopholes in the law—assignment and leasing of workers in Serbia), n 73 above. 76 Ranka Savić, ‘Bez prave zaštite 70.000 radnika-najamnika’ (‘70,000 workers without legal protection’), n 68 above. 77 See Ustupanje radnika (Assignment of workers), HR Bulevar: www.ustupanje-radnika. com.

780  Senad Jašarević (iii)  Health and Safety The user undertaking is required to respect all legal provisions that govern safety and health protection at work. This indirectly results from the provisions of the LC as well as the Act on Health and Safety at Work.78 In practice, it is still unclear who bears responsibility in case of injury at work; whether it is the user undertaking, the temporary work agency or is the liability divided between the two? Several court cases on this issue are currently underway. E. Relationship between Temporary Work Agency and User Undertaking A contract on ‘assignment of employees’, ‘leasing of employees’ or providing ‘temporary employment services’ shall be concluded between the temporary work agency and the user undertaking. The content, the name of the contract, and the parties’ obligations are not regulated.79 Since no other regulations exist, the classic rules of contract law are applied to these contracts, which are defined in the Civil Code—Zakon o obligacionim odnosima.80 F.  Rights and Status of Temporary Agency Worker (i)  Equal Treatment Unlike other workers in flexible forms of work in Serbia, who have some kind of legal protection, ‘temporary agency workers’ are legally ‘invisible workers’. Therefore, they are completely excluded and obviously discriminated against, but the state does not take any measures to protect them. It seems that the greatest discrimination is in area of payments. Employees in this category are regularly paid less than permanently employed workers, and they often work for a salary which is below the legal ­minimum wage.

78  See Art 4 of the Act: ‘An employee is a domestic or foreign natural person in an employment relationship with the employer, as well as any other person that performs work for the employer or is trained by the employer, except persons hired for household help.’ The Act was published in the Official Gazette of the RS, No 101/2005. 79  Eg, some agencies refer to this contract as ‘a service contract on the assignment of workers to fulfil a specific task for a client.’ 80  The Civil Code was published in the Official Herald of the Socialist Federal Republic of Yugoslavia (SFRJ), Nos 29/1978, 39/1985, 45/1989, 57/1989, Official Herald of the Federal Republic of Yugoslavia, No 31/1993, Official Gazette of the RS, No 1/2003.

Atypical Employment Relationships: The Position in Serbia 781 Nevertheless, in practice, there are certain rights that these workers as well as other employees enjoy, since those rights are practically ‘indivisible’. These include, for example, the right to protection at work, a break during the daily working hours, daily and weekly rest periods, and absence during the holidays. A law that will regulate this area is being prepared, and will most likely slightly improve the legal situation of temporary agency workers, but it is uncertain whether it will accord them fully equal treatment with regular employees.81 (ii)  Other Matters N/A G. Information and Consultation/Representation of Temporary Agency Worker It is difficult to imagine temporary agency workers in Serbia exercising certain ‘collective rights’, such as the right to form trade unions, the right to be informed, the right to consultation and the right to strike. However, this is one of the obligations under Article 11 of the Convention on Private Employment Agencies, ratified by Serbia. These rights will most likely be regulated by the Law that is currently in preparation.82 H. Strikes No legal regulation of the right to strike exists for this category of workers. According to Article 61 of the Constitution of Serbia,83 only ‘employees’ (but not persons engaged in flexible forms of work) are entitled to strike. The category of temporary agency workers is somewhere in between those two categories, so they do not formally have the legal right to strike. If such workers join the strike by employees at the employer, they can be replaced,

81  Regulacija ‘lizinga radne snage’ u Republici Srbiji, Fondacija Centar za demokratiju, ­ eograd, 30 November 2016, (Regulation of ‘leasing of labour’ in the Republic of Serbia, the B Center for Democracy Foundation, Belgrade, 30 November 2016), p 6: http://eukonvent.org/ wp-content/uploads/2017/01/FCD-100-DANA-Regulacija-lizinga-radne-snage_-u-RepubliciSrbiji.pdf. 82 See Regulacija ‘lizinga radne snage’ u Republici Srbiji (Regulation of ‘leasing of labour’ in the Republic of Serbia), n 81 above. 83  The Constitution is published in: Official Gazette of the RS, No 98/2006.

782  Senad Jašarević and they would probably be dismissed without any sanction (which would in other cases be contrary to Serbian Strike Law).84 The use of temporary agency workers as substitutes for employees who are on strike is not permitted.85 I.  Collective Bargaining Agreements Deviating from Statutory Provisions To date, no collective agreements for temporary agency workers have been concluded. It is possible that following the adoption of the Law currently in preparation, the conclusion of a collective bargaining agreement may be admissible. However, it is unlikely that this category of workers will have the opportunity in the process of collective bargaining to gain more favourable rights than those of permanent employees, since the objective of employers in Serbia is precisely the opposite.

84  See Art 14. The Law is published in: Official Gazette of the Former Republic of ­Yugoslavia, No 29/96 and Official Gazette of the RS, Nos 101/2005, 103/2012. 85  According to Art 15 of the Strike Law, ‘during a strike organised under the conditions established by this Law, an employer may not employ new persons to replace participants in a strike, unless the safety of persons and property is threatened.’

30 Atypical Employment Relationships: The Position in Slovakia ROBERT SCHRONK

I. INTRODUCTION

A

TYPICAL EMPLOYMENT RELATIONSHIPS, their importance and the need for such relationships have only emerged in Slovakia in the last 15 years. Until now, the ‘gold standard’ of full-time employment contracts of indefinite duration prevailed (making up about 80 per cent of all employment contracts). There are only a few types of atypical employment relationships, including part-time employment and fixed-term contracts (each making up around five per cent of all employment contracts). In recent years, the number of temporary agency workers has risen. The main legal source of regulation of atypical forms of employment is the Labour Code (Zákonník práce), Act No 211/2001 Collection of Laws—Zbierka zákonov (‘Coll’—Zz) adopted in 2001 and in force since 1 April 2002. II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements Slovak labour law includes a definition of the fixed-term employment relationship (pracovný pomer na dobu určitú). Yet this definition is slightly ‘inverted’. It is regulated in Article 48 of the Labour Code.1 According to Article 48(1) of the Labour Code, an employment relationship will be deemed to have been agreed for an indefinite period, if its duration is not expressly defined in the employment contract or if the legal conditions for the conclusion of fixed-term employment contracts were not met at the time the employment was signed or modified (Article 48(2) and (4) of the 1 

Act No 311/2001 Collection of Laws (Coll) Labour Code.

784  Robert Schronk Labour Code). An employment relationship will also be deemed to have been concluded for an indefinite period if the fixed-term employment relationship was not concluded in writing. While the duration of the employment relationship must be explicitly defined in the contract, the law does not specify how it ought to be defined. It can be based on a specific calendar date or can be dependent on the nature or purpose of the work to be performed.2 According to Article 17(2) of the Labour Code, contracts that are not concluded in the form prescribed by the Labour Code shall only be deemed void if this is explicitly stipulated in the Labour Code or in a special regulation.3 An employment relationship shall generally be established in writing in an employment contract between the employer and the employee, and the employer is required to provide the employee with a written copy of the employment contract (Article 42(1) of the Labour Code). However, this written form of the employment contract is prescribed without expressly stipulating any sanction of invalidity if it has not been concluded in writing. Since no sanction of invalidity applies (Article 17(1) of the Labour Code), an indefinite employment contract concluded orally is also valid. A fixed-term employment contract must, however, be concluded in writing. As mentioned above, an employment relationship shall be deemed to be one of indefinite duration if the fixed-term employment relationship was not agreed in writing.4 B.  Lawful Stipulation of the Contractual Terms There are no restrictions in Slovak labour law on the admissibility of fixedterm employment contracts. The contracting parties may agree by mutual consent what type of employment relationship to establish. This does not apply in certain cases to consecutive fixed-term employment contracts. Slovak labour law is quite clear about the consecutive conclusion of fixedterm employment contracts. First and foremost, a renewal (consecutive) fixed-term employment relationship can only be agreed within six months

2  According to the judgment of the Supreme Court of the Slovak Republic, čk 5 Cdo 77/01, if the duration of employment was agreed for the performance of specific work, then the fulfilment of the legal requirements (employment for a maximum period of three years—now two years) can only be assessed at the time of termination of the employment relationship, no later than the expiration of three (now two) years from commencement. If the relevant work has not ended prior to the expiry of three (now two) years from the conclusion of the employment contract, the employment relationship will be deemed to have been concluded for an indefinite period. 3 Eg, according to art 45(3) the Labour Code, the probation period must be agreed in writing, otherwise it shall be invalid. 4  Art 48(1) of the Labour Code.

Atypical Employment Relationships: The Position in Slovakia 785 after the end of the previous fixed-term employment contract between the same parties.5 According to Article 48(2) of the Labour Code, a fixed-term employment relationship may be agreed for an overall maximum of two years. A fixedterm employment relationship may be extended or renewed at most twice within a two-year period (without objective grounds). A further extension or renewal of a fixed-term employment relationship to two years or beyond two years can only—according to Article 48(4) of the Labour Code—be agreed in the following cases: a) substitution of an employee who is on maternity leave, parental leave, leave immediately linked to maternity leave or parental leave, an employee with a temporary incapacity for work or an employee who is on long-term leave to perform a public function or trade union function, b) the performance of work requiring a significant increase in the number of employees for a temporary period not exceeding eight months of the calendar year, c) the performance of work linked to the seasonal cycle, which is repeated every year and does not exceed eight months of the calendar year (seasonal work), d) the performance of work agreed in a collective agreement. The reason for extending or renewing a fixed-term employment relationship according to Article 48(4) of the Labour Code shall be stated in the employment contract.6 If it is not, the employment contract can be considered one of indefinite duration (Article 48(1) of the Labour Code).7 According to Article 48(9) of the Labour Code, all limitations listed in Article 48 (2) to (7) of the Labour Code shall not apply to employment in a temporary work agency. C.  Termination/End of Fixed-Terms Contracts An employment relationship concluded for a fixed period shall terminate upon the expiry of the agreed period.8 According to Article 71(2) of the Labour Code, in cases in which an employee continues (with the knowledge of the employer) to perform work upon the expiration of the agreed period, this employment relationship will 5 

Art 48(3) of the Labour Code. Art 48(5) of the Labour Code. 7  ‘A further extension or renewal of a fixed-term employment relationship up to two years or beyond two years can be agreed with a teacher in higher education or an employee involved in scientific studies, research and development, if objective reasons exist relating to the nature of the activity as stipulated in a special regulation’ (art 48(6) of the Labour Code). 8  Arts 59(2) and 71(1) of the Labour Code. 6 

786  Robert Schronk be deemed to have transformed into one of indefinite duration, unless the employer agrees otherwise with the employee. Prior to the expiration of the agreed period, fixed-term employment relationships may be terminated, as in the case of employment contracts of indefinite duration, namely by agreement, by notice, by immediate termination or by termination during the probation period. The legal consequences of invalid fixed-term employment relationships are specified in Article 48(1) of the Labour Code. No special provisions exist on any legal proceedings in connection with fixed-term employment relationships.9 D.  Rights and Status of Fixed-Term Workers (i)  Equal Treatment The principle of non-discrimination against fixed-term employees is explicitly enshrined in the Labour Code. According to Article 48(7) of the Labour Code, a fixed-term employee may not be given more or less favourable treatment than a comparable employee with reference to working conditions and the terms of employment as well as with reference to safety and health at work.10 According to the Labour Code, a comparable employee is an employee with an employment contract of indefinite duration, with a determined weekly working time for the same employer or for an employer according to Article 58 (including temporary work agencies), who carries out (or would carry out) the same type of work or a similar type of work, taking into consideration the worker’s qualifications and experience in the relevant field.11 (ii)  Employment Opportunities According to Article 48(8) of the Labour Code, the employer shall (in a suitable manner) inform fixed-term employees as well as employee representatives about any permanent vacancies that become available in the undertaking.

9  Within the framework of the civil procedural law reform in 2015, three new Acts were adopted. They have been in force since 1 July 2016. One of them is Act No 160/2015 Coll. Litigation Civil Procedure. Chapter Two of the Third Part of this Act regulates ‘Disputes with protection of the weaker party’. As regards individual labour disputes (Arts 316–323), the employee may, eg be represented by a trade union. The court of first instance shall inform the employee about his/her procedural rights and obligations and instruct him/her on the evidence to be submitted. 10  Act No 124/2006 Coll on Safety and Health at Work. 11  Art 40(9) of the Labour Code.

Atypical Employment Relationships: The Position in Slovakia 787 (iii)  Other Matters As mentioned above, fixed-term workers are entitled to the same rights as full-time employees. As regards the cited limitations provided in Article 48(2) to (7) of the Labour Code, these, according to Article 48(9), shall not apply to employment in a temporary work agency. E.  Information and Consultation Fixed-term employees have the same rights as full-time employees as regards information and consultation.12 Only two special provisions exist in connection with the election of the works council and staff representatives. According to Article 234(2) of the Labour Code, the right to elect members to the works council or staff representatives shall be enjoyed by all employees who have been working for the employer for at least three months. Similarly, under Article 234(3) of the Labour Code, eligibility to be elected as a member of the works council or as a staff representative shall apply to each employee who is over the age of 18 years, is without reproach, does not have a close or personal relationship with the employer, and has worked for the employer for at least three months. The employer must generally negotiate with employee representatives in advance on the situation, structure and presumed development of employment (of all employees, including fixed-term workers), and any measures planned, particularly when employment is threatened.13 F.  Specific Provisions The regulations on fixed-term employment differ considerably in Act No 131/2002 Coll on Higher Education. According to Article 77(2) of this Act, an employee without a scientific-pedagogical degree of ‘professor’ or ‘docent’ (associate professor) may be employed as an academic teacher on the basis of a fair and open competition for a period not exceeding five years. An academic teacher may fill the post of a ‘docent’ or ‘professor’ on the basis of a fair and open competition for a period not exceeding five years. If an academic teacher has filled the post of ‘docent’ or ‘professor’ for the third time for a total period of at least nine years in such posts, and if s/he has the appropriate scientific-pedagogical degree, s/he acquires the right to an employment contract as an academic teacher with the higher education institution and an appointment to this post until s/he reaches the age of 70 years.14 12 

Part Ten of the Labour Code, Arts 229–250a. Art 237(2)(a) of the Labour Code. 14  Art 77(4) of Act No 131/2002 Coll. 13 

788  Robert Schronk The employment of an academic teacher terminates at the end of the academic year in which the employee turns 70 years old, unless his/her employment terminated earlier based on special regulations (Labour Code). The Rector or Dean (if s/he is an employee assigned to the faculty) may conclude an employment contract for the position of academic teacher with a person older than 70 years if the employee has been engaged at the faculty for no longer than one year; such an employment contract may be concluded repeatedly.15 G.  Collective Bargaining Agreements Deviating from Statutory Provisions The regulations on fixed-term contracts in Article 48 of the Labour Code apply. The only exception is found in Article 48(4) of the Labour Code. A further extension or renewal of the fixed-term employment ­relationship to two years or beyond two years may only be agreed for the reasons stated in this Article. One of these reasons, according to ­Article 48(4)(d) of the Labour Code, is the performance of work agreed in a collective agreement. The Labour Code does not specify what type of work can be agreed in a collective agreement. This may include an objective reason, a temporary need of the employer due to the nature of the particular job, and when the work differs from that normally carried out in the enterprise. In practice, such extensions occur when an employee is being substituted during paid annual leave that is longer than two weeks. III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements Working time, according to Article 85(1) of the Labour Code, refers to ‘the time segment when an employee is at the disposal of the employer, performs work and fulfils his/her obligations pursuant to the employment contract.’ Part-time employment is understood as employment with reduced working hours compared with the established weekly working time. According to Article 49(1) of the Labour Code, the employer and employee may agree on a shorter working time than the established weekly working time.16 The standard working time pursuant to Article 85(1), (5) to (7) shall be the established weekly working time.17 The working hours an employee is 15 

Art 77(6) of Act No 131/2002 Coll. working times need not be distributed across all working days (Art 49(3) of the Labour Code). 17  Art 85(5)–(7) of the Labour Code regulate the maximum length of the weekly working time (5), the maximum weekly working time of employees who work with proven chemical 16  Shorter

Atypical Employment Relationships: The Position in Slovakia 789 required to work in a given week after the distribution of the established weekly working time shall be his/her set weekly working time.18 B.  Opportunities for/Right to Part-Time Work As regards the opportunities for working, or right to work, part time, it is generally a matter of agreement. According to Article 49(2) of the Labour Code, an employer may agree with the employee to amend the established weekly working time to a shorter (reduced) weekly working time, or alternatively increase a shorter weekly working time to the established weekly working time. In certain cases and under certain conditions, the employee has the right to work part time. According to Article 164(2) of the Labour Code, if a pregnant worker or a worker caring for a child that is younger than 15 years of age requests a reduction of his/her working time or any other arrangement of the established weekly working time, the employer has the obligation to accommodate the worker’s request, unless serious operational reasons prevent the employer from fulfilling the request. The provisions of Article 164(2) of the Labour Code also apply to an employee who is caring for a close relative who is mostly or fully disabled and is not provided with the necessary care in a social care facility or health care facility.19 As stated above, according to Article 49(2) of the Labour Code, an employer may also agree with the employee to increase shorter weekly working hours to the established weekly working time. The employer has the duty to inform employees and employee representatives in a suitable manner about available jobs with a reduced working time and about the established weekly working time.20 C.  Opportunities for/Right to an Extension of Working Time Part-time workers do not have the right to an extension of their working time. As stated above, according to Article 49(2) of the Labour Code, carcinogens and sources of ionising radiation (6), and the maximum weekly working time of an adolescent employee (7). 18  Special regulations (Art 49a of the Labour Code) apply to Employment relationships with shorter working times within the scope of job-sharing. Job-sharing refers to jobs in which the employee distributes the working time and workload between him-/herself and other workers independently within an employment relationship with a reduced working time (Art 49a(1) of the Labour Code). 19  Art 165 of the Labour Code. 20  Art 49(6) of the Labour Code.

790  Robert Schronk an employer may also agree with an employee to increase his/her shorter weekly working time to the established weekly working time. D.  Right and Status of Part-Time Worker (i)  Equal Treatment According to Article 49(5) of the Labour Code, an employee who works reduced hours may not be advantaged or disadvantaged in comparison with a comparable employee. The general provisions of Article 13(1) and (2) of the Labour Code apply. The employer is required to treat employees in accordance with the principle of equal treatment established by the Act on Equal Treatment in Certain Areas and on the Protection against Discrimination and on Amending and Supplementing Certain Acts (Anti-discrimination Act).21 It is prohibited to discriminate against an employee on the grounds of gender, marital and family status, sexual orientation, race, skin colour, language, age, unfavourable health or disability, genetic traits, belief, religion, political or other conviction, trade union activity, the national or social origin, national or ethnic group affiliation, property, lineage or other status or based on a notification of a committed crime or other antisocial activities.22 (ii)  Dismissal Protection Employees in an employment relationship with a shorter (reduced) working time are entitled to the same dismissal protection as full-time employees; that is, no distinction is made between full-time and part-time workers with regard to dismissal protection. E.  Information and Consultation As regards the regulations on information and consultation, part-time employees are entitled to the same rights as full-time employees.23 ­According to Article 237(2)(a) of the Labour Code, the employer must generally negotiate with employee representatives in advance on the situation, ­structure

21 

Act No 365/2004 Coll. According to Art 13(3) of the Labour Code, no employee may be mistreated or otherwise adversely treated (sanctioned) for having submitted a complaint, action or motion to initiate criminal proceedings or any other notification about a crime or other antisocial activities against another employee or against the employer. 23  Part 10 of the Labour Code, Arts 229–250a. 22 

Atypical Employment Relationships: The Position in Slovakia 791 and presumed development of employment and any measures planned, particularly if employment is at risk. Only two special provisions exist. Pursuant to Article 49(6) of the Labour Code, an employer must inform the employees and employee representatives in a suitable manner about available posts with a reduced working time and about the established weekly working time. For the purpose of exercising the right to transnational information and negotiation,24 the minimum number of prescribed employees is based on the average number of employees, including part-time employees, employed by the employer operating in the territory of EU Member States or a group of employers operating in the territory of EU Member States in the previous two years.25 F.  Other Part-Time Arrangements Other part-time arrangements include job-sharing. According to Article 49a(1) of the Labour Code, job-sharing refers to jobs in which the employees distribute the working time and the job description independently within an employment relationship with a reduced working time (part-time work). If the employees with whom the employer has concluded job-sharing agreements cannot agree on the distribution of working time or of the job description among themselves, a decision will be taken by the employer. G.  Collective Bargaining Agreements Deviating from Statutory Provisions The regulations regarding part-time contracts in Article 49 of the Labour Code are compulsory. There are no special regulations on collective bargaining agreements in connection with part-time employment. The only one is Article 48(4)(d) of the Labour Code (a further extension or renewal of a fixed-term employment relationship to two years or beyond two years can also be concluded for performance of work agreed in a collective agreement). IV.  TEMPORARY AGENCY WORK

A.  Legal Definitions/Formal Requirements The Slovak Republic is among the countries with a relatively liberal legal regulation of temporary agency work. Employment through a temporary 24  25 

Art 241a(1)(a) and (c) of the Labour Code. Art 241a(9) of the Labour Code.

792  Robert Schronk work agency is widespread and was often in the past misused in practice. The amendment of the Labour Code adopted by Act No 14/2015 Coll, which has been in force since 1 March 2015, introduced some changes to prevent the misuse of this type of employment. According to Article 29(1) of Act No 5/2004 Coll on employment services, a temporary work agency is a legal or natural person employing an individual under an employment relationship for the purpose of temporarily assigning him/her to a user undertaking in the Slovak Republic for the performance of work under its supervision and direction or for the purpose defined by a specific regulation.26 There is no legal definition of temporary agency worker. Temporary Agency Workers can be defined as workers who are in an employment relationship with a temporary work agency for the purpose of being assigned to temporarily work for a user undertaking. The user undertaking is a legal or natural person to whom the temporary work agency temporarily assigns an employee (with whom an employment relationship has been concluded) to perform work.27 Temporary assignments cover a period during which the temporary agency worker is temporarily assigned to a user undertaking to perform work. A temporary assignment must have a clearly defined period. To fight the so-called ‘disguised temporary assignment of workers’, Article 58(2) of the Labour Code, which has been in force since 1 March 2015, states that unless the temporary work agency proves otherwise, the performance of work by an employee through whom the temporary work agency carries out activities for a legal or natural person shall also be considered a temporary assignment, if a) the legal or natural person assigns tasks to the employee, organises, directs and supervises his/her work and gives him/her instructions for this purpose, b) this activity is primarily performed on the premises of a legal or natural person and its work equipment is largely being used or if this activity is mainly carried out in the facilities of a legal or natural person, and c) it is the activity the legal or natural person has registered in the appropriate register. The working conditions, including the wage conditions and the conditions of employment of temporarily assigned workers, must be equal to those of 26  One specific regulation is Art 5(2)–(13) of the Labour Code, which regulates labour law relationships of employees who are posted by their employers established in another Member State of the European Union or a State party to the Agreement on the European Economic Area, for the performance of work in the provision of services to the Slovak Republic, as well as labour law relationships of employees who are posted by their employers to perform work in the provision of services from the Slovak Republic to another Member State of the European Union or a State party to the Agreement on the European Economic Area. 27  Art 40(10) of the Labour Code.

Atypical Employment Relationships: The Position in Slovakia 793 a comparable employee of the user undertaking. The working and employment conditions according to Article 58(11) of the Labour Code are: a) working time, breaks at work, rest periods, overtime work, on-call work, night work, holidays and public holidays, b) wage conditions, c) safety and protection of health at work, d) compensation for any damages in the event of an occupational accident or occupational disease, e) compensation in the event of insolvency and the protection of rights of temporary employees, f) protection of pregnant workers, mothers who have given birth in the last nine months, workers who are nursing, and workers who are taking care of children and adolescents, g) the right to collective bargaining, h) catering conditions. B.  Registrations, Licensing, Financial Guarantees, etc The competences and duties of the Centre of Labour, Social Affairs and Family (‘the Centre’) according to Article 12 of the Act on employment services, include, among other things: —— establishing facilities to fulfil tasks pursuant to this Act and establishing, where appropriate, a temporary work agency—Art 12(j), —— issuing, changing, suspending, cancelling or issuing a duplicate of the licence to a legal or natural person for performing the activity of a temporary work agency, pursuant to Article 29(4) and Article 31(3). A licence to perform the activity of a temporary work agency shall be issued by the Centre for an indefinite period. The Centre will not issue a permit to operate as a temporary work agency to legal or natural ­persons who have the status of a social enterprise to promote labour ­market integration under Article 50b.28 At the written request of a temporary work agency submitted to the Centre, the licence to operate a temporary work agency can be changed, suspended, cancelled or duplicated. The Centre shall issue a duplicate in case of loss, theft, impairment of the permission to operate as a temporary work agency, or in the case of the loss of a certificate of change, suspension or revocation of the authorisation to perform the activity of a temporary employment agency.29

28  The social enterprise promoting labour market integration mostly employs disadvantaged job seekers (Art 50b of the Act on employment services). 29  Art 29(4) of the Act on employment services.

794  Robert Schronk A natural person may carry out the activities of a temporary work agency, providing that s/he is a person without prior convictions, with a completed master’s degree, and that s/he is licensed to perform the relevant activities. In case of a legal person, the requisites of no prior convictions and the completion of a master’s degree shall be fulfilled by the person acting on behalf of the temporary work agency.30 Another condition for being granted authorisation to operate as a temporary work agency is that the legal person holds its own equity in the amount of at least EUR 30,000.31 A temporary work agency whose licence for the performance of the activity has been cancelled (Article 31(2) and (3) of the Act), shall not be issued a new licence for performing the activity of temporary agency work by the Centre before the lapse of a period of three years from the cancellation of the preceding licence.32 Application for a licence to operate as a temporary work agency includes: a) name, registered office, identification number and type of economic activity of the legal person, or name, surname and permanent address of the natural person, b) documentation on the level of education of the natural person; in the case of a legal person, the document on the level of education must be that of the individual acting on behalf of the legal person, c) the region or regions in which the legal or natural person will perform its activities.33 The application for a licence to perform temporary agency work activities shall be accompanied by a list of the temporary work agency’s activities, including its estimated revenues and expenses, contracts for leasing, or documents on ownership of the applicable premises, proof of the availability of material conditions enabling the legal or natural person to carry out temporary agency work activities, the necessary human resources, meeting the requirements of the temporary work agency document, namely providing a bank guarantee of at least EUR 15,000 in the case of a natural person, a Labour Inspectorate certificate that is not older than three months stating that the natural person has not breached the prohibition of illegal employment in the three years preceding the application for the licence, and other documents as set out in Article 29(7) of the Act on employment services.

30  The lack of any prior convictions shall be proven by presenting a statement of the criminal records, predated by three months at most. 31  Art 29(3) of the Act on employment services. 32  Art 29(5) of the Act on employment services. 33  Art 29(6) of the Act on employment services.

Atypical Employment Relationships: The Position in Slovakia 795 The licence to perform activities for the temporary work agency shall include in particular: a) the name, registered office, identification number and type of economic activity of the legal person, or name, surname and permanent address of the natural person; b) the region or regions in which the temporary work agency will perform its activities; c) the range (scope/type) of employment for which the temporary workers will be assigned by the temporary work agency.34 The licence to perform temporary agency work activities shall be issued by the Centre for an indefinite period. The temporary work agency is required: —— to ensure proper conditions for the controlling authorities to enable them to verify compliance with the generally binding legal regulations in the field of employment services, and to submit the required information and documents to them, and —— to submit an annual report on its activities to the Centre, and —— to have its own equity in the amount of at least EUR 30,000 (for legal persons).35 According to Article 31(2) of the Act on employment services, the Centre may suspend the activities of a temporary work agency until any breach has been corrected, or it can cancel the licence by submitting a proposal to the authorities specified in Article 31(3). The Centre can cancel the licence, if the temporary work agency: a) has not allocated any temporary agency workers for one year, b) has failed to fulfil its obligations under (1)(f) or (g)36 or has included false data in an annual activity report, c) has violated the prohibition of illegal employment. The following authorities are authorised to submit a proposal to suspend the activities or to cancel the licence of a temporary work agency: a) the competent tax office, having ascertained that a violation of the legal regulations on taxation has taken place, b) the competent Office of Labour, Social Affairs and Family, having ascertained that a violation of the legal regulations on employment services has taken place, 34 

Art 29(8) of the Act on employment services. Art 31(1)(e), (f) and (g) of the Act on employment services. 36  Its obligations according to Art 31(1) are: (f) submit an annual report on the activities to the Centre; (g) the condition for granting authorisation to operate a temporary work agency is that a legal person has its own equity in the amount of at least EUR 30,000. 35 

796  Robert Schronk c) the competent Labour Inspectorate, having ascertained that a violation of labour law regulations, rules governing the prohibition of illegal work and illegal employment and regulations in the field of occupational safety and health protection has taken place, d) the Social Security Agency if it has found a failure to levy social insurance and compulsory contributions to retirement savings, e) employee representatives, if a violation of labour law regulations has been identified during inspection (Articles 149 and 239 of the Labour Code), f) an individual damaged by the activities performed by the temporary work agency. The Centre and Office of Labour, Social Affairs and Family may impose a fine on the legal or natural person for performing temporary agency work activities without authorisation. The fine ranges from EUR 5,000 to EUR 100,000.37 C. Relationship between Temporary Agency Worker and Temporary Work Agency (i)  Fixed-Term and Part-Time Contracts In accordance with the Act on employment services, the temporary work agency may agree in writing with a worker with whom an employment relationship has been established to temporarily assign him/her to perform work for a user undertaking. Only one restriction exists. Temporary assignments may not be agreed for the performance of work which the competent public health body has ranked category 4 in accordance with Act No 355/2007 Coll on protection, support and development of public health, to protect the health of the temporarily assigned worker as well as for the protection of health of the employees of the user undertaking. In the employment contract concluded between the temporary work agency and the temporary agency worker, the agency undertakes to provide the employee with temporary work at a user undertaking and the conditions of such employment are determined.38 According to Article 58(5) of the Labour Code, the temporary assignment agreement concluded in writing between the temporary work agency and the employee, if concluded for a fixed term, shall include the name and registered office of the user undertaking, the commencement date of the temporary assignment, its agreed duration, the type of work and location of the performance of work, the wage conditions and the conditions 37  38 

Art 68a(1)(c) of the Act on employment services. Art 58(1) and (4) of the Labour Code.

Atypical Employment Relationships: The Position in Slovakia 797 for the ­unilateral termination of the performance of work before the specified duration of the temporary assignment. Since 1 March 2015, temporary work agencies that conclude fixed-term employment contracts with workers determine the duration of the employment relationship by specifying the date of its expiry; this does not apply to temporary assignments for reasons stated in Article 48(4)(a) of the Labour Code, namely the substitution of an employee during maternity leave, parental leave, leave immediately linked to maternity leave or parental leave, temporary incapacity for work or substitution of an employee who is on long-term leave to perform a public function or trade union function.

An amendment to the Labour Code adopted by Act No 14/2015 Coll limits the maximum duration of temporary assignments and the number of consecutive temporary assignments. Since 1 March 2015, pursuant to ­Article 58(6) of the Labour Code, temporary assignments can be agreed for a maximum of 24 months. Temporary assignments to the same user undertaking may be extended or repeated up to four times within 24 months; this also applies in case of temporary assignments of the same worker by a different temporary work agency to the same user undertaking. Repeated temporary assignments are assignments through which a worker is temporarily assigned to the same user undertaking within six months following the end of his/her previous temporary assignment, and, when it is a temporary assignment for one of the reasons stated in Article 48(4)(b) or (c),39 before the expiry of four months following the end of the previous temporary assignment. The provisions of the first and second sentence of Article 58(6) shall not apply to temporary assignments concluded for substitution of an employee for reasons expounded in Article 48(4)(a).40 According to Article 58(7) of the Labour Code, if a worker is temporarily assigned to a user undertaking in violation of Article 58(6) (first or second sentence) of the Labour Code, the employment relationship between the worker and the temporary work agency will be terminated and a new employment contract of indefinite duration shall be established between the worker and the user undertaking. Within five working days from the date of establishment of the new employment relationship, the worker must be provided with 39 

Art 48(4)(b) or (c) of the Labour Code: ‘b) The performance of work in which it is necessary to considerably increase the number of employees for a temporary period not exceeding eight months of the calendar year, c) The performance of work that is linked to the seasonal cycle, which is repeated every year and does not exceed eight months of the calender year (seasonal work).’

40  Art 48(4)(a) of the Labour Code: ‘Substitution of an employee during maternity leave, parental leave, leave immediately linked to maternity leave or parental leave, temporary incapacity for work or substitution of an employee who is long-term leave to perform a public function or trade union function.’

798  Robert Schronk a written notice about its establishment; the worker’s working conditions are regulated in an agreement on the temporary assignment or in the employment contract in accordance with Article 58(5) of the Labour Code. All restrictions on fixed-term contracts provided in Article 48(2) to (7) of the Labour Code shall not apply to employment contracts concluded with a temporary work agency.41 Part-time contracts are not expressly mentioned in the legal regulations. They cannot, however, be excluded. Temporary work agencies may also conclude part-time contracts with employees. (ii)  Rights and Obligations/Liability According to Article 58(5) of the Labour Code, during the temporary assignment, the worker’s salary (wages and travel expenses) shall be paid by the temporary work agency. The wage conditions of temporarily assigned workers must be at least equal to those of a comparable employee directly employed by the user undertaking. One of the most important amendments adopted by Act No 14/2015 Coll is the shared responsibility of the user undertaking to pay the temporary agency worker a comparable wage. If the temporary work agency has not paid the temporary worker a wage that is at least equal to that earned by a comparable employee of the user undertaking, the user undertaking must compensate the worker for the difference between the salary paid to him/her by the temporary work agency and that of a comparable employee of the user undertaking within 15 days of the date of payment agreed between the agency and the agency worker. The user undertaking shall pay the temporary agency worker the difference after deductions to the wage in accordance with Article 131 of the Labour Code; for this purpose, the user undertaking will be considered to be the employer of the temporarily assigned employee. The user undertaking is obligated to inform the temporary work agency on the amount of wages paid. This obligation also applies to user undertakings to which the temporary agency worker is posted by the temporary work agency to perform work, from the territory of another Member State of the European Union to the Slovak Republic.42 As regards the obligation to provide the employee with work, pursuant to Article 58(8) of the Labour Code, the user undertaking to whom the worker has been temporarily assigned shall assign tasks to the worker during his/ her temporary assignment on behalf of the temporary work agency, organise, manage and control his/her work, and give him/her instructions for this purpose. Executive employees of the user undertaking may not execute legal actions on behalf of the temporary work agency concerning the temporarily assigned employee. Any obligations of the temporarily assigned worker 41  42 

Art 48(9) of the Labour Code. Art 58(10) of the Labour Code.

Atypical Employment Relationships: The Position in Slovakia 799 expire at the end of the agreed duration of the temporary assignment. The temporary assignment may be terminated early by agreement of the parties to the employment relationship, or by unilateral termination of either party in accordance with the agreed conditions.43 According to Article 30(1) of the Act on employment services, the temporary work agency shall provide protection to the temporary worker with reference to the working and employment conditions pursuant to special regulations. These are the Labour Code and Act No 124/20016 Coll on safety and health at work. The temporary work agency’s obligations include the following obligations:44 —— ensure the protection of the temporary worker’s personal data,45 —— enable the worker to exercise the right of association and the right of collective bargaining, —— enable the worker to access vocational training or participation in professional skills programmes to enhance his/her employability, even before his/her assignment or in between assignments to the user undertaking, —— enable the worker to access to child care facilities. The employer must provide access to catering services in accordance with the principles of proper nutrition for employees during all shifts, either inside the workplace or in close proximity to it. Since 1 March 2015, this obligation has also been extended to temporary work agencies with reference to temporarily assigned workers.46 According to Article 58(16) of the Labour Code, the user undertaking is required to keep records of temporary agency workers, namely employee identification data, identification data of the temporary work agency that has temporarily assigned the worker to the user undertaking and the date of the commencement and termination of the temporary assignment. A serious and not always explicitly regulated legal issue is the liability for damages in this trilateral relationship. As regards the relationship between the temporary agency worker and the temporary work agency, the legal regulation is quite clear. If an employee causes damage to the temporary work agency in the performance of his/her work-related tasks or in direct connection therewith, s/he shall be responsible for the damage (as is the case for regular employees in a permanent employment relationship who have caused damage to their employer, pursuant to the Labour Code).47 If an employee causes damage to the temporary work agency outside the performance of his/her work or

43 

Art 58(13) of the Labour Code. Art 31(1)(a)–(d) of the Act on employment services. 45  Act No 122/2013 Coll on the protection of personal data. 46  Art 152(1) of the Labour Code. 47  Arts 179–191 of the Labour Code. 44 

800  Robert Schronk in direct connection therewith, s/he shall be responsible for such damage in accordance with the Civil Code.48 The temporary work agency is responsible for any damage the temporary agency worker has sustained in the performance of work or in direct relation to it, as is the case of all employers in an employment relationship.49 The temporary work agency is responsible in both cases, ie for any damage the employee has caused in the performance of work in the temporary work agency and any damage s/he has caused during the performance of work in the user undertaking. According to Article 58(12) of the Labour Code, if the temporary work agency has compensated the employee for any damage sustained during the performance of his/her work tasks in the user undertaking or in direct connection therewith, it shall be entitled to compensation by the user undertaking, unless otherwise agreed with the latter. As already mentioned, the temporary agency worker’s working conditions including his/her wage conditions and the terms of employment must be at least equal to those of a comparable employee of the user undertaking.50 According to Article 58(11)(d) of the Labour Code, compensation for damage in the event of an work accident or occupational disease is also included in the working and employment conditions. (iii)  Dismissal Protection Employees who have concluded an employment relationship with a temporary work agency have the right to the same dismissal protection as other employees. Since 1 March 2015, three differences have been introduced to the legal regulations on terminations of the employment relationship and dismissal protection. First, the employment relationship shall also terminate on the basis of the Act pursuant to Article 58(7) of the Labour Code upon breach of the timelimits in paragraph (6).51 Secondly, an employer may only give notice to an employee for the reasons stated in Article 63(1)(a)–(e) of the Labour Code. According to Article 63(1)(b), the employer may give notice if an employee becomes 48  The legal regulation in the Labour Code clearly reflects the protective function of labour law. Eg, within the general responsibility of the employee for any damage caused by him/her (Art 179(1) of the Labour Code), compensation for damage caused by negligence, which the employer may demand from the employee, may not exceed an amount equal to four times the employee’s average monthly earnings prior to the breach of his/her obligations resulting in such damage (Art 186(2) of the Labour Code). Such a restriction shall not be applicable if the damages were caused by inebriation or following the use of narcotic substances or psychotropic substances. 49  Arts 192–219 of the Labour Code. 50  Art 58(9) of the Labour Code. 51 As already mentioned, according to Art 58(7) of the Labour Code, if an employee is temporarily assigned contrary to Art 58(6), first and second sentence of the Labour Code, the

Atypical Employment Relationships: The Position in Slovakia 801 redundant by virtue of the employer or competent body issuing a written resolution on the change in duties, technical equipment or reduction in the number of employees with the aim of achieving work efficiency, or on other organisational changes and (since 1 March 2015) an employer who is a temporary work agency may give such notice too, even if the employee becomes redundant due to the termination of his/her temporary assignment pursuant to Article 58 prior to the expiry of the period for which the temporary employment relationship was agreed. If the temporary assignment ends before the initially agreed date, the temporary work agency may, if it cannot provide the employee with work (to which s/he could be temporarily assigned instead), state this reason for giving notice or agree with the employee on the termination of the employment relationship. An employer may, in addition to the employee’s redundancy and in accordance with Article 58, give an employee notice prior to the expiry of the period for which s/he was assigned for unsatisfactory fulfilment of his/ her work-related tasks, for a less serious breach of discipline or for reasons for which an immediate termination of the employment relationship applies (only in cases stated in Article 63(2) of the Labour Code).52 There is an exception for the so-called ‘another suitable job offer’, which is one of the conditions for the validity of the termination with notice by the employer. D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship The relationship between the temporary agency worker and the user undertaking is an employment relationship of a special nature, since the primary obligation to perform work is not carried out by the worker on the premises of his/her employer (the temporary work agency), but on those of the user undertaking. The user undertaking and the temporary agency worker do not conclude a contract under the aegis of the Labour Code; it is a labour law relationship sui generis. The user undertaking to whom the worker is temporarily assigned must assign tasks to the worker on behalf of the temporary work agency during employment relationship between the employee and the temporary work agency will be terminated and a new employment relationship of indefinite duration will be established between the employee and the user undertaking. 52 This only applies in cases in which: (a) the employer does not have the possibility to further employ the employee, not even for a reduced working time, in the place which was agreed as the place of work performance, (b) the employee is not willing to shift to other suitable work offered to him/her by the employer at the place of work agreed as the place of work performance or undertake the necessary training for this other work.

802  Robert Schronk the temporary assignment, organise, manage and supervise his/her work, issue instructions to him/her for this purpose, create favourable working conditions and provide for safety and protection of health at work to the same extent as is the case for other employees. As mentioned above, executive employees of the user undertaking may not execute legal actions on behalf of the employer or temporary work agency concerning the temporarily assigned worker.53 (ii)  Rights and Obligations/Liability The user undertaking to whom the worker is temporarily assigned by the temporary work agency shall: a) inform temporary workers about all vacant posts to offer them the same opportunity as all other employees to conclude a permanent employment contract, b) secure access of temporary workers to all of the undertaking’s social services under the same conditions as its own employees, unless this is not possible for objective reasons, c) provide equal access by temporary workers to education and training, d) provide information to employee representatives about the use of temporary workers when informing them about the undertaking’s employment situation.54 According to Article 29(2) of the Act on employment services, the temporary work agency may not charge a fee to the temporary worker for temporary assignments to user undertakings or for signing an employment contract directly with the user undertaking following completion of the assignment. The temporary work agency is entitled to collect an agreed fee from the user undertaking for the temporary assignment of temporary agency workers. Provisions in the employment contract or agreement pursuant to Article 58a of the Labour Code prohibiting the conclusion of an employment contract between the user undertaking and the temporary agency worker following the completion of his/her assignment to the user undertaking by a temporary work agency or preventing the conclusion of such contracts or agreements shall be invalid.55 According to Article 58(9) of the Labour Code, the temporary agency worker’s travel expenses must be paid by the temporary work agency. In the past, temporary agency workers were often paid for fictitious business trips. Since 1 March 2015, only the user undertaking may send the temporary agency worker on a business trip during the temporary assignment period. 53 

Art 58(8) of the Labour Code. Art 58(15) of the Labour Code. 55  Art 58b of the Labour Code. 54 

Atypical Employment Relationships: The Position in Slovakia 803 When a temporary agency worker is sent on a business trip, the user undertaking is considered to be the employer of the temporarily assigned worker.56 According to Article 58(3) of the Labour Code, the user undertaking may not assign the worker who is temporarily assigned to it to another user undertaking. The liability for damage an employee causes to the user undertaking during the performance of work-related tasks or in direct connection therewith is not explicitly regulated. In such cases, the user undertaking may claim damages from the temporary work agency. The agency will then be entitled to a refund of the paid compensation from the temporary agency worker under the provisions of the Labour Code. If an employee causes damage to the user undertaking outside the performance of work or not in direct connection therewith, he/she can be held liable for such damage directly to the user undertaking under the Civil Code. As mentioned above, according to Article 58(12) of the Labour Code, if the temporary work agency compensated the temporary agency worker for the damage sustained in the performance of work-related tasks or in direct connection therewith at the using undertaking, the temporary work agency shall be entitled to reimbursement of such compensation by the user undertaking, unless otherwise agreed with the latter. (iii)  Health and Safety As stated above, as regards safety and health at work, pursuant to Article 30(1) of the Act on employment services, the temporary work agency shall provide protection to the temporary worker with reference to working and employment conditions established in special regulations. These are the Labour Code and Act No 124/2006 Coll on safety and health at work. The working conditions and the terms of employment also entail safety and the protection of health at work.57 According to Article 58(8) of the Labour Code, the user undertaking to which the worker has temporarily been assigned shall also establish favourable working conditions and provide for the safety and protection of health at work for the temporary agency worker to the same extent as it does for other employees. E.  Relationship between Temporary Work Agency and User Undertaking The temporary work agency may agree on the temporary assignment of an employee with whom it has established an employment relationship to the user undertaking to perform work.58 56 

Art 57(2) of the Labour Code. Art 58(11)(c) of the Labour Code. 58  Art 58a(1) of the Labour Code. 57 

804  Robert Schronk According to Article 58a(2) of the Labour Code, the temporary assignment agreement concluded between the temporary work agency and the user undertaking must include a) name and surname, date and place of birth and place of permanent residence of the temporarily assigned employee, b) the type of work the temporary agency worker will perform, including the estimated health and psychological requirements for the work or other requirements according to special legislation, c) the period for which the temporary assignment has been agreed, d) the location where the work is to be performed, e) the date from which the temporarily assigned employee shall perform work for the user undertaking, f) the working conditions, including wage conditions and employment conditions for the temporarily assigned employee, which must be at least equal to those of a comparable employee of the user undertaking, g) the conditions under which the employee or the user undertaking may terminate the temporary assignment prior to the completion of the term of the temporary assignment, h) the number and issue date of the decision granting the temporary work agency permission to carry out the activities of a temporary work agency. The temporary assignment agreement concluded between the temporary work agency and the user undertaking must be made in writing, otherwise it shall be invalid.59 Any provisions of an agreement pursuant to Article 58a of the Labour Code prohibiting the conclusion of an employment relationship between the user undertaking and the temporary agency worker upon completing his/her assignment or preventing the conclusion of such contracts or agreements shall be invalid.60 According to Article 58a(4) of the Labour Code, at the request of the user undertaking, the temporary work agency must immediately provide the necessary information to allow the user undertaking to check whether the temporary work agency is complying with the obligations under Article 58(9) (second sentence) of the Labour Code61 in relation to the wage conditions of the temporarily assigned employee. The user undertaking, in turn, must fulfil its obligations pursuant to Article 58(10) (first sentence) of the Labour Code.62 The temporary work agency shall provide the personal information 59 

Art 58a(3) of the Labour Code. Art 58b of the Labour Code. 61  Working conditions, including wage conditions and the terms of employment for temporary agency workers must be at least equal to those of a comparable employee of the user undertaking. 62 If the temporary work agency has not paid the temporary agency worker at least the equal pay of a comparable employee of the user undertaking, the user undertaking shall pay 60 

Atypical Employment Relationships: The Position in Slovakia 805 of the temporarily assigned worker to the user undertaking for the purpose of the above cited first sentence of Article 58a(4) of the Labour Code. The user undertaking shall submit information about the working and employment conditions of the comparable employee of the user undertaking to the temporary work agency.63 As regards the contractual relationship between the temporary work agency and the user undertaking, the compensation for damage is regulated in the Commercial Code.64 According to Article 373 of the Commercial Code, whoever breaches an obligation arising from a given contractual relationship shall compensate the other party for the damage caused, unless it is proven that the said breach was caused by circumstances unrelated to liability. F.  Rights and Status of Temporary Agency Workers (i)  Equal Treatment The general provision in Article 13(1) and (2) of the Labour Code assert that the employer must treat employees in labour law relationships in accordance with the principle of equal treatment as stipulated for labour law relationships in the Act on Equal Treatment in Certain Areas and on the Protection against Discrimination and on Amending and Supplementing Certain Acts (Anti-discrimination Act). Discrimination is prohibited on the grounds of gender, marital and family status, sexual orientation, race, colour of skin, language, age, ill-health or disability, genetic traits, belief, religion, political or other conviction, trade union activity, national or social origin, national or ethnic group affiliation, property, lineage or other status or due to notification of a crime committed or other antisocial activities. According to Article 58(9) of the Labour Code, the working conditions including wage conditions and the terms of employment for temporarily assigned workers must be at least equal to those of a comparable employee directly employed by the user undertaking. To guarantee the principle of equal treatment, the user undertaking shall: a) inform temporary workers about all vacant posts to offer them the same opportunity as other employees to conclude a permanent employment contract, the difference between the wages paid by the temporary work agency and the wage of the comparable employee within 15 days of the payment date agreed between the temporary work agency and the temporary worker, after deductions from wages in accordance with Art 131; for this purpose, the user undertaking will be considered the employer of the temporarily assigned employee (Art 58(10) of the Labour Code). 63  64 

Art 58(14) of the Labour Code. Act No 513/1991 Coll as amended (Arts 373–386).

806  Robert Schronk b) secure access of the temporary agency worker to social services provided by the user undertaking under the same conditions as its own employees, unless this is prevented by objective reasons, c) provide the temporary agency worker with the same access to education and training as its own employees. (ii)  Other Matters The temporary work agency and the temporary agency worker conclude an employment contract, ie the worker is the employee of the temporary work agency. As mentioned above, the relationship between the worker and the user undertaking is an employment relationship of a special nature, since the worker’s primary obligation to work is not performed for his/her employer (the temporary work agency) but for the user undertaking. The user undertaking and the worker do not conclude a contract under the Labour Code; their relationship is a labour law relationship sui generis. The rights of temporary agency workers in relation to the temporary work agency and to the user undertaking are practically only regulated in Article 58 of the Labour Code. G. Information and Consultation/Representation of Temporary Agency Workers Article 58(15)(d) of the Labour Code is the only special provision that specifies temporary agency workers’ right to information. The user undertaking to whom the temporary agency worker has been assigned shall provide information to the employee representatives about the use of temporary workers within the employer’s duty to inform them about the employment situation in the undertaking. There is no special legal regulation on the representation of temporary agency workers. As regards their representation in the temporary work agency, temporary agency workers generally have the same rights as any other employees in a labour law relationship. As regards the collective labour law regulation, the only special provision in relation to temporary agency workers refers to the election of works council members and staff representatives. According to Article 58(17) of the Labour Code, temporary agency workers shall be allowed to elect employee representatives in accordance with Article 233(2)65 and (3)66 of the Labour Code. 65 

A works council must be established in undertakings with at least 50 employees. An employer who employs fewer than 50 employees but more than three employees may have a staff representative. The rights and duties of a staff representative shall be equal to the rights and duties of a works council member. 66 

Atypical Employment Relationships: The Position in Slovakia 807 H. Strikes The right to strike is one of the most problematic rights of collective labour law. According to Article 37(4) of the Constitution of the Slovak Republic,67 the right to strike shall be guaranteed to all. A law shall lay down the terms thereof.68 According to Article 51(1) of the Constitution, the rights defined in 37(4) (also in Articles 35, 36, Articles 38 to 42 and 44 to 46) of the Constitution may only be applicable within the limits of the laws implementing these provisions. The only Act that regulates the right to strike is Act No 2/1991, Coll on Collective Bargaining. Pursuant to this Act, a legal strike involves a dispute on the conclusion of a collective agreement.69 A strike in a dispute on the conclusion of a company collective agreement shall be declared and its commencement shall be decided by the respective trade union body, if the strike is approved by the absolute majority of the employer’s employees who are participating in the strike ballot and whom the collective agreement concerns, provided that at least the absolute majority of the total number of employees participate in the strike ballot.70 From the legal point of view, temporarily assigned workers are not employees of the user undertaking and cannot be included in the calculation. There is no special provision, unlike the provision for the election of a works council and staff representatives.71 The Supreme Court of the Slovak Republic in one of its decisions concluded that strikes relating to the legitimate economic and social interests of employees are also legitimate.72 The Supreme Court furthermore noted that strikers may not enjoy the benefits and protection afforded by the Act on Collective Bargaining.73

67 

Act No 460/1992 Coll. prosecutors, members of the armed forces and armed corps, and members and employees of fire and rescue squads shall not have this right. 69  Art 20(1)(d) of the Act No 2/1991 Coll on Collective Bargaining states that ‘pursuant to this Act, an illegal strike shall be defined as a strike declared or commenced for reasons other than those specified in Art 16.’ According to Art 16 para 1 of this Act, ‘provided a collective agreement has not been concluded even after proceedings before the intermediary and the contractual parties have not requested a solution to the dispute through an arbitrator, the strike may be declared as an extreme means in a dispute on the conclusion of the collective agreement.’ 70  Art 17(1) of Act No 2/1991 Coll on Collective Bargaining. 71 On the contrary, Art 17(6) of Act No 2/1991 Coll on Collective Bargaining specifies employees who are not included in the calculation (‘Employees stated in Article 20(1)(g), (h), (i), (j) and (k) and employees who only perform work on the basis of an agreement to perform work for an employer shall neither be included in the total number of employees pursuant to paras 1 and 2, nor shall they participate in secret strike ballots’). 72  Decision of the Supreme Court of the Slovak Republic 1Co 10/1998. 73 In this regard, Art 141(8) of the Labour Code states that employers must excuse the absence of employees from work if they are taking part in a strike relating to the exercise of their economic and social rights. 68  Judges,

808  Robert Schronk No special legal regulation exists on temporary agency workers and their right to strike. As regards their right to strike in the temporary work agency, they generally enjoy the same rights as any other employees in a labour law relationship. I. Collective Bargaining Agreements Deviating from Statutory Provisions In general, the collectively negotiated terms of employment and the working conditions of temporary employees in labour law relationships may be more favourable than those of permanent employees and those stipulated in an Act or other labour law regulations, if this Act or other labour law regulations do not explicitly prohibit such conditions or if based on the nature of the provisions, they do not derogate from the applicable regulations.74 No other special legal regulation on the temporary agency workers and collective bargaining or the collective agreement exists. In each particular case, it will be necessary to proceed according to the cited provisions of Article 1(6) of the Labour Code.

74 

Art 1(6) of the Labour Code.

31 Atypical Employment Relationships: The Position in Slovenia POLONCA KONČAR

I. INTRODUCTION

I

N ACCORDANCE WITH Slovenian legislation, specific features apply to atypical employment contracts.1 In doctrine and in practice, the terms ‘atypical’ or ‘non-standard’ employment contracts are used. Very often, such forms of employment are equated with precarious employment. Fixed-term work is not a novelty in Slovenia’s labour law system. The labour legislation in what is Slovenian territory today permitted fixed-term work as early as 1957.2 However, the extent of such work was not as great as in the past as it is today.3 The introduction of the market economy, the emergence of new activities and professions, new organisational forms of work, the introduction of new technologies, employers’ attempts to lower their labour costs and to improve their competitiveness and, last but not least, the increase in unemployment at the beginning of the transition period (from socialism) all favoured fixed-term work. Employers tried to justify the increase of fixed-term work by issuing legislation that was overly protective of workers (in relation to dismissals) and did not adapt to the current socio-economic reality. Fixed-term work also increased as a result of unfamiliarity with the law, the lack of legal culture among new entrepreneurs

1  See Employment Relations Act-1 Ur l RS (Official Gazette of the RS, No 21/13) Part II, Chapter 10: Specific features of employment contracts (Arts 54–74); Fixed-term employment contracts, employment contracts between a worker and an employer providing work to a user undertaking, employment contracts for performing public works, part-time employment contracts, home worker employment contracts, teleworking employment contracts and employment contracts with managers or authorised officer are covered by the said provisions. 2  Legislation has always been based on the principle of an open-ended employment relationship. Fixed-term work has been deemed to be an exceptional form of employment based on the nature of the work or justified by another objective condition. 3 The percentage of fixed-term employment contracts exceeds 18% of total employment contracts. More than 80% of newly concluded contracts with young people are fixed-term contracts.

810  Polonca Končar and intentional violations of the law. Many ‘new’ employers were convinced that a quick profit could only be achieved by lowering the terms and conditions of employment. On occasion, it appeared that by concluding a fixedterm contract, employers simply tried to transfer their own business risks onto the workers. Fixed-term work has significantly contributed to the segmentation of ­Slovenia’s labour market. The government decided to fight the segmentation of the labour market by reducing the attractiveness to employers of concluding fixed-term contracts.4 The measures introduced only had a short-term effect. The relative flexibility of the labour law system that applies to today’s Slovenia can be illustrated by the fact that legislation on part-time contracts was enacted in 1965. The share of part-time work has never been high in Slovenia. The possibility of private employers leasing employees to user undertakings was introduced in 1998 by Zakon o zaposlovanju in zavarovanju za primer brezposelnosti (ZZZPB).5 The special features on the status of temporary agency workers were laid down in the Employment Relations Act in 2002. To adapt the legislation to Directive 2008/104/EC, Zakon o urejanju trga dela (ZUTD)6 was introduced by which ZZZPB was replaced. This was later amended by Zakon o delovnih razmerjih (Employment Relationships Act (ERA-1)) of 2013, which brought about some improvements to the existing legal text. II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements The ERA-1 does not contain explicit definitions of either ‘fixed-term contract’ or of ‘fixed-term’ worker. A ‘comparable permanent worker’ is also not defined in the legislation. According to the ERA-1, a lawful fixed-term employment contract (fixedterm contract) must fulfil three statutory conditions: the written form, the existence of a legal condition/case justifying its conclusion,7 and a time limitation.

4 

Different measures were introduced by ERA-1 in 2013. and Unemployment Insurance Act, Ur l RS (Official Gazette No 69/1998, ZZZPB-D). 6  Labour Market Regulation Act, Ur l RS (Official Gazette No 80/2010). 7  Legal theory refers to such conditions as ‘the objective condition’, despite the fact that this term is not explicitly used in the ERA-1. 5  Employment

Atypical Employment Relationships: The Position in Slovenia 811 Regarding the form of the contract, it is provided that a fixed-term employment contract must be concluded in writing. According to Article 12(2) of the ERA-1, an employment contract shall be assumed to be concluded for an indefinite duration, if its duration is not specified in writing in the employment contract and/or if a fixed-term employment contract is not concluded in writing upon the commencement of work. Regarding the statutory conditions, the rule derives from Article 12 of the ERA-1 according to which the employment contract is to be concluded for an indefinite duration unless otherwise stipulated by the Act. Fixed-term contracts may only be concluded in exceptional cases. The employer is not free simply to choose between concluding an open-ended or a fixed-term contract. S/he is allowed to conclude a fixed-term contract in the following cases listed in Article 54(1): —— —— —— —— —— —— —— —— ——

—— —— —— —— ——

For work which by its nature is of limited duration, To replace a temporarily absent worker, For a temporary increase in the scope of work, Employment of a foreigner or person without citizenship who has been granted a work permit for a defined period of time, except in the case of a personal work permit, With a manager or authorised officer, With an executive referred to in Article 74(1) of the ERA-1, For the performance of seasonal work, With a worker who can only work for a fixed term for reasons relating to preparation for work, training or further training related to work and/or education, For fixed-term employment for the sake of work during an adaptation period on the basis of a final decision and a certificate issued by a competent body in the procedure to recognize the candidate’s professional qualifications pursuant to a special Act, For the performance of public works and/or participation in the measures of active employment policies in accordance with an Act, For the preparation or implementation of project-related work, For work required during the period of introducing new programmes, new technology and other technical and technological improvements of the working operations or for the training of workers, When handing over work, Elected and appointed officials and/or other workers bound by the term of office of a body or official in local communities, political parties, trade unions, chambers, associations and their federations.8

8  In the majority of cases, the work is of a temporary nature. It is only evident in some cases that the reason for concluding a fixed-term contract does not lie in the temporariness of the work (foreigners, managers, etc).

812  Polonca Končar Furthermore, fixed-term contracts may be concluded in other cases laid down in the Act9 or in a sectoral collective agreement. A sectoral collective agreement may also stipulate that a smaller employer (an employer who employs 10 or fewer workers) may conclude fixed-term employment contracts, outside of the restrictions/cases listed in Article 54(1) of the ERA-1.10 If none of the candidates fulfils the job requirements, the employer may conclude a fixed-term contract with one of the candidates who meets the requirements provided by an Act or an implementing regulation, if such employment is necessary for the smooth performance of work.11 The majority of cases listed in Article 54(1) relate to work which is of a temporary nature. Only some are conditional upon other reasons (e.g. the expertise of a worker or the fulfilment of required formal conditions (work permit)). As regards the third statutory condition for conclusion of a fixed term contract (time limitation), it is usually emphasised that the duration of the work must be predetermined or it must be determinable. Article 55(1) provides that the employment contract shall be concluded for a limited period of time, as required for the performance of the work in the cases referred to in Article 54(1). B.  Lawful Stipulation of the Contractual Terms The general statutory limitation of the duration of fixed-term employment is two years. Notably, the time restriction also applies in case of renewals of fixed-term employment contracts. Article 55(2) of the ERA-1 provides (in summary) that an employer may not conclude one or more successive fixedterm employment contracts12 for the same work for an uninterrupted13 period which lasts longer than two years, except in some of the cases stated in Article 54. Article 55 (3) states: ‘The same work referred to in the preceding paragraph shall be deemed to be the work at the work place or the type of work actually being carried out under a certain fixed-term employment contract.’

9  This relates to the ERA-1 or other special Acts. Eg, pursuant to Art 60 of the ERA-1, temporary agency workers may conclude an open-ended or a fixed-term employment contract. 10  This case is an exception to the statutory requirement that the fixed-term contract may only be concluded if an objective condition exists. 11  Art 22(3) of the ERA-1. 12  In the procedure of drafting the Act, the interpretation has been given that the abuse of fixed-term employment contracts is formally prevented by setting a maximum period for which one or several fixed-term employment contracts may be concluded. 13  According to Art 55(6) of the ERA-1, an interruption of three months or less shall not represent an interruption of the successive conclusion of the fixed-term employment contract.

Atypical Employment Relationships: The Position in Slovenia 813 In the past, the renewal of fixed-term contracts was linked cumulatively to the ‘same worker’ and the ‘same work’. As abuses were very frequent in practice, employers only formally renamed the job, but from a substantial point of view, the work remained the same, and the workers performed the same work on the basis of renewed fixed-term contracts for years. The ERA-1 attempted to prevent such abuses and deleted the term ‘the same worker’ from the text. Doctrine has cautioned that this more restrictive wording is awkward and unclear. It is difficult to define the term ‘the same work’ and for the time being, it is unclear whether the term ‘the same work’ shall be used in practice in a broader sense (workers perform different types of work in their job) or a narrower sense (in accordance with the linguistic interpretation of the term). Some are of the opinion that the term should encompass all work of the same type, for which one employment contract, defining the content of the job, could be concluded.14 In certain cases, the ERA-1 allows fixed-term contracts to be concluded exceptionally for a period that is either longer than two years (e.g. in case of project-related work, a mandate related to the work of managers, the replacement of a temporarily absent worker, work by a foreigner who has a longer work permit) or shorter than two years (a ‘handover’ contract for transferring working tasks may be concluded for a maximum period of one month, e.g. or in case of employment of a candidate who does not fulfil the requirements of the job, for up to one year). In case of abuse of fixed-term contracts, the ERA-1 presumes the existence of an open-ended contract: If a fixed-term employment contract is concluded contrary to an Act or collective agreement, or if the worker continues to work after the period for which he/ she concluded the employment contract has expired, it shall be assumed that the worker has concluded an open-ended employment contract.15

The transformation of a fixed-term contract into one of indefinite duration represents a presumption juris et de jure. It is introduced ex lege, automatically. If the employer does not observe the transformation of the contract, the worker has two possibilities: 1. as long as the contract is in force, s/he has the right to request the employer to fulfil its obligations; if the employer fails to observe the transformation of the contract, the worker may request a judicial review;16 2. If the worker enforces the transformation after the termination of the contract, s/he has the right to judicial review directly.17

14  B Kresal, ‘Pravna vprašanja nove ureditve zaposlitve za določen čas in agencijskega dela’, Delavci in delodajalci 2–3/2013, 174–77. 15  Art 56. 16  Art 200(2) of the ERA-1. 17  Art 200(3) of the ERA-1.

814  Polonca Končar C.  Termination/End of Fixed-Term Contracts Provisions on the termination of fixed-term contracts can be found in ­Chapter 12 of the ERA-1 on the termination of the employment contract. Article 79 states: (1) A fixed-term employment contract shall terminate without notice upon the expiry of the time period for which it was concluded or upon the completion of the agreed work or upon the cessation of the reason for which the contract was concluded. (2) A fixed-term employment contract may terminate if prior to the expiration of the period referred in the preceding paragraph this is so agreed by the contracting parties or if other reasons occur for the termination of the employment contract pursuant to the provisions of this Act.

The first paragraph cited above prescribes the automatic termination (­without notice period) of the contract. The employer might inform the worker about the approaching termination but such information has no constitutive effect. The termination depends on how the duration of the contract was agreed upon in the employment contract. The regulation contained in the second part of the second paragraph is rather problematic. It allows prior termination of the fixed-term employment contract if reasons18 for the termination of the employment contract arise. It might be questionable, also from a comparative law perspective, whether the termination of a fixed-term contract due to business reasons is admissible. In comparison to the ERA 2002 as amended in 2006, the provisions on the termination of the fixed-term employment contract have been complemented by the ERA-1. The intention of the legislator was to reduce the labour market segmentation and the excessive number of fixed-term employment contracts by making this form of employment more expensive for employers (less favourable). With the addition of five new paragraphs to Article 79, entitlement to severance pay in case of termination of the fixedterm contract has been regulated. The general rule is that the worker whose fixed-term employment contract has been terminated will be entitled to severance pay. There will be no such entitlement in the event of termination of a fixed-term contract concluded for the purpose of replacing a temporarily absent worker, for the purpose of performing seasonal work that lasts less than three months within a calendar year, or for the purpose of employing a worker in accordance with the active employment policy measures as

18 The following are provided for in Art 77 of the ERA-1: death of the worker or the employer (a natural person), agreement, ordinary or extraordinary termination, court ­judgment, cases stipulated by the ERA-1 or another Act.

Atypical Employment Relationships: The Position in Slovenia 815 regulated by the Labour Market Regulation Act. A worker shall also not be entitled to severance pay if after the termination of his/her fixed-term contract, s/he concludes an open-ended employment contract or does not accept an open-ended contract offered to him/her for so-called ‘appropriate’ work.19 D.  Rights and Status of Fixed-Term Worker (i)  Equal Treatment Article 57 of the ERA-1 provides that during the fixed-term employment period, ‘the contracting parties shall have the same rights and obligations as in the case of an employment relationship of indefinite duration, unless stipulated otherwise by this Act.’ This provision is interpreted as providing the principle of equal treatment with comparable permanent workers,20 who—as already mentioned—are not defined. Fixed-time workers have equal rights with permanent workers (with some admissible exceptions). Their remuneration is calculated in the same way as for permanent workers, and they enjoy equal protection in relation to transfers of undertaking, equal judicial protection, etc. Equal treatment is also derived from Article 28(7) of the ERA-1, which provides that prior to the conclusion of an open-ended or fixed-term employment contract, the employer must inform the candidate of the work to be performed, the working conditions and the worker’s and employer’s rights and obligations related to the performance of the work for which the employment contract is being concluded. Special measures are provided in relation to the termination of fixed-term employment contracts. Pursuant to Article 73 of the ERA-1, an employment contract signed by a manager or authorized officer may stipulate different rights and obligations (in comparison to the Act) related to the conditions and limitations of fixed-term work. The principle of pro rata temporis may also apply in certain cases. Provisions on the proportionate part of annual leave21 are interpreted in such a way that the worker (including fixed-term workers) whose period of employment within an individual calendar year is shorter than one year shall have the right to 1/12 of his/her annual leave for each month of employment.

19 

New provisions also cover the calculation of the amount of severance pay. Bečan et al, Zakon o delovnih razmerjih s komentarjem (Ljubljana, GV Založba, 2008) 258. 21  Art 161(1). 20 I

816  Polonca Končar (ii)  Employment Opportunities Article 26 of the ERA-1 lists certain cases22 in which an employment contract may be exceptionally concluded without publicly advertising the vacancy. The interests of fixed-term workers in employment opportunities are taken into consideration in Article 25(4) of the ERA-1 in accordance with EU labour law. It stipulates: An employer who employs fixed-term workers, part-time workers or workers employed by an employer who provides work for a user undertaking and employs a worker for an indefinite duration or full-time must inform workers about vacancies or issue a public notice on the vacancies in due time and in a manner customary for the employer (for example, on a notice board in the business premises of the employer or by using information technology).

The duration of the employment contract and the reason for concluding a fixed-term employment contract, as well as a provision on annual leave, are the mandatory elements of a fixed-term employment contract.23 (iii)  Other Matters Article 58 of the ERA-1 states: (1) If a worker under a fixed-term employment contract carries out seasonal work and/or work involving irregular distribution of working time without interruptions for at least three months within one year and accumulates more working hours than stipulated for full-time work, the working hours, upon his request, shall be converted into working days with full working time. (2) Working days calculated according to the preceding paragraph shall be counted as the workers’ years of service and as working days spent at work. In such a calculation, the total period of service within a calendar year may not exceed 12 months.

The idea behind the above-cited provisions is to ensure that fixed-term workers enjoy additional protection, which might be relevant from the oldage insurance perspective. E.  Information and Consultation The above-mentioned Article 57 of the ERA-1 establishes the equal treatment principle. This means, inter alia, that fixed-term workers must be 22 In the event of: a fixed-term employment contract which, due to its nature, does not last more than three months within a calendar year; the replacement of a temporarily absent worker; or employing a person permanently who was previously employed with the employer for a fixed period. 23  Art 31 of the ERA-1.

Atypical Employment Relationships: The Position in Slovenia 817 taken into consideration when calculating the threshold required for the creation of a workers’ representative body at the employer as provided for in the national law and regulations. According to Zakon o sodelovanju delavcev pri upravljanju (ZSDU),24 workers have the right to elect a works council if there are more than 20 workers in the company with the right to vote. In a company that employs fewer than 20 workers with the right to vote, workers shall participate in the management through a workers’ representative. It is important to determine which employees have the right to vote and who has the right to stand for election to the works council. Any employee who has worked for the company for at least six months without interruption is entitled to the right to vote for members of a works council.25 Any worker who has the right to vote and has worked for the company for at least 12 months has the right to stand for election to the works council.26 The condition of having worked for at least six months without interruption in order to be entitled to the right to vote represents a disproportionate limitation of the constitutional right of workers to participate in the management of the company they work for. This could also be understood as unequal treatment in comparison to workers of a newly established company, who acquire the right to vote immediately.27 Without mentioning fixed-term workers, the Act indirectly discriminates against them. Those who have concluded several consecutive fixed-term contracts within a period of at least six months are not allowed to exercise the right to vote. F.  Specific Provisions Examples of legislation containing special/additional provisions (in comparison to the ERA-1) are rare. The following two Acts can be mentioned to illustrate the situation. Zakon o javnih uslužbencih (ZJU)28 in its Part II, which only applies to civil servants in state bodies and local community administrations, provides for cases in which a fixed-term employment contract may be concluded (the regulation of the ERA-1 does not apply). The following cases are listed: for work in the Cabinet; for substitution of a temporarily absent civil servant; for the performance of work requiring expertise within the scope of a project 24 Workers’ Participation in Management Act, Ur l RS (Official Gazette of the RS, Nos 42/93, 56/01, 26/07—ZSDU). 25  Art 12 of the ZSDU. 26  Art 13 of the ZSDU. 27 Mag Tanja Dobrin, ‘Oblike delavskih voljenih predstavništev, v: Soupravljanje zaposlenih v Sloveniji’, Nemčiji in Evropi, Mednarodna konferenca, Friedrich Ebert Stiftung, Hans ­Böckler Stiftung, Institut za delo pri Pravni fakulteti Univerze v Ljubljani, Ljubljana 1994, p 41. 28  Civil Servants Act, Ur l RS (Official Gazette of the RS, No 56/02, 63/07-ZJU-UPB3).

818  Polonca Končar with limited duration; for public tasks in case of a temporary increase in workload that by its very nature only lasts for a limited period and cannot be completed with the available number of civil servants; for traineeships and other forms of theoretical and practical training; for work of directorgeneral, secretary-general, principals of government offices, principals of administrative units, etc.; when it is expected that the extent of public tasks will be changed/decreased; and for the employment of top athletes.29 As regards the restrictions on successive conclusions of fixed-term contracts and on the consequences for violations of the Act, the provisions of the ERA-1 apply. The Act also contains provisions on exceptional longer or shorter contract durations as provided for by the ERA-1. The wording of the Act on equal treatment is interesting. Article 73 provides: The provisions of this Act governing the rights and obligations of civil servants that entered into permanent employment contracts shall reasonably apply to the rights and obligations arising out of fixed-term employment relationships.

Zakon o raziskovalni in razvojni dejavnosti30 states in Article 31 that the duration of fixed-term employment contracts may exceed two years if they are concluded with so-called ‘young researchers’ who are completing a postgraduate programme (MBA, doctoral studies). G.  Collective Agreements Deviating from Statutory Provisions The majority of sectoral collective agreements (private sector) draw on Article 54 of the ERA-1 and include either additional cases for concluding fixed-term employment contracts or the possibility of smaller employers concluding fixed-term employment contracts, outside of the regulations. III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements The ERA-1 regulates part-time employment contracts in Articles 65–67. According to Article 65(1), ‘an employment contract may also be concluded for a working time that is shorter than the full working time’. A definition of ‘part-time’ is provided in the ERA-1. ‘Part-time’ refers to working time that is shorter than the full-time working hours that are standard at the employer’s undertaking.31 The reference to working hours at the employer’s 29 

Art 68. Research and Development Act, Ur l RS (Official Gazette of the RS, No 22/06, ­official consolidated text, 112/07, 9/11)). 31  Art 65(2). 30 The

Atypical Employment Relationships: The Position in Slovenia 819 undertaking is made due to the statutory regulation on full-time working hours. According to Article 143 of the ERA-1, full-time working hours may not exceed 40 hours a week. An Act or collective agreement may stipulate a working time that is shorter than 40 hours a week, but it may not be shorter than 36 hours a week. Exceptionally, an Act or other regulations complying with an Act or collective agreement may define full-time working hours of less than 36 hours a week for jobs involving greater risk of injury or health impairments. The real duration of full-time working hours at the employer’s undertaking may therefore depend on special regulations or c­ ollective agreements. The ERA-1 does not provide for a minimum working time to be considered part-time work.32 An employer who plans to employ a full-time worker has the obligation to inform part-time workers about available full-time vacancies.33 If a worker who was employed under a part-time contract is employed in one of the available full-time posts, the employer does not have to issue a public notice on the vacancy.34 Each employment contract must contain a provision stating whether it is being concluded for part-time or full-time work.35 B.  Opportunities for/Right to Part-Time Work Article 65 of the ERA-1 regulates part-time employment as an expression of the contractual free will of the parties to the employment contract. The statutory provisions on part-time employment contracts do not contain explicit cases in which such contracts may be concluded. Part-time contracts may, as a rule, be concluded when the employer needs part-time workers and the worker accepts this form of work and/or s/he cannot find a full-time job. Part-time work may either be in the interest of the worker or it may represent an emergency situation. The worker is forced to accept part-time work when s/he cannot find full-time employment. Nevertheless, the parties are supposed to freely agree upon this form of the employment contract.36 The idea behind this point of departure is that on the one hand, part-time work should be intended to contribute to the balance between professional and family life, and on the other, it should make greater flexibilisation of

32 

The worker might thus only work one hour a week. Art 25(5). 34  Art 26. 35  Art 31(1). 36  The Act does not address situations in which part-time employment is not freely chosen by the worker. 33 

820  Polonca Končar the labour market possible. The possibility of part-time work is explicitly mentioned in the ERA-1. Article 147(1) on so-called ‘supplementary work’ provides: A worker who works full-time may in exceptional circumstances conclude a part-time employment contract with another employer, though for no more than eight hours a week, with the prior consent of the employer with whom the worker is employed full-time, provided that this involves the performance of work in occupations with a shortage of workers according to the data of the Employment Service or the performance of educational, cultural, artistic or research work.

In principle, the parties may realise their interests with regard to part-time work within individual bargaining/conclusion of the employment contract. Irrespective of the ‘standard’ cases of part-time work, specified in the legislation, one has to take special cases into consideration in which the worker is entitled to work part time, at least temporarily. Such cases are provided for in the pension and disability insurance regulations, health insurance regulations or regulations on parental leave during which the worker works part time.37 S/he is entitled to remuneration in accordance with his/her actual working obligation and shall be entitled to the same rights arising from the employment relationship and from the social insurance scheme as though s/he were working full time.38 C.  Opportunities for/Right to an Extension of Working Time Article 65(6) provides that unless otherwise stipulated in the employment contract, the employer may not impose work on a part-time worker that exceeds the agreed working hours,39 except in cases of natural or other disasters or when such a disaster is being expected.40 It is underlined in

37 When deciding about the right to part-time work, the competent body may choose a daily limitation to working hours (eg, four hours a day) or a weekly limitation (eg, 20 hours a week). The way in which part-time work is determined might be important in relation to the distribution of working time. 38  Art 67 of the ERA-1. 39 The Labour Court of the second instance (Višje delovno in socialno sodišče (VDSS)) decided that hours exceeding working time agreed in the part-time employment contract must be treated as overtime work, which is actually prohibited by the Act. The judgment of the VDSS Pdp 598/2014, 10 July 2014; In another case, the Supreme Court (Vrhovno sodišče Republike Slovenije (VSRS)) decided that the employer was illegally imposing work on a parttime worker exceeding the agreed working hours, as any such possibility had not been stipulated in the employment contract, Judgment of the VSRS X Ips 41/2013, 18 December 2014. 40 The commentary on the provision is that in addition to the general protection of part-time workers, it has been accepted in order to give workers the possibility to conclude part-time employment contracts with several employers. See I Bečan et al, Zakon o delovnih razmerjih s komentarjem (Ljubljana, GV Založba, 2008) 286.

Atypical Employment Relationships: The Position in Slovenia 821 Article 145 of the ERA-1 that such additional work may last as long as is necessary to rescue human lives, protect the health of people or prevent material damage. D.  Rights and Status of Part-Time Worker (i)  Equal Treatment Article 65(3) provides: A worker who has concluded a part-time employment contract shall have the same contractual and other rights and obligations arising from the employment relationship as a worker who works full-time, and shall exercise these rights and obligations proportionally to the time for which the employment relationship was concluded, with the exception of such rights and obligations as are otherwise stipulated by an Act.

The two principles that are essential for the status of a part-time worker, namely the principle of equal treatment and that of proportionality, are highlighted in the above statutory provision. There is an explicit statutory provision on the right to annual leave. According to Article 65(4), the worker shall be entitled to annual leave of minimum duration as specified in the ERA-141 and to pay for annual leave in proportion to the working time established in the employment contract.42 Another exception from the generally recognised principles of equal treatment/proportionality should be mentioned. In relation to the right to a break during the working day, Article 154(2) of the ERA-1 provides: A worker who works part-time in accordance with Articles 65 or 67 [‘part-time work in special cases’] of this Act, but for at least four hours a day, shall have the right to a break during the working day in proportion to the time spent at work.

This implies that the worker is not entitled to a break if s/he works less than four hours a day. If s/he works at least four hours a day, the principle of pro rata temporis applies. (ii)  Dismissal Protection There are no special provisions on grounds for dismissal or procedural rules laid down for part-time workers.

41 

Art 159. regulation is based on the fact that the right to annual leave is an indivisible right, while the right to pay for annual leave is a divisible right. 42  The

822  Polonca Končar (iii)  Other Matters The ERA-1 allows the conclusion of part-time employment contracts with several employers. Article 66(1) provides: ‘A worker may conclude parttime employment contracts with several employers in order to achieve ­full-time working hours as stipulated by an Act.’ The possibility of concluding two or more cumulative part-time employment contracts enables part-time workers to achieve so-called full-time employment and makes it easier to fulfil the conditions for an old-age pension, for example. The total sum of working hours may not exceed the duration of full-time work. The worker must agree on the working time with his/her employers, on annual leave and on other absences from work. Employers should in principle assure the use of annual leave as well as other absences from work. E.  Information and Consultation In accordance with Article 65(5), part-time workers are, in accordance with the ZSDU, entitled to participate in the management of the undertaking. The latter Act does not differentiate between full-time and part-time workers. F.  Other Part-Time Arrangements In case of an irregular distribution or redistribution of working time,43 it must be reiterated that overtime work is prohibited, inter alia, for workers who work part time in accordance with the regulations on pension and disability insurance, health insurance or other regulations.44 No explicit provisions can be found in the ERA-1 relating to on-call work. Legislation covering the public sector and/or some groups of civil servants (for example, the armed forces, police, judges, prosecutors, prisons) contains provisions regulating cases of so-called ‘on-call time’. In Slovenian, the term ‘on-call time’ as such is not used. Instead of ‘on-call time at the work place’, the term ‘being on duty’ (dežurtsvo) is usually used. The inactive part of stand-by time is not counted as working time. Active hours of stand-by time are paid as work performed within full-time working hours. The active hours carried out as work exceeding full-time work are paid as overtime work.

43  44 

Art 148 of the ERA-1. Art 158.

Atypical Employment Relationships: The Position in Slovenia 823 Instead of ‘inactive on-call time at home’ the terms ‘readiness for work at home’ (pripravljenost na delo) or ‘permanent readiness for work’ (stalna pripravljenost na delo) are provided for in the legislation on civil servants. ‘Readiness for work’ used to be treated as a special working condition and as such, presented a basis for supplementary payments. It never counted as working time. This approach is obviously not in compliance with ECJ case law. Zero-hours contracts are not recognised by the ERA-1. There are some express provisions in the ERA-1 on the basis of which one could argue that the conclusion of zero-hours contracts is not in compliance with the Act. For example, the ERA-1 provides that the employment contract must contain a provision on daily or weekly working time and the distribution of working hours.45 In addition, the chapter in the ERA-1 on the obligations of the contracting parties (Part II Chapter 7) states that the employer must provide the worker with work as agreed upon in the employment contract. Job-sharing contracts are also not recognised by the ERA-1. One could argue that the current legislation does not reflect the obstacles to sharing work at the workplace when, for example, a part-time employment contract has been concluded on the initiative of the worker, but the job requires someone to work full time. Such organisation of work would probably not be in the interest of employers as it would increase labour costs (for ­example, reimbursement of expenses for meals during work, expenses for travel to and from work, etc). G. Collective Bargaining Agreements Deviating from Statutory Provisions An analysis of branch collective agreements shows that part-time work is, as a general rule, not the subject of collective bargaining. IV.  TEMPORARY AGENCY WORK

A.  Legal Definitions/Formal Requirements Article 59(1) of the ERA-1 states that an employer who, in accordance with labour market regulations, is permitted to carry out the activity of ­providing ‘work of workers’ (ie labour) to another employer (an employer p ­ roviding work)46 shall conclude an employment contract with such workers.

45  46 

Art 31(1). The term used in Slovenian legislation for temporary work agency.

824  Polonca Končar The ERA-1 and Zakon o urejanju trga dela (ZUTD)47 are the two basic regulations in the field of temporary agency work. Both were amended in 2013. The performance of the activity of providing workers (assignments) to a user undertaking is defined in Article 163 of the ZUTD-C (amending Act) as any provision of workers (assignment) by a legal or natural person, with which a worker has concluded an employment contract, to a user undertaking, for whom the worker performs work under its supervision and direction or uses the resources for work which are part of the working process of the user undertaking.

The new definition of ‘performance of the activity’ was laid down to delimit this activity from the performance of services on the basis of civil law contracts. An employer who provides workers to a user undertaking is according to Article 163(2) of the ZUTD-C: A legal or natural person who concludes employment contracts with workers to assign them to a user undertaking, obtains the permit to carry out the activities provided for in Article 167 and has entered the legal and natural persons performing the activity of providing workers to a user undertaking into the national register or records of foreign legal and natural persons who carry out the activity of providing workers to a user undertaking.

Article 163(3) of the ZUTD-C contains the definition of assigned worker. It is a ‘worker who has concluded an employment contract with the employer, who provides workers to user undertakings, in order to be assigned to the user undertaking to temporarily work for it.’ According to Article 163(4) of the ZUTD-C, any legal or natural person for whom the assigned worker temporarily performs work is the user undertaking. B.  Registrations, Licensing, Financial Guarantees The employer may commence the activity of providing workers to user undertakings if s/he complies with the following conditions laid down in Article 164 of the ZUTD-C: —— The employer has not been fined in the last two years for breaching the regulations on employment relationships, the employment and work of foreigners, health and security at work or undeclared work, —— The employer has settled all obligations related to the payment for work over the last two years, 47 Ur l RS (Official Gazette of the RS, No 80/2010—ZUTD, 21/2013—ZUTD-A, 100/2013—ZUTD-C). Amendments introduced by the ZUTD-C mainly focus on the status and the operations of temporary employment agencies. The amendments’ objective was to reduce abuses in the assignment of workers to a user undertaking and to promote the establishment of firms specialised in the said activity.

Atypical Employment Relationships: The Position in Slovenia 825 —— The employer has not been placed on a list of persons liable for taxes which have not been paid, —— The employer must meet staff, organisational, spatial, and other conditions, —— The provision of workers has been registered as the employer’s main activity,48 —— The employer has presented a bank guarantee in the amount of EUR 30,000, —— An employer who is established in another EU or EEA Member State or in the Swiss Confederation must establish a branch office in the territory of the Republic of Slovenia.49 ZUTD-C contains provisions that are of a procedural nature. The following are worth mentioning: If the employer fulfils the conditions provided for in Article 164, the Ministry of Labour issues a permit for the provision of workers. The employer is then entered in the register and/or records.50 The Act provides the following three possibilities by which the Ministry of Labour may withdraw the permit and delete the employer from the register or records: —— If a labour inspector has imposed a fine against the employer more than two times within the last 12 months for breaching the ERA-1, —— If the labour inspector proposes the withdrawal of the permit or deletion of the employer from the registry to the Ministry of Labour because the employer has breached the regulations in the field of labour law, health and security at work, undeclared work or labour market several times, —— In cases provided by the Act, in which the Ministry has to do this ex officio. The system of the reporting obligation is reinforced in Article 174 of the ZUTD-C. The Ministry of Labour may request that the employer submit a report on any changes introduced regarding compliance with staff, organisational, room (spatial) and other requirements that may affect the performance of the activity. The employer is obliged to submit a report by an

48 One of the objectives of the amendments included in the ZUTD-C was to encourage the establishment of companies specialised in the activity of the provision of workers to user undertakings. Previously, temporary employment agencies were allowed to be involved in other types of activities in the field of employment. 49  The respective provisions of the Act apply to employers established in other EU Member States, too. 50  Art 167 of the ZUTD-C. The permit is laid down in the ZUTD-C as a precondition for entry in the register (domestic legal entities and natural persons) or the records (employers established in another EU Member State). On the procedure of issuing the permit, see arts 168 and 169 of the ZUTD-C. According to Art 173, the Minister of Labour shall, in addition, lay down the procedure in detail.

826  Polonca Končar independent auditor on whether s/he complied with the ERA-1 in the most recent fiscal year in which the activity was performed. Article 174 of the ZUTD-C introduces a new monitoring procedure involving an expert commission. The commission is vested with the authority to monitor the performance of the provision of workers in the country and to adopt opinions and recommendations regarding further regulation of this field. C. Relationship between Temporary Agency Worker and Temporary Work Agency In the so-called triangular relationship that exists in temporary agency work, the relationship between the worker and the temporary work agency is based on an employment contract. The relationship between the temporary work agency (in the ERA-1, the employer providing the work) and the user undertaking is based on a civil law agreement. The worker and the user undertaking de jure do not establish an employment relationship, but de facto many elements of the employment relationship exist between them. (i)  Fixed-Term and Part-Time Contracts As regards the duration of the employment contract between the worker and the temporary work agency, the ERA-1 contains provisions on openended and fixed-term employment contracts. Part-time employment contracts are not expressly mentioned in the context of temporary agency work. The general rules apply, which means that part-time employment contracts could be concluded on condition that an agreement on such a contract has been reached between the temporary work agency and the worker. As a rule, the employment contract between the worker and the temporary work agency is concluded for an indefinite duration.51 As an exception to the rule, the ERA-1 states: A fixed-term employment contract may be concluded if the user undertaking fulfils the conditions laid down in Article 54(1) of this Act [cases in which such contracts are permissible]52 and taking into consideration the time limitations referred to in the second and fourth paragraphs of Article 5553 of this Act.54

51 

Art 60(1) of the ERA-1. According to case law, a fixed-term contract may only be concluded when the case referred to actually exists. If not, when a fixed-term employment contract is concluded contrary to the law, it shall be assumed that an open-ended contract was concluded. Judgment of the VSRS VIII Ips 228/2013, 24 March 2014. 53  Arts 54 and 55 relate to fixed-term employment contracts (cases in which such contracts are admissible; a two-year time limitation applies for one or more successive contracts for the same work). 54  Art 60(2) of the ERA-1. 52 

Atypical Employment Relationships: The Position in Slovenia 827 The provision of Article 60(2) (linking the conditions for the fixed-term contract to the user undertaking and not to the temporary work agency) is rather unusual and it is difficult to foresee how it will be interpreted by the courts.55 It might be acceptable in cases when the agency concludes an employment contract in order to assign a worker to the (known) user undertaking only once. When the temporary work agency employs workers in order to assign them to several different user undertakings, it is presumed that open-ended contracts must be concluded. (ii)  Rights and Obligations/Liability Some of the rights and obligations are subject to the employment contract. According to Article 61 of the ERA-1 on special features of the employment contract, the worker and the employer providing the work shall agree in the employment contract that the worker will temporarily work with other user undertakings at the location and in the period defined by the worker’s assignment to work for the user undertaking (emphasis added).

In the past, the period of assignment was limited by the ERA to one year. There is no limitation to the duration of assignments in the ERA-1. The ZUTD-C, too, establishes that the worker may only temporarily work for the user undertaking. Despite the fact that the maximum duration of the assignment is not expressly defined, the temporary character of the assignment is indicated by the legislation. As regards remuneration, the parties to the contract may stipulate that the amount of wages and compensation will depend on the work actually performed for the user undertaking, taking into account the collective agreements and general acts binding the individual user undertaking. An employer who provides work must also fulfil the express legal provision to provide the worker with ‘education, training and further training’ (Article 62(3) of the ERA-1). ZUTD-C provides for the following obligations of the employer providing work: —— During the duration of the employment relationship, the employer must assure all rights deriving from the employment relationship to the assigned worker in accordance with the regulations on employment relationships,

55  B Kresal, ‘Pravna vprašanja nove ureditve zaposlitve za določen čas in agencijskega dela’ (‘Legal issues in the new regulation of temporary employment and agency work’), Delavci in delodajalci 2–3/2013, 169–93. K Kresal-Šoltes in N Belopavlovič et al (eds), Zakon o delovnih razmerjih (ZDR-1) s ­komentarjem (IUS software, GV Založba, 2016) 346.

828  Polonca Končar —— Without any limitations, the employer must keep the possibility open for the assigned worker to conclude a contract of indefinite duration once his/her assignment has been completed, —— The employer may not require the assigned worker to carry out work outside the activity the employer has entered in the register, —— The employer may not assign persons who have concluded a civil law contract in lieu of an employment contract, —— The employer may not require a fee from the assigned worker or candidate to conclude an employment contract.56 (iii)  Dismissal Protection If a worker violates his/her contractual or other obligations deriving from the employment relationship, the temporary employment agency may, in accordance with the general rules, initiate disciplinary proceedings or terminate the employment contract for reasons of misconduct. The same applies if the worker violates his/her obligations and does not carry out work pursuant to the user undertaking’s instructions.57 Early termination of the user undertaking’s need for work performed by an assigned worker under a fixed-term contract is not a valid reason for terminating a fixedterm employment contract. Due to the non-existence of any special provisions in the ERA-1, the question has been raised in practice of when an open-ended employment contract may be terminated for business reasons on the part of the temporary work agency. The Higher Labour and Social Court has ruled that early termination of the particular work assignment of a worker with an open-ended employment contract to the user undertaking, cannot be understood as a valid business reason for the termination of the contract per se. Only when the agency cannot assure that the worker will be provided work at another user undertaking can it prove the existence of a business reason and may terminate the open-ended employment contract.58 The ERA-1 provides that early termination of the user undertaking’s need for work performed by an assigned worker shall in individual cases not represent a reason for terminating a fixed-term employment contract. An employer providing work shall be required to pay the worker wage compensation until the expiry of the fixed-term employment contract in accordance with Article 138 of the ERA-1.59 It should be emphasised once again that fixed-term employment contracts may not be terminated purely for business reasons on the part of the user undertaking.

56 

Art 165 of the ZUTD-C. Art 63(5) of the ERA-1. 58  Judgment of VDSS Pdp 1654/2014, 26 March 2015. 59  Art 60(3) of the ERA-1. 57 

Atypical Employment Relationships: The Position in Slovenia 829 The regulation of wage compensation differs slightly in case of early t­ermination of a temporary agency worker with a contract of indefinite duration because the user undertaking no longer requires his/her services. The amount of wage compensation is the object of an agreement between the temporary work agency and the worker in case of early termination because the user undertaking no longer requires the worker’s services and/or for the period during which the temporary work agency fails to assure work for a user undertaking. According to Article 61(3), the wage compensation may not be lower than 70 per cent of the minimum wage. D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship According to Article 63(1) of the ERA-1, ‘the worker must carry out work pursuant to the user undertaking’s instructions’. The user undertaking ­executes the ‘employer’s power’ on the basis of a civil law contract— a ­ written agreement between the user undertaking and the employer ­providing  work—laid down in Article 62 of the ERA-1. Before the temporary agency worker starts working, the user undertaking must inform the employer providing work (temporary work agency) about all conditions the worker must fulfil in the performance of the work and provide an assessment of the risks of injuries and health impairments. The conclusion of a written agreement follows. In the agreement, the mutual rights and obligations of the temporary work agency and of the user undertaking, as well as those of the worker, are defined. (ii)  Rights and Obligations/Liability Irrespective of the fact that the assigned worker is not in an employment relationship with the user undertaking, s/he must ‘carry out work pursuant to the user undertaking’s instructions’.60 As long as the worker works for the user undertaking, both the user undertaking and the worker must comply with the provisions of the ERA-1, the collective agreements binding the user undertaking and/or the user undertaking’s general acts. The rights of the worker also include the use of benefits or facilities the user undertaking provides for its workers in ­connection with employment.61

60  61 

Art 63(1) of the ERA-1. Art 63(2) and (3) of the ERA-1.

830  Polonca Končar It is also provided that the worker shall be entitled to refuse to carry out work, if the user undertaking violates the obligations deriving from binding legal sources.62 If the worker does not carry out work in accordance with the instructions of the user undertaking, disciplinary action may be taken or the employment contract with the employer providing work (temporary work agency) may be terminated.63 The worker shall take annual leave in agreement with the employer providing work (temporary work agency) and the user undertaking.64 The rights of the worker which at the same time are the obligations of the user undertaking may be indirectly agreed upon in the written agreement between the temporary work agency and the user undertaking.65 For ­example, in the agreement, the agency and the user undertaking shall lay down provision for the education, training and further training of a worker during his/her assignment to the user undertaking. The latter has the obligation to provide the worker with the education, training and further training as stipulated in the agreement.66 As regards the obligations of the user undertaking, the ZUTD-C must be taken into consideration as well. The user undertaking has three obligations according to Article 166: —— During the assignment, s/he must act in accordance with the employment relationship regulations, —— S/he must inform the assigned worker of vacant posts or types of work at the user undertaking, —— S/he must assure the assigned worker equal possibilities with directly employed workers regarding employment for an indefinite duration.67 (iii)  Health and Safety In comparison with former legislation, the ERA-1 has strengthened the protection of temporary agency workers in terms of health and safety at work. Article 59(2) provides, inter alia, that the employer providing work (temporary work agency) may not assign workers to work with the user

62 

Art 63(4) of the ERA-1. Art 63(5) of the ERA-1. 64  Art 63(6) of the ERA-1. 65  Art 62 of the ERA-1. 66  Art 62(3) of the ERA-1. 67 Provisions mutatis mutandis to the last two indents can be found in Art 25(4) of the ERA-1. 63 

Atypical Employment Relationships: The Position in Slovenia 831 undertaking and that the user undertaking may not use the work of assigned workers in cases related to work places for which the user undertaking’s risk assessment shows that workers working at such work places are exposed to dangers and risks for which measures are laid down to reduce and/or limit the duration of exposure.68

The prohibition relates to particularly hazardous work places. This prohibition is considered justified as all issues related to safety and health at work fall under the scope of the general interest.69 Before the worker starts working, the user undertaking must inform the employer providing work about all employment conditions that must be fulfilled by the worker and must also submit an assessment of the risk of injury and health impairments.70 Subsequently, a written agreement between the agency and the user undertaking containing the mutual rights and obligations and of the assigned worker is concluded. The Act highlights that irrespective of the provisions of the written agreement, the user undertaking shall be responsible for respecting the provisions of an Act, the collective agreement and the user undertaking’s general acts on the protection of health at work.71 The user undertaking cannot pass all the obligations related to safety and health at work onto the agency, even if so agreed in the written agreement.72 If the user undertaking violates the obligations deriving from binding legal provisions (for example, relating to safety and health at work), the worker has the right to refuse to carry out the work.73 If the worker violates his/her obligations and does not perform the work pursuant to the user undertaking’s instructions on safety and health at work, his/her employment contract may be terminated by the temporary work agency for misconduct. E.  Relationship between Temporary Work Agency and User Undertaking The ERA-174 prescribes that before the worker starts working, the user undertaking must: 1) inform the employer providing work (temporary work agency) about all conditions that must be fulfilled by the worker to 68  According to the legislation in force, the prohibition applies not only to the temporary work agency, but also to the user undertaking. 69 See Art 4(1) of Directive 2008/104/EC. See also: P Končar, ‘Ureditev zagotavljanja začasnega dela in vpliv Direktive 2008/104/ES’, Delavci in delodajalci, 2–3/2012, 143–59. 70  Art 62. 71  Legal provisions obviously follow the requirements of Directive 91/383/EEC. 72  The Order of the VSRS II Ips 199/2007. 73  Art 63(4) of the ERA-1. 74  Art 62.

832  Polonca Končar perform the work and submit an assessment of the risk of injury and health impairment to the employer providing work, and 2) conclude an agreement with the employer providing work in writing, in which their mutual rights and obligations and the rights and obligations of the worker are defined in greater details. As regards the legal nature of the agreement, it is deemed to be a civil law agreement. Irrespective of the provisions of the written agreement, the user undertaking shall be responsible for respecting the provisions of an Act, the collective agreements and the user undertaking’s general acts on the protection of health at work and on working time, breaks and rest periods. The agreement also covers the issues of education, training and further training of a worker during his/her assignment to the user undertaking. In accordance with the said agreement, the worker must be informed in writing upon his/her assignment to the user undertaking about the working conditions at the user undertaking and about the user undertaking’s rights and obligations. In accordance with the ERA-1, the user undertaking shall be subsidiarily liable to the worker for the payment of wages and other benefits deriving from the employment relationship during the period of assignment to the user undertaking. F.  Rights and Status of Temporary Agency Worker (i)  Equal Treatment The principle of equal treatment is strongly highlighted in the legislation in force. Reference has already been made to the user undertaking’s obligations under Article 166 of the ZUTD-C. There are several provisions of the ERA-1 intended to contribute to the reinforcement of the implementation of the principle in practice. This is achieved as follows: —— The employment contract must stipulate that the amount of remuneration for the work and the compensation will depend on the work actually performed at the user undertaking, taking into account the collective agreements and general acts binding the individual user undertaking;75

75  Art 61(2). As regards pay, the regulations are interpreted to mean that the amount of pay shall be the same as though the assigned worker had been directly recruited by the user undertaking. According to case law, the assigned worker is only entitled to reimbursement of work-related expenses in accordance with the collective agreement binding the user undertaking during the period of assignment. Once the work for the user undertaking has ceased, the collective agreement binding the temporary work agency begins to apply. The judgment of the VDSS Pdp 1321/2014, 12 March 2015.

Atypical Employment Relationships: The Position in Slovenia 833 —— Irrespective of the provisions of the written agreement between the temporary work agency and the user undertaking, the user undertaking shall be responsible for respecting the provisions of an Act, collective agreements and the user undertaking’s general acts on the protection of health at work and on working time, breaks and rest periods;76 —— The assigned workers are entitled to use any benefits and facilities77 provided by the user undertaking to its workers.78 (ii)  Other Matters Some of the provisions of the ERA-1 have been designed to guarantee more effective protection of assigned workers. For example, Article 62(6) states that the user undertaking shall be subsidiarily liable to the worker for payment of wages and other benefits related to the employment relationship in the period during which the worker works for the user undertaking.79 In order to increase the responsibility of the user undertaking, an additional provision has been included in the current ERA-1 providing that in certain cases (see Article 59(2) mentioned in sections IV.D.(iii) above and IV.H below) the prohibition of the assignment applies not only to the temporary work agency, but to the user undertaking as well. G. Information and Consultation/Representation of Temporary Agency Worker Article 59(5) of the ERA-1 specifies the user undertaking’s obligation to inform the trade union, works council or the worker representative at least once a year about the reasons for using temporarily assigned workers and their number. This is not an ex lege obligation. The information must be provided upon the trade union’s, works council’s or worker representative’s request. H. Strikes The ERA-1 prohibits the employer providing work (temporary work agency) from assigning workers and the user undertaking from using the 76 

Art 62(2). legal regimes apply, for example, in relation to access to the canteen, child care, transport services, etc. 78  Art 63(3). 79  The provision can be applied in cases when the temporary work agency is not able to pay its worker. 77  Equal

834  Polonca Končar work of assigned workers in cases when they are replacing workers who are employed by the user undertaking and who are on strike.80 There is a doctrinal interpretation of the provision that the prohibition covers the entire duration of the strike and the period directly following the ending of the strike, if the need for the work of the assigned workers relates to the strike.81 The provision on the prohibition of the use of temporary agency work during strikes is found in Recital 20 of Directive 208/104/EC. It is complemented by other prohibitions and restrictions on such use of temporary agency work.82 I.  Collective Agreements Deviating from Statutory Provisions A general rule is expressly provided for in Article 9 of the ERA-1, according to which an employment contract and/or collective agreement may specify rights that are more favourable for the worker than those laid down by the ERA-1. Some articles of the Act refer to cases in which collective agreements may determine respective rights otherwise.83 Article 59 is also mentioned. Article 59(3) provides: The number of workers assigned to the user undertaking may not exceed 25 per cent of the number of workers employed with the user undertaking, except if otherwise provided by a sectoral collective agreement. This limitation does not include workers who are employed for an indefinite duration with the employer providing work. The limitation referred to in this paragraph shall not apply to a user undertaking who is a smaller employer.

Provisions of this paragraph are interesting from the viewpoint of the restrictions and prohibitions of temporary agency work, on the one hand, and from that of the role of collective agreements, on the other. The fixed quota of workers who may be assigned to a user undertaking is one of the restrictions on the use of temporary agency work. It represents a novelty in the regulation of temporary agency work. It was introduced to

80 

First indent of Art 59(2). B Kresal in N Belopavlovič et al (eds), Zakon o delovnih razmerjih (ZDR-1) s komentarjem (IUS software, GV Založba, 2016) 341. 82  The prohibition /restriction provided in art 59 also applies to: 81 

—— cases when the user undertaking has terminated employment contracts with a large number of employed workers during the transitional period of the past 12 months, —— cases related to work places for which the user undertaking’s risk assessment shows that workers who work at such work places are exposed to dangers and risks, —— other cases laid down in a sectoral collective agreement, if these provide for greater protection of workers or are dictated by workers’ safety and health requirements. 83 

Standard either ‘in peius’ or ‘in favorem’ may apply.

Atypical Employment Relationships: The Position in Slovenia 835 decrease abuses84 in practice and to support the provision which e­ stablishes that employment contracts with the temporary work agency must, as a rule, be concluded for an indefinite period. A heated debate about the new ‘quota provisions’ took place. Many were of the opinion that the introduction of the quota system contains deficiencies. The percentage of the permitted share of temporary agency workers was assessed to be unreasonably high.85 The quota system does not apply to smaller user undertakings (those employing 10 or fewer workers). The limitation also does not include workers employed with the temporary work agency for an indefinite duration. The branch collective agreement may, however, set other percentages. One or two sectoral collective agreements have already stipulated that the quota of temporary agency workers can be up to 50 per cent of the workers.

84  There were a few cases in which the user undertaking’s activity was exclusively performed by assigned workers. 85  B Kresal, ‘Pravna vprašanja nove ureditve zaposlitve za določen čas in agencijskega dela’, Delavci in delodajalci 2–3/2013, 169–93.

836

32 Atypical Employment Relationships: The Position in Spain JOAQUÍN GARCÍA MURCIA AND IVÁN ANTONIO RODRÍGUEZ CARDO

I. INTRODUCTION

A

TYPICAL EMPLOYMENT RELATIONSHIPS in Spain are not ­formalised, ie the general rules of labour law apply to them as well. Employees who are party to an atypical employment relationship are considered regular employees and they are thus within the scope of labour law. However, the Labour Code1 (Estatuto de los Trabajadores) is primarily designed for standard employment relationships; that is, for permanent full-time employment relationships. Accordingly, special rules apply to fixed-term contracts, part-time employment and temporary agency work in order for the general regulatory framework to be adapted to those forms of employment. Spanish labour law has introduced such special rules, which have two main objectives. The first is to ensure that the principles of equality and non-discrimination are extended to these workers. Article 14 of the ­Spanish Constitution generally recognises those principles, but they need to be independently specified for atypical employment relationships, as simply prohibiting any divergence between standard and atypical employment relationships would defeat the purpose. Some atypical employment relationships are a natural consequence of the proportionality principle, for example. Both legislation and the judiciary have—and will continue to play—a ­decisive role in the development of atypical employment ­relationships and their progressive adaptation to the rules applicable to permanent full-time workers. The second objective is linked to a certain underestimation or disparagement of atypical employment relationships. The law seems to consider them temporary situations, justified by necessity (on the part of the undertaking 1 

Royal Legislative Decree 2/2015 (www.boe.es/buscar/act.php?id=BOE-A-2015-11430).

838  Joaquín García Murcia and Iván Antonio Rodríguez Cardo or of the worker). Hence, some atypical employment relationships have not been entered into completely voluntarily, and labour law aims to remove obstacles to allow every worker to obtain a better job. This is a key point, because the regulations on atypical employment relationships are based on the premise that this type of work represents an employment relationship of lower quality than permanent full-time employment. Other laws have also taken note of atypical employment relationships. The legislation on occupational health and safety (prevención de riesgos laborales),2 for example, requires more rigorous measures to be applied for the protection of workers in such employment. Finally, Article 2 of the Labour Code provides a list of ‘employment relationships of a special nature’. Some of these employment relationships are closely linked with atypical forms of employment. For example, professional athletes (deportistas profesionales)3 conclude special forms of employment relationships that must always be of a temporary nature. II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements The Spanish Labour Code and Royal Decree 2720/19984 establish the rules regulating fixed-term employment contracts (contratos temporales), a category of employment contracts (contrato de trabajo) with special rules for termination. All other aspects of fixed-term employment relationships are regulated by the general rules. Legislation establishes three categories of fixed-term employment contracts: (a) To perform specific independent work or a specific independent service within the activity of the company, the execution of which—albeit limited in time—is of uncertain duration; (b) Due to temporary business or organisational needs (market circumstances, accumulation of tasks or excess of orders); (c) Substitution of workers who have the right to reservation of their post or for temporary coverage of a vacant job.5 Fixed-term employment contracts need to be justified by objective reasons (razones objetivas) relating to the undertaking’s activity, and must be concluded in writing, with the exception of those contracts concluded for temporary business or organisational needs for less than four weeks 2 Ibid. 3 

Royal Decree 1006/1985 (www.boe.es/buscar/act.php?id=BOE-A-1985-12313). Law 31/1995 (www.boe.es/buscar/act.php?id=BOE-A-1995-24292). 5  Labour Code, art 15. 4 

Atypical Employment Relationships: The Position in Spain 839 (­ contracts must also be concluded in writing for part-time jobs).6 The ­contract must include information on the objective reasons or intended purpose justifying the fixed-term nature of the employment relationship (stating the specific work or service to be performed, the substituted worker, the temporary business need, etc). When a written form of the contract is compulsory, an official template (approved by the government) should be used to conclude the fixed-term work contract. Employers must register fixedterm employment contracts at the labour office. Finally, fixed-term employment contracts can be used for every economic activity and in every type of undertaking if objective reasons exist and all legal requirements are fulfilled. Some special rules have been developed to deal with the particularities of specific sectors, such as the construction industry. The collective agreement in force in that sector7 creates a specific category of fixed-term work contracts, and successive contracts are more generously permitted than stipulated in Article 15 of the Labour Code. B.  Stipulation of the Contractual Terms Under Spanish labour law, a fixed-term employment contract requires the existence of an objective reason justifying the temporal nature of the employment relationship. Fixed-term work is thus linked to the ‘principle of causality’ (principio de causalidad), because the employer cannot freely choose whether to enter into a permanent or a temporary employment relationship. As already mentioned, the conclusion of a temporary contract is only possible when an objective reason exists. The employer bears the burden of proof (carga de la prueba) regarding the existence of an objective reason.8 Such objective reasons are described in Article 15 of the Labour Code. They are: (a) The existence of specific independent work or a specific independent service within the activity of the company (contrato por obra o servicio determinado); (b) A temporary business or organisational need (contrato eventual); and (c) The substitution of an absent worker or temporary coverage of a vacant post (contrato de interinidad). As an exception, Law 43/20069 allows persons with disabilities to conclude a fixed-term contract (for a minimum of one year and a maximum of three years) without the existence of a specific objective reason. 6 

Labour Code, art 8.2.

7 www.boe.es/diario_boe/txt.php?id=BOE-A-2012-3725.

8 A Martín Valverde, F Rodríguez-Sañudo Gutiérrez and J García Murcia, Derecho del ­Trabajo, 25th edn (Tecnos, 2016) 555–89. 9 www.boe.es/buscar/act.php?id=BOE-A-2006-22949.

840  Joaquín García Murcia and Iván Antonio Rodríguez Cardo An employment contract expires when the intended purpose is achieved. The maximum duration for a fixed-term work contract differs depending on its type. In the case of contrato por obra o servicio determinado, the contract comes to an end when the agreed work or service is completed, but the law sets a maximum duration of three years, nonetheless. In case of contrato eventual, the limit is six months within a period of 12 months since the emergence of the business or organisational need (the limitation can be modified by collective agreement with certain restrictions). In case of c­ ontrato de interinidad, the contract ends when the substituted worker returns to work, or when the vacancy is filled (or after three months for ­private companies, if the selection process has not been completed).10 It is possible to conclude fixed-term employment contracts with resolutive conditions (condición resolutoria) under Spanish law. The principle of freedom of contract (libertad de contratación) allows the employer and the worker to include resolutive conditions in the employment contract, but these may not entail an abuse of power by the employer and may not infringe on non-waivable employee rights.11 For example, the loss by the employee of any essential prerequisite to continue carrying out the activity can be included as a resolutive condition (eg loss of driving licence for a carrier). Spanish law also permits the conclusion of successive fixed-term contracts between the same parties, provided that each of them is justified by an objective reason stipulated in Article 15 of the Labour Code; that is, the objective reasons must continue to persist throughout the existence of the employment relationship. All requirements and restrictions apply while the employment relationship persists; that is, when a fixed-term work contract is renewed after the termination of the first one, objective reasons justifying its (continued) temporal nature will again be required, and those objective reasons must be included in Article 15 of the Labour Code. The objective reason(s) need to be expressly specified in the employment contract. If this is not the case, a legal presumption of the permanent nature of the employment relationship will apply.12 There is no explicit prohibition on chains of employment contracts (cadena de contratos de trabajo), provided that an objective reason exists therefore, but every contract concluded within the chain must show that an objective reason for its conclusion exists. If no objective reason exists for any of the concluded contracts, the employment relationship will transform from a fixed-term into a permanent employment contract. In fact, a fixed-term employment contract is presumed to have been concluded for an

10 

Labour Code, art 49. See section II.C. below for posts in the public sector. Labour Code, art 3.5. 12  Labour Code, art 81 and art 15. 11 

Atypical Employment Relationships: The Position in Spain 841 indefinite duration if the time limitation is invalid.13 The lack of a written form of contract implies that the fixed-term employment contract is deemed a permanent one, unless the employer can prove its time-limited nature. Article 15.5 of the Labour Code establishes a limitation for chains of fixed-term employment contracts for work or services and of temporary contracts for production-related circumstances. A worker becomes a permanent employee if he or she is employed by a company under this type of contract for more than 24 months during a 30-month period. Article 15.5 of the Labour Code also refers to collective bargaining to regulate the requirements aimed at preventing the abusive use of fixed-term contracts by using different workers to fill the same job. C.  Termination/End of Fixed-Term Contracts Usually, fixed-term employment contracts end when the objective reasons for the time limitation of the contract cease to exist or due to the expiration of the agreed time period. The cessation of the objective reason justifying the temporal nature of the contract is particularly relevant for contracts for work or services, for the substitution of workers or for temporary coverage of a vacant post. These contracts will terminate when the relevant work or service has been completed, the substituted worker returns to work, or the vacancy is filled. However, if a fixed-term employment contract was concluded due to temporary business or organisational needs, this rule is not applied. The employment contract is terminated on a specific date in accordance with the time limitation previously set in the contract, ie the cessation of the objective reason is of no relevance at all, and the agreed duration must be respected.14 All of these contracts have an additional restriction related to their maximum duration. Contracts for work or services may not last longer than three years.15 Fixed-term employment contracts based on temporary business or organisational needs have a legal maximum limitation of six months within a reference period of 12 months from the time of the emergence of the objective reasons for concluding a fixed-term employment contract; however, both the legal maximum duration of the contract and the reference period can, within certain limitations, be extended by a collective agreement. No limitations apply to contracts for substitution of a worker or for temporarily filling a vacant post, if the objective reason is the substitution of a worker and when the vacant post being filled is in a public

13 

Labour Code, art 15.3. Labour Code, art 15 and art 49. 15  Labour Code, art 15.1(a). 14 

842  Joaquín García Murcia and Iván Antonio Rodríguez Cardo administration. However, once the selection process has been completed by a private employer, the contract for filling that vacancy may not exceed an additional three months.16 Such employment contracts do not terminate automatically once the agreed duration is reached. Article 49 of the Labour Code provides that the employment relationship is automatically extended to the maximum duration permitted by statutory law or collective agreement, if the employee continues working after the date of expiration of the contract. If the maximum duration has already been exceeded, the fixed-term employment contract turns into a permanent one. That is the reason the Labour Code requires the employer or the worker to issue a notice (preaviso) to the other party prior to the end of the fixed-term employment contract (15 days in advance if the contract lasted for a year or more). Termination in this sense therefore requires a prior claim by one of the parties with a period of notice (otherwise the contract could be extended), and the worker is entitled to financial compensation of 12 days’ salary for each year of work at the end of the contract for work or services, or of the contract for temporary business or organisational needs. Fixed-term work contracts can of course also be terminated in the same circumstances as permanent contracts (eg dismissal of the employee on disciplinary grounds or due to a collective dismissal) and according to the rules of permanent ones. The expiry of a fixed-term employment contract does not require the observance of any special procedure.17 Jurisdictional procedures on the termination of fixed-term employment contracts follow the general procedural rules for dismissal. For example, the period for filing a lawsuit against any contract termination, regardless of whether it is a permanent or fixed-term employment contract, is 20 days.18 D.  Rights and Status of Fixed-Term Worker (i)  Equal Treatment The principles of equality and non-discrimination (principios de igualdad y no discriminación) apply to all, in accordance with Article 14 of Spanish Constitution19 (Constitución Española). More specifically, every worker has the right to not be discriminated against.20 Article 15.6 of the Labour Code

16 

Decree 2720/1998, art 4. Labour Code, arts 51 f. 18  Labour Procedure Act, art 103 (www.boe.es/buscar/act.php?id=BOE-A-2011-15936). 19  The Spanish Constitution, art 14 states: ‘Spaniards are equal before the law, without any discrimination for reasons of birth, race, sex, religion, opinion, or any other personal or social condition or circumstance’. 20  Labour Code, art 17. 17 

Atypical Employment Relationships: The Position in Spain 843 strengthens this right by stating that temporary workers enjoy the same rights as permanent workers. Entitlement to some rights may, of course, be proportional, depending on the time already worked for the enterprise (number of annual leave days, for example).21 Seniority must be equally recognised for all workers, regardless of type of contract. The principle of non-discrimination between permanent and temporary workers creates numerous conflicts. The courts have clarified the scope of the right to equal treatment. For example, the Supreme Court has stated that collective agreements cannot set different wages for temporary workers and for permanent workers.22 Spanish law and case law is based on EU law, particularly Directive 1999/70/EC and CJEU case law. Contradictions have occasionally emerged. For example, the CJEU ruling in Gaviero23 stated that non-permanent workers in public administration have the right to a seniority supplement. (ii)  Employment Opportunities According to Article 15.7 of the Labour Code, the employer must inform temporary workers of the existence of any vacant posts, to guarantee them the same opportunities as other workers for access permanent posts. This information may be shared by public announcement in a proper place within the company or work centre, or through other means ensuring transmission of the information as provided for in collective agreements. Collective bargaining agreements may establish objective criteria or compromises for the conversion of temporary contracts into permanent ones, and may also establish measures to facilitate effective access by these ­workers to vocational training in order to enhance their qualifications and promote their professional advancement and mobility.24 (iii)  Other Matters Article 3.5 of the Labour Code establishes a general prohibition of any agreement involving a worker’s waiver of rights recognised by statutory provisions or established in collective agreements. 21 

Labour Code, art 38. Spanish Supreme Court, 26 April 2004 (Id Cendoj: 28079140012004100409, 4480/2002: www.poderjudicial.es/search/doAction?action=contentpdf&databasematch=TS&reference= 2217099&links=&optimize=20040624) and Spanish Supreme Court, 12 November 2008 (Id Cendoj: 28079140012008100765; 4273/2007: www.poderjudicial.es/search/doAction? action=contentpdf&databasematch=TS&reference=3436703&links=%224273/2007%22& optimize=20081218). 23 Joined cases C-444/09 and C-456/09, Rosa María Gavieiro Gavieiro and Ana María Iglesias Torres v Consellería de Educación e Ordenación Universitaria de la Xunta de Galicia, ECJ, 22 December 2010, [2010] ECR I-14031. 24  Labour Code, art 15.7. 22 

844  Joaquín García Murcia and Iván Antonio Rodríguez Cardo According to Article 8.5 of the Labour Code, the employer must inform the employee about the basic elements of their contractual relationship, which are not explicitly contained in the written contract. Spanish labour law clearly has a preference for indefinite over fixed-term work contracts. The fixed-term worker therefore not only has the right to be informed about vacancies, but also to have access to a better contract, such as the replacement contract designed to supplement the working time of an elderly employee in the same undertaking who is eligible for partial retirement.25 E.  Information and Consultation All employers are required to inform the employee representatives about the conclusion of new fixed-term employment contracts and to give them a ‘basic copy’ of the employment contract.26 Works councils have the right to receive information (at least every ­quarter) on the probable development of employment in the company, and the employer’s plans to sign new contracts, indicating their number and the modalities and types of contracts to be signed, including part-time ­contracts. They also have the right to receive information on the application of the right to equal treatment and opportunities between men and women in the company at least once a year, which must include data on the share of men and women at different occupational levels, along with information, as the case warrants, on measures that have been adopted to promote equality between men and women in the company.27 F.  Specific Provisions Although Article 15 of the Labour Code only lists three types of fixed-term contracts, many other employment contracts exists with legal limitations in terms of their duration. For example, Article 11 of the Labour Code regulates training contracts (contrato en prácticas) for those in possession of a university degree or of intermediate or higher vocational training qualifications, and apprenticeship contracts (contrato para la formación y el aprendizaje), combining both theory and practice for those who lack qualifications. The duration of training contracts may not be less than six months or more than two years, while the duration of apprenticeship contracts may not be less than one year or more than three years in total. 25 

Labour Code, art 12.6 and 12.7. Labour Code, art 15.4. 27  Labour Code, art 64. 26 

Atypical Employment Relationships: The Position in Spain 845 Special statutory provisions exist for universities, regulating various s­ pecial fixed-term employment contracts for university teachers (not public servants).28 Healthcare institutions may conclude special fixed-term employment contracts with healthcare science graduates to perform work and thereby acquire specialisation.29 Moreover, in certain areas, employment relationships are always based on fixed-term employment contracts, namely for imprisoned employees30 or professional athletes.31 G.  Collective Bargaining Agreements Deviating from Statutory Provisions As a general rule, it is not possible to deviate in collective agreements from the statutory provisions, unless the statutory provision itself specifically refers to collective bargaining.32 The favourability principle is of course applicable, and the collective agreement can establish a higher wage than the legal minimum wage, for example. However, collective agreements may not alter the basic features of the legal configuration of fixed-term contracts. Therefore, they cannot establish a minimum or maximum duration longer than that provided for in law, nor a lower severance payment at the termination of the contract. Since 1994 Spanish labour law has allotted collective bargaining entitlements to complement or further elaborate statutory rules. For example, Article 15.1(b) of the Labour Code states that the maximum duration of the contrato eventual is six months, but it allows collective agreements to extend the maximum duration to 12 months. A collective agreement may not, however, establish a maximum duration that exceeds 12 months. III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements According to Article 12 of the Labour Code, an employment contract is a part-time contract (contrato a tiempo parcial) when the work to be provided is agreed on for a number of hours a day, week, month or year, which

28 

Organic Law 6/2001, art 47 f (www.boe.es/buscar/act.php?id=BOE-A-2001-24515). Royal Decree 1146/2006 (www.boe.es/buscar/act.php?id=BOE-A-2006-17498). 30  Royal Decree 782/2001 (www.boe.es/buscar/act.php?id=BOE-A-2001-13171) and Royal Decree 1774/2004 (www.boe.es/buscar/doc.php?id=BOE-A-2004-15601). 31  Royal Decree 1006/1985 (www.boe.es/buscar/act.php?id=BOE-A-1985-12313). 32  Labour Code, art 3. 29 

846  Joaquín García Murcia and Iván Antonio Rodríguez Cardo is less than the working day of a comparable full-time employee (trabajador a tiempo completo), ie a full-time worker in the same company and workplace, with the same type of employment contract, performing an identical or similar job. If there is no comparable full-time worker in the company, the full-time working day (jornada de trabajo) defined in the applicable collective bargaining agreement shall be taken as reference or, in its absence, the legal maximum working day (an average of 40 hours per week on an annual basis).33 Part-time contracts may be fixed-term contracts—if objective reasons exist, as specified above—or permanent contracts, but they must be concluded in writing.34 The contract shall reflect the number of ordinary working hours contracted per day, week, month or year and their distribution. If these requirements are not observed, the contract will be presumed to be a full-time contract.35 B.  Opportunities for/Right to Part-Time Work The parties are free to agree to a part-time employment contract, with few exceptions (contracts for training and learning).36 No objective reasons need to exist to conclude a part-time contract. Likewise, the parties are free to agree on a change of working time. As a general rule, the employee can accept part-time work, or can modify his or her working time on a voluntary basis. The employer must inform part-time workers of the company about the existence of vacant posts, so that they are provided the opportunity to voluntarily convert their contract to one of full-time work or vice versa, or to increase their working hours. Collective agreements can play an important role in this regard, with Article 12 of the Labour Code making reference to them to regulate the procedure for such conversions of working time.37 Conversions from full-time to part-time work or vice versa must always be voluntary and may not be imposed unilaterally. The worker may not be dismissed, nor may s/he suffer any other type of sanction or damaging ­consequence if s/he rejects such conversion.38

33 

Labour Code, art 34. Labour Code, art 8.2. 35  Labour Code, art 12.4. 36  Labour Code, art 11. 37  Eg: The collective agreement of the chemical industry, art 13.2 (www.boe.es/diario_boe/ txt.php?id=BOE-A-2015-9304). 38  Labour Code, art 12.4. 34 

Atypical Employment Relationships: The Position in Spain 847 C.  Opportunities for/Right to an Extension of Working Time As stated above, the parties are free to agree on an extension of working time. As a general rule, the employee can accept part-time work, or can change his or her working time on a voluntary basis. The employer must inform the workers of the company about the existence of any vacancies to give part-time workers the opportunity to apply for a (voluntary) conversion to full-time work or vice versa, or for part-time workers to increase their working hours.39 D.  Rights and Status of Part-Time Worker (i)  Equal Treatment The principle of non-discrimination is recognised for all in Article 14 of the Spanish Constitution40 (Constitución Española). Moreover, every worker has the right to protection from discrimination.41 Article 12 of the Labour Code underpins this concept, and states that part-time workers are entitled to the same rights as full-time workers. Several rights are, of course, recognised on a proportional basis, depending on hours worked (wage, for example). Seniority, however, must be recognised on the same basis for all workers, regardless of type of contract.42 (ii)  Dismissal Protection General protection against dismissal applies to part-time workers as well, as labour law does not establish any special regulations regarding dismissals for this type of employment relationship. The rules on dismissal are thus of a general nature and applicable to all workers, regardless of sector of ­activity or company size. With some exceptions (eg during a probation period),43 Spanish law requires dismissals to have justified grounds. A worker who has been unfairly dismissed is entitled to severance of 33 days’ salary per year of service.44 There are two major grounds for a justified dismissal: non-compliance

39 

Labour Code, art 12.4. Constitution, art 14 states: ‘Spaniards are equal before the law, without any discrimination for reasons of birth, race, sex, religion, opinion, or any other personal or social condition or circumstance’. 41  Labour Code, art 17. 42  M Areta Martínez, El régimen jurídico de la antigüedad del trabajador en la empresa (Thomson-Aranzadi, 2016) 35–45. 43  Labour Code, art 14. 44  Labour Code, art 56. 40 Spanish

848  Joaquín García Murcia and Iván Antonio Rodríguez Cardo by the worker or reasons relating to business. The first ground leads to ‘­disciplinary dismissals’,45 while the second results in a dismissal on objective grounds46 or a ‘collective redundancy’.47 Dismissals may be fair or unfair. Under Spanish law, unfair dismissals can simply be ‘unfair dismissals’ (improper or ‘improcedente’ in Spanish) or dismissals in breach of a fundamental right (null and void, ‘nulo’ in ­Spanish). Under an improcedente dismissal, either the formal requirements have been breached or the employer cannot prove the alleged cause (the employer can choose between reinstating the worker or terminating the contract and paying severance as mentioned). A dismissal is null and void when it violates a fundamental right, when it is discriminatory, when it affects a pregnant employee, or when it affects employees who are on parental leave, unless in each case the employer can prove that there is just cause for dismissal (if the employer cannot prove that the dismissal is justified the worker must be reinstated).48 These rules also apply to part-time workers. Such workers are additionally protected, because, as already mentioned, a part-time worker may not be dismissed, nor may s/he suffer any other type of sanction or damaging consequence for rejecting a permanent change of his or her working time.49 (iii)  Other Matters The Labour Code allows for a temporary reduction of working time for family reasons. For example, according to Article 37.6, a worker has the right to reduce his/her working time (to 50 per cent) to care for a child that is younger than 12 years of age, for a disabled person or dependent relatives. In such cases, a reduction of working time does not automatically convert the employment contract into a part-time one. This is only a case of temporary reduction of working time, although a number of rights apply as for full-time workers. For example, severance pay in case of dismissal may not be calculated proportionally; that is, the worker would be entitled to full compensation as if s/he had been working on a full-time basis.50 Article 47 of the Labour Code also for allows a temporary reduction of working time for economic, technical, organisational or production reasons. The worker will return to his or her previous post (full-time work) when those reasons cease.

45 

Labour Code, art 54. Labour Code, art 52. 47  Labour Code, art 51. 48  Labour Code, art 55 f. 49  Labour Code, art 12.4. 50  Labour Code, Additional Provision 19a. 46 

Atypical Employment Relationships: The Position in Spain 849 It should be noted, that the temporary reduction under Article 37.6 and Article 47 do not transform the employment contract into a part-time contract in a strict sense, as the reduction of working time is only temporary, ie the worker will return to his or her full-time job. Therefore, these workers do not have the same rights as part-time employees regarding, for example, the information about vacant full-time jobs. E.  Information and Consultation Works councils have the right to receive information (at least every ­quarter) on the probable development of employment in the company and the employer’s provisions on concluding new contracts, indicating their ­number, the modalities and types of contracts, including part-time contracts and any additional hours to be performed by part-time workers.51 F.  Other Part-Time Arrangements The parties can agree on the allocation of working time of part-time workers. The worker can either perform work every day or only on specific days. The Labour Code allows greater flexibility in the allocation of working time, but certain legal limitations must be respected (not more than nine hours per day, unless collective bargaining allows for more hours, and at least 12 hours of rest between the end of one working day and the beginning of the next one).52 Part-time workers are excluded from working overtime. However, Article 12 of the Labour Code provides the possibility of negotiating ­ ‘­additional hours’ (horas complementarias). If such a prior agreement is reached, the employer may require the part-time worker to work additional hours by issuing three days’ notice. The employee may then not refuse the employer’s request. Under certain conditions (ie permanent part-time ­workers with a working time of not less than 10 hours per week), it is even possible for the employer to unilaterally require the employee to work additional hours, though the worker has the right to refuse such a request. It is worth mentioning that Spanish legislation does not provide a general definition of on-call time; it is considered working time if the worker receives a call to work and performs the activity. In a strict sense, on-call work is not recognised under Spanish labour law, but those additional hours

51  52 

Labour Code, art 64. Labour Code, art 34.

850  Joaquín García Murcia and Iván Antonio Rodríguez Cardo could be described as on-call work, although previous agreement is required and the employee has the right to refuse such additional work.53 According to Article 34 of the Labour Code, collective agreements may include an irregular distribution of working time (distribución irregular de la jornada de trabajo). In the absence of an agreement, the company may distribute unevenly up to 10 per cent of the working day throughout the year. In any case, the worker must be informed at least five days in advance of the day and hours of work. Finally, there is no statutory regulation on job sharing. Certain types of contracts exist in which several workers may perform the same job. For example, a part-time employment contract of a worker opting for ‘partial retirement’ (jubilación parcial) combined with the so-called ‘replacement contract’ (contrato de relevo) of the employee who will work the vacant hours of the ‘partially-retired’ employee.54 G.  Collective Bargaining Agreements Deviating from Statutory Provisions As a general rule, it is not possible to deviate from the statutory provisions of collective agreements, unless the statutory provision itself specifically refers to them. The favourability principle applies, and a collective agreement may establish favourable conditions (wages, annual leave, opportunities for fulltime work, etc). Collective agreements may not, however, alter the basic features of the legal configuration of part-time work or reduce the rights of part-time workers;55 nor may they allow overtime for part-time workers.56 IV.  TEMPORARY AGENCY WORK

A.  Legal Definitions/Formal Requirements Temporary agency work was prohibited in Spain until 1994. Temporary work agencies were legalised and regulated by the Spanish Law 14/1994.57 This Act is the main statutory instrument on temporary agency work, and has been amended several times. Directive 2008/104/EC was transposed into Spanish legislation through Law 35/2010.58

53 

Labour Code, art 12.5. Labour Code, art 12. 55  Labour Code, art 3.5. 56  Labour Code, art 12.4. 57 www.boe.es/buscar/act.php?id=BOE-A-1994-12554. 58 www.boe.es/buscar/act.php?id=BOE-A-2010-14301. 54 

Atypical Employment Relationships: The Position in Spain 851 Temporary work agencies, which since 2012 have been permitted also to operate as placement agencies, conclude contracts with employees (as the ‘employer’) and temporarily ‘lend’ them to the user undertaking. User undertakings can hire manpower to deal with temporary needs without having to undergo a selection process and without themselves contracting the workers directly. The temporary work agency functions as the employer: the agency concludes the contract with the temporary agency worker and temporarily assigns him or her to the user undertaking to perform work. Act 14/1994 requires temporary work agencies to fulfil several formal requirements if they want to operate in the Spanish labour market: the temporary work agency’s organisation and structure must be based on the regulations stipulated by law; it may not owe any debts to tax or social security authorities or have been previously sanctioned by any public administration.59 The law furthermore requires the temporary work agency to indicate its activity in its name. Legislation provides for certain restrictions. The general rule under ­Spanish labour law is a prohibition on lending or hiring workers to other undertakings.60 As an exception to this general rule, temporary work agencies are the only type of undertaking allowed to perform this activity. They are, however, subject to legal control. Prior to becoming operational, temporary work agencies are required to request authorisation by a public administration. B.  Registration, Licensing, Financial Guarantees, etc Express legal authorisation for a specific geographic area must be attained by a temporary work agency to operate in the Spanish labour market. Prior to beginning their activity, temporary work agencies must obtain initial authorisation, for which they need to fulfil certain prerequisites regarding the agency’s structure and organisation and provide certain financial guarantees (25 times the minimum wage calculated on an annual basis). Operating without this permission is illegal. Initial authorisation is granted for one year, and can be extended when fulfilment of all legal requirements is verified. There are no exceptions to the requirement to apply for permission to operate as a temporary work agency. Strict control is compulsory to prevent violations of workers’ rights.61 Authorisations for operation of temporary work agencies are granted by the Provincial Directorate of Labour and Social Security of the province

59 

Act 14/1994, art 2.1. Labour Code, art 43. 61  Act 14/1994, art 2. 60 

852  Joaquín García Murcia and Iván Antonio Rodríguez Cardo in which the agency plans to operate. If the agency has offices in several ­provinces of the same Autonomous Community, authorisation is granted by the relevant Autonomous Community. If the temporary work agency has offices in several provinces of different Autonomous Communities, authorisation will be granted by the Spanish state. Assigning temporary agency workers without prior authorisation is illegal and can be sanctioned, both under civil labour law and criminal law. Administrative responsibility is established under Article 18 of Legislative Royal Decree 5/2000 of 4 August.62 Criminal liability is established under Article 312 of the C ­ riminal Code, Organic Law 10/1995 of 23 November 1995.63 C. Relationship between Temporary Agency Worker and Temporary Work Agency (i)  Fixed-Term and Part-Time Contracts As mentioned above, the temporary work agency concludes contracts with the workers and temporarily lends them to user undertakings. The temporary work agency is thus the formal employer.64 The contract of employment can be a fixed-term contract or a permanent one. However, the assignment of the worker to the user undertaking must be temporary.65 Legislation does not contain a prohibition on synchronising the duration of the employment contract (between the temporary work agency and the temporary employee) and the duration of the temporary agency worker’s assignment. On the contrary, synchronisation is imperative: if the worker has been hired under a fixed-term employment contract, its duration must be the same as that of the contract between the temporary work agency and the user undertaking for the assignment of the employee.66 However, there is an exception, and an employee can work consecutively for several different user undertakings based on individual contracts between the temporary work agency and the different user undertakings, if those contracts have already been signed when the employee is hired by the temporary work agency.67 The duration of the temporary work contract cannot exceed the limits determined by the general regulations on fixed-term employment ­ contracts and is linked to the objective reasons that justify concluding a

62 www.boe.es/buscar/act.php?id=BOE-A-2000-15060. 63 www.boe.es/buscar/act.php?id=BOE-A-1995-25444. 64 

Labour Code, art 1.2. Act 14/1994, arts 7 and 10. 66  Act 14/1994, art 10.1. 67  Act 14/1994, art 10.3. 65 

Atypical Employment Relationships: The Position in Spain 853 fixed-term contract.68 Those limits are compulsory and cannot be modified by ­agreement between the parties or collective bargaining.69 It is worth noting that a former employee can be re-employed if there are objective reasons and if the maximum duration of fixed-term employment contracts is respected. Nevertheless, Act 14/1994 sets a limitation: a temporary agency worker cannot fill a job that has become vacant as a result of a dismissal for economic reasons within the last 12 months.70 This rule seeks to prevent the substitution of permanent workers with temporary agency workers and the consequent abuse of temporary agency workers. Contracts between the temporary work agency and the user undertaking for assigning workers must be temporary as well, ie assignments may not have a permanent character.71 Although they are commercial manpower supply contracts, they are concluded in accordance with the general regulation on fixed-term employment contracts (objective reasons, duration limits, etc).72 User undertakings may not permanently cover the same post with temporary employment. Employment as a temporary agency worker does not itself warrant a time limitation of an employment contract. In fact, temporary agency work is only possible if the same objective reasons, required for any fixed-term employment contract under general rules, exist. Therefore, legal regulations on temporary employment agencies refer to the general statutory provisions on fixed-term employment contracts.73 The user undertaking is responsible for corroborating the existence of objective reasons justifying the conclusion of fixed-term and temporary work contracts, and thus the validity of the time limitation, though this will also directly affect the contract between the temporary work agency and the employee.74 On the other hand, there is no specific limitation for part-time employment contracts. That is, the temporary agency worker can be a full-time or a parttime worker. As already mentioned, the parties are free to agree to conclude a part-time employment contract, and there is no need for objective reasons.75 (ii)  Rights and Obligations/Liability Article 15.6 of the Spanish Labour Code states that temporary agency workers are entitled to the same rights as the workers contracted directly by the user undertaking. Article 14 of the Spanish Constitution must be interpreted in the same way. In other words, equal treatment is guaranteed. 68 

Act 14/1994, art 10.1. Labour Code, art 15. 70  Act 14/1994, art 8. 71  Act 14/1994, art 7. 72  Labour Code, art 15. 73 Ibid. 74  Act 14/1994, art 10. 75  Labour Code, art 12. 69 

854  Joaquín García Murcia and Iván Antonio Rodríguez Cardo General protection against dismissal, as already explained, applies to t­emporary agency workers as well, because labour law does not ­stipulate any exceptions with reference to dismissals of this type of employment relationship. The conditions at the temporary work agency are not ­relevant. There are no special requirements when dismissing this kind of employee for economic reasons, but the employer must, however, fulfil the g­ eneral requirements.76 At the end of the contract, the worker is entitled to ­economic ­compensation of 12 days’ salary for each year of work.77 The employment contract between the temporary work agency and the temporary agency worker, either for a fixed-term or for an indefinite duration, must be concluded in writing.78 If it is a permanent employment contract, it can be suspended (which means no work, no wage) during the periods of inactivity in which no work needs to be performed for any user undertaking. If it is a fixed-term employment contract, it must have the same duration as the manpower supply contract (contrato de puesta a disposición) between the temporary work agency and the user undertaking (synchronisation).79 If the employee continues working for the user undertaking after termination of the manpower supply contract, Article 7.2 of Act 14/1994 provides that the worker will be considered to have concluded a permanent contract with the user undertaking. There are no restrictions regarding the subsequent conclusion of an employment contract between a user undertaking and a temporary agency worker. (iii)  Other Matters The temporary work agency is the actual employer, meaning it has the obligation to pay wages and contributions to social security, and the duty to give information and training in the field of health and safety and work. The agency can also impose penalties for labour offences.80 D. Relationship Between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship As already mentioned, the position and responsibilities of the user undertaking differ from those assumed by a ‘traditional’ employer. In this case, the 76 

Labour Code, arts 51 ff. Act 11/1994, art 11.2. 78  Act 11/1994, art 10.1. 79  Act 11/1994, art 10. 80  Act 11/1994, art 12. 77 

Atypical Employment Relationships: The Position in Spain 855 actual employer is the temporary work agency. The relationship between the worker and the user undertaking is not explicitly defined by law. (ii)  Rights and Obligations/Liability No contract is concluded between the worker and the user undertaking, but the user undertaking has the authority to direct and control the temporary worker’s activity, and is thus entitled to give orders and instructions to the worker. However, it does not have the power to impose penalties. The ‘triangular’ employment relationship between the temporary work agency, the temporary agency worker and the user undertaking requires certain responsibilities to be reoriented in a particular way. For example, Article 16 of Law 14/1994 establishes that the user undertaking is liable for any wages and social security contributions owed by the temporary work agency to the employee during the duration of the temporary employment contract. Royal Legislative Decree 5/2000 establishes administrative liability for temporary agency work. Both the temporary work agency81 and the user undertaking may be held responsible.82 Most breaches are related to documentary obligations or to temporary employment contracts in areas where such contracts are prohibited. Breaches will be penalised with a fine up to a maximum of EUR 187,515.83 (iii)  Health and Safety Although not being the actual employer, the user undertaking is considered responsible in the areas of health and safety in the workplace.84 However, the temporary work agency must ensure that the worker, prior to being made available to the user company, has undergone theoretical and practical training in the prevention of occupational hazards. The temporary work agency shall provide such training to the worker prior to the actual provision of services.85 E.  Relationship Between Temporary Work Agency and User Undertaking The temporary work agency and the user undertaking are linked by a manpower supply contract, which is a commercial contract. This manpower

81 

Royal Legislative Decree 5/2000, art 18. Royal Legislative Decree 5/2000, art 19. 83  Royal Legislative Decree 5/2000, art 40. 84  Act 14/1994, art 16. 85  Act 14/1994, art 12. 82 

856  Joaquín García Murcia and Iván Antonio Rodríguez Cardo supply contract must be of temporary duration and be underpinned by one of the objective reasons justifying the conclusion of a temporary work contract.86 The general rule is that temporary work agencies can assign temporary agency workers to any area or economic sector (including agriculture, manufacturing industry, construction, and service industries). However, temporary agency work cannot be used for tasks or activities considered highly hazardous for the health and safety of workers. These activities are listed in the Second Additional Provision of Act 14/1994: miners, offshore drilling platforms, working with explosive material, exposure to radiation or biological risks. Moreover, temporary agency workers may not take jobs without the compulsory advance evaluation of hazards at work.87 If the manpower supply contract is not valid, the worker’s actual employer is the user undertaking, and such a case would be considered an illegal transfer of workers.88 F.  Rights and Status of Temporary Agency Worker (i)  Equal Treatment As a general rule, Article 15.6 of the Spanish Labour Code states that temporary agency workers enjoy the same rights as workers with contracts of indefinite duration. Article 14 of the Spanish Constitution must be interpreted in the same way. With regard to employment conditions, it should be noted that initially, under the first regulation on temporary agency work by the Spanish Act 14/1994, the remuneration paid to temporary agency workers could be lower than that earned by the user undertaking’s regular employees. Following an amendment of Act 14/1994, Article 11 of Act 29/1999 now establishes the principle of equal pay. Furthermore, temporary agency workers have the right to earn as much as the workers directly hired by the user undertaking for the same work, and they can actually earn even more if the collective agreement applicable to the temporary work agency contains provision for higher wages, for example. In any case, the temporary employee’s remuneration shall include the proportional part for weekly rest time, annual leave and extra pay (‘13th month’ salary).

86 

Labour Code, art 15. Act 14/1994, art 12. 88  Labour Code, art 43. 87 

Atypical Employment Relationships: The Position in Spain 857 (ii)  Other Matters Spanish law covers the economic rights of temporary agency workers to ensure that they receive the same salary they would be entitled to if they had been directly recruited by the user undertaking. However, Article 7 of the Spanish Act 14/1994 states that if the worker continues to provide services to the user undertaking after the termination of the manpower supply contract, he or she will be linked directly to the user undertaking by a permanent contract. Furthermore, any clause in the temporary work contract between the temporary work agency and the worker (or in the manpower supply contract) preventing the user undertaking from hiring the temporary agency worker directly after the end of that contract is not valid. Regarding the use of collective facilities, Article 17 of Law 14/1994 states that temporary agency workers are entitled to use the transport and collective facilities at the user undertakings’ premises for the duration of the assignment. Temporary work agencies should allocate one per cent of the payroll to the vocational training of workers hired to be assigned to user undertakings,89 but Act 14/1994 does not guarantee that temporary agency workers may take part in the training courses provided by the user undertaking. G. Information and Consultation/Representation of Temporary Agency Worker Temporary agency workers are represented by the employee representatives of the user undertaking while working there, and can submit complaints about the execution of their work directly to them.90 The user undertaking must inform temporary agency workers of the existence of vacant posts to guarantee them the same job opportunities as permanent workers. This information may be shared by public announcement in an appropriate place in the company or work centre, or through other means that ensure transmission of the information, provided for in the collective bargaining agreement.91 The user undertaking must inform employee representatives about each manpower supply contract within 10 days of its conclusion. In addition, the user undertaking must provide them with a basic copy of each contract of employment of a temporary agency worker.92

89 

Act 14/1994, art 12.2. Act 14/1994, art 17. 91 Ibid. 92  Act 14/1994, art 9. 90 

858  Joaquín García Murcia and Iván Antonio Rodríguez Cardo H. Strikes Temporary agency workers have the right to strike. This right to strike is a fundamental right under Article 28 of the Spanish Constitution, so there are few limitations (exceptions are reasons of general interest or national security). All workers have the right to strike and there are no limitations for temporary agency workers.93 Temporary agency workers may not be used to substitute for workers who are on strike.94 I.  Collective Bargaining Agreements Deviating from Statutory Provisions Collective bargaining in the field of temporary work agencies is fairly complex. On the one hand, a collective agreement exists for this sector,95 in which rules are established on the rights and duties of the temporary work agency and the user undertaking,96 the probation period,97 as well as rules for the so-called ‘structure staff’; that is, workers who perform their activity directly for the temporary work agency and are not assigned to a user undertaking.98 On the other hand, since the worker assigned to a user undertaking is entitled to conditions that are at least equivalent to those of its the regular workers, the collective agreement of the user undertaking also indirectly applies to temporary workers.99

93 

Spanish Constitution and Royal Decree-Law 17/1977, art 28.2. Act 14/1994, art 8. 95 www.boe.es/boe/dias/2008/02/08/pdfs/A07085-07098.pdf. 96  The collective agreement of the chemical industry, arts 13 and 14. 97  The collective agreement of the chemical industry, art 19. 98  The collective agreement of the chemical industry, arts 26 ff. 99  Act 14/1994, art 11. 94 

33 Atypical Employment Relationships: The Position in Sweden ANDREAS INGHAMMAR

I. INTRODUCTION

S

WEDISH LABOUR AND employment law was primarily based on non-statutory regulations in collective agreements and case law until the mid-1970s, but the labour market became more rigidly regulated thereafter. The existence of and restrictions on atypical employment forms have been discussed ever since, politically as well as academically.1 Since the early 1990s, there has been movement in the direction of more flexible employment relationships, but atypical employment is still comparatively less widespread than in many other similar countries. While Swedish legislation in relation to redundancy is not significantly stricter than that in other EU Member States,2 employment protection in relation to sickness and reduced working capacity is generally considered more favourable to employees.3 The Swedish Labour Organisation (LO) published a report in 2014 stating that 15 per cent of the labour force had some type of ­fixed-term employment, and that young persons between the ages of 16 and 29 were

1 Numerous proposals have been discussed over the years and some have prevailed in ­ arliament, see further in Ds 2002:56 Hållfast arbetsrätt—för ett föränderligt arbetsliv, 214 P ff, Prop 2006/07:111 22 Bättre möjligheter till tidsbegränsad anställning, m.m., Ds 2012:25 Förstärkt skydd för arbetstagare med allmän visstidsanställning och vikariat, SOU 2011:5 Bemanningsdirektivets genomförande i Sverige, but also A Berg, Bemanningsarbete, ­flexibilitet och likabehandling (Juristförlaget i Lund, 2008), K Källström and J Malmberg, Anställningsförhållandet, Inledning till den individuella arbetsrätten, 4th edn (Uppsala, Iustus Förlag, 2016) 119–29, M Glavå and M Hansson, Arbetsrätt, 3rd edn (Lund, Studentlitteratur, 2016) 232–59, and an important early academic contribution, A Henning, Tidsbegränsad ­anställning. En studie av anställningsformsregleringen och dess funktioner (Juridiska Föreningen i Lund, 1984). 2 M Rönnmar, Arbetsledningsrätt och arbetskyldighet (Juristförlaget I Lund, 2004) and A Inghammar, Funktionshindrad—med rätt till arbete (Juristförlaget i Lund, 2007). 3  See further discussions in A Inghammar (n 2 above).

860  Andreas Inghammar most affected, while less than 10 per cent of employees above the age of 30 years were employed under a fixed-term contract.4 II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements Fixed-term work is regulated in the Employment Protection Act, and has in recent years been subject to reforms.5 In line with the EU Directive on ­Fixed-term Work, the common features of fixed-term contracts are either the existence of an agreed fixed duration of the contract or an end date on which the contract expires.6 There are no formal requirements for the validity of a fixed-term contract, but permanent employment contracts are the norm and any contract diverging from this norm is an exception, with the burden of proof being on the employer.7 There are four types of temporary employment contracts regulated in the Employment Protection Act: —— —— —— ——

The general fixed-term employment contract, Substitute employment (vikariatsanställning), Seasonal employment (säsongsanställning), Employment of employees older than 67 years.8

Correspondingly, probation, which is regulated separately, is usually recognised as a form of fixed-term employment and shares some significant features.9 In contrast to those in many other EU Member States, Swedish collective agreements may expand the notion and duration of fixed-term ­employment—including to the disadvantage of the employees—which is commonly applied in the labour market, particularly in the public sector.10 The widespread use of fixed-term contracts depends on the regulations specified in the given collective agreement. In the public sector, primarily the

4  LO Anställningsformer 2014, available at: www.lo.se/home/lo/res.nsf/vRes/lo_fakta_ 1366027478784_anstallningsformer2014_pdf/$File/Anstallningsformer2014.pdf, accessed 11 May 2016. For a comment, see M Glavå and M Hansson (n 1 above) 232. 5  Cl 5 Employment Protection Act (lagen 1982:80 om anställningsskydd) was amended as late as 2015 and in force since 1 May 2016, see Prop 2015/16:62 Skärpta åtgärder mot missbruk av tidsbegränsade anställningar. 6  Art 3 Directive 1999/80/EC, see also K Källström and J Malmberg (n 1 above) p 120 ff. 7  Cl 4 Employment Protection Act, only under the circumstances referred to in the Act— or under provisions in collective agreements—can fixed-term employment contracts be valid. 8  These four types of statutory fixed-term employment are regulated in Cl 5 Employment Protection Act. 9  Cl 6 Employment Protection Act. 10  The legal basis is established in Cl 2 Employment Protection Act.

Atypical Employment Relationships: The Position in Sweden 861 state sector, such agreements are very frequently applied, but usually relate to specific types of employment, such as post-doc positions at universities.11 B.  Lawful Stipulation of the Contractual Terms The current protection against abuse of successive fixed-term contracts was introduced in an amendment that entered into force on 1 May 2016, following years of political and legal discussions, involving the European Commission as well.12 The recent legislation (which is similar to the previous law) provides that the duration of fixed-term employment within a total period of five years may not be longer than 24 months; otherwise, the fixedterm contract will be automatically converted into a contract of indefinite duration. Moreover, repeated and intermittent fixed-term contracts with the same employer will be considered for the calculation of the 24-month period (within a five-year period) if the duration of the period without employment (with the same employer) is in each case less than six months. Furthermore—and this is the recent amendment—other forms of statutory fixed-term contract or substitute employment (vikariat) may no longer be added to the calculation of the period of fixed-term employment in order for the 24 months provision to be better implemented.13 Under the previous legislation, from 2007 to early 2016, an employer could combine fixedterm contracts with substitute employment contracts and seasonal work and probation, which when calculated together might cover long periods of time.14 The current provision is meant to limit any such misuse and convert

11 Post-doc positions are by nature a form of fixed-term arrangement with a normal ­duration of 24 months and would not as such fall outside the scope of the ordinary ­fixed-term provisions. However, this 24-month period can be extended for reasons related to ­illness or parental leave in the collective agreement without the contract converting into one of indefinite duration, as the case would otherwise be, and is not considered when ordinary fixed-term employment contracts are calculated, see, for instance, the collective agreement of 4 September 2008, Avtal om tidsbegränsad anställning som postdoktor. Available (in Swedish only) at: www.arbetsgivarverket.se/globalassets/avtal-skrifter/centralaavtal/avtal. pdf, accessed 10 May 2016. 12 The Swedish white-collar workers’ trade union, TCO, submitted a complaint to the Commission about the (then) Swedish legislation which allowed for the inclusion in the calculation of fixed-term and substitute employment contracts (as well as for probation and for seasonal work) for at least four and a half years, but as the Commission and TCO argued, the calculation ought to be for much longer if not forever. See a brief reference of this discussion in Prop 2015/16:62 (n 5 above) pp 12–14. 13  Cl 5 Employment Protection Act. See also Prop 2015/16:62 (n 5 above) 11 ff. 14 The European Commission criticised Sweden’s implementation of the Fixed-Term Directive in precisely this situation, see further EU Commission Infringement procedure No 2007/4835. The background story and complaints from the Swedish trade union TCO are available, together with the Commission’s material, at: https://www.tco.se/var-politik/ Arbetsmarknad/Visstidsanstallning/, accessed 15 May 2019.

862  Andreas Inghammar successive fixed-term contracts into permanent ones after 24 months’ employment, regardless of what type of temporary contract the employee had previously, but the aim of the legislation is not altogether fulfilled, as we will see below.15 Fixed-term arrangements outside the Employment Protection Act, primarily in collective agreements but also in some statutes, are excluded from this narrower scope and might still be calculated together successively.16 Not all contractual terms are expressly regulated in statutory law, leaving significant room for the parties to decide for themselves. However, the presumption in law is of permanent employment contracts, and an employer has to provide explicit grounds for deviating from this standard to the detriment of the employee.17 C.  Termination/End of Fixed-Term Contracts A fixed-term contract usually ceases without triggering questions regarding the fairness of dismissal or issues of redundancy, when the agreed upon period of work ends or the objectives of the employment are met.18 This principle is reciprocal and reflects the binding contractual nature for both the employer and employee. The party (ie the employer or employee) that otherwise terminates a contract is in principle liable to provide evidence to justify the termination.19 Prior mutual agreements to end the contract or the gross misconduct of either party are reasons to terminate the fixed-term contract at an earlier stage.20 A lot of attention in the debate on fixed-term contracts has been paid to the notion of general fixed-term employment and substitute employment,21 and both have been subject to the provision on automatic conversions to permanent contracts after 24 months of continuous or intermittent employment within a five-year period under a provision in the Employment Protection Act,22 which is not the case for seasonal employment or for employees

15 

Prop. 2015/16:62 (n 5 above). This is the consequence of cl 2 Employment Protection Act and the authority of Swedish collective agreements, see for a comment Prop: 2015/16:62, 19. 17 Cl 4 para 1 Employment Protection Act, AD 2012 No 44, AD 2008 No 81, see also K Källström and J Malmberg (n 1 above) 120. 18  K Källström and J Malmberg (n 1 above) 119. 19  AD 2012 No 44. K Källström and J Malmberg (n 1 above) 121 f. 20  Cl 4 para 3 Employment Protection Act, AD 2001 No 29. 21 AD 2013 No 42, also ‘Regeringen vill stoppa missbruk av visstidsanställningar’ in Dagens Nyheter, 3 December 2015: www.dn.se/ekonomi/regeringen-vill-stoppa-missbruk-avvisstidsanstallningar/ (accessed 22 Aug 2017). 22  Cl 5a Employment Protection Act. 16 

Atypical Employment Relationships: The Position in Sweden 863 older than 67.23 The general fixed-term contract can in principle not be terminated prior to the expiry of the agreed period, but can be terminated in case of gross misconduct such as theft, sexual harassment or violence at the workplace.24 Both general fixed-term and substitute contracts, as well as seasonal employment contracts, expire without ordinary termination of the contract on the last day of the contract as agreed.25 In certain situations (which depend on the duration of the fixed-term contract), the employer is required to inform the employee one month before the end of the employment relationship that the contract will not be extended. The requirements differ slightly for seasonal workers.26 D.  Rights and Status of Fixed-Term Worker Employees with fixed-term contracts are for the most part entitled to the same labour rights as permanent employees, with the exceptions that ­fixed-term employment in general entails. The labour rights both fixed-term and permanent employees are entitled to include protection from discrimination, health and safety at work, annual leave, if applicable, as well as some other forms of leave and collective rights. Pension rights are generally accumulated with no distinction being made between fixed-term and permanent employees. Employees who are older than 67 are usually not subject to extra pension payments, regardless of whether they are fixed-term or permanent employees.27 (i)  Equal Treatment To implement the sections on equal treatment in the Directive on Fixed-term Work (99/70/EC), Sweden adopted the Act on Prohibition of Discrimination against Part-time Employees and Fixed-term Employees.28 The Act prohibits less favourable treatment of fixed-term employees in terms of salary

23 

See Cll 5a and 5b Employment Protection Act. of such situations have been covered by case law; AD 1971 No 19, AD 1975 No 4 78, AD 1976 No 135, AD 1985 No 65, AD 1987 No 149. See also prop 1973:129, 240 f and L Lunning and G Toijer, Anställningsskydd. En lagkommentar, 11th edn (Norstedts Juridik, 2016) 238 ff. 25  K Källström and J Malmberg, (n 1 above) 127 f. 26  Cl 15 Employment Protection Act. 27  See A Inghammar, C Brokelind and P Norberg, ‘Prolonged working life and flexible retirement in public and occupational pension schemes’ in Ann Numhauser-Henning (ed), Elder law. Evolving European Perspectives (Cheltenham, Edward Elgar, 2017) 229–56. 28  Lagen (2002:293) om förbud mot diskriminering av deltidsarbetande arbetstagare och arbetstagare med tidsbegränsad anställning. The Act entered into force in 2002. See also AD 2017 No 31, AD 2008 No 97, AD 2008 No 32. 24  Examples

864  Andreas Inghammar and other forms of remuneration and contractual benefits emerging from the employment contract, unless the employer can demonstrate that less favourable treatment is justified.29 Furthermore, the Act also covers indirect discrimination, applying the usual criteria for justification of indirectly discriminatory provisions or standards.30 Any discriminatory actions by the employer can be deemed invalid and the employer may be ordered to pay damages to the employee.31 (ii)  Employment Opportunities The Swedish Employment Protection Act acknowledges the right of employees who were made redundant to have priority when new posts are created at their previous workplace, a right that also covers fixed-term employees.32 The provision only refers to situations in which employees have been made redundant or have not been offered a renewal of their fixed-term contract for reasons of redundancy,33 but the significance of the provision can be strengthened—or decreased—through collective agreements.34 The right to be prioritised for new posts is only applicable to fixed-term or permanent employees who have been employed for at least 12 months over the past three years, or if seasonal work is included, have been employed as a seasonal worker for six months over the past two years.35 As will be discussed below, a similar right applies to part-time employees for upgrading to fulltime employment.36 The employer must—if the provision applies—inform the employee about his or her rights when the notice of dismissal or notice that the fixed-term contract is to expire and will not be renewed is issued.37 The most important requirement for eligibility to apply for a new or renewed post with the employer is that the employee must have sufficient qualifications for the particular post.38 The concept of ‘sufficient’ does not correspond to that stipulated in common recruitment policies of

29  Cl 3 Act on Prohibition of Discrimination against Part-time and Fixed-term Employees (direct discrimination), also AD 2008 No 32 (on wage discrimination) and AD 2008 No 97. 30  Cl 4 Act on Prohibition of Discrimination against Part-time and Fixed-term Employees (indirect discrimination), also AD 2008 No 97. 31  Cll 5–7 Act on Prohibition of Discrimination against Part-time and Fixed-term Employees. 32  Cl 25 Employment Protection Act. 33  See further L Lunning and G Toijer (n 24 above) 662. 34  Cl 2 Employment Protection Act. 35  Cl 25 Employment Protection Act, further L Lunning and G Toijer (n 24 above) 662. 36  See below section III.C. 37  Cll 15 and 16 Employment Protection Act, for a comment, see L Lunning and G Toijer (n 24 above) 561–71. 38  This is a general feature in the Employment Protection Act; no replacement or transition can be forced on an employer if the employee does not have sufficient qualifications, see Cll 7, 22, 25 Employment Protection Act.

Atypical Employment Relationships: The Position in Sweden 865 the ‘most qualified’ person. The previous employee’s qualifications might be indicative of what constitutes an adequately qualified person, and the Labour Court has repeatedly addressed this issue since the Employment Protection Act entered into force in the mid-1970s.39 E.  Information and Consultation There is no specific provision in the Co-determination Act (1976:580) on fixed-term employment, and the employer’s duty to inform and consult the trade union on employment issues is not explicitly elaborated in relation to fixed-term contracts.40 The ordinary obligations to consult the trade union on issues related to the business or the employment relationship apply.41 The Employment Protection Act stipulates special situations related to the termination of the fixed-term employment contract in terms of information and consultation. First and foremost, the provisions on fixed-term contracts (all forms, including probation periods) are subject to so-called ‘semi-­dispositivity’ with a nearly open-ended opportunity for the industrial partners to negotiate sectoral or local arrangements, which are very widespread.42 The collective parties can also conclude provisions in collective agreements that deviate from the standard, including if they are to the disadvantage of the employee.43 From a comparative perspective, Sweden’s position is quite far-reaching, since most jurisdictions allow collective agreements which, in comparison to the statutory law, include improved conditions for workers; however, collective agreements that diminish the rights of employees are usually not permitted elsewhere.44 A significant number of collective agreements entail provisions on information and consultation regarding the employers’ use of fixed-term contracts. As already mentioned, special provisions apply once the fixed-term employment contract expires, establishing the employer’s duty to inform

39 AD 1977 No 64, AD 1984 No 133, AD 1995 No 2, AD 1999 No 2, but also more recently AD 2006 No 112. For a comment, see C Ulander-Wänman, Företrädesrätt till återanställning (Iustus förlag, 2008) 171 ff, L Lunning and G Toijer (n 24 above) 500 and M Glavå and M Hansson (n 1 above) 483. 40  Co-determination Act, lagen (1976:580) om medbestämmande i arbetslivet. 41  Cll 10–14 Co-determination Act. 42  Cl 2 Employment Protection Act, see also L Lunning and G Toijer (n 24 above) 121–36, Ds 2002:56, 227 ff, K Källström and J Malmberg (n 1 above) 171 ff. 43  Cl 2 paras 2–3 Employment Protection Act. 44  The enforcement of the Swedish trade unions in this and other areas must, however, be related to the maturity of the industrial relations model and the comparatively consensusoriented atmosphere applied between the industrial partners on the Swedish labour market. Numerous collective agreements limit the otherwise statutory rights of the workers, see for an EU-law perspective B Nyström, EU och arbetsrätten, 5th edn (Wolters Kluwer, 2017) 66–67, 70.

866  Andreas Inghammar the fixed-term employee about available permanent posts and posts with a probation period.45 Even though the contract de facto terminates on the last working day, the employer is required to give the employee notice one month in advance, informing the employee that the given post will no longer be available and the extent of the employee’s right to renewed employment if the termination is due to redundancy and a similar position at the employer’s business becomes available in the future.46 This notice is not considered a dismissal and does not trigger the procedure to determine the fairness of the dismissal, which is otherwise applied to terminate an employment contract under the Employment Protection Act. If the employer neglects to give proper notice this is sanctioned by damages, and does not affect the validity of the termination of the fixed-term contract.47 F.  Specific Provisions Some sectors have developed special provisions or standards for atypical employment contracts. An interesting example is the academic sector. Apart from a few exceptions for private or ‘semi-private’ institutions such as the Chalmers Institute of Technology in Gothenburg and the Stockholm School of Economics, academic teachers and other staff are civil servants under the Public Employment Act.48 The Act corresponds to and is largely dependent on the Employment Protection Act, and most employment relationships at Swedish universities are regulated by these statutes. Since this is, however, a special area, there are also corresponding provisions in the Higher Education Act and the Higher Education Ordinance.49 Some specific forms of fixed-term employment have been established in the legislation. The employment of a person as a doctoral student is an unusual mix of typical and atypical employment. The employment contract is ‘permanent’ (open-ended),50 but has to be renewed after the first year and then at least every second year, and its duration cannot be longer than eight years in total.51 Positions such as adjunct professor are per se limited in duration and never intended to become permanent.52 The more recently

45  Cl 6 f Employment Protection Act, see also prop 2005/06:185, 67 and L Lunning and G Toijer (n 24 above) 318–22. 46  Cll 4, 15, 25 Employment Protection Act. 47  Cl 38 Employment Protection Act, for a comment, see T Sigeman, ‘Förhållningsregler och santionsregler: anteckningar om arbetstagares skadeståndsansvar’ in A Numhauser-Henning (ed), Festskrift till Anna Christensen (Juristförlaget i Lund, 2000) 459 ff. 48  Lagen (1994:260) om offentlig anställning. 49  Högskolelagen (1992:1434) and Högskoleförordningen (1993:100). 50  Ch 5 cl 7 para 1 Higher Education Ordinance. 51  Ch 5 cl 7 para 2 Higher Education Ordinance. 52  Ch 4 cl 11 Higher Education Ordinance.

Atypical Employment Relationships: The Position in Sweden 867 initiated tenured research position (previously referred to as assistant s­ enior lecturer—biträdande lektor), is organised as a fixed-term contract with an option for the employer to transform the contract into one of indefinite duration if the employee’s performance has been successful in the four first years.53 The more specific post-doc position, which is usually for two years, is commonly applied, but not regulated separately in the statutes. Post-doc employment is therefore either for two years under a general ­fixed-term employment c­ ontract in accordance with the ordinary provisions on such employment contracts, or covered by the collective agreements at the individual universities. Such agreements usually provide for a two-year post-doc research employment contract with an opportunity to extend the employment relationship for reasons such as parental- or sick leave or work for the trade union without triggering the procedure to convert the contract into one of permanent employment.54 There are also several different special statutes which provide for deviations from the ordinary forms of ­typical employment, primarily within the public sector where tradition and the duties’ special circumstances call for more (or indeed less) flexible forms of employment, such as law clerkships for recently graduated law students or internships (18–24 months) for pre-authorised physicians under training.55 G.  Collective Bargaining Agreements Deviating from Statutory Provisions As mentioned above, the statutory provisions under Clauses 5, 5a and 6 Employment Protection Act can be circumvented by collective agreements to expand or reduce the application of fixed-term contracts under a collective agreement.56 Such deviations from statutory law are very common and play an important role in many sectors and companies. The most farreaching deviation from the statutory restrictions of fixed-term employment is found in the collective agreement for the Swedish Armed Forces, in which fixed-term employment can be concluded for up to 12 years,57 but other examples exist, such as collective agreements on specific academic posts, for instance, post-doctoral researchers.58

53 

Ch 4 cl 12a Higher Education Ordinance. ‘Avtal om tidsbegränsad anställning som postdoktor’, available at: www.arbetsgivar verket.se/avtal--skrifter/avtal/avtal-om-tidsbegransad-anstallning-for-adjungerad-larare 2/ accessed 2016-07-05. 55  Ds 2002:56, 225–26 discusses different forms of special fixed-term contracts in more depth. 56  See Cl 2 Employment Protection Act. 57 ‘Avtal om tidsbegränsade anställningar med kontinuerlig tjänstgöring för gruppbefäl, soldater och sjömän inom Försvarsmakten’, available at: https://jobb.forsvarsmakten.se/siteassets/pdf-och-worddokument/formaner-och-villkor/avtal-ofr-saco.pdf (accessed 2019-05-15). 58  ‘Avtal om tidsbegränsad anställning som post-doktor’, available at: www.arbetsgivarver ket.se/globalassets/avtal-skrifter/centralaavtal/avtal.pdf (accessed 2017-08-23). 54  See

868  Andreas Inghammar III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements There is political pressure to reduce the number of involuntary part-time employees on the labour market, not least since the vast majority of parttime workers are women.59 A general right for part-time workers to work full time has been discussed for more than 10 years, but no legislation has yet been adopted by Parliament.60 The closest to a statutory definition of part-time employment in Swedish law is in the Act on Prohibition of Discrimination against Part-time and Fixed-term employees, which states that an employee who works part time is one whose ‘ordinary working hours during a week or another period of time shorter than one year is less than the working hours of a similar employee who by contract or law is considered a full-time employee’.61 The Working Time Act states that the ordinary working hours are 40 hours per week,62 and based on this provision as well as the working hours concluded in the different collective agreements, employees can be considered part-time employees. Usually, this is clearly stated in the contract as a percentage or as a number of working hours per week or per year. B.  Opportunities for/Right to Part-Time Work There is no general right for a full-time employee to reduce his or her working hours. Such rights have to be derived externally, most commonly through the Parental Leave Act, under which parents of small children (under the age of eight years) can reduce their working time by up to 25 per cent.63 It must be noted that the Parental Leave Benefit (föräldraförsäkringen)— which allows parents to take income-related parental leave for 390 days (plus another 90 days with a flat rate that is not income-related), and which is usually full-time leave—precedes any such working time reduction as described above in the vast majority of cases. Employees who have been employed for at least six months have a similar right to take (unpaid) ­educational leave (studieledighet).64

59 For a discussion, see M Glavå and M Hansson (n 1 above) 272–75, but also SOU 2005:105 Förstärkt rätt till heltidsanställning. 60  SOU 2005:105 (n 59 above). 61  Cl 2 Act on Prohibition of Discrimination against Part-time and Fixed-term Employees (lagen (2002:293) om förbud mot diskriminering av deltidsarbetande arbetstagare och arbetstagare med tidsbegränsad anställning). 62  Cl 5 Working Time Act (Arbetstidslagen 1982:673). 63  Cl 3 Parental Leave Act (Föräldraledighetslagen 1995:584). 64  Cl 1 Education Leave Act (Studieledighetslagen 1974:981).

Atypical Employment Relationships: The Position in Sweden 869 It is not unusual for collective agreements or practices at the workplace to be more generous and to allow more extensive use of part-time work, especially when the employee is approaching pensionable age.65 C.  Opportunities for/Right to an Extension of Working Time There is, as has been briefly touched upon above, no statutory right to extend working time from part time to full time, despite an explicit political will to achieve this objective. The employers have opposed the idea based on the apparent conflict with the employer’s prerogative, and the trade unions have raised their voice against state-intervention in industrial relationships. The Employment Protection Act stipulates a priority right for part-time workers to increase their working hours to full-time work, but only in the event of recruitment within the same branch (driftsenhet) of the business.66 The priority right is only applied if the employer’s demand for increased labour is met by increasing the working hours of the part-time worker to full-time, and only if the part-time worker is qualified for the new post.67 D.  Rights and Status of Part-Time Worker (i)  Equal Treatment Part-time employees, similarly to fixed-term workers, are covered by the Act on Prohibition of Discrimination against Part-time and Fixed-term Employees. The Act, which implements Directive 97/81/EC, covers direct and indirect discrimination but only in relation to remuneration and other work-related benefits, and, as described above in relation to fixed-term work, with the possibility to introduce less favourable treatment (direct discrimination).68 A part-time contract as such cannot be legally challenged through the Act. (ii)  Dismissal Protection The dismissal of part-time employees does not differ from ordinary dismissals and is regulated by the Employment Protection Act. Swedish employment

65  Public employees’ collective agreement permits part-time work at a rate of 80 per cent of the previous salary at the age of 61 until the age of 65. For a discussion, see A Inghammar et al (n 27 above). 66  Cl 25a Employment Protection Act. For a comment, see L Lunning and G Toijer (n 24 above) 672 ff. 67  Cl 25a Employment Protection Act, also M Glavå and M Hansson (n 1 above) 273 f. 68  Cl 3 Act on Prohibition of Discrimination against Part-time and Fixed-term Employees, see also prop 2001/02:97 Lag om förbud mot diskriminering av deltidsarbetande arbetstagare och arbetstagare med tidsbegränsad anställning m.m., 41.

870  Andreas Inghammar protection regulation has a comparatively strong emphasis on fairness and just cause, especially in relation to sickness and reduced productivity.69 There is no special provision in relation to part-time workers in this regard. Redundancy (arbetsbrist) is the over-arching ground for dismissal, when the reason relates to the business or organisation of the employer, ie for reasons not related directly to the employee.70 The employer may decide to reorganise the workplace and to offer only part-time posts. For instance, if the employer changes from an all-day business to a lunch restaurant that is only open between 11 am and 2 pm, the employer would likely make the full-time employees redundant, with the duty under Clause 25 Employment Protection Act to offer them (on a priority basis) part-time employment under the new structure of the restaurant. The working hours at the workplace have thus been reduced and the redundancy is justified. However, the opposite situation, namely an increase in working hours at the workplace, might result in a situation of redundancy for part-time employees. If the employer, for instance, decides to change the concept from a lunch restaurant (with part-time employees) to an all-day establishment, where only or primarily full-time staff are required or preferred, this might result in a situation of redundancy for the part-time lunch restaurant workers—even though there is certainly no lack of work, but quite the opposite.71 The redundant part-time workers would then have priority to fill the full-time positions available at the workplace.72 Prior to a redundancy, the employer is required to invite the trade unions to negotiations and to consult them under both the Employment Protection Act and the Co-determination Act.73 Only a limited number of cases in the Labour Court have, so far, referred to Clause 25a Employment Protection Act; such cases also with regard to prioritising different categories of employees continue to be monitored in case law.74 (iii)  Other Matters N/A E.  Information and Consultation The employer has no extra obligation to inform or consult the part-time worker or the trade union. The only situation where such a requirement 69 

Cl 7 Employment Protection Act. 7 Employment Protection Act, prop 1973:129 Förslag till lag om anställningsskydd m.m., 118 f, prop 1981/82:71 Om ny anställningsskyddslag m.m., 66 f, AD 1993 No 61, AD 1993 No 101, AD 1994 No 122, AD 2001 No 107, AD 2003 No 29, AD 2005 No 32, see also L Lunning and G Toijer (n 24 above) 470 ff. 71  L Lunning and G Toijer (n 24 above) 470. 72  Cll 25 and 25a Employment Protection Act, see also AD 2009 No 9. 73  Cl 29 Employment Protection Act, Cll 11–13 Co-determination Act. 74  AD 2000 No 51, AD 2009 No 9. 70  Cl

Atypical Employment Relationships: The Position in Sweden 871 may directly apply is under Clause 25a Employment Protection Act, if a part-time worker has notified the employer about his/her interest in increasing his/her working hours and the employer is about to recruit new employees or increase the total number of working hours of employees. In line with the similar obligation for the employer to inform the trade union about the eventual exercise of priority rights under the provision in the Employment Protection Act (Clause 25), the employer should also consider whether the part-time workers can fill the full-time posts (Clause 25a). F.  Other Part-Time Arrangements The characteristics of the modern labour market such as on-call work and zero-hours contracts are not regulated separately in Swedish legislation. Instead, such relationships are generally understood as and structured in a way to comply with statutory forms of fixed-term work. G.  Collective Bargaining Agreements Deviating from Statutory Provisions Collective agreements often consider aspects of part-time work and provide for sectoral or local applications. The most crucial regulations in the Employment Protection Act are the special provisions on information (Clause 15) and the priority of full-time employment (Clause 25a), which may be subject to both an increased and decreased right on the basis of deviations in collective agreements.75 IV.  TEMPORARY AGENCY WORK

A.  Legal Definitions/Formal Requirements Temporary agency work was prohibited in Swedish law for a long time and was first introduced as late as 1991 and fully established in 1993.76 In 1994, 5,000 workers were employed in temporary work agencies but only 10 years later, that number had increased ten-fold, and by 2008, it was close to 60,000 temporary agency workers who were being employed a­ nnually.77 The sector has matured significantly since the 1990s and the majority of employees are

75  Cl 2 Employment Protection Act. To the knowledge of this author, there are no significant collective agreements that limit the statutory (semi-dispositive) rights of part-time workers. 76  SOU 2011:5 Bemanningsdirektivets genomförande i Sverige, see also A Berg (n 1 above) 50 f. 77  SOU 2011:5, 54 ff and further references there. Notably, as many as 122,400 individuals earned some income from temporary work agencies in 2008, many of whom (students and similar) earned their income from such work only to a lesser extent; ibid, 60.

872  Andreas Inghammar covered by collective agreements,78 but it is still worth ­bearing the historical background in mind and the connection between temporary agency work and private, commercial recruitment a­ gencies.79 Over the past 10 years, the relationship between temporary agency work and the posting of workers has been scrutinised in the legal doctrine and in preparatory works (travaux preparatoires).80 The legal definition of temporary work agency is found in Clause 5 ­Temporary Agency Workers Act,81 which states that a temporary work agency is a ‘natural or legal person that has employees who are employed for the purpose of being hired out to user undertakings to perform work under the supervision and instruction of the user undertaking’.82 The Act does not entail a legal definition of temporary agency worker, while the corresponding collective agreements provide some clarification in relation to the concept of temporary agency work.83 The relationship between the three parties to the contractual arrangement is described as a ‘triangular’ relationship between the employer (temporary work agency), employee (temporary agency worker) and the user undertaking (host company), where the contractual liabilities primarily follow the triangular chain.84 The employee only has a contractual relationship with the temporary work agency (employer), but certain rights and obligations which normally depend on an employment contract are transferred, at least partly, from the agency to the user undertaking. Interestingly, the Swedish Act which transposes the EU Directive does not refer to the word ‘temporary’ (tillfällig) but covers all forms of agency work.

78 The Temporary Agency Work Employers’ Federation is part of the Almega, the major employers’ federation in the emerging sectors of the more flexible labour market: www.almega.se. 79 The reformed, but still valid Act (1993:440) on Private Job Centres (lagen om privat arbetsförmedling) preceded the current legislation and established a very close link between private job centres and temporary agency work. 80 Legal doctrine has monitored temporary work agencies for at least 10 years. Most prominently, A Berg (n 1 above), B Nyström, ‘Bemanningsanställd och rättslös—eller?’ in Festskrift till Catharina Calleman (Uppsala, Iustus förlag, 2014), J Malmberg, Hur skall bemanningsdirektivet genomföras i Sverige? (Uppsala Faculty of Law, Working Paper 2010:2), B Nyström, ‘Sweden’ in R Blainpain and R Graham (eds), Temporary Agency Work and the Information Society, Bulletin of Comparative Labour Relations, No 50 (The Hague, Kluwer Law International, 2004) 191–224. 81  Temporary Agency Workers Act (lagen (2012:854) om uthyrning av arbetskraft). 82  Cl 5 Temporary Agency Workers Act. 83  Government Inquiry, SOU 2011:5, proposed a legal definition at the beginning of the Act, but the final statute adopted by Parliament did not include it, see also Bemanningsföretagen, Tjänstemannaavtalen 2017–2020, available at: www.unionen.se/sites/default/files/267_avtals tryck_2017_2020.pdf. 84  K Källström and J Malmberg (n 1 above) 44–48.

Atypical Employment Relationships: The Position in Sweden 873 B.  Registrations, Licensing, Financial Guarantees, etc There are no special arrangements for statutory registration or licensing or authorisation related to temporary agency work. However, a significant number of temporary work agencies apply for membership and authorisation through the branch organisation and the employers’ federation Bemanningsföretagen. Authorisation is an important sign of the agency’s quality and is considered to promote acceptance of agency work in many sectors. To meet the standards of authorisation, companies have to comply with the requirements of the organisation, including the signing of collective agreements— also for their own subcontractors—recognise the standard agreements in the sector, be covered by the sector-wide liability insurance and comply with the ethical provisions of the organisation Bemanningsföretagen.85 C. Relationship between Temporary Agency Worker and Temporary Work Agency (i)  Fixed-Term and Part-Time Contracts The arrangement between the employee and the temporary work agency is generally supposed to be like any other ordinary employment contract, and as such, can be permanent or fixed-term, full time or part time. Some special features do exist, as will be discussed below under ‘Equal Treatment’, primarily for temporary agency workers who are not permanently employed and not salaried between assignments.86 As is the case for any other employment contract, the temporary agency worker’s contract is subject to the ordinary labour law regulations. In the early 1990s, fixed-term contracts for the employment of temporary agency workers were not permitted, but since 1993 such statutory restrictions no longer exist.87 (ii)  Rights and Obligations/Liability The rights and obligations of the employer (temporary work agency) and the employee are basically the same as in any other similar employment relationship. If the employer is covered by a collective agreement, the rights and obligations under that collective agreement are the guiding ­principles—as are the statutory provisions that regulate employment contracts. Most temporary agencies are members of the employers’ federation and are consequently

85 

www.bemanningsforetagen.se/auktorisationer (visited 2017-08-23). AD 2017 No 33, AD 2015 No 74. 87  For an excellent historic overview, see A Berg (n 1 above) 121 ff. 86 

874  Andreas Inghammar bound by the collective agreements for both blue-collar and white-collar workers.88 In line with other forms of employment, the employer has managerial prerogatives and rights corresponding to the employee’s obligation to work under the contractually agreed terms.89 The employer (agency) has the primary responsibility for the health and safety of the employees (agency workers),90 even though some safety issues, such as safety instructions which are directly related to the management of the user undertaking, are usually transferred.91 The temporary work agency is not allowed, by contract or by any other measure, to prevent the employee from engaging in an employment relationship directly with the user undertaking or to demand any fee from the employee for such employment.92 (iii)  Dismissal Protection Temporary agency employees are protected from unfair dismissal to the same extent as other employees in the Swedish labour market. If the post at the user undertaking is withdrawn, the temporary work agency, ie the employer, is still liable for the employment relationship with the employee and must continue to pay his/her salary or, if the employee is made redundant, pay his/ her wages during the notice period and respect the rights derived from the Employment Protection Act.93 The Labour Court has addressed some cases of agency workers and employment protection in relation to misconduct, maintaining the contractual aspect of the relationship.94 D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship There is usually no direct contractual relationship between the user undertaking and the temporary agency worker, with the exception of minor details

88 

SOU 2011:5, 58 ff. a thorough discussion about this, see M Rönnmar, ‘The Managerial Prerogative and the Employee’s Obligation to Work: Comparative Perspectives on Functional Flexibility’ (2006) 35(1) Industrial Law Journal 56–74. 90  Ch 3 Cl 12 and Ch 6 Cl 10 Health and Safety at Work Act (Arbetmiljölagen 1977:1160), and A Berg (n 1 above) 120, also N Selberg, Arbetsgivarbegreppet och arbetsrättsligt ansvar i komplexa arbetsorganisationer (Mediatryck, Lunds University, 2017) 419 ff. 91  A Berg (n 1 above) 120 f. 92  Cl 9 Temporary Agency Workers Act, see also SOU 2011:5, 218 f. 93  This includes unfair dismissal, selection criteria (LIFO) and priority for new employment under Cll 7, 22 and 25 Employment Protection Act, respectively. 94  AD 2013 No 12 and 2014 No 90, see also N Selberg (n 91 above) 202 f. 89 For

Atypical Employment Relationships: The Position in Sweden 875 on practicalities at the workplace. The relationship is instead part of the triangular contractual arrangement described above, where the employee receives instructions and is allocated to work by the user undertaking’s ­management—as if s/he had been directly employed. Annika Berg has discussed the managerial role of the user undertaking, which follows from the ‘rental’ arrangement as such, and the fact that no delegations or authorisations are necessary.95 (ii)  Rights and Obligations/Liability Under statutory law, the user undertaking has the responsibility to provide the temporary agency worker with access to facilities available to the employees at the user undertaking.96 The facilities mentioned as examples in the preparatory works (travaux preparatoires) are canteens, corporate transportation, but also child care, if that is provided by the company.97 Furthermore, the user undertaking’s management is required to inform the temporary agency worker about permanent posts or posts involving a probation period that become available at the user undertaking.98 There is currently no case law on this obligation and the preparatory works also present a somewhat blurry picture, arguing that a case-by-case discussion on reasonableness might have to be applied.99 (Should the temporary agency worker be invited to corporate Christmas parties, launches and social events not generally necessary for the performance of the work?). (iii)  Health and Safety Even though the primary responsibility for health and safety remains with the temporary work agency, some duties are shared or transferred to the user undertaking.100 The health and safety obligations that are shared with or even transferred to the user undertaking are primarily related to the

95  A Berg (n 1 above) 187, see also R Eklund, ‘A look at contract labour in the Nordic ­countries’ Juridisk Tidskrift 1995–96, 625–54, and prop 1993/94:186, 32 f. 96 Cl 11 Temporary Agency Workers Act. The provision corresponds to Art 6.2 in the Directive. 97 SOU 2011:5, 219. Since child care is almost free of charge and is provided by the municipality once the child turns one year old, the ‘market’ for corporate child care is ­ ­comparatively limited in Sweden. 98  Cl 12 Temporary Agency Workers Act. It is not actually clear why only probation and no other forms of fixed-term employment are covered in Cl 12. The preparatory works suggest that only permanent positions should be covered by the paragraph, in line with Art 6.1 of the Directive. 99  SOU 2011:5, 175–77. 100  Ch 3 Cl 12 Health and Safety at Work Act, also N Selberg (n 91 above) 191 ff, 419 ff, A Berg (n 1 above) 189 ff.

876  Andreas Inghammar specific physical situation and instructions at the workplace and systematic safety policy that are closely related to the actual workplace.101 By contrast, duties linked to more long-term planning and policy, such as rehabilitation and reporting of accidents and injuries, are still the sole responsibility of the temporary work agency.102 It is likely that the roles and responsibilities are not always particularly clear. E.  Relationship between Temporary Work Agency and User Undertaking The relationship between the temporary work agency and the user undertaking is a commercial, contractual relationship, under which the ‘rental’ of the agency worker is regulated. Interestingly, this arrangement implicitly carries some managerial prerogatives for the user undertaking, though by no means all such prerogatives. Annika Berg speaks of ‘employer-like prerogatives and responsibilities’, and argues that the rationale for the transfer of such features is embedded in the structure of the arrangement.103 As for most agreements between two commercial parties, the commercial and contractual legislation is the source of law to determine the content of the contract, but also any claim arising based on that contract.104 The difference between temporary agency work and other forms of contractual arrangements with external enterprises who could perform work at the user undertaking, such as building and construction work, is that a transfer or some of the employer’s prerogatives are transferred to the user undertaking, even if this is not explicitly stated in the contract.105 F.  Rights and Status of Temporary Agency Worker (i)  Equal Treatment The EU law concept of equal treatment for temporary agency workers is explicitly manifested in the current legislation (from 2012).106 The implementation of the Temporary Agency Work Directive 2008/104/EC in statutory law is, as is quite frequently the case in Swedish labour law, open to

101 Ibid.

102 A Berg (n 1 above) 190, see also Cl 2 Health and Safety at Work Ordinance (Arbetsmiljöförordningen 1977:1166). 103  A Berg (n 1 above) 187 f. 104  See SOU 2011:5, 56 but also R Fahlbeck, ‘Employment Exchange and Hiring Out of Employees in Sweden’ in Tidskrift for Rettsvitenskap No 4 (1995) 589–622, and also A Berg (n 1 above) 119. 105  SOU 2011:5, 56 f. 106  The historic development is described in detail in A. Berg (n 1 above) 105–72.

Atypical Employment Relationships: The Position in Sweden 877 deviations and adjustments by collective agreements and is highly influenced by the high density of unions and broad (but not universal) application of collective agreements in almost all sectors of the labour market.107 The principle of equal treatment must be adhered to by the temporary work agency as the employer and, as is the case in other equal treatment provisions, examines the relationship between the employer and the employee under a contractual agreement.108 If the temporary agency worker is not permanently employed and does not earn a salary between assignments, the Temporary Agency Workers Act stipulates an equal treatment principle which ensures that the employee is entitled to the same basic benefits and remuneration as the ‘core workers’ of the user undertaking, unless the collective agreement (of the temporary work agency) stipulates otherwise in line with the overarching protection provided for in the Directive.109 The temporary work agency can, if bound by a collective agreement, also apply the agreement to temporary agency workers who are not members of the trade union.110 At the core of the equal treatment principle as it is applied in temporary agency work, lies the right for temporary agency workers to be treated— and most importantly paid—equally to the regular workers of the user ­undertaking.111 The equal treatment provision requires the conditions of the temporary agency worker to be compared with those of the core workers and that at least the basic standard of those workers should also be applied to the temporary agency workers. In most Swedish cases, the collective agreement at the user undertaking can serve as model for such a comparison and the basic standard of this collective agreement is applicable.112 However, in work places where no collective agreement has been concluded, a comparison might be more problematic, especially since the Swedish labour market does not recognise a statutory minimum wage.113 In the most uncertain cases, employees might have to argue in terms of reasonableness and fairness under ordinary contract law, if they consider their remuneration to be unfairly low.114

107 

SOU 2011:5, 61 ff. Cl 6 Temporary Agency Workers Act. 109  Cl 3 Temporary Agency Workers Act, also Directive 2008/104/EC. 110  Cl 4 Temporary Agency Workers Act, in fact Cl 27 Co-determination Act already stipulates this broader application to non-members also outside the scope of temporary agency work. For a comment, see K Källström and J Malmberg (n 1 above) 187–89. 111 Cl 3 Temporary Agency Workers Act, Art 5 Directive 2008/104/EC, see also SOU 2011:5, 216. 112 The majority of Swedish work places are covered by collective agreements, which ­represents approximately 90 per cent of the employees, see Medlingsinstitutet, Siffror och ­diagram om medlemsantal, organisationsgrad och kollektivavtalstäckning. 5. Available at: www.mi.se/files/PDF-er/ar_diagram_och_tabeller/ar_2015_diatab/Siffror%20och%20diagram% 20om%20medlemsantal.pdf (visited 2017-08-23). 113  The problem has been addressed in SOU 2011:5, 216–17. 114  SOU 2011:5, 217. To the knowledge of this author, this has not yet been raised before in any court of law in Sweden. 108 

878  Andreas Inghammar G. Information and Consultation/Representation of Temporary Agency Worker Since the use of temporary agency workers has been extensively questioned over the years, the current Co-determination Act still states that the trade unions which are parties to a collective agreement at the workplace must be informed prior to the decision to sign a contract with a temporary agency worker to perform work for the enterprise.115 The duty to inform and negotiate is combined with a veto—which can only be exercised by the trade union if the union has reasons to suspect that statutory law or collective agreements might be violated or set aside by the contract with the temporary work agency—resulting in a temporary prohibition to execute the plans until the dispute has been finally settled in court.116 H. Strikes Temporary agency workers have the same constitutionally founded right to engage in industrial action as other employees.117 The details on industrial actions are further developed in the Co-determination Act. Temporary agency workers cannot be used as substitutes to replace core workers who are on strike, not least since Clauses 38–39 Co-determination Act provide the trade union with the right to information and consultation before the employer (ie user undertaking) decides to engage temporary agency workers, and the authority to veto all such measures if statutory law or collective agreements are jeopardised.118 I.  Collective Bargaining Agreements Deviating from Statutory Provisions Some provisions in the Temporary Agency Workers Act can be set aside by collective agreements, which are very much in line with a significant part of Swedish statutory labour law.119 Such deviations from statutory law can also be unfavourable for the employees, as long as the modifications

115 Cl 38 Co-determination Act, see also M Glavå and M Hansson (n 1 above) 691 ff. A similar primary duty to negotiate is also applied to issues such as redundancy, major changes in the employer’s business or issues which crucially affect the employee’s working conditions. 116 Cll 38–40 Co-determination Act, see also for case law; AD 2015 No 40, AD 2012 No 57, AD 2012 No 26, AD 2010 No 40, Ad 2009 No 10, AD 2005 No 88, Ad 2004 No 99. 117  Ch 2 Cl 14 Swedish Constitution (Regeringsformen 1974:152). 118  A Berg (n 1 above) 204 ff. 119  Cl 3 Temporary Agency Workers Act.

Atypical Employment Relationships: The Position in Sweden 879 provided in a collective agreement do not violate the EC Directive, which assures workers the basic standards of labour and remuneration.120 Most Swedish collective agreements do not stipulate a specific tariff or fixed ­salary level, but a minimum wage and mechanisms to calculate and negotiate the new salary.121 This model raises some issues in relation to the Directive and it has been resolved differently in blue-collar and white-collar collective agreements. The major collective agreement in the blue-collar sector (LO-area) provides a comparison between the agency worker’s pay and the average payment of the core blue-collar workers employed at the user undertaking, while the white-collar agreement represents the notion that temporary agency workers are a special other body of workers, for whom the comparison is instead made with similar positions within the temporary work agency and based on the individual competences and characteristics of the employee’s skills.122

120  Cll 2 and 3 Temporary Agency Workers Act. SOU 2011:5, 166 ff discusses the issue in depth. 121  See further in K Källström and J Malmberg (n 1 above) 202 ff. For a presentation on ­salaries and collective bargaining in relation to temporary agency work, see SOU 2011:5, 169 f. 122  SOU 2011:5, 169–70. The collective agreement for white-collar workers differentiates between clerks who have a permanent workplace at the client company, and ambulatory clerks whose workplace varies between different clients.

880

34 Atypical Employment Relationships: The Position in Switzerland WOLFGANG PORTMANN AND RAHEL AINA NEDI*

I. INTRODUCTION

I

N SWITZERLAND, APPROXIMATELY 85 per cent of all employed persons work in the private sector. They are generally all subject to the same employment law provisions, the most fundamental being the Swiss Code of Obligations.1 The remaining 15 per cent of employees, who are active in the public sector, are spread among the federal administration and the administrations of the Cantons, the political communes and other public law bodies (eg parishes) and institutions (eg universities). Since most of these entities have—at least partially—enacted their own rules applicable to employment relationships with their employees, over 2,000 different public employment laws exist in Switzerland. The focus here will be on employment law in the private sector. Selectively, reference will be made to the public employment law of the federal administration, which is essentially laid down in the Federal Personnel Act2 and the corresponding Ordinance.3 The terms ‘workers’ and ‘employees’ share the same meaning under Swiss employment law and are used interchangeably. There is no content-related difference between the terms ‘employment contract’ and ‘employment relationship’. An employment relationship refers to the legal relationship between two parties that are bound by an employment contract.4

*  The authors would like to thank Ms Sabrina Keller, MLaw, for the valuable review of the citations. 1 Bundesgesetz betreffend die Ergänzung des Schweizerischen Zivilgesetzbuches (Fünfter Teil: Obligationenrecht, OR) 1911, SR (= Systematische Rechtssammlung) 220. 2  Bundespersonalgesetz (BPG) 2000, SR 172.220.1. 3  Bundespersonalverordnung (BPV) 2001, SR 172.220.111.3. 4  See W Portmann, ‘The Concept of ‘Employee’: The Position in Switzerland’ in B Waas and G Heerma van Voss (eds), Restatement of Labour Law in Europe: The concept of employee (Hart Publishing, Oxford, 2017) vol I, 699 et seq.

882  Wolfgang Portmann and Rahel Aina Nedi II.  FIXED-TERM WORK

A.  Legal Definitions and Formal Requirements In Switzerland, there is no statutory definition of a fixed-term employment contract. Article 334(1) of the Code of Obligations merely states that a fixed-term employment contract ends without notice. A fixed-term employment relationship may be concluded when it is provided by law, such as in the case of an apprenticeship contract,5 or if the parties have agreed that the employment relationship shall be for a limited duration or shall end on a fixed date.6 Common law further stipulates that the employment relationships between winegrowers and harvesters are concluded for a fixed term, namely for the harvesting period.7 A genuine fixed-term employment contract should not be confused with the following types of employment contracts: —— Employment contract with a maximum duration (Maximalfrist). This is a combination of an open-ended and limited employment relationship. If an employment relationship terminates automatically when the end of a given period is reached, it is considered a fixed-term contract. If the employment relationship can be terminated earlier on the basis of an ordinary termination, it will be deemed a contract of indefinite ­duration.8 In federal public law, an open-ended employment relationship terminates without notice on the basis of the law once retirement age is reached.9 However, in private law, the same only holds true if agreed by the parties. The employment relationship must be terminated if the parties do not wish it to extend beyond retirement age.10 —— Employment contract with a minimum duration (Minimalfrist).11 Since the employment relationship does not terminate at the end of a given period, the employment contract is considered open-ended. As a result, in contrast to fixed-term contracts, the provisions on notice periods and protection from termination apply.12 —— An employment contract with a condition subsequent (Resolutivbedingung). In this case, termination depends on the occurrence of an

5 

Art 344a(2) of the Code of Obligations. Portmann and R Rudolph, Basler Kommentar, Obligationenrecht I, 6th edn (Helbing & Lichtenhahn, Basle, 2015) Art 334 para 1. 7  R Wyler and B Heinzer, Droit du travail, 3rd edn (Stämpfli, Berne, 2014) 497. 8  Portmann and Rudolph (n 6 above) Art 334 para 3. 9  Art 10(1) of the Federal Personnel Act. 10  Federal Supreme Court of 8 October 2009—4A_311/2009 [3.3]; Portmann and Rudolph (n 6 above) Art 335 para 2. 11  Federal Supreme Court of 27 March 1984—BGE 110 II 167. 12  J Brühwiler, Einzelarbeitsvertrag, 3rd edn (Helbing & Lichtenhahn, Basle, 2014) Art 334 para 2. 6  W

Atypical Employment Relationships: The Position in Switzerland 883 uncertain future event.13 According to Article 154(1) of the Code of Obligations, a contract with a condition subsequent lapses as soon as the condition is fulfilled. One such scenario might be if the parties agree that the employment contract shall end if the competent authority refuses to issue a work permit.14 If the condition subsequent is definitely not fulfilled, the employment contract automatically converts into an open-ended employment contract.15 Unless required by law in exceptional cases, such as for apprenticeship or temporary agency contracts,16 there is no requirement of a written form for fixed-term employment contracts. Furthermore, the parties to the contract can make the termination of the contract dependent on a future event. According to case law, however, in order for an employment contract to be recognised as a fixed-term contract, its duration has to be objectively determined or determinable and may not depend upon the will of only one party.17 Thus, already when concluding the contract, the parties must be able to foresee the approximate ending of the employment relationship. Otherwise, the parties are unable to estimate the time-scale of their contractual obligation and make the necessary arrangements for the post-­contract period, such as finding a new contracting party.18 If the foreseeability is missing, the employment contract will be deemed to be a contract of indefinite duration. An illustration of this theory in practice is a case in which the employment contract stipulated that the employment relationship shall endure ‘until work runs out’. The Federal Supreme Court found that the clause lacked clarity with regard to contract duration and consequently rejected the fixedterm nature of the employment contract.19 In case of doubt, courts will always consider an employment contract to be of indefinite duration. The burden of proof regarding the existence of a fixed-term employment contract lies with the party that derives rights from that fact.20 In light of the presumption in favour of an employment contract of indefinite duration, parties that wish to conclude a fixed-term employment c­ ontract are advised to unequivocally specify this in writing.

13 V Carron in J-Ph Dunand and P Mahon (eds), Commentaire du contrat de travail (Stämpfli, Berne, 2013) Art 334 para 17. 14  Federal Supreme Court of 26 September 2000—BGE 126 V 303 [2.d]. 15 M Rehbinder and J Stöckli, Bernese Commentary, Der Arbeitsvertrag, vol VI/2/2/2 (Stämpfli, Berne, 2014) Art 334 para 7. 16  Art 344a(1) of the Code of Obligations and Art 19(1) of the Act on Employment Services (Bundesgesetz über die Arbeitsvermittlung und den Personalverleih, Arbeitsvermittlungsgesetz (AVG) 1989, SR 823.11). 17  Federal Supreme Court of 8 June 2001—4C.62/2001 [2.b]. 18  Portmann and Rudolph (n 6 above) Art 334 para 6. 19  Federal Supreme Court of 27 June 2000—4C.22/2000 [2.b]. 20  Federal Supreme Court of 4 February 2009—4A_531/2008 [2.1]; see also Art 8 of the Swiss Civil Code (Schweizerisches Zivilgesetzbuch, ZGB) 1907, SR 210, valid as a general rule for the burden of proof in Swiss private law.

884  Wolfgang Portmann and Rahel Aina Nedi In federal public law, vacant positions must be advertised publicly.21 However, that principle does not apply to positions that last for a maximum of up to one year.22 B. Lawful Stipulation of the Contractual Terms This section examines the admissibility of fixed-term contracts and the consequences of unlawful consecutive fixed-term contracts. At the end of a fixed-term employment contract, the parties can agree to conclude another fixed-term employment contract. This is legal under national law; however, it is limited by the general prohibition on circumventing the law.23 Indeed, an employer’s underlying intention for concluding consecutive fixed-term ­contracts—also called chain employment contracts (Kettenarbeitsverträge)— may very well be, inter alia, to circumvent protective provisions relating to the notice period24 and terminations at an inopportune juncture (zeitlicher Kündigungsschutz),25 since these provisions only apply to employment contracts of indefinite duration. If that is the case and if no objective ground exists for concluding a fixed-term contract, the contractual clause containing the time limitation has no effect and the employment relationship will be deemed open-ended, even if there was a short interruption between two consecutive contracts. Consequently, the protective provisions of an open-ended employment relationship will apply.26 The duration of the employment relationship will be calculated by the sum of all periods of employment.27 The courts have accepted the existence of objective grounds justifying consecutive fixed-term contracts in the following cases: —— Seasonal workers—when there is no work during a certain period of the year such as in winter;28 —— Lecturers/teachers—if it becomes too difficult to predict the long-term number of students who plan to sign up for classes, and as a result also the number of lecturers/teachers required;29

21 

Art 7 of the Federal Personnel Act. Art 22(2)(a) of the Federal Personnel Ordinance. 23  Art 2(2) of the Swiss Civil Code; F Vischer and RM Müller, Der Arbeitsvertrag, 4th edn (Helbing & Lichtenhahn, Basle, 2014) § 24 para 21. 24  Art 335c of the Code of Obligations. 25  Art 336c of the Code of Obligations. 26  Federal Supreme Court of 18 July 2003—BGE 129 III 618 [6.2]; Portmann and Rudolph (n 6 above) Art 334 No 8; G Aubert in L Thévenoz and F Werro, Commentaire romand, Code des obligations I, 2nd edn (Helbing Lichtenhahn, Basle, 2012) Art 335 para 2. 27  Rehbinder and Stöckli (n 15 above) Art 334 para 15. 28 Federal Supreme Court of 18 July 2003—BGE 129 III 618 [6.2]; Wyler and Heinzer (n 7 above) 521 et seq. 29  Federal Supreme Court of 28 June 2006—2P.26/2007 [3.7]. 22 

Atypical Employment Relationships: The Position in Switzerland 885 —— Substitution—where the employer seeks to substitute an employee who has fallen ill with an employee on an interim fixed-term contract for an uncertain period.30 On the other hand, the courts did not accept the existence of an objective ground: —— Where the employer tried to justify two consecutive fixed-term contracts with the arguments that (1) the claimant’s (employee’s) performance was not always entirely satisfying, which had been noted more than on one occasion, and (2) that the company might at some point in time be exposed to market uncertainties. Rejecting the first argument on performance, the court held that a fixed-term employment contract does not serve as a means to test an employee’s competence; the appropriate measure for this would have been a probation period.31 The second argument was equally rejected. One reason was that the job as advertised, and which the claimant had applied for, had not implied fixed-term contracts. Furthermore, mere possible future uncertainties did not suffice to justify consecutive fixed-term contracts. Thus, the court classified the employment relationship as an employment contract of indefinite duration.32 —— Where four consecutive fixed-term employment contracts with an identical work content were concluded between the same parties. The court found it unlikely that objective reasons could justify the high number of consecutive fixed-term employment contracts.33 —— Where the employer tried to justify monthly fixed-term contracts with a clause stipulating that in the future, the company might face difficulties that would affect their ability to offer work, but without any clear time indication for when that event might occur. The court held that this was neither a valid justification nor a condition subsequent resulting in termination, given that such difficulties alluded to were vague, uncertain and perhaps would never even materialise.34 In past rulings, the Federal Supreme Court seems to have suggested that two consecutive fixed-term contracts are generally admissible.35 Some scholars

30 

Federal Supreme Court of 23 May 2005—A.684/2004 [5.3]. Cf Art 335b of the Code of Obligations. 32  Federal Administrative Court of 30 January 2012—A-3434/2011 [6]. 33  Federal Supreme Court of 20 July 1999 in Jahrbuch des Schweizerischen Arbeitsrechts (Stämpfli, Berne) = JAR 2000 105. 34  Federal Supreme Court of 27 June 2000—4C.22/2000 [2.c]. 35  Cf Federal Supreme Court of 20 July 1999 in JAR 2000 (n 33 above) 106; Brühwiler (n 12 above) Art 334 para 6; Ph Carruzzo, Le contrat individuel du travail, commentaire des articles 319 à 341 du Code des obligations (Schulthess, Zurich/Basle/Geneva, 2009) Art 334 para 2. 31 

886  Wolfgang Portmann and Rahel Aina Nedi have endorsed that approach.36 Other rulings and scholars have rejected it for being too absolute and undifferentiated; in their view, even one followon contract may constitute an abuse of law.37 However, the Federal Supreme Court has also specified that the number of consecutive fixed-term contracts alone serves as an indicator only and is not the sole decisive criterion when assessing the admissibility of chain contracts.38 In short, objective grounds must exist for chain contracts to be admissible. Nevertheless, in light of the aforementioned examples from case law and the divided attitude of labour law scholars, it is not possible to construct an overall taxonomy of the factual circumstances that qualify as objective grounds. The courts examine the facts and decide on a case-by-case basis. Indeed, even if only two consecutive fixed-term contracts are concluded, the employer is in a stronger position if s/he can provide an objective justification. In principle, the higher the number of chain contracts, the more challenging the task for the employer to prove the existence of objective grounds. C. Termination of Fixed-Term Contracts Usually, fixed-term employment relationships end due to the expiration of the given period without notice, as provided in Article 334(1) of the Code of Obligations. The fixed-term employment relationship may further terminate by:39 —— Ordinary termination during the probation period, if such a probation period has been agreed. In this scenario, the provisions on the probation period, which apply to employment contracts of indefinite duration, apply by analogy to fixed-term employment contracts as well.40 Pursuant to Article 335b(2) of the Code of Obligations, the parties may agree on a probation period of up to three months. If the parties did not include a probation period in their fixed-term employment contract, the first month should be considered a probation period by reference to Article 335b(1) of the Code of Obligations by analogy.41

36 

Eg Vischer and Müller (n 23 above) § 24 para 23. Administrative Court of 30 January 2011—A-3434/2011 [6.3]; U Streiff, A von Kaenel and R Rudolph, Arbeitsvertrag, Praxiskommentar, 7th edn (Schulthess, Zurich, 2012) Art 334 para 7; Portmann and Rudolph (n 6 above) Art 334 para 8; AJP Ertl, Das befristete Arbeitsverhältnis in Theorie & Praxis, unter Berücksichtigung des Arbeitsvermittlungsgesetzes (DPhil thesis, University of St Gallen, 2015) para 560. 38  Federal Supreme Court of 20 July 1999 in JAR 2000 (n 33 above) 106; in that sense, also Federal Administrative Court of 30 January 2012—A-3434/2011 [6.3]. 39  Portmann and Rudolph (n 6 above) Art 334 para 9. 40  Art 335b of the Code of Obligations; Federal Supreme Court of 11 October 1983—BGE 109 II 449 [1.b]. 41  Portmann and Rudolph (n 6 above) Art 335b para 13. 37  Federal

Atypical Employment Relationships: The Position in Switzerland 887 —— Ordinary termination after a 10-year employment relationship. According to Article 334(3) of the Code of Obligations, after 10 years, any employment relationship contracted for a longer duration may be terminated by either party by giving six months’ notice expiring at the end of a month. This provision is mandatory42 and cannot be ruled out; otherwise the parties’ freedom would be considered excessively restricted.43 —— Termination with immediate effect for good cause. Pursuant to Article 337(1) of the Code of Obligations, either the employer or employee may terminate the employment relationship with immediate effect at any time for good cause.44 The party that terminates the employment relationship must provide the relevant reasons in writing at the other party’s request. This provision applies both to fixed-term and openended employment contracts. —— Mutual termination agreement (Aufhebungsvertrag). —— Death of the employee,45 exceptionally also the death of the employer.46 Save for the above-mentioned exceptions, it is not possible to end a fixedterm relationship early through ordinary termination.47 Pursuant to Article 334(2) of the Code of Obligations, a fixed-term employment relationship tacitly extended beyond the agreed duration is deemed to be an employment relationship of indefinite duration. That provision contains two rebuttable presumptions.48 According to the first presumption, the tacit extension of a fixed-term employment contract does not give rise to a new employment relationship, but rather the previous employment relationship is deemed to have been extended. As a result, as regards deriving any legal consequences (holidays, notice periods, severance allowance) based on an employee’s years of seniority, the starting date will be that of the initial contract.49 This presumption is, however, rebuttable, for instance, when a commercial traveller transfers within the same company to an internal department.50 According to the second presumption, the extension of the fixed-term employment contract results in an employment relationship of indefinite duration and consequently, the protective provisions on terminations apply.

42 

Cf Art 361 of the Code of Obligations. Cf Art 27(2) of the Swiss Civil Code. 44  The same applies pursuant to Art 10(4) of the Federal Personnel Act. 45  Art 338(1) of the Code of Obligations. 46  Art 338a(2) of the Code of Obligations. 47  Wyler and Heinzer (n 7 above) 497; Portmann and Rudolph (n 6 above) Art 334 para 11; Streiff, von Kaenel and Rudolph (n 37 above) Art 334 para 4. 48  Portmann and Rudolph (n 6 above) Art 334 para 12. 49  Carruzzo (n 35 above) Art 334 para 1 et seq. 50  Carron (n 13 above) Art 334 para 25. 43 

888  Wolfgang Portmann and Rahel Aina Nedi Also, this presumption is rebuttable when the parties have agreed otherwise, as in the case where the letter of appointment stated that ‘collaboration shall be valid for the school year 1991/1992 on a pilot basis. In case of success, collaboration shall be definitely confirmed for the following year …’. The Federal Supreme Court found that the extended contract was considered a fixed-term and not an open-ended employment relationship.51 The legal situation in the public sector regarding the federal administration differs significantly. Pursuant to Article 9(1) of the Federal Personnel Act, a fixed-term employment relationship may be concluded for a maximum of up to three years; if the employment relationship extends beyond that duration, it is deemed to be one of indefinite duration. Consecutive employment relationships without interruption for three years are equally deemed open-ended. Fixed-term employment relationships may not be concluded to circumvent the protective provisions against dismissal or the duty to advertise a job vacancy.52 D. Rights of Fixed-Term Workers (i)  Equal Treatment Contrary to the Framework Agreement on fixed-term work, there is no explicit provision in Switzerland guaranteeing equal treatment of fixed-term workers. The general principle of equal treatment may be deduced from the employer’s duty of care (Fürsorgepflicht),53 but the principle of equal treatment in employment law carries little weight in Switzerland, one of the reasons being that the freedom of contract rule usually prevails over the principle of equal treatment.54 Courts will allow differentiated treatment of employees as long as no arbitrariness is evident.55 A case in point involved an employer who, during a transfer of undertaking, refused to offer the same voluntary benefits to all employees, and the Federal Supreme Court found no violation of equal treatment on the basis that, when assessed through a business lens, the differentiated treatment seemed reasonable.56

51 

Federal Supreme Court of 15 March 1995 (unpublished decision) [4.b]. Art 28 of the Federal Personnel Ordinance. 53  See Art 328 of the Code of Obligations in conjunction with Federal Supreme Court of 17 December 2002—BGE 129 III 276 [3.1]. 54  Federal Supreme Court of 17 December 2002—BGE 129 III 276 [3.1]. 55  Portmann and Rudolph (n 6 above) Art 328 para 33 et seq. 56  Federal Supreme Court of 28 February 2013—4A_610/2012 [2.4]. In this case, a former worker of a company filed a complaint that he was excluded from benefits of a retention plan that was offered to some of his former colleagues. The Federal Supreme Court found that the company was free to decide which employees would be covered by the retention plan. The Court accepted that the decision to award benefits to certain employees and not to others could also be motivated by strategic reasons. 52 

Atypical Employment Relationships: The Position in Switzerland 889 Nevertheless, limitations to the freedom of contract may result from other principles, such as the prohibition of discrimination based on the Act on Gender Equality.57 (ii)  Employment Opportunities According to the Code of Obligations, fixed-term workers do not have the right to be informed about possible opportunities entailing employment of unlimited duration. (iii)  Other Matters Save for the specific provisions on termination of the contract, fixed-term workers enjoy the same rights as workers who have concluded an employment contract of indefinite duration. E. Information and Consultation The rights to information and consultation are broadly laid down in the Participation Act.58 The Act provides a basic framework regulating the institutional conditions of the worker’s right to information and consultation as well as the right to a body representing the workers. The extent and areas of participation rights are regulated by special laws.59 Article 335e(1) of the Code of Obligations expressly mentions that the provisions governing collective redundancies apply equally to fixed-term employment relationships terminated prior to the expiry of their agreed duration, as they do to open-ended relationships. The Participation Act sets down a minimum standard for workers’ participation. The Act is without prejudice to agreements which are more favourable to workers. Agreements that are less favourable to workers are only possible via collective agreements or in the other cases mentioned in Article 2 of the Participation Act.60 There are no specific provisions on fixed-term workers in the Participation Act. We may thus assume that fixed-term workers enjoy the same rights as workers with a contract of indefinite duration with reference to information and

57 

Gleichstellungsgesetz (GlG) 1995, SR 151.1. Mitwirkungsgesetz (MitwG) 1993, SR 822.14. 59  The employment contract provisions of the Code of Obligations, for instance, provide for participation, information and consultation rights in case of a transfer of undertaking to a third party and subsequent collective redundancies. See also I Wildhaber, Das Arbeitsrecht bei Umstrukturierungen (Schulthess, Zurich/Basle/Geneva, 2011) 367. 60  Wildhaber (n 59 above) 368. 58 

890  Wolfgang Portmann and Rahel Aina Nedi consultation. When calculating the threshold above which the workforce is entitled to create a representative body, a fixed-term worker will be considered equally to a full-time worker. F. Specific Provisions There are no further specific provisions in the private sector which have not already been mentioned above. However, there are numerous specific provisions in public law due to the fact that over 2,000 public employment laws exist.61 Specific provisions for fixed-term work can, inter alia, be found in university laws on the employment of professors. Fixed-term or open-ended employment regulations differ from university to university. The University of St Gallen, for instance, elects professors for a fixed-term of eight years.62 ETH and the University of Zurich, on the other hand, generally employ professors for an unlimited period.63 G. Collective Bargaining Agreements Deviating from Statutory Provisions Some collective agreements explicitly mention that they apply equally to fixed-term workers.64 One collective agreement even goes as far as stating that the length of a fixed-term contract may be two years maximum and that the fixed-term contract may only be extended once for another 12 months. Any fixed-term employment relationship that goes beyond this period will be deemed one of indefinite duration.65 The scope for collective agreements to introduce conditions that are less favourable than the statutory ones is limited, since Articles 361 and 362 of the Code of Obligations contain a long list of mandatory employment law provisions, which is by no means exhaustive.66 Any collective employment agreement that derogates from that list will be void.67

61 

See the preliminary remarks above. Art 41(2) of the University Constitution HSG (Universitätsstatut HSG) 2011, SGS 217.15. 63 Art 9(1) of the Ordinance on Professors at ETH (Verordnung des ETH-Rates ueber die Professorinnen und Professoren der Eidgenössischen Technischen Hochschulen, Professorenverordnung ETH) 2003, SR 172.220.113.40; § 8(2) of the Ordinance on the University of Zurich (Universitätsordnung der Universität Zürich) 1998, LS 415.111. For more examples, see also Ertl (n 37 above) para 501. 64 Art 1(1) of the collective agreement in the machinery, electrical and metals industry 2018–2023, https://www.swissmem.ch/fileadmin/user_upload/Sozialpartner/pdf/GAV_MEM_ 2018-2023_D.pdf (accessed on 15 May 2019). 65  Cf Art 3(3) of the collective agreement of the charity Solidar Suisse et al 2016. 66  Streiff, von Kaenel and Rudolph (n 37 above) Art 361 para 3, Art 362 para 6. 67  Cf Arts 361(2) and 362(2) of the Code of Obligations. 62 

Atypical Employment Relationships: The Position in Switzerland 891 III.  PART-TIME WORK

A.  Legal Definitions and Formal Requirements Pursuant to Article 319(2) of the Code of Obligations, a contract whereby an employee undertakes to work regularly in the employer’s service, be it for certain hours, half-days or days (part-time work), is likewise deemed to be an individual employment contract. This definition paints a misleading picture of part-time work. Firstly, there is no need to use the wording ‘deemed to be’ since part-time work is based on an employment contract. Secondly, the word ‘regularly’ is unsound, as it implies that there is no room for the schedule to vary.68 The latter is illustrated with an example from case law: Company B. employed A. as a driver, where A. had to work on-call as needed. On average, he worked between three and five working days per week. The daily schedule was distributed between 6.45 am and 6.00 pm. For two months, A. worked based on that schedule until the employer gave him notice. The court had to determine whether an open-ended employment relationship had existed at the time or whether each day of work gave rise to a new fixed-term employment contract. The court concluded that an openended employment relationship had indeed existed, one of the reasons being the employee’s continuous performance of work.69 More accurately than in the statutory provision, part-time work can be described as a continuous (instead of regularly performed) employment relationship characterised by working hours that are less than the company’s or industry’s standard working hours.70 Usually, part-time work is expressed in percentages in relation to a full-time position. There are two categories of part-time work:71 —— Regular part-time work, whereby the employee works every morning, for instance, performing 50 per cent of the work in relation to a fulltime position; —— Irregular part-time work, whereby the employee works 14 hours in week one, for example, 21 hours in week two and zero hours in week three. Job sharing, on-call work (zero-hours contracts) and occasional temporary agency work also qualify as part-time work.72 These forms of work are characterised by specific features and will be dealt with in section III.F. It is important to note that casual work (Gelegenheitsarbeit), given the lack of a continuous employment relationship, does not qualify as continued

68  P Byrne-Sutton, Le contrat de travail à temps partiel (DPhil thesis, University of Geneva, 2001) 82 et seq.; W Portmann and J-F Stöckli, Schweizerisches Arbeitsrecht, 3rd edn (Dike, Zurich/St Gallen, 2013) para 890; Dunand (n 13 above) Art 319 para 47. 69  Labour Court Geneva of 8 April 1988 in JAR 1989 (n 33 above) 97 et seq. 70  Portmann and Stöckli (n 68 above) para 887. 71  Dunand (n 13 above) Art 319 para 50; Portmann and Stöckli (n 68 above) para 888. 72  Cf Portmann and Stöckli (n 68 above) para 891.

892  Wolfgang Portmann and Rahel Aina Nedi part-time work. Each assignment gives rise to a new employment contract. The practical significance of this distinction—besides the applicability of mandatory notice periods—lies in the social benefits that are linked to the duration of the employment relationship.73 Specifically, the right to wage payment in case the employee is prevented from working due to personal circumstances that are due to no fault of his or her own, such as illness, accident, legal obligations or public duties, only exists in open-ended ­ employment relationships of more than three months or for employees who have been contracted for more than three months.74 B. Opportunities for Part-Time Work In Switzerland, part-time work has been on the rise since the 1990s; 6 out of 10 women work part time, but only 1.8 out of 10 men do so.75 Notwithstanding the popularity of part-time work, whether or not an employment relationship is concluded for part-time work is left to the parties to decide. There is no statutory right to part-time work in the private sector. Recently, some Acts in the public sector have introduced the right to work part-time, for example, the new Court Organisation Act in Basle.76 C. Opportunities for Extension of Working Time Given that there is no statutory right to part-time work in private employment law, there is equally no right to an extension of part-time work. An employer, for instance, does not have to give preferential treatment to an employee who is currently working part-time and wishes to replace a full-time employee who is on leave. Such a right would be contrary to the ­freedom of contract principle which is a cornerstone of Swiss private law.77 D. Rights and Status of Part-Time Worker (i)  Equal Treatment A general right to equal treatment at work is based on Article 328 of the Code of Obligations, as already mentioned in the section on fixed-term work.78 73 

Brühwiler (n 12 above) Art 319 para 11. Art 324a(1) of the Code of Obligations. 75 www.bfs.admin.ch/bfs/de/home/statistiken/wirtschaftliche-soziale-situation-bevoelkerung/ gleichstellung-frau-mann/erwerbstaetigkeit/teilzeitarbeit.html (accessed on 15 May 2019). 76  § 35(2) E GOG, www.grosserrat.bs.ch/dokumente/100378/000000378127.pdf (accessed on 15 May 2019). 77  Cf Federal Supreme Court of 17 December 2002—BGE 129 III 276 [3.1]. 78  See above section II.D.(i). 74 

Atypical Employment Relationships: The Position in Switzerland 893 More specifically, in relation to part-time work, the following three rules can be deduced from the principle of equal treatment: —— Part-time employees, in principle, enjoy the same rights as full-time employees. Article 319(2) of the Code of Obligations states that parttime employment contracts are individual employment contracts, ie the legislator asserts that part-time employees enjoy the same rights and obligations as full-time employees.79 As regards annual leave, for instance, part-time employees are entitled to the statutory minimum of four weeks. Those weeks cannot be reduced proportionally to the employee’s working hours. If, for instance, an employee works six hours per week, s/he is still entitled to four weeks of annual leave.80 —— Part-time employees are entitled to pro rata temporis benefits. If the company, for example, offers a CHF 1,000 annual bonus to full-time employees, a part-time employee, who works 50 per cent, is entitled to CHF 500. —— If a company rule depends on the number of employees, part-time employees are counted as full-time employees.81 If the company allows the establishment of representative bodies on the basis of 30 employees upwards, part-time and full-time employees are considered equal. According to the legal literature, the lower remuneration of part-time ­employees is a classic case of indirect gender discrimination, due to the fact that it is mostly women who work part-time.82 The Swiss Federal Supreme Court has clarified that this is only the case when part-time employees earn proportionally less (eg a lower hourly rate) than a comparable full-time employee.83 (ii)  Dismissal Protection With regard to dismissal protection, the legal framework of part-time employment is akin to that of full-time employment. What is decisive is whether the employment is fixed-term or of indefinite duration. As previously stated, a fixed-term employment relationship generally ends with the expiration of time without notice, as provided in Article 334(1) of the Code of Obligations. The provisions on protection against termination do

79 

Byrne-Sutton (n 68 above) 113. Portmann and Stöckli (n 68 above) para 899. 81  Byrne-Sutton (n 68 above) 132. 82  K Arioli, ‘Die Rechtsfigur der indirekten Diskriminierung’ in AJP (= Aktuelle Juristische Praxis) 1993, 1332 et seq.; E Freivogel in C Kaufmann and S Steiger-Sackmann (eds), Kommentar zum Gleichstellungsgesetz, 2nd edn (Helbing Lichtenhahn, Basle, 2009) Art 3 para 22. 83  Federal Supreme Court of 3 July 1998—GE 124 II 436 [8.d.aa]. 80 

894  Wolfgang Portmann and Rahel Aina Nedi not apply. The protective provisions are only applicable if the employment ­relationship is open-ended. Article 336 of the Code of Obligations, a provision that aims to protect employees from wrongful termination, is of relevance for dismissals with the option of continued employment on the basis of modified conditions (Änderungskündigung), provided that the part-time employment contract is of indefinite duration. Pursuant to Article 336(1)(d) of the Code of Obligations, a termination may be wrongful if notice has been given because the other party asserts claims under the employment relationship in good faith.84 One example is a case in which the employee, who worked approximately 30 hours a week, refused to sign a new contract, which would have been effective immediately, with a flexible schedule based on the clients’ needs. Due to the refusal to sign the new contract, the employee was dismissed. The court found the dismissal to be wrongful.85 In another case, a company employed a medical expert under a part-time contract (at 80 per cent). The company knew that the employee was working for another employer for the remaining 20 per cent. During the probation period, the company suddenly required the employee to work full time. Since he could not comply with that request, the company terminated the employment relationship. The Federal Supreme Court held that the company had not acted in good faith, since it had known from the outset that the employee would not be available to work full time. The employer had not given any indication that his 20 per cent part-time work for another employer posed a problem. Consequently, the Federal Supreme Court ruled that the dismissal was wrongful.86 (iii)  Other Matters Several particularities of part-time work are worth mentioning: —— Holding multiple jobs: Part-time employees often simultaneously work for several employers under different employment contracts. Holding multiple jobs is permissible. However, the employee may not infringe his/her duty of loyalty towards his/her employers.87 An employee may only hold as many jobs as will not negatively impact his/her performance during his/her working hours.88 Whether the non-competition prohibition applies in a case of multiple employment relationships89

84 

Both the employee and the employer are entitled to invoke this provision. District Court of Yverdon in Plaedoyer 3/1998, 56. 86  Federal Supreme Court of 28 November 2007—BGE 134 III 108 [7.1.2]. 87  Cf Art 321a(1) of the Code of Obligations. 88  Portmann and Stöckli (n 68 above) para 893. 89  Art 321a(3) of the Code of Obligations. 85 

Atypical Employment Relationships: The Position in Switzerland 895 is controversial. If the employer can reasonably assume based on the circumstances that the employee holds multiple jobs, a tacit waiver of the non-competition prohibition is assumed.90 —— Working hours and resting period according to the Employment Act:91 If the employment relationship is subject to the Employment Act, the part-time worker is, in principle, entitled to equal protection with a full-time worker. In case of holding of multiple jobs, the total working hours per week of all jobs may not exceed the maximum legal amount of 45 or 50 hours’ work per week.92 The prohibition on working on Sundays and at night as well as the minimal resting periods, apply.93 —— Overtime: Pursuant to Article 321c(1) of the Code of Obligations, the employee is required to work overtime to the extent s/he is capable and may reasonably be expected to. If an employee works part-time, considerable weight must be given to his/her ability to work overtime and the fact that s/he can reasonably be expected to do so.94 If the employee, for instance, has to work for another employer or look after his/her children at home during that period, s/he cannot be required to work overtime. —— Days off work: Leisure is generally regulated in Article 329 of the Code of Obligations. If a day off work falls on a day on which the employee would be off work in any case, s/he does not have a right to additional leave. On the other hand, the employee does not have to make up for bank holidays, even if many fall on his/her workdays.95 E. Information and Consultation Pursuant to Article 1, the Participation Act applies to all private businesses that employ permanent employees in Switzerland. No distinction is made between part-time and full-time employees. Consequently, part-time employees enjoy the same information and consultation rights as full-time employees.96

90 

Vischer and Müller (n 23 above) § 7 para 6; Brühwiler (n 12 above) Art 319 para 11. Arbeitsgesetz (ArG) 1964, SR 822.11. 92  The maximum weekly working hours are 45 hours for employees in industrial undertakings and for office personnel, technical and other employees (white collar employees), including sales personnel in large retail establishments, and 50 hours for all other employees, Art 9(1) of the Employment Act. 93 Vischer and Müller (n 23 above) § 7 para 7; cf Employment Act, specifically Arts 9, 12–13, 15a. 94  Portmann and Stöckli (n 68 above) para 894. 95  Portmann and Stöckli (n 68 above) para 897. 96  Byrne-Sutton (n 68 above) 214; R Müller, Die Arbeitnehmervertretung (Stämpfli, Berne, 1999) 42. 91 

896  Wolfgang Portmann and Rahel Aina Nedi F. Other Part-Time Arrangements This section briefly discusses other part-time arrangements, such as on-call work and job sharing. In Switzerland, on-call work (Arbeit auf Abruf), also known as zero-hours contracts in other countries,97 constitutes a work arrangement whereby the employer unilaterally decides the time and duration of work.98 In a leading case, the Federal Supreme Court explicitly stated that on-call work is legal.99 Nonetheless, the mandatory employment law provisions must be respected.100 In terms of legal consequences, a differentiation is made between on-call work whereby the employee pledges his/her readiness to work following the employer’s call for work (echte Arbeit auf Abruf) and oncall work for which there is no such obligation (unechte Arbeit auf Abruf). The first type of on-call work is more controversial due to its potential precariousness. The parties contractually agree that the employer can unilaterally call the employee for work. This form of work allows the employer to make optimal use of the working hours by adapting them to his/her production or to the provision of his/her service capacity. In other words, the working hours are based on the employer’s capacity to provide work and are variable (kapazitätsorientierte variable Arbeitszeit, ‘Kapovaz’). On-call work with a duty to respond to calls for work is considered an individual employment contract and each call for work is carried out within the framework of that employment contract.101 The variable salary is characteristic of that type of work.102 According to case law, the duty to be available ­on-call must be compensated for, but a much lower rate than the usual wage is admissible.103 Furthermore, this compensation can be included in the employee’s total wage without specifying its amount.104 In a case where an employee was regularly given work for two years within the framework of an on-call contract, she could assume the existence of an open-ended employment relationship, and therefore, the notice periods had to be respected.105 Furthermore, when an employee regularly works on-call, s/he does not have to accept a sudden and substantial reduction of his/her usual workload.106

97  Cf A Adams, M Freedland and J Prassl, ‘The “Zero-Hours Contract”: Regulating Casual Work, or Legitimating Precarity’ in Oxford Legal Studies Research Paper No 11/2015: http:// papers.ssrn.com/sol3/papers.cfm?abstract_id=2507693 (accessed on 15 May 2019). 98  District Court Vaud of 10 May 2000 in JAR 2001 (n 33 above) 333. 99  Federal Supreme Court of 6 May 1998—BGE 124 III 249 [2.a]. 100  Federal Supreme Court of 14 December 1998—BGE 125 III 65 [4.b.aa]. 101  Streiff, von Kaenel and Rudolph (n 37 above) Art 319 para 18. 102  Portmann and Stöckli (n 68 above) para 918 et seq. 103  Federal Supreme Court of 6 May 1998—BGE 124 III 249 [3]. 104  Federal Supreme Court of 6 May 1998—BGE 124 III 249 [3.c]. 105  Labour Law Court Zurich of 14 June 2002 in JAR 2003 (n 33 above) 158. 106  Federal Supreme Court of 14 December 1998—BGE 125 III 65 [4.b].

Atypical Employment Relationships: The Position in Switzerland 897 The employee must be called/paid during the notice period in the amount of his/her previous average wage; otherwise dismissal protection would be breached.107 In the second type of on-call work, the employee is under no obligation to respond to the employer’s call for work. Consequently, the employer has no duty to pay for time spent on call but not actually worked.108 Unlike the on-call work with a duty to respond to the employer’s call, each work assignment in this form of on-call work gives rise to a new employment contract. A call to work in this case is the employer’s offer to conclude an employment contract. If from the outset the parties expect that there will be several work assignments, they may conclude a framework contract. The latter does not, however, constitute an employment contract; it only stipulates the working conditions for future assignments.109 In the case of shared work places, known in Switzerland under the term ‘job sharing’,110 one position is occupied by several employees. Part-time work is intrinsic to job sharing. The employer leaves the time management up to the employees who share the workplace. The employer will only get involved if the employees fail to reach an agreement. Employees who share a job with others are obliged to substitute for each other if one of them cannot work for personal reasons. The employee who is prevented from working through no fault of his/her own is entitled to pay in accordance with the conditions set down in Article 324a of the Code of Obligations. Whether or not employees who share a position may give notice or be dismissed independently depends on the given contract. If the job-sharers form a group on their own accord and jointly offer their services to the employer, they must, as a general rule, give common notice or must be dismissed collectively.111 G. Collective Bargaining Agreements Deviating from Statutory Provisions Three categories of collective bargaining agreement exist in relation to part-time work. The first category explicitly states that part-time workers are equally covered by the agreement, such as for instance, the Collective Bargaining Agreements for Painters and Plasterers and the Workers of the Cantonal Hospital Thurgau.112 Such agreements may contain longer notice

107 

Federal Supreme Court of 7 January 2010—4A_509/2009 [2.3]. Federal Supreme Court of 7 January 2010—4A_509/2009 [2.3]. 109  Portmann and Stöckli (n 68 above) para 922 et seq. 110  Cf, eg, Vischer and Müller (n 23 above) § 7 para 12. 111  Portmann and Stöckli (n 68 above) para 903 et seq. 112 https://www.smgv.ch/de/Politik-Wirtschaft/GAV#dowover=true&accid=politik-recht--gav_gav411&; https://www.stgag.ch/fileadmin/medien/karriere/arbeiten_in_der_stgag/STGAG_ Firmenvertrag_WEB-.pdf (both accessed on 15 May 2019). 108 

898  Wolfgang Portmann and Rahel Aina Nedi periods than the statutory minimum, beginning in the first year of service.113 The second category of collective agreements expressly fully or partially excludes part-time workers from their scope of application. As such, the Brewer Collective Agreement only applies if the part-time work contract is for at least 50 per cent of normal working hours.114 That collective agreement contains various provisions that are more favourable than the statutory minimum, such as a ‘13th month’ salary, payment for overtime and more favourable conditions in case of maternity leave.115 The third category of collective agreements, the standard case, does not mention parttime work contracts at all, as for example, the collective agreement in the car manufacturing industry.116 The first category of collective agreements is straightforward with regard to its legal impact on part-time workers, while the second category is problematic and goes well beyond the at first glance ‘neutral’ exclusion of parttime workers. The issue at stake is that predominantly women work part time. To exclude part-time workers from the scope of application of the agreement and consequently give women less favourable treatment is highly problematic in light of the prohibition of indirect gender discrimination.117 As for the third category of collective agreements, part-time workers are included on the condition that they fall within the category covered by the agreement and that both the employer and employee are part of the union that has concluded the agreement.118 The collective agreement is applicable if the agreement has been declared generally applicable (allgemeinverbindlich) by the authorities, regardless of union membership.119 IV.  TEMPORARY AGENCY WORK

A.  Legal Definitions and Formal Requirements Regulations on temporary agency work are found in the Act on Employment Services, the Ordinance on Employment Services120 and the Collective

113 

Section 2.5 of the Collective Agreement of Hospital Workers in the Canton Thurgau. Collective Agreement 2013, Art 2: https://www.ge.ch/document/cct-brasseries/ telecharger (accessed on 15 May 2019). 115  Cf Arts 9–10 and 17 of the Brewer Collective Agreement. 116  http://www.plk-carrosserie.ch/_carrosserie/uploads//d_s01_s140_Inhalt_Web.pdf (accessed on 15 May 2019). 117  See above section III.D.(i) and Art 3 of the Act on Gender Equality; Byrne-Sutton (n 68 above) 226 et seq. 118  Byrne-Sutton (n 68 above) 228. 119  For more details on collective agreements, see Portmann and Stöckli (n 68 above) para 1067 et seq. 120  Verordnung über die Arbeitsvermittlung und den Personalverleih, Arbeitsvermittlungsverordnung (AVV) 1991, SR 823.111. 114 Brewer

Atypical Employment Relationships: The Position in Switzerland 899 Agreement on Temporary Agency Work, which covers the entire country. Its provisions have mostly been declared generally applicable.121 The Act does not provide a clear definition of temporary agency work. Pursuant to case law and legal doctrine, temporary agency work is characterised by a ‘triangular’ relationship: the worker concludes an employment contract with the temporary work agency as his/her employer and declares him-/herself ready and available to work for a user undertaking. In exchange, the ­temporary work agency pledges to pay the worker’s wages.122 As an employer, the temporary work agency shares part of its power to direct and instruct the employee with the user undertaking, in order for the latter to integrate the worker into his/her business during the work assignment. The temporary work agency and not the user undertaking is the employee’s formal employer during the work assignment.123 The Ordinance on Employment Services distinguishes between three types of temporary agency work.124 The differences are often blurred in practice, but are relevant in terms of the licensing requirement.125 The three types are: —— Temporary work (Temporärarbeit), where the objective of the employment contract between the employee and the temporary work agency is the assignment of the worker to a user undertaking and the employment contract is limited to the assignment period. —— Delegated work (Leiharbeit, Regiearbeit), where the objective lies in repeated assignments of the worker and the duration of the employment contract is not limited to each assignment. If there is no possibility to assign the worker, the temporary work agency must pay the employee’s wages. —— Occasional temporary work (Gelegentliches Überlassen von Arbeitnehmern an Einsatzbetriebe), where a regular employment relationship exists between the worker and the employer. However, the worker may exceptionally be assigned to user undertakings. The employment ­contract between the parties does not depend on the assignments.

121 www.seco.admin.ch/seco/de/home/Arbeit/Personenfreizugigkeit_Arbeitsbeziehungen/ Gesamtarbeitsvertraege_Normalarbeitsvertraege/Gesamtarbeitsvertraege_Bund/Allgemeinverb indlich_erklaerte_Gesamtarbeitsvertraege/Personalverleih.html (accessed on 15 May 2019). 122  District Court St Gallen of 20 July 2009 in JAR 2010 (n 33 above) 570 et seq.; Streiff, von Kaenel and Rudolph (n 37 above) Art 319 para 20. 123  Portmann and Rudolph (n 6 above) Art 319 para 23; R Bachmann, ‘Verdeckter Personalverleih: Aspekte zur rechtlichen Ausgestaltung, zur Bewilligungspflicht, zum Konzernverleih und zum Verleih mit Auslandsberührung’ in ArbR (= Mitteilungen des Instituts für schweizerisches Arbeitsrecht) 2010, 56. 124  Art 27 of the Ordinance on Employment Services. 125  Art 28 of the Act on Employment Services; Portmann and Stöckli (n 68 above) para 940 et seq.; Bachmann (n 123 above) 80.

900  Wolfgang Portmann and Rahel Aina Nedi The Act on Employment Services requires the employment contract between the temporary work agency and the worker to be concluded in writing and to regulate certain conditions, such as working hours and place of work. The written contract must be handed to the employee prior to the commencement of work.126 However, these requirements are not a condition of the contract’s validity (Ordnungsvorschrift instead of Gültigkeitsvorschrift); if the written form requirement is infringed, the relevant customary or legal working conditions will apply.127 Likewise, the employment contract between the temporary work agency and the user undertaking must be concluded in writing.128 B. Registrations, Licensing, Financial Guarantees Under certain conditions, temporary agency work is subject to licensing. The reason for this is that the legislator sought to ensure the protection of workers, combat undeclared work and improve the quality of temporary agency work.129 Thus, pursuant to Article 12(1) of the Act on Employment Services, an employer (temporary work agency) who commercially supplies workers to user undertakings requires a licence from the Cantonal authorities. The Ordinance states that only temporary work and delegated work are subject to licensing.130 ‘Commercially supplying workers’ refers to an employer who regularly supplies workers for profit or, if the employer’s annual turnover reaches CHF 100,000 regardless of the employer’s underlying motive.131 If all the statutory conditions for a licence are met, the employer has a right to be granted a licence and the authorities have no discretionary power in this regard.132 The fee for a licence is currently between CHF 750 and 1,650.133 To ensure payment of wages, the employer must provide financial guarantees. Without such a guarantee, no licence

126  Art 19(1, 2) of the Act on Employment Services, Art 48(1) of the Ordinance on Employment Services. In case of urgency, parties may deviate from the written form requirement. 127 Art 19(3) of the Act on Employment Services. See also Federal Supreme Court of 24 ­September 2008—4A_292/2008 [3] and of 12 December 2006—4C.245/2006 [3]. 128  Art 22(1) of the Act on Employment Services. 129 Swiss Federal Council, Botschaft zu einem revidierten Bundesgesetz über die Arbeitsvermittlung und den Personalverleih of 27 November 1985, BBl (= Bundesblatt) 1985 III 557 et seq. 130  Art 28(1) of the Ordinance on Employment Services. 131  Art 29(1) of the Ordinance on Employment Services. 132  Cf Art 13 of the Act on Employment Services. 133  Art 7(1) of the Ordinance on Employment Services Fees (Verordnung über Gebühren, Provisionen und Kautionen im Bereich des Arbeitsvermittlungsgesetzes, Gebührenverordnung AVG, GebV-AVG) 1991, SR 823.113.

Atypical Employment Relationships: The Position in Switzerland 901 will be issued.134 The usual guarantee is CHF 50,000, but may be higher if the temporary work agency supplies workers for more than 60,000 hours per year or if it supplies workers abroad. The maximum guarantee is CHF 1,000,000.135 The State Secretariat for Economic Affairs (SECO) operates a publicly accessible database, in which all companies holding a valid licence are registered.136 C. Relationship between Temporary Agency Worker and Temporary Work Agency (i)  Legal Type of Relationship The legal relationship between the worker and the temporary work agency is deemed to be an employment contract with specific features.137 As the temporary work agency shares part of its power to direct and instruct the employee with the user undertaking, legal literature considers the employer’s function to be divided between the temporary work agency and the user undertaking.138 The temporary work agency is the temporary worker’s legal employer and the user undertaking is the de facto employer.139 In the case of temporary work, the parties generally conclude a framework agreement that contains all working conditions applicable to future assignments. The framework agreement does not constitute an employment contract; the parties will have to conclude an additional assignment contract. The conclusion of the assignment contract in conjunction with the framework agreement gives rise to an employment contract.140 The employment relationship is, in principle, governed by the provisions on the employment contract in the Code of Obligations.141 In addition, the Act on Employment Services contains specific provisions, such as the w ­ ritten form requirement for the contract and the requirement for the employer to

134  Art 14 of the Act on Employment Services; Arts 35 et seq. of the Ordinance on Employment Services. 135  Art 6(4) of the Ordinance on Employment Services Fees. 136  www.avg-seco.admin.ch/WebVerzeichnis/ServletWebVerzeichnis (accessed on 15 May 2019). 137  L Thévenoz, Le travail intérimaire (DPhil thesis, University of Geneva, 1986) para 182; Bachmann (n 123 above) para 43. 138 Vischer and Müller (n 23 above) § 31 para 21; Portmann and Stöckli (n 68 above) para 944. 139  Bachmann (n 123 above) 68; Vischer and Müller (n 23 above) § 31 para 21. 140 L Fischer, ‘Zur Haftungsbegründung im Temporärarbeitsverhältnis’ in Jusletter of 30 September 2013 para 4 et seq.; M Rehbinder and J Stöckli, Bernese Commentary, Der ­Arbeitsvertrag, vol VI/2/2/1 (Stämpfli, Berne, 2010) Art 319 para 37. 141  Arts 319 et seq. of the Code of Obligations.

902  Wolfgang Portmann and Rahel Aina Nedi abide by certain wage and working time provisions laid down in generally applicable collective agreements of the user undertakings.142 (ii)  Fixed-Term and Part-time Contracts Temporary agency work contracts can be concluded either as open-ended or for a fixed term. The Act on Employment Services explicitly states that the contract must state the duration of the assignment in case of a fixedterm contract.143 In practice, the State Secretariat for Economic Affairs has encountered numerous fixed-term contracts with an uncertain term. For that reason, a circular letter was released in 2007 emphasising the importance of the written form requirement and the need for clarity on the duration of the employment contract.144 The prohibition of unlawful chain contracts does not apply to fixed-term temporary workers when the worker is employed consecutively by the same temporary work agency, as long as the assignments vary among user undertakings.145 Consecutive fixed-term contracts are nonetheless considered problematic, if the worker works on similar assignments for the same temporary work agency within the same user undertaking.146 (iii)  Rights, Obligations and Liability As an employment relationship exists between the worker and the temporary work agency, the parties’ rights and obligations are akin to ordinary employment relationships.147 The employer’s main obligation is to pay the employee’s wages while the employee’s main obligation is to work for a third party, the user undertaking.148 The sole creditor of the employee’s work performance is the temporary work agency. The employer and the user undertaking are jointly required to protect the employee’s personal

142  Arts 19, 20 of the Act on Employment Services; Federal Supreme Court of 2 December 1997—BGE 124 III 126 [1.b]. 143  Art 19(2)(c) of the Act on Employment Services. 144 SECO, Verlängerung des befristeten Arbeitsvertrages; Präzisierungen der Weisungen und Erläuterungen zum AVG 2007/2: https://www.arbeit.swiss/dam/secoalv/de/dokumente/publi kationen/arbeitsvermittlung-personalverleih/befristete-vertraege/Verlaengerung_des_befris teten_Arbeitsvertrages1.pdf.download.pdf/Verlaengerung_des_befristeten_Arbeitsvertrages1. pdf (accessed on 15 May 2019). 145  Federal Supreme Court of 19 June 1991—BGE 117 V 248 [3.b.bb]; Wyler and Heinzer (n 7 above) 523. 146  Wyler and Heinzer (n 7 above) 523. 147  F Looser, Der Personalverleih unter besonderer Berücksichtigung des GAV Personalverleih (DPhil thesis, University of Basel, 2015) para 355. 148  Arts 321 and 322 of the Code of Obligations.

Atypical Employment Relationships: The Position in Switzerland 903 rights (duty of care);149 in exchange, the employee has the duty of loyalty to both of them.150 The employee is further required to prepare a work report about the assignment period, signed by the user undertaking for the temporary work agency, which serves as a basis to calculate the employee’s wages.151 Some legal scholars further advocate that the employee has a duty of information towards the temporary work agency about major events such as problems with the user undertaking or a desired change of assignment.152 On a contractual basis, the employer can be held liable on the basis of Article 328 of the Code of Obligations, if s/he breaches his/her duty of care towards the employee. That, for example, is the case if the temporary work agency irresponsibly chooses a random user undertaking that does not implement the necessary safety measures during the assignment and if, as a result, the employee suffers an accident. The temporary work agency will be liable for wrongdoings by the user undertaking which harm the employee, as the user undertaking is in legal terms deemed to be its associate (­Hilfsperson).153 Furthermore, the temporary work agency is liable if it infringes protective public law regulations.154 Finally, the temporary work agency can be held liable on the basis of tort law, if it causes unlawful damage to the employee.155 The burden of proof is, however, higher and the time limits for claims in tort law are shorter than in contract law.156 The employee, in turn, can be held liable if s/he breaches his/her duty of work and loyalty and causes the temporary work agency direct damage. The employee can also be held liable under tort law. However, such cases are rare, since the employee is generally assigned to a user undertaking and as such, the damage does not directly result within the sphere of the temporary work agency.157 If, however, the employee performs the work poorly, late or not at all during his/her assignment at the user undertaking, s/he may cause the employer indirect damage. The user undertaking may in fact claim breach of contract against the temporary work agency due to its failure to

149 

Art 328 of the Code of Obligations. 321a of the Code of Obligations; Looser (n 147 above) para 369 and 376 et seq.; Rehbinder and Stöckli (n 140 above) Art 319 para 22 et seq. 151  Federal Supreme Court of 29 June 1993—BGE 119 V 357 [2.b]. 152  Roland von Büren, Teilzeitarbeit und temporäre Arbeit als neue Formen von Dienstleistung im schweizerischen Recht (DPhil thesis, University of Bern, 1961) 119; Looser (n 147 above) para 371. 153  Pursuant to Art 101 of the Code of Obligations, a person who delegates the performance of an obligation or the exercise of a right arising from a contractual obligation to an associate, such as a member of his/her household or an employee, is liable to the other party for any loss or damage the associate causes in carrying out such tasks, even if their delegation was fully authorised; see also Thévenoz (n 137 above) para 293 et seq. 154  Cf Looser (n 147 above) para 911 et seq. 155  Cf Arts 41 et seq. of the Code of Obligations; Thévenoz (n 137 above) para 892 et seq. 156  Cf Arts 60 and 127 of the Code of Obligations; Fischer (n 140 above) para 25. 157  Thévenoz (n 137 above) para 1037. 150  Art

904  Wolfgang Portmann and Rahel Aina Nedi provide an adequate workforce. The temporary work agency is thus liable externally for the conduct of its workers.158 It is argued that in such cases, the worker can be held liable to the employer for breaching his/her duty of work and loyalty, given that the temporary work agency is the creditor of the work performance and also partly of the duty of loyalty.159 (iv)  Dismissal Protection There are no specific provisions on protection designed for temporary workers. The Act on Employment Services merely states that when concluding a contract, either the duration of the assignment or the notice period must be stipulated in writing,160 which is also due to the fact that the notice periods of temporary workers are much shorter in the first three months.161 Due to the lack of specific provisions, the standard provisions of the Code of Obligations on protection apply, such as for example, the prohibition of termination at an inopportune juncture (Kündigung zur Unzeit).162 It is worth mentioning that the temporary work agency as the employer is exclusively competent to give notice to the worker.163 In a case in which the user undertaking terminated the employment relationship with immediate effect, the Federal Supreme Court considered this a transgression of competence. If the temporary work agency fails to take any steps against such a dismissal, it is considered to have tacitly accepted the dismissal and will be held liable for the consequences of an unlawful dismissal.164 What is, however, possible is that the temporary work agency empowers the user undertaking to effect the dismissal.165 D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship Typically, no contract is concluded between the worker and the user undertaking, ie the relationship between the two parties is in a legal vacuum.

158 

Cf Arts 55 and 101 of the Code of Obligations; Bachmann (n 123 above) 75. Cf Looser (n 147 above) para 919 et seq. 160  Art 19(2)(c) of the Act on Employment Services. 161  Two days during the first three months and seven days during the following three months. 162  Art 336c of the Code of Obligations; H Stöckli, ‘“Ménage-à-trois” bei der Temporärarbeit’ in recht 5/2010, 143. 163 Federal Supreme Court of 19 June 1991—BGE 117 V 248 [3.b]; Bachmann (n 123 above) 70. 164  Federal Supreme Court of 12 December 2006—4C.245/2006 [4]. 165  Bachmann (n 123 above) 70. 159 

Atypical Employment Relationships: The Position in Switzerland 905 The Federal Supreme Court has repeatedly confirmed in obiter dicta that the relationship contains some contractual or quasi-contractual elements.166 Some scholars advocate a factual contractual relationship.167 Other ­scholars argue in favour of the theory of genuine contracts for the benefit of a third party, one being the employment contract between the worker and the temporary work agency and the other being the supply contract between the temporary work agency and the user undertaking. On the basis of these two contracts, the worker and the user undertaking can file claims against each other.168 (ii)  Rights, Obligations and Liability The power of direction and instruction over the worker is divided between the temporary work agency and the user undertaking.169 Based on ­Article 321d of the Code of Obligations, the user undertaking is entitled to issue general directives and specific instructions regarding the performance of work and the conduct of the worker. In addition, the user undertaking is required to protect the employee’s personal sphere on the basis of ­Article 328 of the Code of Obligations. Some scholars assert that the duty to issue an employee reference lies with the user undertaking, not with the temporary work agency since in most cases, the user undertaking can better assess the employee’s quality of work than the temporary work agency.170 What remains with the temporary work agency in any case is the claim to work performance, the duty to pay the employee’s wages and the right of dismissal. The worker, in turn, has the duty of loyalty and diligence to the user undertaking, for example, the duty to keep information obtained while working in the user undertaking’s service confidential, such as manufacturing or trade secrets.171 In terms of liability, the proponents of the factual contractual relationship and the genuine contract for the benefit of a third party come to the conclusion that if the user undertaking violates its duty of care on the basis of Article 328 of the Code of Obligations, the employee can file a direct claim

166 Federal Supreme Court of 29 June 1993—BGE 119 V 357 [2.a] and of 23 October 2006—4C.155/2006 [7.3.1]. 167  Portmann and Stöckli (n 68 above) para 953; T Geiser, R Müller and K Pärli, ­Arbeitsrecht in der Schweiz, 4th edn (Stämpfli, Berne, 2019) para 192 et seq. 168  Vischer and Müller (n 23 above) § 31 para 31; Thévenoz (n 137 above) para 402; Looser (n 147 above) para 1235. 169  Bachmann (n 123 above) para 43. 170  Rehbinder and Stöckli (n 140 above) Art 330a para 2; against: Looser (n 147 above) para 382. 171  Portmann and Stöckli (n 68 above) para 954 et seq.

906  Wolfgang Portmann and Rahel Aina Nedi against the user undertaking.172 If the worker causes the user u ­ ndertaking damage, the problem is that the creditor of the work performance (the temporary work agency) and the person suffering damage and seeking compensation (user undertaking) are not identical. It is this mismatch that has given rise to a heated debate about the possible legal basis that allows the user undertaking to lodge a direct claim against the worker.173 Instead of dwelling on these debates, we suggest following the Federal Supreme Court’s approach, which assumes that the employee can be held liable by analogy with the employment contract liability provision of Article 321e of the Code of Obligations, which contains a more favourable liability regime for the employee than any ordinary liability regime.174 As usual, the user undertaking can also make direct claims based on tort law. (iii)  Health and Safety By analogy with Article 328 of the Code of Obligations, in order to safeguard the personal safety, health and integrity of its employees, the user undertaking is required to take all necessary measures based on experience, using the latest technology, and which are appropriate in accordance with the specific circumstances of the workplace or household, provided that such measures may equitably be expected of the user undertaking with reference to each specific employment relationship and the nature of the work. Furthermore, the user undertaking must also comply with the health and safety provisions laid down in public law Acts. The Employment Act and its corresponding Ordinances contain, inter alia, provisions on hygiene and specific provisions on the protection of pregnant women and mothers.175 E. Relationship between Temporary Work Agency and User Undertaking The legal relationship between the temporary work agency and the user undertaking is based on the labour supply contract (Verleihvertrag).176 According to that contract, the temporary work agency pledges to deliver workforce and the user undertaking pledges to pay a fee in exchange. 172  Looser (n 147 above) para 904; Bachmann (n 123 above) 75; Thévenoz (n 137 above) para 903 et seq.; against: Swiss Federal Council AVG (n 129 above) 568. 173  Proponents of the theory that assumes genuine contracts for the benefit of a third party argue that the user undertaking can base its claim on Art 321e of the Code of Obligation, such as Thévenoz (n 137 above) para 1027 et seq. and Looser (n 147 above) para 923 et seq. Others, however, argue that the user undertaking can file a claim with the help of the temporary work agency according to the concept of third party liquidation (‘Drittschadensliquidation’), cf Rehbinder and Stöckli (n 140 above) Art 319 para 57. 174  Federal Supreme Court of 23 October 2006—BGE 4C.155/2006 [7.3.1]. 175 Arts 35 et seq. of the Employment Act; Ordinance No 3 to the Employment Act (­Verordnung 3 zum Arbeitsgesetz, ArGV 3, Gesundheitsschutz) 1993, SR 822.113. 176  Cf Art 22 of the Act on Employment Services; Looser (n 147 above) para 383 et seq.

Atypical Employment Relationships: The Position in Switzerland 907 The contract is not an employment contract. The legal nature of the c­ ontract is uncertain. The Federal Supreme Court has stated that it is a contract sui generis containing elements of an agency contract.177 The contract is also regulated by the Act on Employment Services178 and subject to the ­following rules:179 —— Written form requirement and disclosure of certain elements (such as duration of work); —— Agreements which make it difficult or impossible for the user undertaking to employ the worker at the end of the assignment are void; —— The labour supply contract is void if the temporary work agency has not obtained the mandatory licence; —— The temporary work agency will be held liable if it has failed to diligently choose, instruct and monitor the workers. F. Rights and Status of Temporary Agency Worker Save for some specific provisions in the Act on Employment Services, temporary agency workers, in principle, enjoy the same rights as regular workers. There is no express fair and equal treatment provision in domestic law for temporary agency workers. A general right to equal treatment may be deduced from Article 328 of the Code of Obligations.180 G. Information and Consultation/Representation of Temporary Agency Worker Whether or not temporary agency workers have information and participation rights based on the Participation Act is controversial, and has yet to be decided by the courts. Pursuant to Article 1 of the Participation Act, its scope of application extends to all private businesses that permanently employ workers in Switzerland. Some scholars see an obstacle in the term permanently, as temporary work is generally known for its fluctuation, and they are sceptical about the inclusion of temporary agency workers in the personal scope of application.181 In the authors’ view, the term ‘permanently’

177 

Federal Supreme Court of 12 April 2011—BGE 137 V 114 [4.2.1]. Art 22 of the Act on Employment Services. 179  Portmann and Stöckli (n 68 above) para 957 et seq. 180  See above section III.D(i). 181  M Fritz and C Schuler, Die Mitwirkung im Arbeitsverhältnis: ein Handkommentar für die Praxis zum Mitwirkungsgesetz sowie zu weiteren mitwirkungsrelevanten Gesetzen, 2nd edn (Schulthess, Zurich/Basle/Geneva, 2012) 26; T Geiser, ‘Aktuelle Gesetzgebung, ­Gerichtspraxis und internationaler Kontext’ in B Ehrenzeller et al, Die Mitwirkung in den Betrieben (IRP-HSG, St Gallen, 2009) para 2.11. 178 

908  Wolfgang Portmann and Rahel Aina Nedi should not exclude temporary agency workers from ­participation rights. Indeed, the term permanently does not allude to the duration of each worker’s contract, but denotes that the employer must permanently occupy workers.182 Furthermore, temporary agency work is a precarious form of employment and if these workers, who may work under consecutive temporary contracts, are stripped of participation rights, their situation could deteriorate. H. Strikes The right to strike if certain requirements are met is guaranteed by Article 28(3) of the Swiss Constitution.183 According to case law, the following five conditions have to be met for a strike to be legal:184 First, only subjects with a collective bargaining power may call for a strike, ie employee coalitions. Secondly, the strike must be targeted at an objective that can be regulated in a collective employment agreement. Thirdly, any duty to refrain from a strike (by law, collective agreement or due to an ongoing conciliation procedure) must be respected (Friedenspflicht). Fourthly, the strike has to be proportionate. If possible, all disputes must first be settled through negotiation or mediation. Fifthly and lastly, the strike must not be legally prohibited in relation to certain categories of workers.185 Temporary agency workers do not belong to such an excluded category. Therefore, temporary agency workers are allowed to strike under the same conditions as regular workers. It is worth mentioning that the Collective Agreement on Temporary Agency Work explicitly prohibits the use of temporary agency workers as strike breakers.186 I. Collective Bargaining Agreements Deviating from Statutory Provisions The most relevant collective employment agreement in relation to temporary agency work is the Collective Agreement on Temporary Agency Work.187

182 

Müller (n 96 above) 41. Bundesverfassung der Schweizerischen Eidgenossenschaft (BV) 1999, SR 101. 184  Federal Supreme Court of 28 June 1999—BGE 125 III 277 [3.b]. 185  Art 28(4) of the Swiss Constitution. 186 Art 9(1) of the Collective Agreement on Temporary Agency Work: www.seco.admin. ch/seco/de/home/Arbeit/Personenfreizugigkeit_Arbeitsbeziehungen/Gesamtarbeitsvertraege_­ Normalarbeitsvertraege/Gesamtarbeitsvertraege_Bund/Allgemeinverbindlich_erklaerte_­ Gesamtarbeitsvertraege/Personalverleih.html (accessed on 15 May 2019). 187  See n 186 above. 183 

Atypical Employment Relationships: The Position in Switzerland 909 Its provisions have mostly been declared generally applicable across ­Switzerland.188 The Collective Agreement contains several particularities that deviate from statutory provisions, three of which will be discussed briefly: —— First, pursuant to Article 10(1) of the Collective Agreement on Temporary Agency Work, the first three months of an open-ended employment contract are to be considered a probation period. This three-month period exceeds the statutory default probation period of one month.189 —— Secondly, pursuant to Article 13(1) of the Collective Agreement, temporary agency workers above the age of 50 years are entitled to up to 25 days of annual leave. That provision is more generous than Article 329a(1) of the Code of Obligations, pursuant to which all workers above the age of 20 years are entitled to four weeks (ie 20 days) of annual leave. —— Thirdly and lastly, pursuant to Article 29 of the Collective Agreement, the temporary work agency is required to take out a daily benefits insurance that covers the worker’s wage if s/he is prevented from working due to illness. The Code of Obligations, on the other hand, does not contain such a requirement. Indeed, pursuant to Article 324a of the Code of Obligations, the worker has a right to be paid if s/he is prevented from working due to personal circumstances for which s/he is blameless, such as illness; yet the employer remains free to decide whether to pay the employee’s salary or to take out insurance instead.

188  Cf www.seco.admin.ch/seco/de/home/Arbeit/Personenfreizugigkeit_Arbeitsbeziehungen/ Gesamtarbeitsvertraege_Normalarbeitsvertraege/Gesamtarbeitsvertraege_Bund/Allgemein verbindlich_erklaerte_Gesamtarbeitsvertraege/Personalverleih.html (accessed on 15 May 2019). 189  Art 335b(1) of the Code of Obligations.

910

35 Atypical Employment Relationships: The Position in Turkey KADRIYE BAKIRCI

I. INTRODUCTION

I

N TURKISH EMPLOYMENT law, the parties are free to draw up an employment contract based on their needs, without prejudice to the limitations laid down in legislation (Employment Act—EA)1 (Is Kanunu) Article 9/1). Employment contracts (is sozlesmesi) can be concluded for a fixed-term (definite period) or can be open-ended (indefinite period). These contracts may be concluded on a full-time or part-time basis, for a p ­ robation period or other forms (EA Article 9/2). Fixed-term employment contracts (belirli sureli is sozlesmesi) are ­regulated by the EA, Maritime Employment Act2 (MEA) (Deniz Is Kanunu), Press Employment Act3 (PEA) (Basın Is Kanunu) and the Obligations Act4 (OA) (Borclar Kanunu). Part-time employment contracts (kısmi zamanli is sozleşmesi) are only regulated by the EA and OA. The MEA and PEA do not provide provisions for part-time employment contracts. The highly disputed issue of temporary employment relationships ­established by private employment agencies5 (PrEAs) (ozel istihdam b ­ urolari araciligiyla gecici is iliskisi) was introduced in Turkey on 20 May 2016 by Act No 6715 on Amending the EA and the Turkish Employment Agency Act6 (TEAA) (Is Kanunu ile Turkiye Is Kurumu Kanununda Degisiklik Yapilmasina Dair Kanun).7

1 

Act No 4857, Resmî Gazete (RG), 10 June 2003, No 25134. Act No 854, RG, 29 April 1967, No 12586. 3  Act No 5953, RG, 13 June 1952, No 8140. 4  Act No 6098, RG, 11 January 2011, No 27836. 5  Act No 6715, RG, 20 May 2016, No 29717. 6  Act No 6715, RG, 20 May 2016, No 29717. 7  Act No 4094, RG, 5 July 2003, No 25159; This Act was also amended on 2 July 2018 by Presidential Decree No 703. 2 

912  Kadriye Bakirci In Turkey, intermediation activities by the private sector to help employees find jobs were introduced in 2003 by the EA (Article 90) and TEAA (Articles 2, 17–20). However, the intermediation activities by the private sector to establish temporary employment relationships could not be added to these Acts due to strong resistance by the labour unions. The failure to regulate the creation of temporary employment relationships by PrEAs has been a matter of controversy, criticised both by the government and employers’ associations as a factor inhibiting further flexibility in the Turkish labour market. In an attempt to legalise temporary employment relationships by PrEAs, a draft Bill (No 5920 of 26 June 2009) annexed Article 7A to the EA in accordance with the guidelines of the European Union’s Directive 2008/104/ EC on temporary agency work.8 Active lobbying by labour unions resulted in the President vetoing Article 7A on a number of grounds, including the absence of provision for equal treatment.9 Subsequent drafts revived Article 7A, but they were also rejected in the final legislative process, again mainly for political reasons. Labour unions call temporary work ‘slave labour’ and claim that temporary employees are doomed—they are paid less and work in substandard jobs with no employment protection. In addition to the difficulties encountered in organising temporary employees, unions believe that this category of work clearly violates the constitutional principle (Article 55) of the state’s duty to provide a ‘just wage’ for working people.10 Although similar previous legislative efforts remained inconclusive in the past, the latest Bill Amending the EA and TEAA, which governs the role of PrEAs in establishing temporary employment relationships, prepared by the Ministry of Employment and Social Security,11 was accepted by ­Parliament and approved by the Presidency. It is assumed that Act No 6715 has been prepared as part of the EU harmonisation process and seeks to fill the ­current legal loophole.12

8 

[2008] OJ L327/9, 5 December 2008. See http://bianet.org/biamag/siyaset/115760-gul-kiralik-isci-duzenlemesini-veto-etti (23 April 2016). 10 See https://disk.org.tr/2016/10/yonetmelik-belirsizlikleri-gidermiyor-kiralik-iscilik-anaya saya-aykiridir/; http://disk.org.tr/wp-content/uploads/2016/07/6715-AYM-DISK-RAPOR-1-Tem muz-2016-SON.pdf; http://www.tekgida.org.tr/Oku/11674/Akp-Kole-Pazarini-Yasalastiriyor (23 April 2016). 11  The name of the Ministry was changed to the Ministry of Family, Employment and Social Services in 2018. 12  For the preamble of the Draft Act No 6715 see: www2.tbmm.gov.tr/d26/1/1-0597.pdf (23 April 2016). 9 

Atypical Employment Relationships: The Position in Turkey 913 II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements A fixed-term employment contract should be concluded between the employer and the employee in writing. The contract has a specified term and is based on the emergence of objective conditions such as the completion of specific tasks or the achievement of a certain purpose. An employment contract of indefinite duration is deemed to have been concluded where the employment relationship is not based on a fixed-term (EA ­Article 11/1).13 There is no definition of the fixed-term employment contract in MEA, PEA or OA. The employment contract is not subject to any special form unless the contrary is stipulated by the Act (EA Article 8/1; OA Article 394). The written form has been prescribed by the EA for certain fixed-term contracts. Article 8/2 provides that ‘Written form is required for employment contracts with a fixed duration of one year or more’. According to the rulings of the Court of Cassation (Yargitay), the written form is a condition of proof rather than a condition of validity.14 According to the EA, in cases where no written contract has been concluded, the employer is under the obligation to provide the employee with a written document within two months at the latest after commencement of work, specifying the general and special conditions of work, the daily or weekly working time, the basic wage and any wage supplements, the time intervals for remuneration, the duration if it is a fixed-term contract, and the conditions for the termination of the contract. This does not apply in case of fixed-term contracts with a duration of one month or less. If the employment contract has expired before the lapse of two months, this information must be communicated to the employee in writing on the expiration date at the latest (Article 8/3). Any employer or employer representative who fails to provide the employee with the document set forth in the last paragraph of Article 8 shall be liable to a fine of TL 150 for each such employee (EA Article 99). There is no specific requirement regarding the form of employment ­contracts subject to the OA (Article 394). It suffices therefore if the parties agree on a contract orally.

13 See Court of Cassation, 9th Division, 9739/30251 (16 November 2006); Court of ­ assation, 9th Division, 2006/32500, 2007/3291 (13 February 2007); Court of Cassation, C 9th Division, 2008/41105, 2010/29201 (15 October 2010). 14  See Court of Cassation, 9th Division, 2971/2567 (28 September 1985); Court of C ­ assation, General Council Decision, 1986/9-555, 1986/251 (19 March 1986); Court of C ­ assation, 9th Division, 2001/1338, 2001/1978 (8 February 2001).

914  Kadriye Bakirci However, all employment contracts subject to the MEA and PEA are required to be in writing in order to be valid.15,16 B.  Lawful Stipulation of the Contractual Terms A fixed-term employment contract should be concluded between the employer and the employee in writing, with a specified term and based on specific requirements such as the completion of certain tasks or the occurrence of a certain event (EA Article 11/1).17 Article 11/1 EA uses the phrase ‘for work of a specified term’. Such contracts must be based on the existence of an objective reason (objektif neden), even at the outset of the fixed-term contract. There is no provision related to this subject in the MEA or PEA. In Turkish law, the prevention of abuse was regulated with regard to chain (consecutive) contracts (zincirleme is sozlesmeleri). According to the EA, an employment contract for a fixed-term may not be concluded more than once, except when there is an essential reason (esasli neden) which may necessitate repeated (chain) contracts. Otherwise, the employment contract is deemed to have been concluded for an indefinite period from the very beginning (EA Article 11/2). This means that the first renewal will convert the contract into an open-ended one.18,19 Chain contracts based on essential reasons shall maintain their status as contracts concluded for a definite (fixed) period (EA Article 11/3). Even before the enactment of the present EA of 2003, the Court of ­Cassation, with a view to protecting the employee and preventing abuse of the freedom of contract, treated the renewal of a fixed-term contract as a contract that had been concluded for an indefinite duration.20 As can be inferred from the wording of EA Article 11/1 prevention of abuse is regulated not only with regard to chain fixed-term employment contracts, but also when such a contract is used for the first time. On the other hand, the prevention of abuse in the OA is only regulated with regard to successive fixed-term employment contracts. OA Article 430/2 provides

15 

MEA Art 5. PEA Art 4. 17  See Court of Cassation, 9th Division, 2008/27838, 2009/11183 (20 April 2009); Court of Cassation, 9th Division, 2007/24530, 2008/171 18 (18 February 2008). 18 See Court of Cassation, 9th Division, 12 November 1966/9141; Court of Cassation General Council, 38/400 (20 April 1977); Court of Cassation 9th Division, 2004/30318, 2005/22079 (20 June 2005); Court of Cassation, 9th Division, 2006/20114, 2007/6285 (12 March 2007); Court of Cassation 9th Division, 2008/ 41849, 2010/23376 (13 July 2010). 19  See Court of Cassation, 9th Division, 2007/24530, 2008/171 (18 February 2008). 20 See Court of Cassation, 9th Division, 5745/8434 (7 May 1998); Court of Cassation, 9th Division, 9537/14061 (21 September 1999). 16 

Atypical Employment Relationships: The Position in Turkey 915 that in case of existence of an essential reason (esasli neden), fixed-term employment contracts may be concluded consecutively. A fixed-term employment relationship that is tacitly extended beyond the agreed duration is deemed to be an open-ended employment relationship (OA Article 430/2). The ending of a fixed-term contract may be predicated on the serving of a notice despite the presence of a clearly stated expiration date. If it has been decided that the fixed-term employment contract will terminate upon notification, but neither party issues a notification for termination, the contract transforms into a contract of indefinite duration (OA Article 430/5). There is no specific regulation on legal proceedings if a fixed-term employment contract was concluded illegally. The compulsory mediator (­zorunlu arabulucu) or the labour court (is mahkemesi) are competent for resolving disputes21 that arise from the application of the provisions of the EA (Labour Courts Act) (Is Mahkemeleri Kanunu) Article 1).22 C.  Termination/End of Fixed-Term Contracts Fixed-term contracts end with the expiration of the specified period or on the specific date indicated. A fixed-term employment relationship ends without notice unless otherwise agreed (OA Article 430/1). The duration of a fixed-term contract may be linked to the occurrence of certain event(s) or the completion of certain tasks. The duration of a fixed-term contract can also be inferred from the purpose of the activity or activities (EA Article 11/1). A valid employment contract may be terminated by the parties’ mutual consent. If the employer and employee agree, they may terminate the employment contract signed for a fixed-term, prior to its expiration date.23 The duration of a fixed-term employment contract may not exceed 10 years. After 10 years, any employment relationship contracted for a

21  Mandatory mediation is not applicable to claims involving pecuniary and non-pecuniary damages that arise from occupational accidents and illnesses (Labour Courts Act Article 3/3). 22  RG, 25 October 2017, No 30221; Parties to a labour dispute, arising from individual employment contracts or collective agreements, seeking labour receivables, indemnities or a reinstatement are obliged to submit their cases to a mediator prior to filing a lawsuit before the labour courts. Parties can only resort to judicial process if they fail to reach an agreement at the mediation phase. If the parties so agree, the invalid dismissal dispute may also be referred to private arbitration within the same period instead of a labour court (Labour Courts Act, Article 1). 23 See Court of Cassation, 14th Division, 1978/4942, 1978/5703 (13 December1978); Court of Cassation, 9th Division, 2007/13961, 2007/27954 (24 September 2007); Court of Cassation, 9th Division, 2007/3750, 2007/4266 (19 February 2007); Court of Cassation, 9th Division, 2008/36073, 2008/26715 (13 October 2008); Court of Cassation, 9th Division, 2008/21580, 2009/6150 (9 March 2009).

916  Kadriye Bakirci longer duration may be terminated by either party by giving six months’ advance notice with no obligation to pay compensation (OA Article 430/5). Both the employer and employee may terminate the employment ­relationship with immediate effect at any time for just cause (hakli neden), irrespective of whether the employment contract has been concluded for an indefinite or a fixed term. Just cause is any circumstance which renders the continuation of the employment relationship in good faith impossible for the party giving notice (OA Articles 435/1 and 436; EA Articles 24 and 25). If the employer terminates a fixed-term contract with immediate effect before its expiration date without just cause, the employee is entitled to damages in the amount that s/he would have earned had the employment relationship ended after the required notice period or on expiry of its agreed duration. Such damages are reduced by any amounts the employee saved as a result of the termination of the employment relationship or that s/he earned by performing other work or would have earned had s/he not intentionally forgone such work. The court may order the employer to pay the employee compensation determined at the court’s discretion, taking due account of all circumstances; however, compensation may not exceed the equivalent of six months’ salary (OA Article 438). D.  Rights and Status of Fixed-Term Worker24 (i)  Equal Treatment The constitutional basis of equal treatment is found in the Turkish ­Constitution (Anayasa) Article 10. Article 5 of the EA has incorporated this constitutional principle into employment law as a general ­non-discrimination clause. Article 5 further delineates the principle of non-discrimination by adding that unless there are essential reasons for differential treatment, the employer may not discriminate between an employee working under a fixed-term employment contract and one working under an open-ended employment contract (Article 5/2). If the employer violates the above provisions in the execution or termination of the employment relationship, the employee may demand compensation up to four months’ wages, plus other benefits of which s/he has been deprived (Article 5/5). The burden of proof as regards the violation of the above-stated provisions by the employer rests on the employee (Article 5/6). However, if the employee can substantiate the

24 Under Turkish Law, the term ‘workers’ covers civil servants; public officials working under an administrative law employment contract; employees working under a private law employment contract; and independent contractors (see K Bakirci, ‘The Concept of Employee: The Position in Turkey’ in B Waas and GH van Voss (eds), Restatement of Labour Law in Europe. Vol I: The Concept of Employee, 1st edn (Hart Publishing, 2017) 721–47).

Atypical Employment Relationships: The Position in Turkey 917 likelihood of such a violation having occurred, the burden of proof that the alleged violation did not take place shall rest on the employer (Article 5/7). Parallel to the relevant provisions of Article 5 on the principle of non-­ discrimination, Article 12 deals with the limitations on the distinction between fixed-term and open-ended employment contracts. It states that an employee working under a fixed-term employment contract shall not be subjected to differential treatment in relation to a comparable employee working under an employment contract for an indefinite duration (Article 12/1). Wages and other monetary benefits to be given to an employee working under a fixed-term contract shall be paid in proportion to the length of time the employee has worked. In cases where seniority (length of service) in the same establishment or the same enterprise is treated as the criterion for certain benefits, the seniority criterion applicable for comparable employees working under a contract of indefinite duration must also be applied to fixed-term employees in order to take advantage of the employment benefit, unless there is a reason justifying the application of a different seniority criterion for a fixed-term employee (Article 12/2). The comparable employee (emsal isci) is an employee who is employed under a contract of indefinite duration in the same or a similar job in the establishment. If there is no such employee in the establishment, then an employee with a contract of indefinite duration performing the same or a similar job in a comparable establishment will be deemed to be a comparable employee (Article 12/3). There are no anti-discrimination provisions in the MEA, PEA or OA. (ii)  Employment Opportunities Under Turkish law, the employer is not under any obligation to provide employment opportunities (to inform his/her employees of available permanent job vacancies) in the given establishment or to provide vocational training to fixed-term employees. (iii)  Other Matters On the other hand, in order to secure a permanent position for fixed-term employees, the EA provides that where employees have been employed more than once on a continuous fixed-term contract, they are entitled to be considered permanent employees, unless the employer can prove an essential reason for their continued fixed-term status.25 Fixed-term employees also enjoy a range of other statutory rights in the workplace such as the right to work in a safe and healthy working

25 

See above, section II.B Lawful Stipulation of the Contractual Terms.

918  Kadriye Bakirci environment, to be paid at least the national minimum wage, to not be exposed to unfair deductions from their pay, the right to paid holidays, to not be victimised for seeking to enforce their statutory rights, and the right to a written document of the main terms and conditions of employment, including pay, working hours, job description, and details on grievance procedures, etc. E.  Information and Consultation Under Turkish employment law, employers are not under a general o ­ bligation to inform and consult employees about issues at work, and EU law26 in this regard has not been transposed into Turkey’s national law. Although Article 8 of the EA requires employers to inform employees about the conditions applicable to the employment contract or relationship, Article 22 stipulates that the employer must inform the employee and obtain his/her approval before changing the working conditions, and Article 30 obliges an employer who is contemplating collective dismissal to provide union shop stewards with written information at least 30 days prior about the intended lay-off. This practice is not effective enough because it requires the employer to inform the employees but not to consult with them. F.  Specific Provisions In Turkish employment law, the Act on Private Educational E ­ stablishments (Ozel Ogretim Kurumlari Kanunu)27 contains specific regulations on ­fixed-term contracts concluded with school teachers at private schools. The duration of teachers’ contracts is a maximum of one year. Recurrent fixedterm contracts of private school teachers are treated as separate contracts. Teachers are not entitled to notice pay (ihbar tazminatı) or severance pay (kidem tazminati) upon expiration of their contracts.28 However in recent cases, the Court of Cassation has ruled that if the employer terminates the employment contract of a teacher, who has been continuously employed on annual fixed-term contracts before the expiration date of the current contract, the teacher is entitled to claim reinstatement for the remaining

26 

[1991] OJ L288, 18 October 1991. Act No 5580, RG, 14 February 2007, No 26434. 28 See Court of Cassation, General Council Decision, 9-335/448 (1 July 1992); Court of Cassation, 9th Division, 1992/ 13027, 1993/7332 (29 April 1993); Court of Cassation, 9th Division, 14771/18626 (27 December 1994); Court of Cassation, 9th Division, 2291/6305 (26 April 2000). 27 

Atypical Employment Relationships: The Position in Turkey 919 period.29 The Court provided limited protection for this group by analogy with dismissal protection criteria of EA Articles 18–21.30 G.  Collective Bargaining Agreements Deviating from Statutory Provisions Collective bargaining agreements provide an alternative scheme for preventing abuse of fixed-term contracts. Under Turkish law, deviations from the statutory provisions on successive fixed-term contracts are possible if more favourable provisions are agreed in collective agreements. However, the point that should be emphasised is the scarcity of undertakings that have signed a collective agreement: a result of the low rate of unionisation in Turkey.31 III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements EA Article 13 provides that the employment contract shall be considered a part-time contract where the normal weekly working time of the employee is considerably shorter in relation to a comparable full-time employee. The By-Law on Working Time (Calisma Sureleri Yonetmeligi)32 uses the threshold of up to two-thirds of comparable full-time work as a basis to determine which employees work part time (Article 6). According to the OA, contracts whereby the employee is required to regularly perform part-time work are likewise considered to be employment contracts (OA Article 393). Under the EA, all part-time contracts that require either regular or irregular work are considered employment contracts. The OA requires part-time work to be performed regularly in order for the contract to be considered an employment contract within the scope of the Act. The same principles of the EA (Article 8/1) and the OA (Article 394) regarding the form of employment contracts apply to part-time contracts as well. Since these principles are mentioned above in relation to fixed-term contracts, they are not repeated here.33

29  See Court of Cassation 9th Division, 9148/19325, 9148/19325 (27 May 2015); Court of Cassation 7th Division, 2014/22023, 2015/4628 (16 March 2015). 30  See below, section III.D.(ii). Dismissal Protection. 31  See Demet Sahende Dinler, Trade Unions in Turkey (Friedrich Ebert Stiftung, December 2012): http://library.fes.de/pdf-files/id-moe/09536-20121221.pdf (23 April 2016). 32  RG, 6 April 2004, No 25425. 33  See above, section II.A. Legal Definitions/Formal Requirements.

920  Kadriye Bakirci B.  Opportunities for/Right to Part-Time Work Under the EA, all employees have the right to transfer from part-time to ­full-time positions or vice versa. EA Article 13 provides that If there are vacant positions that correspond to the qualifications of employees working in the establishment, the employees’ requests to transfer to full-time from part-time work or vice versa shall be taken into consideration; vacancies shall be announced without delay.

Apart from this general rule, the newly enacted Act No 6663 on A ­ mending Income Tax Act and Some Other Acts of 10 February 201634 (Gelir ­Vergisi Kanunu ile Bazi Kanunlarda Degisiklik Yapilmasina Dair Kanun) ­introduces amendments to the EA, including some special legal measures facilitating the reconciliation of work, and private and family life. The new legal measures include part-time work as an option for women or parents who adopt a child, and part-time work as an option for female employees and/or their husband until the child starts school. A female employee may opt to work part time (half of statutory working time, which is 45 hours per week) f­ollowing the end of paid maternity leave. This will amount to 60 days for the first child, 120 days for the second child, and 180 days for the third child. The duration of eligible part-time work will be longer in case of multiple births (ie the specified periods plus 30 days) or if the child is ­disabled (360 days) (EA Article 74). The periods are the same for male or female parents who adopt a child under the age of three years (EA Article 74). If a female employee opts for a time reduction of 50 per cent, she will receive half of her regular wage from her employer. For the remaining period, she will be paid from the Unemployment Fund (Issizlik Sigortasi). The daily amount of this payment (allowance) will be the daily gross minimum wage (Unemployment Insurance Act35 (Issizlik Sigortasi Kanunu) Article 53/B(g); Additional Article). The measures in Article 74 (on part-time work as an option for women) violate the principle of equal rights between men and women, and the principle of equal sharing of family responsibilities which are guaranteed by the Turkish Constitution (Articles 10, 41), international conventions adopted by Turkey and the EU Directive 2010/18 on Parental Leave.36 The fact that only female employees37 can opt to work part time following the

34 

Act No 6663, RG, 10 February 2016, No 29620. Act No 4447, RG, 8 August 1999, No 23810. 36  [2010] OJ L68/13, 18 March 2010. 37 The Turkish Constitution states that where a conflict between ratified international ­treaties (ie ‘COE, ILO, and UN conventions’) and domestic law exists, international treaties shall prevail (Art 90). 35 

Atypical Employment Relationships: The Position in Turkey 921 end of their paid maternity leave (Article 74) results in fewer females being employed. Hence, job opportunities for women are reduced, and discriminatory practices are entrenched. This regulation is a reflection of the attitude that it is the woman who should take care of the children. To reconcile family and work responsibilities, to increase the number of women in employment, and to prevent discrimination between male and female employees, part-time work should be introduced as an option for both women and men, ­paternal leave should be provided for fathers of newly born children, and parental leave should be available for both the father and the mother without the loss of either their job or any related rights provided for in social protection or employment regulations. The provisions of Article 74 of the EA apply to all employees working under an employment contract, regardless of whether it lies within the scope of the EA or not (EA Article 74). These measures may work well in large private enterprises, but there are doubts as to whether these rules are equally applicable in small enterprises. In smaller enterprises, face-to-face relationships are important and employers may favour employment of male employees, and may view (young) female employees as ‘problematic’.38 After the leave periods set forth in Article 74 of the EA, one of the parents has the option of working part-time until the first day of the month after the child has reached compulsory schooling age. The employer must grant employees this right, and this cannot constitute a valid reason (gecerli neden) for terminating the employment contract. An employee who started working part time within the scope of this paragraph may return to working full time on condition that they cannot transfer back to working part time again for the same child. If the part-time employee returns to full-time work, the employment contract of the employee who replaced him/her during this period will be automatically terminated. An employee who wants to claim this right or wants to transfer back to full-time work shall notify the employer in writing at least one month in advance. If one of the parents is not working, the employed partner cannot claim part-time work. Persons who adopt a child under the age of three years on their own or together with a partner shall benefit from the right to work part time, starting from the date the child is handed over to them (EA Article 13).39 Although these measures, which are inherent in Act No 6663, are aimed at achieving work-life balance, the main objective is to increase the birth rate,

38 

See http://tisk.org.tr/tisk-isgucu-piyasasi-haber-bulteni-ocak-2016-sayi-35/ (23 April 2016). fields and work activities in which part-time work is permissible; the application procedures and principles are determined in the By-Law on Working Time. 39 The

922  Kadriye Bakirci since demographic ageing is accelerating in Turkey and placing a­ dditional strain on the welfare system.40 C.  Opportunities for/Right to an Extension of Working Time Under Turkish employment law, part-time employees do not have any ­statutory right to request an extension of their working time. Among the multiple ways of extending working hours, raising the ­maximum working time authorised by law is one of the most frequently chosen options. Without having to extend legal working hours, overtime is another way for employers to require their employees to work longer hours. Under the EA, these measures are, however, provided for full-time ­employees (Articles 63 and 41). D.  Rights and Status of Part-Time Worker41 (i)  Equal Treatment Article 5 of the EA, which includes a general non-discrimination clause, provides that unless there are essential reasons for differential treatment the employer may not discriminate between a full-time and a part-time employee (Article 5/2). If the employer violates the above provisions in the execution or termination of the employment relationship, the employee may demand compensation up to four months’42 wages, plus other rights s/he has been deprived of (Article 5/5). The burden of proof as regards the violation of the above-stated provisions by the employer rests on the employee (Article 5/6). However, if the employee substantiates the likelihood of such a violation having occurred, the burden of proof that the alleged violation has not taken place shall rest on the employer (Article 5/7). Article 13 covers part-time and full-time employment contracts. It states that an employee working under a part-time employment contract may not be subjected to differential treatment in comparison with a comparable full-time employee solely because his/her contract is part time, unless there is justifiable cause for differential treatment. The divisible benefits to be accorded to a part-time employee in relation to wages and other monetary

40  According to the Turkish Statistical Institute, ‘If the current trends of demographic indicators persist, the population of Turkey will continue ageing. The elderly population, which is the population aged 65 years and up, was 5.7 million in 2012 with a share of 7.5%, and this population will reach 8.6 million people with a share of 10.2% in 2023’. See: www.turkstat. gov.tr/PreHaberBultenleri.do?id=15844 (23 April 2016). 41  See n 24 above. 42  See above, section II.D.(i). Principle of Equality.

Atypical Employment Relationships: The Position in Turkey 923 benefits must be paid in accordance with the length of his/her working hours proportionate to a comparable employee working full time (Article 13/2). The comparable employee is an employee who is employed full-time in the same or a similar job in the establishment. In the event that no such employee exists in the establishment, an employee with a full-time contract performing the same or a similar job in a corresponding establishment that falls within the same branch of activity will be considered a comparable employee (Article 13/3). This means that a part-time employee must have access to all fringe benefits (eg bonuses, premiums, child allowances, heating allowances, holiday pay) that are granted to full-time employees, but only in terms of divisible amounts that may be paid in proportion to the length of his/her working hours, unless there is an agreement to the contrary.43 There are no anti-discrimination provisions in MEA, PEA or OA. (ii)  Dismissal Protection Self-evidently, part-time employment contracts may be concluded for a fixed or an indefinite term.44 EA Article 17 allows employers (and employees) to terminate employment contracts of indefinite duration if they comply with the terms of notice. Different terms apply depending on the employee’s length of service: a) for an employee who has worked less than six months, two weeks after informing the other party; b) for an employee who has worked between six months to one and a half years, four weeks after informing the other party; c) for an employee who has worked between one and a half years to three years, six weeks after informing the other party; d) for an employee who has worked more than three years, eight weeks after informing the other party; e) the employment contract shall be considered to be terminated.

The EA provides different forms of protection against termination of employment contracts by reference to terms of notice, which depend on the number of employees in the establishment, their seniority and position. These stipulations apply to the provisions on abusive (kotuniyetli fesih), invalid (gecersiz fesih) and discriminatory dismissals (ayrimci fesih). ­However, these provisions have not been drafted carefully. Although the factors that cause abusive or direct discriminatory dismissals overlap, the consequences differ, such as the amount of compensation and the burden of proof applicable to the victims of abusive or direct discriminatory dismissals. Additionally, they cause discrimination between female employees who are protected by the EA. 43 See Court of Cassation, 9th Division, 9961/27728 (13 December 2004); Court of ­Cassation, 9th Division, 44744/33940 (8 December 2009). 44  See Court of Cassation, 9th Division, 2006/5115, 2006/14969 (22 May 2006).

924  Kadriye Bakirci The EA allows for termination if a term of notice is complied with, without the need to give reasons for the dismissal, for employees with a contract of indefinite duration in an establishment with fewer than 30 ­ employees (Article 18). No reasons need to be given to employees for terminations in an establishment with 30 or more employees if they do not have minimum service of six months (Article 18). No reasons for termination need to be given to employees who are the employer’s representatives (ie managers) or his/her assistants (ie vice managers) authorised to manage the entire enterprise, nor to the employer’s representatives managing the entire workplace, but who are also authorised to recruit and terminate employees (Article 18). Although Article 17 of the EA gives the employer the right to terminate employment contracts of indefinite duration upon observing the term of notice, without providing any reason, this right to terminate cannot be exercised in violation of the principles of good faith (Article 17). In other words, this right cannot be exercised, for example, in a way that violates the principle of non-discrimination between part-time and full-time e­ mployees. Where there is a possibility of termination without cause, the termination of part-time employees with intent to discriminate due to their part-time contracts is an abusive dismissal. Although the termination of employment ­contracts in compliance with a term of notice is valid, the employer is still liable to pay compensation amounting to three times the wages for the term of notice, if the employer has acted maliciously (Article 17). Both part-time and full-time employees who are dismissed by valid notice cannot claim reinstatement and therefore do not benefit from job security. On the other hand, according to the EA, the employer must have a valid reason for such a termination; a reason that is connected to the capacity or conduct of the employee or is based on the operational requirements of the establishment or service (Article 18). This applies where the employer terminates the contract of an employee who is engaged for an indefinite period, and who is employed in an establishment with 30 or more employees, and where that employee has a minimum of six months’ service (Article 18).45 In the same article, the cases that do not constitute valid reasons for termination are also stipulated. According to Article 18/3(d), ‘sex, marital status, family responsibilities, pregnancy … and the like’ do not constitute valid reasons for termination; Article 18/3(e) stipulates that ‘absence from work during maternity leave when female employees must not be engaged in work, as foreseen in Article 74’ is not a valid reason for termination. 45 Employees who are the employer’s representatives (ie managers) or his/her assistants (ie vice managers) authorised to manage the entire enterprise, or the employer’s representatives managing the entire workplace, but who are also authorised to recruit and terminate ­employees are not within the scope of the Article 18.

Atypical Employment Relationships: The Position in Turkey 925 According to Article 21 of the EA, if the mandatory mediator or the labour court concludes that the termination is invalid because no reason has been given or the alleged reason is invalid, the employer must reinstate the employee in work within one month. However, if upon the application of the employee, the employer does not reinstate him/ her in work, compensation of not less than four months’ wages and not more than eight months’ wages is to be paid to him/her by the employer (Article 21/1). The employee must be paid up to a total of four months’ wages and other entitlements for the time during which s/he is not ­reinstated in work until the issuing of the court’s verdict (Article 21/3). The part-time employees in this group are therefore provided with partial job security (Articles 20, 21). Although the factors that cause direct discriminatory or abusive dismissal are the same, employees employed in an establishment with fewer than 30 employees or those who are employed in an establishment with 30 or more employees but who do not have a minimum of six months’ service have the choice to lodge an appeal in accordance with either the provision on abusive dismissal (Article 17/6) or the provision on discriminatory dismissal (Article 5). The same rule applies to the managers and vice-managers mentioned above. On the other hand, an employee (other than a manager or a vice-manager mentioned above) who is employed in an establishment with 30 or more employees and who has a minimum of six months’ service can lodge an appeal in accordance with either the provision on invalid dismissal (Article 18) or the provision on discriminatory dismissal (Article 5). As a result of these provisions, which cover discriminatory behaviour, employees with an employment contract of indefinite duration may enjoy different levels of protection when lodging an appeal based on either discriminatory or abusive dismissal. For example, the compensation amounting to four months’ wages may be due when employees lodge an appeal based on discriminatory dismissal (Article 5). When they base their appeals on abusive dismissal, they may receive compensation amounting to three times their wages of six or eight weeks, depending on their length of service (Article 17). This results in higher compensation. However, the disadvantage of filing a suit based on abusive dismissal is that the burden of proof rests on the employee. By contrast, the burden of proof on the employee is lighter in claims of discriminatory dismissal. On the other hand, employees who are also within the scope of Articles 18, 19, 20 and 21 of the EA can claim nullity of the dismissal and reinstatement. (iii)  Other Matters There is no provision in Turkey requiring employers to facilitate access by part-time employees to vocational training to enhance career opportunities and occupational mobility.

926  Kadriye Bakirci E.  Information and Consultation Council Directive 97/81/EC on part-time work46 requires employers to undertake efforts to provide timely information on part-time and full-time vacancies available in the establishment and to inform existing employee representatives accordingly. The Turkish legislator has implemented these requirements in legal obligations for the employer in relation to informing employees. Under the EA, the part-time employee is entitled to be informed by his/her employer about available vacancies in the establishment without delay (EA Article 13).47 F.  Other Part-Time Arrangements Under Turkish employment law, the only other part-time arrangement is on-call work (cagri uzerine calisma). On-call work, not unknown in past Turkish practices and referred to as a special form of part-time employment in the various decisions of the Court of Cassation, is now regulated as one of the flexible working arrangements by the EA which has bolstered it with certain protective measures (EA Article 14).48,49 Article 14 provides that an employment relationship which envisages the performance of work by the employee if a need for his/her services arises as agreed in the written employment contract, qualifies as a part-time employment relationship based on on-call work. In the event that the length of the employee’s working time has not been determined by the parties in terms of time segments such as a week, month or year, the weekly working time is considered to have been fixed at 20 hours. The employee is entitled to wages, irrespective of whether or not s/he is engaged in work during the time announced for work on call (Article 14). Unless the contrary has been decided, the employer who has the right to request the employee to perform work upon being called must make the said call at least four days in advance. The employee is obliged to perform work upon the call made to him/her within the said time-limit. If the daily working time has not been decided in the contract, the employer must engage the employee in work for a minimum of four consecutive hours at each call (Article 14). 46 

[1998] OJ L14/9, 20 January 1998. See above, section III.B. Opportunities for/Right to Part-Time Work. 48  See, eg, Court of Cassation, 9th Division, 1991/13049, 1992/1301 (13 February 1992); Court of Cassation, 9th Division, 13458/33266 (1 November 1995); Court of Cassation, 9th Division, 9346/10981 (29 June 1998); Court of Cassation, 9th Division, 1039/6436 (17 April 2001). 49  See Court of Cassation, 9th Division, 5115/14969 (22 May 2006). 47 

Atypical Employment Relationships: The Position in Turkey 927 The notion of working time and wage flexibility is implicit in this article, construed to mean the possibility of the parties agreeing to a period longer or shorter in individual or collective agreements. Since on-call work is a special form of part-time employment, the ­provisions of the EA for part-time contracts apply to matters not regulated in EA Article 14.50 G.  Collective Bargaining Agreements Deviating from Statutory Provisions Under Turkish law, deviations from the provisions on part-time contracts are possible if more favourable provisions are agreed in collective agreements. However, since Article 14 on on-call work does not require 20 hours weekly working time and four hours daily working time to be regarded as an absolutely binding minimum, the parties may agree on shorter working hours in collective agreements. IV.  TEMPORARY AGENCY WORK

A.  Legal Definitions/Formal Requirements Temporary employment relationships (gecici is iliskisi) by the PrEAs are regulated in the amended Article 7 of the EA, amended Articles 17–20 of the TEAA51 and the By-Law on the Private Employment Agencies.52 Act No 6715 amends the EA and the TEAA and grants the PrEAs the authority to establish temporary employment relationships. In accordance with the amended Article 7 of the EA, temporary employment relationships can be established by the PrEAs or within the structure of the same holding company or the same group of companies.53 The By-Law on the PrEAs defines PrEA as any legal or natural person which provides services for matching offers of and applications for employment; and/or services for employing employees with a view to making them available to a third party (Article 3(j)). A temporary employment relationship is established by the PrEA when a temporary employee procurement contract (gecici isci saglama sozlesmesi) is concluded between the PrEA and the third party (‘user employer’) for the PrEA to assign its employees to the user employer (gecici isci calistiran

50 

See Court of Cassation, 9th Division, 2010/26762, 2011/6747 (14 March 2011). See above section I. Introduction. 52  RG, 11 October 2016, No 29854. 53  See above, section I. Introduction. 51 

928  Kadriye Bakirci isveren) on a professional basis. The PrEAs that can establish temporary employment relationships are those authorised by the Turkish Employment Authority (TEA) (Turkiye Is Kurumu) (EA Article 7; By-Law on the PrEAs Article 3(k)). According to this ‘triangular’ arrangement, the PrEA employs the temporary employee (gecici isci) who is hired out to perform work at (and under the supervision of) the user undertaking. Temporary employment relationships can be established by PrEAs under the following circumstances (EA Article 7): a) [to replace employees:] during maternity leave, [exercising] the right to work part-time during parental leave, during military service, and during a period of suspension in a continuing employment contract of employees who cannot perform their work for the employer due to any other reasons,54 b) in seasonal agricultural work, c) in domestic work, d) in short-term work that is deemed to be outside an establishment’s everyday main work activities, performed for a short time and with intervals, e) in emergency work to comply with occupational health and safety requirements or in case of force majeure that adversely affects production, f) in case of an unforeseen increase in the work load of an establishment, g) during temporary increases in workload other than seasonal agricultural work. There are four sets of principle restrictions on temporary employment relationships under Turkish legislation. Temporary employment relationships have been banned in public institutions and organisations, mining work places, user work places where a strike or lock-out is taking place, and in jobs affected by collective dismissal within a period of eight months following the collective dismissal (EA Article 7). Also, there are limits on the maximum duration and number of renewals. Temporary employee procurement contracts concluded between the PrEA and the employer shall remain valid (EA Article 7) throughout the duration of the circumstances stated in paragraph (a) above; for an indefinite term in the circumstances stated in paragraph (b) above; for a term of up to four months in the circumstances stated in paragraph (c) above. Temporary employee procurement contracts may only be renewed twice, for periods that shall not exceed eight months in total, excluding in the case of significant increases of workloads other than seasonal agricultural work (EA Article 7). 54 

See above, section III.B. Opportunities for/Right to Part-Time Work.

Atypical Employment Relationships: The Position in Turkey 929 At the end of the determined periods, the temporary employee cannot be employed for the same work unless six months have passed (EA Article 7). User employers of temporary employees cannot employ their own employees whose contracts have terminated, as temporary employees, unless six months have elapsed since the termination of their employment contract (EA Article 7). Moreover, there are limits on the number of temporary employees in the EA. In case of unforeseen increases in the workload of an establishment, the number of temporary employees may not exceed ¼ of the total employees at the user undertaking. However, if the number of employees in the user undertaking is 10 or fewer, up to five temporary employees can be employed. The number of employees employed under contracts of indefinite duration and fixed-term employment contracts is used as a basis for calculating the total number of employees to be employed in this category. Those employed on part-time employment contracts count as full-time employees in terms of calculation of work periods (EA Article 7). B.  Registrations, Licensing, Financial Guarantees etc PrEAs need to be authorised to provide services in the Turkish labour market. Article 17 of the TEAA and Articles 12 and 13 of the By-Law on the PrEAs require temporary work agencies to be authorised by the TEA, which determines whether the authorisation requirements and the qualifications of the applicant agency, such as reliability, suitability for operating in job placement, and financial capability, are met. Article 17 of the TEAA and Articles 12 and 13 of the By-Law on the PrEAs provide that persons who are to be authorised to make deals, represent and mediate in the name of real and legal persons, should, at minimum, be graduates of universities, may not have been declared bankrupt or be in liquidation, not have been convicted of crimes against security of the state, against constitutional law or its execution, acts of embezzlement, corruption, bribery, theft, fraud, swindling, abuse of trust, fraudulent declaration of bankruptcy, frauds in tenders, fraudulent acts in the execution of deeds, human trafficking, money laundering or smuggling; should have an appropriate workplace or internet site and the necessary technical equipment to carry out job placement; should employ qualified staff in their business activity; should present tax registration numbers together with trade registration records to the TEA; should pay the fees specified by the TEA; and should deposit an amount equal to 20 times the amount required for gross minimum wages (as at the date of application) as a guarantee to the TEA. In case of non-compliance with the regulations, sanctions will be imposed. The sanctions for non-compliance with the PrEA legislation and regulations

930  Kadriye Bakirci usually depend on the type of infringement and whether the perpetrator is a first-time or a repeat offender. Measures vary depending on the offence in question, such as the cancellation of the authorisation of the PrEA, nonrenewal of the authorisation and administrative fines (TEAA Articles 18 and 20; By-Law on the PrEAs Articles 27–30). C. Relationship between Temporary Agency Worker55 and Temporary Work Agency In a temporary employment relationship, the employer is the PrEA. In the contract between the temporary work agency and the temporary employee, referred to as the ‘temporary employment contract’, the employee is considered to be the employee of the agency, and is referred to as the ‘temporary employee’ (EA Article 7). Article 7 of the EA and Article 19 of the TEAA contain preventative measures with respect to misuse of temporary employment relationships. According to Article 7, an ‘employment contract’ between a private employment agency and a temporary employee must be concluded in writing. The TEAA makes provision for the cancellation of the authorisation provided by the TEA, and administrative fines for breaches of this provision (TEAA Articles 18 and 20). PrEAs cannot in any way make wage deals, demand fees or make profit from job-seekers and temporary employees in any way, except for those categories envisaged in the By-Law on the PrEAs. An employment contract is considered invalid if it breaches this provision (TEAA Article 19). Fees can only be taken from the user undertaking.56 Contracts preventing the temporary employee (or user undertaking) from obtaining services from the TEA or from other PrEAs or preventing the temporary employee from concluding an employment contract directly with the user undertaking or any other employer after his/her assignment are null and void (TEAA Article 19) The employment contract between the PrEA and a temporary employee must specify the maximum waiting period for temporary employees to be assigned to a job with a user undertaking. This duration should not exceed three months.57 In cases of cancellation of a PrEA authorisation to operate a temporary work agency, the employment contracts with temporary employees will be valid until the end of the term of the current assignment (TEAA Article 18). 55 

See n 24 above. 22/2 of the By-Law on the PrEAs provides that professional athletes, sports coaches, sports trainers, models and other artists, CEOs and high-level managers can be charged fees. 57  See below, section IV.E.(ii) Other Matters. 56 Article

Atypical Employment Relationships: The Position in Turkey 931 (i)  Fixed Term and Part-Time Contracts There are no special regulations for the types of employment contracts between the PrEA and the temporary employee. Therefore, the general ­contractual principles of the OA and the provisions of the EA on fixedterm and part-time employment contracts apply to the contracts between the temporary employee and the PrEA. An employment contract between the employee and the PrEA may be established for a fixed period or for part-time employment. However, a fixed-term contract can only be concluded when there is a justifiable reason to do so under the EA.58 (ii)  Rights and Obligations/Liability The PrEA is obliged to pay the wages of the temporary employee (EA Article 7; TEAA Articles 18 and 19). In addition, the PrEA is also responsible for the payment of the t­emporary employee’s social security contributions pursuant to the Social Insurance and General Health Insurance Act (Sosyal Sigortalar ve Genel Saglik ­Sigortasi Kanunu)59 (EA Article 7; TEAA Articles 18 and 19). The unpaid wages of temporary employees shall be paid by the TEA from the bank performance bond submitted by the PrEA for issuance of a licence (authorisation) in case of cancellation of the authority or dissolution of the PrEA (TEAA Article 18). The PrEA also handles all other employer obligations envisaged in the EA and general contractual principles of the OA. The PrEA is required to safeguard the temporary employee (EA Article 7). Information collected from the employees by the PrEAs cannot be used for purposes other than the services of the TEA (TEAA Article 18). The authorisation of the PrEA can be cancelled if the collected information about job-seekers and empty vacancies is processed or utilised for purposes other than the services of the TEA (TEAA Article 19). According to Article 7, temporary employees should be provided with the education and child care facilities provided by the PrEAs even while not assigned to a user undertaking. The TEAA requires protection of temporary employees by the PrEA just like permanent employees, pursuant to the Health and Safety Act (Is Sagligi ve Guvenligi Kanunu)60 and Unemployment Insurance Act (TEAA Article 19). However, when a temporary employee is hired out and works under the direction and supervision of the user undertaking, the user

58 

See above, section II.B. Lawful Stipulations of Contractual Terms. Act No 5510, RG, 31 May 2006, No 26200. 60  Act No 6331, RG, 30 June 2012, No 28339. 59 

932  Kadriye Bakirci employer is responsible for his/her occupational safety and health at the workplace.61 There are no special regulations on obligations of the temporary ­employees. Therefore, the general contractual principles of the OA and the provisions of the EA regarding employee obligations apply. (iii)  Dismissal Protection There is no provision for whether the user employer can end a temporary employment relationship during an assignment. However, it can be said that since the temporary employment relationship with the user undertaking is not part of the employment contract, it is not possible for the user employer to dismiss the temporary employee. The user undertaking might nevertheless require the employer (PrEA) to dismiss the temporary employee. Only the employer—in other words, the PrEA—can terminate an employment relationship. An employer can dismiss an employee who has either a fixed-term or a permanent contract for just cause (for an extremely weighty cause) immediately, regardless of the period of notice or the duration of the employment contract (EA Article 25).62 On the other hand, only an employee with a contract of indefinite duration can be dismissed by giving notice. An employer may not terminate a fixed-term employment contract by giving notice unless otherwise agreed; instead, a fixed-term contract ­continues until the expiration of the specified period or until the specific date indicated.63 The same principles of the EA regarding protection against dismissal by giving notice apply to temporary employees as well. Since these principles are mentioned above in relation to part-time employees, they are not repeated here.64 D. Relationship between Temporary Agency Worker65 and User Undertaking (i)  Legal Type of Relationship In temporary employment relationships, the contract between the employer (the PrEA) and the temporary employee remains extant, and a contract 61 

See below, section IV.D.(iii) Health and Safety. above, section II.C. Termination of Fixed-Term Contracts; C.IV.2. Dismissal Protection. 63  See above, section II.C. Termination of Fixed Term Contracts. 64  See above, section III.D.(ii). Dismissal Protection. 65  See n 24 above. 62 See

Atypical Employment Relationships: The Position in Turkey 933 between the employer (the PrEA) and the user undertaking is drawn up; however, a similarly binding relationship is legally constituted between the user undertaking and the employee, although no contract exists between the two. In this trilateral relationship, from the employee’s point of view, this means that s/he enters into an employment contract with the PrEA, although the work is performed in the user undertaking’s workplace. The temporary employment relationship is a relationship for a certain period, as understood by EA Article 7. The period has to be indicated in the temporary employee procurement contract. This contract should be concluded in writing (EA Article 7; TEAA Article 18; By-Law on the PrEAs Article 6). The TEAA prescribes administrative fines for user employers and for PrEAs (Article 20) who fail to comply with the principles and obligations set forth in the TEAA. (ii)  Rights and Obligations/Liability When a temporary employment relationship with a user undertaking is established, the employment relationship between the employer (the PrEA) and the temporary employee does not end. Since the employment contract between the employee and the employer remains in effect, the rights and liabilities of the employer also remain during the temporary employment period. One of the employer’s main obligations is the obligation to pay the employee’s wage. However, Article 32/1 of the EA states that the employee’s wage can also be paid by third parties other than the employer; therefore, the employee’s wage can also be paid by the user undertaking through an agreement between the employer and the user employer. Although there is no contract between the user undertaking and the temporary employee, the user employer has certain rights and liabilities in the EA and the TEAA. In order to secure the wage of the temporary employee in a temporary relationship, the user employer is required to check every month whether the temporary employee’s wages have been paid. The PrEA is required to submit documentation to the user undertaking showing that the ­temporary employee’s wages have been paid monthly. The user undertaking shall not pay the temporary agency’s service fees when the agency does not pay the temporary employee’s wages. The user undertaking must deposit up to three months’ unpaid wages of the temporary employee directly into the employee’s bank account, provided that this amount is deducted from the PrEA’s fees. The user undertaking must report a list of unpaid temporary employees and the amount of unpaid wages to the Provincial Directorate of the Employment and the TEA (EA Article 7). Temporary employees ­cannot request an advance payment or a loan from the user undertaking

934  Kadriye Bakirci on ­condition of deduction from the service fee paid by the user employer to the PrEA (EA Article 7). According to EA Article 7, the user undertaking has the right to give orders/instructions to the temporary employee at the workplace, because the employee works for the user undertaking during the temporary employment relationship period. Furthermore, this Article provides for access to services available at the user undertaking (on the grounds of equal treatment).66 Temporary employees must be informed of any vacant posts in the user undertaking, ie they must have access to the same opportunity as other employees to find permanent employment in that undertaking (EA Article 7). User undertakings are required to keep records on temporary employees, to be submitted to the TEA when requested (EA Article 7). There are no regulations in relation to obligations of the temporary employees. However, the EA states that the temporary employee shall be liable to the user employer for any damage s/he might cause by his/her ­negligence in the workplace (EA Article 7). When the temporary employment relationship between the temporary employee and the user undertaking persists even though the period stated in the contract has expired, an employment contract of indefinite duration will be deemed to have been established between the temporary employee and the user employer (EA Article 7). When the PrEA dissolves for any reason, the temporary employment relationship between the temporary employee and the user undertaking ends, upon the notification of the user employer by the PrEA. If the temporary employment relationship is still in progress after the notification, it is deemed that an employment contract is concluded between the temporary employee and the user employer (TEAA Article 18). (iii)  Health and Safety EA Article 7 states that the user employer is responsible for providing the temporary employee with training for occupational health and safety risks and taking measures against such risks (ensuring safe work equipment and safe working conditions), and the temporary employee is under the ­obligation to attend this training. The user undertaking is also under the obligation to immediately notify the PrEA and social security institutions of any work accidents and ­occupational diseases within the prescribed time period in accordance with the Social Insurance and General Health Insurance Act, if they involve ­temporary employees.

66 

See below, section IV.E.(i) Equal Treatment.

Atypical Employment Relationships: The Position in Turkey 935 E.  Relationship between Temporary Work Agency and User Undertaking The temporary employment relationship is established when a temporary employee procurement contract is concluded between the PrEA—which is authorised by the TEA—and the user undertaking. The temporary employee procurement contract must be concluded in writing. It should contain information on the duration of the assignment, the job description, the service fee which will be charged to the user undertaking and the special obligations of the PrEA and of the user undertaking, if any (EA Article 7). Article 99 of the EA provides for administrative fines for employers and the TEAA provides for administrative fines for user undertakings who fail to comply with the legislation (Article 20). F.  Rights and Status of Temporary Agency Worker67 (i)  Equal Treatment In the EA, there is no specific provision in relation to the PrEA’s obligation to ensure equal treatment of temporary employees; temporary employees are covered by the anti-discrimination provisions of the Turkish ­Constitution (Article 10) and the EA (Articles 5, 18). In addition, the TEAA requires protection of temporary employees by the PrEA as permanent e­ mployees as regards obligations deriving from the Health and Safety Act68 and ­Unemployment Insurance Act (TEAA Article 19). The principle of equal treatment of temporary employees by the user undertaking vis-à-vis similar employees is established by Article 7 of the EA as regards access to social services and working conditions.69 The same ­provision stipulates that temporary employees may not receive less ­favourable treatment with respect to basic working conditions than the user ­undertaking’s own employees in comparable work. Furthermore, Article 7 extends equal treatment to health and safety practices and services of the user undertaking. The provision requires for temporary employees to receive the same amount of information, instruction, training and supervision as is needed to enable them to carry out their assigned duties as safely as permanent employees in terms of health and safety.70

67 

See n 24 above. above, section II.D.(i) Principle of Non-discrimination; section III.D.(i) Equal ­Treatment; section III.D.(ii) Dismissal Protection. 69  See above, section III.D.(ii) Rights and Obligations/Liability. 70  See above, section III.D.(iii) Health and Safety. 68 See

936  Kadriye Bakirci (ii)  Other Matters The temporary employee has the option to terminate the employment ­contract for just cause, if s/he is not assigned to a user undertaking during the period determined in the employment contract with the PrEA.71 G. Information and Consultation/Representation of Temporary Agency Worker72 As stated above, a general framework for informing and consulting ­employees in the EU has still not been incorporated in Turkey’s national law. However, the EA provides that the user undertaking is required to inform the labour union representatives about the employment situation of the ­temporary employees (EA Article 7(b)).73 There is no special provision for the representation of temporary agency employees in Turkish legislation. H. Strikes In Turkish law, there is no restriction in relation to collective rights, ­including the right to strike, of temporary employees in the agency, because they are the employees of the agency. However, since they are not the employees of the user undertaking, they are not eligible for collective rights, including the right to strike, at the user employer. In addition, if the user undertaking’s employees are involved in a strike or lock-out, temporary employees cannot replace them during the strike or lock-out (EA Article 7). However, the provisions of Article 65 of the Trade Unions and Collective Agreement Act74 (Sendikalar ve Toplu Is ­Sozlesmesi Kanunu) apply. In that case, if the user undertaking’s employees are involved in a strike or lock-out the employer (PrEA) shall employ his/her employee in his/her own workplace, and the employee may not refuse to work in the workplace of his/her (own) employer. However, if the service provided by the employee in the workplace of the user undertaking lies within the scope of Article 65, the temporary employee shall continue to provide this service and shall not be affected by the strike or lock-out. Article 65 provides that on condition that their activities are unrelated to the production or sale of goods, a sufficient number of employees shall be required to work and the

71 

See above III.C. Relationship between Employee and Temporary Agency. See n 24 above. 73  See above II.E. Information and Consultation. 74  Act No 6356, RG, 7 November 2012, No 28460. 72 

Atypical Employment Relationships: The Position in Turkey 937 employer shall be required to employ them, with the objective of: ensuring the continuity of work in processes which need to be maintained for technical reasons; ensuring the safety of the workplace and preventing damage to machinery, installations, equipment, raw materials and finished and semifinished products; and ensuring the protection of animals and plants. I.  Collective Bargaining Agreements Deviating from Statutory Provisions Under Turkish law, any deviations from the provisions on employment ­contracts are possible if more favourable provisions are agreed in collective agreements.75

75 

See above II.C. Collective Bargaining Agreements Deviating from Statutory Provisions.

938

36 Atypical Employment Relationships: The Position in the United Kingdom BENJAMIN JONES AND JEREMIAS PRASSL

I. INTRODUCTION

T

HE UNITED KINGDOM1 labour market has long been ­characterised by the variety and growth of its ‘atypical’ employment relationships—to the extent that it has sometimes been questioned whether we can still talk of ‘atypical’ work at all.2 In line with the common scheme of ­contributions to this volume, discussion in this chapter will first explore the legal position of fixed-term employees, before turning to questions ­surrounding part-time employment and temporary agency work. Readers familiar with UK employment law and labour market policy might look at this list and wonder about zero-hours contracts—by far the most-discussed employment issue in the public consciousness. The large and heterogeneous group of work arrangements captured by this label cuts across many of the different categories to be explored; we have therefore had some difficulty in choosing where to place our detailed treatment thereof. Zero-Hours Contracts will be discussed as a key example of ‘Other Part-Time Arrangements’ in section III.D. It is important to note, however, that we do not see this as a watertight classification: in another sense, for example, zero-hours arrangements could similarly be characterised as (very) short-term fixed employment. 1 Whilst there are generally considerable differences between the different legal systems found within the United Kingdom, large parts of Employment or Labour law are an important exception to this rule, insofar as they apply across Great Britain. See A Bradley and K Ewing, Constitutional and Administrative Law, 15th edn (Pearson, 2011) 40; Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULRCA’) s 301(1). For present purposes, the two terms will therefore be used interchangeably. 2 See generally, E Albin and J Prassl, ‘Fragmenting Work, Fragmented Regulation: The ­Contract of Employment as a Driver of Social Exclusion’ in M Freedland et al (eds), The Contract of Employment (OUP, 2016) 209.

940  Benjamin Jones and Jeremias Prassl II.  FIXED-TERM WORK

A.  Legal Definitions/Formal Requirements The rights laid out under the Fixed-Term Work Directive, enacting the Framework Agreement on fixed-term contracts,3 are given effect in E ­ nglish law by the Fixed-Term Employees (Prevention of Less Favourable T ­ reatment) Regulations 20024 (FTE Regulations). The FTE Regulations protect ‘Fixed Term Employees’ as defined by ­Regulation 1(2) of the FTE Regulations. Regulation 1(2) directly replicates the terms of clause 3 of the Framework Agreement in specifying the kinds of contracts falling within the scope of its protection (ie those that will ­automatically terminate on the expiry of a specific term, on the completion of a particular task, or on the occurrence or non-occurrence of any other specific event). The application of the FTE Regulations to contracts of the latter kind is limited by an exclusion of agreements where the ‘specific event’ is the reaching of a normal and bona fide retirement age. In addition to specific sectoral exceptions detailed in section II.F below, the FTE Regulations generally exclude coverage for employees working under government or European Social Fund-backed training or work experience (Regulation 18(1)); employees completing work experience of up to a year as part of a higher education course (Regulation 18(2)); agency workers supplied by an employment business to do work for a third party (Regulation 19); and employees under fixed-term apprenticeship contracts (Regulation 20). A contract’s status as a ‘Fixed-Term Contract’ will not be ousted by the inclusion of a notice provision, as this does not remove its defining characteristic of termination on expiry.5 No minimum period of continuous employment is required to enjoy the protections under the FTE Regulations. B.  Lawful Stipulation of the Contractual Terms Regulation 8 of the FTE Regulations seeks to prevent employers from circumventing employment rights protections afforded to permanent ­ employees by abuse of successive fixed-term contracts. It provides that where an FTE employee has been continuously employed for four or more years either under a single contract or a succession of fixed-term contracts they will normally become a permanent employee unless the employer can 3 Council Directive 99/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP. 4 Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (SI 2002/2034). 5  Allen v National Australia Group Europe Ltd [2004] IRLR 847.

Atypical Employment Relationships: The Position in the United Kingdom 941 demonstrate objective grounds of justification for a more prolonged period of fixed-term employment. In Duncombe v Secretary of State for Children, Schools and Families6 the Supreme Court considered objective justification under the FTE Regulations but did not seek to unpack the term. In Hudson v Department for Work and Pensions7 the Court of Appeal held that where an employee had worked for more than four years, but part of the period in employment had been under one or more of the excepted forms of employment (as detailed above), such periods in excepted employment would not count towards the total time for the purposes of Regulation 8. Where an employee believes that Regulation 8 has rendered their employment permanent, Regulation 9(1) of the FTE Regulations provides that they may request in writing a written statement confirming that the contract of employment is no longer fixed-term. The employer must provide such a statement, or give reasons why the contract remains fixed-term, within 21 days. Such reasons must set out fully any objective grounds relied on for the engagement on a fixed-term basis. An employee who has made a request under Regulation 9(1) without success may also apply to the Employment Tribunal for a declaration under Regulation 9(5) that their employment had become permanent under ­Regulation 8. Any failure by the employer to provide a written statement under Regulation 9(1), or the provision of an evasive statement, is likely to give rise to a negative inference, under Regulation 9(4), when the Tribunal ­considers how to determine the matter. C.  Termination/End of Fixed-Term Contracts The general protection against unfair dismissal in domestic law8 applies to fixed-term employees where they are dismissed during their term. Such ­protection is only enjoyed by those with two or more years of continuous qualifying service at the time of dismissal (this restriction applying similarly to permanent employees).9 Termination by way of expiry of an FTE ­contract does not constitute a dismissal for these purposes. Regulation 6(1) of the FTE Regulations provides that an employee who is dismissed for one of the reasons set out in Regulation 6(3) is to be treated as unfairly dismissed for the purposes of the domestic protection against such dismissal. Such ‘automatic unfair dismissal’ (as it is commonly labelled) does not require any particular period of qualifying service.

6  Duncombe v Secretary of State for Children, Schools and Families [2011] UKSC 14, [2011] IRLR 840. 7  Hudson v Department for Work and Pensions [2013] IRLR 22. 8  As set out in Part X of the Employment Rights Act 1996. 9  Employment Rights Act 1996, s 108.

942  Benjamin Jones and Jeremias Prassl The reasons under Regulation 6(3) are typical victimisation r­ easons, namely that the employee: has brought proceedings under the FTE R ­ egulations; has requested a written statement under Regulation 5 (see below); has given evidence or information in connection with any ­proceedings under the FTE Regulations; has done anything under the FTE Regulations in relation to the employer or any other person; has alleged that the employer infringed the FTE Regulations; has refused (or proposed to refuse) to forego a right conferred under the FTE Regulations; has declined to sign a workforce agreement; or is a workforce representative (or candidate for the same) and has performed (or proposes to perform) any functions or activities as such a representative or candidate. A suspicion or belief that an employee has or intends to do any of these things is also a prohibited reason. Regulation 6(2) provides that an employee has the right not to be dismissed because of such reasons and Regulation 7 provides for an employee to bring proceedings complaining of a breach of Regulation 6(2) before an Employment Tribunal within three months of the dismissal.10 Where an employee has two years’ qualifying service and is dismissed due to redundancy they are entitled to a statutory redundancy payment.11 D.  Rights and Status of Fixed-Term Worker (i)  Equal Treatment In addition to Regulation 6’s protection against dismissal, Regulation 3 requires, broadly, that an FTE employee must be treated no less f­ avourably than a ‘comparable permanent employee’. For a permanent employee to be suitable as a comparator Regulation 2 requires that the comparator employee must be (currently) employed by the same employer; engaged in the same or broadly similar work (having regard, where relevant, to whether they have a similar level of qualification and skills); and be based at the same establishment as the FTE employee (unless there is no such comparable ­permanent employee at the establishment). The FTE Regulations cover all contractual terms including, ­following the CJEU decisions in Del Cerro Alonso12 and Impact v Minister for ­Agriculture and Food,13 pay and pensions. In several high-profile decisions, the ­domestic courts have, however, found that the broad scope of ­protection against detriment must not creep into a form of protection against fi ­ ­xed-term employment per se. 10 Not including time spent in compulsory pre-litigation conciliation, per Reg 7A, and allowing for a longer period where it is just and equitable to extend the limitation period. 11  Employment Rights Act 1996, s 155. 12  Case C-307/05 Del Cerro Alonso v Osakidetza-Servicio Vasco de Salud [2007] IRLR 911. 13  Case C-268/06 Impact v Minister for Agriculture and Food [2008] IRLR 552.

Atypical Employment Relationships: The Position in the United Kingdom 943 In Department for Work and Pensions v Webley14 the Court of Appeal held that an employee who was refused further employment after the expiry of the last of a number of fixed-term contracts had not thereby been subject to a detriment under the FTE Regulations. Conversely in Duncombe v Secretary of State for Children, Schools and Families15 the Supreme Court found that an employee had not, simply by having been employed under a fixed-term contract, been subject to a detriment against which the FTE Regulations offered protection. Explaining the latter ruling, Lady Hale emphasised that the FTE Regulations were intended to combat discrimination against fixed-term employees and abuse of fixedterm arrangements, and were not intended to attack the use of such arrangements in general. In the normal way, the requirement to treat no less favourably does not apply where there is an ‘objective justification’ for doing so. Objective justification for this purpose is defined by Regulation 4, which provides: Where a fixed-term employee is treated by his employer less favourably than the employer treats a comparable permanent employee as regards any term of his contract, the treatment in question shall be regarded for the purposes of regulation 3(3)(b) as justified on objective grounds if the terms of the fixed-term employee’s contract of employment, taken as a whole, are at least as favourable as the terms of the comparable permanent employee’s contract of employment.

(ii)  Employment Opportunities Fixed-term employees have, as an express aspect of their right not to be treated less favourably, a right to an equal opportunity to receive training and to secure any permanent position in the employer’s establishment.16 (iii)  Other Matters Where an employee considers that they have been subject to less favourable treatment Regulation 5 provides a mechanism for the employee to request a written statement from their employer providing an explanation for such treatment. The employer is required to respond to such a request with reasons within 21 days. As with Regulation 9, an incomplete, evasive or non-existent response to a request under Regulation 5 may give rise to an inference that the employer has breached the FTE Regulations. Where an Employment Tribunal makes a recommendation to an employer under Regulation 7(7)(c), following litigation of such an issue, a failure to

14 

Department for Work and Pensions v Webley [2004] EWCA Civ 1745, [2005] IRLR 288. Note 6 above. 16  FTE Regulations 3(2)(b) and (c). 15 

944  Benjamin Jones and Jeremias Prassl comply may result in an order for increased compensation (Regulation 7(13)). Under old government guidance it was indicated that advertising vacancies to all employees (fixed-term and permanent) via email, or by placing an advert in a shared space, was likely to be sufficient. This guidance has, however, been superseded and there is no equivalent indication given in current guidance. E.  Information and Consultation Beyond the general requirement for equal treatment there are no specific provisions stipulating requirements for consultation of fixed-term employees. F.  Specific Provisions The FTE Regulations contain specific provision for various ‘special classes of person’. All but one of these rules is inclusionary, covering those working in Crown employment (Regulation 13), members of the staff of the Houses of Parliament (Regulations 15 and 16, relating to the Houses of Lords and Commons, respectively), and those appointed as Police officers or cadets (Regulation 17). Regulation 14, by contrast, is exclusionary. It provides that the FTE ­Regulations do not protect individuals, including paid reservists, serving in the armed forces. In Hudson v Department for Work and Pensions17 the Court of Appeal considered the application of the Regulation 18 exception for those on training placements (as noted in section II.A above). It found, albeit only by a majority, that the exception covered not only current placements but prior placements (such that a series of placements could not contribute towards the four years’ service required to obtain, in principle, permanent status). G.  Collective Bargaining Agreements Deviating from Statutory Provisions Regulation 8(5) provides that a collective agreement or workforce agreement may modify the rule on consecutive FTE contracts. For the purposes of Regulation 8, schedule 1 to the FTE Regulations sets out the criteria for an agreement to qualify as a ‘workforce agreement’. It requires that the agreement is in writing, has effect for a specified period (not exceeding five years), applies to all of the relevant members of the

17 

Hudson v Department for Work and Pensions [2013] ICR 329.

Atypical Employment Relationships: The Position in the United Kingdom 945 workforce (or all of the relevant members of a group of the workforce, namely a department, unit or those involved in a particular function), is signed by the representatives of the workforce (or the representatives of the group), and—prior to the agreement being made available for signature— that the employer has provided all employees to whom the agreement was intended to apply with a copy of the text of the agreement and such guidance as might reasonably be required in order to enable the employees to understand the agreement fully. Where there is such an agreement, or a collective agreement, it may modify the application of the rules under Regulation 8 in relation to any employee or specified group of employees, by substituting for the provisions of paragraph (2) or paragraph (3) of Regulation 8, one or more different provisions which, in order to prevent abuse arising from the use of successive fixed-term contracts, specify one or more of the following: (a) The maximum total period for which the employee or employees of that description may be continuously employed on a fixed-term contract or on successive fixed-term contracts; (b) The maximum number of successive fixed-term contracts and renewals of such contracts under which the employee or employees of that description may be employed; or (c) Objective grounds justifying the renewal of fixed-term contracts, or the engagement of the employee or employees of that description under successive fixed-term contracts. There is no equivalent scope under the FTE Regulations for collective agreements to modify the right, under Regulation 3, not to be subject to less favourable treatment. That said the practical significance of this is likely to be extremely limited given that the authors are unaware of any instance of this specific exception being deployed in practice. III.  PART-TIME WORK

A.  Legal Definitions/Formal Requirements The Part-Time Workers Directive18 is implemented in the UK by the ­Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 200019 (the PT Regulations). 18  Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time working concluded by UNICE, CEEP and the ETUC (as extended to the United Kingdom by Directive 98/23/EC). 19 Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551) as amended by the Part-Time Workers (Prevention of Less Favourable Treatment) (Amendment) Regulations 2002 (SI 2002/2035).

946  Benjamin Jones and Jeremias Prassl A worker is defined in Regulation 1(2) of the PT Regulations, in terms common to domestic employment law statutes, as an individual who has entered into or works under or worked under a contract of employment; or any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.

The PT Regulations do not adopt the simple test for part-time status contained in the underlying Directive. Full-time and part-time workers are defined for the purposes of the PT Regulations by Regulation 2(1) and 2(2) respectively. Regulation 2(1) rather circuitously provides that a worker is a ‘full-time worker’ for the purpose of the PT Regulations if they are paid wholly or in part by reference to the time they work and, having regard to the custom and practice of the employer in relation to workers employed by the worker’s employer under the same type of contract, they are identifiable as a full-time worker. Regulation 2(2) states that a worker is a ‘part-time worker’ for the purpose of the PT Regulations if they are paid wholly or in part by reference to the time they work and, having regard to the custom and practice of the employer in relation to workers employed by the worker’s employer under the same type of contract, they are not identifiable as a full-time worker. For the purposes of identifying a valid comparator, the PT Regulations do follow the Directive closely. Regulation 2(4) provides that a worker can only be a comparable full-time worker if, at the time when the treatment alleged to be less favourable takes place, both workers are employed by the same employer under the same type of contract, engaged in the same or broadly similar work (having regard, where relevant, to level of q ­ ualification, skills and experience), and the workers are based at the same establishment (unless no worker satisfies this requirement). Regulation 2(3) sets out four categories of worker that are always to be treated as being employed under different types of contract (ie the categories are mutually exclusive): employees employed under a contract that is not a contract of apprenticeship; employees employed under a contract of apprenticeship; workers who are not employees; and any other description of worker that it is reasonable for the employer to treat differently on the ground that workers of that description have a different kind of contract. In the leading case of Matthews v Kent20 the majority of the House of Lords (Lord Carswell and Lord Mance dissenting) considered when two workers would be employed under ‘the same type of contract’ for the

20 

Matthews v Kent [2006] UKHL 8.

Atypical Employment Relationships: The Position in the United Kingdom 947 ­ urposes of Regulation 2(4)(a)(i) and found that they are so employed p wherever both workers are employed under contracts that fit into any one of the listed categories in Regulation 2(3). As regards the second question of whether the workers were engaged in the same or broadly similar work, one had to look at the totality of the work engaged in. In that case the Employment Tribunal was found to have erred in considering qualification, skills and experience as freestanding matters, rather than as prisms through which to inspect the similarity of the work itself. A recent decision on the earlier question of what constitutes part-time work clarified that an internal definition of an employee’s full-time status for pension purposes did not overwhelm the underlying fact that he only worked 70 per cent of normal full-time hours.21 Full-time workers who move onto a less than full-time contract, including on return from a period of absence of up to 12 months, are immediately classed as Part-Time Workers under Regulation 3 or Regulation 4, respectively.22 B.  Opportunities for/Right to Part-Time Work There is no right to part-time work in English law. A limited statutory ­entitlement to have a request for flexible working considered by an employer, which originally was available only to those with external caring responsibilities, was in 2014 extended to all employees with more than 26 weeks of continuous service.23 Under Part 8 of the Employment Rights Act 1996 such a qualifying employee can apply for a change in their terms and conditions of employment as regards hours, timing, and location of work. Such ‘flexible working’ arrangements, where granted by the employer, constitute permanent variations to the employee’s contract. The regime does not provide for requests for temporary variations. To engage the statutory right, the application must take a prescribed form (stating that it is such an application, specifying the change applied for, the date on which it is proposed the change should become effective, and explaining what effect, if any, the employee thinks making the change applied for would have on the employer and how, in the employee’s opinion, any such effect might be dealt with).24 On receipt of a qualifying request the employer is obliged to process it in accordance with the Flexible Working Regulations25 and the request

21 

Advocate General for Scotland v Barton [2016] IRLR 210. PT Regulations 3 and 4. 23  Flexible Working Regulations 2014 (SI 2014/1398). 24  Employment Rights Act 1996, s 80F(2). 25  Note 23 above. 22 

948  Benjamin Jones and Jeremias Prassl can only be refused for one of the reasons specified within the legislation26 (though most such requests will engaged a ‘burden of additional cost’, which is one of the permissible reasons for refusal). Such a refusal must also be reasonable and can be challenged if not.27 C.  Opportunities for/Right to an Extension of Working Time There is no right to an extension of working time. A part-time worker must, however, as an aspect of the right to equal treatment, be afforded the same opportunities to be selected for promotion or appointment to a full-time role as existing full-time employees are. D.  Rights and Status of Part-Time Worker (i)  Equal Treatment The PT Regulations provide for equivalent provision for protection of equal treatment of part-time workers to that provided for fixed-term employees under the FTE Regulations. Regulation 5(1) of the PT Regulations entitles a Part-Time worker not to be treated less favourably in the terms of their contract, or to be subjected to any other detriment by reason of their p ­ art-time status (whether by act or omission) without objective grounds for justification. Going slightly beyond the FTE Directive’s requirement that any detriment be solely due to part-time status, the FTE Regulations apply to any detriment that is primarily by reason of part-time status.28 The pro rata principle is applied to determine less favourable treatment unless it would be inappropriate to do so. One example of the domestic courts disapplying the pro rata principle has come in relation to not granting time off in lieu to part-time employees who do not work on public holidays.29 Additionally, where an employee makes a flexible working request (as set out in section III.B above), or proposes to make such an application, they will have a cause of action for any detriment they are subjected to as a result of having made such a request.30 (ii)  Dismissal Protection In addition to the specific protections detailed above in the circumstances of a request for flexible working, part-time workers also have the same recourse to the unfair dismissal regime that is available to full-time employees. 26 

Employment Rights Act 1996, s 80G(1)(b). Employment Rights Act 1996, s 80G(1)(a). 28  Carl v University of Sheffield [2009] IRLR 616. 29  McMenemy v Capita Business Services Ltd [2007] IRLR 400. 30  Employment Rights Act 1996, s 47E. 27 

Atypical Employment Relationships: The Position in the United Kingdom 949 Any dismissal because of a flexible working request or proposed request will also be ‘automatically unfair’ for the purposes of the unfair dismissal regime.31 Any dismissal by reason of victimisation in connection with the PT Regulations will also constitute an automatically unfair dismissal.32 (iii)  Other Matters As under the FTE Regulations, Regulation 6 of the PT Regulations provides for the right to be provided with a written statement explaining any less favourable treatment on request. The regulation of such requests follows the same scheme as the FTE Regulations, as detailed above at II.D(iii) (with a 21-day window for a response and the opportunity for complaint to the Employment Tribunal in the absence of a compliant response). E.  Information and Consultation There are no specific rules on information and consultation in relation to part-time workers. F.  Other Part-Time Arrangements United Kingdom law does not recognise specific statutory models of other part-time arrangements as such. Perhaps the most important phenomenon to be discussed, however, is that of so-called zero-hours contracts. Over the course of the past three years, Zero-Hours Contracts have become one of the highest-profile employment law issues in the United ­Kingdom.33 Despite public perceptions to the contrary, however, zero-hours contracts are not a single category of work arrangements. Instead, they stand for a wide range of arrangements in which workers are not guaranteed a fixed (or indeed any) number of hours in a particular period and in which, at least in theory, they are not obliged to accept any offers of work which might have been made by their employer. Indeed, an official consultation document on the use and regulation of zero-hours arrangements, published by the government in December 2013, noted that ‘[t]here is no legal definition of a zero hours contract in d ­ omestic law’, yet then went on to try and define the concept as ‘an employment contract in which the employer does not guarantee the individual any 31 

Employment Rights Act 1996, s 104C. Reg 7 of the PT Regulations. 33 This section draws on work first published as A Adams et al, ‘The “Zero-Hours Contract”: Regulating Casual Work, or Legitimating Precarity?’ (2015) 147 Giornale di Diritto del Lavoro e di Relazioni Industriali 529. 32 

950  Benjamin Jones and Jeremias Prassl work, and the individual is not obliged to accept any work offered.’ The ­technical implementation of such arrangements can be illustrated by means of a ­specific ‘example of a clause in a zero hours contract which does not ­guarantee a fixed number of hours work per week’: The Company is under no obligation to provide work to you at any time and you are under no obligation to accept any work offered by the Company at any time.34

This has now been translated into a newly-inserted section 27A of the Employment Rights Act 1996 (ERA 1996), sub-sections (1) and (2) of which stipulate that (1) In this section ‘zero hours contract’ means a contract of employment or other worker’s contract under which— (a) the undertaking to do or perform work or services is an u ­ ndertaking to do so conditionally on the employer m ­ aking work or services ­available to the worker, and (b) there is no certainty that any such work or services will be made ­available to the worker. (2) For this purpose, an employer makes work or services available to a worker if the employer requests or requires the worker to do the work or perform the services.

In 2013, the government asserted that zero-hours contracts ‘are legal under domestic law. If they are freely entered into, a zero hours contract is a ­legitimate form of contract between individual and employer.’35 The heterogeneity just demonstrated presents a significant challenge to this statement. In a strict technical sense, the arrangements will of course be legal, in so far as they do not contravene the (rather extreme) limitations of freedom of contract found in doctrines such as illegality: the arrangements do not involve contracts involving the commission of a legal wrong,36 or contracts contrary to public policy.37 On the other hand, it is deeply problematic to suggest that they represent a single form of contract, attracting a uniform set of workerprotective rights: instead, once more a wide variety along a broad spectrum of contracts can be observed. As we discussed in our contribution to the first volume in this series,38 over more than a century, a considerable amount of case law and ­scholarship has built up to develop, adapt and refine a series of common law tests to 34 BIS, Consultation: Zero Hours Employment Contracts (London, December 2013) [11]–[12]. 35  Ibid (13). 36  E Peel, Treitel’s Law of Contract, 13th edn (Sweet & Maxwell, 2011) [11-011] ff. 37  Ibid [11-032] ff. See also S Deakin and G Morris, Labour Law (Hart Publishing, 2012) 156–59. 38  B Jones and J Prassl, ‘The Concept of Employee: The Position in the UK’ in B Waas and E van Voss (eds), Restatement of Labour Law in Europe Vol 1: The Concept of Employee (Hart, 2017) ch 36.

Atypical Employment Relationships: The Position in the United Kingdom 951 ­ etermine on which side of the ‘binary divide’ between a contract of service d and a contract for services—or the more recent tri-partite scheme of employees, workers, and self-employment—any given individual should fall under UK law.39 Under the prevailing common law tests, zero-hours arrangements could lead to a series of different classifications—and thus degrees of ­statutory ­protection: some workers might be protected as employees, or at least in the subsidiary worker category; in other scenarios they might fall completely ­outside the scope of employment-protective norms.40 The government’s regulatory efforts surrounding zero-hours contracts are focused on rendering so-called ‘exclusivity clauses’ unenforceable. These are provisions in zero-hours contracts or similar arrangements whereby the worker undertakes to work exclusively for the employer in question. The much-vaunted ‘regulation’ of zero-hours contracts boils down to little more than a brief sub-section in the Small Business, Enterprise and Employment Act 2015,41 which stipulates that (3) Any provision of a zero hours contract which (a) prohibits the worker from doing work or performing services under another contract or under any other arrangement, or (b) prohibits the worker from doing so without the employer’s consent, is unenforceable against the worker.42

In addition to this outright ban, a newly enacted section 27B of the ­Employment Rights Act 1996 provides that the Secretary of State may by regulations make provision for the purpose of securing that zero hours workers … are not restricted by any provision … of their contracts or arrangements … from doing any work otherwise than under those contracts or arrangements.

This power was exercised by the government in December of last year, with the resulting Exclusivity Terms in Zero Hours Contracts (Redress) ­Regulations 2015 entering into force on January 14, 2016.43 As stated in the Explanatory Note, the new regulations purport to Make provision in relation to the right for individuals on a zero hours contract not to be unfairly dismissed or subjected to a detriment for a reason relating to a breach of [an exclusivity] provision of a zero hours contract.44

39 

See generally, Deakin and Morris (Ibid) 145 ff. eg, Cotswolds Developments Construction Ltd v Williams [2006] IRLR 181 (EAT) [55]; or St Ives Plymouth Ltd v Mrs D Haggerty [2008] WL 2148113 [1], [33]. 41  The Act also provides for a ‘Power to make further provision in relation to zero hours workers’, it is however unlikely that this power would be able meaningfully to address any of the main problems underpinning Zero-Hours work. 42  Small Business, Enterprise and Employment Act 2015, s 153 (the relevant provisions have now become s 27A(3) of the ERA 1996). 43  SI 2015/2021. 44  Ibid, p 3. 40  See,

952  Benjamin Jones and Jeremias Prassl In concrete terms, this means that an employee dismissed for the ­(principal) reason that she breached an exclusivity provision in her contract of ­employment45 by working for another employer is to be regarded as unfairly dismissed for purposes of the unfair dismissal regime in Part X of the ERA 1996; the usual two-year qualifying period does not apply.46 Finally, a ‘worker who works under a zero hours contract has the right not to be subjected to any detriment by, or as a result of, any act, or any deliberate failure to act, of an employer’ in response to her breach of an exclusivity clause.47 G.  Collective Bargaining Agreements Deviating from Statutory Provisions These are not widely used in the UK. IV.  TEMPORARY AGENCY WORK48

Whilst the modern form of work agencies has been in existence since the 1950s, there are early reports of labour market intermediaries dating back as far as the 1920s.49 In gauging the size of the industry in the United ­Kingdom today it is rather difficult to obtain accurate data, as agency work is not always distinguished as such in published statistics riddled with curious exceptions,50 and because issues of classification tend to lead to significant underestimates.51 Despite these problems in measuring the precise extent of the industry, two things are clear: it has undergone rapid growth,52 a trend which continued soon after a brief stagnation following the financial crisis.53 45 

Ibid, reg 2(3). Ibid, reg 2(1) and 2(4), respectively. 47  Ibid, reg 2(2). 48  See generally, J Prassl, The Concept of the Employer (OUP, 2015) chs 2 (industry description) and 3 (legal analysis), respectively. This section of our report sets out the most salient points developed there. 49  C Forde and G Slater, The Role of Employment Agencies in Pay Setting (ACAS Research Paper 05/2011) [2.1], citing C Forde, ‘“You know we are not an employment agency”: Manpower, Government and the Development of the Temporary Employment Agency Industry in Britain’ (2008) 9 Enterprise and Society 337. 50  Employment Markets Analysis and Research, Agency Working in the UK: A Review of the Evidence (Employment Relations Research Series No 93, Department of Business, Enterprise and Regulatory Reform, London 2008) [1.1], eg, excludes entertainment, modelling, writers and professional sports persons. 51  E Markova and S McKay, Agency and Migrant Workers: Literature Review (TUC Commission on Vulnerable Employment, 2008) 6. The review extensively covers most of the material cited in the first part of this chapter. 52  C Forde et al, Agency Working in Britain: What Do We Know? (Centre for Employment Relations Innovation and Change Policy Report No 2, CERIC, 2008). 53  C Forde and G Slater, A Survey of Non Regular Work in the UK (Report prepared for the Japan Institute of Labour Policy and Training, 2010). 46 

Atypical Employment Relationships: The Position in the United Kingdom 953 A.  Legal Definitions/Formal Requirements There are several layers of industry regulation through domestic and ­European Union measures. In spite of this, the crucial question for p ­ resent purposes—the actual status of an entity as the employer of temporary workers—is not defined for employment law purposes—in stark contrast, for example, to taxation.54 The question is therefore left to the common law, as we will see immediately below. B.  Registrations, Licensing, Financial Guarantees etc In the domestic context, agencies were first regulated by the Employment Agencies Act 197355 under somewhat different terminology. The Act drew a distinction between ‘employment agencies’, as businesses who find employment for workers or source workers for companies, and ‘employment businesses’, as enterprises that supply workers to the end-user. The latter are, however, commonly understood to be employment agencies today. The legislation set certain minimum standards, for example, as regards payments by workers and accuracy of advertisements, and crucially, made provisions for a mandatory licensing regime. The latter was, however, revoked in 1994.56 Various regulations introduced under the Act are in operation today, most notably the Conduct of Employment Agencies and Employment Businesses Regulations 2003,57 placing a series of general obligations on agencies to avoid particular instances of exploitation:58 an agency cannot, for example, force workers to use additional services or hire and purchase goods from the agency,59 and it may not withhold payment for a number of reasons, including ‘non-receipt of payment from the hirer.’60 There is also a requirement that the parties agree on certain terms before any services are provided.61 A partial licensing system was reintroduced in 2004 by the Gangmasters (Licensing) Act,62 limited in its application by a sector-specific focus on

54  S Deakin and G Morris, Labour Law, 6th edn (Hart, 2012) [3.35]: Income Tax (Earnings and Pensions) Act 2003, pt II ch 7, and Social Security (Categorisation of Earners) Regulations (SI 1978/1689). 55  This was at the same time as most other European countries, see eg the ­Arbeitnehmerüberlassungsgesetz in Germany (Chapter 12 of this volume). 56  Deregulation and Contracting Out Act 1994. 57  As amended: Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2007 (SI 2007/3575). 58 Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/3319), pt II. 59  Ibid reg 5. 60  Ibid reg 12(a). 61  Ibid pt III; Markova and McKay (n 51 above) 33. 62  Gangmasters (Licensing) Act 2004, s 7.

954  Benjamin Jones and Jeremias Prassl areas such as agriculture and food processing.63 Overall, however, the UK remains one of only five EU countries that do not require a licence to operate a temporary work agency,64 and there has been a concerted effort on part of the government to decrease the regulatory burden placed on employment agencies.65 C. Relationship between Temporary Agency Worker and Temporary Work Agency (i)  Fixed-Term and Part-Time Contracts Agency contracts can be structured both as full-time or part-time, and fixedterm or open-ended contracts. (ii)  Rights and Obligations/Liability In their analysis of the relationship between worker and employment agency, Wynn and Leighton suggest that ‘[i]t is clearly understood that the agreement between a temp who is on the books of an agency [and the agency] is essentially a pre-contractual or collateral one.’66 This result is borne out in some early cases such as O’Sullivan,67 where the court held that there was no contract at all between agency and worker. With respect, however, this will no longer be the case in most scenarios today: a contract is frequently in place between the parties, and there is nothing in principle to stop it from being characterised as a contract of employment; indeed, the Court of Appeal so found in McMeechan.68 In reality, however, it is unlikely ‘that many agency contracts will turn out to be contracts of employment [even if] the possibility should not be overlooked’.69 Instead, while a contract with the agency will be found, it will usually be characterised as one of service. In Wickens,70 for example, it was

63 

Gangmasters (Licensing) Act 2004, s 3. Wynn, ‘Regulating Rogues? Employment Agency Enforcement and Sections 15–18 of the Employment Act 2008’ (2009) 38 ILJ 64, 69. 65  See eg most recently the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2016 (SI 2016/510). 66  M Wynn and P Leighton, ‘Will the Real Employer Please Stand Up? Agencies, Client Companies and the Employment Status of the Temporary Agency Worker’ (2006) 35 ILJ 301, 319. 67  O’Sullivan v Thompson-Coon (1972) 14 KIR 108 (DC). 68  McMeechan v Secretary of State for Employment [1996] EWCA Civ 1166, [1997] IRLR 353. 69 HMRC, Employment Status Manual, ESM 2002, www.hmrc.gov.uk/manuals/esmm anual/ESM2002.htm, accessed 1 September 2012. 70  Wickens v Champion Employment [1984] ICR 365 (EAT). 64  M

Atypical Employment Relationships: The Position in the United Kingdom 955 held that the claimant could not bring an unfair dismissal claim, as temporary agency workers were not engaged under contracts of employment, and that the relevant business size threshold had therefore not been met. The explanation behind these findings can be found in the traditional common law tests as set out in our previous contribution;71 in particular the tests of control and mutuality of obligation.72 As that chapter demonstrated, the employer functions most relevant under these criteria are usually exercised jointly, or by the end-user rather than the agency. The Court of Appeal’s decision in Bunce v Postworth73 neatly illustrates this point. The applicant was a welder on the books of an employment agency. While the vast majority of engagements were for one particular end-user, a railway company, the relationship there was not exclusive, and the Employment Tribunal’s decision as to the absence of an employment contract with any particular end-user was never appealed. The employment agency exercised a range of employer functions, including payment, training and the provision of certification materials and tools.74 Once at the actual job sites, however, the welder worked directly under the control of each client. As Keene LJ put it ‘[t]hat is really fatal to [the claimant’s] case’.75 The mutuality of obligation test can play a similarly lethal role, as the decision in Montgomery v Johnson Underwood shows:76 an agency-supplied receptionist was not an employee working under a contract of service because of the absence of mutually reciprocal obligations. (iii)  Dismissal Protection Despite exceptions on the facts of specific cases77 or in the practice of individual agencies that explicitly ‘employ’ their temporary workers,78 it is unlikely that temporary workers will usually fall within the protective scope of a contract of employment with their agency. Even if they were able to come within the scope of employment law, most unfair dismissal rights require a qualifying period of at least two years’ service.79

71 

Note 38 above. latter one being especially important since Carmichael v National Power Plc [1999] 1 WLR 2042 (HL). 73  Bunce v Postworth Limited t/a Skyblue [2005] EWCA Civ 490, [2005] IRLR 557. 74  Ibid [9]. 75  Ibid [29]–[30]. For lack of control over day-to-day work see also Dacas v Brook Street Bureau (UK) Ltd [2004] EWCA Civ 217, [2004] ICR 1437. 76  Montgomery v Johnson Underwood [2001] EWCA Civ 318, [2001] ICR 819; confirmed in Bunce (n 73 above). 77  McMeechan (n 68 above). 78  C Forde and G Slater, The Role of Employment Agencies in Pay Setting (ACAS Research Paper 05/2011) 14; K Ward, ‘Making Manchester “Flexible”: Competition and Change in the Temporary Staffing Industry’ (2005) 36 Geoforum 223. 79  ERA 1996, s 98 ff. 72  The

956  Benjamin Jones and Jeremias Prassl D. Relationship between Temporary Agency Worker and User Undertaking (i)  Legal Type of Relationship The situation as against end-users is similar, if not even more difficult. There is generally no direct contractual arrangement in place between the parties, although factual exceptions are again possible.80 The traditional tests for employment status are the now familiar starting point, as seen for example in Elias J’s decision in Stephenson v Delphi Diesel Systems Ltd.81 There, an employee’s previous service under an agency arrangement was held not to have been under a contract with the end-user, thus negating the possibility of an unfair dismissal claim. In so doing, Elias J’s focus was firmly on mutuality of obligation as the test for the existence of a contract: ‘[t]he significance of mutuality is that it determines whether there is a contract in existence at all.’82 Given the absence of a duty to pay the assigned worker continuously or provide any future work, there could therefore be no contract of any kind; the issue of control, in this analysis, having been relegated to the classification of any contract that may be found to exist. At the time of Elias J’s judgment in the EAT, however, a crucial development had already got underway, with courts initially surprisingly willing to explore other ways of establishing a contractual relationship with the enduser. The absence of a written contractual document between the parties has never been a problem in this context, as section 230 of the Employment Rights Act 1993 explicitly provides that a contract of service can be ‘express or implied, and (if it is express) … oral or in writing’.83 In Dacas v Brook Street Bureau,84 the Court of Appeal, led by Mummery LJ, picked up earlier foundations in cases such as Franks v Reuters85 and developed the use of implied contracts in triangular work scenarios. On the facts of the case, this aspect of the decision was strictly obiter, as the claimant had never appealed the employment tribunal’s finding that there was no contract of employment with the end-user, Wandsworth Borough Council. Nonetheless, in overruling the EAT’s finding that the cleaner had been employed by the agency, the Court found that as a matter of law, an implied contract between the parties was a possibility that tribunals ought to have considered.

80  Dacas (n 75 above): contract with client; Motorola Ltd v Davidson [2001] IRLR 4 (EAT): very high level of end-user control, including training and sanctions; worker is employee. 81  Stephenson v Delphi Diesel Systems Ltd [2003] ICR 475 (EAT). 82  Ibid [11]. Picked up by J Munby dissenting in Dacas (n 75 above). 83  ERA 1996, s 230(2). 84  Note 75 above. 85  Franks v Reuters [2003] EWCA Civ 417, [2003] ICR 1166.

Atypical Employment Relationships: The Position in the United Kingdom 957 The majority opinion in Dacas was approved in 2006 by the Court of Appeal in Muscat.86 The most important thing to note about the latter decision, however, is the court’s explicit linking of previous dicta that a contract could only be implied where necessary,87 to the business reality test of necessity as espoused by Bingham LJ in The Aramis.88,89 This was an early sign of a shift in focus—soon to be driven along by Elias J (as he then was) in the EAT,90 and culminating in the Court of Appeal’s ruling in James v ­Greenwich London Borough Council.91 In that case, the applicant had been seconded by her agency to the respondent council as a housing support worker for nearly three years. When Ms James attempted to return to work after an extended period off for health reasons, she found that her function had been filled by another temporary worker. There was no contention for a contract of employment directly with the agency.92 Mummery LJ took the opportunity to review the existing case law on employment relations in triangular setups,93 and made it clear that the threshold for implication was a high one: as the council’s exercise of employer functions over Ms James could be explained by the parties’ ‘respective contracts with the employment agency, … it was not necessary to imply the existence of another contract in order to give business reality to the relationship between the parties.’94 (ii)  Rights and Obligations/Liability The resulting difficulty in establishing the existence of a contract of employment with end-users is evident in a series of subsequent EAT decisions,95 and was confirmed by the Court of Appeal two years later in Tilson v Alstom.96 Whilst the Employment Tribunal in Alstom had analysed the agency arrangements as merely a payment mechanism and therefore implied a direct contract with the end-user, Elias LJ in the Court of Appeal held that the other contractual relationships in the multi-agency arrangement were a 86 

Cable & Wireless Plc v Muscat [2006] EWCA Civ 220, [2006] ICR 975 [45]. Dacas (n 75 above) [16]. 88  The Aramis [1989] 1 Lloyd’s Rep 213 (CA). 89  Muscat (n 86 above). 90  National Grid Electricity v Wood [2007] UKEAT/0432/07. 91  See also Cairns v Visteon UK Ltd [2007] ICR 616 (EAT). 92  James v Greenwich London Borough Council [2008] EWCA Civ 35, [2008] ICR 545 [18]. There usually is a contractual nexus between worker and agency, but it will rarely be one of service: Wickens v Champion Employment (n 70 above). 93  James (n 92 above) [46]–[52]. Agency worker cases at the tribunal stage had been stayed in anticipation of the decision. 94  Ibid [42]. 95  Eg, in East Living Ltd v Sridhar [2007] UKEAT/0476/07/RN (carer not employed as other explanations for work negate necessity test) or Vidal-Hall v Hawley [2007] UKEAT/0462/07/ DA (social worker in relationship with charity, no need to also imply relationship with HM Prison Service). 96  Tilson v Alstom Transport [2010] EWCA Civ 1308, [2011] IRLR 169. 87 

958  Benjamin Jones and Jeremias Prassl sufficient explanation of Mr Tilson’s service; consequently, no contract of employment could be implied.97 It is therefore increasingly unlikely that a contract of employment will readily be implied between an agency worker and the end-user of the ­agency’s services to confer direct rights or impose obligations. (iii)  Health and Safety The Health and Safety at Work Act 1974 imposes a wide range of general duties on ‘every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees’.98 Employers are to ‘conduct [their] undertaking[s] in such a way as to ensure, so far as is reasonably practicable, that persons not in [their] employment who may be affected thereby are not thereby exposed to risks to their health or safety.’99 On the one hand, this approach evidently still distinguishes between employees defined in a narrow sense as working under a contract of employment.100 On the other, it also includes within its scope all those ‘doing work’, a category defined to include even the self-employed.101 The Act’s operation can be illustrated with reference to one of the leading cases, Octel.102 There, the employee of a specialist contractor was severely injured as a result of an explosion in a tank which he had been sent to repair. Under a narrow approach to business activities, it could be argued that the actions that led to the injury were merely ancillary to the business: the defendant company operated a chlorine works, not a fibreglass repair business. This narrow interpretation was, however, rejected by the House of Lords.103 Lord Hoffman, with whom the other four Law Lords agreed, unambiguously held that the duty in question was ‘defined by reference to a certain kind of activity, namely, the conduct by the employer of his undertaking. It is indifferent to the nature of the contractual relationships by which the employer chooses to conduct it.’104 E.  Relationship between Temporary Work Agency and User Undertaking The formal relationship between agencies and end-users can be structured in myriad ways, from on-the-spot contracting to increasingly common 97 

Ibid [49]. Health and Safety at Work Act 1974, s 2(1). 99  Ibid s 3(1). 100  Ibid s 53. 101  Ibid s 52. 102  R v Associated Octel Co Ltd [1996] 1 WLR 1543 (HL). See B Barrett, ‘Commentary: Employers’ Criminal Liability Under HSWA 1974’ (1997) 26 ILJ 149. 103  Octel (n 102 above) 1548 D. 104  Ibid 1547 B–C. 98 

Atypical Employment Relationships: The Position in the United Kingdom 959 long-term relationships between a particular agency and end-user.105 Some agencies have preferred or even sole supplier status with individual clients; others rely on framework agreements to standardise individual one-off hires.106 A more recent development is temporary work agencies that act as third party vendors to coordinate other agencies organising external workforces for clients, without providing any workers directly. G ­ reenwich London Borough Council, the defendant in the now infamous case of James,107 for example, employed more than 10 per cent of agency workers at the time of the litigation, and had to retain the services of a large national employment agency to manage its various supplier agencies.108 The analysis of an anonymised sample contract used as the basis for negotiations between agencies and end-users109 suggests that key terms between agency and end-user will usually go beyond the legally required minima, such as fee calculation and termination procedures.110 The agencies’ duties may be set out in great detail, including as to where and how workers should be recruited, which background and immigrations checks are to be completed, any additional licences, authorisations and references that may be required, and the details of information about each temporary worker to be supplied to the end-user.111 These information provisions are generally mutual, ie the end-user’s obligations will cover provision of information about what workers are required and when.112 There are, however, also reports of situations where end-users have little knowledge of the terms and conditions offered by agencies to workers.113 Both parties will usually enjoy strong termination rights,114 and be subject to confidentiality, audit, record-keeping and indemnity requirements. The contractual agreements, finally, will include detailed arrangements for fee and transition payment and tax structures, as well as the already referenced clause limiting the length of any individual assignment in order to avoid the application of the 2010 Agency Workers Regulations.115

105 See K Purcell, J Purcell and S Tailby, ‘Temporary Work Agencies: Here Today, Gone Tomorrow?’ (2004) 42 British Journal of Industrial Relations 705; Markova and McKay (n 51 above) 30–31 offer practical illustrations. 106  I Kirkpatrick and others, Professional Agency Working in Health and Social Services: Implications for Management (CERIC Policy Report Number 3, CERIC 2009). 107  James (n 92 above). 108  E McGaughey, Should Agency Workers be Treated Differently? (LSE Working Papers 07/2010) 26. 109  Eversheds LLP, Terms and Conditions for the Supply of Services from an E ­ mployment Business to an End-User Client (PLC Employment and PLC Commercial, Practical Law ­Company, London 2012). 110  Conduct Regulations 2003, reg 17. 111  Eversheds (n 109 above) cl 2. 112  Ibid cl 3. 113  Markova and McKay (n 51 above) 8. 114  Eversheds (n 109 above) cl 5.4. 115  Ibid cl 2.10: ‘The Employment Business shall not provide any Temporary Worker for a period in excess of 11 weeks without the prior written consent of the Client.’

960  Benjamin Jones and Jeremias Prassl F.  Rights and Status of Temporary Agency Worker The general employment rights and status of temporary agency workers depend on their classification in line with the ordinary common law tests. In terms of specific rights pursuant to the EU’s Directive on Temporary Agency Work,116 the picture is relatively bleak. Countouris and Horton conclude that the Directive ‘is a regulatory instrument that seeks to remove any remaining stigma, restriction or prohibition, associated with temporary agency work without providing for a sufficiently protective, equitable and fair regulatory framework.117 (i)  Equal Treatment The United Kingdom’s implementation in 2010118 reluctantly gave effect to the basic rights set out in the Directive, for example as regards the use of joint facilities and the provision of information about job vacancies from the start of the employment.119 As already suggested, however, there are significant carve-outs, most notably in the form of a 12-week threshold,120 which end-users will frequently explicitly contract around by limiting the length of any individual assignment to an 11-week period.121 (ii) Others Liability for breach of various obligations is apportioned between the agency and its end-user client, subject to the latter’s ability to invoke a series of defences.122 G. Information and Consultation/Representation of Temporary Agency Worker In essence, agency workers are to be treated no differently from other employees in this context. The official government guidance on point notes that

116  Directive (EC) 104/2008 of the European Parliament and of the Council of 19 November 2008 on temporary agency work [2008] OJ L327/9. 117  N Countouris and R Horton, ‘The Temporary Agency Work Directive: Another Broken Promise?’ (2009) 38 ILJ 329–338. 118  Agency Workers Regulations 2010 (SI 2010/93). 119  Ibid regs 12 and 13. 120  Ibid reg 5. 121  Eversheds LLP, Terms and Conditions for the Supply of Services from an E ­ mployment Business to an End-User Client (PLC Employment and PLC Commercial, Practical Law ­Company, London, 2012) 2.10. 122  Agency Workers Regulations (n 119) reg 14.

Atypical Employment Relationships: The Position in the United Kingdom 961 The Regulations provide that where information is provided on the employment situation [including eg in transfers of undertakings, or European Works Councils], information should also be provided on the use of agency workers. The information must be provided to employees or their representatives. [… However, t]he definition of information to be provided does not include information on agency workers’ terms and conditions.123

H. Strikes There is a statutory prohibition on supplying workers to break industrial action in the UK.124 It does not apply in the case of unofficial or so-called ‘wildcat’ strikes. I.  Collective Bargaining Agreements Deviating from Statutory Provisions These are not widely used in the UK.

123  www.gov.uk/government/uploads/system/uploads/attachment_data/file/32121/11949-agency-workers-regulations-guidance.pdf. 124  2003 Regulations, reg 7.

962

Bibliography Austria Binder, M, Burger, F and Mair, A, AVRAG. Arbeitsvertragsrechts-Anpassungsgesetz, 2nd edn (Wien, Manz Verlag, 2016). Brodil, W, Risak, M and Wolf, C, Arbeitsrecht in Grundzügen, 9th edn (Vienna, LexisNexis, 2016). Fenyves, A, Kerschner, F and Vonkilch, A (eds), ABGB §§ 1151 bis 1164a, 3rd edn (Vienna, Verlag Österreich, 2012). Löschnigg, G (ed), Angestelltengesetz, Vol 2, 9th edn (Vienna, ÖGB Verlag, 2012). Neumayr, M and Reissner, G (eds), Zeller Kommentar zum Arbeitsrecht, 2nd edn (Vienna, Manz, 2011). Risak, M and Mazal, W (eds), Das Arbeitsrecht, 31st edn (LexisNexis, Vienna, 2018). Risak, M, ‘Emanzipatorische Aspekte der Arbeitszeitregulierung’ Momentum Quarterly (2016), Vol 5, No 2, p. 75. Schörghofer, F, Grenzfälle der Arbeitskräfteüberlassung (Wien, Manz, 2015). Schrammel, W, ‘Kettendienstverträge mit Rundfunkmitarbeitern’, Recht der Wirtschaft (RdW) 1986, 248. Wagner, N, ‘Arbeitskräfteüberlassung in Österreich’, Sozial und Wirtschaftsstatistik Aktuell 2016/9, 1.

Belgium Barnard, C, EU Employment Law (Oxford, Oxford University Press, 2012). Engels, C and Hendrickx, F (eds), Arbeidsrecht (Bruges, Die Keure, 2015). Gruny, P, Report on atypical contracts, secured professional paths, flexicurity, and new forms of dialogue, European Parliament, 2009–2014 (2010), A7-0193/2010: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+ REPORT+A7-2010-0193. Horion, P, ‘De la compatibilité des clauses qui, dans un contrat de travail ou dans un contrat d’emploi, établissent l’une un terme et l’autre un droit de résiliation unilatérale’. Case note: Cour de cassation, 6 December 1962, Pasicrisie, I, 1963, 424, Revue Critique de Jurisprudence Belge (RCJB), 1964, 223. Jamoulle, M, ‘Les lignes de force du droit individuel du travail à l’heure actuelle’, in Le contrat de travail dix ans après la loi du 3 juillet 1978 (Brussels, Story-Scientia, 1989). —— Le contrat de travail, vol II (Liège, University Press, 1986). Javillier, J-C, ‘Ordre juridique, relations professionnelles et flexibilité. Approches comparatives et internationales’, Droit Social, 1986, 57. Lenaerts, H, Inleiding tot het sociaal recht (Gent, Story-Scientia, 1985), no 27. Oversteyns, B, Arbeidsrecht en flexibiliteit: een juridisch onderzoek van atypische arbeidsovereenkomsten (Leuven, Katholieke Universiteit Leuven, 1993).

964  Bibliography Pennings, F, European Social Security Law (Antwerp, Intersentia, 2010). Rauws, W, Civielrechtelijke beëindigingswijzen van de arbeidsovereenkomst: ­nietigheid, ontbinding en overmacht (Antwerpen, Kluwer, 1987). Troplong, M, Droit civil. De l’échange et du louage (Brussels, Meline, 1841), No 856. Velge, H, Eléments de droit industriel belge, vol I (Brussels, Librairie Albert Dewit, 1927).

Bulgaria Ангушева, В, ‘Срочни трудови договори’ in Правни изследвания в памет на проф. Ив. Апостолов (С.: Улпиан ЕООД, 2001) pp 19–24. Василев, A, Трудово право (Бургас, БСУ, 1997). —— Трудово право (Бургас, БСУ, 1997) pp 169–97. Койчева, Р, ‘Някои правни въпроси на труда чрез предприятие, осигуряващо временна работа’ in Юбилеен сборник, посветен на 80-годишнината на проф. д.ю.н. Васил Мръчков (С.: Труд и право, 2014). Мингов, Е, Особености на трудовото правоотношение с работник или служител с работодател, осигуряващ временна работа, pp 16–17— Норма (Norm) (2012, No 2). —— Прекратяване на трудовия договор на общи основания (С.: Сиби, 2004); Мръчков, В, Договорът в трудовото право, pp 182–206 (С.: Сиби, 2010). —— Допълнение в Кодекса на труда за временната работа, pp 367–85 in Трудови отношения 2012 (С.: Труд и право, 2012). —— Сключване и прекратяване на трудовия договор за определен, pp 524–26 in Трудови отношения 2006 (С.: Труд и право, 2006). —— pp 223–38 in Мръчков, В, Средкова, К, Василев, Ат, Коментар на Кодекса на труда. 12 изд. —— Трудово право, 10. Изд (С.: Сиби, 2017). Нейков, И, Някои форми на нетипична заетост на българския трудов пазар— правни аспекти и проблеми, pp 98–104 in Актуални проблеми на трудовото и осигурителното право. Т. II (С.: УИ ‘Св. Кл. Охридски’, 2007). Радоилски, Л, Трудово право на Народна република България, pp 7–53 (С.: НИ, 1957). Средкова, К, Коментар, pp 448–461. —— Правен режим на работното време, pp 168–76 (С.: УИ “Кл. Охридски”, 1993). —— Трудово право. Обща част, pp 11–20 (С.: УИ ‘Св. Кл. Охридски’, 2010). —— Трудово право. Специална част. Дял I. Индивидуално трудово право, pp 72–78 (С.: УИ ‘Св. Кл. Охридски’, 2011). Sredkova, K, Workers’ participation in Central and Eastern Europe: Challenges and opportunities for the works councils system, Blainpain, R and Lyutov, N (eds) (The Netherlands, Wolters Kluwer Law and Business, 2014). Тодорова, Л, ‘Сключване на срочен трудов договор по изключение’ pp 5–8 Информационен бюлетин по труда (2012, No 10). Шотлеков, Ил, ‘Ред за възникване на трудово правоотношение от конкурс’, Правна мисъл, 1967, No 5, 42–52.

Bibliography 965 Croatia Eurofound (2015), New forms of employment, Publications Office of the European Union, Luxembourg. Geiser, T and Müller, R (eds), Arbeitszeiten in Europa (St Gallen, Dike, 2016). Grgurev, I, ‘Ugovor o radu, in: Ž Potočnjak (ed), Radni odnosi u Republici ­Hrvatskoj (Zagreb, Pravni fakultet u Zagrebu and Organizator, 2007). Laleta, S and A Križanović, A, ‘Rad putem agencija za privremeno zapošljavanje u hrvatskom, europskom i usporednom pravu’ (2015) 1 Zbornik Pravnog fakulteta u Rijeci 305. Milković, D and Dugonjić, S, Prestanak ugovora o radu (Zagreb, Radno pravo, 2016) 21. —— Prestanak ugovora o radu: komentar i sudska praksa načina prestanka ­ugovora o radu (Rosip d.o.o., 2016). Potočnjak, Ž, Fleksigurnost radnih odnosa u Hrvatskoj i pravna stečevina Europske unije (Zagreb, Hrvatski savez udruga pravnika u gospodarstvu, 2013). —— Radni odnosi u Republici Hrvatskoj (Zagreb, Pravni fakultet u Zagrebu and Organizator, 2007). —— Radni odnosi u Republici Hrvatskoj, 2nd edn (Zagreb, Organizator and Pravni fakultet Sveučilišta u Zagrebu, 2018). Sandler, G, Tomljenović, V and Bodiroga-Vukobrat, N (eds), Transnational, European, and National Labour Relations—Flexicurity and New Economy ­ (Springer Verlag, 2018). Vaalavuo, M, ‘Part-time work: A divided Europe’: http://ec.europa.eu/social/main. jsp?langId=hr&catId=89&newsId=2535&furtherNews=yes (27 November 2016). Vinković, M (ed), New Developments in EU Labour, Equality and Human Rights Law (Osijek, Josip Juraj Strossmayer University of Osijek Faculty of Law, 2015). Waas, B (ed), New forms of employment in Europe (Alphen aan den Rijn, Kluwer, 2016).

Cyprus Antoniou, M, ‘Το Δίκαιο Τερματισμού της Απασχόλησης στην Κύπρο’ (Nicosia, Ομοσπονδία Εργοδοτών και Βιομηχάνων (OEB) 2000). Demetriou, C, The impact of the crisis on fundamental rights across Member States of the EU—Country Report on Cyprus, project led by Milieu, commissioned by the LIBE Committee of the European Parliament, 2015: www.europarl.europa.eu/ RegData/etudes/STUD/2015/510017/IPOL_STU(2015)510017_EN.pdf. Emilianides, A and Ioannou, C, Labour Law in Cyprus (Wolters Kluwer International publications, 2016). Eurostat, Employment rate by sex, age group 20–64, 2007–2016 (%), http:// ec.europa.eu/eurostat/statistics-explained/index.php/Employment_statistics. Freedland, M, The Contract of Employment (Oxford University Press, 2016). Ioannou, G, ‘Employment in Crisis: Cyprus 2010–13’ (2014) 26(1) The Cyprus Review. —— ‘Labour Relations in Cyprus: Employment, Trade Unionism and Class Composition (PhD Thesis, University of Warwick, 2011): http://wrap.warwick.ac.uk/47187/.

966  Bibliography Polyviou, P, Η Σύμβαση Εργασίας (Nicosia, Chysafinis & Polyviou, 2016). Soumeli, E, ‘Temporary public employees threaten strike action’, EurWork, E ­ uropean Observatory of Working Life: www.eurofound.europa.eu/observatories/eurwork/ Arts/temporary-public-employees-threaten-strike-action. Trimikliniotis, N, Social and employment situation in Cyprus, Briefing Note requested by the European Parliament’s Committee on Employment and Social Affairs: www.europarl.europa.eu/committees/fr/studiesdownload.html?language Document=EN&file=75691. —— Ανεργία, Ετεροαπασχόληση και Άτυπες Μορφές Εργασίας των Νέων στη Κύπρο (Nicosia, Cyprus Labour Institute INEK-PEO, 2004). Trimikliniotis, N, Stavrou, S and Demetriou, C, The reality of free movement for young European citizens migrating in times of crisis, Cyprus National Report, ON-THE-MOVE, Grant Agreement JUST/2014/RCIT/AG/CITI/7269, D ­ ecember 2016: http://euonthemove.eu/wp-content/uploads/2017/05/Cyprus-nationalreport.pdf. Waas, B (ed), National Expert Report on Directive 1999/70/EC concerning the Framework Agreement on fixed-term work concluded by UNICE, CEEP and ETUC, ‘Studies on the implementation of Labour Law Directives in the enlarged European Union’, 2006’, on behalf of Human European Consultancy, Utrecht, the Netherlands, funded by the EU Commission. —— (ed), Cyprus National Expert Reports on Directive 97/81/EC concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC, Report for EU Commission on ‘Studies on the implementation of Labour Law Directives in the enlarged European Union’, 2006, on behalf of Human ­European Consultancy, Utrecht, the Netherlands, funded by the EU Commission. Waas, B (ed), New Forms of Employment in the EU (Wolters Kluwer International publications, 2016). Yiannakourou, S, Κυπριακό Εργατικό Δίκαιο (Nomiki Bibliothiki, 2016).

Czech Republic Belina, M and Drápal, L, The Labour Code. Commentary, 2nd edn (Prague, CH Beck, 2015). Belina, M, Pracovní právo, 6th edn (Prague, CH Beck, 2014). Hůrka, P et al, The Labour Code (exercise book) (Pracovní právo (učebnice)). 2nd edn (Plzeň, Nakladatelství Aleš Čeněk, 2014). —— The Labour Code and related provisions of the Civil Code with detailed commentary as of 1 January 2014 (Zákoník práce a související ustanovení občanského zákoníku s podrobným komentářem k 1. 1. 2014), 3rd edn (Olomouc, ANAG, 2014). Steinichová, L, The Act on Employment—commentary (Zákon o zaměstnanosti— komentář) (Prague, Wolters Kluwer, 2010, ASPI: Automatic System of Legal Information). Vrajík, M, ‘Job sharing in the Czech Republic and Slovakia’ ‘Dělené pracovní místo v České republice a Slovenské republice’, Praktická personalistika 07–08/2016, 10.

Bibliography 967 Denmark Falsner, F, ‘Fravigelse af vikarlovens ligebehandlingsprincip ved kollektiv ­overenskomst’ (2014) 1 Juristen 3. —— Den europæiserede vikar (Copenhagen University, 2015). Hasselbalch, O, Deltidsloven (DJØF, 2002). —— Den Danske Arbejdsret (DJØF, 2009). —— Informations- og samrådsloven med kommentarer (Thomson GadJura Verlag, 2005). —— Labour Law in Denmark, 3rd edn (Wolters Kluwer, 2012). —— Tidsbegrænset ansættelse, 2nd edn (DJØF, 2008). Kristiansen, J, ‘Virksomheders hæftelse for vikarbureauers manglende overholdelse af overenskomstmæssige forpligtelser’ (2006) Arbejdsretligt Tidsskrif 224. —— Den kollektive arbejdsret, 3rd ed (DJØF, 2014). —— Grundlæggende arbejdsret, 4th edn (DJØF, 2016). Larsen, T, Insidere og outsiderede—den danske models rækkevidde (DJØF, 2011). Nielsen, R, Dansk Arbejdsret, 3rd edn (DJØF, 2016). Waas, B and van Voss, GH (eds), Restatement of Labour Law in Europe. Vol 1: The Concept of Employee (Oxford and Portland OR, Hart Publishing, 2017).

Estonia Eesti tööelu uuring 2015 (Estonian Working Life 2015), Sotsiaalministeeriumi toimetised No 1/2017, 14–27: www.sm.ee/sites/default/files/content-editors/Minis teerium_kontaktid/Uuringu_ja_analuusid/eesti_tooelu_uuring_2015.pdf. European Foundation for the Improvement of Living and Working Conditions, ‘New forms of employment’: www.ioeemp.org/fileadmin/ioe_documents/publications/ Policy%20Areas/future_of_Work/EN/_2015-12-04__New_Forms_of_Employ ment_Eurofound.pdf. Käärats, E, Selgitused töölepingu seaduse juurde (Sotsiaalministeerium, Tallinn, 2013), lk. 11: www.sm.ee/sites/default/files/content-editors/eesmargid_ja_­ tegevused/Too/Toolepingu_seadus/selgitused_toolepingu_seaduse_juurde.pdf. Pärnits, K, Kollektiivlepingu roll ja regulatsioon nüüdisaegsetes töösuhetes (Doktoritöö, Tartu Ülikool, 2015): http://erb.nlib.ee/?kid=44571513&oid=b271bcae. Siitam, N, Tööleping ja töölepingu seadus (Tallinn, Kinnisvarakool Oü, 2016).

Finland Engblom, M, Työsuhteen ehdot—määräytyminen, muuttaminen ja tulkinta ­(Helsinki, Talentum, 2013). Eurofound, Developments in working life in Europe—EurWORK annual review 2015, 2016: www.eurofound.europa.eu/sites/default/files/ef_publication/field_ef_ document/ef1631en.pdf. Kairinen, M, Työoikeus perusteineen (Labour Law and its Background) (Raisio, Kansalliskirjasto–Fennica, 2009).

968  Bibliography Ministry of Economic Affairs and Employment: Vuokratyöopas, Guide to Temporary Agency Work: www.tem.fi/documents/1410877/2106637/TEM_vuokraty oopas_netti.pdf/d3bf1fb0-bd56-4c7f-aa2a-6877fc4429e5. Paanetoja, J and Tikkanen, H, Osa-aikatyön juridiikka (Helsinki, 2016). Pärnänen, A and Sutela, H, Työn tekemisen uudet muodot ja tilastot—kuinka työn muotoja luokitellaan? Työmarkkinoiden koko kuva: www.tilastokeskus.fi/artik kelit/2011/art_2011-12-12_002.html. Tiitinenn, K and Kröger, T, Työsopimusoikeus (Labour Contract Law) (Helsinki, Talentum, 2012). Tilastokeskus, Suomalaisten työaika Euroopan lyhyimpiä, 2012: www.tilastokeskus. fi/artikkelit/2012/art_2012-09-24_002.html?s=0.

France Auzero, G and Dockes, E, Droit du travail (Dalloz, 2016). Bizeur, F, ‘Contrat de travail à temps partiel: la Chambre sociale reste sur ses gardes!’ Les Petites Affiches, 2015, no 61, p 7. Bonnet, A, ‘Dans l’hypothèse où le passage à temps partiel est accordé de plein droit aux salariés qui en font la demande, les modalités de mise œuvre du passage à temps partiel restent soumises à l’accord des parties’ JS Lamy, 2016, no 408 p 18. Domergue, J-P, ‘Les formes juridiques et administratives de l’emploi précaire’, Droit ouvrier, 1997, no 582, p 112. Fadeuilhe, P, ‘Précisions sur les obligations mises à la charge de l’entreprise ­utilisatrice en cas de recours au travail temporaire’, Recueil Dalloz Sirey, 2008, no 21, p 1460. Krief, B, ‘le portage salarial: une relation commerciale atypique’, Cahiers sociaux, 2015, no 275, p 308. Lahalle, T, ‘Détermination des modalités d’organisation du travail à temps partiel’, La Semaine Juridique, Social, 2016, no 19, p 31. Le Cohu, P, ‘Nouveau visage du contrat d’apprentissage’, Les cahiers du DRH, 2015, no 220, p 2. Morand, M, ‘Les heures complémentaires structurelles: précisions’, La Semaine Juridique, Entreprise et affaires, 2016, no 5, p 25. —— ‘Travail intermittent: heures complémentaires ou supplémentaires?’, La Semaine Juridique, Social, 2014, no 41, p 33. Stulz, V, and d’Heilly, A, ‘En questions: le projet de loi “travail”’, La Semaine Juridique, Social, 2016, No 13, p 3.

Republic of Macedonia Govič, I and Drača, DM, Ugovor o Radu (TIM press, Zagreb, 2005). Jelčič, V, Radno Vrijeme (Knjižnica B Adžije). Каламатиев, T and Ристовски, А, Работа на определено време и работа со неполно работно време, нестандардни форми на работа во работното законодавство на Република Македонија, Деловно Право, Издание за теоријата и практиката на правото, Бр.34, Маy 2016, Скопје, стр.655. —— Флексибилност и Сигурност Радног Односа у Радном Законодавству Републике Македоније (развој и перспектива) (Радно и Социјално Право, часопис за теорију и праксу радног и социјалног права, Бр.1/2013, Година XVII, 2013).

Bibliography 969 Каламатиев, T, Работниот однос на определено време во Законот за работните односи на РМакедонија (Зборник во чест на животот и делото на Васил Грчев, Универзитет ‘Св.Кирил и Методиј’, Правен Факултет—Скопје, 2002 година). —— Работниот однос на определено време во Законот за работните односи на Р Македонија, (Зборник во чест на животот и делото на Универзитет ‘Св.Кирил и Методиј’, Правен Факултет—Скопје, 2002 година). Камчевска, Т, Работни односи—засновање, распоредување и престанок (Сигнум, 1997). —— Работни односи—засновање, распоредување и престанок (Сигнум, 1997). Marinkovič, D and Ruždjak, M, Zakon o Radu (komentar, primjeri, Sudska praksa, 2005). Milkovič, D, Prestanak Ugovora o Radu, Veliki Komentar Novog Zakona o Radu (Vaša Knjiga Zagreb, 2010). Миленков, Д and Томановиќ, Т, Прирачник за правата и обврските од работен однос (Агенција ‘Академик’—Скопје, 1995). Несторовски, Т, Прирачник за практична примена на Законот за работните односи со судска практика (Македонија Биро, Скопје, 1983). Popovič, T, Radno Pravo (Beograd, 1980). Ристовски А, Редефинирање на бинарниот модел на работните односи и регулирање на нестандардната работа (докторска дисертација, Скопје, 2015). Старова, Г, Трудово Право (Просветно Дело А.Д Скопје, 2005). Starova, G, Possibilities for Flexible Employment under Specific Employment Contracts in the Law on Employment Relations of the Republic of ­Macedonia (III. International Labour Law Dialogue, Flexible and Secure Employment, GV Založba, Publishing Company, Ltd. 2008).

Germany Boemke, B and Jäger, J-D, ‘Befristung wegen Eigenart der Arbeitsleistung—unter besonderer Berücksichtigung des Profisports’, Recht der Arbeit (RdA) 2017, p 20. Canaris, CW, ‘Ansprüche wegen “positiver Vertragsverletzung” und “Schutzwirkung für Dritte” bei nichtigen Verträgen’, Juristenzeitung (JZ), 1965, p 475. Frieling, T and Münder, M, ‘Neue richterrechtliche Grenzen der ­Tarifdispositivität sachgrundloser Befristungsmöglichkeiten’, Neue Zeitschrift für Arbeitsrecht (NZA), 2017, p 766. Fuhlrott, M and Fabritius, B, ‘Besonderheiten der betriebsbedingten Kündigung von Leiharbeitnehmern’, Neue Zeitschrift für Arbeitsrecht (NZA), 2014, p 122. Giesen, R, ‘Reform der Leiharbeit’, Zeitschrift für Rechtspolitik (ZRP), 2016, p 130. Jordan, C, Falter, K and Meyer-Michaelis, I, ‘Kundennähe als Grund für die A ­ blehnung eines Teilzeitbegehrens im Außendienst’, Betriebsberater (BB), 2016, p 1205. Müller-Glöge, R, Preis, U and Schmidt, I, Erfurter Kommentar zum Arbeitsrecht, 19th edn (Munich, CH Beck, 2019). Nakakubo, H and Araki, T (eds), Regulation of Fixed-Term Employment Contracts (Alphen aan den Rijn, Kluwer Law, 2010). Preis, U and Gotthardt, M, ‘Neuregelung der Teilzeitarbeit und befristeten ­Arbeitsverhältnisse’, Der Betrieb (DB), 2000, p 2065. Richardi, R (ed), Betriebsverfasssungsgesetz, 16th edn (München, CH Beck, 2018). Schüren, P and Hamann, W (eds), Arbeitnehmerüberlassungsgesetz, 5th edn (München, CH Beck, 2018).

970  Bibliography Schwarze, R, ‘Der Missbrauchstatbestand bei der befristungsrechtlichen Missbrauchskontrolle’, Recht der Arbeit (RdA), 2017, p 302. Waas, B, Blanpain, R and Hendrickx (eds), New Forms of Employment in Europe (Alphen aan den Rijn, Wolters Kluwer, 2016).

Greece Dermitzaki, F, Η απαγόρευση των διακρίσεων σε βάρος των εργαζομένων ορισμένου χρόνου (Athens, NB, 2010). Douka, V, Μερική Απασχόληση (Athens-Thessaloniki, Sakkoulas, 2004). Kinigopoulou, S, Προσωρινή απασχόληση (Athens, NB, 2015). Kiosse-Pavlidou, L, Οι συμβάσεις εργασίας ορισμένου χρόνου στο Δημόσιο, τα νπδδ και τον ευρύτερο δημόσιο τομέα (Athens-Thessaloniki, Sakkoulas, 2010). Koukiadis, I, Εργατικό Δίκαιο-Ατομικές εργασιακές σχέσεις (Athens-Thessaloniki, ­Sakkoulas, 2014). Koukiadis, I and Zerdelis, D, ‘Τροποποιητική καταγγελία για τη μετατροπή της πλήρους απασχόλησης σε μερική και η αρχή της ultima ratio’, Δελτίον Εργατικής Νομοθεσίας (Bulletin of Labour Law) 2011, p 244. Leventis, G and Papadimitriou, C, Ατομικό Εργατικό Δίκαιο (Athens, DEΝ, 2011). Papadimitriou, C, Η προσωρινή απασχόληση (Athens-Komotini, AN Sakkoulas, 2007). —— ‘Οι νομοθετικές ρυθμίσεις για την προσωρινή απασχόληση’, Δελτίον Εργατικής Νομοθεσίας (Bulletin of Labour Law), 2000, p 98. Rizos, K, Η σύμβαση εξαρτημένης εργασίας ορισμένου χρόνου (Athens, NB, 2016). Zerdelis, D, Ατομικές Εργασιακές Σχέσεις (Athens-Thessaloniki, Sakkoulas, 2015).

Hungary Bankó, Z, Az atipikus munkaviszonyok (Budapest, Dialóg Campus Kiadó-PTE ÁJK, 2010). Berke, G and Kiss, G, Kommentár a Munka Törvénykönyvéhez (Budapest, Wolters Kluwer, 2012). Kun, A, School cooperatives. A“Hungaricum” in labour law in the field of youth employment in Cuesta, HA (ed), Empleo Juvenil: un reto para Europa (Youth employment: a challenge for Europe) (Thomson Reuters Aranzadi, 2016). Ferencz, J, Atipikus foglalkoztatási formák (Budapest, Dialóg Campus, 2015). Gyulavári, T and Kártyás, G, ‘The Hungarian labour law reform. The great leap towards full employment’ Dereito Vol 21, No 2, pp 167–88 (Xullo–Decembro 2012). Kártyás, G, Munkaerő-kölcsönzés Magyarországon és az Európai Unióban (Doktori Értekezés, Eötvös Loránd Tudományegyetem, Budapest, 2011). —— ‘Az iskolaszövetkezeti munkaviszony helye a foglalkoztatási formák között’, Pécsi Munkajogi Közlemények (PMIK), Vol 6, 2013, p. 77. Kiss, G, ‘The Problem of Persons having similar Legal Status as Employees (Worker) and the Absence of Regulation of this Legal Status in the Hungarian Labour Code. The “third estate” of the Labour Market’, in G Kiss, Recent Developments in Labour Law (Budapest, Akadémiai Kiadó, 2013), p 259. Meszmann, T, The Rise of the Dual Labour Market: Fighting Precarious Employment in the New Member States through Industrial Relations (Precarir)—­Country

Bibliography 971 Report: Hungary, CELSI Research Report No 12 (Central European Labour ­Studies Institute, 2016). Poór, J, ‘Traditional and Atypical Employment in Light of Empirical Data’, ­Journal of Engineering Management and Competitiveness (JEMC), vol 3(2), 2013, pp 50–55.

Iceland Blöndal, E and Sigurðardóttir, RM, Labour Law in Iceland (Kluwer Law International, 2012). Icelandic Confederation of Labour (ASÍ), Icelandic labour law. A summary of basic rights and obligations on the private labour market, 6th edn (ASÍ, May 2013). —— Temporary work agencies—legal framework in Iceland, Information for temporary work agencies and user undertakings, 2006: www.vsfk.is/files/skjol-aensku/temporary_work_agenceis.pdf. —— Tímabundnar ráðningar (Fixed-term employment): www.asi.is/vinnurettarvefur/ rettindi-og-skyldur/stofnun-radningarsambands/timabundnar-radningar/ sonnun-fyrir-timabundinni-radningu/. Júlíusdóttir, LV, Réttindi og skyldur á vinnumarkaði (The Icelandic Confederation of Labour, 1997), p 65. —— Vinnumarkaðsréttur. Handrit til Kennslu (Reykjavík, 2007). Kristiansen, J (ed), Europe and the Nordic Collective Bargaining Model. The Complex Interaction between Nordic and European Labour Law (Nord 2015:541, Nordic Council of Ministers 2015), p 35. Líndal, S, Vinna og verkföll. Hverjir mega vinna og hverjir ekki í löglega boðuðum verkföllum, cf Act No 80/1938, Art 18. Úlfljótur, Vol 4 (1978). Örlyggson, Þ, ‘Efndir in natura’, Tímarit lögfræðinga, vol 4, 2000, p 285. Statistics Iceland, http://px.hagstofa.is/pxis/pxweb/is/Samfelag/Samfelag__­ vinnumarkadur__vinnumarkadur/VIN00910.px (accessed 18 January 2017).

Ireland Department of Education Circular 23/2015, www.education.ie/en/Circularsand-Forms/ArchiveCirculars/Implementation-of-the-Recommendations-of the-Expert-Group-on-Fixed-Term-and-Part-Time-Employment-in-Primary-andSecond-Level-Education-in-Ireland-Primary-.pdf. Dewhurst, E, ‘Migrant Worker Recruitment in an Era of Globalisation: Lessons for the Legal Regulation of Recruitment Agencies in Ireland’, Working Papers on International Studies No. 8/2011 (Centre for International Studies, Dublin City University): doras.dcu.ie/16653/1/1108.pdf. Kerr, A, The Trade Union and Industrial Relations Acts 5th edn, 2015. Madden, D and Kerr, A, Unfair Dismissal: Cases and Commentary, 1st edn (Federation of Irish Employers, 1990). —— Unfair Dismissal: Cases and Commentary, 2nd edn (Irish Business and E ­ mployers Confederation 1996). Murphy, A (ed), Employment Law, 2nd edn (Bloomsbury, 2017). O’Sullivan, M, Turner, T, McMahon, J, Ryan, L, Lavelle, J, Murphy, C, O’Brien, M and Gunnigle, P, A Study on the Prevalence of Zero Hours Contracts among Irish Employers and their Impact on Employees, 2015: www.dbei.gov.ie/en/Publica tions/Publication-files/Study-on-the-Prevalence-of-Zero-Hours-Contracts.pdf.

972  Bibliography Italy Aimo, M, Il lavoro a termine tra modello europeo e regole nazionali (Giappichelli, 2017). Aimo, M, ‘La nuova disciplina su lavoro a termine e somministrazione a confronto con le direttive europee: assolto il dovere di conformità?’ Giornale di diritto del lavoro e delle relazioni industriali 635 (2015). Ales, E, ‘Dal caso FIAT al “caso Italia”. Il diritto del lavoro ‘di prossimità’, le sue scaturigini e i suoi limiti costituzionali’, Diritto delle relazioni industriali 1061 (2011). —— ‘La nuova disciplina del contratto a termine è conforme al diritto comunitario? Una risposta (nel complesso) positiva’, Rivista italiana di diritto del lavoro, II, 304 (2015). Alessi, C, Flessibilità del lavoro e potere organizzato (Turin, Giappichelli, 2012). Bavaro, V and De Cristofaro, ML, Lavoro part-time, Digesto, aggiornamento (Turin, Utet, 2000). Bollani, A, ‘Contrattazione collettiva di prossimità e limiti costituzionali’, A ­ rgomenti di diritto del lavoro (ADL) 1219 (2012). —— ‘Contratto a termine e somministrazione nelle scelte del legislatore del 2018’, Diritto e pratica del lavoro, Supplement, 40 (2018). Breccia, U, Cheli, E, Costi, R, Falzea, A, Grossi, P, Morbidelli, G, Orlandi, R, Rusciano, M and Villani, U, Enciclopedia del Diritto, Annali IX (Milan, Giuffré, 2016). Carinci, F, Commentario al d. lgs. 10 settembre 2003 n. 276 (Ipsoa, 2004). —— Commentario al D.lgs. 10 settembre 2003 n. 276 (Ipsoa, 2004). Chieco, P (ed), Flessibilità e tutele nel lavoro. Commentario della legge 28 giugno 2012, n. 92 (Bari, Cacucci, 2013). Ciucciovino, S, ‘Il contratto a tempo determinato: la prima stagione applicativa del d.lgs. n. 368/2001’, Giornale di diritto del lavoro e delle relazioni industriali 455 (2007). Corazza, L, ‘Lavoro intermittente senza obbligo di risposta e principi comunitari in tema di discriminazioni indirette’, Massimario di Giurisprudenza del Lavoro 185 (2005). De Angelis, L, ‘Lavoro intermittente senza obbligo di risposta alla chiamata: ­contratto senza contratto’, Argomenti di diritto del lavoro 885 (2004). Del Punta, R and Romei, R, (eds), I rapporti di lavoro a termine (Milan, Giuffrè, 2013). Delfino, M, Il lavoro part-time nella prospettiva comunitaria (Jovene, 2008). Fiorilloand, L and Perulli, A (eds), Tipologie contrattuali e disciplina delle mansioni. Decreto legislativo 15 giugno 2015, n. 81 (Turin, Gippichelli, 2015). Furlan, F, ‘La somministrazione di lavoro all’indomani del Jobs Act’, in G Zilio Grandi and M Biasi (eds), Commentario breve alla riforma ‘Jobs Act’ (Padua, Cedam, 2016). Ghera, E and Garofalo, D (eds), Contratti di lavoro, mansioni e misure di ­conciliazione vita-lavoro nel Jobs Act 2 (Bari, Cacucci, 2015). Ghezzi, G (ed), Il lavoro tra progresso e mercificazione (Ediesse, 2004).

Bibliography 973 Gragnoli, E and Perulli, A (eds), La riforma del mercato del lavoro e i nuovi m ­ odelli contrattuali. Commentario al decreto legislativo 10 settembre 2003, n. 276 (Padua, Cedam, 2004). Grandi, Z and Biasi, M (eds), Commentario breve alla riforma ‘Jobs Act’ (Padua, Cedam, 2016). Lai, M, ‘La sicurezza del lavoro nelle nuove tipologie contrattuali’, Diritti Lavori Mercati 99 (2005). Lo Faro, A, ‘Il Part Time Italia’, Giornale di Diritto del Lavoro e di relazioni industriali 603 (2000). Magnani, M, La disciplina del contratto di lavoro a tempo determinato: novità e implicazioni sistematiche, WP CSDLE ‘Massimo D’Antona’ IT— 212/2014, p 3. Magnani, M, Pandolfo, A, Varesi, PA (eds), I contratti di lavoro. Commentario al d.lgs. 15 giugno 2015, n. 81, recante la disciplina organica dei contratti di lavoro e revisione della normativa in tema di mansioni, a norma dell’art. 1, comma 7, della l. 10 dicembre 2014, n. 183 (Turin, Giappichelli, 2016). Magnani, M and Tiraboschi, M (eds), La nuova riforma del lavoro. Commentario alla legge 28 giugno 2012, no 92 recante disposizioni in materia di riforma del mercato del lavoro in una prospettiva di crescita, Le nuove leggi civili (Milan, Giuffré, 2012). Maresca, A, ‘La contrattazione collettiva aziendale dopo l’articolo 8 del decreto legge 13 agosto 2011, n. 138’, Diritto delle relazioni industriali (2012) 16. Menghini, L (ed), La nuova disciplina del lavoro a termine. D.Lgs. n. 368/2001 (Ipsoa, 2002). Pandolfo, A and Passalacqua, P, Il nuovo contratto di lavoro a termine (Turin, Giappichelli, 2014). Pascucci, P, Dopo la legge n. 123 del 2007. Titolo I del d.lgs. 9 aprile 2008, n. 81 in materia di tutela della salute e della sicurezza nei luoghi di lavoro, WP CSDLE ‘Massimo D’Antona’ IT— 73/2008, p 35. Pedrazzoli, M, Il nuovo mercato del lavoro (Zanichelli, 2004). Perone, G (ed), Il contratto di lavoro a tempo determinato nel d.lgs. 6 settembre 2001, n. 368 (Turin, Giappichelli, 2002). Perulli, A (ed), Impiego flessibile e mercato del lavoro (Turin, Giappichelli, 2004). —— ‘La contrattazione collettiva di prossimità: teoria, comparazione e prassi’, Rivista Italiana di Diritto del Lavoro 928 (2012). Saracini, P, ‘Il contratto a termine nel Jobs Act’, Diritti Lavori Mercati, vol 2, 419 (2015). —— Contratto a termine e stabilità del lavoro (ESI, 2013). Stizia, A, ‘Potere organizzativo e condotta antisindacale: sostituzione di lavoratori scioperanti con non aderenti allo sciopero e sondaggio preventivo sull’adesione allo stesso’, Rivista italiana di diritto del lavoro 422 (2008). Tiraboschi, M (ed), Le esternalizzazioni dopo la riforma Biagi. Somministrazione, appalto, distacco e trasferimento díazienda (Milan, Giuffré, 2006). —— Il testo unico della salute e sicurezza nei luoghi di lavoro. Commentario al decreto legislativo 9 aprile 2008, n. 81 (Milan, Giuffrè, 2008). Vallebona, A, La riforma del lavoro 2012 (Turin, Giappichelli, 2012). Various authors, Studi in onore di Mattia Persiani (Padua, Cedam, 2005). Various authors, Studi in onore di Giorgio Ghezzi (Padua, Cedam, 2005).

974  Bibliography L Zoppoli, Il diritto del lavoro gialloverde: tra demagogia, cosmesi e paralisi ­regressiva, WP CSDLE ‘Massimo D’Antona’ IT— 377/2018.

Latvia Bureau of Sworn Attorneys BDO Zelmenis & Liberte, Comments on the Labour Code, (Confederation of Free Trade Unions, 2010).

Lithuania Blanpain, R (ed), The Modernisation of the Labour Law and Industrial Relations in the Comparative Perspective (Kluwer Law International, 2009). Bubilaityte, B, ‘Terminuotų darbo sutarčių teisinio reguliavimo ypatumai pagal Lietuvos teisę’, Teisė, 2008, No 69, 132. Darbo ir socialinių tyrimų institutas, Agentūrinio darbo teisinio reguliavimo ­Lietuvoje galimybių bei įtakos darbo rinkai tyrimas (Vilnius, 2004). Davulis, T, ‘Darbo teisės modernizavimo perspektyvos’, Jurisprudencija, 2008, No 8, 27. —— Darbo teisė: Europos Sąjunga ir Lietuva (Teisinės informacijos centras, 2004). Davulis, T and Petrylaite, D (eds), Labour Regulations in the 21st Century. In search of flexibility and Security (Cambridge Scholars Publishing, 2012). Tiazkijus, V, Darbo teisė: teorija ir praktika (Justitia, 2005). Usonis, J and Bagdanskis, T, ‘Darbo nuoma ir jos teisinio reguliavimo perspektyvos Lietuvoje’ Jurisprudencija, 2008, No 110, 65.

Luxembourg Haag, A, Mesure empirique de la flexibilité du marché du travail l­uxembourgeois, Les cahiers du CEPS/Instead, Population & Emploi, Cahier No 2010-28, ­décembre 2010. Reding, J-C and Tremuth, N, Panorama Social 2015 No 1 (April 2015). RETEL Observatoire de l’Emploi, Tableau de bord du marché de l’emploi No 3, juin 2015.

Malta No references to list.

Montenegro No references to list.

The Netherlands Blanpain, R and Hendrickx, F (eds), Temporary Agency Work in the European Union and the United States (Deventer, Kluwer, 2013). Bouwens, W, ‘Wet werk en zekerheid: Uitzonderingen voor jongeren in strijd met Europees recht’ (2014) Nederlands Juristenblad, 32, 2237 [1677].

Bibliography 975 Bungener, AF, ‘De nieuwe ketenregeling en de grenzen van flexibiliteit’ (2016) 23 Tijdschrift Recht en Arbeid (TRA), 9. Burri, S, Tijd delen, Deeltijd, gelijkheid en gender in Europees- en n ­ ationaalrechtelijk perspectief (Deventer, Kluwer, 2000). de Groot, CJH, ‘De flexmaatregelen van de Wet werk en zekerheid’ (2014) 6 ­Tijdschrift Recht en Arbeid (TRA) 267. de Wolff, DJB, ‘De (opvolgende) arbeidsovereenkomst voor bepaalde tijd’ (2014) ArbeidsRecht 49. —— ‘De arbeidsovereenkomst voor bepaalde tijd volgens het Wetsvoorstel Werk en Zekerheid’ (2014) 3 Tijdschrift Recht en Arbeid (TRA) 28. —— ‘Werk en zekerheid deel 1: “flexrecht” deels herzien’ (2014) ArbeidsRecht 37. —— Arbeid voor bepaalde tijd: nieuwe regels en rechtspraak (Deventer, Kluwer, 2003). —— Arbeidsovereenkomst (Deventer, Kluwer, 2015). —— De arbeidsovereenkomst voor bepaalde tijd (Deventer, Kluwer, 1999). —— Wet aanpassing arbeidsduur (Deventer, Kluwer, 2000). Grapperhaus, FBJ and Jansen, M, De uitzendovereenkomst (Deventer, Kluwer, 1999). Grapperhaus, FBJ, Tekst & Commentaar Burgerlijk Wetboek (Wolters Kluwer, 2016). Hartkamp, AS et al (eds), De invloed van het Europese recht op het Nederlandse privaatrecht (Deventer, Kluwer, 2014). Heerma van Voss, GJJ and Assers, C, Handleiding tot de beoefening van het ­Nederlands Burgerlijk Recht. 7. Bijzondere overeenkomsten Deel V, Arbeidsovereenkomst (Kluwer, 2015). Hennevelt, M, Louisse, M and Bijveld, W, ‘Nederland en gelijke bezoldiging: in lijn met de Uitzendrichtlijn?’ (2011) 58 Tijdschrift Recht en Arbeid (TRA) 16. Hermans, KH and Houwerzijl, MS, ‘Verbeterde positie uitzendkracht en uitzendarbeid’ (2009) 6–7(60) Tijdschrift Recht en Arbeid (TRA) 27. Houweling, AR and van der Voet, GW, ‘Wetsvoorstel werk en zekerheid en de arbeidsovereenkomst voor bepaalde tijd: over het nieuwe jaarcontract van acht maanden’ (2014) 3 Tijdschrift Recht en Arbeid (TRA) 23. Houweling, AR (ed), Loonstra & Zondag Arbeidsrechtelijke themata (Den Haag, Boom Juridische uitgevers, 2015). Kullmann, M, ‘Unused Potential? The Risks of Unemployed “Older” Workers’ (2016) 7 European Labour Law Journal 442. Loonstra, CJ and Sick, PTH, ‘Het Wetsvoorstel werk en zekerheid (33818) in vogelvlucht: dekt de vlag de lading?’ (2014) 1 Tijdschrift arbeidsrechtpraktijk (TAP) 4. Rehbock, AEL and van Dijk, AJ, ‘Overzicht gelijkebehandelingswetgeving’ (2005) 29 Arbeidsrecht 12. van den Heuvel, LH, Tussen vrijheid en bescherming (Deventer, Kluwer, 1988). Verhulp, E, ‘De arbeidsovereenkomst voor onbepaalde tijd als onbereikbaar ­statussymboo na inwerkingtreding Wetsvoorstel Werk en Zekerheid?’ (2014) 3  ­Tijdschrift Recht en Arbeid (TRA) 20. Visser, ET and Ngalle, RMR, ‘WWZ en gelijke behandeling’ (2014) ArbeidsRecht 61. Zanten-Baris, A van, ‘Een “kleurloze” (transitie)vergoeding bij ontslag?’ (2014) 3 Tijdschrift Recht en Arbeid (TRA) 52.

976  Bibliography Zwemmer, JPH, ‘Uitzenden, payrolling, schijnzelfstandigen en de Wet werk en ­zekerheid’ (2014) ArbeidsRecht 60.

Norway Aune, H, Deltidsarbeid: Vern mot diskriminering på strukturelt og individuelt grunnlag (Cappelen Damm Publishing House, Norway, 2013). Burri, S, Masse-Dessen, H, McCrudden, C and Senden, L (eds), European ­Network of Legal Experts in the Field of Gender Equality, European Gender Equality Law Review 1/2014, European Commission, Directorate-General for Justice, Unit JUST/D1: http://ec.europa.eu/justice/gender-equality/files/law_reviews/egelr_ 2014_1_final_web_en.pdf. Burri, S and Aune, H, Sex Discrimination in Relation to Part-Time and FixedTerm Work: The application of EU and national law in practice in 33 European countries, November 2013, European Commission, Directorate-General For Justice, Unit JUST/D/1: http://ec.europa.eu/justice/gender-equality/files/your_rights/ sex_discrimination_in_relation_to_part_time_and_fixed_term_final_en.pdf. Jakhelln, H, Kommentar til arbeidstvistloven/Commentary to the Labour Disputes Act (Fagbokforlaget Publishing House, 2012). Melsom, N, ‘Fast ansettelse uten garantilønn’ (2017) 1 Arbeitsrett. Søreide, C, ‘Grensen mellom fast og midlertidig ansettelse’ (2017) 1 Arbeitsrett.

Poland Abrantes, JJ, (ed), Congresso Europeu De Direito Do Trabalho. Comunicacoes appresentadas no Congresso organizado pela ELSA Nova Lisboa e pela Faculdade de Direito da Universidade Nova de Lisboa, realizado nos dias 12, 13, e 14 de Abril de 2012 (Lisboa, 2014). Baran, KW (ed), Outline of Polish Labour Law System (Wolters Kluwer, Warszawa, 2016). Baran, KW and Goździewicz G (eds), System prawa pracy: Tom II, Indywidualne prawo pracy, Część Ogólna (Wolters Kluwer, Warszawa 2017). Bigaj, A, Prawo do urlopu wypoczynkowego (Warszawa, 2015). Blanpain, R (ed) and Lyutov, N (guest ed), Workers’ Representation in Central and Eastern Europe. Challenges and Opportunities for the Works Councils’ ­System, Bulletin of Comparative Labour Relations vol 85 (Wolters Kluwer Law & ­Business, Alphen aan den Rijn, 2014). Blanpain, R and Hendrickx, F (eds), Waas, B (guest ed), New Forms of Employment in Europe. Bulletin of Comparative Labour Relations vol 94 (Wolters Kluwer, Alphen aan den Rijn, 2016). Carby-Hall, J and Rycak M (eds), Trade unions and non-union employee representation in Europe—the current state of play and prospects for the future (CH Beck, Warszawa, 2016). Cudowski, B, ‘Zbiorowe stosunki pracy z udziałem pracowników tymczasowych’, Monitor Prawa Pracy, April 2005, 96. Czerniak-Swędzioł, J (ed), Uprawnienia pracowników związane z rodzicielstwem w świetle przepisów prawa pracy i ubezpieczeń społecznych (Wolters Kluwer, ­Warszawa, 2016).

Bibliography 977 Davulis, T and Petrylaite, D (eds), Labour Market of the 21st Century: Looking for Flexibility and Security (Vilnius, 2011). Drabek, A and Wrocławska, T, Nowe rozwiązania na rzecz ochrony miejsc pracy— warunki uruchomienia pomocy, Praca i Zabezpieczenie Społeczne, January 2014, 19. Dral, A, ‘Szczególna ochrona umownego stosunku pracy’ in System prawa pracy, vol II, Indywidualne prawo pracy. Część ogólna, G. Goździewicz (ed), (Warszawa, 2017). Faulkner, N, Glogier-Osińska, B, Sikora, J, Prawo pracy—zbiór ustaw i rozporządzeń. (A Collection of Labour Law Acts and Ordinances) (CH Beck, Warsaw, 2013). Florczak, I and Góral, Z (eds), Development in Labour Law from a Comparative Perspective, (Wydawnictwo Uniwersytetu Łódzkiego, Łódź, 2015). Florek, L, ‘Umowa o pracę na czas określony’, Praca i Zabezpieczenie Społeczne, December 2015, 2. Hajn, Z and Mitrus, L, Labour Law in Poland (Wolters Kluwer, Alphen aan den Rijn, 2016). Jamroży, A and Faulkner, N, The Labour Code. Kodeks pracy (CH Beck, Warsaw, 2014). Jaśkowski, K, ‘Nowa umowa o pracę na czas określony’ Praca i Zabezpieczenie Społeczne, November 2015, 2. Kosut, A and Perdeus, W (eds), Przemiany prawa pracy od kodyfikacji do współczesności. Księga Jubileuszowa w siedemdziesięciolecie urodzin Profesor Teresy Liszcz (Lublin, 2015). Maniewska, E, Obowiązki informacyjne pracodawcy wobec pracownika w ­umownym stosunku pracy (WoltersKluwer Business, Warszawa, 2013). Mędrala, M (ed), Terminowe umowy o pracę. Aktualne problemy zatrudnienia (Wolters Kluwer, Warszawa, 2017). Mitrus, L (ed), Studia z zakresu prawa pracy i polityki społecznej, Liber Amicorum Prof Dr habil. Andrzej Marian Świątkowski (Musica Iagellonica, Kraków, 2009). —— ‘Projekt nowelizacji Kodeksu pracy dotyczący umów terminowych’, Monitor Prawa Pracy, June 2015, 285. —— ‘Recent Developments of Polish Labour Law’, Europäische Zeitschrift für Arbeitsrecht No 3/2014, 417. Pennings, F and Bosse, C (eds), The Protection of Working Relationships. A Comparative Study (Wolters Kluwer Law & Business, Alphen aan den Rijn, 2011). Pisarczyk, Ł, ‘Nowy model zatrudnienia terminowego w prawie pracy? Część 1’, Monitor Prawa Pracy, April 2016, 178. —— ‘Przestój ekonomiczny I obniżony wymiar czasu pracy—powrót do znanych instrumentów antykryzysowych’, Monitor Prawa Pracy, December 2013, 623. Reda-Ciszewska A, ‘Praca tymczasowa w sądach’, Monitor Prawa Pracy, October 2015, 10. Rönnmar, M and Votinus, JJ (eds), Festskrift till Ann Numhauser-Henning (Juristförlager i Lund, Lund 2017). Rylski, M, ‘Przeciwdziałanie nadużywaniu umów na czas określony po nowelizacji kodeksu pracy’, Praca i Zabezpieczenie Społeczne, November 2016, 20. Sobczyk, A (ed), Z problematyki zatrudnienia tymczasowego (Wolters Kluwer ­Business, Warszawa, 2011).

978  Bibliography —— (ed), Kodeks pracy. Komentarz, 3rd edn (Warszawa, CH Beck, 2017). —— ‘Obowiązek uzasadnienia wypowiedzenia umowy terminowej’, Praca i ­Zabezpieczenie Społeczne, June 2017, 6. —— ‘Prawo do pracy a zatrudnienie terminowe I niepełnowymiarowe’, Praca i Zabezpieczenie Społeczne, November 2016, 2. Stelina, J, ‘Nowa koncepcja umowy o pracę na czas określony’, Państwo i Prawo, November 2015, 41.

Portugal Almeida, J, ‘Report on Portugal’, Age Discrimination Law in Europe (Wolters ­Kluwer, 2009). Ferreira de Almeida, C, Contratos II, Conteúdo, Contratos de troca (Almedina, 2007). Menezes Cordeiro, A, Manual de Direito do Trabalho (Almedina, 1991). Palma Ramalho, MR, Tratado de Direito do Trabalho. Parte II—Situações Laborais Individuais, 4th edn (Almedina, 2012). Various authors, O Tempo de Trabalho (Centro de Estudos Judiciários CEJ, L ­ isboa, 2014): www.cej.mj.pt/cej/recursos/ebooks/trabalho/o_tempo_de_trabalho.pdf?id= 9&username=guest.

Romania Athanasiu, A, Codul muncii, Comentariu pe articole (CH Beck, Bucharest, 2012). Dimitriu, R, Dreptul muncii. Anxietăţi ale prezentului (Rentrop & Straton, ­Bucharest, 2016). —— Consilier—Codul muncii (Adviser—the Labour Code), (Rentrop & Straton, Bucharest, 2015) D 30/004. Eurostat: http://ec.europa.eu/eurostat/statistics-explained/index.php/Employment_ statistics#Part-time_and_fixed-term_contracts. Institutul Naţional De Statistică, ‘Household Labour Force Survey’ (AMIGO) (2017): (Labour Force in Romania. Employment and Unemployment in 2016): www.insse.ro/cms/sites/default/files/field/publicatii/forta_de_munca_ocupare_si_ somaj_in_anul_2016.pdf. Ioan, M, ‘Contractul individual de muncă cu timp parţial’, Revista română de ­dreptul muncii issue 4, 2006. Lipcanu, E, ‘Unele reflecţii asupra reglementării răspunderii comitenţilor pentru prepuşi în noul Cod civil român’, Dreptul (The Law) issue 1, 2010. Rotilă, V, Calitatea vieţii profesionale a salariaţilor din Sănătate; studii, analize şi demersuri privind unii dintre indicatori (Sodalitas, Bucharest, 2016). Ştefănescu, IT, Tratat teoretic şi practic de dreptul muncii, 4th edn (Universul Juridic, Bucharest, 2017). Ticlea, A, Tratat de dreptul muncii. Legislaţie. Doctrină. Jurisprudenţă, 9th edn (Universul Juridic, Bucharest, 2015). Ţinca, O, ‘Comentarii referitoare la discriminarea pe criteriul vârstei în raporturile de muncă’, Dreptul (The Law) issue 8, 2009.

Bibliography 979 Russia 5th Annual Legal Seminar of the European Labour Law Network (ELLN) ‘Labour Law in a Greying Labour Market: Challenges of Active Ageing’. Seminar Report (The Hague, 11–12 October 2012). Available on the ELLN site http://www. labourlawnetwork.eu/frontend/file.php?id=317&dl=1. Blanpain, R (ed), Workers’ Representation in Central and Eastern Europe. Challenges and Opportunities for the Works Councils System (New York, Wolters Kluwer Law & Business). Lebedev, V and Radevich, E, (eds), Labour Law in Russia. Newcastle upon Tyne (Cambridge Scholars Publishing). Morin, M, ‘Labour Law and New Forms of Corporate Organization’ (2005) 144 International Labour Review. Opredelenie Konstitutsionnogo Suda Rossiiskoi Federatsii, ‘Ob otkaze v priniatii k rassmotreniiu zaprosa Amurskogo gorodskogo suda Khabarovskogo kraia o proverke konstitutsionnosti polozheniia stat’i 59 Trudovogo Kodeksa Rossiiskoi Federatsii’ (15 May 2007), No.378-O-P., Vestnik Verkhovnogo Suda RF (2007) No 6. Polozhenie ob akademicheskikh nadbavkakh federal’nogo gosudarstvennogo avtonomnogo obrazovatel’nogo uchrezhdeniya vysshego professional’nogo obrazovaniya ‘Natisonal’niy issledovatel’skiy Universitet ‘Vysshaya shkola ekonomiki’ (Положение об академических надбавках федерального государственного автономного образовательного учреждения высшего профессионального образования ‘Национальный исследовательский университет ‘Высшая школа эк ономики’), adopted by the Academic Council of NRU HSE. 24 November 2017. Available at: https://www.hse.ru/docs/212898410.html. Waas, B and van Voss, GH, (eds), Restatement of Labour Law in Europe. Vol 1: The Concept of Employee (Oxford and Portland OR, Hart Publishing, 2017). Бизюков, ВА, ‘Социологическое исследование “Дискриминация в сфере труда: распространенность, формы и причины существования”’ (Tsentr sotsial’notrudovykh prav, Moscow, 2008): http://trudprava.ru/expert/research/ discriminsurv/565. Васильева, ТА, ‘Специфика дискриминации по признаку пола и правовых механизмов ее предотвращения’ [‘The Specifics of Age Discrimination and of the Legal Mechanisms Aimed at its Prevention’] in ТА Васильева (ed), Защита личности от дискриминации по признаку возраста: сборник документов [Protection of persons from the age discrimination: a collection of documents], (Iuriks, Moscow, 2010), 7–12. Власенко, МС, Проблемы правового регулирования заемного труда в России: Дис. … канд. юрид. наук: 12.00.05 М., 2009. Кривой, ЯВ, Правовое регулирование заемного труда: международно-правовой, сравнительный и национальный аспекты. Дис. … канд. юрид. наук: 12.00.05 М., 2006. Герасимова, ЕС, ‘Кому выгоден заемный труд?’ Московские новости, 29 June 2011: http://www.mn.ru/newspaper_opinions/20110629/302366852.html. Герасимова, ЕС, Бизюков ПВ, ‘Рабы напрокат.’ Газета.ру, 5 March 2011: http:// www.gazeta.ru/comments/2011/03/05_a_3546529.shtml.

980  Bibliography Головина, СЮ, ‘Основания и пределы дифференциации в трудовом праве’ in Российское трудовое право на рубеже тысячелетий. Ч. 1 (Saint Petersburg, 2001). —— Содержание трудового договора при заемном труде. Хозяйство и право, № 10, 2004. Гусов, КН, ‘Единство и дифференциация трудового права: некоторые вопросы’, in КН Гусов (ed), Проблемы дифференциации в правовом регулировании труда и социального обеспечения (Prospect, Moscow, 2009), 31–36. Киселев, И, Карабельников, Б, Черкасова, Э, Кукса, С, Юдкин, В, Леонов, А, Свечкаренко, В, ‘Концепция регулирования заемного труда.’ Хозяйство и право, № 2, 3, 2004. Лушников, АМ, ‘Проблемы дифференциации в правовом регулировании отношений в сфере труда’ in КН Гусов (ed), Проблемы дифференциации в правовом регулировании отношений в сфере труда и социального обеспечения. Мат-лы межд. науч. практ. конф. (Moscow, Prospect, 2009), 10–12. Лушникова, МВ, Лушников, АМ, ‘Заемный труд: исторический опыт и перспективы правового регулирования.’ Человек и труд, № 7, 2004. Лютов, НЛ, ‘Права работников при смене собственника имущества организации: проблемы российского законодательства и нормы европейского союза’ (2008) 4 Российский ежегодник трудового права 467–94. Нуртдинова, А, ‘Заемный труд: особенности организации и возможности правового регулирования.’ Хозяйство и право, № 9, 2004. Рымкевич, ОП, Сравнительно-правовой анализ регулирования отношений по заемному труду: Дис. … канд. юрид. наук: 12.00.05 СПб., 2005. Скачкова, ГС, Расширение сферы действия трудового права и дифференциации его норм (Moscow, 2003). Хаваяшхов, АА, ‘Аффилированные лица в трудовом праве’ (2012) 4 Кадровик. Трудовое право для кадровика 8. —— Множественность лиц на стороне работодателя: сравнительно-правовой анализ. Дисс. … к.ю.н., М., 2015. Харитонов, ММ, Множественность лиц на стороне работодателя. Научнопрактическое пособие. (М: Юстицинформ, 2011).

Serbia Đuričić, M and Kulić, Ž, Radno pravo (Labour Law) (Belgrade, 2009). Ivošević, Z and Ivošević, M, Komentar Zakona o radu (Commentary on the Labour Code) (Belgrade, 2006), pp 125–27. Konsalting, M, ‘Beznađe nezaposlenih radnika Srbije’ (‘Hopelessness of unemployed workers in Serbia’), 20 April 2012: www.mena.rs/cms/index.php?option=com_ content&view=article&id=379%3Abeznae-nezaposlenih-radnika-srbije&catid= 47%3Avesti&Itemid=50&lang=sr. ‘Nepuno radno vreme—aneks ugovora, propisi i mišljenja Ministarstva’ (­ ‘Part-time work—annex to the contract, regulations and opinions of the Ministry’), Overa: www.overa.rs/nepuno-radno-vreme-aneks-ugovora-propisi-i-misljenja-­ ministarstva.html. ‘Poslodavci pišu novi Zakon o radu’ (‘Employers are writing a new labour law’), B 92 online, 30 September 2012: www.b92.net/info/vesti/index.php?yyyy=2012&mm= 09&dd=30&nav_id=6.

Bibliography 981 Pravni okvir i rupe u zakonu—ustupanje i lizing radnika u Srbiji (Legal framework and loopholes in the law—assignment and leasing of workers in Serbia), HR Bulevar: www.ustupanje-radnika.com/#!Pravni-okvir-i-rupe-u-zakonu-ustu panje-i-lizing-radnika-u-Srbiji/c219o/571e1d4c0cf232b075cd7e06, accessed 23 June 2016. Pravno shvatanje Građanskog odeljenja Vrhovnog kasacionog suda od 25 ­December 2012 (Legal interpretation of the Civil Division of the Supreme Cassation Court of 25 December 2012), Supreme Cassation Court of the Republic of Serbia, Belgrade. Reljanović, M, ‘Ko (ne) štiti prava radnika na lizing?’ (‘Who (do not) protects workers’ rights on leasing?’) Biznis & Finansije (Business & Finance): http://bif. rs/2016/06/ko-nestiti-prava-adnika-na-lizing/ (23 June 2016). Rilak, M, ‘Fleksibilni rad u Srbiji: pola posla’ (‘Flexible work in Serbia, part-time job’), Biznis & Finansije: http://bif.rs/2013/09/fleksibilni-rad-u-srbiji-pola-posla/, accessed 22 June 2016. ‘U prosveti 30.000 nastavnika s nepunim radnim vremenom’, Blic (dnevne novine) (‘In education 30,000 teachers with part-time work’, Blic (daily newspapers), 26 March 2014: www.blic.rs/vesti/drustvo/u-prosveti-30000-nastavnika-s-nepunimradnim-vremenom/2v3qfwv. Vodič: Radnici na lizing—Vodič o pravima radnika privremeno angažovanih preko agencija za zapošljavanje (Share fondacija i Međunaroni centar Olof Palme, Beograd, Mart 2016). (Guidelines: Workers on leasing—Guidelines on the rights of workers hired through temporary employment agencies (Share foundations and International Center Olof Palme, Belgrade, March 2016)): http://savez.rs/wp-­ content/uploads/2016/03/RADNICI-NA-LIZING-VODIC.pdf. Zakon o radu—najčešće zloupotrebe prava i obaveza, Savez samostalnih sindikata grada Novog Sada i opština (Labour Code—the most common abuses of rights and obligations, Confederation of Trade Unions City of Novi Sad and Municipalities): www.gf.uns.ac.rs/…/ZOR_najcesce%20zloupotrebe%20prava%20i%20oba veza.ppt.

Slovakia No references to list.

Slovenia Bečan, I, Zakon o delovnih razmerjih s komentarjem (Ljubljana, GV Založba, 2008). Belopavlovič, N, ‘Pravna vprašanja nove ureditve zaposlitve za določen čas in ­agencijskega dela’, Delavci in delodajalci 2–3/2013, 169. —— Zakon o delovnih razmerjih (ZDR-1) s komentarjem (Ljubljana, IUS software, GV Založba, 2016). Končar, P, ‘Ureditev zagotavljanja začasnega dela in vpliv Direktive 2008/104/ES’, Delavci in delodajalci 2–3/2012, 143. Mag. Tanja Dobrin, Oblike delavskih voljenih predstavništev, v: Soupravljanje zaposlenih v Sloveniji, Nemčiji in Evropi, Mednarodna konferenca, Friedrich Ebert Stiftung, Hans Böckler Stiftung, Institut za delo pri Pravni fakulteti Univerze v Ljubljani, Ljubljana, Januar 1994.

982  Bibliography Spain Areta Martínez, M, El régimen jurídico de la antigüedad del trabajador en la empresa (Thomson-Aranzadi, 2016). Martín-Valverde, A, Rodríguez-Sañudo Gutiérrez, F and García-Murcia, J, Derecho del Trabajo, 25th edn (Madrid, Tecnos, 2016).

Sweden Berg, A, Bemanningsarbete, flexibilitet och likabehandling. En studie av svensk rätt och kollektivavtalsreglering med komparativa inslag (Lund, Juristförlaget i Lund, 2008). Blainpain, R and Graham, R (eds), Temporary Agency Work and the Information Society, Bulletin of Comparative Labour Relations No. 50 (The Hague, Kluwer Law International, 2004). Eklund, R, ‘A look at contract labour in the Nordic countries’, Juridisk Tidskrift, 1995–96, 625. Fahlbeck, R, ‘Employment Exchange and Hiring Out of Employees in Sweden’, ­Tidskrift for Rettsvitenskap No 4 (1995) 589. Glavå, M and Hansson, M, Arbetsrätt, 3rd edn (Lund, Studentlitteratur, 2016). Henning, A, Tidsbegränsad anställning. En studie av anställningsformsregleringen och dess funktioner (Lund, Juridiska Föreningen i Lund, 1984). Inghammar, A, Funktionshindrad—med rätt till arbete (Juristförlaget i Lund, 2007). Källström, K and Malmberg, J, Anställningsförhållandet, Inledning till den ­individuella arbetsrätten 4th edn (Uppsala, Iustus Förlag, 2016). Lunning, L and Toijer G, Anställningsskydd. En lagkommentar, 11th edn (Norstedts Juridik, 2016). Malmberg, J, Hur skall bemanningsdirektivet genomföras i Sverige? (Uppsala ­Faculty of Law, Working Paper 2010:2). Numhauser-Henning, A (ed), Elder Law. Evolving European Perspectives ­(Cheltenham, Edward Elgar, 2017). —— Festskrift till Anna Christensen (Lund, Juristförlaget i Lund, 2000). Nyström, B, EU och arbetsrätten, 5th edn (Wolters Kluwer, 2017). —— ‘Bemanningsanställd och rättslös—eller?’ in Festskrift till Catharina Calleman (Uppsala, Iustus förlag, 2014). Rönnmar, M, ‘The managerial prerogative and the employee’s duty to work: a comparative study of functional flexibility in working life’ (2006) 35(1) Industrial Law Journal 56–74. —— Arbetsledningsrätt och arbetskyldighet (Lund, Juristförlaget I Lund, 2004). Selberg, N, Arbetsgivarbegreppet och arbetsrättsligt ansvar i komplexa arbetsorganisationer (Mediatryck, Lunds University, 2017). Ulander-Wänman, C, Företrädesrätt till återanställning (Uppsala, Iustus förlag, 2008).

Switzerland Adams, A, Freedland, M and Prassl, J, ‘The “Zero-Hours Contract”: Regulating Casual Work, or Legitimating Precarity’ in Oxford Legal Studies Research Paper Series No 11 2015: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2507693.

Bibliography 983 Arioli, K, ‘Die Rechtsfigur der indirekten Diskriminierung’, Aktuelle Juristische Praxis (AJP) 1993, 1332. Aubert, G in L Thévenoz and F Werro (eds), Commentaire romand, Code des obligations I, 2nd edn (Helbing Lichtenhahn, Basel, 2012). Bachmann, R, ‘Verdeckter Personalverleih: Aspekte zur rechtlichen Ausgestaltung, zur Bewilligungspflicht, zum Konzernverleih und zum Verleih mit Auslandsberuehrung’, Mitteilungen des Instituts fuer schweizerisches Arbeitsrecht (ArbR), 2010, 56. Brühwiler, J, Einzelarbeitsvertrag, 3rd edn (Helbing & Lichtenhahn, Basle, 2014). Byrne-Sutton, P, Le contrat de travail à temps partiel (DPhil thesis, University of Geneva 2001). Carruzzo, P, Le contrat individuel du travail, commentaire des articles 319 à 341 du Code des obligations (Schulthess, Zurich/Basle/Geneva, 2009). Dunand, JP and Mahon, P (eds), Commentaire du contrat de travail (Stämpfli, Berne, 2013). Ehrenzeller, B, Die Mitwirkung in den Betrieben (IRP-HSG, St Gallen, 2009). Ertl, AJP, Das befristete Arbeitsverhaeltnis in Theorie & Praxis, unter Beruecksichtigung des Arbeitsvermittlungsgesetzes (DPhil thesis, University of St Gallen, 2015). Fischer, L, ‘Zur Haftungsbegruendung im Temporaerarbeitsverhaeltnis’, Jusletter, 30 September 2013, p 5. Freivogel, E and Kaufmann, C (eds), Kommentar zum Gleichstellungsgesetz, 2nd edn (Helbing Lichtenhahn, Basel, 2009). Fritz, M and Schuler, C, Die Mitwirkung im Arbeitsverhaeltnis: ein Handkommentar fuer die Praxis zum Mitwirkungsgesetz sowie zu weiteren mitwirkungsrelevanten Gesetzen, 2nd edn (Schulthess, Zurich/Basle/Geneva 2013). Geiser, T and Mueller R, Arbeitsrecht in der Schweiz, 3rd edn (Stämpfli, Bern, 2015). Looser, F, Der Personalverleih unter besonderer Beruecksichtigung des GAV ­Personalverleih (DPhil thesis, University of Basel 2015). Müller, R, Die Arbeitnehmervertretung (Stämpfli, Berne 1999). Portmann, W and Rudolph, R, Basler Kommentar, Obligationenrecht I, 6th edn (Helbing & Lichtenhahn, Basel, 2015). Portmann, W and Stöckli, J, Schweizerisches Arbeitsrecht, 3rd edn (Dike, Zurich/ St Gallen, 2013) No 890. Rehbinder, M and Stöckli, J, Bernese Commentary, Der Arbeitsvertrag, vol VI/2/2/2 (Stämpfli, Bern, 2014). SECO, Verlaengerung des befristeten Arbeitsvertrages; Praezisierungen der Weisungen und Erlaeuterungen zum AVG 2007/2: www.treffpunkt-arbeit.ch/dateien/ Private_Arbeitsvermittlung/Verlaengerung_des_befristeten_Arbeitsvertrages1.pdf accessed on 31 May 2018. Stöckli, J-F, Liber amicorum for E. Murer (Stämpfli, Berne, 2010). Streiff, U, von Kaenel, A and Rudolph, R, Arbeitsvertrag, Praxiskommentar, 7th edn (Schulthess, Zurich, 2012). Thévenoz, L, Le travail intérimaire (DPhil thesis, University of Geneva, 1986). Vischer, F and Müller, RM, Der Arbeitsvertrag, 4th edn (Helbing & Lichtenhahn, Basel, 2014). von Büren, R, Teilzeitarbeit und temporaere Arbeit als neue Formen von Dienstleistung im schweizerischen Recht (DPhil thesis, University of Bern, 1961). Waas, B and van Voss, GH (eds), Restatement of Labour Law in Europe. Vol 1: The Concept of Employee (Hart Publishing, Oxford and Portland OR, 2017).

984  Bibliography Wildhaber, I, Das Arbeitsrecht bei Umstrukturierungen (Schulthess, Zurich/Basle/ Geneva, 2011). Wyler, R and Heinzer, B, Droit du travail, 3rd edn (Stämpfli, Bern, 2014).

Turkey Waas, B and van Voss, GH (eds), Restatement of Labour Law in Europe. Vol 1: The Concept of Employee (Oxford and Portland OR, Hart Publishing, 2017).

United Kingdom Adams, A et al, ‘The “Zero-Hours Contract”: Regulating Casual Work, or Legitimating Precarity?’ (2015) 147 Giornale di Diritto del Lavoro e di Relazioni Industriali 529. BIS, Consultation: Zero Hours Employment Contracts (London, December 2013). Bradley, A and Ewing, K, Constitutional and Administrative Law, 15th edn (­Pearson, 2011). Countouris, N and Horton, R, ‘The Temporary Agency Work Directive: Another Broken Promise?’ (2009) 38 Industrial Law Journal 329. Deakin, S and Morris, G, Labour Law, 6th edn, (Oxford, Hart Publishing, 2012). EMAR, Agency Working in the UK: A Review of the Evidence (Employment Relations Research Series No 93, Department of Business, Enterprise and Regulatory Reform, London 2008). Eversheds LLP, Terms and Conditions for the Supply of Services from an Employment Business to an End-User Client (PLC Employment and PLC Commercial, Practical Law Company, London 2012). Forde, C and Slater, G, A Survey of Non Regular Work in the UK (Report prepared for the Japan Institute of Labour Policy and Training 2010). —— The Role of Employment Agencies in Pay Setting (ACAS Research Paper 05/2011). Forde, C et al, Agency Working in Britain: What Do We Know? (Centre for Employment Relations Innovation and Change Policy Report No 2, CERIC 2008). —— ‘“You know we are not an employment agency”: Manpower, Government and the Development of the Temporary Employment Agency Industry in Britain’ (2008) 9 Enterprise and Society 337. Freedland, M, Prassl, J, et al, (eds), The Contract of Employment (OUP, 2016) 209. HMRC, Employment Status Manual, ESM 2002: www.hmrc.gov.uk/manuals/ esmmanual/ESM2002.htm. Kirkpatrick, I, Professional Agency Working in Health and Social Services: Implications for Management (CERIC Policy Report Number 3, CERIC, 2009). Markova, E and McKay, S, Agency and Migrant Workers: Literature Review (TUC Commission on Vulnerable Employment, 2008). McGaughey, E, Should Agency Workers be Treated Differently? (LSE Working Papers 07/2010) 26. Peel, E, Treitel’s Law of Contract, 13th edn (Sweet & Maxwell, 2011). Prassl, J, The Concept of the Employer (OUP, 2015). Purcell, K, Purcell, J and Tailby, S, ‘Temporary Work Agencies: Here Today, Gone Tomorrow?’ (2004) 42 British Journal of Industrial Relations 705.

Bibliography 985 Ward, K, ‘Making Manchester “Flexible”: Competition and Change in the Temporary Staffing Industry’ (2005) 36 Geoforum 223. Wynn, M and Leighton, P, ‘Will the Real Employer Please Stand Up? Agencies, Client Companies and the Employment Status of the Temporary Agency Worker’ (2006) 35 Industrial Law Journal 301. Wynn, M, ‘Regulating Rogues? Employment Agency Enforcement and Sections 15–18 of the Employment Act 2008’ (2009) 38 Industrial Law Journal 64.

986

Index Academics see Teachers and academics Actors see Artists and performers Agency work see Temporary agency work Air transport workers comparative overview  xlix Greece  361 Apprentices see Trainees and apprentices Artists and performers Austria  6–7 Belgium  48 Bulgaria  66 comparative overview  xlix–l Croatia  87, 92–3 Denmark  172 Germany  317, 327 Hungary  380 Luxembourg  530 Netherlands  603 Norway  631 Portugal  683–4, 688 Serbia  763 Slovenia  820 Turkey  930 Athletes see Sports personnel Austria fixed-term work collective bargaining agreements  8 definitions and formal requirements  1–3 dismissal protection  3–4 equal treatment  4–6 information, consultation and representation  6 specific provisions  6–7 overview of atypical employment  1 part-time work collective bargaining agreements  13–14 definitions and formal requirements  8–9 dismissal protection  12 equal treatment  10–12 information, consultation and representation  12 overtime premium  12–13 reduction of hours  9–10 zero-hours contracts  13 temporary agency work collective bargaining agreements  20–1

contractual relationship—agency and undertaking  18–19 contractual relationship—worker and agency  15–17 contractual relationship—worker and undertaking  17–18 definitions and formal requirements  14 dismissal protection  16–17 equal treatment  19 information, consultation and representation  19–20 registration, licensing and guarantees  15 right to strike  20 Ballet see Artists and performers Belgium fixed-term work collective bargaining agreements  36 conditions for lawfulness  28–32 definitions and formal requirements  25–8 dismissal protection  32–3 employment opportunities  34 equal treatment  33–4 exclusion from Directive 1999/70  34 information, consultation and representation  34–5 specific provisions  35–6 overview of atypical employment  23–5 part-time work collective bargaining agreements  43 definitions and formal requirements  36–9 dismissal protection  41 equal treatment  41–2 extension of working time  40 information, consultation and representation  41–2 overtime  41 overview  36 ‘time credit’ system  39–40 temporary agency work collective bargaining agreements  55 contractual relationship—agency and undertaking  53 contractual relationship—worker and agency  50–3 contractual relationship—worker and undertaking  53

988  Index definitions and formal requirements  44–50 equal treatment  54 information, consultation and representation  54–5 legislative provisions  43–4 other matters relating to rights or status  40 registration, licensing and guarantees  50 right to strike  55 Bulgaria fixed-term work collective bargaining agreements  67 conditions for lawfulness  60–2 definitions and formal requirements  58–60 dismissal protection  62–5 employment opportunities  66 equal treatment  65 information, consultation and representation  66 specific provisions  66 overview of atypical employment  57–8 part-time work collective bargaining agreements  74 definitions and formal requirements  67 dismissal protection  73 distribution of working hours  73–4 equal treatment  72–3 information, consultation and representation  73 temporary agency work collective bargaining agreements  81 contractual relationship—agency and undertaking  79 contractual relationship—worker and agency  76–7 contractual relationship—worker and undertaking  77–9 definitions and formal requirements  74–5 dismissal protection  76–7 equal treatment  79–80 information, consultation and representation  80 other matters relating to rights or status  80 registration, licensing and guarantees  75 right to strike  80, 80–1 Civil servants see Public servants Coaches see Sports personnel Collective bargaining agreements fixed-term work Austria  8 Belgium  36

Croatia  93 Cyprus  120–1 Czech Republic  146 Denmark  177–8 Estonia  212–13 Finland  232 France  258 Germany  327–8 Greece  361 Hungary  380 Iceland  407–8 Ireland  439–40 Italy  466–7 Latvia  491 Lithuania  506–7 Luxembourg  530–1 Malta  554 Netherlands  602–3 Norway  630–1 Poland  655 Portugal  684 Republic of North Macedonia  290 restatement text  xxvi Romania  710 Russia  742 Serbia  770 Slovakia  788 Slovenia  818 Sweden  867 Switzerland  890 Turkey  919 United Kingdom  944–5 part-time work Austria  13–14 Belgium  43 Bulgaria  74 comparative overview  lxvi–lxvii Croatia  98 Cyprus  128–9 Czech Republic  153 Denmark  191 Estonia  216–17 Finland  239–40 France  264 Germany  338–9 Greece  365 Hungary  386 Iceland  412 Ireland  445 Italy  473–4 Latvia  493–4 Lithuania  512 Luxembourg  538–9 Malta  559 Montenegro  583 Netherlands  609–10 Norway  641 Poland  662

Index 989 Portugal  688–9 Republic of North Macedonia  298 restatement text  xxviii Romania  720 Russia  747 Serbia  775 Slovakia  791 Slovenia  823 Spain  850 Sweden  871 Switzerland  897–8 Turkey  927 United Kingdom  952 temporary agency work Austria  20–1 Belgium  55 Bulgaria  81 Croatia  105 Cyprus  138 Czech Republic  164–5 Denmark  203–4 Estonia  224 Finland  245–6 France  275 Germany  350 Greece  371 Hungary  394–5 Iceland  423 Ireland  457–8 Italy  483 Latvia  498 Lithuania  518–19 Luxembourg  547 Malta  569 Montenegro  590 Netherlands  621 Norway  646 Poland  671 Portugal  698 Republic of North Macedonia  310 restatement text  xxxi Romania  731 Russia  758 Serbia  782 Slovakia  808 Slovenia  834–5 Switzerland  908–9 United Kingdom  961 Consultation see Information, consultation and representation Croatia fixed-term work collective bargaining agreements  93 conditions for lawfulness  86–8 definitions and formal requirements  84–6 dismissal protection  88–9 employment opportunities  90

equal treatment  89–91 information, consultation and representation  91 specific provisions  92–3 overview of atypical employment  83 part-time work collective bargaining agreements  98 definitions and formal requirements  93–4 dismissal protection  96–7 employment opportunities  95 equal treatment  95–7 extension of working time  95 family rights  95 information, consultation and representation  97 other arrangements  97–8 temporary agency work collective bargaining agreements  105 contractual relationship—agency and undertaking  102–3 contractual relationship—worker and agency  100–1 contractual relationship—worker and undertaking  101–2 definitions and formal requirements  99 dismissal protection  101 equal treatment  103–4 information, consultation and representation  104 registration, licensing and guarantees  100 right to strike  104 Crown employment see Public servants Cyprus fixed-term work collective bargaining agreements  120–1 conditions for lawfulness  109–13 definitions and formal requirements  108–9 dismissal protection  113–15 employment opportunities  119 equal treatment  115–19 information, consultation and representation  120 overview of atypical employment  107–8 part-time work collective bargaining agreements  128–9 definitions and formal requirements  122–3 dismissal protection  126 employment opportunities  123 equal treatment  124–7 extension of working time  124

990  Index information, consultation and representation  127 legislative provisions  121–2 other arrangements  128 temporary agency work collective bargaining agreements  138 contractual relationship—agency and undertaking  136 contractual relationship—worker and agency  134–5 contractual relationship—worker and undertaking  135–6 definitions and formal requirements  130–3 equal treatment  137 information, consultation and representation  137 overview  129–30 registration, licensing and guarantees  133 right to strike  137–8 Czech Republic fixed-term work collective bargaining agreements  146 conditions for lawfulness  141–4 definitions and formal requirements  140, 140–1 dismissal protection  144 employment opportunities  145 equal treatment  144–5 information, consultation and representation  145 specific provisions  146 overview of atypical employment  139–40 part-time work collective bargaining agreements  153 definitions and formal requirements  146–7 dismissal protection  150–1 employment opportunities  147–9 equal treatment  149–50 extension of working time  149 information, consultation and representation  151 other arrangements  152–3 temporary agency work collective bargaining agreements  164–5 contractual relationship—agency and undertaking  161–2 contractual relationship—worker and agency  156–9 contractual relationship—worker and undertaking  159–61 definitions and formal requirements  153–4

dismissal protection  158–9 equal treatment  162–3 information, consultation and representation  163–4 registration, licensing and guarantees  155–6 right to strike  164 Dancers see Artists and performers Definitions and formal requirements fixed-term work Austria  2–3 Belgium  27–8 Croatia  85–6 Cyprus  109 Czech Republic  140–1 Estonia  206–7 Finland  226–7 France  248–9 Germany  311–12 Greece  352–3 Hungary  375–6 Iceland  399–400 Ireland  426–8 Italy  460–1 Latvia  485–6 Lithuania  500 Luxembourg  522–3 Malta  549 Montenegro  572 Netherlands  592–3 Norway  624–5 Poland  648–9 Republic of North Macedonia  278–9 restatement text  xxiii–ivx Romania  700–3 Russia  734–6 Serbia  760 Slovakia  783–4 Slovenia  810–12 Spain  838–9 Sweden  860–1 Switzerland  882–4 Turkey  913–14 United Kingdom  940 part-time work Austria  8–9 Belgium  38–9 Bulgaria  67 comparative overview  lv–lvi Croatia  94 Cyprus  122–3 Czech Republic  147 Denmark  178–9 Estonia  213 Finland  232 France  258–9 Germany  328

Index 991 Greece  361–2 Hungary  381 Iceland  408–9 Ireland  440 Italy  467–8 Latvia  491 Lithuania  507–8 Luxembourg  531–3 Malta  554–5 Montenegro  579–80 Netherlands  603–4 Norway  631 Poland  655 Portugal  684–5 Republic of North Macedonia  290–2 restatement text  xxvi–xxvii Romania  711–12 Russia  742–4 Serbia  771 Slovakia  788–9 Slovenia  818–19 Spain  845–6 Sweden  868 Switzerland  891–2 Turkey  919 United Kingdom  945–7 temporary agency work Austria  14 Bulgaria  75 Croatia  99 Cyprus  130–3 Czech Republic  154 Denmark  192–3 Estonia  217 Finland  240 France  265–6 Germany  339–40 Greece  365–6 Hungary  386–8 Iceland  413–14 Ireland  445–6 Italy  474–6 Latvia  494 Lithuania  513 Luxembourg  539–42 Malta  559–61 Montenegro  584 Netherlands  610–13 Norway  641–2 Poland  662–4 Portugal  689–90 Republic of North Macedonia  299–300 Romania  720–1 Russia  747–50 Serbia  775–7 Slovakia  791–3 Slovenia  823–4 Sweden  871–2

Switzerland  898–900 Turkey  927–9 United Kingdom  953 Denmark fixed-term work collective bargaining agreements  177–8 conditions for lawfulness  169–72 definitions and formal requirements  169 dismissal protection  172–3 employment opportunities  175 equal treatment  173–6 information, consultation and representation  176–7 legislative powers  168–9 specific provisions  177 overview of atypical employment  167–8 part-time work collective bargaining agreements  191 definitions and formal requirements  178–9 dismissal protection  186 employment opportunities  179–84 equal treatment  184–6 extension of working time  183–4 formal requirements  178–9 information, consultation and representation  187–9 other arrangements  189–90 temporary agency work collective bargaining agreements  203–4 contractual relationship—agency and undertaking  199–200 contractual relationship—worker and agency  194–7 contractual relationship—worker and undertaking  197–9 definitions and formal requirements  192–3 dismissal protection  196–7 equal treatment  200–1 legislative provisions  191–2 registration, licensing and guarantees  193–4 right to strike  202–3 Disability see Workers with disabilities Discrimination see Equal treatment Dismissal protection fixed-term work Austria  3–4 Belgium  32–3 Bulgaria  62–5 comparative overview  xlii–xliii Croatia  88–9 Cyprus  113–15 Czech Republic  144

992  Index Denmark  172–3 Estonia  209–10 Finland  228–30 France  252–3 Germany  323–4 Greece  358–9 Hungary  377–8 Iceland  401–2 Ireland  433–6 Latvia  487–9 Lithuania  503–4 Luxembourg  527–8 Malta  551–2 Montenegro  576–7 Netherlands  595–8 Norway  627–8 Poland  651–3 Portugal  680–1 Republic of North Macedonia  285–6 restatement text  xxv Romania  705–6 Russia  738–9 Serbia  767–8 Slovakia  785–6 Slovenia  814–15 Spain  841–2 Sweden  862–3 Switzerland  886–8 Turkey  915–16 United Kingdom  941–2 part-time work Austria  12 Belgium  41 Bulgaria  73 comparative overview  lxii–lxiii Croatia  96–7 Cyprus  126 Czech Republic  150–1 Denmark  186 Estonia  215 Finland  238 France  262–3 Germany  336 Greece  364 Hungary  383 Iceland  411 Ireland  443–4 Italy  470 Latvia  493 Lithuania  510 Malta  556–8 Montenegro  583 Netherlands  607 Norway  639–40 Poland  660 Portugal  686–7 Republic of North Macedonia  295–6 restatement text  xxv

Romania  717–18 Russia  745 Serbia  773–4 Slovakia  790 Slovenia  821 Spain  847–8 Sweden  869–70 Switzerland  893–4 Turkey  923–5 United Kingdom  948–9 temporary agency work  616–17 Austria  16–17 Bulgaria  76–7 Croatia  101 Czech Republic  158–9 Denmark  196–7 Estonia  220 Finland  242 France  271 Germany  343–4 Greece  368 Iceland  417 Ireland  451–2 Italy  479 Latvia  496 Lithuania  515 Luxembourg  543 Malta  563 Montenegro  586 Norway  642 Portugal  693 Republic of North Macedonia  303–4 restatement text  xxviii Romania  724–5 Russia  754 Serbia  779 Slovakia  800–1 Slovenia  828–9 Sweden  874 Switzerland  904 temporary agency work  667–8 Turkey  932 United Kingdom  955 Education workers see Teachers and academics Employment opportunities see also Equal treatment fixed-term work Austria  5–6 Belgium  34 comparative overview  xlvii–xlix Croatia  90 Cyprus  119 Czech Republic  145 Denmark  175 Estonia  210–11 Finland  230–1

Index 993 France  254 Germany  325 Greece  359–60 Hungary  379 Iceland  403 Ireland  438 Italy  465 Latvia  489 Lithuania  505 Luxembourg  528 Malta  553–4 Montenegro  577 Netherlands  600 Norway  629 Poland  654 Portugal  682 Republic of North Macedonia  288 restatement text  xxvi Romania  707 Russia  741 Serbia  769 Slovakia  786 Slovenia  816 Spain  843 Sweden  864–5 Switzerland  889 Turkey  917 United Kingdom  943 part-time work Austria  9–10 Belgium  39–40 Bulgaria  67–71 comparative overview  lvi–lviii Croatia  95 Cyprus  123 Czech Republic  147–9 Denmark  179–84 Estonia  213–14 extension of working time  363 Finland  233–7 France  259–61 Germany  329–34 Hungary  381–2 Iceland  409 Ireland  440–1 Italy  469 Latvia  491 Lithuania  508–10 Luxembourg  533–4 Malta  555 Montenegro  580–1 Netherlands  604–5 Norway  631–6 part-time work  95 Poland  656–8 Portugal  685–6 Republic of North Macedonia  292–3 restatement text  xxvii

Romania  712–15 Russia  744 Serbia  771–3 Slovakia  789–90 Slovenia  819–21 Spain  846–7 Sweden  868–9 Switzerland  892 Turkey  920–2 United Kingdom  947–8 Equal treatment see also Employment opportunities fixed-term work Austria  4–6 Belgium  33–4 Bulgaria  65 comparative overview  xliv–xlvii Cyprus  115–19 Czech Republic  144–5 Denmark  173–5 Estonia  210–11 Finland  230–1 France  253–5 Germany  324–5 Greece  359 Hungary  378–9 Iceland  403 Ireland  436–8 Italy  464–5 Latvia  489 Lithuania  504–5 Luxembourg  528 Malta  553–4 Montenegro  577 Netherlands  599–600 Norway  628–9 Poland  653 Portugal  682 Republic of North Macedonia  287–8 restatement text  xxv–xxvi Romania  706–7 Russia  739–41 Serbia  768–9 Slovakia  786 Slovenia  815 Spain  842–3 Sweden  863–4 Switzerland  888–9 Turkey  916–17 United Kingdom  942–3 part-time work Austria  10–12 Belgium  41–2 Bulgaria  72–3 comparative overview  lviii–lxii Croatia  95–7 Cyprus  124–7 Czech Republic  149–50

994  Index Denmark  184–6 Estonia  214–16 Finland  237–9 France  261–3 Germany  334–6 Greece  363–4 Iceland  410–11 Ireland  441–3 Italy  470 Latvia  492–3 Lithuania  510 Luxembourg  534–6 Malta  555–6 Montenegro  582 Netherlands  606 Norway  636–9 Poland  658–9 Portugal  686 Republic of North Macedonia  293–6 restatement text  xxvii Russia  744–5 Serbia  773 Slovakia  790 Slovenia  821 Spain  847 Sweden  869 Switzerland  892–3 Turkey  922–3 United Kingdom  948 temporary agency work Austria  19 Belgium  54 Bulgaria  79–80 comparative overview  lxxx–lxxxi Cyprus  137 Czech Republic  162–3 Denmark  200–1 Estonia  222 Finland  244 France  273–4 Germany  347–8 Greece  370 Hungary  392–3 Iceland  420–1 Ireland  453–5 Italy  480–1 Latvia  497 Lithuania  517–18 Luxembourg  545–6 Malta  567–8 Montenegro  588 Netherlands  618–20 Norway  644–5 Poland  669 Portugal  697 Republic of North Macedonia  308–9 restatement text  xxxi

Romania  728–30 Russia  757 Serbia  780–1 Slovakia  805–6 Slovenia  832–3 Spain  856 Sweden  876–7 Switzerland  907 Turkey  935 United Kingdom  960 Estonia fixed-term work collective bargaining agreements  212–13 conditions for lawfulness  207–8 definitions and formal requirements  206–7 dismissal protection  209–10 employment opportunities  210–11 equal treatment  210–11 information, consultation and representation  211–12 specific provisions  212 overview of atypical employment  205–6 part-time work collective bargaining agreements  216–17 definitions and formal requirements  213 dismissal protection  215 employment opportunities  213–14 equal treatment  214–16 extension of working time  214 information, consultation and representation  216 other arrangements  216 temporary agency work collective bargaining agreements  224 contractual relationship—agency and undertaking  221–2 contractual relationship—worker and agency  218–20 contractual relationship—worker and undertaking  220–1 definitions and formal requirements  216–17 dismissal protection  220 equal treatment  222 information, consultation and representation  223 other matters relating to rights or status  222 registration, licensing and guarantees  217–18 right to strike  224 Expiration of fixed terms see Dismissal protection

Index 995 Finland fixed-term work collective bargaining agreements  232 conditions for lawfulness  227–8 definitions and formal requirements  226–7 dismissal protection  228–30 employment opportunities  230–1 equal treatment  230–1 information, consultation and representation  231 specific provisions  231 overview of atypical employment  225–6 part-time work collective bargaining agreements  239–40 definitions and formal requirements  232 dismissal protection  238 employment opportunities  233–7 equal treatment  237–9 extension of working time  235–7 information, consultation and representation  239 other arrangements  239 other matters relating to rights or status  238–9 temporary agency work collective bargaining agreements  245–6 contractual relationship—agency and undertaking  243–4 contractual relationship—worker and agency  241–2 contractual relationship—worker and undertaking  241–2 definitions and formal requirements  240 equal treatment  244 information, consultation and representation  244 other matters relating to rights or status  244 registration, licensing and guarantees  240–1 right to strike  245 Fixed-term work see also Part-time work; Temporary agency work Austria collective bargaining agreements  8 definitions and formal requirements  1–3 dismissal protection  3–4 equal treatment  4–6 information, consultation and representation  6 specific provisions  6–7

Belgium collective bargaining agreements  36 conditions for lawfulness  28–32 definitions and formal requirements  25–8 dismissal protection  32–3 employment opportunities  34 equal treatment  33–4 exclusion from Directive 1999/70  34 information, consultation and representation  34–5 specific provisions  35–6 Bulgaria collective bargaining agreements  67 conditions for lawfulness  60–2 definitions and formal requirements  58–60 dismissal protection  62–5 employment opportunities  66 equal treatment  65 information, consultation and representation  66 specific provisions  66 Croatia collective bargaining agreements  93 conditions for lawfulness  86–8 definitions and formal requirements  84–6 dismissal protection  88–9 employment opportunities  90 equal treatment  89–91 information, consultation and representation  91 specific provisions  92–3 Cyprus collective bargaining agreements  120–1 conditions for lawfulness  109–13 definitions and formal requirements  108–9 dismissal protection  113–15 employment opportunities  119 equal treatment  115–19 information, consultation and representation  120 Czech Republic collective bargaining agreements  146 conditions for lawfulness  141–4 definitions and formal requirements  140, 140–1 dismissal protection  144 employment opportunities  145 equal treatment  144–5 information, consultation and representation  145 specific provisions  146

996  Index Denmark collective bargaining agreements  177–8 conditions for lawfulness  169–72 definitions and formal requirements  169 dismissal protection  172–3 employment opportunities  175 equal treatment  173–6 information, consultation and representation  176–7 legislative powers  168–9 specific provisions  177 Estonia collective bargaining agreements  212–13 conditions for lawfulness  207–8 definitions and formal requirements  206–7 dismissal protection  209–10 employment opportunities  210–11 equal treatment  210–11 information, consultation and representation  211–12 specific provisions  212 Finland collective bargaining agreements  232 conditions for lawfulness  227–8 definitions and formal requirements  226–7 dismissal protection  228–30 employment opportunities  230–1 equal treatment  230–1 information, consultation and representation  231 specific provisions  231 France collective bargaining agreements  258 conditions for lawfulness  249–52 definitions and formal requirements  248–9 dismissal protection  252–3 employment opportunities  254 equal treatment  253–5 information, consultation and representation  255 other matters relating to rights or status  255 specific provisions  255–7 Germany collective bargaining agreements  327–8 conditions for lawfulness  312–23 definitions and formal requirements  311–12 dismissal protection  323–4 employment opportunities  325 equal treatment  324–5

information, consultation and representation  326–7 specific provisions  327 Greece collective bargaining agreements  361 conditions for lawfulness  353–8 definitions and formal requirements  352–3 dismissal protection  358–9 employment opportunities  359–60 equal treatment  359 information, consultation and representation  360 legislative provisions  351–2 other matters relating to rights or status  360 specific provisions  360–1 Hungary collective bargaining agreements  380 conditions for lawfulness  376–7 definitions and formal requirements  375–6 dismissal protection  377–8 employment opportunities  379 equal treatment  378–9 information, consultation and representation  379–80 specific provisions  380 statistical data  379 Iceland collective bargaining agreements  407–8 conditions for lawfulness  400–1 definitions and formal requirements  399–400 dismissal protection  401–2 employment opportunities  403 equal treatment  403 information, consultation and representation  403–4 specific provisions  404–7 Ireland collective bargaining agreements  439–40 conditions for lawfulness  428–33 definitions and formal requirements  426–8 dismissal protection  433–6 employment opportunities  438 equal treatment  436–8 information, consultation and representation  439 other matters relating to rights or status  438–9 specific provisions  439 Italy collective bargaining agreements  466–7

Index 997 conditions for lawfulness  461–4 definitions and formal requirements  460–1 employment opportunities  465 equal treatment  464 information, consultation and representation  466 other matters relating to rights or status  465–6 specific provisions  466 Latvia collective bargaining agreements  491 conditions for lawfulness  486–7 definitions and formal requirements  485–6 dismissal protection  487–9 employment opportunities  489 equal treatment  489 information, consultation and representation  489–90 specific provisions  490 Lithuania collective bargaining agreements  506–7 conditions for lawfulness  501–3 definitions and formal requirements  500 dismissal protection  503–4 employment opportunities  505 equal treatment  504–5 information, consultation and representation  505–6 overview  500 specific provisions  506 Luxembourg collective bargaining agreements  530–1 conditions for lawfulness  523–7 definitions and formal requirements  522–3 dismissal protection  527–8 employment opportunities  528 equal treatment  528 information, consultation and representation  529 overview  521–2 specific provisions  529–30 Malta collective bargaining agreements  554 conditions for lawfulness  550–1 definitions and formal requirements  549 dismissal protection  551–2 employment opportunities  553–4 equal treatment  553–4 information, consultation and representation  554

Montenegro collective bargaining agreements  579 conditions for lawfulness  572–5 definitions and formal requirements  572 dismissal protection  576–7 employment opportunities  577 equal treatment  577 information, consultation and representation  577–8 specific provisions  578–9 Netherlands collective bargaining agreements  602–3 conditions for lawfulness  593–5 definitions and formal requirements  592–3 dismissal protection  595–8 employment opportunities  600 equal treatment  599–600 information, consultation and representation  602 other matters relating to rights or status  600–1 specific provisions  602 Norway collective bargaining agreements  630–1 conditions for lawfulness  625–7 definitions and formal requirements  624–5 dismissal protection  627–8 employment opportunities  629 equal treatment  628–9 information, consultation and representation  630 other matters relating to rights or status  630 specific provisions  630 Poland collective bargaining agreements  655 conditions for lawfulness  649–51 definitions and formal requirements  648–9 dismissal protection  651–3 employment opportunities  654 equal treatment  653 information, consultation and representation  654–5 other matters relating to rights or status  654 specific provisions  655 Portugal collective bargaining agreements  684 conditions for lawfulness  678–80 definitions and formal requirements  675–8 dismissal protection  680–1

998  Index employment opportunities  682 equal treatment  682 information, consultation and representation  682–3 specific provisions  683–4 Republic of North Macedonia collective bargaining agreements  290 conditions for lawfulness  279–85 definitions and formal requirements  278–9 dismissal protection  285–6 employment opportunities  288 equal treatment  287–8 information, consultation and representation  288 other matters relating to rights or status  288 specific provisions  288–9 Romania collective bargaining agreements  710 conditions for lawfulness  703–4 definitions and formal requirements  700–3 dismissal protection  705–6 employment opportunities  707 equal treatment  706–7 information, consultation and representation  708 other matters relating to rights or status  707 specific provisions  708–10 Russia collective bargaining agreements  742 conditions for lawfulness  736–8 definitions and formal requirements  734–6 dismissal protection  738–9 employment opportunities  741 equal treatment  739–41 information, consultation and representation  741 specific provisions  742 Serbia collective bargaining agreements  770 conditions for lawfulness  760–7 definitions and formal requirements  760 dismissal protection  767–8 employment opportunities  769 equal treatment  768–9 information, consultation and representation  769 specific provisions  770 Slovakia collective bargaining agreements  788 conditions for lawfulness  784–5 definitions and formal requirements  783–4

dismissal protection  785–6 employment opportunities  786 equal treatment  786 information, consultation and representation  787 other matters relating to rights or status  787 specific provisions  787–8 Slovenia collective bargaining agreements  818 conditions for lawfulness  812–13 definitions and formal requirements  810–12 dismissal protection  814–15 employment opportunities  816 equal treatment  815 information, consultation and representation  816–17 other matters relating to rights or status  816 specific provisions  817–18 Spain collective bargaining agreements  845 conditions for lawfulness  839–41 definitions and formal requirements  838–9 dismissal protection  841–2 employment opportunities  843 equal treatment  842–3 information, consultation and representation  844 other matters relating to rights or status  843–4 specific provisions  844–5 Sweden collective bargaining agreements  867 conditions for lawfulness  861–2 definitions and formal requirements  860–1 dismissal protection  862–3 employment opportunities  864–5 equal treatment  863–4 information, consultation and representation  865–6 specific provisions  866–7 Switzerland collective bargaining agreements  890 conditions for lawfulness  884–6 definitions and formal requirements  882–4 dismissal protection  886–8 employment opportunities  889 equal treatment  888–9 information, consultation and representation  889–90 other matters relating to rights or status  889 specific provisions  890

Index 999 Turkey collective bargaining agreements  919 conditions for lawfulness  914–15 definitions and formal requirements  913–14 dismissal protection  915–16 employment opportunities  917 equal treatment  916–17 information, consultation and representation  918 other matters relating to rights or status  917–18 specific provisions  918–19 United Kingdom collective bargaining agreements  944–5 conditions for lawfulness  940–1 definitions and formal requirements  940 dismissal protection  941–2 employment opportunities  943 equal treatment  942–3 information, consultation and representation  944 other matters relating to rights or status  943–4 specific provisions  944 Formal requirements see Definitions and formal requirements France fixed-term work collective bargaining agreements  258 conditions for lawfulness  249–52 definitions and formal requirements  248–9 dismissal protection  252–3 employment opportunities  254 equal treatment  253–5 information, consultation and representation  255 other matters relating to rights or status  255 specific provisions  255–7 overview of atypical employment  247–8 part-time work collective bargaining agreements  264 definitions and formal requirements  258–9 dismissal protection  262–3 employment opportunities  259–61 equal treatment  261–3 extension of working time  260–1 information, consultation and representation  263 intermittent work  263–4 other matters relating to rights or status  263

temporary agency work collective bargaining agreements  275 contractual relationship—agency and undertaking  272–3 contractual relationship—worker and agency  268–71 contractual relationship—worker and undertaking  271–2 definitions and formal requirements  265–6 dismissal protection  271 equal treatment  273–4 information, consultation and representation  274–5 other matters relating to rights or status  274 overview  265 registration, licensing and guarantees  266–8 right to strike  275 Gender discrimination see Equal treatment Germany fixed-term work collective bargaining agreements  327–8 conditions for lawfulness  312–23 definitions and formal requirements  311–12 dismissal protection  323–4 employment opportunities  325 equal treatment  324–5 information, consultation and representation  326–7 specific provisions  327 legislative provisions  311 part-time work collective bargaining agreements  338–9 definitions and formal requirements  328 dismissal protection  336 employment opportunities  329–34 equal treatment  334–6 extension of working time  333–4 information, consultation and representation  336–7 other arrangements  337–8 temporary agency work collective bargaining agreements  350 contractual relationship—agency and undertaking  345–6 contractual relationship—worker and agency  341–4 contractual relationship—worker and undertaking  344–5 definitions and formal requirements  339–40

1000  Index dismissal protection  343–4 equal treatment  347–8 information, consultation and representation  348–9 registration, licensing and guarantees  340–1 right to strike  350 Government employees see Public servants Greece fixed-term work collective bargaining agreements  361 conditions for lawfulness  353–8 definitions and formal requirements  352–3 dismissal protection  358–9 employment opportunities  359–60 equal treatment  359 information, consultation and representation  360 legislative provisions  351–2 other matters relating to rights or status  360 specific provisions  360–1 overview of atypical employment  351 part-time work  362–3 collective bargaining agreements  365 definitions and formal requirements  361–2 dismissal protection  364 employment opportunities  362–3 equal treatment  363–4 information, consultation and representation  364 other arrangements  364 working hours  364 temporary agency work assignment fees  370 collective bargaining agreements  371 contractual relationship—agency and undertaking  370 contractual relationship—worker and agency  367–8 contractual relationship—worker and undertaking  368–9 definitions and formal requirements  365–6 dismissal protection  368 equal treatment  370 information, consultation and representation  371 legislative provisions  365 registration, licensing and guarantees  366–7 right to strike  371 Guarantees see Registration and licensing of agencies;

Health and safety of agency workers Austria  18 Belgium  53 comparative overview  lxxviii–lxxix Croatia  102 Cyprus  136 Czech Republic  160–1 Denmark  198–9 Estonia  221 Finland  243 France  272 Germany  345 Greece  369 Hungary  392 Iceland  419–20 Ireland  453 Italy  480 Latvia  497 Lithuania  516 Luxembourg  544 Malta  564–6 Montenegro  587 Netherlands  669 Norway  644 Portugal  694–5 Republic of North Macedonia  305 Romania  727–8 Russia  755–6 Serbia  780 Slovakia  803 Slovenia  830–1 Spain  855 Sweden  875–6 Switzerland  906 Turkey  934 Healthcare workers Bulgaria  69 Iceland  406 Ireland  432 Lithuania  508–9 Norway  638 Republic of North Macedonia  298 Romania  714, 719 Spain  845 Hiring of employees see Employment opportunities Hungary fixed-term work collective bargaining agreements  380 conditions for lawfulness  376–7 definitions and formal requirements  375–6 dismissal protection  377–8 employment opportunities  379 equal treatment  378–9 information, consultation and representation  379–80

Index 1001 specific provisions  380 statistical data  379 overview of atypical employment  373–5 part-time work collective bargaining agreements  386 definitions and formal requirements  381 dismissal protection  383 employment opportunities  381–2 equal treatment  382–3 extension of working time  382 information, consultation and representation  384 other arrangements  384–6 statistical data  383 temporary agency work collective bargaining agreements  394–5 contractual relationship—agency and undertaking  391–2 contractual relationship—worker and agency  388–90 contractual relationship—worker and undertaking  390 definitions and formal requirements  386–8 equal treatment  392–3 information, consultation and representation  393 registration, licensing and guarantees  388 right to strike  393–4 Iceland fixed-term work collective bargaining agreements  407–8 conditions for lawfulness  400–1 definitions and formal requirements  399–400 dismissal protection  401–2 employment opportunities  403 equal treatment  403 information, consultation and representation  403–4 specific provisions  404–7 overview of atypical employment  397–9 part-time work collective bargaining agreements  412 definitions and formal requirements  408–9 dismissal protection  411 employment opportunities  409 equal treatment  410–11 information, consultation and representation  411–12 new forms of employment  412 temporary agency work

collective bargaining agreements  423 contractual relationship—agency and undertaking  420 contractual relationship—worker and agency  416–17 contractual relationship—worker and undertaking  417–20 definitions and formal requirements  413–14 equal treatment  420–1 information, consultation and representation  421 overview  412–13 registration, licensing and guarantees  414–16 right to strike  421–2 Industrial action see Right to strike (agency workers) Information, consultation and representation fixed-term work Austria  6 Belgium  34–5 Bulgaria  66 comparative overview  li Croatia  91 Cyprus  120 Czech Republic  145 Denmark  176–7 Estonia  211–12 Finland  231 France  255 Germany  326–7 Greece  360 Hungary  379–80 Iceland  403–4 Ireland  439 Italy  466 Latvia  489–90 Lithuania  505–6 Luxembourg  529 Malta  554 Netherlands  602 Norway  630 Poland  654–5 Portugal  682–3 Republic of North Macedonia  288 Romania  708 Russia  741 Serbia  769 Slovakia  787 Slovenia  816–17 Spain  844 Sweden  865–6 Switzerland  889–90 Turkey  918 United Kingdom  944 part-time work Austria  12

1002  Index Belgium  41–2 Bulgaria  73 comparative overview  lxiii–lxiv Croatia  97 Cyprus  127 Czech Republic  151 Denmark  187–9 Estonia  216 Finland  239 France  263 Germany  336–7 Greece  364 Hungary  384 Iceland  411–12 Ireland  444 Italy  470–1 Latvia  493 Lithuania  510–11 Luxembourg  536–7 Malta  559 Montenegro  583 Netherlands  607 Norway  640 Poland  661 Portugal  687 Republic of North Macedonia  296 restatement text  xxvii Romania  718 Russia  746 Serbia  774 Slovakia  790–1 Slovenia  822 Spain  849 Sweden  870–1 Switzerland  895 Turkey  926 United Kingdom  949 temporary agency work Austria  19–20 Belgium  54–5 Bulgaria  80 comparative overview  lxxxii–lxxxv Croatia  104 Cyprus  137 Czech Republic  163–4 Denmark  201–2 Estonia  223 Finland  244 France  274–5 Germany  348–9 Greece  371 Hungary  393 Iceland  421 Ireland  456–7 Italy  482–3 Latvia  498 Lithuania  518 Luxembourg  546

Malta  568–9 Montenegro  589 Netherlands  621 Norway  645–6 Portugal  697 Republic of North Macedonia  309–10 restatement text  xxix Romania  730–1 Russia  758 Serbia  781 Slovenia  833 Spain  857 Sweden  878 Switzerland  907–8 Turkey  936 United Kingdom  960–1 Ireland fixed-term work collective bargaining agreements  439–40 conditions for lawfulness  428–33 definitions and formal requirements  426–8 dismissal protection  433–6 employment opportunities  438 equal treatment  436–8 information, consultation and representation  439 other matters relating to rights or status  438–9 specific provisions  439 overview of atypical employment  425–6 part-time work collective bargaining agreements  445 definitions and formal requirements  440 dismissal protection  443–4 employment opportunities  440–1 equal treatment  441–3 information, consultation and representation  444 other arrangements  444–5 temporary agency work collective bargaining agreements  457–8 contractual relationship—agency and undertaking  453 contractual relationship—worker and agency  449–52 contractual relationship—worker and undertaking  452–3 definitions and formal requirements  445–6 equal treatment  453–6 information, consultation and representation  456–7 other matters relating to rights or status  455–6

Index 1003 registration, licensing and guarantees  446–8 right to strike  457

Italy fixed-term work collective bargaining agreements  466–7 conditions for lawfulness  461–4 definitions and formal requirements  460–1 employment opportunities  465 equal treatment  464 information, consultation and representation  466 other matters relating to rights or status  465–6 specific provisions  466 overview of atypical employment  459–60 part-time work collective bargaining agreements  473–4 definitions and formal requirements  467–8 dismissal protection  470 ‘elastic clauses’  471–2 employment opportunities  469 equal treatment  470 extension of working time  469 information, consultation and representation  470–1 intermittent contracts  472–3 other matters relating to rights or status  470 temporary agency work collective bargaining agreements  483 contractual relationship—agency and undertaking  480 contractual relationship—worker and agency  477–9 contractual relationship—worker and undertaking  479–80 definitions and formal requirements  474–6 equal treatment  480–1 information, consultation and representation  482–3 other matters relating to rights or status  481–2 registration, licensing and guarantees  476–7 right to strike  483 Job-sharing Austria  13 Bulgaria  74 comparative overview  lxv Croatia  97–8

Czech Republic  153 Estonia  216 Hungary  384–5 Lithuania  511 Luxembourg  538 Montenegro  583 Poland  661 Portugal  687 Republic of North Macedonia  298 Russia  747 Serbia  774 Slovakia  791 Slovenia  823 Spain  850 Switzerland  897 Latvia fixed-term work collective bargaining agreements  491 conditions for lawfulness  486–7 definitions and formal requirements  485–6 dismissal protection  487–9 employment opportunities  489 equal treatment  489 information, consultation and representation  489–90 specific provisions  490 key legislative provision  485 part-time work collective bargaining agreements  493–4 definitions and formal requirements  491 dismissal protection  493 employment opportunities  491 equal treatment  492–3 extension of working time  491 information, consultation and representation  493 temporary agency work collective bargaining agreements  498 contractual relationship—agency and undertaking  497 contractual relationship—worker and agency  495–6 contractual relationship—worker and undertaking  496–7 definitions and formal requirements  494 dismissal protection  496 equal treatment  497 information, consultation and representation  498 registration, licensing and guarantees  494–5 right to strike  498

1004  Index Lecturers see Teachers and academics Legal definitions see Definitions and formal requirements Licensing see Registration, licensing and guarantees Lithuania fixed-term work collective bargaining agreements  506–7 conditions for lawfulness  501–3 definitions and formal requirements  500 dismissal protection  503–4 employment opportunities  505 equal treatment  504–5 information, consultation and representation  505–6 overview  500 specific provisions  506 overview of atypical employment  499–500 part-time work collective bargaining agreements  512 definitions and formal requirements  507–8 dismissal protection  510 employment opportunities  508–10 equal treatment  510 extension of working time  509–10 information, consultation and representation  510–11 other arrangements  511–12 overview  507 temporary agency work collective bargaining agreements  518–19 contractual relationship—agency and undertaking  516–17 contractual relationship—worker and agency  513–15 contractual relationship—worker and undertaking  515–16 definitions and formal requirements  513 equal treatment  517–18 information, consultation and representation  518 legislative provisions  512–13 other matters relating to rights or status  518 registration, licensing and guarantees  513 right to strike  518–19 Luxembourg fixed-term work collective bargaining agreements  530–1 conditions for lawfulness  523–7

definitions and formal requirements  522–3 dismissal protection  527–8 employment opportunities  528 equal treatment  528 information, consultation and representation  529 overview  521–2 specific provisions  529–30 overview of atypical employment  521 part-time work collective bargaining agreements  538–9 definitions and formal requirements  531–3 employment opportunities  533–4 equal treatment  534–6 extension of working time  534 information, consultation and representation  536–7 legislative provisions  531 other arrangements  537–8 temporary agency work collective bargaining agreements  547 contractual relationship—agency and undertaking  544–5 contractual relationship—worker and agency  542–3 contractual relationship—worker and undertaking  543–4 definitions and formal requirements  539–42 equal treatment  545–6 information, consultation and representation  546 registration, licensing and guarantees  542 right to strike  546–7 Macedonia see Republic of North Macedonia Malta fixed-term work collective bargaining agreements  554 conditions for lawfulness  550–1 definitions and formal requirements  549 dismissal protection  551–2 employment opportunities  553–4 equal treatment  553–4 information, consultation and representation  554 overview of atypical employment  549 part-time work collective bargaining agreements  559 definitions and formal requirements  554–5 dismissal protection  556–8

Index 1005 employment opportunities  555 equal treatment  555–6 extension of working time  555 information, consultation and representation  559 vocational training  559 temporary agency work collective bargaining agreements  569 contractual relationship—agency and undertaking  566–7 contractual relationship—worker and agency  562–3 contractual relationship—worker and undertaking  563–6 definitions and formal requirements  559–61 equal treatment  567–8 information, consultation and representation  568–9 other matters relating to rights or status  568 registration, licensing and guarantees  561 right to strike  569 Montenegro fixed-term work collective bargaining agreements  579 conditions for lawfulness  572–5 definitions and formal requirements  572 dismissal protection  576–7 employment opportunities  577 equal treatment  577 information, consultation and representation  577–8 specific provisions  578–9 overview of atypical employment  571 part-time work collective bargaining agreements  583 definitions and formal requirements  579–80 dismissal protection  583 employment opportunities  580–1 equal treatment  582 extension of working time  581 information, consultation and representation  583 other arrangements  583 temporary agency work collective bargaining agreements  590 contractual relationship—agency and undertaking  587–8 contractual relationship—worker and agency  585–6 contractual relationship—worker and undertaking  586–7 definitions and formal requirements  584

equal treatment  588 information, consultation and representation  589 registration, licensing and guarantees  584–5 right to strike  589 Musicians see Artists and performers Netherlands fixed-term work collective bargaining agreements  602–3 conditions for lawfulness  593–5 definitions and formal requirements  592–3 dismissal protection  595–8 employment opportunities  600 equal treatment  599–600 information, consultation and representation  602 other matters relating to rights or status  600–1 specific provisions  602 legislative provisions  591–2 part-time work collective bargaining agreements  609–10 definitions and formal requirements  603–4 dismissal protection  607 employment opportunities  604–5 equal treatment  606 extension of working time  605 information, consultation and representation  607 other arrangements  607–9 other matters relating to rights or status  607 temporary agency work collective bargaining agreements  621 contractual relationship—agency and undertaking  618 contractual relationship—worker and agency  614–17 contractual relationship—worker and undertaking  617–18 definitions and formal requirements  610–13 equal treatment  618–20 information, consultation and representation  621 other matters relating to rights or status  620 registration, licensing and guarantees  613–14 right to strike  621

1006  Index Non-discrimination see Equal treatment North Macedonia see Republic of North Macedonia Norway fixed-term work collective bargaining agreements  630–1 conditions for lawfulness  625–7 definitions and formal requirements  624–5 dismissal protection  627–8 employment opportunities  629 equal treatment  628–9 information, consultation and representation  630 other matters relating to rights or status  630 specific provisions  630 overview of atypical employment  623–4 part-time work collective bargaining agreements  641 definitions and formal requirements  631 dismissal protection  639–40 employment opportunities  631–6 equal treatment  636–9 extension of working time  633–6 information, consultation and representation  640 other matters relating to rights or status  640 working time  640–1 temporary agency work collective bargaining agreements  646 contractual relationship—agency and undertaking  644 contractual relationship—worker and agency  642 contractual relationship—worker and undertaking  643–4 definitions and formal requirements  641–2 equal treatment  644–5 information, consultation and representation  645–6 registration, licensing and guarantees  642 right to strike  646 On-call see Zero-hours contracts Opportunities see Employment opportunities Part-time work see also Fixed-term work; Temporary agency work Austria collective bargaining agreements  13–14

definitions and formal requirements  8–9 dismissal protection  12 equal treatment  10–12 extension of hours  10 information, consultation and representation  12 overtime premium  12–13 reduction of hours  9–10 zero-hours contracts  13 Belgium collective bargaining agreements  43 definitions and formal requirements  36–9 dismissal protection  41 employment opportunities  39–40 equal treatment  41–2 extension of working time  40 information, consultation and representation  41–2 overtime  41 overview  36 ‘time credit’ system  39–40 Bulgaria collective bargaining agreements  74 definitions and formal requirements  67 dismissal protection  73 distribution of working hours  73–4 equal treatment  72–3 extension of working time  67–71 information, consultation and representation  73 Croatia collective bargaining agreements  98 definitions and formal requirements  93–4 dismissal protection  96–7 equal treatment  95–7 extension of working time  95 family rights  95 information, consultation and representation  97 other arrangements  97–8 Cyprus collective bargaining agreements  128–9 definitions and formal requirements  122–3 dismissal protection  126 employment opportunities  123 equal treatment  124–7 extension of working time  124 information, consultation and representation  127 legislative provisions  121–2 other arrangements  128 Czech Republic collective bargaining agreements  153

Index 1007 definitions and formal requirements  146–7 dismissal protection  150–1 employment opportunities  147–9 equal treatment  149–50 extension of working time  149 information, consultation and representation  151 other arrangements  152–3 Denmark collective bargaining agreements  191 definitions and formal requirements  178–9 dismissal protection  186 employment opportunities  179–84 equal treatment  184–6 extension of working time  183–4 formal requirements  178–9 information, consultation and representation  187–9 other arrangements  189–90 other matters relating to rights or status  187 Estonia collective bargaining agreements  216–17 definitions and formal requirements  213 dismissal protection  215 employment opportunities  213–14 equal treatment  214–16 extension of working time  214 information, consultation and representation  216 other arrangements  216 Finland collective bargaining agreements  239–40 definitions and formal requirements  232 dismissal protection  238 employment opportunities  233–7 equal treatment  237–9 extension of working time  235–7 information, consultation and representation  239 other arrangements  239 other matters relating to rights or status  238–9 France collective bargaining agreements  264 definitions and formal requirements  258–9 dismissal protection  262–3 employment opportunities  259–61 equal treatment  261–3 extension of working time  260–1

information, consultation and representation  263 intermittent work  263–4 other matters relating to rights or status  263 Germany collective bargaining agreements  338–9 definitions and formal requirements  328 dismissal protection  336 employment opportunities  329–34 equal treatment  334–6 extension of working time  333–4 information, consultation and representation  336–7 other arrangements  337–8 Greece collective bargaining agreements  365 definitions and formal requirements  361–2 dismissal protection  364 employment opportunities  362–3 equal treatment  363–4 information, consultation and representation  364 other arrangements  364 working hours  364 Hungary collective bargaining agreements  386 definitions and formal requirements  381 dismissal protection  383 employment opportunities  381–2 equal treatment  382–3 extension of working time  382 information, consultation and representation  384 other arrangements  384–6 statistical data  383 Iceland collective bargaining agreements  412 definitions and formal requirements  408–9 dismissal protection  411 employment opportunities  409 equal treatment  410–11 information, consultation and representation  411–12 new forms of employment  412 Ireland collective bargaining agreements  445 definitions and formal requirements  440 dismissal protection  443–4 employment opportunities  440–1 equal treatment  441–3

1008  Index information, consultation and representation  444 other arrangements  444–5 Italy collective bargaining agreements  473–4 definitions and formal requirements  467–8 dismissal protection  470 ‘elastic clauses’  471–2 employment opportunities  469 equal treatment  470 extension of working time  469 information, consultation and representation  470–1 intermittent contracts  472–3 other matters relating to rights or status  470 Latvia collective bargaining agreements  493–4 definitions and formal requirements  491 dismissal protection  493 employment opportunities  491 equal treatment  492–3 extension of working time  491 information, consultation and representation  493 Lithuania collective bargaining agreements  512 definitions and formal requirements  507–8 dismissal protection  510 employment opportunities  58–10, 508–10 equal treatment  510 extension of working time  509–10 information, consultation and representation  510–11 other arrangements  511–12 overview  507 Luxembourg collective bargaining agreements  538–9 definitions and formal requirements  531–3 employment opportunities  533–4 equal treatment  534–6 extension of working time  534 information, consultation and representation  536–7 legislative provisions  531 other arrangements  537–8 Malta collective bargaining agreements  559 definitions and formal requirements  554–5

dismissal protection  556–8 employment opportunities  555 equal treatment  555–6 extension of working time  555 information, consultation and representation  559 vocational training  559 Montenegro collective bargaining agreements  583 definitions and formal requirements  579–80 dismissal protection  583 employment opportunities  580–1 equal treatment  582 extension of working time  581 information, consultation and representation  583 other arrangements  583 Netherlands collective bargaining agreements  609–10 definitions and formal requirements  603–4 dismissal protection  607 employment opportunities  604–5 equal treatment  606 extension of working time  605 information, consultation and representation  607 other arrangements  607–9 other matters relating to rights or status  607 Norway collective bargaining agreements  641 definitions and formal requirements  631 dismissal protection  639–40 employment opportunities  631–6 equal treatment  636–9 extension of working time  633–6 information, consultation and representation  640 other matters relating to rights or status  640 working time  640–1 Poland collective bargaining agreements  662 definitions and formal requirements  655 dismissal protection  660 employment opportunities  656–8 equal treatment  658–9 extension of working time  658 information, consultation and representation  661 other arrangements  661–2 other matters relating to rights or status  660–1

Index 1009 Portugal collective bargaining agreements  688–9 definitions and formal requirements  684–5 dismissal protection  686–7 employment opportunities  685–6 equal treatment  686 extension of working time  686 information, consultation and representation  687 other arrangements  687–8 Republic of North Macedonia collective bargaining agreements  298 definitions and formal requirements  290–2 dismissal protection  295–6 employment opportunities  292–3 equal treatment  293–6 extension of working time  293 information, consultation and representation  296 other arrangements  297–8 other matters relating to rights or status  296 Romania collective bargaining agreements  720 definitions and formal requirements  711–12 dismissal protection  717–18 employment opportunities  712–15 equal treatment  715–17 extension of working time  714–15 information, consultation and representation  718 other arrangements  718–20 other matters relating to rights or status  718 Russia collective bargaining agreements  747 definitions and formal requirements  742–4 dismissal protection  745 employment opportunities  744 equal treatment  744–5 information, consultation and representation  746 other arrangements  746–7 Serbia collective bargaining agreements  775 definitions and formal requirements  771 dismissal protection  773–4 employment opportunities  771–3 equal treatment  773 extension of working time  773

information, consultation and representation  774 other arrangements  774 Slovakia collective bargaining agreements  791 definitions and formal requirements  788–9 dismissal protection  790 employment opportunities  789–90 equal treatment  790 extension of working time  789–90 information, consultation and representation  790–1 other arrangements  791 Slovenia collective bargaining agreements  823 definitions and formal requirements  818–19 dismissal protection  821 employment opportunities  819–21 equal treatment  821 extension of working time  820–1 information, consultation and representation  822 other arrangements  822–3 other matters relating to rights or status  822 Spain collective bargaining agreements  850 definitions and formal requirements  845–6 dismissal protection  847–8 employment opportunities  846–7 equal treatment  847 extension of working time  847 information, consultation and representation  849 other arrangements  849–50 other matters relating to rights or status  848–9 Sweden collective bargaining agreements  871 definitions and formal requirements  868 dismissal protection  869–70 employment opportunities  868–9 equal treatment  869 extension of working time  869 information, consultation and representation  870–1 other arrangements  871 Switzerland collective bargaining agreements  897–8 definitions and formal requirements  891–2 dismissal protection  893–4 employment opportunities  892

1010  Index equal treatment  892–3 extension of working time  892 information, consultation and representation  895 other arrangements  896–7 other matters relating to rights or status  894–5 Turkey collective bargaining agreements  927 definitions and formal requirements  919 dismissal protection  923–5 employment opportunities  920–2 equal treatment  922–3 extension of working time  922 information, consultation and representation  926 other arrangements  926–7 other matters relating to rights or status  925 United Kingdom collective bargaining agreements  952 definitions and formal requirements  945–7 dismissal protection  948–9 employment opportunities  947–8 equal treatment  948 extension of working time  948 information, consultation and representation  949 other arrangements  949–52 other matters relating to rights or status  949 Performers see Artists and performers Poland fixed-term work collective bargaining agreements  655 conditions for lawfulness  649–51 definitions and formal requirements  648–9 dismissal protection  651–3 employment opportunities  654 equal treatment  653 information, consultation and representation  654–5 other matters relating to rights or status  654 specific provisions  655 overview of atypical employment  647–8 part-time work collective bargaining agreements  662 definitions and formal requirements  655 dismissal protection  660 employment opportunities  656–8 equal treatment  658–9 extension of working time  658

information, consultation and representation  661 other arrangements  661–2 other matters relating to rights or status  660–1 temporary agency work collective bargaining agreements  671 contractual relationship—agency and undertaking  668–9 contractual relationship—worker and agency  665–8 definitions and formal requirements  662–4 equal treatment  669 other matters relating to rights or status  669–70 registration, licensing and guarantees  664–5 right to strike  670–1 Political aides Austria  7 Bulgaria  60 United Kingdom  944 Portugal overview of atypical employment  673–4 part-time work collective bargaining agreements  688–9 definitions and formal requirements  684–5 dismissal protection  686–7 employment opportunities  685–6 equal treatment  686 extension of working time  686 information, consultation and representation  687 other arrangements  687–8 temporary agency work collective bargaining agreements  698 contractual relationship—agency and undertaking  695–6 contractual relationship—worker and agency  690–3 contractual relationship—worker and undertaking  693–5 definitions and formal requirements  689–90 equal treatment  697 information, consultation and representation  697 registration, licensing and guarantees  690 right to strike  697–8 term work collective bargaining agreements  684 conditions for lawfulness  678–80 definitions and formal requirements  675–8

Index 1011 dismissal protection  680–1 employment opportunities  682 equal treatment  682 information, consultation and representation  682–3 specific provisions  683–4 Pro rata temporis principle Austria  11 Belgium  40 comparative overview  lx–lxi Croatia  96 Cyprus  115, 122, 125 Denmark  185 Germany  334 Greece  363 Hungary  382–3 Latvia  492 Luxembourg  529, 535 Netherlands  606 Norway  633, 637 Poland  659, 662 Republic of North Macedonia  294, 296 restatement text  xxvii Romania  716 Russia  744 Slovenia  815, 821 Switzerland  893 Professors see Teachers and academics Public servants Austria  7 Belgium  26 comparative overview  xlix Cyprus  112–13, 117–18, 123 Denmark  170–1 Estonia  206 Finland  227 Germany  327 Greece  357 Hungary  380 Iceland  397, 399–401, 400–1, 401, 404 Ireland  431, 439, 443 Italy  466 Montenegro  578–9 Norway  623–4, 625 Poland  655 Portugal  678 Russia  734 Serbia  770 Slovenia  817–18, 822–3 Spain  845 Sweden  866 Turkey  916 Race discrimination see Equal treatment Registration and licensing of agencies Austria  15 Belgium  50 Bulgaria  75

comparative overview  lxxix–lxxx Croatia  100 Cyprus  133 Czech Republic  155–6 Denmark  193–4 Finland  240–1 France  266–8 Germany  340–1 Greece  366–7 Hungary  388 Iceland  414–16 Italy  476–7 Latvia  494–5 Lithuania  513 Luxembourg  542 Malta  561 Montenegro  584–5 Netherlands  613–14 Norway  642 Poland  664–5 Portugal  690 Republic of North Macedonia  300–1 restatement text  xxxi Romania  720–2 Russia  750–2 Serbia  777 Slovenia  824–6 Spain  851–2 Sweden  873 Switzerland  900–1 Turkey  929–30 United Kingdom  953–4 Representation see Information, consultation and representation Republic of North Macedonia fixed-term work collective bargaining agreements  290 conditions for lawfulness  279–85 definitions and formal requirements  278–9 dismissal protection  285–6 employment opportunities  288 equal treatment  287–8 information, consultation and representation  288 other matters relating to rights or status  288 specific provisions  288–9 overview of atypical employment  277–8 part-time work collective bargaining agreements  298 definitions and formal requirements  290–2 dismissal protection  295–6 employment opportunities  292–3 equal treatment  293–6 extension of working time  293

1012  Index information, consultation and representation  296 other arrangements  297–8 other matters relating to rights or status  296 temporary agency work collective bargaining agreements  310 contractual relationship—agency and undertaking  306–8 contractual relationship—worker and agency  301–4 contractual relationship—worker and undertaking  304–5 definitions and formal requirements  299–300 dismissal protection  303–4 equal treatment  308–9 information, consultation and representation  309, 309–10 other matters relating to rights or status  309 registration, licensing and guarantees  300–1 right to strike  310 Researchers see also Teachers and academics Austria  7 Belgium  31 Bulgaria  66 Croatia  87, 92 Cyprus  112, 128 Denmark  177 Estonia  212 Germany  327 Greece  356 Iceland  404–5 Ireland  432 Italy  463, 466 Lithuania  506 Luxembourg  524, 526, 529–30 Norway  631 Romania  714 Slovenia  818, 820 Sweden  867 Right to strike (agency workers) Austria  20 Belgium  55 Bulgaria  80–1 comparative overview  lxxxv–lxxxvi Croatia  104 Cyprus  137–8 Czech Republic  164 Denmark  202–3 Estonia  224 Finland  245 France  275 Germany  350 Greece  371

Hungary  393–4 Iceland  421–2 Ireland  457 Italy  483 Latvia  498 Lithuania  519 Luxembourg  546–7 Malta  569 Montenegro  589 Netherlands  621 Norway  646 Portugal  697–8 Republic of North Macedonia  310 restatement text  xxxi Romania  731 Russia  758 Serbia  781–2 Slovakia  807–8 Slovenia  833–4 Spain  858 Sweden  878 Switzerland  908 Turkey  936–7 United Kingdom  961 Right to work see Employment opportunities Rights and status see Dismissal protection; Employment opportunities; Equal treatment Romania fixed-term work collective bargaining agreements  710 conditions for lawfulness  703–4 definitions and formal requirements  700–3 dismissal protection  705–6 employment opportunities  707 equal treatment  706–7 information, consultation and representation  708 other matters relating to rights or status  707 specific provisions  708–10 overview of atypical employment  699–700 part-time work collective bargaining agreements  720 definitions and formal requirements  711–12 dismissal protection  717–18 employment opportunities  712–15 equal treatment  715–17 extension of working time  714–15 information, consultation and representation  718 other arrangements  718–20 other matters relating to rights or status  718 temporary agency work collective bargaining agreements  731

Index 1013 contractual relationship—agency and undertaking  728 contractual relationship—worker and agency  723–5 contractual relationship—worker and undertaking  725–8 definitions and formal requirements  720–1 equal treatment  728–30 information, consultation and representation  730–1 other matters relating to rights or status  730 registration, licensing and guarantees  720–2 right to strike  731 Russia fixed-term work collective bargaining agreements  742 conditions for lawfulness  736–8 definitions and formal requirements  734–6 dismissal protection  738–9 employment opportunities  741 equal treatment  739–41 information, consultation and representation  741 specific provisions  742 overview of atypical employment  731 part-time work collective bargaining agreements  747 definitions and formal requirements  742–4 dismissal protection  745 employment opportunities  744 equal treatment  744–5 information, consultation and representation  746 other arrangements  746–7 temporary agency work collective bargaining agreements  758 contractual relationship—agency and undertaking  756–7 contractual relationship—worker and agency  752–4 contractual relationship—worker and undertaking  754–6 definitions and formal requirements  747–50 equal treatment  757 information, consultation and representation  758 other matters relating to rights or status  757 registration, licensing and guarantees  750–2 right to strike  758

School teachers see Teachers and academics Scientific research see Researchers Seamen comparative overview  xlix Iceland  397, 401, 406 Seasonal workers Austria  3–5 comparative overview  lxii, xxxvii Croatia  91 Czech Republic  143 Estonia  208 Finland  241 France  248 Germany  311, 328 Greece  354 Hungary  385 Italy  462, 465 Latvia  485, 487 Lithuania  499, 501 Luxembourg  529 Montenegro  572–3 Netherlands  609 Norway  640 Poland  650 Republic of North Macedonia  278–9, 283, 286, 289, 299 Romania  702 Russia  734, 740, 742 Slovakia  785, 797 Slovenia  811, 814, 816 Sweden  861, 863–4 Switzerland  884 Serbia fixed-term work collective bargaining agreements  770 conditions for lawfulness  760–7 definitions and formal requirements  760 dismissal protection  767–8 employment opportunities  769 equal treatment  768–9 information, consultation and representation  769 specific provisions  770 overview of atypical employment  759 part-time work collective bargaining agreements  775 definitions and formal requirements  771 dismissal protection  773–4 employment opportunities  771–3 equal treatment  773 extension of working time  773 information, consultation and representation  774 other arrangements  774 temporary agency work collective bargaining agreements  782

1014  Index contractual relationship—agency and undertaking  780 contractual relationship—worker and agency  778–9 contractual relationship—worker and undertaking  779–80 definitions and formal requirements  775–7 equal treatment  780–1 information, consultation and representation  781 registration, licensing and guarantees  777 right to strike  781–2 Sex discrimination see Equal treatment Sexual orientation see Equal treatment Shared workplaces see Job-sharing Slovakia fixed-term work collective bargaining agreements  788 conditions for lawfulness  784–5 definitions and formal requirements  783–4 dismissal protection  785–6 employment opportunities  786 equal treatment  786 information, consultation and representation  787 other matters relating to rights or status  787 specific provisions  787–8 overview of atypical employment  783 part-time work collective bargaining agreements  791 definitions and formal requirements  788–9 dismissal protection  790 employment opportunities  789–90 equal treatment  790 extension of working time  789–90 information, consultation and representation  790–1 other arrangements  791 temporary agency work collective bargaining agreements  808 contractual relationship—agency and undertaking  803–5 contractual relationship—worker and agency  796–801 contractual relationship—worker and undertaking  801–3 definitions and formal requirements  791–3 equal treatment  805–6 information, consultation and representation  806 right to strike  807–8

Slovenia fixed-term work collective bargaining agreements  818 conditions for lawfulness  812–13 definitions and formal requirements  810–12 dismissal protection  814–15 employment opportunities  816 information, consultation and representation  816–17 other matters relating to rights or status  816 specific provisions  817–18 overview of atypical employment  809–10 part-time work collective bargaining agreements  823 definitions and formal requirements  818–19 dismissal protection  821 employment opportunities  819–21 equal treatment  821 extension of working time  820–1 information, consultation and representation  822 other arrangements  822–3 other matters relating to rights or status  822 temporary agency work collective bargaining agreements  834–5 contractual relationship—agency and undertaking  831–2 contractual relationship—worker and agency  826–9 contractual relationship—worker and undertaking  829–31 definitions and formal requirements  823–4 equal treatment  832–3 information, consultation and representation  833 other matters relating to rights or status  833 registration, licensing and guarantees  824–6 right to strike  833–4 Spain fixed-term work collective bargaining agreements  845 conditions for lawfulness  839–41 definitions and formal requirements  838–9 dismissal protection  841–2 employment opportunities  843 equal treatment  842–3 information, consultation and representation  844

Index 1015 other matters relating to rights or status  843–4 specific provisions  844–5 overview of atypical employment  837–8 part-time work collective bargaining agreements  850 definitions and formal requirements  845–6 dismissal protection  847–8 employment opportunities  846–7 equal treatment  847 extension of working time  847 information, consultation and representation  849 other arrangements  849–50 other matters relating to rights or status  848–9 temporary agency work collective bargaining agreements  858 contractual relationship—agency and undertaking  855–6 contractual relationship—worker and agency  852–4 contractual relationship—worker and undertaking  854–5 definitions and formal requirements  850–1 equal treatment  856 information, consultation and representation  857 other matters relating to rights or status  857 registration, licensing and guarantees  851–2 right to strike  858 Sports personnel Austria  3 Netherlands  603 Norway  626, 630–1, 630–2 Russia  742 Turkey  930 United Kingdom  952 Stand-by arrangements see Zero-hours contracts Status see Dismissal protection; Employment opportunities; Equal treatment Strikes see Right to strike (agency workers) Sweden fixed-term work collective bargaining agreements  867 conditions for lawfulness  861–2 definitions and formal requirements  860–1 dismissal protection  862–3 employment opportunities  864–5 equal treatment  863–4

information, consultation and representation  865–6 specific provisions  866–7 overview of atypical employment  859–60 part-time work collective bargaining agreements  871 definitions and formal requirements  868 dismissal protection  869–70 employment opportunities  868–9 equal treatment  869 extension of working time  869 information, consultation and representation  870–1 other arrangements  871 temporary agency work collective bargaining agreements  878–9 contractual relationship—agency and undertaking  876 contractual relationship—worker and agency  873–4 contractual relationship—worker and undertaking  874–6 definitions and formal requirements  871–2 equal treatment  876–7 registration, licensing and guarantees  873 right to strike  878 Switzerland fixed-term work collective bargaining agreements  890 conditions for lawfulness  884–6 definitions and formal requirements  882–4 dismissal protection  886–8 employment opportunities  889 equal treatment  888–9 information, consultation and representation  889–90 other matters relating to rights or status  889 specific provisions  890 overview of atypical employment  881 part-time work collective bargaining agreements  897–8 definitions and formal requirements  891–2 dismissal protection  893–4 employment opportunities  892 equal treatment  892–3 extension of working time  892 information, consultation and representation  895

1016  Index other arrangements  896–7 other matters relating to rights or status  894–5 temporary agency work collective bargaining agreements  908–9 contractual relationship—agency and undertaking  906–7 contractual relationship—worker and agency  901–4 contractual relationship—worker and undertaking  904–6 definitions and formal requirements  898–900 equal treatment  907 information, consultation and representation  907–8 registration, licensing and guarantees  900–1 right to strike  908 Teachers and academics see also Researchers Austria  7 Croatia  92 Cyprus  110, 128 Denmark  170, 172, 174, 177, 181, 185 Estonia  207, 212 Greece  355, 364 Iceland  403, 405–6, 411 Ireland  439–40, 445 Italy  466 Luxembourg  524, 526, 530 Netherlands  602 Poland  655 Republic of North Macedonia  284, 290 Russia  742–3, 745 Serbia  771 Slovakia  785, 787–8 Spain  845 Sweden  866 Turkey  918 Temporary agency work see also Fixed-term work; Part-time work Austria collective bargaining agreements  20–1 contractual relationship—agency and undertaking  18–19 contractual relationship—worker and agency  15–17 contractual relationship—worker and undertaking  17–18 definitions and formal requirements  14 dismissal protection  16–17 equal treatment  19 information, consultation and representation  19–20

registration, licensing and guarantees  15 right to strike  20 Belgium collective bargaining agreements  55 contractual relationship—agency and undertaking  53 contractual relationship—worker and agency  50–3 contractual relationship—worker and undertaking  53 definitions and formal requirements  44–50 equal treatment  54 information, consultation and representation  54–5 legislative provisions  43–4 other matters relating to rights or status  40 registration, licensing and guarantees  50 right to strike  55 Bulgaria collective bargaining agreements  81 contractual relationship—agency and undertaking  79 contractual relationship—worker and agency  76–7 contractual relationship—worker and undertaking  77–9 definitions and formal requirements  74–5 dismissal protection  76–7 equal treatment  79–80 information, consultation and representation  80 other matters relating to rights or status  80 registration, licensing and guarantees  75 right to strike  80–1 Croatia collective bargaining agreements  105 contractual relationship—agency and undertaking  102–3 contractual relationship—worker and agency  100–1 contractual relationship—worker and undertaking  101–2 definitions and formal requirements  99 dismissal protection  101 equal treatment  103–4 information, consultation and representation  104 registration, licensing and guarantees  100 right to strike  104

Index 1017 Cyprus collective bargaining agreements  138 contractual relationship—agency and undertaking  136 contractual relationship—worker and agency  134–5 contractual relationship—worker and undertaking  135–6 definitions and formal requirements  130–3 equal treatment  137 information, consultation and representation  137 overview  129–30 registration, licensing and guarantees  133 right to strike  137–8 Czech Republic collective bargaining agreements  164–5 contractual relationship—agency and undertaking  161–2 contractual relationship—worker and agency  156–9 contractual relationship—worker and undertaking  159–61 definitions and formal requirements  153–4 dismissal protection  158–9 equal treatment  162–3 information, consultation and representation  163–4 registration, licensing and guarantees  155–6 right to strike  164 Denmark collective bargaining agreements  203–4 contractual relationship—agency and undertaking  199–200 contractual relationship—worker and agency  194–7 contractual relationship—worker and undertaking  197–9 definitions and formal requirements  192–3 dismissal protection  196–7 equal treatment  200–1 information, consultation and representation  201–2 legislative provisions  191–2 registration, licensing and guarantees  193–4 right to strike  202–3 restatement text  xxxi Romania  728–30 Russia  757

Estonia collective bargaining agreements  224 contractual relationship—agency and undertaking  221–2 contractual relationship—worker and agency  218–20 contractual relationship—worker and undertaking  220–1 definitions and formal requirements  216–17 dismissal protection  220 equal treatment  222 information, consultation and representation  223 other matters relating to rights or status  222 registration, licensing and guarantees  217–18 right to strike  224 Finland collective bargaining agreements  245–6 contractual relationship—agency and undertaking  243–4 contractual relationship—worker and agency  241–2 contractual relationship—worker and undertaking  241–2 definitions and formal requirements  240 dismissal protection  242 equal treatment  244 information, consultation and representation  244 other matters relating to rights or status  244 registration, licensing and guarantees  240–1 right to strike  245 France collective bargaining agreements  275 contractual relationship—agency and undertaking  272–3 contractual relationship—worker and agency  268–71 contractual relationship—worker and undertaking  271–2 definitions and formal requirements  265–6 dismissal protection  271 equal treatment  273–4 information, consultation and representation  274–5 overview  265 registration, licensing and guarantees  266–8 right to strike  275

1018  Index Germany collective bargaining agreements  350 contractual relationship—agency and undertaking  345–6 contractual relationship—worker and agency  341–4 contractual relationship—worker and undertaking  344–5 definitions and formal requirements  339–40 dismissal protection  343–4 equal treatment  347–8 information, consultation and representation  348–9 registration, licensing and guarantees  340–1 right to strike  350 Greece assignment fees  370 collective bargaining agreements  371 contractual relationship—agency and undertaking  370 contractual relationship—worker and agency  367–8 contractual relationship—worker and undertaking  368–9 definitions and formal requirements  365–6 dismissal protection  368 equal treatment  370 information, consultation and representation  371 legislative provisions  365 registration, licensing and guarantees  366–7 right to strike  371 Hungary collective bargaining agreements  394–5 contractual relationship—agency and undertaking  391–2 contractual relationship—worker and agency  388–90 contractual relationship—worker and undertaking  390 definitions and formal requirements  386–8 equal treatment  392–3 information, consultation and representation  393 registration, licensing and guarantees  388 right to strike  393–4 Iceland collective bargaining agreements  423 contractual relationship—agency and undertaking  420

contractual relationship—worker and agency  416–17 contractual relationship—worker and undertaking  417–20 definitions and formal requirements  413–14 equal treatment  420–1 information, consultation and representation  421 overview  412–13 registration, licensing and guarantees  414–16 right to strike  421–2 Ireland collective bargaining agreements  457–8 contractual relationship—agency and undertaking  453 contractual relationship—worker and agency  449–52 contractual relationship—worker and undertaking  452–3 definitions and formal requirements  445–6 equal treatment  453–6 information, consultation and representation  456–7 other matters relating to rights or status  455–6 registration, licensing and guarantees  446–8 right to strike  457 Italy collective bargaining agreements  483 contractual relationship—agency and undertaking  480 contractual relationship—worker and agency  477–9 contractual relationship—worker and undertaking  479–80 definitions and formal requirements  474–6 equal treatment  480–1 information, consultation and representation  482–3 other matters relating to rights or status  481–2 registration, licensing and guarantees  476–7 right to strike  483 Latvia collective bargaining agreements  498 contractual relationship—agency and undertaking  497 contractual relationship—worker and agency  495–6 contractual relationship—worker and undertaking  496–7

Index 1019 definitions and formal requirements  494 dismissal protection  496 equal treatment  497 information, consultation and representation  498 registration, licensing and guarantees  494–5 right to strike  498 Lithuania collective bargaining agreements  518–19 contractual relationship—agency and undertaking  516–17 contractual relationship—worker and agency  513–15 contractual relationship—worker and undertaking  515–16 definitions and formal requirements  513 equal treatment  517–18 information, consultation and representation  518 legislative provisions  512–13 other matters relating to rights or status  518 registration, licensing and guarantees  513 right to strike  518–19 Luxembourg collective bargaining agreements  547 contractual relationship—agency and undertaking  544–5 contractual relationship—worker and agency  542–3 contractual relationship—worker and undertaking  543–4 definitions and formal requirements  539–42 equal treatment  545–6 information, consultation and representation  546 registration, licensing and guarantees  542 right to strike  546–7 Malta collective bargaining agreements  569 contractual relationship—agency and undertaking  566–7 contractual relationship—worker and agency  562–3 contractual relationship—worker and undertaking  563–6 definitions and formal requirements  559–61 equal treatment  567–8 information, consultation and representation  568–9

other matters relating to rights or status  568 registration, licensing and guarantees  561 right to strike  569 Montenegro collective bargaining agreements  590 contractual relationship—agency and undertaking  587–8 contractual relationship—worker and agency  585–6 contractual relationship—worker and undertaking  586–7 definitions and formal requirements  584 equal treatment  588 information, consultation and representation  589 registration, licensing and guarantees  584–5 right to strike  589 Netherlands collective bargaining agreements  621 contractual relationship—agency and undertaking  618 contractual relationship—worker and agency  614–17 contractual relationship—worker and undertaking  617–18 definitions and formal requirements  610–13 equal treatment  618–20 information, consultation and representation  621 other matters relating to rights or status  620 registration, licensing and guarantees  613–14 right to strike  621 Norway collective bargaining agreements  646 contractual relationship—agency and undertaking  644 contractual relationship—worker and agency  642 contractual relationship—worker and undertaking  643–4 definitions and formal requirements  641–2 equal treatment  644–5 information, consultation and representation  645–6 registration, licensing and guarantees  642 right to strike  646

1020  Index Poland collective bargaining agreements  671 contractual relationship—agency and undertaking  668–9 contractual relationship—worker and agency  665–8 definitions and formal requirements  662–4 equal treatment  669 other matters relating to rights or status  669–70 registration, licensing and guarantees  664–5 right to strike  670–1 Portugal collective bargaining agreements  698 contractual relationship—agency and undertaking  695–6 contractual relationship—worker and agency  690–3 contractual relationship—worker and undertaking  693–5 definitions and formal requirements  689–90 equal treatment  697 information, consultation and representation  697 registration, licensing and guarantees  690 right to strike  697–8 Republic of North Macedonia collective bargaining agreements  310 contractual relationship—agency and undertaking  306–8 contractual relationship—worker and agency  301–4 contractual relationship—worker and undertaking  304–5 definitions and formal requirements  299–300 dismissal protection  303–4 equal treatment  308–9 information, consultation and representation  309–10 other matters relating to rights or status  309 registration, licensing and guarantees  300–1 right to strike  310 Romania collective bargaining agreements  731 contractual relationship—agency and undertaking  728 contractual relationship—worker and agency  723–5 contractual relationship—worker and undertaking  725–8

definitions and formal requirements  720–1 equal treatment  728–30 information, consultation and representation  730–1 other matters relating to rights or status  730 registration, licensing and guarantees  720–2 right to strike  731 Russia collective bargaining agreements  758 contractual relationship—agency and undertaking  756–7 contractual relationship—worker and agency  752–4 contractual relationship—worker and undertaking  754–6 definitions and formal requirements  747–50 equal treatment  757 information, consultation and representation  758 other matters relating to rights or status  757 registration, licensing and guarantees  750–2 right to strike  758 Serbia collective bargaining agreements  782 contractual relationship—agency and undertaking  780 contractual relationship—worker and agency  778–9 contractual relationship—worker and undertaking  779–80 definitions and formal requirements  775–7 equal treatment  780–1 information, consultation and representation  781 registration, licensing and guarantees  777 right to strike  781–2 Slovakia collective bargaining agreements  808 contractual relationship—agency and undertaking  803–5 contractual relationship—worker and agency  796–801 contractual relationship—worker and undertaking  801–3 definitions and formal requirements  791–3 equal treatment  805–6 information, consultation and representation  806

Index 1021 other matters relating to rights or status  806 right to strike  807–8 Slovenia collective bargaining agreements  834–5 contractual relationship—agency and undertaking  831–2 contractual relationship—worker and agency  826–9 contractual relationship—worker and undertaking  829–31 definitions and formal requirements  823–4 equal treatment  832–3 information, consultation and representation  833 other matters relating to rights or status  833 registration, licensing and guarantees  824–6 right to strike  833–4 Spain collective bargaining agreements  858 contractual relationship—agency and undertaking  855–6 contractual relationship—worker and agency  852–4 contractual relationship—worker and undertaking  854–5 definitions and formal requirements  850–1 equal treatment  856 information, consultation and representation  857 other matters relating to rights or status  857 registration, licensing and guarantees  851–2 right to strike  858 Sweden collective bargaining agreements  878–9 contractual relationship—agency and undertaking  876 contractual relationship—worker and agency  873–4 contractual relationship—worker and undertaking  874–6 definitions and formal requirements  871–2 equal treatment  876–7 information, consultation and representation  878 registration, licensing and guarantees  873 right to strike  878

Switzerland collective bargaining agreements  908–9 contractual relationship—agency and undertaking  906–7 contractual relationship—worker and agency  901–4 contractual relationship—worker and undertaking  904–6 definitions and formal requirements  898–900 equal treatment  907 information, consultation and representation  907–8 registration, licensing and guarantees  900–1 right to strike  908 Turkey collective bargaining agreements  937 contractual relationship—agency and undertaking  935 contractual relationship—worker and agency  930–2 contractual relationship—worker and undertaking  932–4 definitions and formal requirements  927–9 equal treatment  935 information, consultation and representation  936 other matters relating to rights or status  936 registration, licensing and guarantees  929–30 right to strike  936–7 United Kingdom apportionment of liability  960 collective bargaining agreements  961 contractual relationship—agency and undertaking  958–9 contractual relationship—worker and agency  954–5 contractual relationship—worker and undertaking  956–8 definitions and formal requirements  953 equal treatment  960 information, consultation and representation  960–1 overview of atypical employment  952 registration, licensing and guarantees  953–4 right to strike  961 Term work see Fixed-term work Termination of employment see Dismissal protection Theatre see Artists and performers

1022  Index Trainees and apprentices Austria  6, 15 Cyprus  109 Denmark  169, 169–70 France  255–7 Germany  313 Iceland  397, 405–6 Ireland  439 Lithuania  500 Luxembourg  522 Montenegro  575 Netherlands  602 Norway  626 Romania  708, 716 Russia  734 Serbia  759, 770 Slovenia  818 Spain  844 Switzerland  882–3 United Kingdom  940, 946 Trainers see Sports personnel Turkey fixed-term work collective bargaining agreements  919 conditions for lawfulness  914–15 definitions and formal requirements  913–14 dismissal protection  915–16 employment opportunities  917 equal treatment  916–17 information, consultation and representation  918 other matters relating to rights or status  917–18 specific provisions  918–19 overview of atypical employment  911–12 part-time work collective bargaining agreements  927 definitions and formal requirements  919 dismissal protection  923–5 employment opportunities  920–2 equal treatment  922–3 extension of working time  922 information, consultation and representation  926 other arrangements  926–7 other matters relating to rights or status  925 temporary agency work collective bargaining agreements  937 contractual relationship—agency and undertaking  935 contractual relationship—worker and agency  930–2

contractual relationship—worker and undertaking  932–4 definitions and formal requirements  927–9 equal treatment  935 information, consultation and representation  936 other matters relating to rights or status  936 registration, licensing and guarantees  929–30 right to strike  936–7 Unfair dismissal see Dismissal protection United Kingdom fixed-term work collective bargaining agreements  944–5 conditions for lawfulness  940–1 definitions and formal requirements  940 dismissal protection  941–2 employment opportunities  943 equal treatment  942–3 information, consultation and representation  944 other matters relating to rights or status  943–4 specific provisions  944 overview of atypical employment  939 part-time work collective bargaining agreements  952 definitions and formal requirements  945–7 dismissal protection  948–9 employment opportunities  947–8 equal treatment  948 extension of working time  948 information, consultation and representation  949 other arrangements  949–52 other matters relating to rights or status  949 temporary agency work apportionment of liability  960 collective bargaining agreements  961 contractual relationship—agency and undertaking  958–9 contractual relationship—worker and agency  954–5 contractual relationship—worker and undertaking  956–8 definitions and formal requirements  953 equal treatment  960 information, consultation and representation  960–1

Index 1023 overview of atypical employment  952 registration, licensing and guarantees  953–4 right to strike  961 University staff see Teachers and academics Vocational training see Trainees and apprentices Workers with disabilities Croatia  88, 94–5 Cyprus  135 Denmark  181, 187, 195 Finland  233–5 Ireland  441, 451 Latvia  491 Lithuania  508 Luxembourg  527 Malta  567 Montenegro  580 Netherlands  607 Norway  639 Poland  653, 658 Portugal  685, 689 Republic of North Macedonia  284, 292, 309 Romania  714, 717 Russia  743, 744 Serbia  761, 764, 772, 773 Slovakia  789, 790, 805

Slovenia  820, 822 Spain  839, 848 Turkey  920 Zero-hours contracts Austria  13 Belgium  37–8 Bulgaria  74 comparative overview  lxv–lxvi Croatia  97–8 Czech Republic  152 Estonia  216 Finland  238 Hungary  384–5 Ireland  444–5 Luxembourg  538 Montenegro  583 Netherlands  607–9 Poland  661–2 Portugal  687 Republic of North Macedonia  298 Romania  718 Russia  747 Serbia  774 Slovenia  822–3 Spain  849–50 Sweden  871 Switzerland  896–7 Turkey  926 United Kingdom  949–52

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