Summary European Labour and Social Security Law - Literature Summaries week 5
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European Labour and Social Security Law (PUB4007)
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Maastricht University (UM)
Book
European Labour Law
Summaries of the readings for European Labour and Social Security Law week 5:
- T. Jaspers et, European Labour Law, 2019, Chapter 4: Atypical Forms of Employment (pp.201-244);
- Case C-655/15 Erzberger;
- Case C-596/14 De Diego Porras I;
- Case C- 574/16 Grupo Norte
Chapter 4: atypical forms of employment (pp.201-244)
October 7, 2020
8
2019/2020
Summary
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european law school
eu law
european law
globalisation and law
international laws
maastricht university
european labour and social security law
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Summary week 5-7 European Labour and Social Security Law, ISBN: 9781780687049 (PUB4007)
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European Labour and Social Security Law – Literature Notes Week 5: Workers’
Participation and Atypical Work
T. Jaspers et, European Labour Law, 2019, Chapter 4: Atypical Forms of Employment (pp.201-244)
4.1 The Failure to Regulate Atypical Work and Recourse to Social Dialogue in the 1990’s
4.1.1 The Origin of the Directives
As part of the ‘social dimension’ to integration process, Article 7 of the Community Charter of
Fundamental Social Rights of Workers declared that all “forms of employment other than open-ended
contracts” should be given the same legislative attention as “standard” work. In the mid-1990’s, the
Commission and the social partners concluded two cross-industry agreements on part-time and one
fixed-term work: the first was implemented through Directive 97/81/EC; the second through Directive
1999/70/EC. Temporary agency work, however, was not included in a directive until Directive
2008/104/EC was adopted.
4.1.2 The Nature of the Directives
All directives have the character of requiring minimal protection in common. However, only the
Temporary Work Directive contains specific provisions dealing with remedial measures to be applied if
violated. Furthermore, only the first two directives refer to the comparable worker as an essential part
of the equality test, whereas the Temporary Work Directive does not.
4.2 Part-Time Work
4.2.1 The Policy Dimension
4.2.1.1 Part-Time Work as an Instrument of Employment Politics
Whereas the regulation of fixed-term work has been perceived as a means to prevent an
abuse of the contract, the regulation of part-time work has been intended as a way to
‘facilitate access to part-time work’ and to remove ‘obstacles of a legal or administrative
nature which may limit the opportunities for part-time work’.
4.2.1.2 Consequences on the Regulation of Part-Time Contracts
The Part-time Work Directive is generally described as a minimalistic, if not poor, piece of
supranational social legislation, as the following discussion will demonstrate.
4.2.2 The Promotion of Voluntary Part-Time Work
Clause 1(b) of the Framework Agreement states that its purpose is “to facilitate the development of
part-time work on a voluntary basis”.
4.2.2.1 The (Non-Existent) Right to Part-Time Work
The main reason lying behind the quite ineffective provision regarding the voluntary character
of part-time work is likely to be found in the existence of a subjective right to part-time work,
both at the beginning and in the course of the employment relationship.
4.2.2.2 The Transition from Part-Time Work to Full-Time Work and Vice-Versa
The Agreement provisions which give effect to the voluntary principle are contained in Clause
5. In the only case in which the CJEU has been called upon to evaluate a national law clearly
limiting individual choices related to part-time work, it considered that Clause 5 “does not
require the Member States to adopt rules making the conversion of a worker’s part-time
employment relationship to a full-time employment relationship subject to the worker’s
consent” (Mascellani, paras 23-24).
4.2.2.3 Measures to Facilitate Part-Time Work
A first group of provisions refers to a series of commitments which employers are required
“as far as possible” to “give consideration to” (Clause 5(3)), namely to provide in due time
information on the availability of part-time and full-time positions in the establishment; to
, adopt measures to facilitate access to part-time work at all levels of the professional scale;
and to facilitate access by part-time workers to vocational training; and to provide workers’
representatives with the relevant information. The second group of facilitation measures is
addressed to Member States and social partners, and refers to their obligation to identify and
remove all the obstacles of a legal or administrative nature, which may limit the opportunities
for part-time work, under Clause 5(1)(a) and (b). For instance, in Michaeler, the Court held
that an Italian law requiring undertakings to send to the competent public authorities a copy
of every part-time employment contract concluded, must be considered as an administrative
obstacle likely to limit the opportunities for part-time work within Clause 5(1)(a). However, by
linking Clause 5(1) with the general principle of non-discrimination provision of Clause 4, the
Court stated that this provision was justified insofar as it applied to full-time workers as well,
or if it is justified on objective grounds and does not go beyond what is necessary.
4.2.2.4 Non-Discrimination in Part-Time Work: A Goal or a Means?
The principle of non-discrimination under the Part-Time Work Directive has the main
objective of reaching a goal other than merely equal treatment. In this case, the goal is the
promotion of part-time work, and the prohibition of discrimination against part-time workers
is the means functional to achieve that goal.
4.2.3 The Right Not to be Discriminated against in the Case Law of the Court of Justice
4.2.3.1 The Part-Time Work Directive and Beyond
Clause 4(1) states that “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”. The preamble, however, contains a serious flaw
of the directive, as it excludes social security from its scope, which is problematic, as most of
the negative effects of part-time work are to be found precisely in the social security sphere,
rather than in that of employment conditions. The case law of the CJEU has nevertheless been
partly solved by the case law of the CJEU, which had already developed its indirect
discrimination doctrine in cases related to part-time work and its different distribution across
men and women. Even after the adoption of the directive, and taking into account its limited
material scope, the Court has continued to ‘complement’ Clause 4 with other normative
grounds every time it has been asked to evaluate discrimination of part-time workers
affecting their social security entitlements.
4.2.3.2 The Mitigation of the Non-Discrimination Principle: Objective Reasons and Pro-Rate
Temporis
Notwithstanding the Court’s assertions that “Clause 4 […] must be interpreted as articulating
a principle of European Union social law which cannot be interpreted restrictively” (INPS v
Bruno et al, para 32), it is quite widely believed that the non-discrimination provision
contained in Directive 97/81/EC gives rise to a weak version of the equality principle. This is
based on, first, Clause 4(1) under which a “different treatment can be justified on objective
grounds”, third on the uncertain application of the principle of pro-rate temporis, and finally
on the exclusion of “part-time workers who work on a casual basis”(Clause 2(2)) and the
notion of “full-time comparable worker” (Clause 3(2)).
4.3 Fixed-Term Work
4.3.1 Fixed-Term Work: Flexible or ‘Precarious’?
Directive 1999/70/EC re-affirmed that “contracts of an indefinite duration are, and will continue to be,
the general form of employment relationship”, to the extent that they “contribute to the quality of life
of the workers concerned and improve performance” (Preamble).
4.3.2 The Abuse-Prevention Measures
It is precisely because “the benefit of stable employment is viewed as a major element in the
protection of workers”, that the Framework Agreement regards fixed-term contracts “as a potential
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