Week 4
Atypical work and posting
Introduction
Atypical work and posting are issues that can be dealt with under different headings. In the first
place, both subjects contain strong links with questions regarding equal treatment. After all,
fixed-term workers often “enjoy” less favourable employment conditions than co-workers in
steady jobs and to posted workers, altogether different labour law rules may apply.
Therefore, this week we will study those related and sometimes intertwined subjects (e.g. the
posted worker on a fixed term assignment) in more detail. During the lecture, the focus will
mainly lie on atypical work, specifically fixed-term and part-time work, but we will also touch
upon temporary agency employment and transnational posting. The tutorial will elaborate both
aspects. Concerning atypical work, the focus will be on fixed-term work and the objective reason
of Clause 4 and 5 in particular. With regard to cross-border posting, we will focus on the
applicable law, the possibilities and limits of equal treatment in the host state at the moment and
the implications of the new Directive 2018/957/EU. The question of social dumping will feature
prominently during the debate.
Reading materials:
Literature:
C. Barnard, 2012, p. 426-453, pp. 213-234
Legal texts:
Directive 2018/957 amending Directive 96/71 (to be transposed 30 July 2020)
Case law:
Case C-212/04 Adeneler
This case was about a number of successive fixed-term contracts. The last contract came to an
end between June and September 2003 without being renewed. Each of those contracts was
concluded for a period of eight months and the various contracts were separated by a period of
time ranging from a minimum of 22 days to a maximum of 10 months and 26 days. The
claimants brought proceedings before the Court Of First Instance for a declaration that the
contracts had to be regarded as employment contracts of indefinite duration, in accordance with
the framework Agreement. They said that the successive fixed-term employment contracts with
the employer were an abuse and no objective reasons justified the prohibition.
The Court Of First Instance to refer the following questions to the Court for a preliminary ruling:
1. Must a national court – as far as possible – interpret its domestic law in conformity with a
directive which was transposed belatedly into national law from:
(a) the time when the directive entered into force, or
(b) the time when the time-limit for transposing it into national law passed without
transposition being effected, or
(c) the time when the national measure implementing it entered into force?
2. Does clause 5(1)(a) of the Framework Agreement … mean that, in addition to reasons
connected with the nature, type or characteristics of the work performed or other similar reasons,
the fact solely and simply that the conclusion of a fixed-term contract is required by a provision
of statute or secondary legislation may constitute an objective reason for continually renewing or
concluding successive fixed-term employment contracts?
Case C-596/14 De Diego Porras I
, This case was about ms Diego Porras who was employed under several temporary replacement
contracts as a secretary at the ministry of defence. The last temporary contract was to replace
her colleague. After a while, her colleague came back and the employer asked Diego to sign a
termination contract.
This case came in front of the court of justice, and the court of justice had to answer the
following questions. In the first question, the referring court wanted to know whether clause 4(1)
of the framework agreement must be interpreted as meaning that the concept of employment
conditions covers the compensation that the employer must pay to a worker on account of the
termination of a fixed-term contract.
According to clause 1 (a) of the framework agreement, one of its objectives is to improve the
quality of fixed term work by ensuring application of the principle of non discrimination. The
framework agreement, in particular clause 4, aims to apply the principle of non-discrimination to
fixed-term workers in order to prevent an employer using such an employment relationship to
deny those workers rights which are recognised for permanent workers. So clause 4 cannot be
interpreted strictly.
With regard to the concept of ‘employment conditions’ within the meaning of clause 4(1)
of the framework agreement, the Court has already judged that the decisive criterion for
determining whether a measure falls within the scope of that concept is, precisely, the
criterion of employment, that is to say the employment relationship between a worker
and his employer. Given that the compensation at issue is paid to the worker on account
of the termination of his contract of employment with his employer and that such
compensation met the criterion set out above of, it is therefore covered by the term
‘employment conditions’. Therefore, the answer to the first question is that clause 4(1) of
the framework agreement must be interpreted as meaning that the concept of
‘employment conditions’ covers the compensation that the employer must pay to an
employee on account of the termination of his fixed-term employment contract.
In question 2 to 4 the referring court asks essentially whether clause 4 of the framework
agreement must be interpreted as precluding national legislation which fails to provide
any compensation for termination of a contract of employment to a worker employed
under a temporary replacement contract while allowing such compensation to be
granted to comparable permanent workers.
According to case law, the principle of non-discrimination requires that comparable
situations must not be treated differently and different situations must not be treated
alike unless such treatment is objectively justified. In this case, there is a difference in
treatment because workers employed under a temporary replacement contract are not
entitled to any compensation in the event of termination of their contract.
In view of the inequality, the court must first determine whether the situations in question
in the main proceedings are comparable and whether there is any objective justification.
Is the situation comparable?
A number of factors are relevant, such as the nature of the work, training requirements
and working conditions. The very fact that that applicant held for seven consecutive
years the same position of an employee who was on full-time exemption from
professional duties in order to carry out a trade union mandate, leads to the conclusion
not only that the interested party fulfilled the training requirements to take up the post in
question, but also that she carried out the same work as the person she was called upon
to replace on a permanent basis during this prolonged period of time, while being
subject to the same working conditions. It must therefore be held that the fixed term
