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Atypical work contracts - overview of the EU legal framework

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Presentation by Sjoerd Feenstra (European Commission, DG Employment) on the occasion of the EESC LMO conference on "Typical and atypical work contracts - advantages and disadvantages from the labour …

Presentation by Sjoerd Feenstra (European Commission, DG Employment) on the occasion of the EESC LMO conference on "Typical and atypical work contracts - advantages and disadvantages from the labour market perspective" in Warsaw, Poland, on 8/9 April 2013.

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  • 1. Atypical work contractsOverview of the EU legal framework
  • 2. Introduction• 3 waves of legislative initiatives since 1990s • Scope measures enlarged over time • Including 2 social partners agreements Myths – loopholes/lacunes – opportunities - challenges
  • 3. Directive 91/383/EEC• Purpose: ensure that workers with a fixed-duration or temporary employment relationship are afforded, as regards health and safety at work, the same level of protection as other workers in user undertaking/establishment• Implementation report• Commission Staff working papers [SEC (2004) 635 and SEC (2011) 982 final]• Practical effects - impact
  • 4. Council Directive 97/81/EC – Framework Agreement on part-time work• Purpose:  Removal of discrimination against part-time workers;  Improve the quality of part-time work;  Facilitate the development of part-time work on a voluntary basis  Contribute to the flexible organization of working time in a manner which takes account of the needs of employers and workers,
  • 5. Council Directive 97/81/EC – Framework Agreement on part-time work (2)• Clause 4 – principle of non-discrimination:  Not be treated in a less favourable manner than comparable full-time workers  Unless different treatment justified on objective grounds [§1]  Where appropriate, principle pro rata temporis [§2]  Pending case C-476/12
  • 6. Council Directive 99/70 – framework agreement on fixed-term work• Purpose:  Improve quality of fixed term work by ensuring the application of the principle of non- discrimination;  Establish a framework to prevent abuse arising from successive fixed-term employment contracts, NB. Preambule 2d paragraph
  • 7. Council Directive 99/70 – framework agreement on fixed-term work (2)• Clause 4 – principle of non-discrimination: With respect to employment conditions: Not be treated in a less favourable manner than comparable full-time workers Unless different treatment justified on objective grounds [§1] Where appropriate, principle pro rata temporis [§2]
  • 8. Council Directive 99/70 – framework agreement on fixed-term work (3)• Clause 5 – measures to prevent abuse: One or more of the following measures:  Objective reasons justifying the renewal;  Maximum total duration of successive fixed-term contracts;  Number of renewals of such contracts NB. No automatic right to conversion
  • 9. Council Directive 99/70 – framework agreement on fixed-term work (4)• Clause 5 – measures to prevent abuse: Concept objective reasons justifying renewal :  Concept not defined by the framework agreement;  Meaning and scope to be determined on basis objective pursued FA and context clause 5(1)(a);  National law should provide objective and transparent criteria to verify whether actually respond to genuine need and appropriate for achieving objective pursued and necessary for that prupose.
  • 10. Council Directive 99/70 – framework agreement on fixed-term work (5)• Clause 5 – measures to prevent abuse: Concept objective reasons justifying renewal :  Mere fact that fixed-term contracts are concluded to cover permanent or recurring need for replacement staff does not in itself suffice to rule out the possibility that each of those contracts, viewed individually, were concluded to ensure a temporary replacement.
  • 11. Council Directive 99/70 – framework agreement on fixed-term work (6)• Clause 5 – measures to prevent abuse: Concept of successive:  Not separated by a period longer than 20 working days;  Separated by a period less than 3 months. Quid: period of one month [PL] ?????
  • 12. Council Directive 99/70 – framework agreement on fixed-term work (7)• Clause 6 – information and employment opportunities• Clause 7 – information and consultation
  • 13. Directive 2008/104/EC on temporary agency work• Aim:  Ensure protection of temporary agency workers and improve the quality of temporary agency work by ensuring the principle of equal treatment,  Recognissing temporaryagnecies as employers, while taking into account the need to establish a suitable framework for the use temporary agency work NB. Recital 15
  • 14. Directive 2008/104/EC on temporary agency work (2)• Main content:  Principle of equal treatment re basic working and employment conditions [Art. 5(1) jo. 3 (1) (f)];  Review of restriction or prohibitions [Art. 4];  Access to employment, collective facilities and vocational training [Art. 6]  Representation temporary agency workers [Art. 7]

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