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Part-time and fixed-term employment in the EU

July 2010 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

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Three provisions of Austrian law about part-time and fixed-term employment met with opposition at the European Court of Justice – they were held to be at odds with EU law.

The employment conditions of part-time and fixed-term employees may not be less favourable than those of permanent and full-time employees. This is clear from the EU framework agreements on part-time and fixed-term work. In this case, the ECJ was asked to consider whether two provisions of Austrian law were incompatible with the framework agreements and whether a third provision was compatible with the Parental Leave Directive.  

The Austrian questions
The first question before the ECJ was whether it was incompatible with the framework agreement on part-time work for an employee who had gone from full-time to part-time work to suffer a reduction in the holiday entitlement earned while working full time. The second question was whether the framework agreement on fixed-term work precludes a national provision which excludes employees on a fixed-term contract of less than 6 months from the principle of non-discrimination. And the third question was whether the Parental Leave Directive precludes a national provision whereby employees will lose their holiday entitlement if they exercise their right to 2 years of unpaid parental leave.  

National provisions incompatible with EU law
On the first question, the ECJ held that the Austrian provision whereby holiday entitlement is reduced if an employee goes from full time to part time is incompatible with the framework on part-time work. For an employee cannot be deprived of an entitlement earned while working full time just because the employee's working hours are reduced.  

On the second question, the ECJ held that the Austrian provision whereby employees on a fixed-term contract of 6 months or less are not protected by the principle of non-discrimination is incompatible with the framework agreement on fixed-term work. This is so because the Austrian provision is too general and not justified on objective grounds such as, for instance, pursuit of a social-policy or labour market objective.  

On the third question, the ECJ held that the Austrian provision whereby employees taking full parental leave will lose their holiday entitlement is incompatible with the Parental Leave Directive. Holiday entitlement earned before parental leave is taken is a protected right and so cannot be lost if an employee takes parental leave.

 

For more information please visit www.norrbomvinding.com


Norrbom Vinding notes:

  • that the ECJ's ruling shows that the framework agreement on part-time work precludes employees from losing rights earned while working full time for the sole reason that they no longer work full time;

  • that the provision of the framework agreement whereby employment conditions of fixed-term employees cannot be less favourable than those of permanent employees cannot be departed from by a general provision of national law unless to pursue a particularly legitimate objective; and

  • that holiday entitlement is a protected right under the Parental Leave Directive.