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Again and again and …

May 2011 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

More articles by this firm.

 
General legal news
 
German provisions on fixed-term employment were incompatible with the framework agreement. So held the EU Court in a recent judgment.

The framework agreement annexed to the Fixed Term Work Directive was introduced to prevent employers taking advantage of this type of employment. As a result, one of the requirements of the framework agreement is that all EU countries must lay down a number of objective criteria to be met in order for fixed-term employment contracts to be renewed.

Another requirement is that all EU countries must have provisions governing the number of times a fixed-term contract can be renewed. In Denmark, the framework agreement is implemented by the Danish Fixed-Term Employment Act, the agreement on fixed-term employment between the Confederation of Danish Employers and the Danish Confederation of Trade Unions and various other instruments.

Flying high

A German flight attendant was dismissed when she turned 55. This was entirely in line with the collective agreement. She was then hired on a fixed-term contract which ran for 1 year. The contract was renewed again and again, but when she reached her 60th birthday, it was over. The German airline did not want 60-plus year old flight attendants because they had to be fit and able in case of an emergency.

The flight attendant thought that this was not right and sued the airline. But the German court was in doubt about whether the German provisions complied with the framework agreement and whether they were age discriminatory. These questions were therefore referred to the EU Court.

Over or under 58 years

The German act on fixed-term employment specifies when employers may use and renew fixed-term contracts as well as how many times they may be renewed. But it does not apply to people over 58 – with the exception of one protective provision, which provides that people over 58 may not be hired on a fixed-term contract less than 6 months after they have been employed on a permanent contract.

Unfortunately, this provision could not protect the flight attendant as she had been employed on a number of fixed-term contracts. Her permanent contract had been terminated much more than 6 months ago.

Avoiding abuse

In its ruling, the EU Court emphasised that the purpose of the framework agreement is to avoid abuse of fixed-term contracts. The Court did not believe that current German legislation afforded such protection to employees over 58. The provisions therefore did not comply with the framework agreement.

This left the question of whether the ruling was to have effect on the main proceedings in Germany. On this issue, the Court noted that the framework agreement is implemented into EU law by the Fixed-Term Work Directive. This means that, where possible, the EU countries must generally interpret their national provisions so as to comply with the Directive. Whether this was possible in the German case, the Court left for the German courts to decide.

The Court did not address the issue of whether the provisions were age discriminatory. There was no need because the Court had already concluded that the provisions did not comply with the framework agreement.

Norrbom Vinding notes:

  • that the ruling shows that the protective provisions of the framework agreement on fixed-term work must afford real protection to employees, but

     

  • that the ruling does not give rise to any immediate amendment of the Danish provisions.


For more information please visit www.norrbomvinding.com