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ECJ Advocate General:

January 2009 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

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Extending a collective agreement which implements the Proof of Employment Relationship Directive to cover non-union members does not conflict with EU law

07-07-2008

On 19 June 2008, Advocate General D Ruiz-Jarabo Colomer issued his opinion on three questions referred by the Danish Supreme Court for a preliminary ruling. The first question was whether the Proof of Employment Relationship Directive (91/533/EEC) means that a collective agreement which intends to implement the Directive does not apply to non-union members. The second question was whether a collective agreement which allows an employer to correct a letter of employment is not applicable to a non-union member. The third and final question was whether the expressions "temporary contract" and "temporary employment relationship" in the Directive refer to short-term employment relationships or to all fixed-term relationships and - if they only refer to temporary short-term employment relationships - what criteria should be applied to determine whether the employment relationship is short-term.

The main proceedings in Denmark concern a non-union member who had participated in five activation programmes under a local authority intended to enhance his employability, and in all five cases the letters of employment he received were deficient. His claim for compensation under the Danish Statement of Employment Particulars Act was dismissed because the local authority had corrected the letters of employment within the required 15 days, in accordance with the provisions of the collective agreement which implements the Directive in the local government area (the KTO agreement). The claimant has argued all the way that the KTO agreement does not apply in his case and that the Danish Statement of Employment Particulars Act applies instead. The local authority prevailed in the Danish High Court, but the case is on appeal to the Danish Supreme Court.

On the first question, the Advocate General concludes that a member state is entitled to extend to a non-union member the effects of a collective agreement which is intended to approximate national law to the Directive. In so concluding, the Advocate General has given weight to a number of facts, including that the Treaty and the Directive provide that member states may leave it to the social partners to enter into the relevant agreements and that it is for the individual member states to define the binding nature and extent of collective agreements.

On the second question, the Advocate General notes that the deciding factor is not whether an employee is a union member, but whether the employee is covered by a collective agreement. On that basis, he concludes that a duty to allow the employer to correct a deficiency in the letter of employment can also be extended to cover a non-union member.

On the third question concerning the expressions "temporary contract" and "temporary employment relationship" in the Directive, the Advocate General concludes that the expressions do not cover all fixed-term employment relationships, only short-term relationships. In order to determine whether an employment relationship is short-term, the Advocate General says, the employment periods that are usually agreed in the industry in question must be taken into account together with the characteristics and nature of the employment contract.

Norrbom Vinding, who represent Local Government Denmark (KL) and the relevant local authority, will follow up when the ECJ has ruled.

Jens Lund Mosbek
jlm@norrbomvinding.com

This information does not constitute legal advice and should not be relied upon as such

For more information please visit www.norrbomvinding.com