Seasonal work is a form of temporary employment linked to specific periods of the year and sectors: for example, in agriculture (fruit pickers) or the tourist industry (cleaners, etc. in holiday resorts). Although the situation differs from country to country, seasonal workers are often treated less favourably than permanent workers in terms of legal entitlements (e.g. dismissal protection), benefits offered by employers (e.g. pension entitlements) and other employment conditions (e.g. health and safety, training).
Seasonal workers could benefit from Council Directive 91/533/EEC of 14 October 1991 on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship. However, Article 1(2)(b) provides that, ‘Member States may provide that this directive shall not apply to employees having a contract or employment relationship (a) with a total duration not exceeding one month, and/or with a working week not exceeding eight hours; or (b) or a casual and/or specific nature provided, in these cases, that its non-application is justified by objective considerations.’ Member States may, therefore, exclude from the benefits of Directive 91/533 seasonal workers employed on short-term contracts of less than one month. However, it would be necessary to establish objective reasons for excluding seasonal workers from the scope of the directive.
Moreover, seasonal workers may also be characterised as casual workers, and Article 2(2) of the Framework Agreement on part-time work states: ‘Member States… and/or the social partners… may, for objective reasons, exclude wholly or partly from the terms of this Agreement part-time workers who work on a casual basis’ (Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and ETUC). Again, it would be necessary to establish objective reasons for excluding part-time seasonal workers from the scope of the directive on part-time work.
In contrast, in the Framework Agreement on fixed-term work, there is no exclusion of ‘workers who work on a casual basis’ (Council Directive 1999/70/EC of 28 June 1999 concerning the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP). Directive 1999/70 does not explicitly exclude seasonal workers who work on fixed-term contracts. On the contrary, the General Considerations provide for application of the Agreement (paragraph 10) ‘to take account of the situation in each Member State, and the circumstances of particular sectors and occupations, including the activities of a seasonal nature’.
Seasonal workers who regularly work on fixed-term contracts during the season qualify for protection under the Framework Agreement on fixed-term work. Of particular relevance are the provisions in Clause 5 of the Framework Agreement on measures to prevent abuse arising from the use of successive fixed-term employment contracts or relationships. Clause 5(2) provides: ‘Member States after consultation with the social partners and/or the social partners, shall, where appropriate, determine under what conditions fixed-term employment contracts or relationships: (a) shall be regarded as ‘successive’.’ The successive contracts of seasonal workers seem particularly well suited to a definition of ‘successive’ fixed-term contracts.