Part-time work Directive finally implemented

New part-time work legislation took effect in Ireland in late December 2001. The Protection of Employees (Part-Time Work) Act 2001 implements the 1997 EU Directive on part-time work. The new Act provides part-time workers with important employment protection rights encompassing both pay-related issues, such as pension entitlement, and non pay-related issues.

TheProtection of Employees (Part-Time Work) Act 2001 took effect in late December 2001. It seeks to implements the December 1997EU Directive (97/81/EC) on part-time work, which was based on a framework agreement negotiated by the European-level social partners in 1997 (EU9706131F) under the terms of the Maastricht Treaty's social protocol and agreement (now incorporated into the EC Treaty). The Directive provides for a general principle of non-discrimination against part-time workers if the discrimination is solely due to the fact that they work part time.

The original deadline for implementation of the Directive was 20 January 2000, but the Irish government informed theEuropean Commission that it would be extending the deadline until 20 January 2001 (IE0101228N). This extension was available to Member States experiencing special difficulties in implementing the Directive. However, the legislation took longer than anticipated to be processed, and the extended January 2001 deadline was not met by the government.

In response to this delay, theIrish Congress of Trade Unions (ICTU) issued a formal complaint to the Commission in June 2001 in relation to the government's failure to implement the Directive. The Commission wrote a letter to the government, but no further action was taken. The government stated at the time that it was awaiting clarification on the issue of pension entitlements for part-time workers. This was the second time that ICTU had complained to the Commission about the current Irish government's implementation of EU employment legislation. The first (IE0008217N) was in relation to the contents of the Parental Leave Act 1998, which implemented the 1996Directive (96/34/EC) on parental leave.

Details of the new legislation

Prior to the implementation of the new legislation, part-time workers were covered by the Worker Protection (Regular Part-Time Employees) Act 1991. The 1991 Act protected only workers who worked more than eight hours per week. This was the legal threshold defining a part-time worker. The new legislation eliminates this old threshold.

During the consultation phase on the new Act, there were conflicting interpretations between employers and trade unions as to whether the legislation should apply only to non-pay issues, or whether it should also incorporate pay-related issues such as pensions. In its submission to the government, theIrish Business and Employers Confederation (IBEC) claimed that EU social partner agreements are precluded from dealing with pay-related issues. The upshot of this, IBEC claimed, was that the Irish legislation could apply only to non-pay issues. ICTU refuted this claim in its submission, suggesting that pay and pensions can be included under the scope of'conditions of employment' in employment Directives. In the event, the government decided - partly influenced by commitments made in the current national agreement, theProgramme for Prosperity and Fairness (PPF) (IE0003149F) - to go beyond the terms required by the Directive (which refers to'employment conditions') by outlawing discrimination relating to both pay and pensions and other non-pay related terms and conditions.

The government's decision to include occupational pensions in the scope of the new legislation should give part-time workers a pro-rata entitlement to participate in full-time workers' pension schemes they were often excluded from in the past. The only exemption to the ban on pension discrimination is part-timer employees'whose normal hours of work constitute less than 20% of the normal hours of work of a comparable full-time employee'. When framing the legislation, it was believed that the small level of pension benefit that could be accrued by such workers would be outweighed by the administrative cost of such a pension to the employer.

Furthermore, the new Act provides scope for employers to discriminate between part-time and full-time workers if'objective grounds' other than part-time or full-time status can be justified. These'objective grounds' include a period of service, time worked or an earnings qualification. Skill is a potentially important'objective ground'. For instance, if a full-time employee with substantial experience in a particular job were replaced by a part-timer with little experience, this could conceivably be used by an employer to justify a pay differential. The issue of'objective grounds' may prove to be a particularly contentious one, and may lead to cases being brought to the courts by workers.

The new Act partially excludes casual part-time workers from the scope of the legislation (as allowed by the Directive), in the sense that they do not enjoy the same protection as more regular part-time workers. The means of defining a part-time'casual worker' is addressed in the Act. Collective agreements at local level are viewed as an important means of defining who and what is covered by the term'part-time casual worker'. In its initial submission, IBEC called for the exclusion of casual workers from the legislation altogether, because to include them'would blur the distinction between different forms of atypical work'. ICTU opposed such an exclusion. If casual workers were to be excluded, it stressed, this exclusion should be partial and a very clear definition of'casual' employment should be developed.

Workers who refuse to transfer from part-time to full-time work or vice versa cannot have their employment terminated unless the employer can justify it on the grounds of operational requirements. The Act provides for the preparation by theLabour Relations Commission (LRC) of a Code of Practice that deals with the issue of full-time workers transferring to part-time work and vice versa.

Any claims brought under the new Act will be heard by a Rights Commissioner in the first instance, by theLabour Court on appeal, and by theHigh Court in any further appeal on a point of law.

More legislation on'atypical' work to follow

In the next year or so, the new part-time work Act will be followed by additional legislation protecting'atypical' workers. The 1999EU Directive (1999/70/EC) on fixed-term work (EU9901147F), again based on an EU social partner agreement, is due to be implemented into Irish law by July 2002. However, as with the part-time work Directive, progress has been slow, and it is doubtful whether the legislation will be implemented on time. Consultation between the government and the social partners is still taking place, and no bill has yet been published. Moreover, with a general election looking set to take place in May 2002, it seems likely that the deadline will be missed.

Finally, the European Commission is due to propose a Directive on temporary agency workers in 2002, following unsuccessful talks between the social partners at EU level in 2000-1 (EU0106215N).

Commentary

The new Protection of Employees (Part-Time Work) Act 2001 has been implemented at a time when the number of'atypical' workers - such as part-time workers, temporary workers, casual workers and contract workers - has been slowly increasing in Ireland. It has proved somewhat difficult to reconcile the different priorities of employers and employees/trade unions. Many of the advantages for employers of recruiting people on so-called'atypical' employment contracts, such as greater flexibility and reduced labour costs, are often not so beneficial for workers, who may experience poorer pay, working conditions and pension entitlements in comparison with their full-time counterparts. The new Act will undoubtedly be important for enhancing employment protection rights for part-time workers, particularly as the scope of the legislation is broader than required by the Directive itself. To this end, it will help to protect part-time workers from discrimination relating to pay issues such as pension entitlements, as well as from discrimination relating to non-pay related issues. (Tony Dobbins, CEROP, UCD)

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