EU fixed-term work Directive transposed

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In April 2003, a Greek Presidential Decree (PD) was issued regarding fixed-term contracts, aimed at transposing the 1999 EU Directive on the issue. However, on some points the content of the PD is seen by the social partners as inconsistent with the letter and the spirit of the Directive. This feature sets out the content of the Decree, together with an analysis of those points that the social partners do not feel fully serve the aims of the Directive.

On 2 April 2003, Presidential Decree (PD) No. 81/2003 on regulations regarding 'workers with fixed-term contracts' was issued. It harmonises national law with the 1999 EU fixed-term contracts Directive (1999/70/EC) (EU9905170F) - which implemented a framework agreement on the issue concluded by the European-level social partners (EU9903162N). The PD came into force when it was published in the Government Gazette on 2 April 2003 and therefore its provisions apply to contracts, or renewals of contracts or employment relationships, entered into after that date (according to Articles 9 and 5.5 of the PD).

It should be noted that Greece exercised the option provided by the Directive to delay transposition into domestic law for one year. The extended deadline of 10 July 2002 was exceeded, however, by almost a year.

Content

By and large, PD 81/2003 duplicates the content of the EU Directive and fills a significant part of the gaps that existed in Greek legislation on the question of fixed-term contract s. These gaps concerned mainly the maximum duration of fixed-term contracts and the question of successive contracts, for which case law provided solutions before the PD was adopted.

According to an opinion (no.81) on the issue delivered by the consultative Economic and Social Council (OKE), in this regard the PD is fully in line with the letter and the spirit of Directive 1999/70/EC and successfully furthers at least the first goal of the Directive, which is the implementation of the principle of non-discrimination between workers who have a fixed-term relationship or contract and workers who have an open-ended relationship or contract, with regard to terms and conditions of employment, unless such discrimination is objectively justified.

However, important disagreements were registered regarding the content of Article 5 of the PD. In particular, according to the OKE, many provisions of Article 5 fail fully to serve the second objective of the Directive - ie to introduce a framework for preventing abuse caused by the use of successive fixed-term contracts or relationships.

Article 5

Article 5 of the PD regarding the 'rules for protecting against and preventing abuse against workers' corresponds to clause 5 (entitled 'measures to prevent abuse') of the European-level social partners' framework agreement implemented by Directive 1999/70/EC. The EU agreement/Directive provides for the adoption of one or more alternative measures to prevent abuse arising from the use of successive fixed-term employment contracts or relationships, which may be used singly or in conjunction. These measures are: (a) objective reasons justifying the renewal of such contracts or relationships; (b) the maximum total duration of successive fixed-term employment contracts or relationships; (c) the number of renewals of such contracts or relationships. By contrast, the Greek PD 81/2003 makes use of all three alternative measures provided for in the Directive. More specifically, paragraph 1 of Article 5 defines the 'objective reasons' and enumerates sectors and occupations where unlimited renewals of fixed-term contracts are justified. According to paragraph 1, there is an objective reason for renewal if:

1. it is justified by the form or the type or the activity of the employer or undertaking;

2. it is justified by special reasons or needs, provided that this results directly or indirectly from the relevant contract. These include temporary replacement of an employee, performance of work of a temporary nature and temporarily increased workloads. Also included are cases where the fixed term involves education or training, its purpose is to facilitate a worker’s transition to a related job or to carry out a specific project or programme, or it involves a specific event;

3. the fixed term is the result of a judicial compromise;

4. the conclusion of a fixed-term contract is imposed by a legislative or regulatory provision;

5. the fixed term refers to probationary employment;

6. the worker is paid out of credits in the state budget or the budget of a state-law entity earmarked for fixed-term work;

7. the operation is only temporarily in need of labour;

8. the fixed term is justified by the particular type of employment relationship or by reasons pertaining to the worker;

9. managerial staff or special scientific staff are involved; or

10. the employment is of a seasonal nature or is intended to meet seasonal needs.

Similarly, paragraph 1b of Article 5 states that an objective reason is deemed to exist, although the worker is allowed to present evidence to the contrary, in sectors of activity where renewal is justified due to their nature and the nature of employment therein. Without giving details of the individual occupations and specialities that are exempted, these sectors include:

• the audiovisual sector;

• audiovisual, film-making and audio recording production;

• special activities in the banking sector;

• the education and training sector;

• professional sport;

• the public works construction sector;

• activities relating to the provision of engineering or financial engineering design or research;

• activities regarding the organisation of exhibitions, conferences and seminars;

• forestry work;

• the performing arts;

• modelling; and

• air transport.

Paragraph 3 of Article 5 lays down two additional measures to prevent abuse of fixed-term contracts - a maximum number of renewals (three) and a maximum total duration of successive contracts (two years).

OKE opinion

Although the OKE takes a favourable view of this attempt to specify the conditions under which successive fixed-term contracts are deemed to be allowable, it disagrees with most of the individual cases cited by the PD as justifying unlimited renewal of such contracts.

In this context, the OKE believes that objective reasons 1 and 2 listed in paragraph 1a of Article 5 (see above) and the basic statement about sectors where objective reasons are deemed to apply provided in paragraph 1b ('sectors of activity where it is justified due to their nature and the nature of employment therein') are sufficient in themselves to set out the real reasons that make the unlimited renewal of fixed-term contracts imperative.

In the OKE’s view, the other objective reasons should not be listed in paragraph 1a of the PD, either because it regards them as superfluous as they are covered in other sections (eg employment of a seasonal nature), or because they are contrary to the letter of the Directive, since they introduce exceptions for the public sector which the Directive itself makes no provision for.

The same reasoning is applied to the cases set out in paragraph 1b regarding the sectors of economic activity whose nature purportedly justifies the unlimited renewal of fixed-term contracts. According to the OKE, these sectors cover a very broad spectrum of services where there are no particular circumstances that would objectively justify their exemption from the protection provided by Article 5 from abuse when fixed-term contracts are entered into. If special needs arise in some cases, these fall under the content of the first sections of paragraph 1a of Article 5, which is in any case indicative in nature. However, whole industries should under no circumstances be characterised as sectors which permanently justify the conclusion of an unlimited number of successive fixed-term contracts. On the contrary, such cases imply fixed, permanent needs and for that reason they require that personnel be hired under contracts of an indefinite duration.

As regards the adoption of the two additional measures to prevent abuse, and in particular the maximum number of renewals and the maximum total duration of successive contracts, as provided for in paragraph 3 of Article 5, the OKE is in agreement, at least in principle. However, it is very opposed to the wording that these provisions apply 'without the existence any of the reasons set out in paragraph 1 of Article 5'. It its view, such a wording makes the purpose of the positive provisions of paragraph 3 self-negating since, as the OKE has argued, these reasons are very broad in scope.

Commentary

The creation of a legislative framework to regulate the terms and conditions of employment of workers under fixed-term contracts, in compliance with EU Directive 1999/70/EC, has long been a basic demand of the trade unions (GR0207101N) and a cause of great social tension. In this context, the passage of PD 81/2003 is of great importance, especially insofar as it fills a significant part of the gaps in Greek legislation on the issue of fixed-term contracts. The great number of exceptions, however, is contrary to the spirit and the letter of the Directive, limiting its scope to a significant degree, and at the same time retaining all prohibitive provisions for the broader public sector. It should be noted that around 65% of workers employed under fixed-term contracts are not covered by the PD, and that legal action is the only form of recourse offered to these workers. Also of importance is the date on which the PD came into force, since failure to make it retroactive is unfair to a great number of workers whose rights were violated before the relevant legislation came onto the books. Furthermore, the unanimous rejection by the social partners of a large part of the content of the new law creates many questions over the implementation of the PD in practice. Since the government did not take the observations of the most representative social bodies into consideration, as expressed in the relevant OKE opinion, serious questions also emerge with regard to the state’s use of the institutions of social dialogue. (Evangelia Soumeli, INE/GSEE)