New rules proposed on fixed-term contracts in public sector

Download article in original language : GR0405102FEL.DOC

In May 2004, the Greek government published a draft Presidential Decree regulating fixed-term contracts in the public sector. The aim is to complete transposition of the 1999 EU Directive on fixed-term work into Greek law, following criticism that earlier implementing legislation failed to comply with the Directive, as it excluded many public sector workers from some of its provisions.

In May 2004, the Ministry of Labour issued a new draft Presidential Decree (PD) on 'regulations regarding fixed-term contract workers in the public sector'. The new draft PD seeks full harmonisation of Greek law with the 1999 EU fixed-term contracts Directive (1999/70/EC) (EU9905170F). Although the deadline for transposing the Directive was 10 July 2002, Greece waited until 27 March 2003 before issuing PD 81/2003 on 'regulations on fixed-term contract workers' (GR0305101F). In line with the Directive, PD 81/2003 introduced provisions seeking to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination in relation to employment of indefinite duration, and to prevent abuses arising from the use of successive fixed-term employment contracts or relationships.

However, controversially, PD 81/2003 laid down a series of 'objective' reasons justifying unlimited renewals of fixed-term employment contracts, with the effect of excluding a large proportion of workers, notably in the public sector, from the protection provided against abuse arising from the use of successive fixed-term employment contracts or relationships. On the basis of 2003 data, research indicates that 70% of fixed-term contract workers, mainly in the public sector, are excluded from the coverage of PD 81/2003's provisions in this area. These exclusions are not seen as being justified by the spirit and the letter of the EU Directive, and the European Union has set a deadline for the Greek government to make the necessary amendments and additions to bring Greek law into line with the Directive. Pressure for full and correct implementation of the Directive has also come from the social partners.

Content of new draft

The new draft PD attempts to curb the unrestricted conclusion of fixed-term contracts in the public sector, laying down criteria and conditions for hiring fixed-term contract workers on an open-ended basis by automatically converting their fixed-term contracts into open-ended ones.

Article 2 of the draft PD specifies that its provisions are applicable to employees in the public sector, as defined in Article 3 of the PD in conjunction with Article 51 of Law 1892/1990 on 'modernisation and development and other provisions', who have an employment contract or employment relationship of fixed duration involving subordination or a works contract or other contract that 'disguises' a relationship of subordination. As expressly stated in Article 2, the following are expressly excluded from the scope of the draft PD:

• vocational training relationships and apprenticeship contracts and relationships;

• employment contracts and relationships concluded in the framework of a special training, integration and vocational retraining programme supported by the Labour Force Employment Organisation (OAED); and

• specific temporary contracts of employment.

According to the definitions in the draft PD, it applies to the public sector in both the strict and the broader sense, and includes public enterprises, with the exception of limited companies listed on the Athens Stock Exchange.

Article 4 of the draft PD lays down the principle of non-discrimination, according to which, as concerns terms and conditions of employment, fixed-term contract workers may not be treated less favourably than comparable permanent workers solely because they have a fixed-term contract. However, the draft PD lays down an exception whereby fixed-term and open-ended contract workers may be treated differently if there are objective reasons for doing so, but goes no further in specifying what those reasons might be. A similar regulation is laid down in Article 4.2 regarding length-of-service criteria for entitlement to special conditions of employment, where the principle of non-discrimination is applied to fixed-term and to open-ended contract workers except 'where a different length of service is justified on objective grounds'.

Article 5 of the draft PD lays down rules for preventing abuse arising from the use of successive fixed-term employment contracts. They specify that:

• successive contracts mean contracts drawn up and performed between the same employer and the same employee, under the same or similar terms and conditions of employment and regarding the same or similar occupation, with an interval not exceeding three months between such contracts;

• successive fixed-term contracts of employment are allowed, by way of exception, only if justified by objective reasons. Objective reasons exist when successive fixed-term contracts are concluded for the purpose of meeting special requirements related directly to the form, type or activity of the company, and not for the purpose of violating workers’ rights;

• in any event, the reasons justifying the conclusion of successive contracts must be stated in the contract between the sides or emanate directly from that contract; and

• successive contracts may not exceed three in number.

Article 6 of the draft PD sets the maximum duration of fixed-term contracts, thus fixing the limits of 'abuse'. The draft PD stipulates that fixed-term contracts drawn up between the same employer and the same employee in the same or a similar occupation may not have an overall duration of over 24 months, regardless of the intervals between contracts. A total duration of employment exceeding 24 months on a fixed-term employment contract is permitted only for categories of workers which by the nature and type of work can be classified as 'special', such as senior officials or workers hired in the framework of specific research, or of subsidised or financed programmes.

Article 6.2 states that any contract concluded in violation of the draft PD shall be automatically invalid. Public bodies acting in violation of these provisions will be prosecuted for breach of duty. Workers suffering detriment due to violations of the above provisions are in all instances entitled to compensation in accordance with the legal provisions on 'unjust enrichment'.

The second chapter of the draft PD lays down the criteria on the basis of which existing fixed-term contracts in the public sector will automatically be converted into open-ended contracts. Successive contracts concluded before the PD comes into force will constitute contracts of indefinite duration, provided that they meet the following criteria and conditions:

• a contract must have been in effect from 10 July 2002 until the PD comes into effect. This was the date by which Directive 1999/70/EC should have been transposed into Greek legislation (though this deadline was missed);

• the total duration of successive contracts must have been at least 24 months, irrespective of the number of contract renewals, or there must have been at least three renewals in addition to the initial contract. The minimum duration of employment required is 18 months out of a total period of 24 months from the start of the initial contract;

• the total period of service must have been spent with the same employer under the same or similar terms and conditions of employment;

• the scope of the contract must involve activities directly related to the public interest, which are permanently and continuously served by the relevant public service; and

• the total period of employment must have been provided full time or part time and have involved job tasks the same as or similar to those recorded in the initial contract.

The body competent to judge whether the above criteria and conditions have been met is the governing council, administrative board or governing body of the legal entity concerned. In municipal or communal enterprises the competent body is the municipal or communal council of the local authority involved, upon recommendation of the administrative board. The Supreme Personnel Selection Council (ASEP) has the final word in all cases; it is to deliver a ruling within three months from the date the relevant judgment is forwarded to it.

Excluded from the draft PD are workers who do not meet permanent and continuing needs (whose contracts are thus not automatically converted into open-ended contracts), including people employed in training programmes, research programmes, and people who meet seasonal needs or who met such needs in the past but are not currently employed. Also specifically excluded are:

• fixed-term contract workers whose contracts have expired, although they worked longer than 24 months in the period up to two months before the PD is issued;

• substitute teachers and people employed in OAED apprenticeship or vocational training programmes or research programmes run by universities or Technical Educational Institutes; and

• people employed in public utilities and services, Olympic Airways, banks and private-law entities.

The Ministry of Employment will issue a further decree with regard to the transposition of the EU Directive in the private sector.

Apart from the 'automatic' conversion of fixed-term contracts into open-ended contracts in accordance with the above criteria and conditions, the draft PD provides that other workers in the public sector have the opportunity to secure open-ended positions in the broader public sector: they will take precedence over other candidates for the jobs they already hold, through the points system applied to the competitive examinations held by the ASEP to fill posts in the public sector.

Trade union positions and reactions

The Confederation of Public Servants (ADEDY) views the decision on automatic conversion of fixed-term contracts into open-ended contracts as a positive development in principle, in particular: the commitment to place workers whose contracts are converted to open-ended ones in permanent positions; the use of a 24-month period of service; and putting ASEP in charge of overseeing the record-taking process. ADEDY believes that if the government’s proposals are implemented a large number of workers in the broader public sector will secure open-ended positions.

Nevertheless, following a meeting on the drafting of the PD, both ADEDY and the Greek General Confederation of Labour (GSEE) called for amendments, as follows:

• the provisions should be made retroactive from 1999 or the landmark date of 10 July 2002, plus or minus three months.

• the maximum interval between contracts should be four months and the period of service 24 months;

• the PD should refer to employment contracts or relationships, so as to address the phenomenon of paid employment disguised as self-employment; and

• there should be no exceptions to the PD. It should cover the public sector, state law and private law entities, public enterprises, the broader public sector and the private sector.

Commentary

The creation of a legislative framework to regulate the terms and conditions of employment of workers under fixed- term contracts in the public sector, in compliance with EU Directive 1999/70/EC, has long been a basic demand of the trade unions and a cause of considerable social tension. In this context, the new draft PD is of great importance, especially insofar as it fills a significant part of the gap in the Greek legislation on the issue of fixed term contracts in the public sector. (Anda Stamati, INE/GSEE)