A comparative study of the regulation governing the use of fixed-term contracts in three EU member states
"This research contains an analysis of the regulations on the conclusion and renewal of fixed-term contracts in the European Union, Finland, France and the United Kingdom. The research analyses how fixed-term employment has been restricted in national regulation before the Framework Agreement o...
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| Institution: | ETUI-European Trade Union Institute |
| Format: | TEXT |
| Language: | English |
| Published: |
Helsinki
2013
University of Helsinki |
| Subjects: | |
| Online Access: | https://www.labourline.org/KENTIKA-19112659124919308319-a-comparative-study-of-the-reg.htm |
| Summary: | "This research contains an analysis of the regulations on the conclusion and renewal of fixed-term contracts in the European Union, Finland, France and the United Kingdom. The research analyses how fixed-term employment has been restricted in national regulation before the Framework Agreement on Fixed-Term Work was introduced. Further, the research examines the objectives of the Framework Agreement and assesses how it has been implemented with respect to the limits on the use of successive fixed-term contracts and related sanctions, and thus analyses its effects on national laws in the research countries. The research also examines the relevant case law of the CJEU with respect to the provisions of the Framework Agreement and assesses the extent to which national case law and legal developments after implementation correspond with the legal stance of the CJEU. Based on this analysis, the measures preventing the abuse of successive fixed-term contracts in national laws and their effectiveness in achieving the objectives of the Framework Agreement are assessed. As fixed-term contracts play a central role in the EU employment policy, the research explores whether the stance on acceptable use of fixed-term contracts in EU law and EU employment policy correspond with each other. As the protection against abuse of successive fixed-term contracts laid down by the Framework Agreement is relatively weak, the relation between the Directive on Fixed-Term Work implementing the Agreement and the fundamental rights of the EU is examined to see whether the rights of fixed-term employees should be strengthened by specifying the grounds on which fixed-term contracts can be concluded in EU law. The research methods are legal comparison and legal dogmatics mostly in its prevalent form.The research is divided into six parts. The first part contains the research framework, main research tasks and methodological assumptions. The second part consists of the relevant EU legislation with its evaluation affecting the acceptable use of fixed-term contracts and the development of EU employment policy related to the use of fixed-term contracts. Parts 3-5 cover national law and evaluation in the research framework. The sixth part contains the final remarks, conclusions and summary. The preconditions for using successive fixed-term contracts are not determined precisely in Clause 5 of the Framework Agreement and the fact that the Clause does not have a direct effect as it is addressed to the Member States only and the individual contracts are excluded from its scope, lead to the conclusion that the Framework Agreement has failed in its objective of preventing abuse arising from successive fixed-term contracts, as the recent case law of the CJEU also indicates. When it comes to acceptable use of fixed-term contracts, the research also indicates tension between EU employment law and employment policy. While the CJEU has permitted long sequences, even several years, of successive fixed-term contracts in same job, the purpose of the EU Employment Guidelines is to encourage the use of fixed-term contracts in order to promote the employability of particular groups and to create pathways to permanent employment, but not to permit permanent use of successive fixed-term contracts. These facts support strengthening fundamental rights in EU law in terms of concluding fixed-term contracts. As there are no compulsory requirements regarding the content, level or the scope of sanctions in the Framework Agreement, effective enforcement is almost fully dependent on national law and jurisdiction and the full effectiveness of the EU law remains to some extent incomplete. The effect of Clause 5 as an instrument laying down minimum standards for restricting the use of successive fixed-term contracts in national laws has been extremely modest in the countries researched. In France and Finland, the legislation restricting the use of successive and single fixed-term contracts was already in place, so that no implementation measures were needed. The UK was one of the rare countries which had to introduce completely new measures to implement the Directive. However, the UK legislation implementing the Directive does not suggest considerable improvement in the protection of fixed-term employees. Comparison of the domestic law of the research countries indicates that strict employment security of permanent employment contracts seems to correlate with strict regulation on concluding and renewing fixed-term contracts and sanctioning their abuse. Otherwise, the regulations on use of fixed-term contracts are characterised by strong national legal traditions rather than by the Framework Agreement on Fixed-Term Work, which has not approximated the regulations in this regard. In this sense, the Framework Agreement as a generally determined minimum standard has not managed to improve or create individual rights of fixed-term employees." |
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| Physical Description: | XXX, 320 p. Paper Digital |