Fixed term contracts. Halton Cheadle ITC-ILO, 11 May 2016

Transcription

1 Fixed term contracts Halton Cheadle ITC-ILO, 11 May 2016

2 Outline What is a fixed term contract Operational justifications Abuses of fixed term contracts Convention 158 Recommendation 166 Comparative experience European Directive Selected countries Use of ILS in domestic courts

3 What is a fixed term contract A fixed term contract is a contract that has a fixed period or terminates at the completion of a specified task. Apprenticeships are often for a fixed period Construction workers are employed until the completion of the construction Substitute workers are employed for a fixed period while a permanent employee is on maternity leave Substitute workers are employed for a fixed period while a permanent employee is on sick leave The expiry of the fixed term does not constitute termination by the employer. It is a termination by operation of law.

4 Operational Justifications Nature of the contract temporarily replacement of an absent employee training and skill acquisition probation Temporary nature of the work casual employment temporary increase in enterprise activity seasonal work Nature of the task construction

5 Abuses of fixed term contracts To avoid the legal obligations flowing from indefinite employment contracts medical aid, pension or other benefits dismissal protection maternity protection Sexual discrimination To use the threat of non-renewal for sexual harassment or anti-union purposes As a means of exclusion from stable employment

6 Convention 158 Article 2(2) permits a member state to exclude: (a) workers engaged under a contract of employment for a specified period of time or a specified task; (b) workers engaged on a casual basis for a short period Article 2(3) however requires: Adequate safeguards shall be provided against recourse to contracts of employment for a specified period of time the aim of which is to avoid the protection resulting from this Convention

7 Recommendation 166 The Recommendation proposes the following may be used as adequate safeguards (a) limiting recourse to contracts for a specified period of time to cases in which, owing either to the nature of the work to be effected or to the circumstances under which it is to be effected or to the interests of the worker, the employment relationship cannot be of indeterminate duration;

8 Recommendation 166 (cont) (b) deeming contracts for a specified period of time, other than in the cases referred to in clause (a) of this subparagraph, to be contracts of employment of indeterminate duration; (c) deeming contracts for a specified period of time, when renewed on one or more occasions, other than in the cases mentioned in clause (a) of this subparagraph, to be contracts of employment of indeterminate duration.

9 Comparative experience 1995 General Survey an objective or operational reason for the fixed term contract limits on the duration and number of renewals of fixed term contracts presumption that a contract is indefinite unless clearly provisions transforming fixed term contracts into indefinite contracts if- no objective basis for the contract limits on duration or renewals exceeded abuse of fixed term contracts

10 European Directive Discrimination forbids employers treating fixed term workers less favourably than permanent workers unless justified on objective grounds Abuse of successive contracts requires government to put in place one or more of the following limits requiring objective reasons for renewal setting a maximum total duration of renewals setting a permitted number of renewals

11 Comparative experience Sweden a general fixed term contract becomes an indefinite contract if employed for two out of five years a replacement fixed term contract becomes an indefinite if employed for more than two years courts can transform a fixed term contract into an indefinite contract if abused

12 Comparative experience Turkey objective reason for the fixed term contract successive fixed term contracts deemed to be indefinite contracts unless there is an essential reason necessitating successive contracts. Switzerland a tacit renewal of a fixed term contract is deemed to be concluded for an indefinite duration renewal without an objective reason with the aim of avoiding employment protection is fraud

13 Comparative experience Gabon maximum duration of fixed term contract: 2 years may only be renewed once maximum cumulative duration: 4 years South Africa operational reasons for fixed term contracts longer than 6 months fixed term contracts longer than 6 months may not be less favourable than indefinite contracts a contract concluded or renewed without justification is deemed to be an indefinite contract a decision not to renew when there is a legitimate expectation of renewal or indefinite employment constitutes a dismissal for the purposes of the unfair dismissal law