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ROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003
Explanatory Booklet
The purpose of this booklet is to provide general guidance on the Act to employees and
employers in non-legal language. The booklet outlines the rights and obligations under
the Act. It is important to note that this is an information booklet and not a legal
interpretation of the Act.
In cases of doubt or where further information is required, interested parties should
refer to the Act or contact the National Employment Rights Authority (NERA)
Lo-call 1890 80 80 90
www.employmentrights.ie
Other useful telephone numbers:
Labour Court 01 613 6666 Lo-Call 1890 220 228
Labour Relations Commission 01 613 6700 Lo-Call 1890 220 227
Rights Commissioner Service 01 6136700 Lo-Call 1890 220 227
Pensions Board 01 639 3622
Note: The Lo-Call numbers may be used by callers from outside the 01 area.
Department of Jobs, Enterprise and Innovation
Dublin 2
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Contents
Paragraph Page
Number Number
1. Purpose of the Act 5
2. Who is covered by the Act? 5
3. Main Definitions 5/6
4. What is a Comparable Permanent Employee? 6/7
5. Conditions of Employment 7
6. Are There Circumstances Where a Fixed-Term Employee Can be
Treated in a Less Favourable Manner than a Comparable Permanent 8/9
Employee?
7. Voidance of Certain Provisions in Agreements. 9
8. Objective Conditions Determining a Fixed-Term Contract 9
9. Objective Grounds Justifying Renewal and Failure to Offer
a Contract of Indefinite Duration 9
10. Can an Employer Employ an Employee on a Series of
Fixed-Term Contracts Indefinitely 9/10
11. Must an Employer Inform a Fixed-Term Employee of
Permanent Vacancies and Training Opportunities? 10
12. Information about Fixed-Term Working 10
13. Prohibition of Penalisation of Employee by an Employer 10/11
14. What Constitutes Penalisation of an Employee? 11
15. Protection against Penalisation including Dismissal 11
16. What Form of Redress is Available under the Act? 11
17. Referral of Complaints 12
18. Rights Commissioner’s Decisions 12
19. Appeals from Decisions of Rights Commissioners 12
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20. Appeals to the High Court 13
21. Referrals by the Minister to the High Court 13
22. Enforcement of Labour Court Determinations 13
23. Relief 13
24. Miscellaneous Provisions of the Act 13/14
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P
ROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003
Explanatory Booklet
1.
Purpose of the Act
The Protection of Employees (Fixed-Term Work) Act 2003 (No 29. of 2003) came into
operation on 14 July 2003.
The purpose of the Act which implements Directive 1999/70/EC of 28 June 1999 concerning
the Framework Agreement on Fixed–Term Work concluded by UNICE, CEEP and the
ETUC is:
(i)
to provide for the improvement of the quality of fixed-term work by ensuring the
application of the principle of non-discrimination ( i.e. fixed-term workers may not be
treated less favourably than comparable permanent workers) and
(ii) to provide for the removal of discrimination against fixed-term workers where such
exists and the establishment of a framework to prevent abuse arising from the use of
successive fixed-term employment contracts.
2.
Who is covered by the Act?
In general, the Act applies to any Fixed-Term Employee
working under a contract of employment
holding office under, or in the service of, the State including members of the Garda
Siochana , civil servants and employees of any health board, harbour authority, local
authority or vocational education committee.
The Act does not
apply to agency workers placed by a temporary work agency at the
disposition of a user enterprise; apprentices; a member of the Defence Forces; a trainee Garda
or a trainee nurse. However, the Act applies to agency workers employed directly by an
employment agency.
3.
Main Definitions
The following definitions apply under the Act:
Conditions of Employment Includes all terms and conditions of the employment
contract whether statutory or otherwise including for
example: remuneration, pensions, voluntary health
contributions, entitlement to sick pay, etc.
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Remuneration in relation to an employee, includes-
(a) any consideration, whether in cash or in kind, which
the employee receives, directly or indirectly, from
the employer in respect of the employment, and
(b) any amounts the employee will be entitled to receive
on foot of any pension scheme or arrangement.
Employer means, in relation to an employee, the person with
whom the employee has entered into or for whom the
employee works under (or, where the employment has
ceased, entered into or worked under) a contract of
employment.
Fixed-Term Employee means a person who has entered into a contract of
employment with an employer where the end of the
contract is determined by an objective condition such as
arriving at a specific date, completing a specific task or
the occurrence of a specific event.
The term “fixed-term employee” does not include
employees in initial vocational training or in
apprenticeship schemes nor employees with a contract
of employment concluded within the framework of a
publicly-supported training, integration or vocational
retraining programme.
Permanent Employee means an employee who is not a fixed-term employee.
4. What is a Comparable Permanent Employee?
An employee is a comparable permanent employee in relation to a fixed-term employee if-
(a) the permanent employee and the fixed-term employee are employed by the same or
associated employer and one of the conditions referred to in (i),(ii) or (iii) below is
met,
(b) where (a) above does not apply (including a case where the fixed-term employee is the
sole employee of the employer) the permanent employee is specified in a collective
agreement, being an agreement that for the time being has effect in relation to the
relevant fixed-term employee, to be a comparable employee in relation to the fixed-
term employee, or
(c) where neither (a) nor (b) above apply, the employee is employed in the same industry
or sector of employment as the fixed-term employee (and one of the conditions referred
to in (i), (ii) or (iii) below is met).
The following are the conditions (i), (ii) and (iii) referred to above-
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(i) both employees perform the same work under the same or similar conditions or
each is interchangeable with the other in relation to the work,
(ii) the work performed by one of the employees concerned is of the same or a similar
nature to that performed by the other and any differences between the work
performed or the conditions under which it is performed by each, either are of
small importance in relation to the work as a whole or occur with such irregularity
as not to be significant, and
(iii) the work performed by the relevant fixed-term employee is equal or greater in
value to the work performed by the other employee concerned, having regard to
such matters as skill, physical or mental requirements, responsibility and working
conditions.
The comparable permanent employee can be either of the opposite sex to the fixed-term
employee concerned or of the same sex as him or her.
5. Conditions of Employment
The Act provides that a fixed-term employee shall not be treated in a less favourable manner
in respect of his/her conditions of employment than a comparable permanent employee
(except in the circumstances set out in paragraph 6 beneath).
EXAMPLES:
(a) Overtime Payment
If a comparable permanent employee is paid overtime, then a fixed-term employee, who
compares himself/herself with that comparable permanent employee, is also entitled to
overtime payment. A fixed-term employee is entitled to the same rate of payment for
overtime work as his/her comparable permanent employee.
(b) Holiday Entitlement
The holiday entitlement of a fixed-term employee is related to the holiday entitlement of a
comparable permanent employee , subject to the minimum legal entitlements under the
Organisation of Working Time Act 1997.
Under the Organisation of Working Time Act 1997 a fixed-term employee’s minimum
annual leave entitlement is
(i) 4 working weeks in a leave year in which a fixed-term employee works at least 1365
hours (unless it is a leave year in which he/she changes employment)
(ii) 1/3 of a working week per calendar month that the fixed-term employee works at least
117 hours
(iii) 8% of the hours worked in a leave year subject to a maximum of 4 working weeks.
These provisions have not been altered by the terms of the Protection of Employees
(Fixed-Term Work) Act 2003.
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6. Are there Circumstances Where a Fixed-Term Employee can be
treated in a Less Favourable Manner Than a Comparable
Permanent Employee?
Yes. In the following set of circumstances:
(a) Objective Grounds
The Act provides that a fixed-term employee may be treated in a less favourable
manner than a comparable permanent employee where such treatment can be justified
on objective grounds.
What is an objective ground for treatment in a less favourable manner?
A ground would be considered as an objective ground for treatment in a less
favourable manner (including the renewal of a fixed-term employee’s contract for a
further fixed term), if it is based on considerations other than the status of the
employee as a fixed-term employee and the less favourable treatment is for the
purpose of achieving a legitimate objective of the employer and such treatment is
necessary for that purpose.
If the treatment of the fixed-term employee is based on the fixed-term status of the
employee then it is not an objective ground for less favourable treatment.
Where, as regards any term of his or her contract, a fixed-term employee is treated by
his or her employer in a less favourable manner than a comparable permanent
employee, the treatment in question shall (for the purposes of section 6(2) of the Act)
be regarded as justified on objective grounds, if the terms of the fixed-term
employee’s contract of employment, taken as a whole, are at least as favourable as the
terms of the comparable permanent employee’s contract of employment.
(b) Pensions
The right not to be treated in a less favourable manner than a comparable permanent
employee shall not apply, in relation to any pension scheme or arrangement, to a
fixed-term employee who normally works less than 20 per cent of the normal hours of
the comparable permanent employee. However, this provision does not prevent an
employer and a fixed-term employee from entering into an agreement whereby that
employee may receive the same pension benefits as a comparable permanent
employee.
Pro-Rata Principle
Where a condition of employment is dependent on the number of hours worked by the
employee, then the extent to which that condition of employment is provided to a fixed-term
employee shall be related to the proportion which the normal hours of work of that employee
bears to the normal hours of work of the comparable permanent employee concerned.
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The Act provides that except where a different length of service qualification is justified on
objective grounds such a qualification in relation to a particular condition of employment
shall be the same for a fixed-term employee as for a comparable permanent employee.
7.
Voidance of Certain Provisions in Agreements
The Act provides that a provision in any agreement shall be void in so far as it attempts to
exclude or limit the application of any provision of the Act or is inconsistent with any
provision of the Act.
Nothing in the Act shall be construed as prohibiting the inclusion in an agreement of a
provision more favourable to an employee than any provision in the Act. References to an
agreement are to any agreement, whether a contract of employment or not, and whether made
before, or after, the passing of the Act.
8. Objective Conditions Determining a Fixed-Term Contract
The Act provides that a fixed-term employee shall be informed in writing by his or her
employer as soon as practicable of the objective condition determining the contract i.e.
whether it is
(a) arriving at a specific date,
(b) completing a specific task, or
(c) the occurrence of a specific event.
9. Objective Grounds Justifying Renewal and Failure to Offer a
Contract of Indefinite Duration
The Act provides that where an employer proposes to renew a fixed-term contract the
employee shall be informed in writing, not later than the date of renewal, of the objective
grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of
indefinite duration. It further provides that the written statements referred to in paragraph 8
and in this paragraph are admissible as evidence in any proceedings under the Act. It is also
provided for in the Act that a rights commissioner or the Labour Court may draw any
inference he or she considers just and equitable if it appears to him or her that (a) an
employer omitted to provide a written statement, or (b) a written statement is evasive or
equivocal.
10. Can an Employer Employ an Employee on a Series of Fixed-Term
Contracts Indefinitely?
No.
Employees on fixed-term contracts which commenced prior to the passing of the Act( 14
July 2003)
Once such an employee completes or has completed 3 years continuous employment with his
or her employer or associated employer (any or all of the 3 years service may have occurred
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prior to the passing of the Act) the employer may renew the contract for a fixed term on one
occasion only and that renewal may be for a period of no longer than 1 year.
Employees on a fixed-term employment contract which commences after the passing of
the Act:
Where such an employee is employed by his or her employer or associated employer on two
or more continuous fixed-term contracts, the aggregate duration of those contracts may not
exceed 4 years.
Where a term of an employment contract purports to limit the term of the employment
contract of either category of employee mentioned above, in contravention of the above rules,
that term shall be void and of no effect and the contract concerned shall be deemed to be one
of indefinite duration – a permanent contract.
However, the above-mentioned rules do not apply where there are objective grounds
justifying the renewal of a contract of employment for a fixed term only.
The First Schedule to the Minimum Notice and Terms of Employment Act, 1973 relating to
continuous employment determines whether employment on fixed-term contracts is
continuous or not.
11. Must an Employer Inform a Fixed-term Employee of Permanent
Vacancies and Training Opportunities?
Yes.
The Act provides that in order for a fixed-term employee to have the same opportunity as
other employees to secure a permanent position, an employer shall inform him or her in
relation to relevant vacancies which occur in the undertaking. This information may be
provided by means of a general announcement at a suitable place in the employee’s place of
employment. However, as regards access by a fixed-term employee to appropriate training
opportunities, the Act provides that such access to appropriate training shall be provided by
an employer as far as practicable.
12. Information about Fixed-Term Working
The Act provides that employers shall, as far as practicable consider informing employees’
representatives about fixed-term work in the undertaking.
13.
Prohibition of Penalisation of an Employee by an Employer
The Act prohibits an employer from penalising a fixed-term employee on the grounds that:
(a) he/she has exercised or proposes to exercise his/her right not to be treated in a
less favourable manner than a comparable permanent employee in relation to
conditions of employment,
J:\Old Website 260404\Website on 'Fs_kil_03UsersUsers' (P)\erir\protfixexpl031.doc
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(b) he/she has in good faith opposed by lawful means an act which is unlawful
under the Act,
(c) he/she has given evidence in any proceedings under the Act or given notice
of his or her intention to do so or to do any other thing referred to in (a) or
(b) above,
(d) he/she has been dismissed from his/her employment and the dismissal is
wholly or partly for or connected with the purpose of avoiding that a
fixed-term contract is deemed to be a contract of indefinite
duration (i.e. permanent) under the provisions of the Act dealing
with the abuse of successive fixed-term contracts.
14.
What Constitutes Penalisation of an Employee?
The following constitutes penalisation by an employer of an employee:
(a) dismissal of the employee,
(b) any unfavourable change in the conditions of employment of the employee,
(c) any unfair treatment of the employee, including selection for redundancy, or
(d) any other action which is prejudicial to his or her employment.
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.
Protection against Penalisation Including Dismissal
Where an employee has:
less than one year’s service and is dismissed within the meaning of the Unfair
Dismissals Acts 1977 to 2001 he/she may refer a case to a Rights Commissioner
under the Protection of Employees (Fixed-Term Work) Act 2003.
more than one year’s service and is dismissed within the meaning of the Unfair
Dismissals Acts 1977 to 2001, he/she may refer a complaint to a Rights
Commissioner under the Protection of Employees (Fixed-Term Work) Act 2003 or
under the Unfair Dismissals Acts 1977 to 2001. However, relief may not be granted
to the employee in respect of that penalisation under both these Acts.
16. What Form of Redress is Available under the Act?
An employee may refer a dispute in relation to an entitlement under the Act to a Rights
Commissioner of the Labour Relations Commission for adjudication. A decision of the
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Rights Commissioner can be appealed to the Labour Court for a legally binding
determination.
17. Referral of Complaints
An employee or any trade union of which the employee is a member may, with the consent of
the employee, present a complaint to a Rights Commissioner if it appears that the employer
has failed to provide an entitlement to which the employee is due under the Act.
Written notice of complaint must be presented within 6 months of the date of the alleged
contravention. The time limit for submitting a complaint for redress of the alleged
contravention may be extended by a further 12 months if the Rights Commissioner is
satisfied that the failure to present the complaint within the normal 6 month period was due to
reasonable cause.
Under the Act, the Rights Commissioner, on receipt of a complaint, will send a copy of the
notice of complaint to the employer. The Rights Commissioner will then give the parties an
opportunity to be heard by him/her and to present any evidence relevant to the complaint.
After hearing the parties, the Rights Commissioner will issue a written decision.
Proceedings before a Rights Commissioner will be held in private.
18. Rights Commissioner’s Decisions
A decision of the Rights Commissioner shall do one or more of the following: -
declare that the complaint was, or was not, well founded,
require the employer to comply with the relevant provision of the Act,
require the employer to re-instate or re-engage the employee, ( including on a contract of
indefinite duration),
require the employer to pay the employee compensation not exceeding 2 years’ remuneration.
In a case where the ownership of a business changes after the contravention to which the
complaint relates, the new employer will be considered as the employer with reference to the
above decision.
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.
Appeals from Decisions of Rights Commissioner
The employer or employee may appeal the Rights Commissioner’s decision to the Labour
Court within 6 weeks from the date it was communicated to the parties. The Labour Court
shall copy the notice of appeal to the other party and hear the parties according to its own
procedures.
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A complaint by an employee that a Rights Commissioner’s decision has not been
implemented may be made by the employee concerned to the Labour Court 6 weeks after the
date on which the decision was communicated to the employee. The Court will issue a
determination to the like effect of the Rights Commissioner’s decision.The Act precludes the
Court from hearing the employer concerned or other evidence in this case.
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.
Appeals to the High Court
A party to proceedings before the Labour Court may appeal to the High Court on a point of
law from a determination of the Labour Court and the determination of the High Court shall
be final and conclusive.
21. Referrals by the Minister to the High Court
The Minister for Jobs, Enterprise and Innovation may, at the request of the Labour Court,
refer a question of law arising in proceedings before the Court to the High Court.
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.
Enforcement of Labour Court Determinations
Following the hearing of the appeal, the Labour Court shall issue a determination. If the
Court’s determination is not implemented within 6 weeks from the date on which the
determination is communicated to the parties, the Circuit Court, on application by the
employee concerned, by a trade union of which the employee is a member if it has the
employee’s consent or by the Minister, if the Minister considers it appropriate and without
further hearing, shall make an Order directing the employer to carry out the determination in
accordance with its terms.
The Rights Commissioner Service is available at Tom Johnson House, Haddington Road,
Dublin 4, Tel. (01) 6136700. Lo-call 1890 220227 (if calling from outside the 01 area).
23. Relief
The Act provides that relief may not be granted to an employee, in respect of a penalisation in
contravention of section 14(1) of this Act which constitutes a dismissal of an employee
within the meaning of the Unfair Dismissals legislation, both under Part 3 of this Act and
under those Acts. It also provides that a person who is a fixed-term employee under this Act
and a part-time employee under the Protection of Employees (Part-Time Work) Act 2001
may not obtain relief in respect of the same circumstances under both this Act and the 2001
Act.
24. Miscellaneous provisions of the Act
(a) Amendment of the Employment Agency Act 1971 –Increase in Fines
The Act raises the fines of £50 and £10 provided for in section 10(1) of the
Employment Agency Act 1971 to €2,000 and € 1,000 respectively.
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(b) Amendment of the Organisation of Working Time Act 1997 and the
Protection of Employees (Part-Time Work) Act 2001
(i) Time Limits
The Organisation of Working Time Act 1997 (section 28(8)) and the Protection of
Employees (Part-Time Work) Act 2001 (section 17(8)) provide that – where a
decision of a rights commissioner in relation to a complaint has not been carried out
by the employer (and the employer has not lodged an appeal in due time) – the
employee concerned may, within six weeks of the expiry of that time, bring the
complaint to the Labour Court which, without re-hearing the case, will make a
determination to the like effect as the decision. This six-week limit is now removed.
(ii) Technical Amendment
The Organisation of Working Time Act 1997 (section 39(2)) provides that – as
regards a list of Acts - a Rights Commissioner, the Employment Appeals Tribunal or
the Labour Court shall have the power to correct errors in their decisions (or
determinations) in relation to the name of the employer concerned (or some other
material particular). This list of legislation is now extended
(c) Transnational Information and Consultation of Employees Act 1996
The Act provides that when calculating the threshold above which employees’
representative bodies may be constituted in an undertaking in line with section 4 of
the Transnational Information and Consultation Of Employees Act 1996, fixed-term
employees shall be taken into account.
