Fixed Term Workers

Fixed Term Workers

The Protection of Employees (Fixed Term Workers) Act 2003 came into operation in July 2003. The purpose of the Act is:

 

(1) 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

(2) 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.

 

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.

 

Definition of a ‘fixed term’ worker

The term 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

  • Reaching a specific date, or
  • 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

A permanent employee means an employee who is not a fixed-term employee.

 

Comparable Permanent Employee

An employee is a comparable permanent employee in relation to a fixed-term employee if:

  • 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,
  • 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
  • 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 –

  • both employees perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,
  • 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
  • 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.

 

Conditions of Employment

The Act provides that a fixed term employee shall not be treated less favourably in respect of his/her conditions of employment than a comparable permanent employee (except in specific circumstances, see ‘exceptions’ below).

 

For example,

  • 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 at the same rate as the comparable permanent employee.
  • Holiday entitlements. The holiday entitlement of a fixed term employee is related to the holiday entitlements of a comparable permanent employee, subject to the minimum legal entitlements under the Organisation of Working Time Act 1997.

 

Exceptions

A fixed term employee can be treated less favourably than a comparable permanent employee in the following circumstances:

(a) Objective Grounds. The Act provides that a fixed term employee may be treated in a less favourable manner than a comparable employee where such treatment can be justified on objective grounds i.e. it is based on considerations other than the status of the employee as a fixed term employee. For instance, 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 employee.

 

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

(i)         Reaching a specific date,

(ii)        Completing a specific task, or

(iii)       The occurrence of a specific event.

 

Objective Grounds Justifying a 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 i.e. a permanent contract.

 

Note: An employer cannot employ an employee on a series of fixed-term contracts indefinitely

 

Perpetual renewal of contracts

Where an employee is employed by his or her employer or associated employer on 2 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 – i.e. a permanent contract.

 

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.

 

Permanent vacancies and training opportunities

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 shall be provided by an employer as far as practicable.

 

Disputes

A dispute in relation to an entitlement under the Act may be referred to the Workplace Relations Commission for adjudication. A decision of the Workplace Relations Commission can be appealed to the Labour Court.

 

 

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