Aprile 16, 2013

Clear separation between fixed-term contracts and administration

In order to understand the scope of the judgment of 11 April 2013 EU Court of Justice, a brief introduction has to be made.
The case concerns an employee who had agreed to three successive contracts with Obiettivo Lavoro Spa on fixed-term employment, in virtue of which was made available to the Poste Italiane as postmen in order to provide for replacement of the missing personnel assigned to delivery service at the Campania region.
According to the employee, the grounds of appeal to the administration of fixed-term work were generic and groundless and had been breached. The delay of the administration was not adequately motivated. On these grounds it was decided to appeal to the Court of Naples in order to request the ascertainment of irregularity of the administration and the simultaneous constitution of a relationship with an indefinite duration with Italian Post.
Subsequently, the Court of Naples (Est. Coppola) with the order of 22 May 2012 decided to raise the following questions on EU legislation regarding employment contracts:

1) if taking into consideration the clause referred to in paragraph 36 of the Order of the Court of Justice of 15 September 2010 (Case C-386/09, Briot), Directive 1999/70/EC, in particular the Clause 2, also make reference to the employment relationship between given employee and temporary employment agency or administered between employee and firm, and therefore if the directive 1999/70/EC regulations of the said relationship;

2) If a provision enables the affixing of the end of term to a contract of employment with temporary work agency, as well as its recurrence, in relation to organization’s technical needs or non agency production in relation to the specific working relationship, but general requirements given, de-bulked from specific employment relationship and not clearly written in relation thereto, meets the requirements referred to in clause 5 of the Directive 1999/70/EC, or is likely to constitute a circumvention of the directive itself;

3) If the clause 5 precludes the consequences of the abuse are borne by third party, in this case the firm.

In the judgment, the Court of Justice starts from two assumptions:
A) the preface of the Framework Agreement CES 1999 on fixed-term employment does not apply to temporary workers made available to an enterprise firm by a temporary employment agency;
(B) Whereas article 1, paragraph 3 (c) of the Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996, concerning the posting of employees in the framework of the provision of services (GU 1997 L 18, p. 1) expressively provides that the Directive shall apply to the removal, operated by a temporary employment agency, where there is an employment relationship between the temporary employment firm and the temporary employee during the period of removal.
In light of this, according to the Court the employment relationship for a specified period of a temporary employee made available to a firm from a temporary employment agency does not fall within the scope of applying the framework agreement, and therefore not even in that of the directive.
The lack application of these sources to the administration concerns the temporary agency employees in itself and not one or the other of his employment relationship or its working relationship with the employment agency and the one identified by the company.
For these reasons, the Court in its judgment held that the directive and the framework agreement must be interpreted in the sense that it does not apply to the ratio of fixed-term work between a temporary employee and temporary employment agency nor the ratio of fixed-term work between such employee and the undertaking company.
Finally, consideration must be given as this intervention confirms the Community orientation that has already been expressed in Directive 2008 / 104/EC enacted by the Parliament and the Council on November 19, 2008.
In Article 4, paragraph 1 of the Directive, in fact, it is provided that any restriction or prohibition specifying the use of employment via employment agencies is justified only by reasons of general interest that are invested specifically for the protection of employees through an interim agency, for health and safety standards at work or the need to ensure the proper functioning of the labor market and the prevention of abuse. The directive therefore aims to reconcile between flexibility and security called in the Integrated Guidelines for Growth and Employment expressed in the Treaty of Lisbon.
The decision of the Community legislatures to deregulate, at least compared to the restrictions of causal nature, seems justified by the function of catalyzing “the creation of employment” and the “Participation in the labor market and integration within such” (11°), approved employment via agency.


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