ROISIN FARRELLY
The employment control framework limiting recruitment and
promotion in the higher education sector is a ‘clear breach’ of the EU
fixed term contract directive, according to the lecturers’ union IFUT.
The framework was issued by the Higher Education Authority (HEA), to
implement the Government’s moratorium on recruitment and promotion.
Under the framework, fixed term contract appointments may be made in
exceptional circumstances, where a post is considered essential to the
delivery of “priority course/module provision” and where no surplus
staff could be utilised or redeployed (See IRN 27/09).
According to IFUT, the policy of filling such posts on a purely fixed
term basis is in direct contravention of the Fixed Term Work Directive
and at least two rulings of the European Court of Justice (ECJ).
The union says that ECJ rulings mean “in effect, all contracts should
be of indefinite duration unless there are objective reasons as to why
they should be of a fixed term. In two separate judgments the European
Court of Justice has stated explicitly that the objective reasons must
arise out the precise nature of each job concerned and it is not
permissible for a State - such as Ireland - to issue a blanket ruling
making all jobs temporary.”
OBJECTIVE REASONS FOR FIXED TERM CONTRACT
IFUT has cited two ECJ cases in order to back up its claims. Firstly, in the case of Adeneler and others v Ellinikos Organismos Galaktos
(Case C-212/04),the Court found that the concept of ‘objective reasons’
justifying a fixed term contract “must be understood as referring to
precise and concrete circumstances characterising a given activity”
(paragraph 69).
The ECJ stated that these circumstances may result from “the specific
nature of the tasks for the performance of which such contracts have
been concluded and from the inherent characteristics of those tasks”.
However, the Court went on to stipulate that such circumstances may
also result “from pursuit of a legitimate social-policy objective of a
member state” (paragraph 70).
According to an article by Loredana Zappala, in the Industrial Law
Journal, in the Adeneler case, the ECJ also found that there is no
‘objective reason’ to renew a fixed-term contract and, accordingly
there is misuse of the fixed-term contract itself, when a worker has
been taken on in the same job to satisfy needs of the employer which
are not of limited duration but, on the contrary, are “fixed and
permanent” (paras 88 and 105).
In the ECJ’s interpretation, therefore, the “objective reason”
justifying the renewal of a fixed-term contract must generally be
related to a temporary need of the company and not to a permanent one.
This would indicate that if a vacant university post, which is related
to a permanent need of the university, is replaced by a fixed term
contract under the HEA employment control framework, this could be in
contradiction of the ECJ ruling.
ALONSO CASE
IFUT also refers to the case of Yolanda Del Cerro Alonso v Osakidetza-Servicio Vasco de Salud
(Case C-307/05). In this case, according to the union, the ECJ
reiterated that a blanket decision to the effect that jobs should be
fixed term is not permissible because “the specific nature of the
tasks” and their “inherent characteristics” must be taken into account
and “a national provision which merely authorises recourse to
successive fixed term contracts, in a general and abstract manner by a
rule of statute or secondary legislation, does not accord with the
requirements [of the Directive]” (paragraph 54).
IFUT general secretary, Mike Jennings, told IRN that it had raised
these concerns directly with the HEA. It will also be raising the
matter with the ICTU public services committee. The union said should a
university offer a fixed term contract which contravenes the Directive
and ECJ rulings, it would pursue the matter, through the Labour Court
in the first instance.
“We are putting all universities and other institutions of higher
education on notice that we will take whatever action is necessary to
reinstate employment rights which were hard won and long fought for,”
Mr Jennings added.
