FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : GALWAY COUNTY COUNCIL (REPRESENTED BY LGMA) - AND - MICHAEL O' DOHERTY DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner Decision No: r-146902-ft-14/MH
BACKGROUND:
2. This case is an appeal by the employer of Rights Commissioner Decision No: r-146902-ft-14/MH made pursuant to Section 15(1) of the Protection of Employees (Fixed Term) Act, 2003. A Labour Court hearing took place on 22nd September 2015. The following is the Court's Determination:
DETERMINATION:
This is an appeal under section 15(1) of the Protection of Employees (Fixed Term Work) Act 2003 (the Act) by Galway County Council (the Appellant) against a decision of the Rights Commissioner (r-146902-ft-14) in which it was held that Mr Michael O’Doherty (the Complainant) acquired a contract of indefinite duration (CID) pursuant to section 9(2) of the Act. He ordered the Appellant to reinstate the Complainant.
The appeal came before the Court on 22 September 2015.
The Appellant is a local authority. The Complainant was employed by the Appellant on a series (2 in number) of successive fixed term contracts of employment commencing on 26 November 2009 as a solicitor engaged on legal work related to capital projects that were being undertaken in the Council area. On 5 September 2011 the Appellant extended the Complainant’s fixed term contract for a further period terminating on 5 September 2014. The Complainant’s employment ended on that date.
Workers Position
The Complainant argues that he acquired a contract of indefinite duration by operation of law pursuant to section 9(2) of the Act, on the renewal of his contract of employment on 5 September 2011. He argues that the Appellant had no or insufficient objective justification for the renewal of the fixed term contract of employment at that time. He argues that the work he was employed to undertake is routine legal work and that it is part of the fixed and permanent needs of the Appellant. While he acknowledges that the funding for the work was found in the public capital programme he argues that that legal work associated with capital projects are part of the ongoing functions of the Appellant and that the sources of funding or the nature of the funding programme is not objective justification for not employing him on a contract of indefinite duration rather than on a series of fixed term contracts of employment that taken together exceed the statutory maximum period set out in section 9(2) of the Act..
Employers Position
The Appellant argues that capital projects are each discretely funded from the public capital programme and are not part of its fixed and permanent needs of the Council. It argues that when those specific capital works are completed the requirement for the services of the Complainant also ceases. In that context the Appellant argues that the Complainant was given a contract of employment for the expected duration of the capital works for which he was employed. When those works continued beyond the expected completion date the Complainant’s contract was extended accordingly. The Complainant’s employment was terminated in accordance with the terms of the second fixed term contract. In that context it argues that the Complainant’s employment is closely linked to the legal demands and the specific nature of the capital works for which purpose the contract was issued. It further argues that it meets the objective justification test for renewing a fixed term contract within the meaning of the Act and as set out by the CJEU.
The Law.
It is agreed that that s.9(2) of the Act applies in this case. This section provides: -
- Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.
Section 9(3) provides: -
- (3) Where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.
Section 9(4) provides:-
- (4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal..
It is common case that the Complainant in this case became entitled to a contract of indefinite duration in accordance with section 9(2) of the Act and that the term that purported to contravene that section by renewing the fixed term contract of employment had no effect (s 9(3) ) unless the Appellant can establish objective grounds justifying such a renewal as per s9 (4) of the Act.
It is decided case law that where such an offending term is included in a contract of employment in contravention of section 9(2) of the Act it is void ab initio (Minister forFinance v McArdle[2007] ELR 165)
In this case the Appellant is claiming that it has objective grounds.
Section 7 of the Act defines objective grounds in the following terms
7.—(1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a fixed-term employee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of a fixed-term employee's contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.
These grounds are similar to the “objective justification” test set out by the CJEUin Bilka-Kaufhaus GmbH v Karin Weber von Hartz Case 170/84 ECR 1607. There the Court held that the test of objective justification is that the measure relied on must meet a “real need” and must be “appropriate” and “necessary” for that purpose.
The CJEU in C-380 Kiriake Angeliadake and others v Organismos Nomarkhiaki Aftondiikisi Rethimnis and Dimos Geropotamou [2009] ECR 1-3071 further addressed the matter in the context of the directive on fixed term working in the following terms
- “…the concept of “objective reasons” for the purposes of clause 5(1)(a) of the Framework Agreement must, as the Court has already held, be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable, in that particularcontext, of justifying the use of successive fixed-term employment contracts. Those circumstances may result, in particular, 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 or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State (Adeneler and Others, paragraphs 69 and 70: Case C-307/05 Del Cerrro Alonso [2007] ECR 1-7109 paragraph 53 and order in Vassilakis and Others, paragraph 88 and 89”.
The Decision of the High Court (per Hanna J.) in inRussell v Mount Temple Comprehensive SchoolIEHC 533 is a clear authority for the proposition that the existence of objective grounds justifying the renewal of a fixed-term contract is to be judged in the context of the circumstances prevailing at the time of the renewal of the impugned fixed term contract of employment contract.
Findings
The sole issue in dispute and which the Court must decide is whether there are objective grounds justifying the decision to renew the Complainant’s fixed term contract of employment rather than offer him a contract of indefinite duration.
The Appellant argues that the nature of the funding of the public capital programme together with its assertion that capital works are not part of its fixed and permanent need are sufficient to meet the test of objective justification set out in the Act and of the term “objective reasons” set out by the CJEU in Angeliadake, quoted above.
Indeed the Appellant in its submissionsstates the position thus
“ All posts in the local authority sector associated with capital projects are temporary by their definition.”
The Court does not accept that such a broad approach is or could be consistent with the tests set out in the Act or by the CJEU outlined above. Indeed the Court takes the view that, as so stated, it fails to address any of those tests. No legitimate objective of the employer is met by such a broad brush approach. Furthermore it fails to set out how the use of fixed term contracts of employment are appropriate and necessary for that purpose. Indeed in circumstances where the Local Authority is the medium through which successive engineering capital projects are carried out it is difficult to discern how the use of successive fixed term contracts of employment could be appropriate and necessary for the purpose of completing any one in a series of capital projects.
The Appellant relies on the nature of the funding for capital projects in support of the contention that it is legitimate to rely on the use of successive fixed term contracts of employment. While the source or nature of the funding of a project may be a factor in determining the circumstances of a “given activity” it is not determinative of the matter. That test is both more extensive than funding alone and more specific than the general proposition outlined by the Appellant. In that regard the Court is mindful of the test set out by the CJEU in C-380 Kiriake Angeliadake and others v Organismos Nomarkhiaki Aftondiikisi Rethimnis and Dimos Geropotamou [2009] ECR 1-3071 quoted above.
It would appear that if the Court were to accept that funding was a factor it must then go on to consider whether the activity being funded is such that it justifies the use of successive fixed term contracts of employment. In considering that the Court must look at the specific nature of the tasks being performed and at the inherent characteristics of those tasks and ask if they justify the use of successive fixed term contracts beyond the statutory time limit set out in the Act.
In examining those factors in the circumstances of this case the Court finds that the Appellant carries legal work associated with capital projects on an ongoing basis. The funding for those projects comes from the same source as the funding the other work of local authorities namely from the Exchequer and the from revenues raised locally. Accordingly there does not appear to be any distinguishing feature in the source and origin of the funding of capital projects that would justify the different treatment of staff employed on those projects as compared to staff employed on other non capital projects.
Turning to the nature of the work undertaken the Court finds that the Complainant was employed to undertake routine legal work associated with capital projects. The Court was presented with no evidence that the work involved in this case was other than routine in nature. The Court is also satisfied that the Complainant was capable of being transferred to undertake similar routine legal work on other capital projects being carried out by the Appellant. He was after all a fully qualified solicitor. Accordingly the Court finds nothing in the inherent characteristics of the tasks involved in the projects that gave rise to the successive fixed term contract of employment that would warrant their continuation beyond the statutory limit.
Finally the Court finds that there was no legitimate social policy objective of the Member State being pursued in this case.
Determination
The Court finds that the Appellant did not advance objective grounds for the use of successive fixed term contracts of employment beyond the statutory time limit set out in section (9) (2) of the Act and in accordance with section 9(3) of the Act theterm of the fixed-term contract that purports to contravene subsection (2) has no effect and the contract concerned is deemed to be a contract of indefinite duration by operation of law with effect from 1 June 2008.
The complaint is well founded. The appeal is rejected. The decision of the Rights Commissioner is affirmed.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
5th November 2015______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.