Fixed-term contract regulation under EU scrutiny

The European Commission has supported a complaint made by Poland’s Independent and Self-governing Trade Union about the regulation of fixed-term contracts. The Commission has questioned the regulations governing the length of the notice period for fixed-term contracts, the use of excessive consecutive fixed-term contracts, the permitted interval between one contract and another, and the concept of ‘tasks conducted periodically’.

Background

European Union Member States are obliged to prevent abuse arising from the use of successive fixed-term employment contracts or relationships, in accordance with Article 2 of Council Directive 99/70/EC.

In Poland, this issue is regulated by Article 25 (1) of the Labour Code. It stipulates that the conclusion of a third consecutive fixed-term contract between a company and an individual worker is the legal equivalent of concluding a contract for an indefinite period, unless there has been a break of more than one month between contracts.

This does not apply to fixed-term employment contracts that replace an employee during a justified absence from work, or for ad hoc or seasonal work, or periodically performed tasks.

Under Polish law, fixed-term contracts can be terminated with two weeks’ notice regardless of the length of the contract (Article 33 of the Labour Code). By comparison, the minimum notice period for an open-ended employment contract is two weeks, one month or three months, depending on length of service (Article 36 of the Labour Code).

Trade union complaint

On 12 September 2012, the Independent and Self-governing Trade Union (NSZZ Solidarność) complained to the European Commission, claiming the improper application of Council Directive 99/70/EC in Poland. The union argued that Poland’s Labour Code provisions failed to comply with Directive 99/70/EC because:

• they fail to establish a framework to prevent abuse arising from successive fixed-term employment contracts;
• they exclude fixed-term contracts for specific work and trial period contracts;
• the maximum one-month gap permitted between contracts to prevent them being deemed successive is too short;
• allowing the exclusion of periodically performed tasks justifies the issuing of multiple successive fixed-term contracts.

European Commission upholds complaint

In its reply of 11 December 2013, the European Commission upheld some of NSZZ Solidarność’s arguments. It also objected to the legal situation in Poland, as a separate unrelated issue. The Commission identified key areas of concern.

• The differences between the notice period for fixed-term contracts and indefinite contracts means that fixed-term employees are treated less favourably, without any objective justification;
• the maximum one-month gap between two fixed-term contracts to prevent them being deemed successive is too short;
• the notion of ‘periodically performed tasks’, which allows an indefinite number of successive fixed-term contracts, is not sufficiently unambiguous to prevent the use of an excessive number of such contracts;
• Polish legislation wrongly excludes apprenticeships and public or publicly supported training, integration or re-skilling programmes from the Labour Code’s protection against an excessive number of sequential fixed-term contracts.

Government’s and social partners’ reactions

The Polish government says that it accepts the solutions agreed by the social partners.

However, since trade unions have indefinitely suspended their participation in the Tripartite Commission for Socio-Economic Affairs (PL1310029I), there is no proper platform for conducting such talks.

A joint proposal of the trade unions (NSZZ Solidarność, OPZZ, Forum Związków Zawodowych) suggests:

• the introduction of a maximum period (18 months) during which fixed-term contracts can be concluded between a company and a particular worker;
• the possibility of modifying the maximum duration of a series of fixed-term contracts in collective employment agreements (up to 30 months);
• making the notice period dependent on the length of the contract.

So far, the representative employers’ organisations – the Polish Confederation of Private Employers (PKPP Lewiatan), The Employers of Poland (Pracodawcy RP), the Polish Crafts Association (ZRP), and the Business Centre Club) – have not made their joint views of these proposals known.

The problem is that this issue is being used as a bargaining tool in disputes over other labour law issues. For instance, the minutes of the 2010 Tripartite Commission meetings show that employers’ organisations said they would agree to changes to the current fixed-term contract regulations, but only if unions also agreed to the introduction of more flexibility, such as the introduction of working time accounts.

Barbara Surdykowska, the Institute of Public Affairs