Impact v Minister for Agriculture and Food (Ireland)

Following the adoption in Europe of the Fixed Term Workers Directive in 1999, member states were required to introduce it into domestic law. The European Court of Justice (ECJ) has said in Impact v Minister for Agriculture and Food (Ireland) that the principle of non discrimination in the directive has direct effect and extends to both pay and pensions.

Basic facts

Just over 90 “unestablished” civil servants were employed under fixed-term contracts by the Irish government both before and after July 2003 when the Protection of Employees (Fixed-Term Work) Act 2003 came into force. This implemented the 1999 fixed-term work directive.

The civil servants’ union, Impact, complained to the Irish Rights Commissioner that their members were being treated less favourably than “established” civil servants in terms of pay and pensions contrary to clause 4 of the directive. It said that continually renewing their contracts between July 2001 and July 2003 constituted an abuse contrary to clause 5. As for the period after July 2003 the claims were based on the Act.

The government tried to argue, among other things, that the Rights Commissioner could only adjudicate on domestic law, but she disagreed and said she had jurisdiction to hear all the complaints. She found in favour of the civil servants on all claims except for those based on clause 5. The employer appealed and Impact cross-appealed.

Relevant law

Clause 4(1) of the directive states, among other things, that fixed-term workers must not be treated less favourably (in respect of employment conditions) than comparable permanent workers just because they have a fixed-term contract, unless the different treatment can be justified on objective grounds.

Clause 5(1) requires member states to adopt measures when domestic law does not include equivalent legal rights in order to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

Section 6 of the 2003 Act transposes Clause 4 of the framework agreement into Irish law.

Irish Labour Court

The Irish Labour Court asked the ECJ the following questions:

1. Are the Rights Commissioner and the Labour Court required by community law to apply a directly effective provision of a directive if they do not have the express right under domestic law, particularly if individuals can pursue their claim in another court?
2. Are clauses 4(1) and 5(1) “unconditional and sufficiently precise” for individuals to rely on them in national courts?
3. Does Clause 5(1) prevent a member state (as an employer) from renewing fixed-term contracts for up to eight years during the period when the directive should have been transposed and before the transposing legislation was enacted into domestic law?
4. Are the Rights Commissioner and the Labour Court required by community law to interpret domestic law as having retrospective effect to 10 July 2001 when the directive should have been implemented into domestic law?
5. Does the reference to “employment conditions” in Clause 4 include conditions relating to pay and pensions?’

ECJ decision

1. Community law states that if a country has a specialised court (such as the Irish Labour Court in this case) to decide on claims, that court can also decide on claims arising directly from the directive itself. Claimants should not have to bring a separate claim before an ordinary court where it would involve procedural disadvantages in trying to enforce community law.
2. Clause 4(1) of the framework agreement is “unconditional and sufficiently precise” for individuals to rely on it before a national court, but clause 5(1) is not. This means that the principle of non-discrimination can be enforced directly, irrespective of domestic law.
3. Member states, when acting in their capacity as a public employer, may not renew contracts endlessly in the period between the deadline for transposing the directive into law and the date on which it became effective in domestic law.
4. Unless there is an express provision in domestic law to the contrary, community law cannot be interpreted as giving domestic law retrospective effect from the date upon which it should have been transposed by the directive.
5. “Employment conditions” in clause 4 encompass conditions relating to pay and pensions which depend on the employment relationship.