Zentralbetriebsrat der Landeskrankenhäuser Tirols v Land Tirol
EU legislation says that part timers and fixed-term workers cannot be treated less favourably than full time or permanent employees. The European Court of Justice (ECJ) said in Zentralbetriebsrat der Landeskrankenhäuser Tirols v Land Tirol that the Austrian government could not rely on a legislative provision which reduced the holiday entitlement of a part-timer that had been accrued (but not taken) when they were still working full time.
Paragraph 54 of the L-VBG (national legislation) provides Austrian contractual public servants with a right to annual leave, but paragraph 1(2)(m) excludes anyone on a casual contract or one of six months or less.
Paragraph 55(5) says that if the employee’s working hours change, any annual leave not taken must be adjusted “proportionally to the number of hours in the new contract”.
Paragraph 60 states that the right to annual leave expires at the end of the leave year. This can be extended if the employee has taken parental leave of ten months or more but only by the length of time the leave exceeded those ten months.
The organisation representing hospital employees in Tyrol complained that these provisions were contrary to EU directives on part-time and fixed-term work as well as parental leave.
The ECJ found in favour of the employees.
It said first of all that the provisions of paragraph 55(5) - whereby full-time employees could lose the right to paid annual leave they had accumulated but had not been able to take before they started working part time - was incompatible with EU law. It was also contrary to EU law if employees could only take their leave on a reduced level of holiday pay.
The ECJ also said that although the part-time workers directive allowed for leave to be reduced pro rata for part timers and to be lost at the end of a leave year, that did not mean member states could apply a provision to reduce the holiday entitlement of a part-timer that had been accrued when they were still a full-time worker.
As for the provisions of paragraph 1(2)(m), the ECJ said that, according to clause 4 of the fixed-term workers directive, members must be able to objectively justify treating fixed-term workers differently to comparable permanent staff.
The need to implement “rigorous personnel management” put forward by the Austrian government could not constitute “objective grounds” as it was a budgetary consideration and could not therefore justify discrimination.
Nor did the court accept the argument that it would be difficult administratively to create permanent posts in excess of requirements by agreeing contracts with workers who were only ever intended to be short term. Employees on a casual contract or on one of six months or less could not therefore be excluded from the right to annual leave (as well as comparable pay and overtime rates etc).
Finally, the ECJ decided that it was also contrary to EU law for workers (who were mainly women) to lose the right to paid annual leave accumulated during the year before their child was born, just because they had exercised the right to take parental leave of two years.
This case makes clear that unless employees are allowed to take their holiday entitlement when they are still working full time (prior to switching to part time work), they must be allowed the full holiday entitlement they accrued during that time. As the WTR just state that leave should be paid on the basis of pay when the leave is taken, these claims should be brought on the basis of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations and the Part-Time Workers Regulations as well as the WTR.