Protection of Employees (Fixed Term Work) Act 2003

By MSS IRL Nov 12, 2018

 

This legislation came into effect on 14th July 2003 and is intended to ensure that workers on fixed term contracts will not be treated less favourably than a comparable permanent worker.

Who is covered?

Any person on a fixed term contract (VETCH) but does not include an agency person working with a client, apprentices, trainee Guard or nursing or members of the Defense Forces.

What is a Fixed Term Contract Employee?

Any person under a contract to an employer where the end of the contract is determined by an objective condition - that is -

  • Expiry of a specified period between a specified date
  • Expiry of a specified purpose
  • The achievement of a specific event

To what does it Apply?

Contract employees are entitled to be treated no less favourably than a comparable permanent worker in relation to all terms and conditions of employment.  Except, in the case of a contract worker working less than 20% of the time of a comparable permanent worker, in relation to pensions.

What is a comparable permanent Worker?

A permanent employee not on a fixed contract is a comparable worker if -

  1. Employed by the same associated employer (subject to 1,2,3 below)
  2. Is an employee specified in a collective agreement which applies to the contract employee
  3. Employed in the same industry or sector (subject to 1,2,3 below)

In the case of a) and c) above one of the conditions must apply.

  1. Both employees perform the same work under similar conditions or are interchangeable.
  2. Work is of the same or similar nature with any differences being insignificant
  3. Work is equal to or greater to a comparable permanent employee.

When can a Contract Employee be treated less favourably?

Employers may treat contract employees less favourably where they can prove objective grounds for such.  An objective ground would be where the different treatment can be justified in that the difference in treatment does not relate to the status of the employee and is for the purpose of achieving a legitimate objective and is necessary to achieve that objective.

Pension - Please note as stated above where the contract employee worked 20% of the comparable employees time, this would be an objective reason for not applying pensions.

Entitlements based on hours worked

Where benefit is base don hours worked then a contract employee would be entitled to these benefits on a pro rata basis where they work lesser hours.

Can we renew Fixed Term Contracts?

Employers may renew fixed term contracts subject to below.
The employer must do so in writing no later than the date of renewal and must state the objective grounds for renewing the contract and the reason why no indefinite duration contract was offered.

FTC's commencing after 14th July 2003
Where a contract employee has been employed on two or more continuous fixed term contracts then the average duration may not exceed four years except where an objective ground is presented.

FTC's commencing before 14th July 2003
Where fixed term contract has been in existence for up to three years occurring before or after the date, the contract may be renewed for maximum of one year with the average duration not exceeding four years.

Employer Obligations

Employers must notify contract employees of permanent vacancies arising and also of training opportunities insofar as it is practical for contract employees to participate in them.

Employers should, insofar as is practicable, advise employee representatives as to fixed  term contract workers in the undertaking.

Disputes

When an employee has a dispute with an employer regarding their entitlement on this legislation they may refer the matter to the Rights Commissioner.  The Rights Commissioner may;

  1. Declare the complaint was or was not well founded
  2. Require the employer to comply with the act
  3. Require the employer to reinstate or reengage the employee, (including on a contract of indefinite duration)
  4. Order compensation not exceeding two years remuneration.

Appeals of a Rights Commissioner must be made within six weeks of communication to the Labour Court.  Where the decision has not been implemented the employee may refer it to the Labour Court within six weeks of communication.  In such cases the employer is precluded from attending the hearing or producing any new evidence to the Labour Court.

Appeals of the Labour Court are to the High Court whose decision shall be final and conclusive.



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