Fixed-term contracts

G. Spiteri writes: I am employed with the government on the basis of a fixed-term contract of three months' duration which has been renewed for the past several years - each time extended for another quarter. Whenever I ask if my contract can become indefinite - "tal-post" - I am told that the law does not apply to us who work with the government and that, in any case, the law was only recently enacted and does not apply to old contracts such as mine.
What is my position? Does the EU protect workers in my situation?

This issue is addressed in an EU law on fixed-term contracts which dates back to 1999 and which was eventually incorporated into our law in January 2003 as part of our preparations to join the European Union.

What is interesting about this law is that it was not imposed "from above" by the EU but it was agreed between the respective federations of European trade unions and employers' associations. Their agreement was subsequently enacted into EU law - but it remains their agreement.

One of the main objectives of the law is specifically to address the issue of abuse of temporary or fixed-term contracts typically lasting for a period of three, six or 12 months. The possibility of abuse stems from the fact that there are cases where workers are formally engaged on a fixed-term basis for a short contract period but their contract is subsequently repeatedly and successively renewed - clearing indicating that the employment relationship should have been entered into on an indefinite basis and not of a temporary nature.

Of course, this situation puts workers in a weak position because they do not enjoy the same rights as fellow workers who are engaged on a permanent basis. Indeed, it also affects their representative rights in that workers on fixed-term contracts often find it difficult to stand up for their rights when they know that their contract is always up for renewal in a few weeks' time.

The idea of the law was not to remove the use of fixed-term contracts, which are indeed useful and beneficial for employers and employees alike, because they allow for flexibility in the labour market. This should be clear and I, for one, am fully in favour of flexibility in the labour market. Rather, the scope of the law was to stem the abuse of fixed-term contracts.

So we should not confuse flexibility in the labour market with the abuse of fixed-term employment relationship. One should be in favour of flexibility but opposed to abuse.

It is for this reason that EU law obliges EU countries to take measures to prevent abuse by establishing under which conditions and after which period of time a fixed-term contract should start to be considered as an indefinite-term contract.

In our case this was fixed at a total duration of four years, meaning that if your contract has been successively renewed for a period of four years, then your contract should be considered as an indefinite-term contract.

My understanding of the law is therefore that in your particular case, if your contract has been renewed successively for several years on the basis of three-month periods, it should now be considered as an indefinite-term contract and renewal should no longer be necessary.

It must be said that, when transposing EU law into Maltese, our legislator deliberately excluded "employment in the public sector" from the application of the EU law.

However, there is nothing in EU law that makes a difference between workers in the public and the private sector. In the absence of such a distinction, I do not see how we can give these rights only to workers in the private sector but not to workers in the public sector. Nor is it fair to impose these obligations on the private sector only.

To this extent, EU law should prevail and these rights should also apply to workers in the public sector.

As to timing, the law applies to workers who have a fixed-term contract. Clearly this must mean that, if in January 2003, when our law was enacted, your fixed-term contract had already been renewed for four successive years or more, then the law and the rights that come with it should also apply to you.

These are rights that come with EU membership and there is no reason why workers in your situation should not enjoy them.

Readers who would like to raise issues or ask a question are invited to send Dr Busuttil an e-mail to contact@simonbusuttil.com, maing reference to this column.