In his regular contribution to The Times, MEP Simon Busuttil September 21) gave his measured opinion as to the matter of employment with the government on the basis of a fixed term contract of three months duration which had been renewed for a number of years.

The basic issue which was raised was whether the applicable EU rules applied to government workers and old contracts. The conclusions reached by Dr Busuttil were that this issue had been addressed by the EU as far back as 1999 and the relative rules were incorporated into our law in January 2003 as part of our preparation to join the European Union.

To quote further from Dr Busuttil: "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 - clearly indicating that the employment relationship should have been entered into on an indefinite basis and not of a temporary nature".

In his further examination of the issues, Dr Busuttil further concludes, correctly in my view, that when the law was transposed into our law our legislator deliberately excluded "employment in the public sector" from the application of the EU law.

When the decision was taken by referendum and subsequent confirmation in the general election of 2003 for Malta to join the EU this was done under the basic premise that joining the EU meant in its most basic form an exercise in the harmonisation of applicable rules. This basic framework carries much weight in the employment area where, local financial considerations relative to wages apart, the clear intention of the EU is that of favouring EU workers with common rules that are to apply to their employment across the board.

We must here, of course, take note of the raison d'etre of the EU. Within the context of employment legislation (information taken from Europa.eu) "The European Commission proposes a series of actions with a view to improving the European social model. This model is designed to promote full employment, economic dynamism and greater social cohesion and fairness in the European Union (EU)".

Nowhere in this declaration and relative rules is there any reference made to a distinction that is to be made between public service and private employees and this in all respects.

When the EU issues a directive this is to be implemented as is without any derogation unless there is one. With regard to the rules relative to fixed time work the relative council directives are 2000/78/EC and 1999/70/EC. Legal notice 429/2002 made these directives part and parcel of our law.

A directive fixes the agreed objectives to be pursued by the EU member states but leaves freedom of choice for the ways of obtaining them. As to the role a directive plays in EU law, the basic rule is that "A directive shall be binding, as to the result to be achieved, upon each member state to which it is addressed, but shall leave to the national authorities the choice of form and methods". Thus, a directive, following negotiations with the various ministers and government representatives (together with numerous NGOs), indicates the objectives the EU member states are to implement. The manner in which the objective/directive is further implemented in the individual state is left to the member state. What is important is effectively the result and not the manner in which the result is achieved (of course, legally).

To this extent, therefore, as Dr Busuttil rightly concludes, EU law should prevail and these rights should also apply to workers in the public sector.

Further, and in particular, the Employment and Industrial Relations Act (Chapter 453 of the Laws of Malta) states that with regard to fixed-term contracts, "the conditions of employment in a fixed term contract shall not be less favourable than those which would have been applicable had the same contract of employment at the same place of work been for an indefinite time, unless different treatment is justified on objective grounds:

"Provided that this article shall not apply to contracts of employees on initial vocational training and, or, on apprenticeship schemes.

"(2) Any employee on a fixed term contract of service whose contract has expired and is retained by his employer shall be deemed to be retained on an indefinite period contract if the said employee is not given a new contract of service within the first 12 working days following the expiry of the previous contract."

Legal Notice 429 of 2002 is applicable to:

"(a) an employee who is employed under a contract of service for a fixed term as defined under these regulations, and

"(b) an employee who has previously been employed by the same employer on a contract of service for a fixed term before the start of the contract mentioned in paragraph (a) above.

"(2) The provision of the contract of service for a fixed term restricting the duration of the contract shall be of no effect and the employee shall be considered an employee employed under a contract of indefinite duration if;

"(a) the employee has been continuously employed under the contract mentioned in sub-regulation 1 (a) or under that contract taken with a previous contract of service for a fixed term exceeding a period of four years; and

"(b) the employer cannot provide objective reasons to justify the limitation of a renewal of such a contract for a fixed term."

However:

"(5) Further to the provisions of article 48 of the Act, this regulation shall not be applicable to employment in the public sector".

Nowhere in the applicable EU directives is there an indication that public employment is to be kept distinct from employment within the private sector and it is my opinion that the above provision is contrary to the directive in question.

The basic principles of non-discrimination (clause 4 of Directive 1999/73 EC) are the following:

In respect of employment conditions, fixed term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed term contract or relation unless different treatment is justified on objective grounds; where appropriate, the principle of pro rata temporis shall apply.

The arrangements for the application of this clause shall be defined by the member states after consultation with the social partners, having regard to Community law and national law, collective agreements and practice.

Period of service qualifications relating to particular conditions of employment shall be the same for fixed term workers as for permanent workers except where different length of service qualifications are justified on objective grounds.

What the above in effect means is that any form of discrimination between fixed time workers and "permanent workers" is not acceptable. Thus, for example, if in an intended call for applications within the public service a distinction is made between the two, or is limited to permanent workers, this in itself would constitute a direct breach of the EU directives.

In conclusion, as EU citizens we are to assume that all EU directives are being respected and implemented. To discover that one major directive in the employment sector has been, in my opinion, ignored is quite frankly disappointing. The discrimination which the government has thereby created between employees in the public sector and employees in the private sector is in effect a complete negation of the raison d'etre of the EU itself.