European Labour Law Part-time work Francesca Susi Teresa Florio Feliciana Maria Santoro Davide Testa Angela Sardone.

European Labour Law Part-time work Francesca Susi Teresa Florio Feliciana Maria Santoro Davide Testa Angela Sardone Part-time work Way of balancing work and family life is to work part-time a form of employment that carries fewer hours per week than a full-time job. Part-timers work in shifts but remain on call while off duty and during annual leave. Workers are considered to be part-time if they commonly work fewer than 30 or 35 hours per week. The number of part-time workers has increased from one-fourth to a half in the past 20 years in most developed countries, excluding the United States. Benefits Flexibility (for both employers and employees) Disadvantages Precariousness 1989: Community Social Charter Action Action Program aimed to ensure te improvement of living and working conditions of part-time workers. EU regulation Directive 91/533/EEC provided some transparency in contracts of employment; on the basis of article 153 TFEU(about social policy), regarded health and safety. The second Directive (91/383/EEC), on the basis of art. 115 TFEU, applied the principle of non- discrimination to atypical workers. The Commission proposed three specific Directives concerning atypical workers to improve living and working conditions and to protect health and safety of the workers. Directive 97/81/EEC a)Purpose This Directive aims to ensure that workers concerned by new forms of flexible working and to eliminate obstacles to part-time working. Proposed on the basis of article 114 TFEU, the Council Directive 97/81 EC contained the principle of equal treatment about male and female working. Before the part-time work directive, indirect discrimination was a useful tool to adress less favourable treatment of part-time workers on the grounds that fewer men than women work part-time. The part-time workers were intitoled to have the same treatment to other workers proportionally to their working time. b) Scope The directive has two other objectives: to facilitate the development of part-time work and to contribute to the flexible organization of working time in a manner that satisfies the needs of employers and workers. The directive applies to part-timers who have an employment contract or employment relationship as defined by the law, collective agreement, or practice in force in each Member State. Once again personal style has proved to be a vexed question. In the UK the Directive has been implemented to cover a person who works under a contract of employment or under any other contract for the personal performance of work or services. However, services provided for client or customer on a professional basis or by a business undertaking are not covered. c) Definitions The term part-time worker refers to an employee whose normal hours of work, calculated on a weekly basis or on average over a period of employment of up to one year, are less than the normal hours of work of a comparable full-time worker. The term comparable full-time worker means a full time worker in the same establishment having the same type of employment contract or relationship, who is engaged in the same or similar work/occupation, due to regard being given to other considerations which may include seniority and qualifications/skills. d) Principle of non discrimination Part-time workers shall not be treated in a less favourable way than comparable full time workers. Where appropriate, the priniciple of pro rata temporis shall apply. Member States after consultation of the social partners in accordance with national law, collective agreements or practice, and/or social partners may access to particular conditions of employment subject to a period of service, time worked of earning qualification. e) Opportunities for part time work In the context of the principle of non-discrimination between part time and full time workers Member States and the social partners should identify and review legal or administrative obstacles which may limit the opportunities for part-time work and they should delete them. A workers refusal to transfer from full-time to part-time work or viceversa should not constitute itself a valid reason for termination of employment. When possible, employers should consider requests by workers from full-time to part-time work when it becomes available in the establishment or viceversa requests to transfer from part-time to full-time work and also the provision of timely information on the availability of part-time and full-time positions and measures to facilitate access to part-time work. f) Provisions on implementation Member States and/or social partners may maintain or introduce more favourable provisions in this agreement and the implementation of these provisions shall not constitute valid grounds for reducing the general level of protection afforded to workers. This agreement does not prejudice the right of the social partners and it shall be without prejudice to any more specific Community provisions. The prevention and settlement of disputes and grievances arising from the application of this Agreement shall be dealt with in accordance with national law, collective agreements and practice. Cases C 55/07 and C 56/07 Othmar Michaeler Subito GmbH v Arbeitsinspektorat der Autonomen Provinz Bozen Autonome Provinz Bozen and Ruth Volgger Othmar Michaeler Subito GmbH v Arbeitsinspektorat der Autonomen Provinz Bozen Autonome Provinz Bozen Part- time contact EU law In 1997, the European Community adopted Directive 97/81 for the purpose of implementing the Framework Agreement on part-time work concluded between the European social partners. The directive sought, on the one hand, to abolish discrimination against part-time workers and, on the other, to encourage the development of that type of employment Part-time workers shall not be treated in a less favourable manner than comparable full- time workers solely because they work part time 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 and/or social partners, having regard to European legislation, national law, collective agreements and practice. Clause 4: Principle of non- discrimination Member States, following consultations with the social partners in accordance with national law or practice, should identify and review obstacles of a legal or administrative nature which may limit the opportunities for part- time work and, where appropriate, eliminate them; the social partners, acting within their sphere of competence and through the procedures set out in collective agreements, should identify and review obstacles which may limit opportunities for part-time work and, where appropriate, eliminate them. Clause 5: Opportunities for part-time work Clause 5 of the Framework Agreement, Principle of non-discrimination Indeed, recital 5 in the preamble to the directive states that the conclusions of the Essen European Council stressed the need to take measures to promote employment and equal opportunities for women and men. Discriminat ion on grounds of sex. Member States shall take the measures necessary to ensure that: (a) any laws, regulations and administrative provisions contrary to the principle of equal treatment shall be abolished; (b) any provisions contrary to the principle of equal treatment which are included in collective agreements, individual contracts of employment, internal rules of undertakings or in rules governing the independent occupations and professions shall be, or may be declared, null and void or may be amended; (c) those laws, regulations and administrative provisions contrary to the principle of equal treatment when the concern for protection which originally inspired them is no longer well founded shall be revised; and that where similar provisions are included in collective agreements labour and management shall be requested to undertake the desired revision. Italian law Article 2 of Legislative Decree 61/2000 of 25 February 2000 imposes on employers the obligation to send, no later than 30 days after the conclusion of a part-time contract, a copy of that contract to the competent provincial employment and social security inspectorate. In accordance with Article 8 of the Legislative Decree, failure to comply with that requirement attracts an administrative penalty of EUR 15 for each employee concerned and for each day of delay. No provision is made for any quantitative limit on the penalty or for any grounds for mitigation or aggravation based on the degree of culpability of the infringer. Article 2 Legislative Decree 61/2000 of 25/2/2000 In 2003, three years after the entry into force of Legislative Decree 61/2000, Article 2 was repealed. Nevertheless, since the principle of tempus regit actum governs this field in Italy, the provisions abolishing the infringements and the administrative penalties cannot have favourable retroactive effect. Article 2 Legislative Decree 61/2000 of 25/2/2000 Facts The Landesgericht Bozen explains in the order for reference that Ruth Volgger, Othmar Michaeler and Subito GmbH infringed Article 2 of Legislative Decree 61/2000. Despite the brief account of the facts, it is clear from the order that the Arbeitsinspektorat der Autonomen Provinz Bozen (Employment and Social Security Inspectorate of the Autonomous Province of Bolzano) imposed on Mr Michaeler and Subito GmbH a penalty in the form of a fine of EUR The reference for a preliminary ruling in Case C 55/07 was made in the action contesting the decision to impose the penalty. At the same time, Ms Volgger, Mr Michaeler and Subito GMBH received a penalty in the amount of EUR which they contested before the Landesgericht Bozen, giving rise to the reference in Case C 56/07. The Landesgericht Bozen, which is fully aware of the Community and national legal frameworks, has referred the following question to the Court: Are national provisions (Articles 2 and 8 of Decree-Law No 61/2000) which impose an obligation on employers to send a copy of part-time employment contracts within 30 days of their conclusion to the competent provincial department of the Labour Inspectorate, which imposes a fine of EUR 15 per employee concerned and per day of delay for failure to do so, and which do not set an upper limit for the administrative fine, compatible with Community law provisions and Directive 97/81/EC of 15 December 1997? The question referred for a preliminary ruling and the procedure before the Court of Justice CONCLUSION The Court replies to the question referred by the Landesgericht Bozen, declaring that: Clauses 4 and 5 of the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC, annexed to Council Directive 97/81/EC of 15 December 1997, must be interpreted as meaning that they preclude national legislation requiring that a copy of all part-time contracts be sent to the administrative authorities within 30 days of their conclusion. CONCLUSION Article 3 of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions must be interpreted as meaning that it precludes national legislation requiring that a copy of all part-time contracts be sent to the administrative authorities within 30 days of their conclusion, where it is demonstrated that the measure affects a significantly higher percentage of women than men. It is for the national court to determine whether the facts constitute evidence of discrimination on grounds of sex. The European Court of Justice: Case Bruno C-395/08 and C-396/08 Vertical part-time and pensions Part- time contract The European Court of Justice, claimed that the Italian legislation on pensions in favor of workers in part- time vertical-cyclical is a disadvantage compared to those concerning other workers. According to the Court, the principle of non-discrimination arising from the Directive n. 97/81, that Italy has made its own with the Legislative Decree n. 61/2000, means that the contribution period required for the identification of the date on the right of the board to be calculated, for those who are part-time, as if they had worked full time. It follows that they should be considered, as a whole, even when it is not working. ECJ Council Directive 97/81/EC Clause 1: Purpose a)"removal of discrimination against part-time workers and improve the quality of part-time work" b)"development of part time work and flexible organisation of working time" Clause 4: Principle of non discrimination Clause 5: opportunities for part-time work Framework Agreement on part-time work concluded By UNICE, CEEP and the EUTC Italian law a) Legislative Decree 61/2000 Vertical part-time employment relationship: the work is performed on a full-time basis but limited to predetermined periods in the course of each week, month or year. b) Decree Law 463/1983 Measures for social security and health and the control of public expenditure. Look at the dispute: cabin crew members employed by the airline Alitalia vs. INPS. Is the Italian legislation compatible with Directive 97/81? Mascellani Case C-221/13 Teresa Mascellani V Ministero della Giustizia Part- time contract EU law, Directive 97/81/EC The purpose of the directive is to implement the Framework Agreement between the general cross-industry organisations, namely the Union of Industrial and Employers Confederations (UNICE), the European Centre of Enterprises with Public Participation (CEEP) and the European Trades Union Confederation (ETUC), as it appears in the annex to that directive. Lets look at.. Clause 5.2 of the Framework Agreement A workers refusal to transfer from full-time to part-time work or vice-versa should not in itself constitute a valid reason for termination of employment, without prejudice to termination in accordance with national law, collective agreements and practice, for other reasons such as may arise from the operational requirements of the establishment concerned. Italian law Article 16 of Law No 183 provides that the public administration re- evaluate decisions permitting the conversion of full-time employment relationships into part-time employment relationships. Law 183/2010 art. 16 Facts Ms Mascellani is an official of the Italian Ministry of Justice and holds a position at the referring court. Since 28 August 2000, she has worked part- time in accordance with a weekly timetable whereby 50 % of normal working hours are spread over three days a week (a vertical part-time employment relationship). Following the entry into force of Law No 183/2010, the Ministry of Justice adopted Decision No and Decision No 1882 (the contested decisions), that unilaterally re- evaluated and revoked Ms Mascellanis part-time working arrangements, pursuant to Article 16 of Law No 183/2010, and instructed her to work full-time, on the basis of full working hours spread over six days a week, as from 1 April After l. 183/2010 According to Ms Mascellani, working part-time has enabled her to use her time both to care for her family and to undertake vocational training. She has been registered with the Trento roll of lawyers, has graduated from a specialist college for legal professions, and has also enrolled in the University of Padua for a three-year degree course for workplace training instructors. Working part time has also enabled Ms Mascellani to provide assistance to her only surviving parent now more than 90 years old who lives with her and has no other relative nearby. Ms Mascellani objections Request for a preliminary ruling from the Tribunale ordinario di Trento Is it compatible with Directive 97/81/EC for a Member State to provide for rules allowing an employer to modify an employment relationship unilaterally, thereby requiring the worker to change from part-time to full-time employment against the workers own wishes? ECJ decision The Framework Agreement on part-time work concluded on 6 June 1997 which is annexed to Council Directive 1997/81/EC of 15 December 1997, concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC, in particular Clause 5.2 thereof, must be interpreted as meaning that, in circumstances such as those in the main proceedings, it does not preclude national legislation pursuant to which the employer may order the conversion of a part-time employment relationship into a full-time employment relationship without the consent of the worker concerned.