Week 5 – Workers’ Participation and Atypical work
Chapter 7 - Workers’ Participation in Business Matters
Know this topic generally. You don’t have to know the details. But a question might be asked in a
global manner. This because labour law and company law cross-over.
Listen well to lecture and read between the lines…than you will know what to expect.
Chapter 4 – Atypical Forms of Employment
4.2 Part-time Work
The directive: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?
uri=CELEX:31997L0081&from=EN
Part-time work as an instrument of employment policies
- The regulation of part-time work is not there to prevent abuse of the contract (as is the
regulation of fixed-term work), but it is intended as a way to facilitate access to part-time
work and to remove obstacles of a legal or administrative nature which may limit the
opportunities to part-time work
- This difference exists because part-time work is seen as an instrument of employment policy
capable of reducing unemployment rates (“Dutch miracle”). It also allows workers to prepare
for retirement, reconcile professional and personal life and take up education and training for
career goals
The promotion of voluntary part-time work
- Clause 1(b) of the Framework Agreement: purpose is to facilitate the development of part-
time work on a voluntary basis
- Is intended as a way to actually modify a reality where 9.5 million part-time workers in the
EU would prefer to work more, however, it has not completely succeeded so far
The (non-existent) right to part time work
- Reason behind the ineffective provision regarding the voluntary character of part-time work is
likely to be found in the fact that the Agreement does not take any position on one of the issue
which could probably have contributed to its success: the existence of a subjective right to
part-time work and how this hardly exists!
- A subjective right is only recognised in a few MS: the Netherlands, France, Italy and
Germany, albeit with some restrictions specifically regarding the private sector
- The ECJ has not been asked yet to decide whether or not the ‘voluntary’ character of part-time
work enshrined in the directive entails the existence of a right to part-time work
The transition from part-time work to full-time work and vice versa
- The provisions that give effect to the voluntary principle are contained in Clause 5
Clause 5(2): the workers’ refusal to change the nature of the relationship from full-time to
part-time (and vice versa) cannot be a valid reason for dismissal per se, although it could
constitute a valid reason for termination of the employment relationship to the extent that
such refusal gives rise to operational difficulties for the employer.
It is clear that this provision does not really protect the position of workers willing to
change their working time arrangements, according to their own personal life choices
- Clause 5(3): guarantees only that the employer should give consideration as far as possible to
their request to transfer from full-time to part-time and vice versa.
, Again ‘soft’ language. This does really allow to conclude that individual options
regarding working time have been taken seriously.
- Mascalleni-case: court has a very materialistic view. The court did not take the principle of
voluntary part-time work seriously. It showed a complete lack of awareness of the work-life
balance dynamics often underlying ‘voluntary’ part-time work.
- According to the court, a situation in which a pat-timer is obliged to become full-timer and the
opposite cannot be regarded as comparable. This because the reduction of hours does not
involve the same consequences as an increase.
- So apparently: the simple fact of earning a higher salary as a consequence of full-time work is
a sufficient reason to exclude the workers’ right to transform the contract into a part-time one.
Measures to facilitate part-time work
- Clause 1(b): the proclaimed purpose of promoting part-time work is supported by some
‘facilitation measures’ addressed at increasing de facto but not de jure the workers capacity to
enter into a part-time contract.
- Two kinds of provisions:
First group of provisions refers to a series of commitments which employers are required
‘as far as possible’ to ‘give consideration’ to. See clause 5(3)(c)(d)(e). But as the text of
5(3) reveals, these are nothing more than recommendations. It would be hard to find any
sort of remedy available against an employer who did not ‘give consideration’ to such
commitments because it deemed it ‘not possible’.
The second group of facilitation measures is addressed to the MS and socials partners. It
refers to their obligation to identify and remove all legal and administrative obstacles,
which may limit opportunities to part-time work. See clause 5(1)(a)(b)
Normative content and thus a bit more binding than the ‘soft’ provisions
Michaeler-case: Italian law requiring undertakings to send to the public authorities a
copy of every part-time contract is an administrative obstacle, likely to limit
opportunities for part-time work within meaning of clause 5(1)(a). Especially because
this did not exist for full-time contract. Obstacle because of the costs and associated
penalties small undertakings (maybe not having same resources as big ones) might
avoid this administrative task.
Not discriminative when this obligation would exist for full-time work as well, or if
the difference is justified on objective grounds + necessary, see clause 4.
Non-discrimination in part-time work: a goal or a means?
- Two kinds of non-discrimination:
1. The right not to be discriminated against as an expression of a fundamental principle
which is protected per se (e.g. gender discrimination, it is an expression of the general
principle of equality)
2. The right not to be discriminated against, which is protected in its function as a tool able
to attain goals (e.g. in the case of workers exercising their freedom of movement, the goal
of creating an internal market based on the four economic freedoms)
- The Part-time Work Directive falls in the second category: non-discrimination principle with
the main objective of reaching a goal other than merely equal treatment. The goal is promotion
of part-time work, and the prohibition of discrimination against part-timers is the necessary to
achieve this goal.
- ECJ – INPS v. Bruno et al.
The right to not be discriminated against in the case law of the court of justice
The part-time work directive and beyond
Chapter 7 - Workers’ Participation in Business Matters
Know this topic generally. You don’t have to know the details. But a question might be asked in a
global manner. This because labour law and company law cross-over.
Listen well to lecture and read between the lines…than you will know what to expect.
Chapter 4 – Atypical Forms of Employment
4.2 Part-time Work
The directive: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?
uri=CELEX:31997L0081&from=EN
Part-time work as an instrument of employment policies
- The regulation of part-time work is not there to prevent abuse of the contract (as is the
regulation of fixed-term work), but it is intended as a way to facilitate access to part-time
work and to remove obstacles of a legal or administrative nature which may limit the
opportunities to part-time work
- This difference exists because part-time work is seen as an instrument of employment policy
capable of reducing unemployment rates (“Dutch miracle”). It also allows workers to prepare
for retirement, reconcile professional and personal life and take up education and training for
career goals
The promotion of voluntary part-time work
- Clause 1(b) of the Framework Agreement: purpose is to facilitate the development of part-
time work on a voluntary basis
- Is intended as a way to actually modify a reality where 9.5 million part-time workers in the
EU would prefer to work more, however, it has not completely succeeded so far
The (non-existent) right to part time work
- Reason behind the ineffective provision regarding the voluntary character of part-time work is
likely to be found in the fact that the Agreement does not take any position on one of the issue
which could probably have contributed to its success: the existence of a subjective right to
part-time work and how this hardly exists!
- A subjective right is only recognised in a few MS: the Netherlands, France, Italy and
Germany, albeit with some restrictions specifically regarding the private sector
- The ECJ has not been asked yet to decide whether or not the ‘voluntary’ character of part-time
work enshrined in the directive entails the existence of a right to part-time work
The transition from part-time work to full-time work and vice versa
- The provisions that give effect to the voluntary principle are contained in Clause 5
Clause 5(2): the workers’ refusal to change the nature of the relationship from full-time to
part-time (and vice versa) cannot be a valid reason for dismissal per se, although it could
constitute a valid reason for termination of the employment relationship to the extent that
such refusal gives rise to operational difficulties for the employer.
It is clear that this provision does not really protect the position of workers willing to
change their working time arrangements, according to their own personal life choices
- Clause 5(3): guarantees only that the employer should give consideration as far as possible to
their request to transfer from full-time to part-time and vice versa.
, Again ‘soft’ language. This does really allow to conclude that individual options
regarding working time have been taken seriously.
- Mascalleni-case: court has a very materialistic view. The court did not take the principle of
voluntary part-time work seriously. It showed a complete lack of awareness of the work-life
balance dynamics often underlying ‘voluntary’ part-time work.
- According to the court, a situation in which a pat-timer is obliged to become full-timer and the
opposite cannot be regarded as comparable. This because the reduction of hours does not
involve the same consequences as an increase.
- So apparently: the simple fact of earning a higher salary as a consequence of full-time work is
a sufficient reason to exclude the workers’ right to transform the contract into a part-time one.
Measures to facilitate part-time work
- Clause 1(b): the proclaimed purpose of promoting part-time work is supported by some
‘facilitation measures’ addressed at increasing de facto but not de jure the workers capacity to
enter into a part-time contract.
- Two kinds of provisions:
First group of provisions refers to a series of commitments which employers are required
‘as far as possible’ to ‘give consideration’ to. See clause 5(3)(c)(d)(e). But as the text of
5(3) reveals, these are nothing more than recommendations. It would be hard to find any
sort of remedy available against an employer who did not ‘give consideration’ to such
commitments because it deemed it ‘not possible’.
The second group of facilitation measures is addressed to the MS and socials partners. It
refers to their obligation to identify and remove all legal and administrative obstacles,
which may limit opportunities to part-time work. See clause 5(1)(a)(b)
Normative content and thus a bit more binding than the ‘soft’ provisions
Michaeler-case: Italian law requiring undertakings to send to the public authorities a
copy of every part-time contract is an administrative obstacle, likely to limit
opportunities for part-time work within meaning of clause 5(1)(a). Especially because
this did not exist for full-time contract. Obstacle because of the costs and associated
penalties small undertakings (maybe not having same resources as big ones) might
avoid this administrative task.
Not discriminative when this obligation would exist for full-time work as well, or if
the difference is justified on objective grounds + necessary, see clause 4.
Non-discrimination in part-time work: a goal or a means?
- Two kinds of non-discrimination:
1. The right not to be discriminated against as an expression of a fundamental principle
which is protected per se (e.g. gender discrimination, it is an expression of the general
principle of equality)
2. The right not to be discriminated against, which is protected in its function as a tool able
to attain goals (e.g. in the case of workers exercising their freedom of movement, the goal
of creating an internal market based on the four economic freedoms)
- The Part-time Work Directive falls in the second category: non-discrimination principle with
the main objective of reaching a goal other than merely equal treatment. The goal is promotion
of part-time work, and the prohibition of discrimination against part-timers is the necessary to
achieve this goal.
- ECJ – INPS v. Bruno et al.
The right to not be discriminated against in the case law of the court of justice
The part-time work directive and beyond
