The Act provides a right of complaint to the Workplace Relations Commission where an employee believes that a contravention of the Act has occurred.
A comparable permanent employee is a permanent employee to whom a fixed-term employee compares himself/herself where the following conditions are met:
- the permanent employee and the fixed-term employee are employed by the same or associated employer and one of the following conditions are met:
- both employees perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work
- the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other
- the work performed by the relevant fixed-term employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions
- the employee is employed in the same industry or sector of employment as the fixed-term employee and one of the conditions referred to above is met
the permanent employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant fixed-term employee, to be a comparable employee in relation to the fixed-term employee
Can a fixed-term employee be treated in a less favourable manner than a comparable permanent employee?
A fixed-term employee may be treated in a less favourable manner than a comparable permanent employee where such treatment can be justified on objective grounds. An objective ground means a reason which is based on something other than the status of the employee as a fixed-term employee. The less favourable treatment must also be for the purpose of achieving a legitimate objective of the employer and such treatment is necessary for that purpose
A fixed-term employee can be treated less favourably than a comparable permanent employee in relation to any pension scheme or arrangement when his/her normal hours of work constitutes less than 20 per cent of the normal hours of work of the comparable permanent employee.
- A fixed-term worker cannot be in receipt of less favourable terms and conditions of employment than the comparable permanent employee.
- All employee protection legislation, other than unfair dismissal in certain circumstances, applies to a fixed-term employee in the same manner as a permanent employee. Any qualifying conditions applying to permanent employees in any of that legislation, also apply to a fixed-term employee
- An employer cannot continually issue fixed-term contracts. If the fixed-term employee has been engaged on two or more continuous contracts where the aggregate duration exceeds 4 years, then if the contract is renewed again, it is deemed to be a contract of indefinite duration, unless the employer has objective grounds for renewing the contract again on a fixed-term basis. (i.e. the reason for not granting it should not be the fixed-term status of the employee but could be other legitimate but measurable reasons)
- The Act provides that where an employer proposes to renew a fixed-term contract the employee shall be informed in writing, not later than the date of renewal, of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration.
- Fixed-term employees must be provided with the same opportunity as other employees to secure any permanent positions in the employment and an employer shall inform fixed-term employees in relation to relevant vacancies which occur in the undertaking.
- Fixed-term employees must be provided with appropriate training opportunities, such access shall be provided by an employer as far as practicable.
The Protection of Employees (Fixed-Term Work) Act 2003 gives protection to fixed-term employees. An employee is deemed a fixed-term employee where the end of a contract is determined by:
- The arrival of a specific date; or
- The completion of a specific task; or
- The occurrence of a specific event (e.g. a worker returning from maternity leave where cover was given by a fixed-term employee)
In general the Act applies to any fixed-term employee:
- Working under a contract of employment or apprenticeship
- Holding office under, or in the service of, the State
- Agency workers employed directly by an employment agency
The Act does not apply to:
- Agency workers placed by an employment agency at the disposition of a user enterprise
- A member of the Defence Forces
- Trainee garda or a trainee nurse
- Employees in initial vocational training or in apprenticeship schemes nor employees with a contract of employment concluded within the framework of a publicly-supported training, integration or vocational retraining programme.