CONTRACTS OF SERVICE FOR A FIXED TERM REGULATIONS

SUBSIDIARY LEGISLATION 452.81

CONTRACTS OF SERVICE FOR A FIXED TERM

REGULATIONS

15th June, 2007

LEGAL NOTICE 51 of 2007, as amended by Legal Notices 427 of 2007,

239 of 2008 and 376 of 2009.

The title of these regulations is the Contracts of Service for a

Fixed Term Regulations.

(1)

For the purposes of these regulations -

"Act" means the Employment and Industrial Relations Act;

"comparable permanent employee" means a whole time

employee in the same establishment employed on a contract of

service of indefinite duration and who is engaged in the same or

similar work or occupation, due regard being given to other

considerations including seniority, qualifications and skills

Provided that where there is no comparable permanent employee

in the same establishment, the comparison shall be made by

reference to collective agreements covering similar comparable

permanent employees in other establishments;

"contract of service for a fixed term" means a contract of service

entered into between an employer and an employee where the end

of the contract is determined by reaching a specific date, or by

completing a specific task, or through the occurrence of a specific

event.

(2) Subject to the provisions of subregulation (1), terms and

expressions used in these regulations shall, unless the context

otherwise requires, have the meaning assigned to them in the Act.

(1) These regulations shall apply to employees who are in

employment under a contract of service for a fixed-term.

(2)

These regulations shall not apply to

(a) persons appointed to serve on any board of any

statutory or public authority, commission, committee,

corporation or the board of any body corporate

established by law or of any other public sector entity

as referred to in article 80(3) of the Act;

(b) an assignment or assignments of particular

responsibilities or work objectives, within the context

of an indefinite contract of employment, which are for

a period, alone or in aggregate, not exceeding four

years

Provided that breaks of up to a period of three months

in an assignment or between successive assignments

of substantially the same nature shall be included in

the calculation of the four year period;

(c) persons undergoing training or work experience under

an approved training or apprenticeship or scholarship

or trainee scheme.

Employees on a contract of service for a fixed term shall

not be treated in a less favourable m anner than comp arab le

permanent employees solely because they have a contract of

service for a fixed term

Provided that an employer may differentiate between the

conditions of employment of an employee on a fixed term contract

and a co mp ar able emp lo yee on a co ntract of serv ice f or an

indefinite time, if

(a) the difference arises in view of the recognition of

length of service, experience, qualifications or

conditions of pay and work attached to the contract of

service immediately preceding the contract of service

for a fixed term, and such other differences as are

justified on objective grounds; or

(b) the task for which the employee has been employed is

specific or has a top management nature and includes

objective

considerations

which

justify

such

differentiation.

(1) It shall be the duty of the employer to inform

employees on a contract of service for a fixed term about vacancies

which become available in the place of work and to give such

employees the same opportunity as other employees to secure work

on a contract of service for an indefinite time within the place of

work.

(2) The employer may inform the employees by way of a

general announcement to be posted up at a suitable place in the

place of work.

The employer shall endeavour to facilitate access by

employees on a contract of service for a fixed term to appropriate

training opportunities to enhance their skills, career development

and occupational mobility.

(1) Without prejudice to regulation 3(2), a contract of

service for a fixed-term shall be transformed into a contract of

service for an indefinite period if

(a) the employee has been continuously employed under

such a contract for a fixed term, or under that contract

taken in conjunction with a previous contract or

contracts of service for a fixed term in excess of a

period of continuous employment of four years; and

(b) the employer cannot provide objective reasons as

referred to in subregulation (4) to justify the limitation

of a renewal of such a contract for a fixed term

Provided that in the computation of the period of four years

mentioned in paragraph (a), any period during which the employee

was continuously employed prior to the coming into force of these

regulations shall also be taken into consideration.

(2) The effective date when an employee shall be considered to

have been employed on an indefinite basis is the date following that

when the four-year period has expired, but the period in continuous

employment on one or more fixed-term contract or contracts of

service shall be taken into account for all other purposes, including

seniority and redundancy.

(3) This regulation shall be without prejudice to the

transformation of the contract of service of an employee who was

p r evi ou sly em p lo yed o n a f ix ed ter m con tr act to o n e o f an

indefinite duration if the said employee is retained in employment

and is not given a new contract of service for a fixed-term within

the first twelve working days following the expiry of the previous

contract, as established in article 34(2) of the Act.

(4) An employer may only retain an employee on a fixed term

contract beyond four years when such retention is justified by

objective reasons based on precise and concrete circumstances

characterizing a given activity. Such circumstances may result, in

p ar t icu l ar, f r o m th e s p ec if ic na tu r e, o r f r o m i n h er en t

characteristics, of the tasks to be performed in the fixed term

contract, and may, where appropriate, include situations such as

where an employee

(a) was employed as a casual substitute or similar

employee on a back to back basis or as a temporary

substitute employee;

(b) occupies -

(i) a top management position, or

(ii) a position where the maintenance of a higher

level of trust is necessary by virtue of the nature

of the position or where a higher level of trust is

objectively an essential element of the

employment relationship;

(c) was employed by means of an appointment made to

safeguard particular security or economic interests of

the State

Provided that this shall only apply when the employee

is granted a contract of employment for a minimum

period of two years;

(d) was employed on temporary assignments in missions

or postings abroad for a duration not exceeding six

years;

(e) was engaged to serve as a person of trust of a

particular individual who himself holds an office of a

temporary nature such as persons engaged to serve in

the office of holders of publicly elected office.

(5) For the purposes of this regulation, the term "continuously

employed" shall include those contracts of a fixed-term which are

renewed within six months from their termination and this period

between the contracts shall be included in the calculation of the

four year qualifying period referred to in subregulation (1)(a)

Provided that another contract of service for a fixed-term

entered into after the lapse of the six month period shall not be

considered as continuous employment

Provided further that another contract of service for a fixed-

term entered into within the six month period after the termination

of a previous contract shall be considered as continuous

em p lo y m ent if t he tas ks u n de r th e s ub s equ en t con t rac t ar e

substantially the same as the tasks under the previous contract of

employment

Provided also that the tasks shall still be considered to be

substantially the same even though they encompass changes related

to technical progress or changes in work practices or in the way the

tasks are carried out or the contract includes a promotion related to

work assigned in any previous contract.

(6)

(i) Without prejudice to the rights of the employee under

these regulations, whenever an employer intends to

enter into a contract of service for a fixed term with a

prospective employee the employer shall list in writing

in that contract

(a) the objective reasons, if any, why the contract to

be entered into should not be converted into one

of indefinite duration if the employee is

continuously employed on one or more

successive fixed-term contracts for a period

exceeding four years, or

(b) the actual wages and other conditions of

employment attached to the contract of service if

this will automatically become indefinite in the

absence of objective reasons.

(ii) If an employee on a fixed term contract is

continuously employed on one or more successive

contracts for a period exceeding four years

(a) in the absence of compliance with paragraph

(i)(a), the employee’s contract of employment

shall automatically become an indefinite

contract of employment, and

(b) in the absence of compliance with paragraph

(i)(b), the employee shall enjoy the same

conditions of employment enjoyed under the

fixed-term contract.

(iii) In the case of an employee on a fixed-term contract

whose period of continuous employment has not

exceeded four years on the date of entry into force of

this paragraph, the employer shall, either before the

expiry of the current contract or within a period of six

months from the date of entry into force of these

regulations, whichever is the earlier, furnish the

employee in writing with

(a) the objective reasons, if any, why the contract

which had been entered into should not be

converted into one of indefinite duration if the

employee is employed on one or more

successive contracts for a continuous period

exceeding four years, or

(b) the actual wages and other conditions of

employment attached to the contract once this

automatically becomes indefinite in the absence

of objective reasons.

(iv) In the case of an employee in the public service or

public sector on a fixed-term contract whose period of

continuous employment on one or more successive

fixed-term contracts has exceeded four years and who

is still in employment on the date of entry into force of

this paragraph, the employer shall furnish that

employee in writing, within a six month period from

the date of entry into force of this paragraph, with

(a) the objective reasons, if any, why the contract

which had been entered into should not be

converted into one of indefinite duration if the

employee has been employed on one or more

successive contracts for a continuous period

exceeding four years, or

(b) the actual wages and other conditions of

employment attached to the contract once this

automatically becomes indefinite in the absence

of objective reasons.

(v) If an employee on a fixed term contract referred to in

paragraph (iii) or (iv) has been employed or is

subsequently employed on one or more successive

contracts for a continuous period exceeding four years

(a) in the absence of a document listing the reasons

as referred to in paragraphs (iii)(a) or (iv)(a) and

furnished to the employee within the relevant

applicable period, the employee’s contract of

employment shall automatically become an

indefinite contract of employment as provided

for in subregulations (2) or (7) as the case may

be, and

(b) in the absence of written information referred to

in paragraphs (iii)(b) and (iv)(b) and furnished

to the employee within the relevant applicable

period, the employee shall on conversion to an

indefinite contract of service enjoy the same

conditions of employment enjoyed under the

fixed-term contract.

(7) Subject to subregulation (6)(iv), employees in employment

in the public service or public sector on the date of entry into force

of these regulations who, during the period between 1st May 2004

and the date of the said entry into force, completed a period of more

than four years continuous employment and in respect of whom

there is no objective reason justifying their retention on a fixed-

term contract as referred to in subregulation (4), shall be deemed to

have become employees on an indefinite contract with effect from

the day following that when the said four-year period expired.

(8) Nothing in subregulation (7) shall be interpreted as having

the effect of reviving any employment relationship which has been

terminated prior to the date of entry into force of these regulations

or of invalidating any such termination.

(9) Without prejudice to the provisions of subregulation

( 6 )( iv ) (b ) an d ( v) ( b) , no th in g in th ese reg u latio n s sh all b e

interpreted as conferring on employees who have acquired an

indefinite status the right to carry with this status benefits which

are particular to definite contracts.

(10) Nothing in these regulations shall confer a right to

employment on an indefinite contract under these regulations when

a person is in an employment relationship in the public service or in

the public sector which has not been made in accordance with the

Constitution or with any law which applies to employment in the

public service or the public sector

Provided that if such an employment relationship in the

public service or in the public sector is terminated after it has lasted

for a period in excess of four years on the grounds that it had not

been made in accordance with the Constitution or with any law

which applies to employment in the public service or the public

sector, the employee whose employment has been so terminated

may claim compensation from his former employer and may for

this purpose refer his case to the Industrial Tribunal, within four

months from the date of the said termination, and if the Tribunal is

satisfied that the reason for the termination of the employment was

t ha t th e em p l o y m en t w as n o t m a d e i n a cco r d a n ce wi th th e

Constitution or with any other law referred to above, it shall grant

an award of compensation which is, in the opinion of the Tribunal,

sufficiently effective and constitutes a deterrent against abuse in

the recruitment process and, in any case, such compensation shall

be calculated as one month’s wages for each year in employment,

pr ov ided th at this am oun t sh all n ot be less th an an am oun t

equivalent to the total wages payable to such a person for a six

month period of employment.

(1) An employee may present a complaint to the Industrial

Tribunal that his employer has infringed a right conferred on him

by these regulations.

(2) Subject to the provisions of subregulation (3), the Industrial

Tribunal shall not consider a complaint under this regulation unless

it is presented within a period of four months, beginning from the

date of the less favourable treatment.

(3) Where an employee presents a complaint under this

regulation and the employer claims that the treatment is justified on

objective grounds, it shall be incumbent on the employer to prove

that the less favourable treatment is so justified on objective

grounds.

Any person contravening the provisions of these

regulations shall be guilty of an offence and shall, on conviction, be

liable to a fine of not more than one thousand and one hundred and

sixty-four euro and sixty-nine cents (1,164.69).