ECJ update April 2010

10 May 2010

Judgment in Zentralbetriebsrat der Landeskrankenhauser Tirols v Land Tirol (C-486/08)
22 April 2010, First Chamber (Part-time workers – Equal treatment – Entitlement to leave)

Background
The Austrian court made a reference to the Court in order to know whether Austrian legislation on part-time workers complies with the EU Directives on part-time work, fixed-term work and on equal treatment at work between men and women. The court asked first whether these Directives allow those contracted to work less than 12 hours per week to be treated differently to full-time workers with respect to pay, leave, overtime payments and so on. Secondly it asked whether different treatment under casual or short-term contracts breaches the rules on fixed-term work. Finally it asked whether there is indirect discrimination on grounds of sex when those who use their statutory entitlement to two years' parental leave are necessarily deprived of their entitlement to annual leave.
Judgment
First the Court held that it is contrary to EU law for a worker who reduces his working hours from full-time to part-time to suffer a reduction in the right to paid annual leave which he accumulated but was not able to exercise while working full-time. Similarly it is contrary to EU law if he can only take that leave with a reduced level of holiday pay. Secondly, the Court held that it is contrary to EU law to exclude from the scope of the law on fixed-term work those employed under a fixed-term contract of a maximum duration of six months or on a casual basis. Finally the Court concluded that it is contrary to EU law for workers who exercise their right to two years' parental leave to lose, following that leave, their right to paid annual leave accumulated during the year preceding the birth of their child.

Read the judgment here.

Gisela Rosenbladt v Oellerking Gebäudereinigungsges.mbH (C-45/09)
28 April 2010, Advocate General Trstenjak
Age discrimination – Collective agreements – Retirement

Background
This preliminary reference from the German courts is another in a line of cases seeking to determine the boundaries of EU age discrimination legislation in relation to compulsory retirement. Mrs Rosenbladt was employed by the defendant cleaning company to clean army barracks. In May 2008 her employer sent her a letter terminating her employment at the end of that month on the grounds that she would reach the age of 65, the legal retirement age. Mrs Rosenbladt refused to accept this and challenged the decision. A collective agreement concerning the cleaning sector, which provides for the termination of contracts at the official age of retirement, was declared to be of general application by the federal minister for work in 2004. The German court asks whether the law allowing collective agreements to set such retirement ages remains valid in light of the implementation of Directive 2000/78, which outlaws various forms of discrimination in the workplace including that based on age, and its Article 6 which provides for exceptions to this.
Opinion
The Advocate General concluded that it was possible for a collective agreement to specify a retirement age provided that this was provided for specifically in the national legislation or that the Directive was to be implemented by way of collective agreement in accordance with Article 18 of the Directive. In conferring such responsibilities on the social partners through national legislation the legislature must be pursuing the objectives of employment policy and the fight against unemployment. As such, before setting any age limits the social partners must ensure that they can be justified objectively according to the policy objectives sought and that this can be reviewed by a court. The Advocate General also concluded that an age limit set down in a collective agreement made before the Directive was to be implemented could be permitted. Before the Directive's deadline for implementation, the social partners must have considered whether the difference of treatment could be justified objectively in the sector in question. She noted that the agreement is not necessarily incompatible with Article 6 because of the existence of certain factors. These are that: the provisions of the agreement are not time limited; they do not prohibit other workers from being employed; they allow the employment relationship to be continued if both parties agree; and they do not take into account the level of entitlement to old age pensions.

Read the opinion here.

Reference in Pensionsversicherungsanstalt v Andrea Schwab (C-547/09)
Lodged 28 December 2009
Sex discrimination – Public pension schemes

Background
This reference seeks the Court's opinion on the extent to which direct discrimination on the grounds of sex against an employee of a public pension insurance fund might be justified. It goes on to ask whether the various pieces of EU legislation on equal treatment between mean and women at work (Directives 76/207, 97/80, 2002/73 and 2006/54) prohibit national legislation from allowing other social factors to be taken into consideration when considering direct discrimination. Alternatively it asks whether the law must only permit consideration of whether sex was the determining factor in the dismissal of the employee.

Read the reference here.