Fixed-Term Contracts
Protection of Employees (Fixed-Term Work) Act 2003
REVISED
Updated to 1 October 2015
PART 1
PRELIMINARY AND GENERAL
Short title.
1.—This Act may be cited as the Protection of Employees (Fixed-Term Work) Act
2003.
Interpretation.
2.—(1) In this Act, unless the context otherwise requires—
“Act of 2001” means the Protection of Employees (Part-Time Work) Act 2001;
“associated employer” shall be read in accordance with subsection (2);
“collective agreement” means an agreement by or on behalf of an employer on the
one hand, and by or on behalf of a body or bodies representative of the employees
to whom the agreement relates on the other hand;
“comparable permanent employee” shall be read in accordance with section 5;
“conditions of employment” includes conditions in respect of remuneration and
matters relating thereto (and, in relation to any pension scheme or arrangement,
includes conditions for membership of the scheme or arrangement and entitlement
to rights thereunder and conditions related to the making of contributions to the
scheme or arrangement);
“contract of employment” means a contract of service whether express or implied
and, if express, whether oral or in writing but shall not include a contract whereby
an individual agrees with another person, who is carrying on the business of an
employment agency within the meaning of the Employment Agency Act 1971 and is
acting in the course of that business, to do or perform personally any work or service
for a third person (whether or not the third person is a party to the contract);
“employee” means a person of any age, who has entered into or works under (or,
where the employment has ceased, entered into or worked under) a contract of
employment and references, in relation to an employer, to an employee shall be
construed as references to an employee employed by that employer and, for the
purposes of this Act, a person holding office under, or in the service of, the State
(including a civil servant within the meaning of the Civil Service Regulation Act 1956)
shall be deemed to be an employee employed by the State or Government, as the
case may be, and an officer or servant of a local authority, a harbour authority, the
Eastern Regional Health Authority, the Northern Area Health Board, the East Coast
Area Health Board or the South-Western Area Health Board F1[or health board or a
member of staff of an education and training board,] shall be deemed to be an
employee employed by the authority F1[or board], as the case may be;
“employer” means, in relation to an employee, the person with whom the employee
has entered into or for whom the employee works under (or, where the employment
has ceased, entered into or worked under) a contract of employment;
“fixed-term employee” means a person having a contract of employment entered into
directly with an employer where the end of the contract of employment concerned
is determined by an objective condition such as arriving at a specific date, completing
a specific task or the occurrence of a specific event but does not include—
(a) employeesin initial vocationaltraining relationships or apprenticeship schemes,
or
(b) employees with a contract of employment which has been concluded within
the framework of a specific public or publicly-supported training, integration
or vocational retraining programme;
“Framework Agreement” means the Framework Agreement on fixed-term work
concluded by ETUC, UNICE and CEEP annexed to Directive No. 1999/70/EC of 28 June
1999 of the Council of the European Communities;1
F2[‘local authority’ means a local authority for the purposes of the Local Government
Act 2001 (as amended by the Local Government Reform Act 2014);]
“Minister” means the Minister for Enterprise, Trade and Employment;
“permanent employee” means an employee who is not a fixed-term employee;
“prescribed” means prescribed by regulations made by the Minister under this Act;
“relevant fixed-term employee” shall be read in accordance with section 5;
“remuneration”, in relation to an employee, means—
(a) any consideration, whether in cash or in kind, which the employee receives,
directly or indirectly, from the employer in respect of the employment, and
(b) any amounts the employee will be entitled to receive on foot of any pension
scheme or arrangement;
“renewal” includes extension and cognate words shall be read accordingly;
“year” means any period of 52 weeks.
(2) Employers are deemed to be associated if—
(a) one is a body corporate of which the other (whether directly or indirectly) has
control, or
(b) both are bodies corporate of which a third person (whether directly or indirectly)
has control.
(3) A word or expression that is used in this Act and is also used in the Framework
Agreement has, unless the contrary intention appears, the same meaning in this Act
as it has in the Framework Agreement.
(4) In this Act—
(a) a reference to a Part or section is a reference to a Part or section of this Act
unless it is indicated that reference to some other enactment is intended,
(b) a reference to a subsection, paragraph or subparagraph is a reference to the
subsection, paragraph orsubparagraph of the provision in which the reference
occurs, unless it is indicated that reference to some other provision is
intended, and
(c) a reference to any enactment shall be construed as a reference to that enactment
as amended, adapted or extended by or under any subsequent enactment
(including this Act).
Regulations
3.—(1) The Minister may make regulations prescribing any matter or thing which
is referred to in this Act as prescribed or to be prescribed or for the purpose of
enabling any provision of this Act to have full effect.
(2) Regulations under this Act may make different provisions in relation to different
classes of employees or employers, different areas or otherwise by reference to the
different circumstances of the matter.
(3) A regulation or order under this Act may contain such incidental, supplementary
and consequential provisions as the Minister considers necessary or expedient.
(4) The Minister may by order amend or revoke an order under this Act (including
an order under this subsection).
(5) A regulation or order under this Act shall be laid before each House of the
Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation
or order is passed by either such House within the next 21 days on which that
House has sat after the regulation or order is laid before it, the regulation or order
shall be annulled accordingly, but without prejudice to the validity of any thing
previously done under the regulation or order.
Expenses. 4.—
Expenses incurred by the Minister in the administration of this Act shall, to such
extent as may be sanctioned by the Minister for Finance, be paid out of monies
provided by the Oireachtas.
PART 2
FIXED-TERM WORK AND RIGHTS OF FIXED-TERM EMPLOYEES
Comparable permanent employee.
5.—(1) For the purposes of this Part, an employee is a comparable permanent
employee in relation to a fixed-term employee if—
(a) the permanent employee and the relevant fixed-term employee are employed
by the same employer or associated employers and one of the conditions
referred to in subsection (2) is satisfied in respect of those employees,
(b) in case paragraph (a) does not apply (including a case where the relevant
fixed-term employee is the sole employee of the employer), 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 type of employee who is to be regarded for the purposes of this Part as
a comparable permanent employee in relation to the relevant fixed-term
employee, or
(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the
same industry or sector of employment as the relevant fixed-term employee
and one of the conditions referred to in subsection (2) is satisfied in respect
of those employees,
and references in this Part to a comparable permanent employee in relation to a
fixed-term employee shall be read accordingly.
(2) The following are the conditions mentioned in subsection (1)—
(a) both of the employees concerned perform the same work under the same or
similar conditions or each is interchangeable with the other in relation to
the work,
(b) the work performed by one of the employees concerned is of the same or a
similar nature to that performed by the other and any differences between
the work performed or the conditions under which it is performed by each,
either are of small importance in relation to the work as a whole or occur
with such irregularity as not to be significant, and
(c) 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.
Conditions of employment for fixed-term employees.
6.—(1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect
of his or her conditions of employment, be treated in a less favourable manner than
a comparable permanent employee.
(2) If treating a fixed-term employee, in respect of a particular condition of
employment, in a less favourable manner than a comparable permanent employee
can be justified on objective grounds then that employee may, notwithstanding
subsection (1), be so treated.
(3) A period of service qualification relating to a particular condition of employment
shall be the same for a fixed-term employee as for a comparable permanent
employee except where a different length of service qualification is justified on
objective grounds.
(4) For the avoidance of doubt, the reference in this section to a comparable
permanent employee is a reference to such an employee either of the opposite sex
to the fixed-term employee concerned or of the same sex as him or her.
(5) Subsection (1) shall, in so far, but only in so far, as it relates to any pension
scheme or arrangement, not apply to a fixed-term employee whose normal hours of
work constitute less than 20 per cent of the normal hours of work of a comparable
permanent employee.
(6) The extent to which any condition of employment referred to in subsection (7)
is provided to a fixed-term employee for the purpose of complying with subsection
(1) shall be related to the proportion which the normal hours of work of that
employee bears to the normal hours of work of the comparable permanent employee
concerned.
(7) The condition of employment mentioned in subsection (6) is a condition of
employment the amount of benefit of which (in case the condition is of a monetary
nature) or the scope of the benefit of which (in any other case) is dependent on the
number of hours worked by an employee.
(8) For the avoidance of doubt, neither this section nor any other provision of this
Act affects the operation of Part III of the Organisation of Working Time Act 1997.
Objective grounds for less favourable treatment.
7.—(1) A ground shall not be regarded as an objective ground for the purposes of
any provision of this Part unless it is based on considerations other than the status
of the employee concerned as a fixed-term employee and the lessfavourable treatment
which it involves for that employee (which treatment may include the renewal of a
fixed-term employee’s contract for a further fixed term) is for the purpose of
achieving a legitimate objective of the employer and such treatment is appropriate
and necessary for that purpose.
(2) Where, as regards any term of his or her contract, a fixed-term employee is
treated by his or her employer in a less favourable manner than a comparable
permanent employee, the treatment in question shall (for the purposes of section
6(2)) be regarded as justified on objective grounds, if the terms of the fixed-term
employee’s contract of employment, taken as a whole, are at least as favourable as
the terms of the comparable permanent employee’s contract of employment.
Written statements of employer.
8.—(1) Where an employee is employed on a fixed-term contract the fixed-term
employee shall be informed in writing as soon as practicable by the employer of the
objective condition determining the contract whether it is—
(a) arriving at a specific date,
(b) completing a specific task, or
(c) the occurrence of a specific event.
(2) Where an employer proposes to renew a fixed-term contract, the fixed-term
employee shall be informed in writing by the employer of the objective grounds
justifying the renewal of the fixed-term contract and the failure to offer a contract
of indefinite duration, at the latest by the date of the renewal.
(3) A written statement under subsection (1) or (2) is admissible as evidence in any
proceedings under this Act.
(4) If it appears to a rights commissioner or the Labour Court in any proceedings
under this Act—
(a) that an employer omitted to provide a written statement, or
(b) that a written statement is evasive or equivocal,
the rights commissioner or the Labour Court may draw any inference he or she or it
consider just and equitable in the circumstances.
Successive fixed term contracts.
9.—(1) Subject to subsection (4), where on or after the passing of this Act a fixedterm
employee completes or has completed his or her third year of continuous
employment with his or her employer or associated employer, his or her fixed-term
contract may be renewed by that employer on only one occasion and any such
renewal shall be for a fixed term of no longer than one year.
(2) Subject to subsection (4), where after the passing of this Act a fixed-term
employee is employed by his or her employer or associated employer on two or more
continuous fixed-term contracts and the date of the first such contract is subsequent
to the date on which this Act is passed, the aggregate duration of such contracts shall
not exceed 4 years.
(3) Where any term of a fixed-term contract purports to contravene subsection (1)
or (2) that term shall have no effect and the contract concerned shall be deemed to
be a contract of indefinite duration.
(4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment
for a fixed term where there are objective grounds justifying such a renewal.
(5) The First Schedule to the Minimum Notice and Terms of Employment Acts 1973
to 2001 shall apply for the purpose of ascertaining the period of service of an
employee and whether that service has been continuous.
Information on employment and training opportunities.
10.—(1) An employer shall inform a fixed-term employee in relation to vacancies
which become available to ensure that he or she shall have the same opportunity to
secure a permanent position as other employees.
(2) The information referred to in subsection (1) may be provided by means of a
general announcement at a suitable place in the undertaking or establishment.
(3) As far as practicable, an employer shall facilitate access by a fixed-term
employee to appropriate training opportunities to enhance his or her skills, career
development and occupational mobility.
Information and consultation.
11.—(1) Fixed-term employees shall be taken into account when calculating the
threshold above which employees’ representatives bodies may be constituted in an
undertaking in accordance with section 4 of the Transnational Information and
Consultation of Employees Act 1996.
(2) As far as practicable, employers shall consider providing information to
employees’ representatives about fixed-term work in the undertaking.
Voidance of certain provisions.
12.—Save as expressly provided otherwise in this Act, a provision in an agreement
(whether a contract of employment or not and whether made before or after the
commencement of the provision concerned of this Act) shall be void insofar as it
purports to exclude or limit the application of, or is inconsistent with, any provision
of the Act.
Prohibition of penalisation of employee by employer.
13.—(1) An employer shall not penalise an employee—
(a) for invoking any right of the employee to be treated, in respect of the
employee’s conditions of employment, in the manner provided for by this
Part,
(b) for having in good faith opposed by lawful means an act which is unlawful
under this Act,
(c) for giving evidence in any proceeding under this Act or for giving notice of his
or her intention to do so or to do any other thing referred to in paragraph
(a) or (b), or
(d) by dismissing the employee from his or her employment if the dismissal is
wholly or partly for or connected with the purpose of the avoidance of a
fixed-term contract being deemed to be a contract of indefinite duration
under section 9(3).
(2) For the purposes of this section, an employee is penalised if he or she—
(a) is dismissed or suffers any unfavourable change in his or her conditions of
employment or any unfair treatment (including selection for redundancy),
or
(b) is the subject of any other action prejudicial to his or her employment.
Enforcement
PART 3
ENFORCEMENT
F3[Decision of adjudication officer under section 41 of Workplace Relations Act
2015
14. A decision of an adjudication officer under section 41 of the Workplace Relations
Act 2015 in relation to a complaint of a contravention of this Act shall do one or more
of the following, namely—
(a) declare whether the complaint was or was not well founded,
(b) require the employer to comply with the relevant provision,
(c) require the employer to reinstate or reengage the employee (including on a
contract of indefinite duration), or
(d) require the employer to pay to the employee compensation of such amount
(if any) as the adjudication officer considers just and equitable having regard
to all of the circumstances, but not exceeding 2 years’ remuneration in respect
of the employee’s employment.]
F4[Decision of Labour Court on appeal from decision referred to in section 14
15. A decision of the Labour Court under section 44 of the Workplace Relations Act
2015, on appeal from a decision of an adjudication officer referred to in section 14,
shall affirm, vary or set aside the decision of the adjudication officer.]
Enforcement of determinations of Labour Court.
16.—F5[…]
Annotations
Amendments:
F5 Repealed (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 8(1) and sch. 2 part 1 ref. 17,
S.I. No. 410 of 2015, subject to transitional provisions in subs. (2).
PART 4
EXCLUSIONS AND OTHER PROVISIONS
Exclusion of certain types of contracts.
17.—This Act shall not apply to a contract where the employee is—
(a) a member of the Defence Forces,
(b) a trainee within the meaning of the Garda Síochána (Admissions and
Appointments) Regulations 1988 (S.I. No. 164 of 1988), or
(c) a nurse in training within the meaning of Parts III and IV of the Nurses Act
1985.
Limitation on relief.
18.—(1) If penalisation of an employee, in contravention of section 13(1), constitutes
a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to
2001, relief may not be granted to the employee in respect of that penalisation both
under Part 3 and under those Acts.
(2) An individual who is a fixed-term employee under this Act and a part-time
employee under the Act of 2001 may obtain relief arising from the same circumstances
under either, but not both, this Act or under Part 2 of the Act of 2001.
Amendment of Employment Agency Act 1971, Organisation of Working Time Act 1997 and Protection of Employees (Part-Time Work) Act 2001.