1995, Protection against Unjustified Dismissal: Scope of the instruments as regards individualsDescription:(General Survey) Convention:C158 Subject classification: Termination of Employment - Dismissal Recommendation:R166 Document:(Report III Part 4B) Session of the Conference:82 Subject: Employment security Display the document in: French Spanish Document No. (ilolex): 251995G03 Chapter II. Scope of the instruments as regards individuals 34. The Convention (Endnote 1) applies to all branches of economic activity and to all employed persons (Article 2, paragraph 1). These terms refer to all persons in an employment relationship. The Convention applies to both foreign and national employed persons. It also covers public servants, who may, however, be excluded from its scope under certain conditions; it should be noted that the very purpose of the Convention rules out its application to self-employed persons. (Endnote 2) Although the scope of the Convention is very broad, it does at the same time afford a great deal of flexibility: having laid down the principle of general application, it offers ratifying States the option of excluding certain types or categories of workers (Article 2, paragraphs 2 to 6). Such exclusions are based on the nature of the contract of employment or the category of workers concerned. The Committee points out that the exclusions may be made with respect to all or some of its provisions. However, the Convention makes this possibility of exclusion subject to adequate safeguards in the case of exclusions based on the nature of the contract of employment. It lays down procedures, conditions and criteria, including consultation with employers' and workers' organizations, for the exclusion of certain permitted categories of employed persons "in so far as necessary". The report form calls for precise information on the application of these flexibility clauses, since it is important to ensure that recourse to the possibilities of exclusion does not have the effect of avoiding the protection or unduly limiting the scope of the instruments. Exclusions based on the nature of the contract of employment 35. Under Article 2, paragraph 2, of the Convention, (Endnote 3) the following categories of employed persons may be excluded from all or some of its provisions: (a) workers engaged under a contract of employment for a specified period of time or a specified task; (b) workers serving a period of probation or a qualifying period of employment, determined in advance and of reasonable duration; (c) workers engaged on a casual basis for a short period. 36. Article 2, paragraph 3, of the Convention (Endnote 4) provides that adequate safeguards shall be provided against recourse to contracts of employment for a specified period of time the aim of which is to avoid the protection resulting from the Convention. (Endnote 5) From the information available, it is clear that workers engaged under the types of contracts referred to in Article 2(2) of the Convention generally do not enjoy the same protection as those employed under a contract of indeterminate duration. Workers engaged under a contract of employment for a specified period of time or a specified task 37. In many countries a distinction is drawn between contracts for a specified period or task and those of indeterminate duration, with the general rules governing unjustified dismissal often applying only to termination of the latter. (Endnote 6) In others, the general legislation on dismissal is applied, with special provisions concerning the amount of compensation to be paid if the contract is terminated by the employer before its expiry, (Endnote 7) in which case the employer may be obliged to pay damages to the worker. (Endnote 8) During the term of their contract, workers who are engaged under a contract for a specified period are generally in a better position as regards job security than those under a contract of indeterminate duration, since the normal dismissal procedures are not applicable. For example, in France, unless otherwise agreed by the parties, a contract of employment for a specified period may be terminated before its expiry only in the event of serious misconduct or force majeure. Case-law does not recognize economic difficulty as constituting force majeure; (Endnote 9) moreover, in the event of termination for serious misconduct, the provisions governing disciplinary measures apply, in particular the requirement for a preliminary interview. (Endnote 10) In other countries, workers engaged under a contract for a specified period may be dismissed with notice during the term of their contract for reasons identical to those applicable in the case of an employment relationship of indeterminate duration. (Endnote 11) Finally, in other countries, under certain conditions the legislation respecting unjustified dismissal even applies to the non-renewal of contracts for a specific period. (Endnote 12) 38. As regards contracts for a specified task, detailed provisions are sometimes laid down regarding the procedures for their conclusion and extension. Thus, for example, in Venezuela this type of contract must define in precise terms the task a worker is to perform. If, within a month of the completion of the contract for that task, the parties conclude a new contract, it will be understood that they intended to contract for an indeterminate duration from the outset of the relationship. (Endnote 13) Workers serving a period of probation 39. The purpose of a probation period is normally to enable the parties to make an assessment of the advantages resulting from the conclusion of an employment contract. As stated, for example, in the Labour Code of Senegal, "engagement on probation means that the employer and the worker, with a view to concluding a definitive contract ... decide beforehand to assess, inter alia, the first, the quality of the worker's services and output, and the second, the conditions of work, life, remuneration, safety and health and the social climate". (Endnote 14) During this period, the worker has to demonstrate his professional abilities; it is a period of insecurity which should not be unduly prolonged. (Endnote 15) 40. The Convention allows workers serving a period of probation to be excluded from its protection on condition that such period is determined in advance and is of reasonable duration. During the preparatory work, it was pointed out that the periods considered reasonable varied considerably from one country to another and sometimes from one category of workers to another and that it was therefore not possible to define the concept of "reasonable duration". It is for each country ratifying the Convention to determine the periods considered to be reasonable, subject to the requirement that this determination is made in good faith. (Endnote 16) It follows from the concept itself of a probation period that it should be limited in time. The Convention requires that the duration be determined in advance, in particular so that the worker is aware of the conditions under which he is engaged, and so that the period cannot be unduly prolonged. It should also be pointed out that collective agreements sometimes fill in the gaps left by legislative provisions, in particular where there are no general provisions concerning the probation period. Where the provisions of legislation or collective agreements allow renewal of the probation period, the total duration must be reasonable and determined in advance. 41. Workers employed for a probation period are often excluded from the scope of the relevant provisions concerning termination of employment. (Endnote 17) The probation period laid down in national provisions varies for the most part from several weeks to several months, depending, in particular, on the nature of the job and the qualifications required. (Endnote 18) It is sometimes specified that the probation period cannot exceed a certain duration, including renewal. (Endnote 19) A contract for a probation period must generally be in writing, (Endnote 20) and the continuation of services after the expiry of the probation period without a new contract being drawn up is equivalent to the conclusion of a contract of indeterminate duration which takes effect on the date on which the probation period began, (Endnote 21) or, where the worker continues to work after the probation period, the contract is deemed to have been concluded on the date on which the probation period began. (Endnote 22) In some countries, a contract for a probation period cannot be concluded in certain circumstances. (Endnote 23) Workers serving a qualifying period of employment 42. The Convention also allows the exclusion of workers serving a qualifying period of employment required by national provisions in order to enjoy certain forms of protection. As in the case of the probation period, the Convention requires that this period be determined in advance and of reasonable duration. Such qualifying periods (Endnote 24) vary from one country to another, from a few months (Endnote 25) to several years. (Endnote 26) According to the Government of the United Kingdom, the qualifying period is normally two years. However, a person may make a complaint to an industrial tribunal without having completed the qualifying period in the case of dismissal on grounds of race (Great Britain), religious belief or political opinion (Northern Ireland), sex, marital status, trade union membership, non-membership or activities and, under the Trade Union Reform and Employment Rights Act of 1 July 1993, dismissal for raising health and safety concerns (in the case of representatives or other workers recognized as having safety and health duties), for pregnancy or for having exercised the right to maternity leave, or, in general, for having sought in good faith to enforce a statutory employment protection right. The Trades Union Congress (TUC) stated in its comments that the latest reforms introduced in 1993 had been forced on the Government and, more specifically, as regards maternity-related dismissal, after a judgement of the Court of Justice of the European Communities found that dismissal for maternity-related reasons constituted sex discrimination. (Endnote 27) The TUC states that the qualifying period, which was six months in 1979, was extended to one, then to two years. According to the TUC, large numbers of workers are dismissed in the 51st week of the second year of the qualifying period and then re-employed several weeks later, so that they can never gain employment protection rights. This is why the TUC does not share the Government's view that the qualifying period helps maintain jobs. 43. It is for each country to determine within the spirit of the Convention what is reasonable. The Committee considers that an excessively long qualifying period may result in denial to a large number of workers of the protection laid down in the Convention. Workers engaged on a casual basis for a short period 44. Workers engaged on a casual basis for a short period may also be excluded. Such workers are sometimes treated in the same way as those engaged under a contract for a specified period or a specified task. In some cases, these contracts are concluded to meet the temporary needs of the enterprise; sometimes legislation specifies that these must be activities other than normal activities and sets an upper limit on their duration. In Peru, for example, a casual contract, which is one of the types of temporary contracts, is defined as a contract concluded to meet temporary needs that are distinct from the normal activity of the workplace. (Endnote 28) Safeguards in the case of contracts of employment for a specified period 45. When workers are excluded from all or some of the provisions of the Convention under Article 2 (2), adequate safeguards shall be provided, in accordance with paragraph 3, against recourse to contracts of employment for a specified period of time the aim of which is to avoid the protection resulting from the Convention. (Endnote 29) 46. In many countries, provisions have been adopted to prevent recourse to successive contracts for a specified period as a means of avoiding the guarantees applicable to contracts of indeterminate duration. Some legislation contains one or more of the measures advocated by the Recommendation (Endnote 30) or provides for other forms of safeguards, sometimes in combination, such as provisions to the effect that contracts for a specified period cannot be used to fill permanent posts on a long-term basis. (Endnote 31) In countries where there are restrictions on the conclusion of contracts for a specified period, the cases in which such contracts may be concluded are often specified in a limitative list (Endnote 32) and relate to one or other of the cases set out in Paragraph 3(2) of the Recommendation. 47. As regards the nature of the work and the circumstances in which it is performed, contracts may generally be concluded in order to temporarily replace a permanent employee, (Endnote 33) for work that is of a temporary nature or for a specified task. (Endnote 34) Sometimes reference is made to activities that are traditionally carried out on a temporary basis, such as construction (Endnote 35) or seasonal work. (Endnote 36) In the Dominican Republic, however, seasonal contracts in the sugar industry are deemed to be contracts of indeterminate duration and are subject to the rules applicable to such contracts in the event of termination, except where otherwise provided in the legislation or collective agreement. (Endnote 37) 48. Sometimes contracts for a specified period are concluded in the event of a temporary increase in the activity of the enterprise (Endnote 38) or where made necessary by market conditions, the workload or excessive demand, even where the normal activity of the enterprise is concerned. (Endnote 39) 49. In a number of countries, the legislation allows the conclusion of contracts for a specified period if this is considered to be in the worker's interest, under the same terms contained in the Recommendation, (Endnote 40) to encourage the recruitment of workers, (Endnote 41) to provide employment to unemployed persons or offer additional training to enable the workers to acquire the necessary skills to become re-employed. (Endnote 42) This type of contract includes those known as re-entry contracts, job training and retraining contracts, job orientation contracts and skill acquisition contracts. 50. However, in a number of countries, where restrictions are placed on the use of contracts for a specified period in order to ensure that they are not misused, the provisions in force often limit the duration and renewal of contracts, and under certain conditions assimilate them to contracts of indeterminate duration, in particular when they have been renewed on one or more occasions. (Endnote 43) In Mali, the new Labour Code provides that the duration of such contracts cannot exceed two years, and that a worker cannot renew a contract for a specified period with the same enterprise more than twice. (Endnote 44) In this country, and in certain others, a contract for a specified period must be concluded in writing, failing which it is deemed to be of indeterminate duration. (Endnote 45) This is also the case in France, for example, where protection was strengthened in 1990: the contract must be drawn up in writing and must clearly indicate its purpose, failing which it is "deemed" to be of indeterminate duration. (Endnote 46) In this country, contracts for a specified period are prohibited in certain specific cases, such as the replacement of an employee whose contract was suspended as the result of a collective labour dispute, or to perform particularly hazardous work. (Endnote 47) In another country, where there is a two-year upper limit on contracts for a specified period, 30 days' advance notice must be given of termination of the contract, failing which the contract is deemed to be of indeterminate duration. (Endnote 48) 51. The bodies competent to hear workers' appeals may reclassify contracts for a specified period as contracts of indeterminate duration. In Cyprus, for example, the Industrial Disputes Court took into account criteria such as the total length of the period of service, whether or not the employee knew at the time of his engagement that his contract would be of fixed duration, extension of employment after the end of a fixed-term contract and the number of times the contract was renewed. (Endnote 49) 52. The Committee points out that, while a considerable number of countries make provision - sometimes in detail - for safeguards against recourse to contracts for a specified period aimed at avoiding the protection of the Convention, in others little, if any, restriction is placed on this type of contract, (Endnote 50) and new types of contract for a specified period have emerged in recent years. In Argentina, (Endnote 51) Spain and Peru, special forms of contract apply, for example, when a new activity is launched. In Spain, the duration of such contracts cannot exceed three years, but they can be extended for certain specified minimum periods. (Endnote 52) In Peru, the Employment Promotion Act distinguishes between nine categories of contracts of employment that are "subject to certain conditions". (Endnote 53) In addition, special provisions apply to contracts linked to the export of non-traditional products, contracts for work performed in export processing zones and under other special conditions. (Endnote 54) 53. The Committee notes that several workers' organizations have expressed concern at the growing tendency to use forms of contract for specified periods. The Central Organization of Finnish Trade Unions (SAK) states that current plans to amend the Contracts of Employment Act would not be in conformity with the instruments, and the Confederation of Unions for Academic Professionals (AKAVA) in Finland raised the problem of "chains" of fixed-term contracts, both to replace employees and for persons engaged for many years under contracts for a specified period, despite the fact that they carry out the same work. (Endnote 55) 54. During the examination of the application by Spain of the Convention, the Workers' members of the Committee on the Application of Standards, noting the large proportion of temporary contracts (more than one-third of total employment), considered that special attention should be given to the establishment of safeguards against abuse of this type of contract. (Endnote 56) 55. During the examination of the same case, the Employers' members of the Committee stated that the logic of the Convention consisted, on the one hand, of the possibility of excluding temporary contracts from its scope and, on the other, of requiring safeguards to be provided to prevent recourse from being had to such contracts to avoid the protection resulting from the Convention, but they considered that it would be difficult to determine how many temporary contracts would constitute a violation of this provision of the Convention. They noted further that the increasingly frequent use of temporary contracts seemed necessary in view of the changes in national economies. 56. The Committee points out that, although the presumption that contracts of employment were of indeterminate duration used to be the rule in many countries, it is now being called into question in many ways, and there has been a proliferation of new types of contract for a specified period. Some already existed, but were often of only limited character (for example, seasonal or casual work, etc.). Other types have emerged, for example, with the development of new activities or export processing zones. Some temporary or precarious contracts have been developed by employment policy measures, including training-cum-employment contracts and job training contracts, as the recession took hold in certain countries, competition grew fiercer and solutions were sought through increased employment flexibility. Contracts for a specified period therefore play a varying and somewhat ambiguous role: they can lead to recruitment or just as easily be a means of exclusion from stable employment. (Endnote 57) When they are misused, their use is likely to impair the protection provided for by the Convention. The Committee notes that there is a recent trend to substitute employment contracts by self-employment so as to avoid the protection under the Convention. It is for the supervisory bodies to ensure that neither the letter nor the spirit of the standard laid down in the Convention is violated. In general, the Committee can only hope that governments will base measures to increase the flexibility of employment relationships on a tripartite dialogue, taking into consideration the interests of the social partners (Endnote 58) and of society. Exclusion of certain categories of workers Persons working under special arrangements 57. Under Article 2(4) of the Convention, (Endnote 59) "in so far as necessary, measures may be taken by the competent authority or through the appropriate machinery in a country, after consultation with the organizations of employers and workers concerned, where such exist, to exclude from the application of this Convention or certain provisions thereof categories of employed persons whose terms and conditions of employment are governed by special arrangements which, as a whole, provide protection that is at least equivalent to the protection afforded under the Convention". 58. It is clear from the preparatory work for the Convention that the possibility of excluding these categories of employed persons from all or some of the provisions of the Convention was essentially intended for persons with the status of public servants, who in many countries enjoy job security that is at least equivalent to, or even greater than that of other employed persons. It should be pointed out in this connection that the texts initially proposed by the Office contained a reference to public servants as an illustration of the kind of category of employed persons that might be covered by this paragraph, but that this illustration was deleted in the first discussion of the text of the instruments by the competent Conference Committee, which considered that this provision was general in intent and that an example was unnecessary. (Endnote 60) It is worth mentioning that in one of the preparatory reports the Office had referred to other categories of workers governed by special rules concerning termination that provide equivalent guarantees, citing seafarers. (Endnote 61) 59. The Convention lays down a number of conditions for the possibility of excluding these categories of workers governed by special arrangements, in particular the obligation of consultation and the equivalence of their protection. (Endnote 62) 60. Thus, firstly, exclusion measures can only be taken after consultation with the organizations of employers and workers concerned, where such exist. Among other matters, consultation provides a means of assessing the "necessity" of the exclusion. In previous General Surveys, the Committee has clarified the meaning of the term "consultation". It has stated that "consultation" has a different connotation from mere "information" and from "codetermination". It has also pointed out that the views expressed in the course of consultations are not a form of participation in decision-making, but simply one stage in the process which leads to and assists in reaching a decision. It has also said that "consultation must be able to have some influence on the decision". (Endnote 63) 61. During the first discussion in the Conference Committee, the Office representative stated that the term requirement of consultation of the organizations of employers and workers concerned would not require the reopening of the legislative process when the matter was already covered by legislation adopted following appropriate consultation, but that consultation would be required in connection with ratification if a Convention was adopted and ratified. (Endnote 64) 62. Secondly, the workers excluded from the application of the Convention must be subject, as regards their conditions of employment, to special arrangements which as a whole provide protection that is at least equivalent to that afforded under the Convention, which presupposes the existence of special provisions that match or exceed as a whole the level of protection laid down in the Convention. It is for governments, in the first instance, to determine in good faith whether a particular category of employed persons enjoys different protection which as a whole is at least equivalent to that afforded under the Convention, subject to evaluation by the supervisory bodies of the ILO. 63. In fact, one of the categories of workers frequently excluded from general labour provisions and subject to special arrangements is found to be public employees, (Endnote 65) and in particular civil servants, whose conditions of employment are often governed by special legislative provisions (Endnote 66) or collective agreements, (Endnote 67) or by specific provisions, such as members of the armed forces, the police and magistrates. (Endnote 68) Among the different categories of public employees, civil servants who are governed by special conditions of service normally enjoy considerable job security; (Endnote 69) in some countries they are appointed "for life" (Endnote 70) after a probation period. Often they cannot be dismissed for incompetence without disciplinary proceedings. (Endnote 71) In countries where there is no general protection against dismissal for valid reasons, except for protection against dismissal for certain specified reasons, these civil servants may enjoy better protection. (Endnote 72) Other public employees are often covered by provisions identical to, or comparable with, those applied in other sectors of activity. 64. It should, however, be pointed out that the guarantees under special arrangements applicable to public servants are being eroded in an increasing number of countries due to budgetary constraints and restructuring geared to profitability, (Endnote 73) which is sometimes reflected in the applicable conditions of service, (Endnote 74) as also in incentives for voluntary resignation or retirement. (Endnote 75) 65. Seafarers are also often governed by special rules. (Endnote 76) However, they are sometimes less well protected than other workers against dismissal. When it is considered necessary to exclude them from the scope of the Convention and their conditions of service do not permit their exclusion under Article 2(4) (equivalent protection), their situation should be considered with reference to Article 2(5) (limited categories, special problems), which will be examined below. Workers in respect of whom special problems arise 66. Under Article 2(5) of the Convention, (Endnote 77) "in so far as necessary, measures may be taken by the competent authority or through the appropriate machinery in a country, after consultation with the organizations of employers and workers concerned, where such exist, to exclude from the application of this Convention or certain provisions thereof other limited categories of employed persons in respect of which special problems of a substantial nature arise in the light of the particular conditions of employment of the workers concerned or the size or nature of the undertaking that employs them". 67. During the drafting of the Convention, it was considered that a certain amount of flexibility was required, in particular to allow member States to exclude certain categories of workers to whom it was particularly difficult to extend certain aspects of the protection afforded by the Convention. The examples mentioned in this context included workers employed in small enterprises or family enterprises, managerial staff, workers who have reached the normal age of retirement, agricultural workers, apprentices, seafarers and domestic workers. Instead of seeking to determine the categories whose coverage presented difficulties for exclusion to be justified, it was considered preferable to include in the Convention a provision allowing, in general terms, the exclusion of limited categories of employed persons in respect of which special problems of a substantial nature might arise. (Endnote 78) Following an amendment submitted during the second discussion in the Conference Committee, mention was made of the kind of considerations that should be taken into account in determining whether special problems of a substantial nature might arise for different categories of workers. The criteria relate to special conditions of employment and to the size or nature of the enterprise. Of course, the fact that given categories of workers were mentioned during the preparatory work does not mean that these categories are necessarily excluded. The exclusion of a category of workers under Article 2(5) of the Convention must meet the conditions laid down in that paragraph and in paragraph 6 of the same Article. (Endnote 79) Thus, as in the case of the exclusions referred to in paragraph 4, the organizations of employers and workers concerned must be consulted before any measures of exclusion are adopted. 68. Sometimes the general provisions governing termination of employment, whether contained in general labour legislation or specific provisions, do not apply to certain categories of workers who may be subject to special provisions. This is the case, for example, of domestic workers, (Endnote 80) agricultural workers, (Endnote 81) family members, (Endnote 82) construction workers (Endnote 83) and seafarers. (Endnote 84) In some countries, persons in executive positions or positions of responsibility or trust are excluded. (Endnote 85) In Sweden, for example, employees who, having regard to their duties and conditions of employment, may be regarded as holding managerial or comparable positions, are excluded from the provisions of the Security of Employment Act. (Endnote 86) The Government stated that this provision has to be interpreted in a restrictive manner and that it refers to persons who, in practice, exercise the role of an employer and occupy a special position of trust in relation to the employer, even though, formally speaking, they are employees. The Labour Court found in several judgements that a company manager should benefit from a reasonable period of notice; according to the Government, heads of undertakings are well paid and have good conditions of service and it considers that their safeguards are at least equal to the protection afforded by the Convention. In Malawi, the application of the provisions of the Employment Act, which covers all economic activities, appears to be limited largely to employed persons in the lower income group. In Spain, the general labour legislation excludes certain workers and provides that certain employment relationships are of a special nature. (Endnote 87) 69. In several countries, the provisions of labour legislation or those relating to termination do not apply to small enterprises employing fewer than a specified number of workers. (Endnote 88) The Government of Germany stated that the provisions of the Protection against Dismissal Act do not normally apply to enterprises employing fewer than six workers and that this exception is based on a long historical tradition and reasons that are still valid today (in order to guarantee the operation of small enterprises, allow flexibility in responding to demand and take account of the fact that small enterprises are less able to bear administrative and economic costs). (Endnote 89) In this country there are also special provisions for religious institutions, (Endnote 90) which have the right to self-management within the limits of the law as it applies to everyone. According to the Government, this affects the rules governing dismissal and workers' representation. 70. Another category of workers mentioned during the preparatory work as being excluded in some countries from provisions affording protection against termination of employment were part-time workers. Protection of these workers against unfair dismissal was discussed at the 80th and 81st Sessions of the International Labour Conference in the context of the adoption of the instruments specifically dealing with this category of workers. The Part-Time Work Convention (No. 175) and Recommendation (No. 182), 1994, contain provisions intended to provide these workers with equivalent conditions to those of full-time workers as regards the termination of their employment relationship. 71. In many countries, the legislative provisions governing termination of employment do not draw a distinction between part-time and full-time workers, (Endnote 91) while in others certain thresholds must be met in order for the protection afforded by legislative provisions to apply. (Endnote 92) 72. In the United Kingdom, under the Employment Protection (Consolidation) Act 1978, workers employed between eight and 16 hours a week must work for the same employer for five years in order to acquire protection against unfair dismissal, rights to redundancy pay or appeal against unjustified dismissal. In a recent decision, the House of Lords ruled that the thresholds in respect of hours of work required of these part-time workers, the majority of whom are women, were in breach of European Community law because they amounted to indirect discrimination against women. (Endnote 93) Obligation to report 73. A member State which ratifies the Convention has to list in its first report submitted after ratification the categories of workers which may have been excluded in pursuance of paragraphs 4 and 5 of Article 2, giving the reasons for the exclusion. It has to state in subsequent reports the position of its law and practice regarding these categories and the extent to which effect has been given or is proposed to be given to the Convention in respect of such categories. 74. Article 2(6) allows governments to take account of future developments towards a reduction of the exclusions referred to in the first report, but it does not allow them subsequently to introduce new exceptions that were not in force at the time of the first report. In addition to affording the appropriate flexibility, the purpose of exception clauses in ILO Conventions is for member States to endeavour to gradually achieve broader application. (Endnote 94) In this respect, the Committee draws attention to the fact that the provision in Article 2(6) of the Convention does not cover exclusions from paragraph 2 of the same Article, which were discussed above in paragraphs 35 to 56 of this General Survey.
EndnotesEndnote 1See also Para. 2(1) of the Recommendation. ILC, 68th Session, 1982, Report V(2), p. 16. See also Para. 2(2) of the Recommendation. See also Para. 3(1) and (2) of the Recommendation. Paragraph 3(2) of the Recommendation gives examples of such safeguards. See below para. 46, note 30. For example: Cyprus, Gabon. For example: Portugal. For example: France: s. L.122-3-8 of the Labour Code. The Committee noted in a previous general survey that even if workers employed under contracts for a specified period or task are not covered by the relevant provisions during the currency of their contract, termination by the employer before expiration of the specified period or performance of the specified task generally entitles the worker to recover damages for breach of contract. ILC, 59th Session, 1974, Report III (Part 4B), para. 20. France: s. L.122-3-9 of the Labour Code and Cass. Soc., 28 Apr. 1986. France: ss. L.122-3-3, L.122-3-8 and L.122-4. For example: Brazil, Czech Republic. For example: United Kingdom. Venezuela: s. 75 of the Organic Labour Act of 1990. For example: Senegal: s. 39 of the Labour Code; Colombia: s. 76 of the Labour Code: the law defines the probation period as "the initial stage of the employment contract, whose purpose is to enable the employer to assess the worker's abilities and the latter to judge whether the working conditions suit him". For example, Brazil: the period of protection is limited to 90 days; France: in the absence of a contractual clause relating to the existence of a probation period, the contract must be considered as firm from the first day, except as provided otherwise in a collective agreement or by custom (Cass. Soc., 29 June 1959). ILC, 68th Session, 1982, Report V(2), p. 16. For example: Burkina Faso: s. 40 of the Labour Code, 1990; Finland: an employment relationship for a trial period may be terminated without valid grounds for rescission or termination, but not on discriminatory or irrelevant grounds; France: ss. L.122-4 and L.122-25 of the Labour Code: the rules governing termination of contracts of employment for an indeterminate period do not apply during the probation period. However, employers must not use the fact that a woman is pregnant as a ground for terminating her contract of employment during a period of probation; Portugal: s. 55 of Legislative Decree No. 64-A/89: during the probation period a contract may be terminated without the need for giving valid grounds and without compensation. For example, Colombia: s. 79 of the Labour Code: the period cannot exceed two months. In the case of contracts concluded for a specified period, it cannot exceed one-fifth of the term of the contract, up to a maximum of two months. In the case of successive contracts between the same employer and the same worker, a probation period can only be required for the first contract; Finland: between four and six months; the Central Organization of Finnish Trade Unions (SAK) emphasized the importance of not lengthening the trial period in the future; Hungary: s. 81 of Act No. 22 of 1992 to promulgate a Labour Code: 30 days; Senegal: The interoccupational collective agreement provides for periods varying between eight days and three months, depending on the category of worker. It may be renewed once, provided that the parties so agree in advance. For example: Gabon: ss. 27 and 28 of the Labour Code. For example: Colombia: s. 77 of the Labour Code; Ethiopia: s. 11(3) of Proclamation No. 42 of 1993; Senegal: s. 40 of the Labour Code. For example: Cameroon: s. 28(5) of Act No. 92/007 of 1992 to promulgate the Labour Code; Gabon: s. 29 of the Labour Code; Senegal: s. 42 of the Labour Code. For example: Ethiopia: s. 11(7) of Labour Proclamation No. 42 of 20 Jan. 1993. For example: Czech Republic: a contract for a probation period cannot be concluded in cases where the law forbids contracts for a specified period, i.e. for school graduates, young workers and workers with disabilities. During the preparatory work, the French term that was initially proposed - "période de stage" - was replaced by the term "période d'ancienneté requise". The English version, qualifying period, remained unchanged. Endnote 25 For example: Austria: s. 105(3) of the Works Constitution Act: six months; Germany: under s. 1 of the Protection against Dismissal Act, dismissal must be socially justified, but such protection only applies to contracts for an unspecified period that have lasted six months without interruption; Sri Lanka: 12 months. For example: Canada: It is one year under the Canada Labour Code and ten years in the Province of Nova Scotia; in the Province of Quebec, the period of continuous service has been reduced from five to three years. Webb v. EMO Air Cargo Ltd. (C.32/93). Peru: s. 103 of the Employment Promotion Act (Presidential Decree No. 003-93 TR of 22 Apr. 1993). This paragraph was proposed by a working party during the second discussion of the proposed Convention to replace a text that had been adopted by the Committee, consisting of adding at the end of Article 2(2)(a) the phrase "when, owing to the nature of the work to be effected, the employment relationship cannot be of indeterminate duration". The Recommendation refers to the same principle as the Convention and, in Paragraph 3(2) suggests a number of measures that may be taken for this purpose, such as: (a) limiting recourse to contracts for a specified period of time to cases in which, owing either to the nature of the work to be effected or to the circumstances under which it is to be effected or to the interests of the worker, the employment relationship cannot be of indeterminate duration; (b) deeming contracts for a specified period of time, other than in the cases referred to in clause (a) of this subparagraph to be contracts of employment of indeterminate duration; (c) deeming contracts for a specified period of time, when renewed on one or more occasions, other than in the cases mentioned in clause (a) of this subparagraph, to be contracts of employment of indeterminate duration. For example: Dominican Republic: ss. 26, 33 and 34 of the Labour Code of 1992: where the nature of the work is permanent, the contract is concluded for an unspecified period (however, there is no reason why the employer cannot undertake to use the workers' services for a specified period). Every contract is presumed to be of indeterminate duration, and the cases in which a contract may be concluded for a specified period are laid down in a limitative list and relate to the nature of the work, the worker's interests and temporary replacement of a permanent worker. France: ss. L.122-1, L.122-1-1 and L.122-2 of the Labour Code: a contract of employment for a specified period cannot have the aim or the effect of filling in the long term a position related to the normal and permanent activity of the enterprise. With certain exceptions, it can only be concluded for the performance of a specific temporary task and only in cases laid down in a limitative list. For example: Brazil, Dominican Republic, France. For example: Croatia: s. 12 of the law on basic employment rights; Dominican Republic: s. 33(2) of the Labour Code: "temporary replacement of a worker in the event of leave, annual leave or any other temporary absence"; Ethiopia: s. 10(2) of Labour Proclamation No. 42 of 1993: "replacement of a worker who is temporarily absent due to leave or sickness or other causes"; Spain: s. 15(1)(c), of the Worker's Charter, as amended: "when its purpose is to replace workers whose job is reserved, a contract must specify the name of the person replaced and the reason for the replacement". For example: Dominican Republic: s. 33(1) of the Labour Code: "if it is appropriate to the nature of the service to be performed"; Spain: s. 15(1)(a) of the Worker's Charter: collective agreements may identify specified work for this purpose. For example: Canada (Provinces of Alberta and British Columbia); Venezuela. Conversely, in the Philippines, construction workers may be considered as regular employees where their aggregate period of continuous employment is at least one year and no "day certain" has been agreed upon. In this case they enjoy security of employment and are entitled to severance pay (Department Order No. 19 of 1993: Guidelines governing the employment of workers in the construction industry). For example: Croatia; France: s. L.122-1-1, para. 3, of the Labour Code: seasonal jobs or for jobs, in certain sectors determined by decree or to which a collective agreement has been declared applicable, in which it is regular practice not to resort to contracts of indeterminate duration on account of the nature of the activity carried out and the temporary nature of the jobs themselves. ss. 29 and 30 of the Labour Code. For example: Burundi: s. 26 of Legislative Decree No. 1/037 of 7 July 1993 to revise the Labour Code: the list of cases in which contracts for a specified term may be concluded is not limitative; for example, such contracts may be concluded in the event of an exceptional or unusual increase in work; Cameroon: s. 25(4)(b) of Act No. 92/007 of 14 Aug. 1992 to promulgate the Labour Code: in order to deal with a cyclical and unforeseen increase in the activities of the enterprise or to perform urgent work to avert imminent accidents, organize rescue work or undertake repairs on equipment, plant or buildings of the enterprise involving a hazard for the workers; France: s. L.122-1-1, clause 2, of the Labour Code; Portugal. For example: Spain: s. 15(1)(b) of the Worker's Charter: the six-month upper limit on a contract in any period of 12 months may be changed by collective agreement. For example: Dominican Republic: s. 33(3) of the Labour Code. For example: Portugal. For example: France: s. L.122-2 of the Labour Code. For example: Russian Federation: s. 30 of the Labour Code: if, upon expiry of an employment contract, the employment relationship continues in practice and neither of the parties has asked for it to be terminated, the validity of the contract is deemed to be of indeterminate duration; Tunisia: s. 17 of the Labour Code: when, upon expiry of the agreed term, the worker continues to perform his services without any objection from the other party, the contract is converted to a contract of indeterminate duration. Mali: ss. L.20 and L.21 of Act No. 92-020 of 23 Sep. 1992 to promulgate a Labour Code; Cameroon: s. 25(1)(a) and (3) of Act No. 92/007 of 14 Aug. 1992 to promulgate the Labour Code: the contract is concluded for a two-year term and may be renewed for the same period; if the worker is a Cameroon national, it cannot be renewed more than once with the same enterprise. Once this renewal has expired and if the employment relationship continues the contract becomes a contract of indeterminate duration; France: ss. L.122-1-2 and L.122-3-10 of the Labour Code: the maximum duration of the contract, including renewal, cannot exceed 18 months, except in specified cases; if the contractual relationship continues after the term of the contract has expired, it becomes a contract of indeterminate duration; Madagascar: s. 23 of the Labour Code: after two successive renewals, without any interruption of work, the contract becomes a contract of indeterminate duration; Spain: s. 15(3) of the Worker's Charter: temporary contracts concluded in circumvention of the law are deemed to be of indeterminate duration. Mali: op. cit., s. L.21. France: s. L.122-3-1 of the Labour Code (as amended by Act No. 90-613 of 12 July 1990): these provisions were enacted in order to protect the employee, who alone is entitled to bring a complaint in the event of non-observance (Cass. Soc., 22 June 1994). France: s. L.122-3 of the Labour Code; Germany: in Germany specific reasons are required for the conclusion of a contract for a specified period. Ecuador: s. 184 of the Labour Code, as amended by Act No. 133 of 1991. Tunisia: case-law has adopted a restrictive attitude to the definition of a contract for a specified period. For example, Colombia: s. 46 of the Labour Code, as amended by Act No. 50/90: a contract of determinate duration, which must always be in writing, cannot exceed three years although it may be renewed indefinitely. If the first contract has a term of under one year, it can be renewed three times for the same period, and subsequently only for a duration of over one year; Venezuela: s. 74 of the Organic Labour Act of 1990: a contract concluded for a specified period ends with the expiry of the agreed term and does not cease to be a contract for a specified period if it is extended. Argentina: s. 47 of the National Employment Act, No. 24013 of 1991. During the examination of the application by Spain of Convention No. 158 by the Committee on the Application of Standards of the International Labour Conference, the Spanish Government stated that all contracts have to meet a specific purpose and be concluded in writing and that they are redefined as contracts of indeterminate duration in the event of failure to adhere to the formalities, requirements and purposes laid down, and that the conversion of temporary contracts into contracts of indeterminate duration is encouraged. The legislative framework and information system are as detailed as possible in order to prevent misuse of temporary contracts. ILC, 81st Session, 1994, Provisional Record, p. 25/122. Temporary contracts (contract to set up or launch a new activity, contract to meet market demand, contract for the restructuring of an enterprise); incidental contracts (casual contract, replacement contract, emergency contract); contract for a task or service (contract for a specific task or service, intermittent contract and seasonal contract), ss. 96-117 and s. 125 of the Employment Promotion Act (Consolidation). Peru: ss. 123, 124 and 125 of the Employment Promotion Act. Moreover, any other type of service subject to special provisions may be contracted where it is of a temporary nature and of a duration adapted to the service to be performed. Finland; Mauritius: the provisions of the Labour Act do not apply to export processing zones except in the case of unjustified dismissal. New sectors were integrated into the export processing zone sector by the Industrial Expansion Act, 1993. ILC, 81st Session, 1994, Provisional Record, p. 25/123. For a detailed discussion of this subject, see France: Travail et emploi, Nos. 52/1992 and 58/1994. In an opinion dated 23 Feb. 1994 concerning industrial accidents and occupational diseases, the French Economic and Social Council examines certain occupational accident risk factors, noting among other things that persons employed under contracts for a specified period or on temporary assignments are, on the whole, more exposed to occupational risks than others. Liaisons sociales, 18 Aug. 1994. See also Para. 2(3) of the Recommendation. ILC, 67th Session, 1981, Record of Proceedings, p. 33/4. ILC, 67th Session, 1981, Report VIII(2), p. 24, and ILC, 68th Session, 1982, Report V(2), p. 17; however, see also below, paras. 65 and 68. As regards the obligation to report, see below, paras. 73-74. ILC, 79th Session, 1992, Report III (Part 4B), para. 191. ILC, 67th Session, Geneva, 1981, Record of Proceedings, p. 33/5. For example: Burkina Faso. For example: Argentina, Belgium, Chile, Ethiopia, France, Germany, Hungary, Kuwait, Luxembourg, Spain, United States. For example: Denmark, Finland. For example: Ethiopia (armed forces, police, magistrates), Niger (military, magistrates of the judiciary). For example: Mexico. For example: Belgium; Luxembourg. Moreover, in the latter country the contracts of non-permanent public employees cannot be terminated once they have reached the age of 35 years and have a total of ten years of service. For example: Belgium; Luxembourg. For example: United States: a federal employee can only be dismissed for reasons linked to the efficiency of the service and specific procedures must be followed. The constitutional and legislative provisions applicable to the public service afford better protection to public employees than to workers in the private sector; the former are also covered by provisions prohibiting dismissal for certain reasons. See in this respect: ILO: Report I, Joint Committee on the Public Service, Fifth Session, 1994, pp. 58-60. For example: Niger: s. 53 of Ordinance No. 89-18 of 8 Dec. 1989 to promulgate the general conditions of service of the public service: in addition to dismissal in the event of loss of nationality or civic rights, physical incapacity, incompetence or refusal to take up the assigned post, persons can also be dismissed for "elimination of the post under the legislative provisions governing redundancies", which provide, inter alia, for notice and compensation to the persons concerned; Hungary: s. 30 of Act No. XXXIII of 1992 on the conditions of service of public servants: in addition to reasons related to ability, conduct and age, termination may take place when the activity for which the employee was recruited is discontinued or when it is impossible to maintain employment because of parliamentary, government or ministerial measures affecting the employer. For example: Spain: under Act No. 22/1993 of 29 Dec. 1993, "employment plans" were introduced in the public service, providing, inter alia, for redeployment and mobility as essential tools of human resource policy in the administration. Supplementary measures were introduced, such as the encouragement of voluntary early retirement and phased cessation of activity, bringing more flexibility into the legal framework governing the public service. For example: Norway: in particular, the Seamen's Act No. 18 of 1975, as amended: a seafarer can only be dismissed on the basis of certain factors related to his or her service; termination on the ground of pregnancy is prohibited; seafarers are entitled to the remedies that are generally applicable before the industrial disputes tribunal and may receive compensation in the event of unfair dismissal. The Seamen's Act does not generally allow the conclusion of contracts for a specified period, which would undermine job security. See also Para. 2(4) of the Recommendation. ILC, 68th Session, 1982, Report V(2), p. 18, and ILC, 68th Session, 1982, Record of Proceedings, p. 30/4. See below, paras. 73-74. For example: Republic of Korea: s. 10 of the Labour Standards Act, Law No. 286/1953, as amended; Portugal: Legislative Decree No. 235/92: domestic workers are governed by special provisions; Singapore: s. 2 of the Employment Act (Ch. 122); Swaziland: s. 2 of the Employment Act 1980; Sweden: s. 1 of the Security of Employment Act of 24 Feb. 1982; Venezuela: s. 275 of the Organic Labour Act; in France, on the other hand, in a recent judgement the Court of Cassation ruled that the provisions of the Labour Code relating to dismissal (genuine and serious cause) apply to household staff (Cass. Soc., 13 Jan. 1994). Portugal: according to the Government, following several legislative amendments, the general provisions governing contracts of employment are considered as no longer applicable to agricultural work; a legal position has not yet been reached on this subject; however, a Decree of 1979 provides that the general provisions apply to termination of the employment relationship. For example: Republic of Korea; Spain: only members of the immediate family are excluded and only if there is no evidence that they are paid a wage; Sweden. For example: Venezuela: s. 75 of the Organic Labour Act, 1990. For example: Norway; Portugal: for merchant ships, seafarers are covered by Legislative Decree No. 74/73; for other ships (fishing vessels), they are covered by collective agreements. For example: Australia: s. 170 CD of the Australian Industrial Relations Act, 1988: in Australia difficulties have been experienced when significant numbers of high-earning employees not covered by awards had their services terminated and they successfully sought and obtained large compensatory awards from industrial tribunals. This trend led to legislation which excluded non-award employees earning in excess of $60,000 per year from being eligible for industrial relief, although common law remedies would still be available, if applicable; Ethiopia; Singapore: s. 2 of the Employment Act. Sweden: s. 1 of the Security of Employment Act of 24 Feb. 1982. Spain: the persons excluded include, in particular, public servants, work performed on a friendly basis and all other work that is performed within a relationship other than that lying within the scope of the legislation. Employment relationships considered to be of a special nature include those of executive staff, domestic workers, professional sportspersons and performers; their employment relationship must conform to the fundamental principles of the Constitution. For example: Austria: the provisions relating to protection against dismissal are incorporated in the Works Constitution Act and therefore only cover the workers who fall within the scope of this Act; Republic of Korea: the provisions of the Labour Standards Act may be extended to enterprises continuously employing fewer than four workers; Sri Lanka: the Termination of Employment of Workmen (Special Provisions) Act, No. 45 of 1971, does not apply to enterprises employing fewer than 15 workers. See also below: ratification prospects (Ch. VIII). Germany: article 140 of the Constitution, read together with article 137, para. 3, of the Weimar Constitution; decision of the Federal Constitutional Court dated 4 June 1985. For example: Belgium, France, Germany, Greece, Luxembourg, Netherlands, Norway, Sweden. For example: Austria; Ireland. For a detailed examination of national situations, see Part-time work, Report V(1), ILC, 80th Session, 1993; see also ILO: "Part-time work", in Conditions of Work Digest, Vol. 8, No. 1, 1989. United Kingdom: R v. Secretary of State for Employment, ex parte Equal Opportunities Commission and another (1994) 2 WLR 409; (1994) 1 All ER 910. According to the TUC, women working between eight and 16 hours a week may now seek to establish a claim for unfair dismissal; the situation of those working fewer than eight hours a week remains unclear and that of men appears to call for the adoption of legislation. Similar provisions are contained in Conventions Nos. 131, 132 and 138. Earlier Conventions generally provided that member States should state any optional exclusions in a declaration appended to their ratification. The wording used in the above Conventions and Convention No. 158 introduced greater flexibility, since the declaration is only required when the first report is submitted.
Finland: Contracts of Employment Act Germany: Protection against Dismissal Act Mali: Labour Code Malawi: Employment Act Senegal: Labour Code Sweden: Security of Employment Act United Kingdom: Trade Union Reform and Employment Rights Act of 1 July 1993, Employment Protection (Consolidation) Act 1978
Cross references
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