Wippel v Peek and Cloppenburg GmbH and Co. KG: ECJ 12 Oct 2004

ECJ Opinion – Directive 97/81/EC – Directive 76/207/EEC – Social policy – Equal treatment as between part-time and full-time workers – Equal treatment as between male and female workers – Working hours and organisation of working-time.
A part-time worker was engaged under a framework contract of employment which lasted in the event from October 1998 to June 2000, but under it the duration and scheduling of any work was determined by agreement (in practice from week to week) between the parties and she was paid on an hourly basis for any hours she was asked and agreed to work (plus sales commission on sales thereby achieved). Her contention was that she was discriminated against because her contract did not contain a fixed weekly working time with a predetermined salary, whether or not she did or did not work for the whole of that working time.
Held: That argument was dismissed. Advocate General (Kokott) stated: ‘Consequently, for the purposes of the Framework Agreement, the term ‘worker’ is not a Community law concept. Indeed, the personal scope of application of the Framework Agreement is defined by reference to the national law applicable in each case. The term ‘worker’ therefore has to be defined in reliance on the law, collective agreements and practices in force in each member state. The member states have wide discretionary powers in this respect. Only the very broadest limits can be determined in this respect by reference to Community law. It could therefore constitute a breach of the duty of co-operation (article 10 EC) if a member state were to define the term ‘worker’ so narrowly under its national law that the Framework Agreement on part-time work were deprived of any validity in practice and achievement of its purpose, as stipulated in Clause 1, were greatly obstructed. However, there is no sign of that here.’
Advocate General (Kokott)
[2005] IRLR 211, [2004] EUECJ C-313/02, [2005] ICR 1604, [2005] 1 CMLR 9
Bailii
Equal Treatment Directive (Council Directive 76/207/EEC, Directive 76/207/EEC, Directive 97/81/EC
European
Cited by:
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CitedO’Brien v Ministry of Justice SC 28-Jul-2010
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These lists may be incomplete.
Updated: 20 January 2021; Ref: scu.216593