BECTU is a union in the broadcasting, film, theatre, cinema, and related sectors; it has about 30,000 members who are sound recordists, cameramen, special effects technicians, projectionists, editors, researchers, hairdressers, make-up artistes amongst others.
The British legislation which implements the European working time directive of 1993, provides that entitlement to leave is conditional upon the person concerned having been continuously employed for 13 weeks by the same employer. Furthermore, it may not be replaced by a payment in lieu except where the employment is terminated.
The workers represented by BECTU are only employed on short term contracts which are often less than 13 weeks. As a result, they do not become entitled to the right to annual leave under British law.
BECTU brought an action against the Secretary of State for Trade and Industry for the annulment of this British legislation. The High Court is asking the Court of Justice if the European directive allows a Member state to prescribe that a worker's entitlement to paid annual leave does not begin to accrue until the worker has completed a qualifying period with the same employer.
According to the Advocate General, the right to paid annual leave is a fundamental social right; this is stated in various international instruments and is enshrined in the Charter of Fundamental Rights of the European Union of 7 December 2000. The Advocate General underlines that the purpose of the Charter, where its provisions allow, is a substantive point of reference for all those involved in the Community context.
The Advocate General adds that the right to annual leave does not only concern the individual worker but corresponds to a general social interest for the health and safety of workers; therefore it is an automatic and unconditional right which does not fall within the derogations allowed for in the directive in other circumstances.
The aim of the directive is the harmonisation and improvement of the working environment. It provides for minimum requirements; the Member states may only go beyond those standards in a way that is favourable to workers. These minimal standards cannot be subordinated to purely economic considerations.
The Advocate General firstly points out that the directive recognises that the right to leave is in accordance with the the conditions for entitlement to and the granting of such leave under the national legislation of each Member state. However, this can only relate to the organisational and procedural aspects; it cannot have the effect of precluding the existence of the right itself.
Secondly, according to the Advocate General, the British law is prejudicial to workers who have contracts of less than 13 weeks: as they do not have any leave entitlement, they will not be able to claim payment of the allowance which according to the directive must be paid in lieu of leave to a worker who is entitled leave in the event of premature termination of the employment relationship. The worker who ends the working relationship before the period of 13 weeks will be granted neither the period of leave so far accrued nor the allowance in lieu.
Therefore, on the basis of these arguments, the Advocate General considers that the British law is unlawful.
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It is the duty of the Advocate General to assist the Court of Justice by delivering reasoned Opinions containing a proposal as to the way in which the Court of Justice should, in his view, resolve the case before it. The Advocate General acts with complete impartiality and independence; the Court of Justice is not bound by the Advocate General's Opinion.
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