The proposed directive regulating traineeships must push the envelope on European Union social policy.
Traineeships are part and parcel of the transition from education to work. Trainees, however, are easily trapped on the labour market’s precarious edge. And traineeships exemplify how access to work has become increasingly individualised, placing responsibility on the individual to find work.
Be it due to lack of payment, exclusion from labour rights or weak bargaining power, trainees often fall outside labour regulation. And such regulation as there is varies greatly across the European Union. A European coalition has therefore called forthrightly for binding EU regulation to ensure traineeship quality—in particular, banning unpaid traineeships.
In March, the European Commission responded with a proposal for a directive ‘improving and enforcing working conditions of trainees and combating regular employment relationships disguised as traineeships’. The Council of the EU published a progress report on it last month and a council working party is set to discuss the proposal further this week.
The directive would complement a non-binding quality framework for traineeships which, since 2014, has promoted quality standards through the European Semester and uses EU funding as a lever for domestic regulatory alignment. The framework is itself up for revision.
Equal treatment and enforcement
The proposal understands trainees’ precarious labour-market position to originate in the absence of enforcement of their existing labour rights. It is framed as an equal-treatment and enforcement directive—focused neither on new trainee rights nor on traineeship-specific regulation (of learning rights, for instance) which the (non-binding) quality framework addresses.
Trainees who can be considered workers should thus receive equal treatment in respect of working conditions, including pay, unless a difference can be justified. The proposal also provides a minimum framework for domestic authorities to assess trainees’ worker status—whether they are arbitrarily excluded from equal treatment. Finally, it sets out enforcement rights, such as trainees’ right to be represented by worker representatives.
This approach could address some vulnerabilities, such as bogus traineeships disguising employment, deliberate exclusion of trainees from labour rights or problematic access to enforcement. The equal-treatment rule could even make unpaid traineeships non-viable. Workers generally receive remuneration. While reduced, possibly inadequate traineeship pay is still conceivable, it is difficult to imagine a suitable reason for not paying at all trainees who make any remotely economic contribution.
The initiative is nonetheless under criticism from a range of positions. The European Youth Forum questions its commitment to banning unpaid traineeships. The Youth Committee of the European Trade Union Confederation is concerned that the proposal may ‘leave the most vulnerable at risk of exploitation’.
The member states, conversely, seem inclined to exclude from the directive trainees ‘without an employment relationship’ and traineeships required to enter certain professions or as part of formal education. This would further reduce the proposal’s ambition—as would granting ‘more flexibility’ in the enforcement of trainees’ rights.
Vulnerabilities not addressed
Many vulnerabilities associated with trainees’ work relations are indeed not addressed in the proposal. First, its personal scope, or coverage, is too indeterminate. As with recent EU labour law, the proposal makes a hybrid reference to domestic definitions of work and the case law developed by the Court of Justice of the EU (ECJ). This may generally extend the initiative’s reach, as the court’s case law has often been more inclusive of trainees than domestic understandings. Still, the novel definition has not yet been judicially interpreted and, hence, leaves the question in the uncertain hands of future judges.
Secondly, the proposal’s equal-treatment rule may be inadequate to address the specific vulnerabilities attached to trainees’ work relations. Academic analysis of the fixed-term work directive underlines how equal-treatment rulescan fail to remedy precariousness and may still justify discriminatory and exclusive treatment. In this perspective, the proposal would neither address the inadequacy of traineeship pay nor remedy the vulnerabilities unique to traineeships—such as the weakened bargaining power of these ‘aspirational’ workers seeking to secure a future link to the labour market.
Thirdly, trainees’ concerns about enforcing labour rights underscore the challenge in the proposal’s framing as an enforcement directive. Will trainees be in a better position to vindicate their rights, in particular if the council removes the right to their representation by worker representatives?
EU competences
EU social policy is supposed to establish minimum standards for domestic regulation within the competence areas in article 153 of the Treaty on the Functioning of the EU, aimed at worker protection. These include working conditions—and so the unique vulnerabilities of the many traineeships that include a work element—and the integration of persons excluded from the labour market.
Moreover, the framework health-and-safety directive, adopted under article 153’s predecessor, defines its approach to worker protection as including trainees and apprentices. EU regulation may not harmonise domestic rules on training but, where a traineeship includes a work aspect, more ambitious regulation of this work relation should thus be possible.
The recent minimum-wages directive suggests an even stronger stance on unpaid traineeships. Pay regulation is in principle outside EU competence but the directive understands this exclusion as concerned with pay levels—not all regulation related to pay. Should this understanding pass its challenge in the ECJ, the EU may be entitled to regulate for the existence of traineeship pay.
The EU and its labour market stand at a critical juncture. Traineeships and other aspirational work define the next generation’s increasingly fragmented and somewhat precarious realities. Young workers will judge social Europe’s achievements on the quest for quality traineeships, which could propel future initiatives for decent youth employment.
EU regulation of traineeships must therefore reach the horizon of its possible social-policy ambition.
Marc Steiert is a research associate in the project ‘ShaPE—the Social Partners as shapers and makers of Social Europe' at the European University Institute in Florence. His PhD in European Union law from the EUI addressed the union’s regulatory framework for youth employment.