Considerations on COM(2024)132 - - Main contents
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| dossier | COM(2024)132 - . |
|---|---|
| document | COM(2024)132 |
| date | March 20, 2024 |
(2) The Council Recommendation on a European Framework for Quality and Effective Apprenticeships44 contains 14 criteria for quality and effective apprenticeships aiming to ensure that apprenticeship schemes are responsive to labour market needs and provide benefits to both learners and employers. These include criteria for learning and working conditions and criteria for framework conditions.
(3) The reinforced Youth Guarantee45 aims at ensuring that young people under the age of 30 receive a good quality offer of employment, continued education, apprenticeship or traineeship within a period of four months of becoming unemployed or leaving education. The 2014 Recommendation is an important reference point to measure the quality of traineeships offers under the reinforced Youth Guarantee.
(4) Labour shortages exist in many occupations and at all skills levels. They are expected to increase with the projected decline in the working age population and increasing demand for several occupations relevant for the green and digital transition. The lower labour market participation of young people contributes to these shortages. Quality traineeships can be a useful up- and/or reskilling pathway for persons of any age to acquire practical skills on the job to enter the labour market or take their career in a new direction.
(5) Traineeships can help young people gain practical and professional experience, improve their employability, and facilitate their transition into stable employment. As such, traineeships constitute an important pathway to the labour market. For employers, traineeships provide opportunities to attract, train and retain young people. They can reduce the cost of searching for and recruiting skilled staff, when trainees are offered a regular position after their traineeship. However, this can only be achieved if traineeships are of good quality and offer decent working conditions.
(6) Challenges persist regarding the problematic use of traineeships, including when regular employee positions are disguised as traineeships, depriving those workers of their full rights under Union law, national law and collective agreements and risking to trap them in precarious working conditions. Employment relationships disguised as traineeships distort competition between companies by putting compliant employers at a disadvantage, lead to the circumvention of employers' fiscal and social security obligations and to a substitution of permanent posts. In other cases, employers of ‘genuine’ trainees may not comply with all requirements stemming from Union law, national law, collective agreements or practice, depriving them of their full rights.
(7) Additionally, trainees are less likely to defend their rights due to their vulnerable positions in the labour market. The absence, complexity or diversity of regulatory frameworks for traineeships in various Member States alongside an insufficient enforcement of national legislation and the lack of capacity for controls and inspections, as well as a lack of clarity regarding the authority responsible for control and enforcement, are among the main factors leading to the problematic use of traineeships.
(8) Evidence shows that a significant proportion of trainees are subject to less favourable working conditions compared to regular employees, including regarding working hours, leave entitlements, and access to equipment as well as pay.
(9) At Union level, existing legal instruments provide a framework for the protection of workers, including the directives on transparent and predictable working conditions46, adequate minimum wages47, working time48, health and safety at work49, equality and non-discrimination50, work-life balance for parents and carers51, information and consultation of employees52, fixed-term work53, part-time work54, posting of workers55 and on temporary agency work.56. This legal framework fully applies to trainees who have an employment contract or employment relationship as defined by law, collective agreements or practice in force in each Member State, with consideration to the case-law of the Court of Justice of the European Union. The Union legal framework also encompasses recommendations on the quality of traineeships57 and apprenticeships58 and on access to social protection for workers and self-employed59.
(10) The Conference on the Future of Europe60 put forward a proposal on ensuring that young people’s internships and jobs adhere to quality standards, including on pay and banning unpaid internships on the labour market and outside formal education.
(11) The European Parliament adopted a resolution pursuant to Article 225 TFEU with recommendations to the Commission on quality traineeships in June 202361. In its resolution, it called on the Commission “to update and strengthen the 2014 QFT and to turn it into a stronger legislative instrument”. It further called on the Commission to include additional principles in an updated quality framework for traineeships. Specifically, the European Parliament called for the Commission to “propose a directive on open labour market traineeships, traineeships in the context of active labour market policies and traineeships that are a mandatory part of professional training, in order to ensure minimum quality standards, including rules on the duration of the traineeships, access to social protection in accordance with national law and practice as well as pay that ensures a decent standard of living in order to avoid exploitative practices”.
(12) The Commission carried out a two-stage consultation of social partners at Union level under Article 154 TFEU on the need, objectives and legal avenues for a potential action further improving the quality of traineeships. There was no agreement among the social partners to enter into negotiations with regard to those matters. It is, however, important to take action at Union level in this area by adapting the current framework on traineeships while taking into account the outcomes of the consultation of social partners.
(13) The Commission has extensively consulted with stakeholders, including trainees and youth organisations, traineeship providers, national public authorities, educational institutions, and experts from academia.
(14) Article 153(2) in conjunction with (1)(b) TFEU empowers the European Parliament and the Council to adopt Directives setting minimum requirements on working conditions with a view to achieving the objectives set out in Article 151 TFEU, namely the promotion of employment and improved living and working conditions.
(15) Considering the persisting challenges regarding the problematic use of traineeships in the Union, further action is needed to combat regular employment relationships disguised as traineeships and to ensure that the relevant Union and national law applicable to workers is fully implemented and enforced in relation to trainees. This Directive addresses these challenges by laying down minimum requirements to improve and enforce the working conditions of trainees in the Union and to combat employment relationships disguised as traineeships, by establishing a common framework of principles and measures necessary to ensure equal treatment and to implement and enforce Union and national law applicable to workers more effectively.
(16) This Directive should apply to trainees in the Union who have an employment contract or employment relationship as defined by the law, collective agreements or practice in force in the Member States, with consideration to the case-law of the Court of Justice of the European Union. In its case law, the Court of Justice has established criteria for determining the status of a worker, which is to be based on a case-by-case-analysis.
(17) Work-based learning programmes falling under the definition of traineeship vary significantly across Member States. Hence, apprenticeships may fall within the scope of this Directive, insofar as apprentices fall under the notion of ‘worker’ as defined by the law, collective agreements or practices in force in the Member States, with consideration to the case-law of the Court of Justice of the European Union.
(18) Chapter III of the Directive applies to regular employees who are falsely labelled as trainees, i.e. when employers label a regular employment relationship either as a traineeship which is not an employment relationship, or as a traineeship which does constitute an employment relationship, however with a lower level of pay or other working conditions than those which regular employees would be entitled to under Union or national law, collective agreements or practice.
(19) Traineeships which are employment relationships can be distinguished from ‘regular’ employment relationships in that they are limited in time, they include a significant learning and training component and that they are undertaken in order to gain practical and professional experience with a view to improving employability and facilitating transition to employment or accessing a profession.
(20) The principle of non-discrimination is suitable to combat abuses of traineeships, such as granting trainees less favourable working conditions or lower pay compared with regular employees without appropriate justification, and to ensure the sustainability of traineeships as a pathway to stable employment opportunities. It can also help make traineeships more accessible to groups of workers in a vulnerable situation.
(21) It is therefore necessary to lay down the principle of non-discrimination for trainees which should apply in addition to Clause 4 of the Annex to the Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, which provides that in respect of employment conditions, fixed-term workers are not to be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds. Trainees who have an employment relationship are by definition ‘fixed-term workers’ within the meaning of that Directive. Its clause on the principle of non-discrimination, however, does not allow for comparison with other fixed-term workers. Moreover, Clause 2 (2) of the Annex to that Directive allows Member States to exclude certain types of workers from its scope, including initial vocational training relationships and apprenticeship schemes or employment contracts and relationships which have been concluded within the framework of a specific public or publicly supported training, integration and vocational retraining programme. It also fails to recognise the particularly vulnerable position that trainees are in. It is therefore necessary to guarantee that the principle of equal treatment compared to regular employees applies to all trainees who have an employment relationship.
(22) Member States should therefore ensure that, in respect of working conditions including pay, trainees are not treated in a less favourable manner than comparable regular employees in the same establishment, unless different treatment is justified on objective grounds. The sole fact of being a trainee cannot constitute grounds for less favourable treatment compared to regular employees in the same establishment. At the same time, different tasks, lower responsibilities or work intensity in relation to comparable regular employees may constitute objective grounds for different treatment, where relevant, with regard to the employment condition at issue. The extent of different treatment should, however, be proportionate to those grounds.
(23) The application of the principle of non-discrimination requires the identification of a comparable regular employee engaged in the same or similar type of work or occupation as the trainee, due regard being given to qualifications and skills.
(24) Member States should have appropriate measures in place to combat regular employment relationships disguised as traineeships with the effect of granting lower levels of protection, including working conditions and pay, than the worker concerned would be entitled to under Union or national law, collective agreements or practice.
(25) It is necessary to ensure effective controls and inspections conducted by competent authorities as they are essential to protect the rights of trainees and to combat regular employment relationships disguised as traineeships. They should be targeted to avoid the substitution of regular employment by disguised traineeships and to protect workers’ rights.
(26) The assessment whether a regular employment relationship is disguised as a traineeship should be based on the factual circumstances and not on the formal designation of the contractual relationship. In order to determine whether a regular employment relationship is disguised as a traineeship, competent authorities should perform an overall assessment of all relevant facts. In order to facilitate the assessment for competent authorities, key elements that would allow to make the distinction between a regular employment relationship and a disguised traineeship should be set out. The assessment of those elements should be performed on a case-by-case basis, taking due account of the circumstances of each specific case. Therefore, the elements referred to are indicative and non-exhaustive and without the necessity to meet a specific threshold.
(27) Requiring previous work experience for a traineeship in the same or similar field of activity may not indicate a regular employment relationship disguised as a traineeship if the employer provides justification such as an equivalent period of previous work experiences being an alternative to having a degree in a certain field of activity or expertise.
(28) When competent authorities carry out their analysis of the relevant facts to determine the existence of a regular employment relationship disguised as a traineeship, the information needed to perform this analysis might not always be easily accessible to them. In order to enable competent authorities to perform their tasks, employers should be obliged to provide them with the necessary information that lies in their control upon request of the competent authorities.
(29) Member States should have appropriate measures in place to facilitate the assessment of whether a purported traineeship genuinely constitutes a traineeship. This should include a time limit indicating excessive duration of a traineeship and of repeated, including consecutive, traineeships with the same employer. A reasonable maximum duration of traineeships should, in principle, not exceed six months, as stipulated in the 2014 Recommendation. However, Member States may provide that a longer duration can be justified if it is based on objective grounds. Examples of such exceptions could be traineeships whose completion is a mandatory requirement to access a specific profession, the trajectory of which to acquire the necessary knowledge, competences and experience warrants a longer traineeship experience. Certain traineeships that are part of active labour market policies aimed at the integration of persons in a vulnerable situation could also benefit from a longer duration. Some traineeships that are part of curricula of formal education or vocational education and training may have a longer duration for reasons linked to the curricula.
(30) The obligation for employers to include information on the expected tasks, working conditions, including pay, social protection, learning and training elements in the vacancy notices and advertisements for traineeships could be fulfilled by including a link to a website containing this information.
(31) In addition to this Directive, Member States should ensure full implementation and enforcement of the rights enshrined in the Union acquis applicable to trainees who have an employment relationship.
(32) An extensive system of enforcement provisions for the social acquis in the Union has been developed in recent legal instruments, such as Directive (EU) 2019/1152 and Directive (EU) 2023/97062. Such provisions should be included in this Directive to help ensure effective enforcement and defence of rights of trainees stemming from this Directive and from other Union law applicable to workers.
(33) Trainees should have access to effective and impartial dispute resolution and a right to redress, including adequate compensation. Trainees should be informed about the redress mechanisms for the purpose of exercising their right to redress. Having regard to the fundamental nature of the right to effective legal protection, trainees should continue to enjoy such protection even after the end of the traineeship giving rise to an alleged breach of rights under this Directive and other relevant Union law applicable to workers.
(34) To provide a more effective level of protection of trainees, representatives of workers should be able to engage in proceedings in order to defend any of the rights and obligations arising from this Directive or from other Union law applicable to workers either on behalf or in support of one or several trainees.
(35) Trainees should be provided with adequate judicial and administrative protection against any adverse treatment and consequences in reaction to any complaint lodged with the employer or resulting from any proceedings initiated with the aim of enforcing compliance with the rights provided for in this Directive or in other Union law applicable to workers. In particular, trainees should be protected from dismissal or its equivalent and all preparations for dismissal or its equivalent for exercising the rights provided for in this Directive or in other Union law applicable to workers.
(36) Member States should lay down rules on effective, proportionate and dissuasive penalties for cases of infringement of the rights provided for in the scope of this Directive. Penalties can include administrative and financial penalties, such as fines or the payment of compensation, as well as other types of penalties.
(37) This Directive lays down minimum requirements, thus leaving untouched Member States’ prerogative to introduce and maintain more favourable provisions. Rights acquired under the existing legal framework should continue to apply, unless more favourable provisions are introduced by this Directive.
(38) Since the objectives of this Directive, namely to enforce working conditions of trainees and combat regular employment relationships disguised as traineeships, cannot be sufficiently achieved by the Member States, but can, by reason of their scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.
(39) In implementing this Directive Member States should avoid imposing unnecessary administrative, financial and legal constraints, in particular if they hold back the creation and development of micro, small and medium-sized enterprises. Member States are therefore encouraged to assess the impact of their transposition measures on those enterprises in order to ensure that they are not disproportionately affected, paying particular attention to microenterprises and to the administrative burden, to publish the results of such assessments, and to provide support to those enterprises as necessary.
(40) Member States may entrust the social partners with the implementation of this Directive, where the social partners jointly request to do so and provided that the Member States take all the necessary steps to ensure that they can at all times guarantee the results sought under this Directive. They should also, in accordance with national law and practice, take adequate measures to ensure the effective involvement of the social partners and to promote and enhance social dialogue with a view to implementing the provisions of this Directive.