The new Enforcement Directive proposed by the EU Commission to increase the protection of workers temporarily posted abroad will significantly improve the situation of many pilots, whose profession often implies high mobility and cross-border services provision. Nevertheless, it will require more effort by the European Parliament to enhance the legal certainty, guarantee transparency and prevent the reduction of rights for posted workers.
In an effort to limit abuses such as social dumping and breach of rights for posted workers, fake self-employment and unfair competition, in March 2012 the European Commission came out with a revision of the 1996 EU Directive, which defines a basic set of employment conditions in the context of cross-border services provision.
Some previous concerns, such as the need of monitoring by the nationalauthorities in the “receiving” state have already been noted by the European Cockpit Association (ECA) and addressed by the revision of the Directive. Notwithstanding these improvements, a clarification of the notion of employment is currently needed.
Not only do definitions of employment vary between Member States, but often creative employment constructions are used to mask abuses of successive fixed contracts and fake employment to close possible legal loopholes. A clear notion of “employment” is therefore essential to determine the existence of a genuine link between the employer and the worker’s country of origin. ECA therefore calls for a new article to clarify employment in the context of cases where:
- No direct employment relationship exists between the employee and the hiring company or the placement company.
- Successive fixed term contracts with the same employer resulting in an abuse of the Directive.
- Fake self employed person working for a foreign company results in breach of rights.
Another crucial point to be addressed remains the role of trade unions in the receiving states. “Third-party” class actions, carried out by the local unions would be an additional monitoring mechanism to avoid abuses or circumvention not only of the Posted Workers Directive but also of other legal instruments and to prevent social dumping.
ECA will follow closely the further legislative process in the European Parliament.