European Commission: Critical flaws in airline employment practices

A long-awaited wake-up call to EU Member States and an Expert Group are the two essential elements of the EU Commission’s new plan to prevent social abuses in aviation. Published today by the Commission, it outlines the ‘Social Agenda’ for air crew, with the aim of achieving ‘socially responsible air transport’ in Europe. Its primary targets are airlines and temporary agencies, some of which are using loopholes and lack of enforcement of EU and national social legislation.

Airlines misclassifying their pilots and cabin crew as self-employed; making quasi-permanent use of broker agencies; offering young pilots exploitative Pay-to-Fly schemes; or preventing crews’ access to the labor law of their Home Base country are some of the major challenges listed in the ‘Social Agenda’ report. Central to tackling those problems will be a new Expert Group of labor inspectorates and civil aviation authorities from EU Member States, which will be working towards practical solutions. This means some airlines, agencies and intermediaries may now feel the heat – after years of undisturbed circumvention of existing labor laws and EU regulations.

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“Due to the lack of a common European labor law and social protection, the EU has far too long turned a blind eye on the social problems, abuses and anti-competitive practices piling up in our Single Aviation Market,” says ECA President Jon Horne. “We need to break away with the idea that the EU cannot do anything because it has no say over national social issues. Recently adopted rules for truck drivers that are clearer, fairer and more enforceable show the EU actually can do a lot when a strong political will is there. The new Expert Group of aviation and labor authorities is potentially a very good approach towards the many problems we face in our sector – although regulatory changes will also be needed soon.”

The ‘Social Agenda’ report puts the spotlight on a major handicap of today’s system: the lack of legal certainty and the constant need for a time-consuming case-by-case analysis of problematic employment situations and business set-ups.

“Legal certainty is not a ‘nice-to-have’ – it is a ‘must-have’,” says ECA President Jon Horne. “National authorities need clear and enforceable rules with clear responsibilities for the airlines. The same is true for the crew: they need to know their rights and have legal certainty in advance. If we know for example that nearly all pilot self-employment is in reality fake, why not create criteria, definitions, presumptions and prior checks of compliance to prevent such abuses before they happen? It should not be up to the individuals to fight a long and costly court battle against a multi-billion euro company.”

The report also states that rules are to be respected: EU legislation setting the minimum social standards, such as the Posted Workers Directive or the Coordination of Social Security, and national labor law applicable to air crew, must be adhered to by the airlines and be enforced by national authorities. Importantly, the EU Commission also explicitly spells out that the ‘Home Base’ of air crew is the single most significant criterion to determine which national labor law applies to them, and that the ‘nationality of the aircraft’ is irrelevant in this respect – unlike what certain airlines have claimed so far.

Bogus self-employment among pilots is a major issue to be addressed seriously by the new Expert Group. According to the Commission, strong indicators show that self-employment is actually not genuine. Instead, it is used by airlines as a smoke-screen for what should be regular employment. The Ricardo study, carried out for the purpose of the EU Commission’s report, reveals the scale of the problem: 93% of the self-employed pilots in Europe were not free to choose when, where and for whom they want to work.

“More and more airlines are forcing precarious atypical employment upon their crew to provide flexibility and productivity at all costs. They call it ‘new business models’, we call it abuse,” says ECA Secretary General Philip von Schöppenthau. “These ‘models’ are possible because of existing legal loopholes and lack of enforcement. It is time to recognize this and – also for the EU Commission – to accept that some of these new business ‘models’ in aviation are actually part of the problem. Unfortunately, this ‘Social Agenda’ report does not go far enough on this, and many of the proposed actions can only be considered as a very initial first step.”

He continues: “However, with this ‘Social Agenda’ report nobody can deny any longer that significant social challenges for air crew exist and are tangible in their daily life. To make socially responsible connectivity and a level playing field a reality in Europe’s aviation, these problems must be tackled urgently and jointly by Member States, the Commission, Parliament and social partners. The ample evidence provided in this report is a powerful reason for the current Commission to keep focus on the social agenda now and to pass it on as a priority to the post-Juncker era.”