On Monday 18 November, Member States were set to discuss the latest compromise of the Hungarian Presidency of the EU Council on quality traineeships, with the Presidency still aiming to reach a political agreement (general approach) on 2 December at the Employment and Social Affairs Council.
In this new text, dated 11 November, the Presidency takes account of the discussions held on 24 and 25 October and ensures that the directive focuses only on people who have been incorrectly classified as self-employed when they should be considered as employees.
While the Member States had rejected the so-called option ‘B’ regarding the article in the directive for tracking down abuse (‘Article 4 shall aim at addressing situations where an employment relationship is incorrectly labelled as a traineeship’ – see EUROPE 13520/15), i.e. targeting people incorrectly classified as trainees when they are in fact regular employees, the Hungarian Presidency is also amending the new text along these lines.
In order to give concrete expression to the discussions of the Member States which have focused on people officially on traineeships who are unfairly classified as self-employed, it also creates, in a new recital (26a), a sort of attenuated ‘presumption of salaried status’, as one expert on the dossier puts it: “In order to facilitate the assessment of the employment relationship of trainees for competent authorities, specific elements that would support such assessment should be set out. For carrying out the assessment of all relevant factual elements, the competent authorities may consider, among others, the following elements: - the absence of a significant learning or training component; - the excessive duration of the relationship; the levels of tasks, responsibilities and intensity of work; - the requirement for previous work experience for candidates for traineeships in the same or a similar field of activity, without appropriate justification”.
A clause, with a new article, has also been added to take account of national systems of collective agreements to justify differences in treatment. (“Member States may, on the condition that the national social partners jointly agree, give the social partners, at the appropriate level and subject to the conditions laid down by Member States, the option of upholding or concluding collective agreements establishing the objective grounds that are considered to justify a different treatment”).
The latest text also confirms the definitive scope of the directive, which will not apply to the following traineeship situations: vocational education and training relationships, apprenticeships, traineeships carried out within the framework of formal education, obligatory traineeships for obtaining a specific degree or qualification, or traineeships carried out within active labour market policies.
According to several sources, the Presidency’s objective of reaching an agreement on 2 December remains ambitious, and a progress report could be the alternative option. A further discussion on this directive is likely to be held at Coreper on 27 November.
The Presidency has already scheduled a progress report on the draft Council recommendation on quality traineeships (see other news).
Link to the text of 11 November: https://aeur.eu/f/ecz (Original version in French by Solenn Paulic)