In order to reach an agreement (‘General approach’) between the Member States, on Monday 26 May the Polish Presidency of the EU Council presented new ideas for work on the quality traineeships directive, notably by modifying the language of the scope and re-emphasising the exclusion of traineeships linked to active labour market policies.
In a new recital, the Presidency recalls that “traineeships carried out as part of active labour market policies should be excluded from the scope of Chapters II and IV of this Directive, due to their specific regulatory frameworks designed to achieve certain social and labour market objectives and because they are subject to public oversight within these frameworks”.
The proposed new scope thus states that, for the purposes of Chapters II and IV, “this Directive applies to trainees who have an employment contract or who are in an employment relationship as defined by the law, collective agreements or practice in force in the Member State, with consideration to the case law of the Court of Justice, and whose traineeship is not mandatory and is […] not carried out as part of active labour market policies”.
For the purposes of Chapter III (false traineeships), “this Directive applies to any […] worker engaged in a false traineeship”.
With this new text, the definition of false traineeships or jobs disguised as traineeships is reformulated, as well as the language concerning the possibility of derogating from the directive and allowing differentiated treatment of trainees.
False traineeships should therefore “be understood as disguised employment relationships that are claimed by the employer to be a traineeship but in fact are employment relationships which do not meet the elements of a traineeship as defined in this Directive. As a result, individuals concerned may not be in a position to enjoy the appropriate level of rights and protections granted to workers under Union or national law, collective agreements or practice, which may lead to legal uncertainty and less favourable working conditions”.
In addition, the Presidency is reducing the number of criteria to be taken into account by national authorities when detecting a false traineeship to three: “The absence of a significant learning or training component [...]; excessive duration [...] or multiple and/or consecutive purported traineeships with the same employer by the same person; and equivalent levels of tasks, responsibilities and intensity of work [...] compared to comparable employees”.
Recital 22 states that “the extent of different treatment should, however, be proportionate to those objective grounds, including where Member States give social partners the option to establish via collective agreements the objective grounds which are likely to justify a different treatment of trainees”.
This tighter wording may not entirely satisfy the Nordic social partners, who want much more room for manoeuvre, according to one source.
Member States will meet in a working group on 2 June to discuss this final text, with the Presidency’s ambition being to obtain a “General approach” on 19 June at the EPSCO Council in Luxembourg. (Original version in French by Solenn Paulic)