EurECCA calls for a specific Directive on the Posting of Workers in Aviation
1. What is a posted worker?
A posted worker is an employee sent by his or her employer to another member state of the European Union for the purpose of carrying out an assignment for a specific period of time. In contrast to workers who move to a member state to work there permanently, posted workers only stay temporarily in their host country.
According EurECCA, the Posted Workers Directive applies in the following scenarios[1]:
• Aircrews who are temporarily posted to the territory of a member state on the employer’s account and under its direction and provided there is an employment relationship between the undertaking making the posting and the employee during the period of posting.
• When this posting is carried out by one of the companies of the group in the territory of a member state, provided there is an employment relationship between the undertaking making the posting and the employee during the period of posting.
• In cases of transnational services in the framework of temporary employment agencies or placement agencies.
The European Directive (EU) 2018/957 replaces the Posted Workers Directive (EC) 96/71, on which the regulation of posted work was previously based.
The aim of this new directive is to improve the working conditions and protection of posted workers, in a context of increasing posted work in the European Union and increasing fraud. It enshrines the principle of “equal pay for equal work” in the same workplace.
In concrete terms, any employee posted by a company established abroad must receive the same pay as an employee employed by a local company performing the same tasks.
Companies established in the EU which receive posted workers must also guarantee them the same working conditions and rights[2] as those which apply to local workers:
(a) maximum work periods and minimum rest periods;
(b) minimum paid annual leave;
(c) remuneration, including overtime rates; this point does not apply to supplementary occupational retirement pension schemes;
(d) the conditions of hiring-out of workers, in particular the supply of workers by temporary employment undertakings;
(e) health, safety and hygiene at work;
(f) protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and of young people;
(g) equality of treatment between men and women and other provisions on non-discrimination;
(h) the conditions of workers’ accommodation where provided by the employer to workers away from their regular place of work;
(i) allowances or reimbursement of expenditure to cover travel, board and lodging expenses for workers away from home for professional reasons.
The duration of the posting is now set at 12 months (previously 24 months), with a possible extension of 6 months.
There are many forms of fraud relating to the posting of workers – this being said, we want to highlight the three main and recurrent types of fraudulent use of the posting rules.
1. Omission of compulsory formalities
· This is, in particular, the absence of a declaration prior to the posting.
2. Failure to comply with national labour law applicable to posted aircrews.
3. Complex fraud
· This is a form of multiple fraud: it is generally characterised by undeclared work or illicit lending of labour and corresponds to the intentional non-declaration of salaried employment.
· Non-compliance with the social security schemes of the host member state (misuse of the A1 forms).
2. Lack of legal binding definition of the operational base
Within the European legal framework “Home Base” is defined in three different regulations.
EurECCA notes that the simple definition of Home Base remains insufficient and do not prevent certain frauds or abuses.
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- Regulation (EU) 83/2014 amending Regulation (EC) 965/2012 (linked to Annex III of Council Regulation (EEC) 3922/91 on common technical requirements and administrative procedures applicable to commercial transportation by aeroplane)
The criterion “Home Base” is defined in this regulation. Only one Home Base must be assigned for each crew member.
ORO.FTL.200 Home base. “An operator shall assign a home base for each crew member.”
Subpart FTL – Flight and duty time limitations and rest requirements:
“Home base” means the location, assigned by the operator to the crew member, from where the crew member normally starts and ends a duty period or a series of duty periods and where, under normal circumstances, the operator is not responsible for the accommodation of the crew member concerned;
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- Amending Act (EC) 465/2012 on the coordination of social security systems:
In order to ensure a level playing field to enhance fair competition, the Regulation (EC) 883/2004 on the coordination of social security systems has been amended by specific provisions for air crew members in civil aviation (Amending Act (EC) 465/2012) to set the only one criterion that determines the applicable law for social security schemes: the “Home Base” determined as the usual workplace where the crew member normally starts and ends a duty period or a series of duty periods.
This regulation has introduced a derogation for air crew members in air transport.
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- Regulation (EC) 593/2008 on the law applicable to contractual obligations (Rome I):
The criterion “Home Base” is de facto taken into account in the Regulation (EC) 593/2008 in which, without law chosen by the parties, “the contract shall be governed by the law of the country in which or, failing that, from which the employee habitually carries out his work in performance of the contract” (Article 8 (2)). A choice “may not, however, have the result of depriving the employee of the protection afforded to him by provisions that cannot be derogated from by agreement under the law that, in the absence of choice, would have been applicable”.
The aviation industry by its nature is highly complex throughout the mobility of the operation. The freedom of movement and the freedom to provide services across the Union, may be used in various creative manners, in order to circumvent relevant tax or social security legislation. This lack of legal certainty caused by a lack of specific provisions can be interpreted by some employers and some members states in different ways and de facto creates room for fraudulent behaviour as tax optimisation/precarious working conditions and leads to social dumping and distortion of competition.
To safeguard a fair treatment and a legal certainty for all stakeholders involved, EurECCA asks for a legal binding definition of the operational base. In the course of the revision of Regulation (EC) 1008/2008 EurECCA has already proposed a binding definition of the operational base:
“An operational base is a set of premises or infrastructures from which a company carries out a stable, usual and continuous air transport activity with employees who have the effective centre of their professional activity there. For the purposes of the above provisions, the centre of an employee’s professional activity is the place where he/she usually works or where he/she starts its duty and returns after completing his/her assignment.”
Having a clear definition will have advantages in different areas of application:
· prevent companies from choosing the home bases with the risks of becoming “fictious bases” exploiting the aircrews;
· Clarifying complex Wet-Leasing scenarios;
· Clarifying complex employment agency scenarios;
According to Regulation (EC) 593/2008 (recital 34) it makes explicit reference to Directive (EC) 96/71 particularly for the application of “overriding mandatory provisions” of the host country. And overring mandatory provisions “are provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this Regulation”. (Article 9 of Regulation (EC) 593/2008).
3. The habitual place of work, main criteria for identifying the applicable law
An individual employment contract may be governed by the law chosen by the parties, but this choice “may not, however, have the result of depriving the employee of the protection afforded to him by provisions that cannot be derogated from by agreement under the law that, in the absence of choice, would have been applicable.” (Regulation (EC) 593/2008 Article 8 (1)). Also “To the extent that the law applicable to the individual employment contract has not been chosen by the parties, the contract shall be governed by the law of the country in which or, failing that, from which the employee habitually carries out his work in performance of the contract.” (Regulation (EC) 593/2008 Article 8 (2)).
The habitual place of work or failing that, the member state from which the contract is performed, is thus the reference that determines the applicable law and for the aircrews, this is the “Home Base” (“country from which” in Regulation (EC) 593/2008 and literally the “Home Base” in the Regulation (EC) 465/2012).
For European air transport, only one “Home Base” must necessarily be “assigned” to each crew member and it must match its genuine workplace (Annex III of Regulation (EEC) 3922/91).
European case-law sometimes adds at the primary criterion “usual place of work or failing that, the Member State from which the contract is performed”, the secondary criterion of the member state in which social security taxes are paid by both the employer and employee. For air transport, the question does not arise because the applicable social security is determined by the “Home Base”, and this criterion is consistent with that of labour law. Therefore, the member state where the crew is assigned and carries out his work will determine all applicable laws.
An aircrew (worker) assigned in a member state therefore is subject to the law of this host member state. If he or she is assigned in another member state but regularly carries out his duties from another member state, then there is violation of regulations (EC) 859/2008 and (EC) 965/2012 amended by (EU) 83/2014 because his or her “Home Base” is not into line with reality of the work carried out.
4. Necessity of having a specific Directive for aircrews
The Directive on the posting of the workers has been a source of abuses, particularly through the use of intermediary companies called “mailboxes” and payment for long periods, of salaries and social charges in reference to the country of origin. Such abuses have been possible due to the assumption that aircrews are treated as highly mobile workers and do not fall in the scope of the Posted Workers Directive and its obligations, which is not supported by EurECCA. We are asking for a specific Directive applicable to aircrews to prevent the abuses and protect the workers affected.
And also by an enforcement of the playing role of the European Labour Authority (ELA) to give some guidance, clarification, coordination and control on the correct application of the posting rules to the member states.
5. Lack of legal binding definition of an employment relationship
The aviation industry experiences rising figures in the (bogus) self-employed aircrews[3] leading to social dumping and the circumvention of correct social payments in the member states. Therefore, it is crucial to determine in which (often very complex) scenarios it is in fact a bogus self-employed aircrew. For further clarification the CJEU laid down three criteria which characterise an employment relationship:
· There is an authority relationship[4]
· The worker forms part of the employer’s economic unit[5]
· There is a relation of subordination[6]
Member states must be empowered to clearly identify the fraudulent use of bogus self-employed aircrews especially occurring in the context of employment agencies which are posting their aircrews to a customer in another member state.
EurECCA represents, protects and develops the rights and needs of all cabin crew all over Europe
About EurECCA: established in Brussels in 2014, the European Cabin Crew Association, EurECCA, represents, protects and develops the rights and needs of cabin crew all over Europe. It is composed of cabin crew unions from European Union Member States as well as accession and bordering states and represents some 33,000 cabin crew accounting for 70% of all organized cabin crew in Europe. EurECCA has no political connections.
EurECCA’s work is around Cabin Crew working conditions, wages, social protection and health and safety at work.
[1] Ricardo Study 2019, page 136
[2] Article 3 (1) of Directive (EU) 2018/957
[3] Ricardo Study 2019, page 101, 102, 105 and 106
[4] CJEU of 4 December 2014, C-413/13, FNV Kunsten Informatie en Media v Staat der Nederlanden
[5] CJEU of 16 December 1975, cases 40-48, 50, 54-56, 111, 113 and 114/73, Suiker Unie UA e.a. v CE.
[6] CJEU of 11 November 2010, case C-232/09, Dita Danosa v LKB Līzings SIA.
