Yesterday the European Labour Authority (ELA) presented its long-awaited report on the enforcement of labour mobility and social security coordination rules for aircrew members. The launch event brought together representatives of the European Commission, national enforcement authorities, employers and trade unions to discuss the practical challenges of enforcing aircrew rights in one of Europe’s most cross-border sectors.
For the ETF and its affiliates, who are in daily contact with aviation workers across Europe, many of the findings come as no surprise. Nevertheless, the report represents an important acknowledgement at European level of the structural obstacles that continue to undermine effective enforcement in aviation. The full report is available here.
The report identifies three major challenges that continue to hamper the enforcement of labour and social security rights for aircrew in Europe:
First, enforcement remains highly fragmented. On average, responsibility for enforcing aircrew social rights is shared between four different institutions in each Member State, while in some countries up to six authorities may be involved. Competences are often divided, overlap in certain areas and leave gaps in others, creating a system that is difficult for workers, employers and enforcement authorities alike to navigate.
Second, cooperation between authorities is still insufficient despite the inherently cross-border nature of aviation. Aviation authorities often hold essential operational information, including licensing, flight operations and oversight data, while labour inspectorates and social security institutions do not always have access to these sources. Existing cooperation tools, including ELA-supported concerted and joint inspections, could also be used more actively across borders.
Third, access to information creates a significant obstacle for enforcement authorities. As ELA concludes, obtaining the information necessary to establish applicable labour and social security legislation is often a lengthy and burdensome process and, in some cases, the information is simply not available.
ELA proposes a number of practical recommendations, including improved guidance for enforcement authorities, stronger cooperation mechanisms, increased capacity-building and awareness-raising activities. While ETF supports these recommendations, the Federation stressed during the launch event that awareness alone will not solve the structural problems affecting the sector.
During the panel discussion, Josef Maurer, Head of Aviation and Maritime, highlighted two issues of particular concern to ETF:
The first concerns the continuing legal uncertainty surrounding the application of posting rules to aircrew. More than fifteen years after this issue first emerged on the European agenda, there is still no common understanding among Member States, enforcement authorities or the industry itself regarding whether and under which circumstances posting legislation applies to highly mobile aviation workers (aircrew). ELA’s acknowledgement of this uncertainty is an important step forward. At the same time, it demonstrates the urgent need for legal clarification in order to ensure effective enforcement and legal certainty for both workers and employers.
The second concerns atypical forms of employment in aviation. According to the Ghent study on employment in European aviation, around 16 per cent of European pilots are estimated to work under atypical arrangements, including self-employment, agency work and personal service companies. But in some Member States, almost all newly recruited pilots and a large majority of cabin crew are engaged under self-employment arrangements. This raises serious questions as to whether these arrangements constitute genuine entrepreneurship. These workers operate aircraft owned by the airline, wear the airline’s uniform, work according to rosters determined by the airline and are subject to operational instructions and oversight by the airline. The relationship of subordination that characterises employment therefore remains clearly present. Yet these workers are frequently deprived of basic employment protections and face significant obstacles in exercising collective rights.
Such employment practices further aggravate the labour shortages that increasingly affect European aviation. Jobs that were once associated with attractive pay and decent working conditions have in many parts of the sector become less attractive due to low pay, insecure contracts, long working hours and fatigue.
Social dumping does not only harm workers; it also distorts competition within the European market. The absence of a genuine link between an airline’s principal place of business and its actual operations creates opportunities for forum shopping and regulatory arbitrage, allowing companies to seek the most favourable tax environment or the least demanding oversight regime.
Closely linked to these developments is the growing use of wet leasing and ACMI operations. These business models have a legitimate role when used to address temporary operational disruptions, seasonal demand peaks or short-term capacity shortages. Increasingly, however, wet leasing is being used in a structural manner to operate parts of an airline’s network using crews employed under different and often cheaper labour regimes. Such practices undermine collective agreements and place additional pressure on directly employed workers and established bargaining structures.
Dennis Dacke (ver.di, Germany) commented: “Wet leasing is no longer a marginal issue in European aviation. When used structurally to reduce labour costs and circumvent collective agreements, it creates unfair competition and requires a regulatory response.”
Building on positions adopted by its Civil Aviation Section, ETF will continue to advocate for legislative measures capable of addressing the specific realities of highly mobile aviation workers.
These include:
ETF also rejects the argument of (lack of) proportionality that is often raised by the European Commission in discussions on aviation-specific social legislation. While aircrew represent only a relatively small share of the European workforce, commercial aviation is one of the most integrated and liberalised sectors of the European economy and is regulated almost entirely at European level. Europe cannot regulate the economics of aviation while leaving the social dimension fragmented across 27 national systems that often overlap, leave gaps or fail to reflect the realities of highly mobile workers. If Europe can regulate the market for air services, it must also ensure that the workers who keep that market running benefit from effective and enforceable social rights across borders.