Pilot Peter* domiciled in Lithuania, was an employee of an air carrier seated on the British Virgin Islands. His employer assigned him within a framework of a wet-lease agreement to an air carrier registered in Vienna (Austria). The pilot had to fly a plane based in Milan (Italy), owned by an air carrier from the BVI. From Milan he approached different airports in Europe, except Austrian airports. After Peter was unlawfully dismissed by the employer, he decided to start legal proceedings to protect his rights. The question is: where and against whom he shall file the lawsuit: BVI air carrier (real employer) or the Austrian carrier (user undertaking)? Which law is applicable to him: law of British Virgin Islands, Austria or Italy?
In the European aviation community, we have become so accustomed to such stories that we are rarely impressed. Combine transnational airlines with high commercial pressure, a free EU internal market that allows for freedom of movement of workers with an EU framework that doesn’t regulate everything. You get the picture.
While a citizen of e.g. Austria can freely work in Latvia, and vice versa, the EU has no competency to regulate social policy. To make it more bizarre – transport is a ‘shared competence’. In simple words, it means that social policy and employment rules, though having a European framework – as non-discrimination, fair treatment, minimum protection – rest in the hands of EU Member States.
But this basic framework has proven, not surprisingly, to be insufficient to provide good coordination between Member States. Pilots working for transnational airlines are more than familiar with the difficulties of coordinating their labour & social security rights.
This rather ambivalent set up of the EU was the very reason to create a new authority in 2019 – the European Labour Authority (ELA). The bad news for pilot Peter is that the ELA can’t be of help to him. The Authority doesn’t deal with individual cases. But the good news is that the Authority still can have a big impact for all pilots in Europe.
ELA sees its own mission as helping strengthen fairness and trust in the internal market, by assisting Member States and the Commission in their effective application and enforcement of Union law related to labour mobility across the Union and the coordination of social security systems within the Union.
So, to highlight, the primary concern of ELA is labour mobility.
Primary "suspects" of help: EU Member States.
Primary goal: effective coordination and rule enforcement.
ELA started to function in 2021 and is planning to reach its full operational capacity by 2024. Even though ELA is a relatively new player, it already carried out two successful campaigns: on seasonal workers in 2021 and road to fair transport in 2022. These campaigns were aimed at giving clear and transparent information to drivers and operators, training labour authorities and providing support and organising joint labout inspections. These last two points are what the aviation industry in Europe can also benefit from.
Training labour authorities and helping them to set up joint inspections on airlines is a sure way of stopping some malpractices of airlines. ELA has a priviledged position to act – one can hardly find a more mobile and transnational field than civil aviation, and it is within the mission of ELA to help Member States and social partners to enforce the applicable labour and social rules, which are designed to protect pilots and cabin crew.
This is what a team of European pilots pleaded for, during a workshop on labour mobility in civil aviation, which ELA held in its headquarters in Bratislava on 18 April 23. We provided examples of actual cases of bogus self-employment, complex schemes of wet-leasing and misuse of current legal loopholes.
While legislative changes can take years (see Revision of Reg. 1008/2008) ELA can already – in the span of a few months – organise a campaign similar to that on road transport. Will it be a game-changer? Probably not. But will it protect the level-playing field? Seems definitely like a good attempt and ECA is ready to help with facts and figures about abuses. ELA shouldn’t miss its chance to play a key role in it.
* Peter is not the real name of the pilot
- Define aviation as a separate workstream of ELA;
- Conduct a wide-spread information and publicity campaign this summer about disruption of labour mobility in aviation;
- Coordinate national labour inspections on air carriers;
- Provide training and seminars for national labour authorities/inspectors as part of its capacity building stream;
- Conduct analysis of cross border labour mobility issues in the aviation sector.