5.2.3 Should Aircrew Be Declared Posted? Van Olmen & Wynant Report

5.2.3 Should Aircrew Be Declared Posted? Van Olmen & Wynant Report

April 2020

Which is the labour law applicable to aircrew? A clear answer to this question is fundamental for ensuring the protection of aircrew rights and for the good functioning of the internal market. The European Court of Justice recently issued a judgement giving guidelines to determine habitual place from where aircrews work (case C-168/16, Nogueira). This judgement is very useful, however, the question of aircrew's legal situation when they are not at their habitual place of work is still open.

The action responds to the sector's need for professional external support to determine if pilots and cabin crew, who by nature are highly transnational workers should be declared as posted workers. During the revision of the Posting Directive, it was stated that the Directive on Posting applies to International transport except for the Maritime. The application to road transport is explicitly mentioned and the application of the new posting provisions will only cease to apply to that sector when the EU adopts a more specific tool. But what happens with Aviation?

Applying literally the directive would not be feasible as airlines cannot notify every day the authorities of all the countries where their crews will be operating. Therefore, the following questions arise: should aircrew be declared as posted? When? When not?

Key results

The Van Olmen & Wynant Report has gathered complete information on the implementation and enforcement of posting laws applicable to aircrew at all levels including, for the first time, a complete response from the 28 Member States.

The presentation of the Van Olmen & Wynant Report triggered strong reactions both on the employers and employee side. Thanks to this action, the Social Partners realised that there are many different views on what is posting and what isn't. Some question the findings of the report. The Report has been on the agenda of each partner and created controversial debates. The fact that the Report has triggered such reactions show the need for such Report.

The Report shows a high level of incertitude and divergence on the use, knowledge, applicability and enforcement of posting rules. The Report has proposed some tools for the clarification of the situation. However, with such degree of legal uncertainty some partners think that strong actions are needed. The social partners were critical with the proposals in the report but a discussion on why those proposals are criticised and proper evaluation of the proposals might constitute a way to find joint tools and/or specific legislative initiatives.