The Proposed Traineeship Directive

On the 19th June 2025, EU Ministers within the Employment, Social Policy, Health and Consumer Affairs Council (Social policy) (EPSCO) have agreed on their negotiating position ('general approach') on a proposed directive to improve working conditions for trainees and combat 'false' traineeships.

The Proposal for an EU Directive on improving and enforcing working conditions of trainees and combating regular employment relationships disguised as traineeships lays down a framework of principles and measures which will help improve trainees' working conditions and will combat regular employment relations which are disguised as traineeships in order to avoid the application of labour law in its totality.

The situations which triggered this initiative on the part of the Commission are mainly two; firstly, uncompliant traineeships where the trainees were not enjoying all the rights they were entitled to, and secondly, the practice that regular employment relationships are disguised as traineeships so as to circumvent labour laws.

Traineeship and Trainee

Before delving into the main provisions of the Directive, one must consider the definition of trainee in terms of the proposal. 'Traineeship' means a limited period of work practice which includes a significant learning and training component, undertaken to gain practical and professional experience with a view to improving employability and facilitating transition to a regular employment relationship or accessing a profession.

'Trainee' is defined as any person undertaking a traineeship as defined above who has an employment contract or employment relationship as defined by the law, collective agreements or practice in force in every Member State (MS) with consideration to the case law of the Court of Justice. EU Case law has defined a worker as a person who "for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration (Lawrie Blum case¹).

The reference to an employment relationship is crucial since the proposal seeks to ensure that, in respect of working conditions including pay, trainees are not treated in a less favourable manner than comparable regular employees in the same establishment, unless different treatment is justified on objective grounds, such as different tasks, lower responsibilities, work intensity or the weight of the learning and training component.

In this regard, genuine traineeships can be easily distinguished from regular employment relationships, as they are limited in time, include a significant learning and training component, and are undertaken to gain practical and professional experience with a view to improving employability and facilitating transition to employment, or to access a profession.

Traineeships versus Apprenticeships

Although the Proposal only mentions apprentices in the preamble, apprentices are seen to be very similar to trainees in the sense that they are an important pathway to facilitate transitions to the labour market, combining education and work-based learning. Usually, apprenticeships are based on an agreement defining the rights (including pay) and obligations of the apprentice, the employer and, where appropriate, the vocational education and training institution. It is a tripartite arrangement.

In the proposal, it is stated that work-based learning programmes falling under the definition of traineeship, vary significantly across MS. In fact the proposal recognises that apprenticeships may fall within the scope of this Directive, insofar as apprentices fall under the notion of 'worker' as defined by the law, collective agreements or practices in force in the MS, with consideration to the case-law of the Court of Justice of the European Union.

To this end, for the purposes of this proposed directive, an apprentice will fall under the Directive if, like in the case of a trainee, that apprenticeship is a disguised employment relationship, and the apprentice qualifies as a worker under EU law. Whether described as an apprenticeship or a traineeship, if the person falls under the definition of a worker, notwithstanding the formal designation given, does not enjoy the same rights as a worker (as he/she should), then such person enjoys the right to redress provided for in the Directive.

The main elements of the Proposal

General Principle: The Directive champions the principle of non-discrimination and obliges MS to ensure that trainees are not treated less favourably than comparable regular employees in the same establishment. This is to be ascertained with regards to employment conditions, namely pay, working hours, and other rights. Hence, it gives those people technically employed as 'trainees' who however satisfy the conditions of a worker, the same rights given to the latter.

Exceptions to the rule must be objectively justified: The Directive provides a limited scope for derogations from the non-discrimination principle explained above, which must be justifiable on objective grounds. It states that such grounds include different tasks, lower responsibilities, lower work intensity, and the weight of the learning and training component.

Effective monitoring by the MS' competent authorities is based on two considerations:

(1) MS' competent authorities shall make an overall assessment of all the relevant factual elements in order to determine whether a purported traineeship constitutes a regular employment relationship. These factors are the following:

1. the absence of a significant learning or training component in the purported traineeship;
2. the excessive duration of the purported traineeship or multiple and/or consecutive purported traineeships with the same employer by the same person;
3. equivalent levels of tasks, responsibilities and intensity of work for purported trainees and regular employees at comparable positions with the same employer;
4. the requirement for previous work experience for candidates for traineeships in the same or a similar field of activity without appropriate justification (it is to be noted that appropriate justification is obtained when the period of previous work experience is required as an alternative to having a degree in a certain field or expertise);
5. a high ratio of purported traineeships compared with regular employment relationships with the same employer;
6. a significant number of purported trainees with the same employer who had completed two or more traineeships or held regular employment relationships in the same or similar field of activity, prior to taking up the purported traineeship.

(2) the obligation on the employer to provide the national competent authority with the following information, when requested:

1. the number of traineeships and regular employment relationships;
2. the duration of traineeships – MS are to define which duration is considered to be excessive but it is recognised that there may be objective justifications for a rather long traineeship;
3. the working conditions, including pay, tasks and responsibilities of purported trainees and of regular employees at comparable positions;
4. the descriptions of the learning and training components of traineeships;
5. the vacancy notices for traineeships – MS must require employers to include information on expected tasks, working conditions (pay, social protection) and learning/training elements in the vacancy notices and advertisements for traineeships.

Redress : MS are obliged to ensure that trainees, even those who are no longer employed by the company as a trainee, enjoy a right of redress against the company in case their rights arising out of the Directive, or any other law applicable to workers, are breached. This right of redress provides for compensation in case of the finding of a breach as abovementioned. There is no time limit or forum mentioned as MS' legal systems vary. As in the case of all labour law directives, what penalties are imposed on employers breaching the directive are left at the discretion of the MS. The Directive merely stipulates that any penalty must be effective, proportionate and dissuasive.

Protection against Adverse Treatment and Consequences: The Proposalimposes on MS the responsibility to protect trainees and their representatives from adverse treatment by the employer, and from any adverse consequences – including dismissal – resulting from a complaint lodged with the employer, or resulting from proceedings which were initiated with the aim of enforcing compliance with the rights provided for in this Directive or any other EU law applicable to workers (victimisation).Employers may be asked to justify their decision by providing a written account of the grounds on which the trainee was dismissed. Moreover, if the trainee is able to establish before a court or other competent authority, facts from which one may presume that there has been a dismissal or equivalent measures, the employer must prove that the dismissal or equivalent measures were based on grounds other than the ground that they have exercised their rights provided in the Directive (i.e. right to seek redress).

The compliant employer

In the spirit of the proposal, one can say that any employer engaging trainees shall

• Provide detailed information in written form on the essential aspects of the trainee's work;
• Be able to furnish the competent authorities with the information listed further above;
• Include information on expected tasks, working conditions, including pay, social protection, learning and training elements in the vacancy notice and advertisements for traineeships (this could also be achieved by including a link to a website wherein this information is contained);
• Ensure that:
  • There is a clear distinction between trainees and employees in comparable positions, in terms of responsibilities and work intensity among others,
  • Traineeship contains a significant learning and training element,
  • Traineeship does not exceed the maximum duration which each MS is to establish in terms of this Directive,
  • Trainees are not repeatedly engaged as trainees with the same employer,
  • There is a clear distinction in work responsibilities and intensity between trainees and regularly employed persons,
  • Candidates for vacant traineeships are not required to have previous work experience in the same or similar field or expertise, unless this requirement is an alternative to the candidate holding a degree in a certain field,
  • There is not a high ratio of trainees to regularly employed persons, especially if the above requirements are not strictly adhered to;
  • That the company does not have a significant number of trainees who had completed 2 or more traineeships, with the same employer, or held regular employment relationships in the same or similar field of activity, prior to taking the traineeship.

It is in the interest of the employer to register and have a record of all traineeships in order to be in a position to furnish the national competent authority with the aforementioned information and to ensure that their position is regularised and compliant.

Conclusion – Implementation into Maltese Law

Article 12 of the Proposed Directive states that the Directive is to be implemented within two years after the entry into force of the Directive. The Directive enters into force on the 20th day following its publication in the Official Journal of the European Union.

In Malta, traineeships are mainly regulated by the Employment and Training Services Act (CAP 594 of the Laws of Malta) and its secondary laws. A "trainee" means a person, who is not of compulsory school age and who is attending formal training at Jobsplus or other courses delivered by another person approved by Jobsplus or a person attending a scheme. This Act imposes a number of obligations when it comes to the enrolment of trainees, including the obligation of the employer to seek a written permit issued by Jobsplus, the employer's obligation to have a written agreement with the trainee in place and the keeping of updated records on trainees.

It must be noted that the Employment and Industrial Relations Act (CAP452) recognises the conditions of employment of 'apprentices' on the same level as conditions of employment of an employee. Article 23 grants the rights to mandatory bonuses to apprentices in terms of the applicable scheme under CAP594. Moreover, and more importantly, the enforcement mechanism provided by article 45 of CAP452 shall be used in relation to apprentices when it comes to breaches of their conditions of employment.

All this being said, the problem of bogus traineeships is not yet addressed in the Employment and Industrial Relations Act (CAP 452) and its subsidiary legislation. When the Proposed Traineeship Directive becomes part of EU law, it is envisaged that a new set of regulations would need to be compiled so that the Directive is transposed as mandated by the EU legislator. Notwithstanding the issue of having numerous provisions regulating traineeships in and under CAP594, Maltese Labour Law essentially emanates from CAP452 and bogus traineeships, which really and truly hide an employment relationship, could possibly be addressed therein in the same way as the Employment Status National Standard Order (S.L.452.108). Whatever course of action taken by the Maltese legislator, tools to curb abuse should remain on top of the agenda, especially when it comes to the most vulnerable.

Footnote

1. EUR-Lex – 61985CJ0066 – EN – EUR-Lex (europa.eu)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.