YFJ v Belgium - Unpaid internships
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Judgement date :16/02/2022
The complaint was registered on 11 May 2017. It relates to Articles 4§1 (right to a fair remuneration) and 7§5 (right of children and young persons to protection) of the Revised European Social Charter. The European Youth Forum alleges that the provisions in Belgian law that enable unpaid internships, and the lack of enforcement of provisions that aim to curtail them, violate Articles 4§1 and 7§5 of the Charter.
In its decision on the merits, the Committee concluded:
- By 13 votes to 1 that there is a violation of Article 4§1 of the Charter on the ground that the Labour Inspectorate is not sufficiently effective in detecting and preventing “bogus internships”.
- By 11 votes to 3 that there is a violation of Article E read in conjunction with Article 4§1 of the Charter.
Regarding Article 4§1, the Committee considers that the main disagreement between the YFJ and the Government concerns the effectiveness of the inspection system regarding bogus internships and on whether a proactive approach has been adopted by the Labour Inspectorate in respect of “bogus internships”.
The YFJ puts forth two main criticism concerning the potential avenues of individual remedies pointed to by the Government. Firstly, young people are generally unlikely to take legal action because of the imbalance of power between themselves and their host organisations and the eventuality of being employed in the future might dissuade them from pursuing legal action. Secondly, young people are often unaware of their rights and/or the existence of social and labour inspection services. This also explains why, as to date, none or very few complaints have been received by the inspectors. [Para. 143].
The Committee considers that the domestic authorities have an obligation to assess the risks in the implementation of internship contracts and to determine concrete measures to uphold effectiveness of inspections in this context, in order to prevent young interns from being exploited as unpaid labour. However, an inspection system which solely depends on individual complaints by interns, in the absence of any other proactive measures taking into account the vulnerability of the targeted group, cannot be considered as efficient in these specific circumstances. [Para. 150].
Regarding Article E read in conjunction with Article 4§1, the Committee found that the inspection system which solely depends on individual complaints by interns, considering their disadvantaged situation, cannot be considered as sufficiently efficient in preventing misuses of unpaid internship contracts in violation of Article 4§1 of the Charter. The Committee considers that the insufficient efficiency of the Labour Inspectorate in this respect inevitably will have discriminatory consequences in respect of “bogus interns” as this category of workers is in practice deprived of an effective right to a fair remuneration guaranteed to other workers who perform analogous or relevantly similar work under a regular employment contract. [Para. 163].