It's all About the Money? Legal Pitfalls of Extending Social Protection to Unpaid (or Poorly Paid) Trainees

Abstract

Social security law has traditionally been designed to regulate a specific exchange: work performed in return for remuneration. Since the primary purpose of traineeships is not remuneration, applying social security law to trainees is often difficult or ineffective. This contribution explores the challenge of ensuring adequate social security protection for trainees in the absence of (sufficient) remuneration, with a particular focus on the Belgian context. We begin by examining a recent decision of the European Committee of Social Rights concerning the right to fair remuneration for trainees in Belgium. Based on this decision, we conclude that unpaid or poorly paid traineeships are not prohibited under the European Social Charter, provided they include a genuine educational component. Given that unpaid or underpaid traineeships are not outlawed, we then assess how the lack of (sufficient) remuneration affects trainees’ access to social security. In Belgium, the social security scheme for salaried workers applies only to those who work for pay, which excludes trainees. Furthermore, the two specific branches that have been extended to include trainees - covering occupational accidents and occupational diseases - were originally intended to protect paid employment. To adapt these branches to trainees, the minimum wage, which is denied to them under labour law, paradoxically re-emerges as a reference point for calculating the economic loss resulting from an accident or illness. A comparison of the Belgian case with the systems in France and Spain shows that the more social security coverage is detached from remuneration, the more the financial burden of that coverage shifts to the collectivity. Finally, we consider whether international and European law require Belgium to extend the social security coverage of trainees to include other branches (unemployment, pensions, etc.). In this regard, we conclude that, like national legislation, international and European legal frameworks remain primarily focused on paid employment.