The EU institutions have finally adopted the platform work directive after over two years of negotiations. The Council approved the provisional agreement on March 11.
The agreed text while nowhere near as strong as we would have liked is a step forward for platform workers. The intransience of member states especially France has resulted in a weakening of the text. While it does not provide a general presumption of employment or strict harmonized criteria at EU level, Member states must introduce a presumption of employment at national level to ensure platform workers are classified correctly. This will help tackle bogus self-employment.
This legal presumption of employment must refer to facts indicating control and direction and will not undermine progressive jurisprudence in member states. It gives explicit reference to the European Court of Justice jurisprudence and will not undermine national courts jurisprudence that supports the reclassification of platform workers as employees.
While the Directive does not provide a baseline standard at EU level by defining control and direction and applying a consistent presumption of employment across member states. It does have five key elements to help correctly classify platform workers as employees.
- A presumption of employment introduced in all member states. This will be an improvement on the status quo and there are no criteria for platforms to find loopholes. The presumption must be based on control and direction platform companies have over riders/drivers.
- The burden of proof will not be on the worker. The proceedings deciding employment status will not increase the burden of requirements on platform workers or their unions. It will be up to Platform companies to prove they’re not employees.
- Provide controls and inspection by national authorities, where appropriate, when a platform worker is recognized as an employee. There is an obligation for targeted inspections.
- Strong trade unions rights to represent platform workers and start reclassification proceedings, strong recognition of trade union in recitals.
- Exchange of information and best practices between different Member States on the functioning of the respective legal presumptions of employment with European Commission involvement
A recent court case in Portugal highlights the potential of national presumption of employment to help reclassify platform workers as employees. While the platform companies will undoubtably appeal this judgement, if all member states have a presumption of employment in place it will provide platform workers and unions with easier avenues to reclassification.
The algorithmic management chapter is the first European legislation to provide rules around algorithmic management in the workplace. It will end ‘robofiring’, where a platform worker is fired based on algorithmic or automatic decision making. There will have to be human oversight on important decisions that directly impact on platform workers. Platforms will also be obliged to inform workers and unions about how the algorithms work and the impact of workers decisions on the algorithm. It will also give greater protection of personal data.
Overall, this directive will help improve the situation of platform workers by giving them easier access to their employment rights. While it does not go as far as we would have liked but it is a very valuable tool for platforms and unions to take action at national level. For the first time ever, it provides better data privacy and regulation of algorithmic management.
Our major concern is that existing national and EU legislation is not being enforced robustly enough. We urge member states government to listen to the voices of platform workers and unions and transpose, implement and enforce this legislation as soon as possible. The number of people working through platforms has risen by over 30 per cent in the 800 days since the Commission launched this legislation. Platforms recent hike in the share of platform workers’ pay shows that without enforcement of regulations they will continue to put shareholders and profits ahead of the most basic entitlements such an employment contract and payment of minimum wages.
Together with our affiliates, we will monitor the transposition, implementation and enforcement of this regulation closely and push national authorities to act. This will be key to ensuring a consistent implementation across member states.
