Both the platform lobby and pro-employment rights’ MEP Leïla Chaibi reacted critically to the Council’s Platform Work Directive position
After over a year of negotiations, the Council of the EU has finally agreed its position on the Platform Work Directive, a regulation that could see workers in the gig economy given employment rights and algorithmic management protections across Europe.
The text was immediately criticised by those on both sides of the debate, which centres on whether gig workers like Uber drivers and Deliveroo food delivery couriers should be employees or independent contractors.
The Council is the body which represents member-states in the European Union, and the labour ministers from all 27 member-states met in Luxembourg on Monday [12 June] to thrash out a position on the Platform Work Directive, with the Swedish Presidency of the Council succeeding where the Czech and French presidencies had previously failed.
Twenty-two member-states approved the text, while Estonia, Latvia, Germany, Greece and Spain abstained. Spain is seen as the state most in favour of a strong presumption of employment in the Directive, with similar legislation already in place in the Southern European country for food delivery couriers. However, Estonia and Latvia had been on the other side of the argument, backing a Czech proposal in December which was much closer to the platform lobby’s position.
The pro-presumption of employment states which had acted as a ‘blocking minority’ on the Council – Belgium, Greece, Malta, Luxembourg, the Netherlands, Portugal, Slovenia and Spain – issued a statement saying they had allowed the text to pass “with the aim of keeping the legislative process on track”, as with the 2024 European Parliament elections approaching time is running out to agree a Directive before the end of the legislative period.
The text of the Council’s proposal contains significant changes to the European Commission’s original text in December 2021, and is a long way off that proposed by the European Parliament in February this year. Council changes include:
- The number of criteria for deciding if a platform worker should be considered an employee has been expanded from five to seven, with three criteria needed to trigger the presumption of employment, instead of two in the Commission text. The European Parliament proposed a general presumption of employment, with the Commission’s criteria limited to the recitals section of the text. The 3/7 criteria is likely to make it more difficult for platform workers to be considered employees.
- Sub-contractors (or ‘intermediaries’) operating between the platform and the platform worker will not be a block on platform workers’ accessing their rights. The Commission text had not mentioned the issue of intermediaries, while the European Parliament text had proposed “joint and several liability” between the platform and the sub-contractor.
- There are a number of partial opt-outs for member-states included in the text, including no obligation to apply the presumption of employment to tax, social security and criminal proceedings, and a discretion not to apply the presumption of employment if national authorities are “enforcing relevant legislation on their own initiative”. On the otherhand, it is also possible for member-states to lower the threshold for triggering the presumption of employment as well.
- The legal burden of proof to rebut the presumption of employment at court lies with the digital labour platforms, which is the same as that proposed by the Commission and the European Parliament.
The next stage for the Platform Work Directive will be inter-institutional negotiations between the Council of the EU and the European Parliament to come to a final agreed text.
Responding to the Council of the EU agreement, Leïla Chaibi MEP, member of France Insoumise and responsible for platform work for the Left group in the European Parliament, stated: “The Council’s pro-Uber position agreed this morning is the opposite of that taken by the European Parliament last February, and is even contrary to the European Commission’s proposals. I am particularly disappointed to know that it was France that pushed for such a bad agreement that flies in the face of the interests of workers.
“This position is unacceptable for the European Parliament, which will fully exercise its role as co-legislator during the trilogues in the coming weeks. During these negotiations, the Parliament will defend the spirit of the directive from the Council which has clearly bowed to pressure from Uber and other lobbies. Platform workers across Europe can count on the European Parliament to deliver a directive that protects them.”
Dutch MEP Kim nan Sparrentak, who represents the Green group in the European Parliament, said: “The text of the European countries as it stands today is not good enough in many areas and does not effectively tackle bogus self-employment . It promises to be tough negotiations, because the positions are far apart in this area.”
European Trade Union Confederation Confederal Secretary Ludovic Voet was also critical of the agreement, stating: “Platform workers can’t wait any longer for their rights so it is positive that, after a number of delays at Council level, progress can now be made towards a directive which improves their working conditions. For too long, platform companies run by multimillionaires have been using loopholes in the law to escape their most basic obligations to their workforce and society.
“However, the position adopted by the Council today would prevent workers from finally receiving their right to earn at least the minimum wage, sick pay, holiday pay and social security access. You only need to look at the recent law passed in Belgium, which follows the spirit of the EU proposal and includes a reclassification system based on workers fulfilling certain criteria, to see this has not yet led to an improvement in working conditions in practice.
“The Council’s position also risks taking away independence from genuinely self-employed workers who want to retain that status. We hope that the trialogue negotiations, with a strong position on the part of the European Parliament, will start quickly and produce a directive which will give workers a genuine right to employed status.”
Uber’s EU Public Policy twitter account issued a statement reading: “The Platform Work Directive is well intentioned, but it’s clear this is no longer about improving working conditions for platform workers. Instead of providing legal certainty and mandated protections for genuinely self-employed workers, both the Council and Parliament’s positions would likely force hundreds of thousands of people out of work, and push a small minority onto employment contracts that they don’t want.
“As many countries across Europe have demonstrated, there are better ways across Europe to uphold European social values without removing the independence and flexibility that the majority of platform workers say they want. This includes sectoral agreements in France and Italy where over 100,000 platform workers have guaranteed social protections and representation, regardless of the platform they choose to work on.”
Move EU, Brussels’ lobby group representing ridehail platforms’ Uber, Bolt and Free Now, called for the Council, the Parliament and the Commission “to address the lack of legal clarity and certainty of the Platform Work Directive during the interinstitutional negotiations.”
Just Eat, Europe’s largest food delivery platform which has supported a presumption of employment in the Directive, said: “The EU is now one step closer to achieving a level playing field, adequate rights and security for platform workers All necessary to strengthen the competitiveness in our wider sector.”
Jitse Groen, Just Eat’s CEO, was asked about the 3/7 employment criteria in the Council’s proposal, with the implication being that Just Eat’s main rivals would not meet this criteria. Groen responded: “This is not the end of the legislative process. The definitive text will be a negotiated outcome between the much stricter European Parliament text and this Council text. Also, current national law prevails. It’s a good step forward.”
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