Belgium introduced a platform work law on 1 January that has so far not changed anything. Gig Economy Project co-ordinator Ben Wray visited Brussels to find out what the problem is, and what lessons there are to learn for the EU Platform Work Directive.
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On 29 September 2022, the Belgian Parliament approved the “deal pour l’emploi”: a package of measures devised by the social democratic Minister of Economy and Employment, Pierre-Yves Dermagne, to reform various aspects of labour law.
One part of the package relates to platform work. The law introduces a twin set of criteria for deciding whether a platform worker is an employee or not; if either two of five or three of eight criteria are met, the platform worker is presumed to be an employee. It also introduces a work accident insurance for platform workers, including the self-employed, at the same level as the insurance covering other workers in Belgium.
The law entered into force on 1 January 2023, and over four months later…nothing has changed. No worker has been made an employee and no worker is yet to have accident work insurance as a result of the law. Belgian platform workers go on as before.
I visited Brussels recently to speak to trade unionists, politicians and platform workers about what the problem is, and what lessons there may be for the EU Platform Work Directive, which remains under negotiation in the European institutions.
An ineffective presumption of employment
On the presumption of employment, the major digital labour platforms operating in Belgium declared that they did not meet the criteria in the law. The Belgian subsidiary of Deliveroo, the British-founded food delivery platform part-owned by Amazon, states in a letter seen by the Gig Economy Project that they are “convinced that on the basis of [the law]…the status of employee cannot be presumed in the case of couriers using our platform”.
Martin Willems, national secretary of the ‘United Freelancers’ section of the ACV-CSC union, took Deliveroo’s response to the labour ministry in February and asked them what they planned to do to enforce the law.
“The reply I got was ‘well, I don’t know, could the union do something, like go to court?’,” Willems says. “And I said ‘well yes we can do this, but it will take a long time and I was expecting something more rapid and effective.’”
The idea of the presumption of employment is that the government, usually via a labour inspectorate, conducts an investigation of a platform and, if it decides that the workers are being falsely hired on a self-employed basis, it can order the platform to employ the workers, as well as potentially issuing a fine for fake self-employment and for back-dated social security contributions to the government. The platform can then challenge the decision in court, and in that way the burden of proof to make a legal challenge has switched from the platform worker/government to the platform. This is the way in which the presumption of employment operates in Spain.
However, in the Belgian text, there is no clear statement about switching the burden of proof. Without the switching of the burden of proof, a labour inspection which finds false self-employment could potentially lead to little more than a legal challenge in court, which in Belgium can take up to five years.
“The problem is that the labour inspectorate cannot force the platforms to do anything,” Willems says. “They can only make a statement that ‘we think this corporation is not abiding by the laws’ and the corporation can say ‘we think the contrary’.”
Nabil Boukili, a member of the Belgian Parliament for the Workers Party of Belgium (PTB), agrees.
“With this law, it is the workers responsibility to go to the labour inspectorate and start the procedure that will possibly grant them the employment status,” he says. “The problem again is the balance of power is with the platforms, because it is very difficult for the worker to take on this responsibility, it is costly and it is lengthy to prove this employment status. “
The Minister did announce that the labour inspectorate will “cooperate with the justice system in judicial investigations related to the platform economy” with 12 “joint investigations” to take place over 2023 and 2024. Willems fears that it will be the smallest platforms which are targeted.
“The labour inspectorate is very weak in Belgium,” he says. “I already saw it when I asked at the Labour Ministry for the inspectorate to carry out an investigation of Uber, and they said ‘you know Uber is a big company, maybe there is a little platform and it’s easier for us to do this’.
“It is also under-resourced. But if the Minister decided to put a priority on this, then something could happen.”
Another complicating factor is the criteria for triggering the presumption of employment in the Belgian law. By establishing a criteria, rather than a general presumption of employment, as is the case in the Spanish ‘Riders Law’, the possibility is created that the platforms’ high-powered lawyers could identify legal loopholes in the wording of the criteria.
“The current law has the criteria for employment status, but the problem is that the worker must prove that they should fall into this criteria, while we think that there should be a prior presumption of employment,” Boukili argues.
Finally, the situation is made more uncertain by the fact that a Belgian court judgement in 2021 found that a group of Deliveroo riders should not be re-classified as employees, going against the grain of court judgements across Europe on the employment status of app-based food delivery couriers. The ACV-CSC union is appealing the decision, with the case set to be heard on 16 November.
“There is the risk that when you go to court, even if the criteria is met, that it is rebutted by the judge,” Willems says.
Is a new law needed?
The accident insurance part of the law is not yet operable because the government is still working on finalising the details of how to apply it. However, even when it is applied, it will not be applicable for those workers who are on the ‘P2P’ tax status, due to a watering down of the law when it was being negotiated between the partners in the coalition government.
P2P is unique to Belgium and is supposed to be for workers operating in the platform economy as a top-up to their main source of income. P2P workers do not directly pay tax, unlike the self-employed, and in return do not get any social security support. Willems says P2P is attractive for many platform workers due to the costs of registering as self-employed.
“Eighty-five per cent of Deliveroo couriers are in P2P,” Willems explains, “so the accident insurance will only cover a small amount of workers.”
With the Belgian parliamentary elections set to be held in June 2024, Camille, an Uber Eats rider and organiser at Brussels’ House of Couriers, fears that the law may never deliver anything for him and his fellow gig workers.
“There is no law until the government assign a text to apply it, so for me it is just a spectacle, it is just a discourse and not an effective law,” he tells the Gig Economy Project. “I think they try to gain some time, but the fact is that the election is approaching and I really feel the text will not be applied.”
Boukili, who represents the Brussels-capital constituency, says an entirely new law may be needed to rectify the problems with this one.
“The opportunity was there to put in place an efficient law, but the law was emptied of any meaningful content,” he says. “We would like a new law because the current law is a bad law and doesn’t work.”
One of the changes he would like to see is the P2P status scrapped entirely.
“The P2P regime is definitely not applicable to platform workers because they work for a boss,” Boukili says. “A new law should guarantee clear conditions in terms of salary and status for both dependent workers and the genuinely self-employed.”
For Willems, it is still worth fighting to make the current law work.
“We will do everything before the next Belgian elections to make this presumption effective,” he says. “I have a lot of doubts, but I want to make the most of it. And at least I can say to the Minister: ‘Okay you made the law, you don’t want this law to remain a dead letter, because if it remains that way, it will be a problem for you.’”
Lessons for the EU Platform Work Directive?
The Belgian law was inspired by the European Commission text for the Platform Work Directive published in December 2021, and in many ways it is very similar to that. But the Platform Work Directive remains a work-in-progress, with the EU Council still struggling to agree on its text and ‘trilogue’ negotiations between the Commission, the Council and the European Parliament still to come. What can the European institutions learn from the Belgian platform work law to make sure the Directive is effective?
The most significant difference between the Belgian presumption of employment and that of the European Commission text is that the latter states explicitly: “The burden of proof that there is no employment relationship will be on the digital labour platform.”
The experience of the Belgian law so far suggests that without the switching of the burden of proof from the government and unions onto the platform, a lengthy legal process will still be required before anything changes.
“If the European Directive follows the steps of the Belgian law it will not be particularly effective,” Boukili argues.
Willems is of the view that the criteria in the Belgian law may be slightly stronger than in the proposal of the European Commission, but nonetheless agrees that without the switching of the burden of proof, a stronger criteria “does not amount to much”.
MEPs, Commissioners and Labour Ministers should all be taking the Belgian experience in to account when finalising the text of the Directive. The Belgian test case shows that the platforms – which are lobbying for the inclusion of a specific criteria in the Directive, instead of a general presumption of employment – will immediately deny that the criteria applies to them when the law is passed.
There is therefore an argument that a general presumption of employment, as proposed by the European Parliament, will avoid potential legal pitfalls. But with or without a criteria, there has to be a clear legal means by which the labour ministry can conduct a workplace investigation and, if it finds the workers do correspond to an employment relationship, can directly enforce the law. Otherwise, one “dead letter” may become two.
The Gig Economy Project contacted Uber in Belgium, Deliveroo in Belgium and the Belgian Minister of Economy and Employment, Pierre-Yves Dermagne, for comment on this story. None of them offered comment by time of publication.
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