Deal on key issue of the presumption of employment for platform workers gives member-states leeway to add more ‘indicators’. Agreement still needs to get a two-thirds majority among member-states, which could be tricky.
A provisional agreement was struck in the early hours of Wednesday [13 December] morning between the Council of the EU and the European Parliament (EP) for a Platform Work Directive, a legislation which could enhance the rights of millions of gig workers in all 27 member-states of the European Union.
The all-night ‘trilogue’ talks led to a compromise finally being struck between the two negotiating teams, an agreement which is likely to be the beginning of the end of a four-year long process which at times looked like it would not be concluded before the end of the parliamentary term in April next year.
“I think this is really a historic deal, I am not exaggerating,” European Parliament rapporteur on the Platform Work Directive, Elisabetta Gualmini MEP, said at a press conference to announce the deal. “For the first time we build up a framework of social rights for millions of workers in Europe.”
There are two main stated purposes of the Directive: to ensure the correct employment classification of platform workers, and to establish rules on the use of algorithmic systems in platform work.
The agreed text has not yet been released, and sources told the Gig Economy Project that it could be several weeks until it’s made publicly available. But from the information which has been released by negotiators, what we have gleaned from sources and a European Parliament Employment Committee press conference on Wednesday, we can say the following about the substance of the provisional agreement.
Presumption of Employment
Platform workers will be presumed to be employees if at least two out of five “indicators” of a relationship of subordination are met. This will be the start of a legal process in which a court or an administrative authority will ultimately decide on whether they should be re-classified as employees or not.
If one worker in a workplace is found to be an employee, it will be mandatory for an investigation to occur by a labour inspectorate or other competent authority as to whether other workers in that workplace should also be considered employees. However, GEP understands it would be possible for platforms to appeal the decision and for this appeal to be heard before the re-classification takes place, potentially slowing down the process considerably.
The two out of five indicators is a move back to the proposal of the European Commission in December 2021, after the Council had proposed three out of seven and the Parliament had proposed a general presumption of employment, as currently exists in Spain’s food delivery sector following the passing of the ‘Rider Law’ in 2021.
While we do not know the final text of the five indicators, in the European Commission proposal the five were:
“1) effectively determining, or setting upper limits for the level of remuneration;
2) requiring the person performing platform work to respect specific binding rules with regard to appearance, conduct towards the recipient of the service or performance of the work;
3) supervising the performance of work or verifying the quality of the results of the work including by electronic means;
4) effectively restricting the freedom, including through sanctions, to organise one’s work, in particular the discretion to choose one’s working hours or periods of absence, to accept or to refuse tasks or to use subcontractors or substitutes;
5) effectively restricting the possibility to build a client base or to perform work for any third party.”
It is ‘at least’ two out of five indicators because it will be possible for member-states to introduce more indicators through national law. Asked at the press conference whether more indicators would also mean a higher number would be needed to trigger the presumption of employment (e.g. three out of seven, or five out of nine), Gualmini did not give a clear answer. More indicators will almost certainly make it harder to trigger the presumption of employment.
As for the use of the term ‘indicators’ rather than the original ‘criteria’, Gualmini said that they wanted a wording which better reflected the fact that this “would only be the start of the process”, providing “signs or hints” of what the employment relationship would be rather than a definitive conclusion.
“The indicators are just the context on which to start the presumption,” she insisted.
The provisional agreement also includes a reversal of the burden of proof, so it is the platforms which are responsible for proving the employment status of their workers, rather than the other way around, as it is today. This is a significant difference with the Belgium platform work law passed at the start of the year, which did not include a switching of the burden of proof. However, it is not totally clear what the switching of the burden of proof will mean in practise, since it is platform workers or a competent authority, such as a Labour Inspectorate, who is still required to pursue the presumption of employment process if they believe a worker to be bogus self-employed.
The agreement also includes provisions on the use of intermediaries (or sub-contractors) by platforms. Intermediaries will also have to comply with the Platform Work Directive, and platforms will be accountable for ensuring that intermediaries they are contracted with do so. While a report last week stated that the Directive would not include a requirement of joint and several liability on platforms and sub-contractors – holding both entities legally responsible – GEP understands that is included in this agreement. Joint and several liability is currently in place for postal workers in the EU, which often work through intermediary companies.
Gualmini insisted that there is no derogation for platforms that have collective agreements (dubbed ‘the French derogation’) and no exemption for social security and tax bodies from the Directive, as the Council had proposed.
The algorithmic management part of the text includes a prohibition on the de-activation of a worker from the app through automated processes, commonly known as ‘robo-firing’. This will also apply to the suspension of accounts. There will also be more human oversight on other decisions affecting workers, although the details are not yet clear.
Platforms will be forbidden from processing types of personal data which do not relate to the labour process, such as that relating to trade union activity or political beliefs. This will include not collecting data on workers when they are not connected to the app, and some restrictions on the use of biometric identification, although the details are not yet clear.
Gig workers and trade union representatives will also have the right to know what information is held on them, although it’s not clear to what extent this goes beyond current rights under GDPR. These rights will apply to platform workers regardless of employment status.
Not finalised yet
There are still a couple of hoops to jump through before the four-year long process of legislating for the Directive is over. It has to be officially ratified by both the Council and the European Parliament before the text becomes law.
The European Parliament vote is likely to be a formality, as The Left in the European Parliament and the Greens group, which were most against any watering down of the EP’s mandate, reluctantly backed the deal on Wednesday. The Socialists & Democrats Group, Renew Group and a section of the European People’s Party group are also on board, giving the provisional agreement an overwhelming majority in the Parliament.
It is not so clear that the Council is as united as the EP, however. ‘Agency Europe’ reported on Tuesday that the Spanish Presidency of the Council was negotiating with the EP “without a new, formally revised mandate”. The Spanish Government is one of the most in favour of a strong presumption of employment in Europe, a position not held by the majority of the member-states.
The Council of the EU’s proposal was for seven criteria, in which three had to be met to trigger the presumption of employment. Agency Europe reported that while some member-states were willing to compromise, others were determined to stick to the Council proposal.
A ‘Coreper’ meeting of member-states will be held on 20 December, in which the Spanish Presidency will need to convince two-thirds to support the provisional agreement for it to be ratified. A source told GEP that it is possible that the French Government could try to lead a ‘blocking minority’ of member-states against the proposal.
Yolanda Díaz, Vice-President of Spain and Minister for Labour, who is responsible for the Platform Work Directive in the Spanish Presidency of the EU, said: “This proposal, which has been inspired by the Spanish Rider Law, represents a great advance for women and men who work on digital platforms.
“If the Council of the European Union ratifies it next week, it will mean that these workers will have more rights, especially those who have until now been wrongly considered self-employed, because they will have better labour and social protection.”
European Parliament rapporteur Elisabetta Gualmini MEP said: “This is a revolutionary agreement and the first legislative framework for digital platform workers.
“We have transparency and accountability for algorithms, we have better rights for the least protected workers in the world and we have fair competition for platforms.
“Today, we can say to 40 million platform workers that Europe is there for them, also for the most precarious workers.
“I am honoured to have been in charge of this revolutionary change. What a beautiful night it has been and what a beautiful future we will have.”
Ludovic Voet, Confederal Secretary of the European Trade Union Confederation, said the provision agreement was “a genuine attempt” at reform.
“We still need to scrutinise the final text of this agreement closely, but what is clear is that there is a genuine attempt to address the grave problems that working people face.
“Platform companies have forced delivery riders, taxi drivers and other workers, including carers and cleaners, into false self-employment in order to avoid paying holiday pay, sick pay or social security.
“This should be the beginning of the end for the wild west in workers’ rights but there is now responsibility on member states to properly enforce the measures agreed today if they are going to make a difference to the lives of 5.5 million platform workers.
“The reversal of the burden of proof over what constitutes an employment relationship is an important step forward. Workers cannot be expected to continue taking on an army of corporate lawyers simply in order to receive a basic right like sick pay.
“Transparency over algorithmic management will also help prevent platforms using disgraceful union-busting tactics like punishing people who join unions by depriving them of work.
“After long and difficult negotiations, we now expect the Council to confirm the mandate so that workers can start feeling the benefit as soon as possible.”
Leila Chaibi MEP, who leads on platform work in The Left group in the European Parliament, said:
“Until the last moment, the Uber and Deliveroo lobbies worked behind the scenes to sabotage this directive.
“I would have liked this agreement to be more ambitious, but we held on, Uber has not made its law in Europe.”
Nicolas Schmit, European Commissioner for Jobs and Social Rights, said: “The platform economy has transformed the way we consume and work, and we want it to continue to thrive. At the same time, we have to make sure that it meets the same labour and social standards that offline companies adhere to. This is a question of fairness, for both workers and companies.
“The new rules we have agreed ensure platform workers, such as drivers and riders, receive the social and labour rights they are entitled to, without sacrificing the flexibility of the platform business model. Workers will also understand better how automated decisions are taken. Platforms will have legal certainty throughout the EU for the first time. And consumers will continue to enjoy access to platform services at their fingertips. This is a historic achievement.
Move EU, the European Association of On-Demand Delivery, a lobby group which includes Uber, Bolt and Free Now, stated:
“Move EU supports the EU’s goals to improve conditions in platform work and provide legal certainty for genuinely self-employed workers. Unfortunately, we believe that the Report voted on by the EMPL Committee on Monday, 12 December fails to deliver on either objective.
“Based on the Report, independent platform work would effectively not be allowed to exist in Europe, forcing 149 000 drivers out of their jobs. All while offering zero additional protections for those who remain independent.
“This goes directly against what the vast majority of drivers say they want. In survey after survey, drivers make it clear they do not want to be employed, they do not want to lose the flexibility platform work provides and they want to keep the additional revenue they get from being able to work for multiple platforms simultaneously.
“We therefore urge the European Parliament to be more attentive to what drivers want and take a more comprehensive approach during the Plenary discussions, in order to provide legal certainty and give independent platform workers the necessary protections they deserve.”