The European Commission, in the framework of the directive on ‘improving working conditions on platforms’, wants to introduce a series of criteria to enable national authorities to ensure that people working through digital platforms have the correct professional status. There are five such criteria, according to a very recent, if not final, version of the draft, seen by EUROPE on Tuesday 7 December.
This document confirms the main principles listed previously (see EUROPE 12847/2). The general objective of the directive is to improve the working conditions and social rights of workers on digital platforms, whether they are employees or self-employed.
The text specifically pursues three main objectives: - ensuring the correct categorisation of the worker in light of the actual relationship with the platform; - ensuring fairness, transparency, and accountability in the algorithmic management of platforms; - increasing transparency, traceability, and “responsiveness” to developments in platform work and improving the implementation of rules.
At least two criteria
The point that will certainly be at the heart of the debate is the categorisation of the status of workers. Here, the European Commission wants to introduce a rebuttable presumption of an employment relationship with a reversal of the burden of proof according to the principle of the primacy of facts (actual performance of work and remuneration).
In order to determine an employer/employee relationship, the European Commission sets out a series of criteria to enable the monitoring of the performance of work by national authorities according to national definitions. If the platform meets at least two conditions, it will be given the status of employer and the worker the status of employee.
These criteria (Article 4) qualify when the platform: - actually determines or sets upper limits for the level of remuneration; - requires the worker to comply with specific binding rules regarding appearance, behaviour towards the recipient of the service, or performance of the work; - supervises the execution of work or checks the quality of work results, including by electronic means; - effectively restricts the freedom, including through sanctions, to organise one’s work, in particular the freedom to choose one’s working hours or periods of absence, to accept or refuse tasks, or to use subcontractors or substitutes; - effectively restricts the possibility of building up a clientele or doing work for a third party.
These criteria are said to have changed significantly during the drafting of the directive, according to one source, who says that the first criteria were drafted more restrictively to target delivery platforms (such as Deliveroo) and transport platforms (Uber). These criteria will certainly be one of the major points of negotiation.
The directive requires Member States to strengthen controls and inspections on the ground.
Algorithms and challenge channels
Management algorithms are covered by the directive, which aims to ensure human control of the impact of these automated systems on working conditions in order to safeguard workers’ fundamental rights and health and safety at work.
To ensure fairness and accountability of decisions made by automated systems, the directive provides for channels to discuss and request review of such decisions. These provisions also apply to the self-employed.
Transparency and transposition
The directive requires platforms that are employers to declare the number of workers, their status, and their general working conditions to the competent national authorities.
The period for transposition is two years. The review is scheduled for five years after entry into force. Progress will be monitored through a series of indicators set out in the impact assessment.
The European Commission will present the initiative on Thursday 9 December.
To consult the impact study: https://bit.ly/3lHKpGd (Original version in French by Pascal Hansens)