The European Commission presented a series of legislative and non-legislative initiatives on Thursday 9 December to strengthen the protection of workers on digital platforms, including a long-awaited directive introducing the rebuttable presumption of an employment relationship.
“Many of the European court rulings that we have seen have inspired us in the preparation of this proposal and in these judgments, the secondary criteria for review. It is therefore a question of establishing clear criteria and examining the facts”, explained Commissioner Nicolas Schmit at a press conference regarding the presumption of employment status.
He assured that the European Commission’s objective was certainly not to disrupt the growth of this booming economic sector, but to protect workers and ensure fair competition between digital platforms and between them and traditional players.
As we previously reported (see EUROPE 12848/1, EUROPE 12847/2), the European Commission has four objectives: - correctly determine the status of the worker through clear criteria; - make algorithmic management more transparent; - improve the traceability of platform and worker activities; - strengthen collective bargaining.
One of the issues that will be at the heart of the negotiations is contained in Chapter II of the Directive, in particular Article 4, which sets out a list of criteria for determining the employment relationship and, where appropriate, whether there is an employer/employee relationship.
Five criteria are defined: - determining the level of remuneration or setting upper limits; - electronic monitoring of work performance; - restriction of the freedom to choose working hours or periods of absence, to accept or refuse work, or to use subcontractors or substitutes; - setting specific binding rules on appearance, behaviour towards the recipient of the service, or the performance of the work; - restriction of the possibility to build up a clientele or to carry out work for a third party.
In practice, this means that all national authorities, including social security bodies, will treat platforms that meet at least two of the criteria as employers.
Platforms considered as employers will have to fulfil their obligations under national law, such as paying a minimum wage and respecting working hours and annual and family leave. Some platforms may choose to adapt their terms and conditions in order to work with freelancers, the institution said.
It will always be possible to rebut the presumption of employment status and thus nullify its legal effects. However, the platform or person will have to prove that the relationship is not an employment relationship within the meaning of the applicable national law. Where the platform insists that it is not an employer, the burden of proof will be on it.
Furthermore, it will be up to the Member States, in the context of transposition, to communicate and support the actors and workers on the presumption of employment status.
Algorithmic management
On algorithms, the European Commission wants to protect all workers (employees and self-employed).
It has four objectives: - improve transparency on monitoring and automated decision-making and its impact on working conditions (how workers are assessed and what is used to make a decision, such as in the case of sanctions or bonuses); - prohibit the collection of personal data that is not directly related to work (such as data on physical and mental health); - ensure human follow-up of automated decisions; - provide an opportunity to challenge automated decisions.
This last point (developed in Article 8) will certainly also be an important policy element: platforms will have to put in place a contact person to clarify the facts and circumstances of a contested decision. They will have to provide a written statement for each decision against a worker. The worker may ask the platform to review the decision, which must respond within a week.
Collective representation is also an important issue, as 90% of workers are classified (rightly or wrongly) as self-employed.
The proposed directive introduces the need to inform and consult platform workers and their representatives on algorithmic management decisions. It calls on digital work platforms to facilitate communication channels for people working through them to organise and to be contacted by workers’ representatives.
In this respect, the European Commission presented on the same day draft guidelines for self-employed workers to join or form collective associations without infringing competition rules (see other news).
To consult the directive: https://bit.ly/31zWI0p
To see the paper: https://bit.ly/3IDrLc4
To read the guidelines for the self-employed: https://bit.ly/3yc0KrB (Original version in French by Pascal Hansens)