The European Trade Union Confederation (ETUC) is concerned about the European Commission’s vision for the practical implementation of the ‘rebuttable presumption’ principle under the Digital Platforms Directive, according to an internal memo made available to EUROPE on Monday 25 April.
In its proposal, the European Commission has introduced a framework that includes procedures to ensure the correct determination of the employment status of persons performing work on a platform, in accordance with the ‘primacy of facts’ principle, as well as a rebuttable presumption of an employment relationship, with a reversal of the burden of proof (see EUROPE 12850/14).
This legal presumption would apply in all judicial and administrative proceedings, the institution said in its draft directive, including those initiated by national authorities to enforce labour and social protection rules, and could be rebutted by proving that there is no employment relationship by reference to national definitions.
However, in a presentation made by the European Commission to the European Parliament and the Council of the EU in April and obtained by EUROPE, the institution indicates that the presumption of employment of the directive is applied mainly when workers take legal action. “This is precisely what the Directive is supposed to make unnecessary”, Ludovic Voet, ETUC Confederal Secretary, told EUROPE.
“How can you rely on individuals in vulnerable situations to complain against their employers when you identify that more than 5 million workers could be misclassified?”, he asked.
Instead, he said, Member States should inform all platform companies operating in their country that their workers are to be considered employees, unless the company can prove otherwise. It should not be up to the workers or the public authorities to enforce this ‘presumption of employment’, he insisted.
The approach promoted by Commission officials, on the other hand, encourages platform companies “to sit back and wait for court challenges”, he continued. This is “wrong”, and goes against the very purpose of the directive, he said.
“This is in fact not a rebuttable presumption of employment relationship, but a mere shift of burden of proof in case of complaint. We don’t understand how the rebuttable presumption was weakened so fast”, he analysed.
To consult the European Commission’s document: https://aeur.eu/f/1d0 (Original version in French by Pascal Hansens)