Elisabetta Gualmini (S&D, Italy), the European Parliament’s rapporteur on the digital platforms directive, is expected to present a more ambitious report than the European Commission’s proposal to the Employment and Social Affairs Committee (EMPL) on 19 May, in particular extending the list of criteria for determining the presumption of employment by including them in a recital rather than an article.
This tactic would make it possible to avoid agreeing on too narrow a list of criteria and would have the merit of reflecting the full reality of workers on digital platforms.
Revealed by Euractiv on Tuesday 10 May, the report, as seen by EUROPE, thus proposes a new recital on the concrete elements that may indicate that the digital work platform supervises or exercises some control over the execution of work. Among the criteria: the platform determines in practice the working conditions or remuneration or both “or issues a periodic payment of remuneration to the worker”; it “supervises the performance of the work or verifies the quality of the work, including by electronic means, that leads to the final result; tracks or monitor the person performing platform work; enforces the performance through penalties, including restricting access to work, or uses customer rating systems as a tool of control and basis for penalties”.
It “relies on measures of performance and (mis)conduct as a basis for determining remuneration levels, working conditions and penalties; determines access to jobs through internal rankings; restricts the freedom, including through penalties, 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”.
The amendment further provides that the platform “provides the worker performing platform work with tools, digital means, materials or machinery that are necessary for the performance of the work”.
“That list is not exhaustive and any other relevant concrete element can indicate that digital labour platform supervises or exert some control over the performance of work. When assessing on the rebuttal of the presumption, competent authorities should be guided, inter alia, by the concrete elements provided above, as any of them should lead to confirmation of the presumption”.
The draft report also states that “the existence of a collective agreement signed by one or several digital labour platforms and representatives of self-employed workers does not preclude the existence of an employment relationship. This will not in any way prevent the application of the legal presumption of employment relationship in line with this Directive”.
The Directive should also apply, for the provisions on algorithmic management, to all workers who are subject to automated or semi-automated control and decision-making systems with regard to their working conditions or the organisation of their work.
But “algorithmic management that entails fully automated decision-making that has significant effects on individuals without input from human managers is unlawful”, the rapporteur also adds.
Labour Inspectorates
The report further states that “the reclassification of a person performing platform work from self employed to platform worker should immediately generate an inspection of relevant authorities in order to rapidly correct the misclassification that possibly concern the other persons performing platform work for the same digital labour platform”.
Finally, Ms Gualmini’s report also strengthens the role of trade unions and collective bargaining.
In many respects, it goes further than the Commission’s proposal, even though the Commission itself is suspected of having recently watered down its proposals on the so-called rebuttable presumption principle (see EUROPE 12939/17).
Link to the draft report: https://aeur.eu/f/1ko (Original version in French by Solenn Paulic)