The Swedish Presidency of the Council of the EU will submit to the Member States on 27 March new ways to reach an agreement on the Directive regarding digital platform workers.
A new document dated 17 March draws the lessons from the Social Question Working Party of 13 February, which confirmed the divergent views of Member States on the application of the legal presumption of employment.
Several countries were still concerned about the possibility that a platform might not be considered as fulfilling a criterion (for triggering the presumption of employment) under the Directive, if it is already required to do so by a similar national provision or a national collective agreement.
“It was recognised that there is a need for defining the conditions for triggering the presumption in a way which does not lead to criteria being fulfilled by a platform, which is simply complying with applicable law or collective agreements. At the same time, it has been suggested that there is a risk that Article 4(2a) might open up for circumvention of the legal presumption”, the note says.
The Swedish Presidency has therefore deleted this Article 4(2a) and proposed to specify in the chapeau of Article 4(1) that the criteria must be triggered “either by the digital labour platforms’ applicable terms and conditions or its acting in practice”.
The compromise text subsequently introduces a reference to “exercising control and direction” in the identification of the 3 out of 7 criteria still required to be met by a platform to trigger the presumption (“Exercising control and direction means meeting, either under the applicable conditions or in practice, at least three of the following criteria ...”, according to the new wording).
The text adds that the platform can only be held liable if the criteria are met as a result of requirements in its general terms and conditions or through its action in practice.
This new wording, intended to reassure the so-called pro-proposal countries of the Commission, could on the other hand have the effect of minimising the existence of collective agreements in the Member States regulating the activities of platform workers, especially the self-employed. Member States could therefore also object.
On the discretionary power granted by Member States to competent authorities not to apply the legal presumption, the new text also clarifies that this remains a “possibility”. In order to benefit from this discretionary power, the new Article 4(2a) provides that two cumulative conditions must be met.
The possibility of not applying the presumption only concerns situations “where competent authorities act on their own initiative (ex officio) and when it’s manifest that the contractual relationship in question is not an employment relationship as defined by the law, collective agreements or practice in force in the Member State in question”.
Link to the compromise: https://aeur.eu/f/5xg (Original version in French by Solenn Paulic)