Meeting with ETUC on Platform work
Ref. Ares(2022)3088834 - 19/04/2022
Ref. Ares(2022)3633471 - 12/05/2022
5 April 2022, 16:00
Basis: CAB SCHMIT/1150
Commissioner Schmit
Jobs and Social Rights
Meeting with ETUC on Platform work
5 April 2022, 16:00
Briefing coordination:
Main contributors:
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Meeting with ETUC on Platform work
5 April 2022, 16:00
Basis: CAB SCHMIT/1150
Scene setter
You are meeting with Mr Luca Visentini, ETUC General Secretary and Mr
Ludovic Voet, ETUC Confederal Secretary to discuss the Commission’s
proposal to improve working conditions in platform work.
ETUC supports the Commission’s proposal and considers that the presumption
of employment and the reversal of the burden of proof are the right tools to
ensure genuine employment relationships and the protection of the labour rights
of people working through digital platforms. However, they are concerned that
the proposed Directive sets burdensome criteria to activate the presumption of
employment.
Our objective is to address these concerns and to reassure ETUC that the
proposed criteria are defined so that they are clear and easy to operationalise,
in order to identify those persons that should be in an employment relationship,
while leaving space for genuine self-employment.
Main messages
On 9 December 2021, the Commission adopted its proposal for a
Directive
on improving working conditions in platform work. The proposed
Directive tackles three core issues: the misclassification of the employment
status, algorithmic management, and cross-border transparency.
We propose a
rebuttable presumption of the existence of an
employment relationship, which will apply to digital labour platforms that
control the performance of work. Our proposal puts forward a number of
criteria of such control, providing more legal certainty at EU level.
In order to establish the criteria of control and determine whether the legal
presumption of employment relationship would apply, the Commission has
analysed relevant national and ECJ cases.
We know that the
trade union movement has misgivings about the
wording of the criteria, and that
two out of five criteria have to be fulfilled
to trigger the presumption.
However, we think it is
crucial to have concrete criteria that are
operational and that
would not require complex legal analysis from
those who would invoke the presumption.
I would
caution against scrapping the list of criteria or replacing it with
a single criterion of ‘direction, control and organisational integration’.
That would make it more difficult to use the presumption, as it would
require
full proof of ‘legal subordination’. The presumption would lose its
facilitation function, and would
hardly constitute progress compared to
today’s situation.
The criteria have been carefully selected, and the need to meet 2 out of 5 for
the presumption to apply strikes the right balance.
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Meeting with ETUC on Platform work
5 April 2022, 16:00
Basis: CAB SCHMIT/1150
The presumption and the criteria are designed to capture (almost) all
persons that should be in an employment relationship, while avoiding too
many ‘false positives’ (i.e. genuine self-employed inadvertently captured by
the criteria).
The few cases where that happens can be rectified through the rebuttal
procedure. Moreover, Member States’ guidance to platforms and workers
should also contribute to avoiding ‘false positives’.
Throughout the proposal, we have integrated the
collective dimension,
ensuring that platform workers can
meet and organise and will be
consulted on algorithmic management decisions, in order to
support
social dialogue in platform work.
This proposal fully respects Member States’ competences in the area of
labour law, as well as the traditional role of social partners.
Defensives
The European Trade Union Confederation has welcomed the Commission
proposal but regretted that the directive sets burdensome criteria to
activate the presumption of employment.
The proposal, when adopted, will bring greater legal certainty than exists
today. We have already had more than 100 court decisions in the EU, with
hundreds of cases still pending. A criminal case against Deliveroo is pending
in France.
One of the key provisions of the proposed directive is a rebuttable
presumption of an employment relationship. The presumption applies to all
digital labour platforms that exercise control over the people who work
through them.
The proposal puts forward a number of criteria of such control. If at least two
criteria are fulfilled, the person is presumed to be a worker.
The criteria are defined so that they are clear and easy to operationalise.
They were derived from the ECJ case law (‘Yodel judgment’) and the rulings
of the highest national courts in cases on platform work.
The presumption and the criteria are designed to capture persons that
should be in an employment relationship, while leaving space for genuine
self-employment.
At the same time Member States can enact rules that are more favourable to
workers – this is implicit in a minimum-standards Directive such as this one.
E.g. Belgium has announced new rules to protect people in platform
economy. Their approach is in line with the Commission’s proposal while
adding three more criteria i.e. having 8 criteria in total. Fulfilling 2 out of the 5
EU criteria, or 3 out of the 8 would trigger the presumption of an employment
relationship.
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Meeting with ETUC on Platform work
5 April 2022, 16:00
Basis: CAB SCHMIT/1150
The proposal refers to ‘representatives’ of platform workers and not to
‘trade unions’. This could give rise to ‘yellow unions’ set up by the
platforms.
I am aware of this concern and I agree that workers should only be
represented by
legitimate representatives. This is ensured in the proposal
by referring to national law and practice.
At the same time, there are
different national traditions, and
different
roles are played by different institutions. For instance, the information and
consultation rights are often exercised by
elected work councils. Referring
to ‘trade unions’ would be too narrow.
Also we have seen
grassroots initiatives in platform work which often
cooperate with traditional trade unions. This is a welcome development.
How will the rebuttable presumption work in practice?
If digital labour platforms fulfil certain criteria, which indicate that they control
the performance of work (for instance restricting the freedom of people to
organise their work), they will be ‘presumed’ to be employers and the people
working through them will be ‘presumed’ to be their employees.
This means the digital labour platforms in question will be considered and
treated as employers by relevant authorities. They will have to fulfil their
obligations as employers under national and EU law, for instance with
regard to minimum wages, working time and annual and family-related
leaves.
However, it is possible to challenge the employment status presumption, i.e.
to undo its legal effects. To do so, platforms have to prove that the
relationship is not an employment relationship under national definitions, i.e.
that the person is in fact self-employed.
The burden of proof in such administrative and legal proceedings will be on
the digital labour platform.
Will the Commission’s initiative reclassify all people on platforms from
self-employed to workers?
There is no automaticity. What matters is a correct employment status.
For this, the proposed Directive is putting forward measures that will help
determine the correct employment status. Only in case there is a
misclassification, a rectification will need to happen.
This will however apply only to a minority of people working through
platforms. According to the impact assessment study, currently there are
about 5.5 million people who are at risk of being misclassified.
Why does the Commission not extend the rebuttable presumption to the
wider labour market?
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Meeting with ETUC on Platform work
5 April 2022, 16:00
Basis: CAB SCHMIT/1150
Certain non-standard forms of employment are already regulated at EU
level, providing a minimum level of protection for the workers concerned and
thereby combating precariousness as well as segmentation of labour
markets.
For instance, the three EU Directives on non-standard forms of employment
(part-time, fixed-term and temporary agency work) aim at improving the
protection of the increasing number of workers concerned, while also
recognising the labour market role of these flexible forms of employment.
Moreover, Directive 2019/1152/EU on Transparent and Predictable Working
Conditions modernises EU labour law and covers non-standard
employment. It gives new rights, in particular to on-demand, domestic
workers and people working through platforms that are classified as
employees. They need to know at the beginning of their employment – this
means within the first week – what their basic rights and obligations are.
The Council Recommendation on access to social protection for workers
and the self-employed (2019/C 387/01) also addresses the challenges of
access to social protection for all, including people working through
platforms.
Why do you only propose new rights with regard to algorithmic
management for platform work, when surveillance and monitoring at the
workplace are increasingly common in other sectors as well?
It is true that algorithmic surveillance and monitoring are becoming more
common in brick-and-mortar companies as well. This comes hand-in-hand
with digitalisation and the wide spread of remote work that was accelerated
by COVID-19 pandemic.
However, algorithmic management is inherent to the business model of
platforms, where all but a few management tasks directly related to the
services offered are automated.
The combination of the risk of misclassification with the inherent use of
algorithmic management causes specific challenges that are not yet
observed in brick-and-mortar companies. This initiative addresses algorithmic
management in the specific case of digital labour platforms which have an
impact on working conditions for workers. While in other companies
algorithmic management is used to support managers, in platform work it
may often replace them. It thus conceals the existence of control in platform
work and makes it more difficult for workers to prove the existence of an
employment relationship.
As the world of work changes quickly and technological developments
accelerate, new challenges emerge that might need to be tackled in the
future. The Commission will continue analysing the phenomenon and keep a
close eye on any potential future needs to regulate the use of algorithms in
the wider world of work.
5/6
Meeting with ETUC on Platform work
5 April 2022, 16:00
Basis: CAB SCHMIT/1150
Background
Next steps for the Commission proposal
After a first presentation under the Slovenian Presidency, three meetings have
been held on the proposal under the French Presidency, mainly dedicated to
Member States’ questions on the proposal (in particular the chapter on the
employment status) and questions on the impact assessment. The French
Presidency aims at finalising the first reading with questions by 4-5 April, and at
examining first amendments starting end of April. A Progress Report will be
presented to the June EPSCO Council. The incoming Czech Presidency aims
at a General Approach, at the latest by December.
The European Parliament appointed as rapporteur
Elisabetta Gualmini (S&D,
IT). Shadow Rapporteurs are Radtke Dennis (PPE, DE); Ďuriš Nicholsonová
Lucia (Renew, SK), Van Sparrentak Kim (Greens, NL) Lizzi Elena (ID, IT)
Zalewska Anna (ECR, PL), Leila Chaibi (The Left, FR). The TRAN Committee
will make an Opinion, and Marianne Vind (S&D, DK) is the TRAN Opinion
Rapporteur (she is also a member of EMPL). The aim of the rapporteur is to
present a draft report to EMPL committee in May, vote in the Committee before
the summer break and vote in plenary in October/November.
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Document Outline
