+++ BREAKING: The draft Platform Work Directive has made into the press +++ This text seems poised to make a huge difference in how platform work is regulated. A brief explanatory THREAD here and a more expanded comment with @_aloisi coming soon. 👇🏼 politico.eu/article/eu-gig…
The Directive has a broad definition of digital labour platform. It applies to all forms of offline platform work both offline (food-delivery; domestic work; transportation) and online work (crowdworking). It is not sector specific like the Spanish Ley Rider.
The Directive reaffirms the “primacy of facts” principle of substance prevailing over forms. Even if the parties described their relationship as one of self-employment this can be challenged and reclassified if the reality of the work does not correspond to an independent status
Platform workers can thus always rely on the reality of how work is performed to claim employment status. Boilerplate clause should not prevent them to obtain a reclassification if their work corresponds “or may be deemed” to correspond to employment
The Directive introduces a rebuttable PRESUMPTION OF EMPLOYMENT STATUS when 2 of the following 5 elements exist: 1) the platform determines or fixes an upper limit to remuneration; 2) the platform establishes binding rules on appearance, treating customers, or work performance;👇🏼
3) the platform supervises work or assesses its quality also based on algorithmic means; 4) the workers’ ability to organize their work - also regarding working time or hiring substitutes - is restricted; 5) the ability to grow a client base or work for a 3rd party is restricted
This is a game-changer in how employment status will be determined in court. But a presumption doesn’t mean reclassification is always granted. Today, a Belgian court rejected a reclassification claim from Deliveroo riders even in presence of a sectoral presumption of employment
What is really striking is a whole chapter on REGULATING ALGORITHMIC MANAGEMENT. Workers and their representatives will have to be informed about how the algorithms managing platform workers operate, what are their criteria, what is actually monitored and what decisions…
… are taken or EVEN ONLY SUGGESTED by algorithms. This is better drafted than the current text of the GDPR and can be expected to make algorithmic management more transparent and accountable. Also criteria for sanctions, dismissals and rejection of payment will be subject to it
The processing of data about mental and emotional states of workers is banned; and so it is about data regarding their health or their private conversation including with workers representatives.
The Directive adopts a “Human-in-command” approach. Algorithmic systems must be constantly monitored and they cannot force workers into work paces that endangers their physical or mental state. Workers have the right to obtain explanation about and challenge algorithmic decisions
A fully-fledged right to contest is mandated by the Direction. Information and consultation duties also apply concerning algorithmic management. We are still short of a right to bargain collectively offer these algorithms but this is a first step. Transparency rights are also…
…provided to the platform workers that will still be classified as self-employed albeit on a more limited basis. Coupled with the absence of the recognition of all platform workers to bargain collectively regardless of employment status this can create problems to effectiveness
Overall, the text seems innovative, balanced, and well-conceived. Some parts could be bettered but the core seems solid. It also corresponds to judicial developments around Europe in the last years. The Directive consolidates the comparative judicial acquis without upending it
Much will still depend on how the Council and the Parliament will want to amend the text. But its construction and coherence with national legislation and case law does not warrant any amendments aimed at making it less effective and encompassing.
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