Leading MEP pushes for tight employment protection in platform workers directive

Elisabetta Gualmini at a plenary session in Strasbourg, France. [European Parliament]

Centre-left lawmaker Elisabetta Gualmini has significantly expanded provisions for platform workers to ask for employee status and the human review of algorithm management in her draft report.

In December, the European Commission proposed a directive to improve platform workers’ working conditions, the first legislative attempt to regulate a growing but still untouched market. The EU executive estimated that 28 million people are currently working in the gig economy in Europe, a figure set to reach 43 million by 2025.

In her draft report due to be published on Tuesday (10 May), Gualmini, the European Parliament’s rapporteur, made significant changes to the text to introduce more robust protection for workers and tighter obligations in automated decision-making embedded in the workplace.

“These are not punitive measures against platforms. We do not say that the platform economy must be overregulated and punished. We welcome innovation in the workplace, as long as it does not go to the detriment of workers’ rights,” Gualmini told EURACTIV.

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Rebuttable presumption

At the centre of the Commission’s proposal is the so-called rebuttable presumption of employment, a provision that would make workers automatically classify as employees unless the platform proved otherwise. The original approach was that this legal presumption would be triggered if a worker met two of five criteria.

The Commission’s criteria included determining the maximum remuneration, binding rules for appearance such as a uniform, supervising performance by electronic means, restricting the freedom to organise one’s work, for instance, in terms of working hours, and limiting the possibility of working for someone else or build an autonomous client base.

Gualmini took a critically different approach, significantly expanding the criteria to 11 and moving them to the text’s preamble, which is not binding. The idea is the criteria will provide a non-exhaustive list of elements that the competent authorities can refer to when assessing employment status.

“These criteria risked not being exhaustive. The world of the platform economy is so varied and wide that it is very difficult to force it within five criteria,” she explained. In Gualmini’s proposal, the legal presumption would work very differently.

Platforms will have to declare their workers’ contracts with the relevant social security body. In case the declared contracts are for independent status, the social security body will have to verify them against the presumption of employment. The idea is not to verify that for every worker but to assess the actual nature of the contract.

Such transparency obligations are also meant to give the EU countries data on how many people work for the platforms and with what type of contract. This data is useful for the member states to get a sense of how the platforms operate and to tackle tax elusion.

 

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Similarly, labour inspectors will also have to double-check the nature of the working relationship when carrying out their checks. As a result, starting litigation would be the last resort, and also, in that case the rebuttable presumption would apply.

“We greatly reinforce the idea of having workers classified with the correct employment status to avoid incurring wrong classifications found in legal proceedings around Europe,” Gualmini stressed.

Two weeks ago, food delivery platform Deliveroo lost a landmark court case in France for “systemic concealment” of the workers’ status. However, court cases have led to contradicting results, as the same company won a similar legal proceeding in Belgium a few months ago.

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A French court ordered the maximum fine against food delivery company Deliveroo on Tuesday (19 April) for not hiring couriers as employees but as self-employed as the EU prepares its directive to clarify platform workers’ status. EURACTIV France reports.

Algorithm management & workers’ rights

The draft report states that a human must always remain the ultimate decision-maker for all essential aspects of professional life. Therefore, algorithms should not be able to decide on their own on the dismissal of workers or the organisation of their working schedule.

Critically, the rapporteur wants to extend this obligation of human review to all workers who have to interact with algorithms in their work environment without dealing with a platform. For instance, that would be the case for Amazon’s warehouse workers, who are constantly monitored and instructed by AI-power tools.

All the algorithm’s elements to assess the workers’ performance could be subject to collective bargaining. For instance, workers might contest how the automated tools assess time for completing a delivery.

The draft report mentions fostering a social dialogue between the workers and the platforms and empowering the workers to freely communicate among themselves, a measure intended to enable them to unionise.

A measure covering subcontracting has also been added to prevent the platforms from circumventing the directive.

What’s next

The draft report will be the basis for the parliamentary discussions in the committee on employment and social affairs.

The question remains to what extent conservative MEPs will buy into Gualmini’s proposals. For the rapporteur, there is a positive climate that resembles the own-initiative report that the Parliament adopted with a very broad majority last September.

However, according to an internal email seen by EURACTIV, conservative MEPs Aldo Patriciello and Miriam Lexmann warned their party peers against “eliminating all advantages this new model provides like independence and flexibility for workers.”

MEPs push to shape working conditions of the gig economy

The European Parliament adopted by an overwhelming majority a resolution on social protection for platform workers, anticipating key parts of an upcoming EU legislative proposal expected to come out before the end of the year.

[Edited by Nathalie Weatherald/Alice Taylor]

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