The EU platform workers directive (directive) is almost adopted. On 11 March 2024, after two years of discussions and negotiations, a provisional agreement reached between the European Parliament (EP) and of the Council of EU (Council), was finally approved by the Council leading the way to the formal adoption by both EU bodies and to the publication of the directive in the official journal.
Background
The directive was proposed in December 2021 by the Commission (see initial proposal here), intending to better protect platform workers by regulating their classification, an issue that has led to many court cases across the EU (and beyond), and to strengthen their rights.
It seemed that the interinstitutional trilogue had come to an end on 12 December 2023 and that a final text was agreed. However, soon after, on 22 December, the Council rejected the deal. As of January 2024, negotiations have re-started under the Belgian Presidency of the Council. A provisional agreement was reached between the EP and the Council, published on 10 February 2024, but blocked by four Member States (Estonia, France, Germany and Greece), until 11 March, when the Council voted in favour.
This is the first regional legislation to regulate platform work and an important development for platform workers and for any online platform business making use of them, whether in tech or in more traditional industries.
The directive tackles several aspects of platform work and in particular sets out a framework in relation to classification of workers and collective bargaining, when compared to the 2021 draft.
Classification of workers / Presumption of employment – The initial proposal from the Commission and the draft agreed on 12 December 2023 provided for a legal presumption of employment when a number of indicators, as listed in the initial text of the directive, are met (see this blog post for the criteria in the initial draft). Member States would be able to add further indicators to the list, if they wished to do so. However, the current version of directive sets out an agreement between EP and the Council that removes the harmonisation of such indicators, and only leaves it to Member States “to determine what facts indicating control and direction are to be found for the purposes of triggering the legal presumption”.
The final version of the directive may look as a step forward for workers because it introduces a presumption of employment, should certain indicators of control be present. Although compared to the initial proposal and even to the agreement reached in December 2023 by the European institutions, in some respects the final text is a step back for workers, given that there will be less harmonisation than initially planned. The criteria that determine the control and hence the presumption of employment will have to be decided by Member States, hence nothing is substantially changing in this regard, leading to more complexity and still a fragmented landscape.
The directive also introduces a reversal of the burden of proof for them, with a requirement for them to provide evidence to support their argument that their workers are self-employed.
Collective bargaining: The current draft includes a new article on the promotion of the collective bargaining for platform workers, which requires Member States to encourage the exercise of the right to collective bargaining in platform work. This is in line with the adoption by the Commission of the guidelines on collective agreement of solo self-employed people (guidelines), in September 2022. As a reminder, both the draft directive and the guidelines were proposed as part of the same package in December 2021. The guidelines, that clarify when certain self-employed people can get together to negotiate collectively better working conditions without breaching EU competition rules, are soft law adopted by the Commission and need support from the local competition authorities. By contrast, including an article in the directive text means two things:
- Adjusting national legislation (with the adoption and transposition of the draft directive), hence more security for platform workers, as their rights are protected by hard EU and national legislation.
- A longer legislative process to benefit from the security mentioned above, as the directive (as the facts show) takes longer to be agreed and adopted.
Algorithmic management and transparency: The directive requires that workers are informed about the use of automated monitoring and decision-making systems. It also prevents digital labour platforms from:
- Collecting personal data when the platform worker is not offering or performing work.
- Processing the following types of personal data by means of automated monitoring or decision-making systems:
- personal data on the emotional or psychological state of platform workers;
- data related to private conversations;
- data to predict the exercise of fundamental rights, including the right of association, the right of collective bargaining and action or the right to information and consultation;
- data used to infer a worker’s racial or ethnic origin, migration status, political opinions, religious or political beliefs, disability or health status;
- biometric data, other than data used for authentication.
The directive requires that digital labour platforms do a periodic evaluation of the impact of the individual decisions taken/supported by automated monitoring or decision-making systems. Such evaluations should also involve workers’ representatives and should concern, according to the draft, not only working conditions of platform workers, but also equal treatment at work. The latter has been the cause for many court claims brought by platform workers who assert being discriminated against based on a decision made by an algorithm. For instance, a recent example is the ruling of the Labour Tribunal of Palermo, according to which an algorithm that favoured platform workers carrying out their shifts in the high demand hours of the day/week and penalised workers for not showing up to the shifts that they had booked was indirectly discriminatory. This was because the algorithm treated every worker in the same way, without considering the reason why the worker did not show up and hence, not considering their individual circumstances (i.e family related, age, disability, religion, etc).
Decisions like the one above reinforce the need for human monitoring of algorithmic decisions. In this regard, the current draft directive goes even further by requiring that systems are monitored by qualified staff, who enjoy special protection from dismissal (or its equivalent), disciplinary measures or other adverse treatment deriving from the exercise of this function.
It is worth noting that this section of the directive applies to any platform worker, even the genuine self-employed.
What’s next?
The directive will now have to be formally adopted by the European Parliament and by the Council. Such adoption could take place before the June EU elections, if all moves forward fast. Only after the directive is adopted, it will be published in the official journal of the EU and be enforced, starting the clock on the 2 year deadline for the Member States to transpose it into their national legislation. Hence, there is still a long way to go until the rules are applicable to platforms, but the effect of this legislation is potentially significant and platforms should keep an eye on the developments so that they are ready when the time arrives.
