The digital economy is a platform economy. Digital infrastructures, such as a website or an app, are created to match demand and supply in an ever-widening variety of services. From familiar platforms for food delivery, such as Deliveroo and Wolt, to apps for cleaning, personal care, and professional services. Nowadays, over 28 million people in the EU work through online platforms and some estimates suggest that this number will increase to 43 million people by 2025.[1]
Although ´platform´ sounds neutral, digital platforms are often anything but: via the data they gather and their algorithmic systems, they can exert a high degree of control over the working conditions of workers who use their platforms, as well as the nature of their work. For nominally independent workers, the relation with the platform operator in practice often mirrors the hierarchical relationship of employment, but with few of the labour and social protections that go with that. This disconnect demands a policy response.
Negotiations: everything is still in the balance
In December 2021, the European Commission reacted to the situation with a proposal for a directive on improving working conditions in platform work (hereinafter ‘the Directive’). The key aim is to ensure that people working through online platforms obtain the correct employment status and gain access to the applicable labour and social protection rights.[2] Beyond that, the proposal intends to improve platform workers´ rights vis-à-vis algorithmic management systems they are subjected to. This includes extensive information rights about the use and rationale of automated monitoring and decision-making systems.
This February, the European Parliament proposed amendments that aim to further strengthen the protection of workers. In the Commission´s proposal, the legal presumption of employment only kicks in when it is established that platforms exercise a certain amount of control over for instance workers´ remuneration, performance, and/or working hours. The Parliament instead favours a general presumption of employment for platform workers, without qualifications. This is in line with key demands from trade unions and also makes sense, as ambiguity will be exploited by platforms [3]. A Belgian law on platform work serves as a warning here: it includes a presumption of employment roughly similar to the one proposed by the Commission, but platforms simply claim they do not fulfil the criteria and hence nothing has changed for the workers so far.[4] This may mean workers again have to go through lengthy court proceedings, which was exactly what the Commission aimed to avoid with the proposed Directive.
Unfortunately, it is unlikely the Member States will accept an unqualified presumption of employment for platform workers, as even the qualified legal presumption proposed by the European Commission is very contentious. Although it is backed by for instance Spain, Portugal and Germany, the Swedish Presidency is exploring a more liberal approach, in order to get an agreement and allay concerns from several Central and Eastern European countries. The latter argue that a presumption of employment with legally binding criteria could put the platform business model at risk by leading to mass reclassification of platform workers as employees. This is indeed exactly the point the of the law.
From agreement to actionable rights implementation: a long way to go
If the Directive gets adopted, that does not mean platform workers will immediately benefit. First, the Member States will have to transpose the provisions into their national legislations. This process will take at least two years. However, if the Directive on transparent and predictable working conditions is any indication, it could take much longer: three years after the adoption of this Directive, the European Commission concluded that 19 (!) Member States failed to communicate fully on how they incorporated the law into their national legislation (which is a strong indication that they did not fully implement it).[5] The European Commission can in such cases take Member States to court, but this can easily take years.
Moreover, given the EU´s limited competence in social and employment affairs, basic concepts like what it means to be a ´worker´ vary between Member States. This is obvious if one looks at the Directive on transparent and predictable working conditions. In an expert report, Commission officials admit they cannot say whether entire groups of workers, like domestic workers, trainees and platform workers, “need to be covered by the protection of the Directive”.[6] Although the requirements in the Platform Work Directive on algorithmic transparency hold for all people working through platforms, it is foreseeable that the rules on the presumption of employment will lead to similar differences in interpretation.
Finally, given that many platforms are opposed to the directive, effective enforcement will be crucial. However, this is a known weakness of EU laws covering the digital economy, where national authorities can be hesitant to take on well-resourced platform firms. In the case of the Directive, the rules on employment status are likely to be enforced by labour inspectorates, whereas the rules on algorithmic transparency are supervised by national Data Protection Authorities (DPAs). It is by now clear that many DPAs are still struggling to enforce the provisions of the General Data Protection Regulation (GDPR), which bodes ill for their capacity to take on additional competences. Research in the dark stores sector also underline the shortcomings in the enforcement of labour law across the EU.[7]
Future agenda
While this Directive, if it were to pass – and be effectively enforced –, could reduce the misclassification of platform workers and make the algorithms that structure their work more open to scrutiny, it leaves several issues unaddressed.
Firstly, although the Directive contains provisions on the supply of information to authorities and worker representatives, these are not sufficient. Member States should introduce a publicly available register of platform companies that contains information about the number of active platforms and platform workers as well as their employment status. Such a publicly available register could facilitate research and enforcement, as well as increase pressure on platforms to act responsibly. Currently, such registers only exist for tax reasons in a few Member States such as France or Portugal but the data is not publicly available. [8]
Second, an obvious gap is that the Platform Work Directive´s provisions on algorithmic transparency only apply to people working through a platform. There is no good justification for this, given that algorithmic management is spreading throughout the economy, and the GDPR does not provide sufficient protection to workers who are on the receiving end of automated decision-making systems. If adopted, the Directive would lead – paradoxically – to genuinely self-employed working via platforms having better legal protections than employees outside the platform economy.
Source: Reshaping Work https://medium.com/@reshaping_work
*Reshaping Work is a foundation headquartered in Amsterdam. It took off in 2016 to bring together companies, startups, trade unions, researchers, policy makers, and other relevant stakeholders to jointly discuss the future of work and find ways to shape it.
[1] See: https://ec.europa.eu/commission/presscorner/detail/en/ip_21_6605
[2] See: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52021PC0762&from=EN
[3] See: https://www.etuc.org/sites/default/files/page/file/2022-04/EN-ETUC%20resolution%20on%20the%20proposal%20of%20the%20European%20Commission%20of%20a%20Directive%20on%20improving%20working.pdf
[4] See: https://www.bruzz.be/actua/martin-willems-acv-fietskoeriers-moeten-een-beter-arbeidsstatuut-krijgen-2023-02-23.
[5] https://ec.europa.eu/commission/presscorner/detail/en/INF_22_5409.
[6] https://ec.europa.eu/social/BlobServlet?docId=24459&langId=en.
[7] See: https://feps-europe.eu/publication/back-to-the-dark-ages-q-commerce-rapid-retail-and-the-changing-landscape-of-retail-work/.
[8] See: https://library.fes.de/pdf-files/bueros/bruessel/19257.pdf
