Platform work: Replies from social partners on the first phase of the consultation of the EU Commission on protecting people working through platforms and start of second phase of consultation

• Trade unions generally support an EU initiative on platform work and argue that the employment status should be a central point.
• Employer organisations, on the contrary, are rather sceptical. They believe that one-size-fits-all rules would not be suitable. Instead the determination of status should be done on a case-by-case basis. Nonetheless, employers generally see the need for action, but prefer approaches at national level.

• Pursuant to the EU trade unions an EU regulation should cover both online and on-location platforms. Employer organisations on the other hand stress the diversity of platforms and explain that they are not assignable to a distinct economic sector. Online platform work is not to be understood as a sector or a form of work itself. In fact it is a form of service or delivery, depending on sectoral classification, using digital tools.
• Some trade unions take the view that EU regulation should apply to all non-standard forms of work (ETUC and Eurocadres), pursuing the goal of a comprehensive protection in any case.

It is undisputed that the definition of the employment relationship is the central problem which needs to be clarified.

• Trade unions argue in favour of a rebuttable assumption that platform workers are employees with a reversal of the burden of proof.
• Employer organisations take the view, though, that the employment status should be defined at national level. In this respect some employer associations (BusinessEurope, EuroCommerce and SGI Europe) stress that individual decisions must be respected and that individuals should not be forced into an employment relationship. Some may particularly look for an independent way of working, which makes providing services through platforms attractive for them, as self-employment has considerable advantages over working status in terms of freedom and self-determination. SGI Europe stresses the need to secure the flexibility of the Labour Market in the EU in order to adapt to future developments. In their opinion a standard definition of the employment relationship would be fatal as it hinders such future development.

• Neither the trade unions nor the employer organisations argue in favour of introducing a third employment category of “platform workers” (between employees and self-employed workers). Expressly EuroCommerce argues, that creating a third category would lead to a disproportionately increased legal uncertainty for businesses, as the existing delimitations are based on national case law that has been established over decades, which therefore is currently very differentiated and reliable. In the same way the ETUC strongly opposes to the creation of a third status. In their opinion the workers do not need a specific and therefore more limited labour legislation which is different to the one which applies to workers. 

• Trade unions unanimously believe that a minimum level of protection should apply for all platform workers, regardless of their employment status. ETF suggests that individuals on on-location platforms should be entitled to hourly wages also accounting for waiting time.
• Employer organisations argue that laws on fair working conditions already apply to employers. However, they concede that there may be a need for platforms to provide information, e.g. on how the platform functions and its terms and conditions. SGI however argues that the current legal situation is already sufficient.

• Unsurprisingly, trade unions call for access to social protection to be facilitated. In this respect ETUC and Eurocadres postulate the unconditional coverage of all non-standard workers (i.e. not only platform workers). Further all type of non-standard workers should be guaranteed access to individual and collective labour and social rights.
• While employer organisations see the importance of access to social protection they point out that EU instruments, such as the EU Council Recommendation on access to social protection, already exist. The WEC points out reforms in numerous Member States that have taken place or are currently in process to recalibrate and extend schemes to cover self-employed workers in the aspect of social protection. Further, the traditionally lower protection standard of self-employed workers is balanced due to the fact that they do not have the same obligations that employees have towards employers, as it is general opinion. In general, many issues on that matter are not unique to platform work.

• Some trade unions (ETUC, Eurocadres, CEC, CESI [ETF]) agree that new rules should grant certain rights in case of automated decision-making and the application of algorithms. The ETUC refers to the spill-over effects of platform work, e.g., algorithmic management, which is increasingly spreading to the “traditional” workplace. An approach to automated decision-making needs to be based on transparency in any case. Eurocadres expressly points out that trade unions and workers should at least have access to the algorithm. Similarly, CESI argues for entitlements to the right to be informed about how algorithms calculate salaries and make predictions about future earnings. Employer organisations reject such a requirement, they argue that existing EU legislation and initiatives are sufficient (e.g., GDPR, Platforms to Business Regulation).
• The CEC promotes a “human-in-control” approach, which should be included in the initiative. This is considered necessary because the scope of automated decision-making on workers performance is not a prerogative of digital platforms alone. Employer organisations stress the need to obtain the benefits of AI, when installing a human oversight instrument. Moreover, they emphasize the opportunity to contribute to tackling conscious an unconscious bias, which is naturally part of all human decision making. CEEMET specifically promotes a risk-based approach on which the future regulatory framework could (amongst others) be based.   
  
   

• Trade unions agree that access to collective bargaining and representation must be made easier. Employer organisations do not contradict that there is need for that. Yet they prefer this to be assessed at national level and only for those classified as employees. In addition, they argue that regardless of the dubious requirement of an EU-wide regulation, the EU already lacks competence to regulate collective representation issues (see Art. 153 para. 5 TFEU).

• Employer organisations as well as trade unions agree on the importance of continuous training and upskilling workers to ensure employability and the overall capacity of labour to adjustment. Trade unions support access to training for all platform workers, whilst employer organisations stress that details should not be determined by the EU.
• Employer organisations do not miss out on emphasizing the importance of a highly skilled work force. In their opinion, digital platforms can provide companies with an additional tool to access the skilled workforce that they might not be able to access on site. To ensure flexibility they highlight the significance not to overregulate in this area.

The EU Commission sees the opportunities platform work creates, stressing the flexibility it offers and highlighting the fact that it can be an entry point to the labour markets for some people.

Nonetheless, the EU Commission considers the employment status to be “the key challenge in platform work”. Platforms mostly classify people working through them as self-employed, although this classification is not adequately considering the combination of subordination and autonomy.

In order to provide a clear rule in terms of platform workers’ employment status, the Commission suggests a rebuttable presumption of an employment relationship to the effect that the underlying contract between the platform and the person working through it is deemed an employment relationship. Another option would be a shift in the burden of proof or lowering the standard of proof required for people engaged in platform work in legal proceedings. An administrative procedure to examine the employment status of people working through platforms could save them the cost and risks involved in legal proceedings and thus lower the burden of reclassification action. It would however still be open to a challenge in court. The certification of work-related contracts carried out at the request of either party, by labour authorities or by independent bodies would be another out-of-court option. Of course, there is also the option of combining different approaches. Besides these options could then either apply to all digital labour platforms or only to specific categories.

Algorithmic management presents distinct challenges in platform work while it is also becoming more prevalent beyond the platform economy, nevertheless national responses to algorithm related challenges have been very limited. So far only Spain has adopted legislation addressing algorithmic-related aspects. 

The Commission suggests, the initiative could propose new rights in this area, building upon existing instruments as well as proposed ones. New legislation on that matter could then ensure more human oversight and control over automated decision-making alongside appropriate channels for redress.

National authorities often encounter challenges when it comes to cross-border platform work. The Commission notes that the rules of the Brussels Ia and Rome I Regulations, determining applicable law, only apply to employees, but not to self-employed individuals. Uncertainty regarding the employment status may also rise questions on social security coverage.

This transnational nature can make it hard for people working through platforms to access accurate information on rules and obligations in force. To tackle this issue, the initiative could consider either a register of, or transparency obligations for platforms, which could provide key information about their work. Platforms could also be required to report certain data regarding the transactions they facilitate. Beyond that the relevance of platform work could also be considered in the pilot under the European Social Security Pass, which was announced in the European Pillar of Social Rights Action Plan.

The proposed EU initiative could take various forms. It could either be carried out as a directive, a council recommendation or even a combination of the two. A policy communication could then possibly introduce any non-legislative elements of the initiative. A directive would provide certainty about the mandatory requirements to be applied by Member States and could contain a set of minimum standards and procedural obligations with which to comply. On the other hand, a recommendation could provide for policy guidance and a common policy framework at EU level, while not setting specific mandatory requirements. In addition to legislative EU action, the initiative could entail non-legislative measures at EU level, contributing to the objectives set out above. Nevertheless, the Commission clearly states that possible EU legislative action can only set minimum standards and that further action needs to be taken by the Member States.

The EU Commission has not voiced a recommendation on the personal scope, yet, but stated that an EU initiative could either cover all digital labour platforms or focus on certain types of platform work or certain types of business models.