Having seen off the platforms’ obstruction, the battle moves to how the directive will be transposed and implemented.
Against the backdrop of the lead candidates for the European Parliament elections gearing up for their campaigns—many claiming that a social Europe is within reach—provisional agreement was finally reached earlier this month among European Union member states on the stalled directive on platform work. The path to victory was however far from straightforward.
In this monumental struggle for workers’ rights, the adversaries were not traditional foes but rather the formidable, multi-billion-dollar digital-labour platforms which have come to dominate the economic landscape—due in part to their technological innovations but mainly their disregard for rules and regulations other businesses are obliged to obey. This policy milestone is testament to the resilience of collective efforts to face the challenges posed by the evolving nature of work and corporate power dynamics.
A key provision is the presumption of employment for ‘gig’ workers, which the platforms resisted to the end because of its promise of tangible impact on the lives of workers across the continent. The regulation of algorithmic management, which often governs work assignments and conditions, is also a critical step towards addressing the power imbalances inherent in the digital-labour realm. Additionally, the directive extends collective rights to all ‘persons performing platform work’, including the genuinely self-employed—a powerful acknowledgement of the diverse nature of platform work ensuring that all workers, regardless of employment status, enjoy essential rights and protections.
Presumption of employment
The European Trade Union Confederation had put a (rebuttable) presumption of employment on the table from the outset. This does not exist in most EU member states and they will all now have to institute it, while crucially safeguarding workers from any undue increase in burdens. Securing that legal and procedural tool was the most difficult challenge throughout the process.
During the protracted negotiations on the directive—the European Commission’s initial proposal was issued in December 2021—common criteria for triggering the presumption of employment were removed by the co-legislators, as the ETUC advocated. They opted instead for a streamlined approach guided by national definitions of ‘workers’ and ‘facts indicating control and direction’.
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Some are concerned that the disappearance of the criteria will mean member states can decide at their own discretion the conditions under which workers can secure the presumption and what is covered by the ‘facts’ required for reclassification as employees.
Member states cannot however bring in new barriers to workers being reclassified by reintroducing the criteria that have disappeared—states that were reluctant to adopt the directive and embrace the presumption of employment cannot, for example, demand three, four or five criteria to activate the presumption. If this had been the legal interpretation of the approved text, France and others would not have put the brakes on its adoption, nor would the platform lobbies.
The directive states explicitly that the presumption must facilitate access to reclassification and this procedure cannot increase the burden in reclassification proceedings. And while neither national definitions of workers nor of the self-employed will change as aresult of the directive, the procedural ease afforded to workers seeking reclassification is a game-changer.
The supporting measures in article 6 are however much weaker than the ETUC had hoped. The directive calls on member states to put in place procedures to ‘identify, target and pursue’ platforms which do not comply with the rules and to carry out checks and inspections on platforms where a reclassification has already been decided. The ETUC had urged automatic inspection of all platforms, while in the version of the directive arrived at under the Spanish council presidency late last year this would at least have applied where a case of bogus self-employment had been discovered.
Stronger measures would have eradicated bogus self-employment more quickly and effective public policy cannot rely on five million workers across Europe having to go to court to gain access to employment contracts. Yet this is a targeted approach which member states cannot easily circumvent and it will speed up the process for countless vulnerable workers.
Algorithmic management
Although less debated in the public sphere, on algorithmic management the directive contains pioneering provisions regulating automated monitoring and decision-making systems powered by algorithms. This will further safeguard the dignity, privacy and working conditions of platform workers while forcing platforms to invest in the human resources to control their systems—this too was very unpopular among platform lobbyists. There will also be new standards for occupational safety and health, such as in addressing ergonomic and psychosocial risks, alongside privacy and data-protection measures.
Long negotiations were needed for the directive to ban certain dangerous activities used by digital-labour platforms, including use of personal data to analyse the emotional or psychological condition of individuals engaged in platform work, whether actually working or not. It mandates that platforms evaluate how automated monitoring and decision-making affect the data privacy of platform workers and consider their perspectives in this assessment.
Importantly, it requires that platform workers, their representatives and the relevant national authorities be informed about the objectives, limitations and applications of automated monitoring or decision-making systems. The directive ensures entitlement to human intervention in automated systems and guarantees the right to receive explanations for decisions these make.
Window for transposition
Once the European Parliament gives its final nod, the directive will enter into force, granting member states a two-year window for its transposition. Of course, the battle over transposition and implementation will be just as fierce as that around the legislative procedure. The platforms and their lobbies are already changing their tune to suggest that the agreed version, which they had opposed to the last, validates the status quo ante.
There is nothing to prevent the directive from being properly applied, apart from lack of political courage. The competent authorities in member states must not wait for the courts to be clogged up before doing so.
Initially, the ETUC proposed that during transposition and implementation each member state should draw up a list of platforms that fall within scope, inform them of this and proactively check that they conform in terms of employment status. It is easier to check 100 platforms in two years than to have to deal with thousands of administrative or legal proceedings. Then, at cruising speed, each new platform can be checked when it launches its activity. Also, if the organisation of work changes in the future, workers and their unions will always be able to initiate these procedures themselves, thanks to the rights conferred by the directive. This is still possible to fight for at national level.
In concrete terms, the adoption of the directive means that Spain will be able to extend the Ley Riders to other sectors where platforms are active as soon as it is published. In France, where thousands of reclassification cases are congesting the courts, government can simply use the directive and ensure platforms comply with existing and future rulings. In the Netherlands, workers have won in the courts against Uber, Deliveroo and Helpling; it is now up to the government to use the directive to enforce the law. In Belgium, in December Deliveroo lost its appeal and must reclassify its employees; again it is up to the government to enforce this court decision as quickly as possible.
Considerable influence
The unions will continue to play their part. Each court or administrative decision proving the subordination of workers to platforms in one country in application of the directive will be a source of information and motivation to win the same rights in others. With access to algorithmic transparency, workers and their unions will also find it easier to prove the existence of such a subordinate relationship. The directive therefore offers a concrete tool for solidarity between workers, who can unite in their fight for respect and dignity.
Reflecting on the past 800 days of gestation of this instrument, it is clear that platforms wield considerable influence, adeptly lobbying at state and EU levels, and they are likely to exploit any loopholes in transposition. To counter this, trade unions will advocate for an expert group on transposition, a tripartite body including the European social partners, tasked with delineating clear boundaries to safeguard workers’ rights. The ETUC will also press the commission to lead a platform for member states willing to navigate collaboratively the transposition and implementation process, in such a way as ensure robust involvement of social partners at national level too.
The unions will continue to compel digital-labour platforms to the negotiation table. The companies must recognise the imperative of genuine social dialogue and fair collective agreements that uphold the dignity and rights of all workers. The resounding defeat of their attempt to deny employment status to cleaners, delivery riders, drivers and others signifies a paradigm shift. The evidence presented during the institutional negotiations of this file, as well as in dozens of successful court cases, dismantled their foundational claim that these workers are all ‘independent contractors’. The platforms function as employers for workers managed via an application, just as they are for the thousands overseeing operations in headquarters and operational centres.
Recalibration of relationships
Seizing this opportune moment, the time has come for a recalibration of relationships. Platforms do not have to wait until the directive is transposed, spend millions of euro for their lawyers to find loopholes or rely on their strength to ignore legal rulings. It is high time to sit down at the negotiation table—employers and trade unions together—to work on the transposition and to forge and finalise collective agreements.
No one wants to stop platforms from innovating, as long as they respect the rules. Some will doubtless persist in obstructing the directive, its transposition and implementation. But the unions are ready to discuss the most effective application of the directive, so that it brings concrete improvements in workers’ rights as platforms develop responsibly.
Ludovic Voet was elected confederal secretary of the European Trade Union Confederation in 2019.