EU lawmakers nail down rules for platform workers

[This article was updated at 15:59 to clarify some of the technical details, especially with regards to human overview of algorithmic decisions and indicators]

The representatives of the main EU institutions reached a provisional agreement over the Platform Workers Directive in the early hours of Wednesday (13 December) after almost two years of strenuous negotiations.

The Platform Workers Directive is a bill to regulate the gig economy and ensure that workers of digital platforms like Deliveroo and Uber have the correct contractual status based on their treatment and working conditions.

According to the European Commission, almost one in five platform workers ought to be reclassified from self-employed to full-time employees. The Directive intends to establish a harmonised mechanism to assess and operate contractual changes across the bloc.

The file also creates new algorithmic management provisions to protect gig workers’ data and regulate the use of algorithms in critical work-related decisions, including remuneration and dismissal.

“It’s a very historic deal, I am not exaggerating,” the EU Parliament rapporteur, centre-left MEP Elisabetta Gualmini, told journalists on Wednesday.

“For the first time, we built a social rights framework for millions of workers in Europe who are among the most precarious,” she added.

The final political meeting between the EU Commission, Council and Parliament, the so-called trilogue format, kicked off on Tuesday evening and lasted 11 hours. The provisional agreement will now have to be fine-tuned at the technical level and be formally adopted by co-legislators to become law.

An initial debriefing for EU ambassadors will take place on 20 December.

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Legal presumption of employment

The file’s thorniest issue was the introduction of a new legal presumption of employment, a mechanism through which self-employed platform workers could be reclassified as full-time employees based on their working relationship with digital platforms.

The Commission’s initial proposal stipulated that the presumption could be triggered if two out of five criteria which hint at subordination were met. The Council increased the threshold to three criteria out of seven, while the Parliament’s original stance was to remove the criteria to focus on the actual working conditions.

The agreement envisages the maintenance of the criteria – dubbed ‘indicators’ by the rapporteur Gualmini. If two out of five indicators are met, relevant national authorities and judiciary bodies are entitled to trigger the presumption.

The burden will be on competent authorities, followed by trade unions, to flag that a presumption can be triggered before it falls on workers themselves to do so.

In a move towards the Parliament, negotiators agreed that member states could be able to add more ‘indicators’ to the list, in line with their national law. Council instead asked for a closed list, according to information obtained by Euractiv.

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Presumption rebuttal

As per the initial Commission proposal, it will then be on platforms to rebut the presumption if they believe the facts show a worker is “genuinely self-employed”.

The provisional agreement now also clarifies that should a rebuttal fail or not occur, the worker will be reclassified.

Gualmini also clarified during the press conference that if a platform reclassified one worker, then labour inspectorates had a mandatory duty to check the contractual viability of all workers within that platform.

Finally, the general clause, added in the Council’s text, that the presumption shall not apply to tax, social security and criminal proceedings seems to have been watered down.

Under the agreement, Euractiv understands that the presumption will apply when such proceedings are related to, or have an influence over, the triggering and process of the presumption.

Algorithmic management

The algorithmic management in the workplace chapter enshrines a complete prohibition on the processing of certain sets of data, including psychological state, religious affiliation, or sexuality, but also private conversations or any information while the person is not performing platform work.

“We went beyond the limits of GDPR [General Data Protection Regulation],” Gualmini celebrated at the press conference.

With regards to important decisions influenced or taken by an algorithm, such as remuneration, account suspension or dismissal, the text does go beyond what GDPR provides for. The agreement makes explicitly clear that such decisions shall always be taken by a human being.

More broadly, the provisional agreement reinforces platform workers’ understanding of how algorithms impact their day-to-day and enhances transparency and accountability. Data protection impact assessments will be required from platforms.

However, the Parliament’s hope that all workers’ data processing be excluded, even with workers’ consent, was not taken on board because this would go far beyond GDPR obligations.

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Definitions

One of the newly-agreed definitions is ‘representatives of persons performing platform work’, including but not limited to recognised trade unions representing self-employed platform workers – a key question for the Parliament.

However, Gualmini had to give in on the inclusion of click workers within the definition of digital labour platforms, Euractiv understands. It is however covered in the Directive’s recitals.

Penalties

Unlike the Parliament’s request that non-compliance be met with financial sanctions explicitly, the provisional agreement remains more high-level, and it is down to member states to decide whether to inflict fines on platforms.

[Edited by Luca Bertuzzi/Nathalie Weatherald]

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