Commission strives to revert to initial text in platform workers negotiations

As inter-institutional negotiations kick off on the Platform Workers Directive, EURACTIV has learnt that the European Commission will endeavour to get the final text closer to its initial proposal, expecting most of the pushback to come from EU countries.

The Platform Workers Directive is a legislative proposal to define the status of those working for gig economy platforms like Uber and Deliveroo. The file is currently at the last phase of the legislative process, so-called trilogues between the member states, Parliament, and Commission.

The EU Council of Ministers was the last of the co-legislators to reach a position on the legislation, as member states were divided over the conditions for re-classifying platform workers from self-employees to fully employed.

After months of a stalemate, the Council adopted its position last month, meaning interinstitutional negotiations could then start as the European Parliament had its mandate ready since February.

Following a first introductory trilogue on Tuesday (11 July), EURACTIV has learned the negotiating strategy the Commission intends to take in the next months, notably trying to bring the final deal closer to the original version of the Directive.

Social Affairs Commissioner Nicolas Schmit, who leads on the file, is also due to push back against some of the Council text’s provisions, especially regarding the reduced scope of the legal presumption of employment and the reduction of transparency rights for platform workers’ representatives.

EU countries nail down common position on platform workers directive

EU labour ministers endorsed a general approach to the Platform Workers Directive on Monday (12 June), marking the close of a year and a half’s worth of intense negotiations and opening the door to interinstitutional negotiations with the Commission and the European Parliament.

Legal presumption of employment

At the core of this file’s political tensions lies the creation of a legal presumption of employment, which would reclassify a gig worker as a full-time employee should they meet a minimum number of criteria that signal their subordination to a digital platform.

The initial Commission text placed the legal presumption trigger threshold at two criteria out of five. In its mandate, the Parliament expanded the presumption’s scope by removing the criteria altogether.

On the other hand, the Council took the opposite path, raising the threshold to three criteria out of seven and narrowing the wording of some criteria.

EURACTIV understands the Commission will be looking to bring the focus back to its original plan, which means opposing the Parliament’s broad-sweeping wording while avoiding the Council’s excessive reduction in scope. The Commission deems this approach as ‘balanced’, according to sources.

The Commission is also set to speak in favour of the Parliament’s new wording over ‘supporting measures’ that member states must implement to ensure the presumption is effectively implemented. By contrast, EU countries deleted references to these supporting measures altogether.

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No suspensive clauses

Importantly, the Commission is expected to take a strong stance against any efforts to suspend or circumvent the applicability of the legal presumption. Unlike the Parliament and the Commission, the Council brought in new text that creates presumption carve-outs, which would limit the scope and effectiveness of the Directive.

The Council mandate excludes the presumption from applying to tax, criminal and social security proceedings – unless national law states otherwise – and grants member states a discretion not to apply the presumption when it is “manifest” it will be rebutted.

New controversial wording also created a carve-out if a platform met a criterion merely out of compliance with its national obligations, in which case this criterion could not be deemed fulfilled to trigger the presumption.

This addition, pushed for by the French government, was vehemently opposed by the ‘pro-reclassification’ group, including Spain, the Netherlands, and Belgium, among others, resulting in a months-long stalemate.

Information gathered by EURACTIV shows the Commission will strongly oppose any attempt to bring carve-outs back into the operative part of the text. However, it is open to a co-legislator compromise if it arises.

Eight EU countries push back against stricter conditions for platform workers' status

In a letter to the EU Commissioner for Employment and Social Rights, Nicolas Schmit, nine European ministers have called for “an effective and strong, but rebuttable, legal presumption” as part of negotiations on the platform workers directive.

Algorithmic management

Algorithmic management in the workplace, the Directive’s second significant chapter, faced less of a political backlash and the Commission appears broadly content with both mandates, which, bar minor instances, do not differ widely.

Ultimately, the Directive will look to reinforce platform workers’ understanding of how algorithms impact their day-to-day and enshrine transparency measures in the use and application of algorithms.

The wording also effectively protects gig workers’ personal data, and ensures any ‘significant’ decision taken due to algorithmic calculations – such as dismissal or remuneration – has a human in the loop.

On access to information, the Council text limits information disclosures to representatives of employed gig workers and the Commission will look to broaden the scope to all gig workers, including the self-employed.

Overall, it will aim to protect workers’ rights while avoiding overburdening platforms, where the Parliament’s text generally gives stricter obligations for the latter.

Bogus or genuine? The EU's plan for platform workers

In this video, we take a closer look at the European Commission’s draft directive on platform work, which aims to ensure platform workers have the contractual relationship that best encapsulates the work they actually do for platforms.

The directive also looks …

[Edited by Luca Bertuzzi/Zoran Radosavljevic]

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