"Joint letter for an effective Directive on improving conditions in platform work", 25. October 2022

Joint Lettter from ETUC, JOC, CECOP, EUROPEAN YOUTH FORUM, SOLIDAR  

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Ahead of the vote in the Employment Committee of the European Parliament, we would like to raise two points of attention that we believe are crucial to improve the proposed Directive.

The Commission has made the activation of the presumption of employment dependent on two out of five criteria of subordination being  met. This requirement will give digital labour platforms the possibility to draft contracts and working conditions in such a way as to escape four criteria on paper and therefore continue with the malpractice of bogus self-employment as well as deliberately limit the freedom of genuine self-employed workers on another criterion. Furthermore, the use of criteria to trigger the presumption ignores the difficulty of enforcing proper classification by platforms. Besides the violations of labour rights, these proposals will again open up the possibility for digital labour platforms to provide for unfair competition against those companies respecting the rules. To prevent this, a true presumption with a reversal of the burden of proof must place the burden on the platform to activate the rebuttal of the presumption and not leave this activation on the shoulders of workers or administrative or judicial authorities.

Open-ended criteria should therefore help rebut the presumption, not activate it. This will grant employees with an employment contract and protect the self-employed from the subordination of platforms, such as it is the case in most of traditional companies.

Likewise, the limitation of the presumption of employment relationship to only those workers bringing their cases to the relevant administrative or judicial body would result in situations in which two or more workers doing the same work for the same digital labour platform would enjoy different employment statutes. This is an attack on the anti-discrimination acquis in which the European labour legislation is built. Erga Omnes is the only rightful approach.

Like any other worker, those who go through digital work platforms must have access to social protection, as acknowledged in the European Pillar of Social Rights. The proposed directive should prevent digital work platforms from developing their own unilateral private protection schemes, particularly when this is done to escape their responsibility as employers. Such private and non-transferable schemes can create a lock-in effect by providing for social dependence on the digital work platform and therefore produce a dumping with traditional companies. In this respect, the reference in the recitals of the directive to the voluntary decision to pay for “social protection, accident insurance or other forms of insurance, training measures or similar benefits to self-employed persons working through that platform (…) should not be regarded as determining elements indicating the existence of an employment relationship " is very dangerous and allows the creation of a third category of workers, which the Directive itself is against. The law must clearly state the opposite: such behaviour on the part of digital work platforms must be an indication of subordination.

Lastly, the importance of  momentum should not be underestimated. The impact assessment issued by the Commission estimates that proposed measures would only benefit 5.51 million currently misclassified platform workers out of the total 28.3 million at EU level. We have reservations about  the methodology used by this study and it is highly probable that the number of bogus self-employed workers in digital labour platforms exceeds extensively the estimate of 5.51 million. Given that  the Commission estimates that the number of platform workers will grow to 42.7 million in the EU-27 by 2030, we urgently need an ambitious and future-proof Directive to protect this rising group.

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