Fairwork Response to the European Commission’s Proposal for a Directive on Platform Work

Fairwork welcomes the European Commission’s long-awaited Proposal for a Directive on Improving Conditions on Platform Work. After several years in which courts and policymakers across the world have found platforms to avoid even the most basic obligations and responsibilities towards their workers, this new EU proposal constitutes an important step towards fairer working conditions in the European platform economy.

The EU proposal comes at a poignant moment for the European platform economy. In the past two years, platform workers have performed essential activities during the Covid-19 pandemic, providing individuals in lockdown or quarantine with essential goods and services. At the same time, the pandemic has highlighted the vulnerable and insecure working conditions faced by these workers, who are often denied basic health and safety equipment and lack financial support when obliged to self-isolate. The past two years have also seen the entry of many new players into the European platform economy. These players compete with each other in a race to the bottom in labour standards, thus further exacerbating the precarity and insecurity of platform work.

In this context, we particularly welcome the proposal for the correct determination of employment status. By (mis-)classifying workers as independent contractors, platforms have long denied their workers many employment rights, including the rights to a minimum wage, health and safety protection, social security, transparency of working conditions and collective representation. Courts in several EU countries, including Italy, Spain, the Netherlands, France, Belgium and Greece already ruled in favour of platform workers not qualifying as self-employed, obliging platforms to reclassify them as employees. Italian and Spanish policymakers have already enacted laws granting food-delivery workers the same rights as employees, and several other countries are proceeding in a similar direction. The EU proposal for a presumption of an employment relationship paves the way for these rights to be granted across the EU, enabling platform workers to be reclassified as employees and to enjoy the same rights as other (dependent) workers, creating a long overdue level playing field in the platform economy.

Not enough to protect all workers

However, our research at Fairwork highlights that this might not be enough to ensure that all platform workers are entitled to adequate rights and protections. As many court cases in Europe and beyond have shown, platforms have been able to amend their contracts and slightly alter their working models in response to court trials to circumvent current regulations and avoid their workers being reclassified as employees. It is very likely that this practice will continue in the future, leaving it again to workers and their representatives to play a cat and mouse game for their rights in national courts.

Moreover, our research has highlighted platforms’ use of often complex networks of subcontracting to avoid employer responsibilities, as is also the case in many other precarious and low-paid jobs across Europe and beyond. Even platforms that classify their workers as employees can make use of intermediaries, including large multinational employment agencies. The use of intermediaries dilutes platforms’ direct obligations as employers and makes it more difficult for workers to claim their rights. The EU proposal does not contain any relevant clause in relation to subcontracting, de facto not offering platform workers any protection against those practices.  However, we expect subcontracting by platforms will become more common as more platforms are forced to reclassify workers as employees.

Finally, the proposal does not contain any improvements in the rights and protections for those who will continue to be classified as self-employed, whether genuinely or not. The Fairwork project wants to make sure that all workers, regardless of employment classification, enjoy some basic labour standards in line with the ILO Decent Work Agenda. As it stands, all platform workers which will continue to be classified as self-employed, such as platform workers in the domestic and care sector as well as cloud workers, will continue to be denied basic rights, including the right to a minimum wage, health and safety protection, transparency, due process and collective representation. More needs to be done to ensure that these workers, who are among the most vulnerable within the platform economy, are adequately covered by basic rights and protections and enjoy decent labour standards. For instance, many platforms in the domestic and care sector present themselves as mere providers of a marketplace where clients meet workers. The caveat, here, is that the majority of platforms’ profit comes not only from establishing an initial contact between workers and clients, but also from the sustenance of a labour relation by way of charging commissions or monthly membership dues. The current proposal does not address platforms using this working model, de facto leaving workers on these platforms outside the scope of most of the proposal’s measures.

On a positive note, the proposal contains an article clarifying that platforms using self-employed workers will not be at risk of employment reclassification if they offer training as well as health and safety and social protection to their workers, thus overcoming an important existing regulatory barrier for platforms in introducing measures to improve worker protection. However, implementation of such measures is left to the goodwill of platforms. Here, a stronger regulatory framework is needed to hold platforms working with a self-employed model responsible for taking proactive measures to protect and promote the health and safety of workers.

Opening the algorithm

The EU proposal contains additional important measures: First, the Commission recognises algorithmic management as a risk for workers’ rights and the need for more transparency and explainability regarding the use of AI in management processes. The proposal therefore aims to introduce ‘collective rights regarding information and consultation on substantial changes related to use of automated monitoring and decision-making systems.’ Introducing such rights represents a major step towards making workplace AI transparent and enabling unions and works councils to actively negotiate in support of fair management practices. The proposal further establishes the obligation for platforms to ‘regularly monitor and evaluate the impact of individual decisions taken or supported by automated monitoring and decision-making systems on working conditions’, ensuring more oversight over possible adverse effects for workers.

Second, the proposal gives workers ‘the right to obtain an explanation from the digital labour platform for a decision, the lack of decision or a set of decisions taken or supported by automated systems that significantly affect their working conditions’, allowing workers to gain more information on relevant aspects of their work, also by way of contacting a human representative. Lastly, the proposal grants workers the right to a due process for reviewing a platform’s decision and establishing a reasonable timeframe for a response. All these measures create statutory rights regarding transparency, explainability and accountability, which will contribute to a rebalancing of power in the platform economy in favour of workers. Importantly, these measures will not be confined to those who happen to be classified as employees, but instead cover all platforms workers, regardless of employment status.

Third, the proposal further addresses critical issues in relation to data protection in the platform economy. Although the European Union already has one of the strictest and most encompassing data protection regulatory frameworks worldwide, the measures contained in the proposal will reinforce the current framework by limiting the ability of platforms to process data which is not directly required by the work.

Improving collective voice

Last, the proposal recognises the isolation in which many platform workers operate and the difficulties these workers can experience in communicating with each other. In that respect, the proposal foresees that platforms must create ways for workers to ‘contact and communicate with each other’ through the platform infrastructure without these interactions being monitored by the platform itself. Creating such communication infrastructure provides an important first step in enabling workers to share information and build cooperative relationships without fear of intrusive surveillance. In doing so, it further lays the grounds for independent, collective worker organisation and representation in the platform economy.

However, the proposal does not go far enough in improving the collective voice and representation of platform workers. Many of these communication channels among workers already exist outside the platform, including on social media such as Facebook, WhatsApp, Telegram, and Reddit. Although this proposal will facilitate workers communicating with each other directly on the platform, this does not guarantee that communication between workers and the platform will improve. In our work at Fairwork, we observe that effective dialogue between the platform and its workers is generally missing. No measure is included in the proposal to foster social dialogue or to incentivise platforms to actively engage in collective negotiation and bargaining with works councils, worker collectives and unions. The proposal also fails to create an obligation for platforms to introduce any form of collective representation mechanism, including, for instance, a worker representative or a workers’ assembly. Without any measures in this regard, workers may be better able to communicate and voice concerns with each other in the near future, but they will continue to be denied direct avenues to raise these concerns vis-à-vis platforms. Our research at Fairwork highlights many instances in which workers are left on their own devices to solve issues pertaining to the services they provide through platform work. Many workers facing problems with their clients, such as delayed and missing non-payments or mistreatment at the workplace, have no access to efficient communication channels o for addressing their grievances. This proposal was a chance to address that problem by mandating the creation of formal collective dialogue structures, but sadly it fails to do so.

The EU Commission Proposal for a Directive on Platform Work is an important step forward in the creation of a fairer platform economy in the European Union. However, it also contains important shortcomings as it refrains from addressing some of the most relevant issues faced by many platform workers in their daily working life. As Fairwork, we hope the upcoming European parliamentary and council discussions will help fill some of those relevant regulatory gaps in order to ensure that all platform workers can be entitled to adequate rights and protections and can enjoy fair and decent working conditions. Fair labour standards in the platform economy are within the European Union’s as well as any country’s reach. We call upon all regulators and platforms to turn this into a reality for the almost 30 million EU workers currently relying on digital labour platforms for at least part of their livelihood.

For more information or requests for comments, please contact us at info@fair.work

Cite as: Fairwork (2021): Fairwork Response to the European Commission’s Proposal for a Directive on Platform Work. Online: https://fair.work/en/fw/blog/fairwork-response-to-the-european-commissions-proposal-for-a-directive-on-platform-work/

Authors: Alessio Bertolini, Oğuz Alyanak, Callum Cant, Tatiana López, Pablo Agüera, Kelle Howson, Mark Graham