Fairwork - Recommendations for the EU Directive on Platform Work

Authors: Alessio Bertolini, Oğuz Alyanak, Giulia Varaschin, Pablo Aguera Reneses, Funda Ustek-Spilda, Mark Graham 

The past two years have witnessed heated talks on ways to regulate the platform economy in Europe, particularly around the EU Directive on Platform Work.  

The Commission’s initial text, the Council’s proposal, as well as the report from the EU Parliament make important strides in guaranteeing better and fairer working conditions to platform workers in the EU. These include, among others, the introduction of a presumption of employment; a guarantee of algorithmic transparency and explainability; a set of rules to support due process; measures to enhance data protection; and the creation of a digital infrastructure to improve communication between workers.  

Whilst we welcome these improvements, the current texts still fall short in key aspects that our research has shown to be key in guaranteeing fair and decent working conditions in the platform economy. We therefore recommend the future Directive to contain policy solutions to the following issues which are not adequately dealt with in the extant proposals.

First, employment status determination should be platform-proof. Platforms increasingly amend their terms and conditions and working practices to circumvent regulations to prevent their workers being reclassified as employees. Unless employment status criteria are robust, this practice will continue to leave it to workers and their representatives to fight for reclassification in national courts. The recent example of the Belgian Labour Deal Act is instructive in this regard. A default presumption of employment for all platform workers, such as the one outlined in the EU Parliament report, with the burden of proof being on platforms, is fundamental to avoid platforms circumventing the criteria to misclassify workers. 

Second, there should be clearer regulations on sub-contractual arrangements. In addition to relying on the self-employed model, many platforms increasingly make use of subcontractors, which renders platforms less accountable, and makes it more difficult for workers to claim their rights and have adequate protections. The Directive needs to ensure that subcontracting is adequately regulated and cannot be used to shed responsibilities and obligations towards workers. 

Third, all workers, irrespective of employment status, should be entitled to rights and protections. Most of the provisions contained in the proposals enhance rights and protections for employees. Yet, most platform workers in the care and domestic sector as well as cloudworkers (online/remote workers), who represent a substantial share of the workforce, will not benefit from these measures due to their genuine self-employed status. Because platforms act as crucial gatekeepers to the relationships between clients and self-employed workers, the Directive should urge national regulators to make it obligatory for platforms to enforce minimum standards and basic protections to the self-employed. In line with the International Labour Organisation’s Decent Work Agenda, the self-employed should at least be entitled to a minimum wage, basic social security protections, contractual transparency, due process, and paths to join mechanisms of collective voice. 

Fourth, communication channels between workers and platforms should be mandatory. Workers are often left to their own devices to solve issues pertaining to the services they provide through platforms. Many workers facing problems with their clients, such as delayed and missing payments or mistreatment at the workplace, have no access to efficient communication channels for addressing their grievances. This Directive is a chance to address that problem by mandating the creation of formalised communication and dialogue structures for both employed and self-employed workers. 

Fifth, collective representation should be fostered. With the exception of the Parliament’s amendments, no provision is included in the existing proposals to foster social dialogue or to incentivise platforms to actively engage in collective negotiation and bargaining with works councils, worker collectives, and unions. The proposals also fail to create an obligation for platforms to introduce any form of collective representation mechanism, such as a worker representative or a workers’ assembly, especially for the self-employed who might not have this right guaranteed in national legislation. Without these measures, workers will continue to be denied direct avenues resolve concerns with platforms.  

Finally, contractual arrangements should be fairer. Many contracts and terms and conditions contain unfair clauses that unreasonably exempt platforms from liability and negligence, and/or prevent workers from effectively seeking redress for grievances arising from the working relationship. They also do not clearly identify the party the worker is contracting with or do not have as applicable law the law of the country where the worker is based. Provisions should be made to avoid these unfair contractual practices.