European Commission’s legislative initiative on platform workers, to be published in December this year, together with the possible directive on adequate minimum wages  is by far one of the most relevant social and labour developments stemming from this commission.

The President of the Commission, Ursula von der Leyen, at the outset of her mandate was committed to “monitor and enforce existing EU law in this area and to look at ways to improve the labour conditions of platform workers”.

The labour status of people working in the online platform economy is key to their socio-economic protection. But it has proven a difficult issue for courts and regulators.

The report points out that the current European framework is unsatisfactory and European Union (EU) legal instruments are often not applied to many platform workers as a result of their misclassification and do not sufficiently address the new realities of the world of work.

The meaning of the terms ‘worker’ and ‘self-employed’ is not uniformly defined in all Member States and the boundary between these two terms is sometimes ambiguous for new forms of work.

This legal uncertainty must be urgently addressed for the benefit of workers and companies, including platforms, and consumers.

The report spotlights the need to improve the working conditions of all platform workers registered on digital labour platforms, including the genuinely self-employed.

The Court of Justice of the EU (CJEU) has also progressively adopted a notion of ‘worker’ which will probably be the starting point for the commission’s work. 

The European Parliament says that any proposal must be based on:

•          A rebuttable presumption of an employment relationship for platform companies.

•          The reversal of the burden of proof (companies to be obliged to prove that their workers are not self-employed).

•          The fact that establishing a new EU so-called “third status” between worker and self-employed person cannot be considered.

• Workers in platform companies should have the right to organise collectively and be represented by trade unions.

The opportunities and flexible working arrangements offered by digital labour platforms should remain possible, provided they are not detrimental towards social protection and workers’ rights.

The motion reads that “a rebuttable presumption of an employment relationship would facilitate the correct classification of platform workers in combination with the reversal of the burden of proof, which means that where workers dispute the classification of their employment status in legal or administrative proceedings, it is for the party who is claimed to be the employer to prove that there is no employment relationship in accordance with national definitions as set out in the legislation or collective agreements of the respective Member State.”

Classification is important but, as underlined by professor Antonio Aloisi of the IE Law School in Madrid, “should be part of a broad sweep of reforms for platform workers, including addressing artificial intelligence, anti-discrimination and equality issues, and occupational health and safety”. In a recent article he also added that “The European Parliament vote is non-binding, as it is the non-elected EU Commission, led by Nicolas Schmit, the Commissioner for jobs & social rights, who will ultimately draw up the legislative design of the platform work directive. Speaking immediately after the EU Parliament’s vote, Schmit described the reversal of the burden of proof as a “good solution” and “extremely important for all those who work on the platforms””.

Conversely, BusinessEurope has stressed that “an initiative focusing on employees of platforms has no added value as there is extensive social legislation (e.g. transparent and predictable working conditions, health and safety, working time etc.) which already applies in such cases”.

“To meet the twin objective set by the commission of ensuring decent working conditions and sustainable growth of platforms, to have an adequately flexible framework, which meets the diverse needs of platform workers and different types of platform work, and to respect national competences including those of social partners, we believe that a binding EU directive on working conditions for platform workers would not be the right approach. We remain convinced that a self-regulatory approach by platforms themselves, combined with a dedicated forum bringing together the key actors to better understand and, where feasible, develop guidance on determining employment status, would be the right approach. It would be effective in securing good working conditions for platform workers, combined with an effective application of the existing relevant EU regulations and frameworks (e.g., Transparent and Predictable Working Conditions Directive, Council recommendation on access to social protection, Platform to Business regulation, GDPR), and those in progress, in particular the AI Act and the forthcoming initiative on EU competition law and collective representation”.