Festina Lente or Rise to the Occasion for the EU Member States?

by Nikola Murdzev, Faculty of Law “Iustinianus Primus”, Skopje

The working engagements that are being initiated as modus operandi on the digital labour platforms as of 2021, have undoubtedly become an applicable practice for 28 million EU platform workers. Their numbers are envisaged to reach 43 million platform workers as soon as in 2025 (PPMI, 2021).

The platformization of work is on many grounds disputing the existing typologies of the conceptual systems which usually result in the detection of two factors that are the standard gravity center within the employment relationship: on the one side is the employer, while on the other side is the employee. In the context of hiring labour through digital platforms, the platforms themselves appear as a third factor that is affecting the non-standard forms of labour. It is worth noting that, for the purpose of easier detection of the working status of the platform workers in this case, in terms of whether they are scoped under the veil of ‘employees’ or ‘self-employed’, the contemporary digitalization of labour unquestionably enables a sort of a digitally-assisted purchase, sale, subtraction and addition of individual labour into the crowdsourcing waves of gathering a work-related engagement. These kinds of engagements are set around the relatively and newly formed digital labour markets that give access to acquiring and completing work through the digital labour platforms, for collecting some remunerating financial benefits.

Nevertheless, the same processes of digital transformation are prone to shape the essence of the non-standard forms of hiring or engaging labour in the general context. Beyond the general context of hiring or engaging labour through the digital platforms, an additional visible momentum has been recognized regarding the need of an acceleration on the European tempo for laying out a decent regulation of the platform work in the EU member states. Therefore, the sizeable amount of connecting and bridging the transposition of the EU-proposed Directive for improvement of the working conditions of the people that work in the digital labour platforms with the locally affected stakeholders, is a considerable step ahead in the direction of arranging the regulatory framework positions toward securing decent platform work and working conditions at a national level.

Taking into consideration the above-mentioned, the dilemma of how to contextualize the legal standards that tend to establish a satisfactory premise of the efforts to ‘standardize’ some set of labour rights into the premise of non-standard and digitally-assisted work within the gig economy, the proposed EU Directive for improving the working conditions on the digital labour platforms, certainly positions itself as the first visible, feasible and forthcoming European legislative stance.

While the Directive is laying out the foundation of creating a certain European equilibrium for enacting the basic working rights of the platform workers and their wellbeing, it also needs to take in mind the intersection of the interests of the workers of the platforms, the platforms themselves and respectively the countries on whose territory the both parties operate, while ensuring business continuity in that regard. This kind of an ‘European pillar of platform equilibrium’ will ultimately affect and reflect the contouring of the global conceptual predetermination for the broader picture regarding the future of work and labour relations.

In line with the debate that occurs around the determinability status of the workers on the digital labour platforms, whether the worker on the platform is seen as an employed or a self-employed person, the proposed Directive is clearly in a way decentralizing the answering pattern on this dilemma to the national level (COM, 2021). Regardless of whether the platform workers are treated as ‘employees’ or ‘self-employed’ on a national level, the main point of focus should be directed toward securing accessible rights for all the workers on the digital platforms, while taking no notice of the platform workers’ formal status in a particular Member State.

Having this in mind, the Member States should construct the securement of decent check and balance mechanisms between the geographically affected stakeholders. In this manner, it should be addressed the issue of the dominance on the datafication of the ‘digital employment’ platform relations, that have been set out by the platforms themselves. The optimum need to construct a framework that benefits all the stakeholders who cross their interests alongside the notion of hiring and engaging labour via digital platforms.

In this particular set of events, where the EU Member States should grasp the statutory momentum of regulating platform work while adapting their national framework according to their labour market specificity, they nonetheless have a certain legislative space towards addressing certain subject matter that arises from the burden that is being shifted to the Member States by the Directive. Some of the highlights that have been left to be further addressed by the national legislations are the need of defining the labour relation between the platform workers and the platforms (employed vis-à-vis self-employed), ensuring that the both categories of platform workers can take advantage of the same set and scope of rights, creating a set of measures regarding the question of legal presumption in a way that is most adequate for the Member States due to the need of controlling the performance of work, as well as undertaking a set of supporting measures to ensure the effective implementation of the legal presumption.

Moreover, in relation to the algorithmic management on transparency and the usage of the automated monitoring and decision-making systems, in order to achieve an informational flow from the digital labour platforms to the platform workers regarding monitoring, supervising or evaluating the work performance via electronic means, the Member States are also faced with the challenge of creating a regulatory balance between the privacy laws while effectively ensuring information sharing by the platform without compromising any intellectual property rights of the platform or exposing the structural complexity of the algorithms developed on the digital platforms.

In addition, the Member States will need to take into consideration the need of introducing measures on creating national registers on digital labour platforms and platform workers, thus mitigating further data visualization. In this particular aspect, the clarification for the existing obligations for the platforms to declare work to national authorities, will help in generating more proper key information about their activities on the degree of commitment of the platforms to respecting the demands on information sharing by the platform workers or the national authorities, specifically in relation to work assignments, working time, accumulated earnings, occupational health and safety of the workers, as well as any decisions regarding the restriction, suspension or termination of the platform workers’ profiles to accessing work engagements.

As towards the Member States’ role of enabling an adequate framework on collective association, they should ensure a broader integration into collective association of the platform workers on the national level, but at the same time ensuring opportunities for proper association of the location-based platforms in light of securing a comprehensive trialogue between them.

In conclusion, which way is right, which way is wrong and how do we say that we need to move on into setting up the platform workers’ minimal premise to decent working conditions in the digitally-assisted working environment, is in all fairness an ongoing debate that all the stakeholders should give an input into the discussion, prior and after the imposition of the proposed Directive. As towards the platforms workers, the platform organizations themselves and the national authorities’ role of engaging into this social and also responsive trialogue, by no means it should be headed into different ways other than securing an adequate and equitable realm regarding the shaping of the European digital future towards setting up the beneficial playfield for using technology that works for the people and in fair and competitive economy (European Commission, 2020), while enhancing the improvement of labour standards and working conditions of the platform workers.

References:

PPMI (2021). Study to Support the Impact Assessment of an EU Initiative to Improve the Working Conditions in Platform Work. [online] Luxembourg: Publications Office of the European Union, p.96. Available at: https://ec.europa.eu/social/main.jsp?catId=738&langId=en&pubId=8428&furtherPubs=yes [Accessed 23 Jan. 2022].

COM (2021) 762 final: Proposal for a Directive of the European Parliament and of the Council on improving working conditions in platform work, Article 3.

European Commission (2020). Shaping Europe’s digital future. Luxembourg: Publications Office of the European Union. Available at: https://ec.europa.eu/info/sites/default/files/communication-shaping-europes-digital-future-feb2020_en_4.pdf [Accessed 23 Jan. 2022].

The opinions and views expressed in this publication are those of the authors. They do not purport to reflect the opinions or views of Reshaping Work.