Gaps in the EU Directive Leave Most Vulnerable Platform Workers Unprotected
by Alessio Bertolini, Oğuz Alyanak, Callum Cant, Tatiana López, Pablo Agüera, Kelle Howson, Mark Graham, Fairwork
The EU proposal for a Directive on Platform Work comes at a poignant moment for the European platform economy. 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 terms and conditions, and collective representation.
Courts in several EU countries already ruled against classifying platform workers as self-employed. 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.
Not enough to protect all workers
However, Fairwork’s research in Europe highlights that the current proposal might not be enough to ensure that all platform workers are entitled to adequate rights and protections. In the past, platforms have amended their contracts and slightly altered their working models to circumvent regulations and avoid reclassifying their workers 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 that platforms often use complex subcontractor networks to avoid employer responsibilities. Many platforms that classify their workers as employees make use of intermediaries, including large multinational temporary employment agencies. The use of sub-contractors and intermediaries dilutes platforms’ direct obligations as employers and makes it very difficult for workers to claim their rights. The EU proposal, however, fails to offer platform workers any protection against these practices.
Finally, the proposal does not contain substantial improvements in the rights and protections for those who will continue to be classified as self-employed, whether genuinely or not. As it stands, all platform workers that will continue to be classified as self-employed, such as platform workers in the domestic and care sector as well as cloudworkers, will continue to be denied basic rights, including the right to a minimum wage, health and safety protection, 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.
Opening the algorithm
The EU proposal contains additional important measures for improving worker co-determination of AI in the workplace. The proposal introduces, for example, collective information and consultation rights for workers on substantial changes related to automated monitoring and decision-making systems. Moreover, the proposal grants workers with information rights regarding automated decision-making mechanisms that affect their work as well as the right for due process to review platform decisions. All these measures create statutory rights regarding transparency, explainability and accountability, which will contribute to rebalancing power dynamics in the platform economy in favour of workers. Importantly, these rights will not be confined to those who are classified as employees, but instead cover all platforms workers, regardless of employment status.
Improving collective voice
Lastly, 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, the proposal 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. Although this proposal will facilitate workers communicating with each other on the platform, this does not necessarily improve communication between workers and the platform. In our research at the Fairwork project, 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 bargaining with representative bodies of workers. The proposal also fails to create an obligation for platforms to introduce collective representation mechanisms, such as worker representatives or a workers’ assembly. Without 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.
At Fairwork, we rate the working conditions of digital labour platforms based on 5 principles of fair work — fair pay, fair conditions, fair contracts, fair management and fair representation. In Europe, we have already released platform ratings for Germany and the UK, and will soon release similar investigations in Austria, Belgium, France, Italy and Serbia. Many of the platforms we are evaluating on these countries currently fail to meet basic labour standards. However, Europe is also home to more ethical examples of platform work as well some of the strongest regulatory approaches to platform labour to date, such as the ‘ley rider’ in Spain.
The recently launched EU proposal is another perfect example of this. The proposal has the potential to bring about important improvements for workers with regard to fair wages, fair conditions, fair contracts and fair management. But, as explained above, it risks leaving those platform workers that will continue working as independent contractors inadequately protected. Additionally, more needs to be done to ensure fair representation for all platform workers. While our project advocates for platforms to improve their practices, regardless of their business model and regulatory context, we also believe that strong regulation is key to guarantee workers receive the protections they deserve. As this proposal moves forward, we will continue working with regulators and policymakers at the EU and national level to advocate for regulatory solutions that fill the gaps left by the proposal and ensure no worker is left behind.
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.
