European Council and European Parliament discuss proposed Directive on Platform Work
In focus: determination of employment status and algorithmic management
VS – 06/2022
May, the correspondent of the Committee on Employment and Social Affairs
(EMPL), Elisabetta Gualmini, presented the draft report on the European Commission's
proposal for a directive on platform work. Initial discussions on this have also taken
place in the Employment, Social Policy, Health and Consumer Affairs Council
(EPSCO). The discussion focused on the provisions for determining the
employment status of platform workers and algorithmic management.
status determination, the European Commission has specified a list of five criteria
in its proposal for a directive, based on the case law of the European Court
of Justice (ECJ). This is to be made on the basis of a statutory presumption in
order to allow quick status determination. According to this, a dependent employment
relationship is presumed if two of the five criteria are met.
Correspondent's draft report is controversial in the EP
draft report of the social democrats correspondent Gualmini, the primary reference to the five criteria is criticised in the
status determination. Instead, it is to be
extended to eleven criteria which are also to be moved to the preamble. In this way, the criteria listed are intended to form a
non-exhaustive list of elements that competent authorities may refer when
assessing employment status.
central demand of the draft report is that the regulatory framework for the
design of algorithmic management in the directive be given the same importance
as the status determination.
proposal on status determination is criticised by the shadow correspondent of
the European People's Party, Denis Radtke, and the shadow correspondent of Renew,
Lucia Ďuriš Nicholsonová. Both oppose the extension of the list of criteria and
stress that the statutory presumption should not automatically make platform
workers to employees. Therefore, meeting three instead of two criteria should
be a prerequisite for classification as a employee.
according to the EPP MEPs, voluntary benefits such
as benefits in case of accidents at work or further training opportunities
should not be taken into account in the classification, so that these benefits
do not lead to a classification as employees. This was originally foreseen in the Commission's proposal to determine
the employment status, but was deleted in
Gualmini's draft report.
Council Presidency presents first progress report in EPSCO
EPSCO meeting on 16 June, the French Council Presidency of the European Union presented
a first progress report on the state of the discussion on the European
Commission's proposal for a directive on platform work. In contrast to the draft report of the European Parliament, it supports
the Commission's proposal to base the status determination on two of the five
criteria. In contrast to the proposal for a directive, the statutory
presumption for determining employment status should not only be based on the
review of work performance. Instead, it should refer to any "restriction
on the freedom to organise work and to check its execution". However,
several Member States have voiced reservation against the progress report and
the statements made there on status determination.
by the Council Presidency also suggest that the demand in Gualmini's draft
report to give algorithmic management the same importance in the directive as
the determination of employment status is supported.
Belgium wants to implement the proposal for a directive on status determination in advance
June, the Belgian government agreed on the draft law of the labour market reform package presented in February. Part of the reform
package includes new requirements for determining the employment status of
platform workers and their occupational health and safety.
Belgium follows the European Commission in the status determination, it still
wants to add three more criteria. Accordingly, a presumption of dependent
employment is made if three of the eight criteria or two of the five criteria
last mentioned are met. Who decides on the statutory presumption remains
disputed. The agreement provides that the Commission is responsible for
regulating the employment relationship. In contrast, the employers' side and
the Liberals advocated that the competence should lie with the labour courts
and that the Commission should only have an advisory function.
it is envisaged that platform workers will be insured against accidents at
work, regardless of their employee status. Whereby the insurance cover must be
paid by the digital work platform.
This is how it continues
EPSCO meeting on 16 June, the upcoming Czech Council Presidency presented its
planning for the second half of 2022. It then aims to adopt a Council position
on the proposed directive on 8 December. In the
European Parliament, negotiations between the political groups, led by the
correspondents, will start on 5 July. The vote in the Committee on Employment
and Social Affairs is scheduled for October and in the plenary of the European
Parliament for November or December this year. In
Belgium, the bill will be presented to the parliament.