Author: Chris Van Olmen
In December 2021, the EU Commission proposed a Directive to offer more protection to platform workers. One of the main innovations of this proposed Directive is the introduction of a rebuttable presumption to determine the correct employment status workers. If the platform workers meet at least two of the five criteria listed, it is legally presumed to be an employer. The proposed criteria are:
- effectively determining, or setting upper limits for the level of remuneration;
- requiring the person performing platform work to respect specific binding rules with regard to appearance and conduct towards the recipient of the service or performance of the work;
- supervising the performance of work or verifying the quality of the results of the work, including by electronic means;
- effectively restricting the freedom, including through sanctions, to organise one’s work, in particular the discretion to choose one’s working hours or periods of absence, to accept or to refuse tasks, or to use subcontractors or substitutes; and
- effectively restricting the possibility to build a client base or to perform work for any third party.
On 10 May 2022, the leading Social-Democrat MEP Elisabetta Gualmini (acting as rapporteur) submitted a draft report on the proposed Directive, in which she significantly tightened the protective measures for platform workers, to the displeasure of some conservative MEPs of the European People’s Party (EPP), including Radan Kanvev. The clash mostly focuses on the above-mentioned rebuttable presumption. While Gualimini thinks that the proposed criteria are not exhaustive enough to encompass the wide variety of platform services and therefore wishes to replace the presumption by an obligation for member states to effectively control the employment status for every platform (after the platform declare the platform workers as independent workers or as employees), the conservative MEPs are teaming up with the platform industry to attack the draft rapport as well as the Commission’s proposal. Their criticism states that “under the present proposal, all platform work is considered employment status, virtually erasing self-employment and freelancers from the market”, which goes “in many ways against common sense and the very core of social market economy”. They would prefer that the presumption would disappear and argue in favour of a better social dialogue between the platforms and workers. However, not all MEP’s of EEP are supporting the view of the platforms.