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Directive improving working conditions in platform work

Every day, taxis that can be ordered via an application, as well as food delivery vehicles, run through the streets of Polish and European cities. The use of this type of service is becoming more and more popular every year. It is therefore not surprising that the demand for employees who will provide these services is constantly growing. The employment of such people takes place through digital platforms, which is why they are called platform workers. However, platform workers are not only food suppliers and taxi drivers, but also copywriters, translators, mechanics, couriers, designers, graphic designers and many others.

What is platform work?

Working on digital platforms is therefore a fairly new form of work, in which customers are connected with service providers using applications and websites. This happens using appropriate algorithms. Employees working on online platforms, unlike full-time employees, do not have employment rights that would guarantee them, for example, insurance or the right to paid days off. They cannot be also considered self-employed because, as part of their employment via the platform, they are completely dependent on the algorithm that directs the flow of orders and thus deprives them of decision-making power. These employees often have to adapt to the same rules as employees employed under employment contracts. Therefore, on the one hand, it requires the introduction of certain general regulations that will ensure control over the employment of workers on platforms and provide them with access to a number of employee rights, such as social protection such as medical care or unemployment benefits. On the other hand, the question arises how far this control should be and to what extent will the European Union and then the countries implementing the directive interfere in the functioning of the platforms?

According to Eurostat data, in 2022, nearly 29 million people worked via digital platforms. It is estimated that by 2025 it will be approximately 43 million. Of which, according to data from 2022, as many as 5 million employed people may have the status of self-employed while de facto they are employed as full-time workers. There are currently around 500 digital work platforms across the European Union.

What changes will be introduced under the EU Directive?

The primary purpose of introducing new regulations regarding platform workers is to provide them with better and more predictable employment conditions and to improve their overall quality.

The new regulations will systematize two very important aspects of platform work.

Firstly, their intention is to introduce a “presumption of employment” mechanism. The proposed changes are intended to prevent employees from being misclassified as “self-employed”, when the nature of their work indicates that these are employees who should not be treated as self-employed. The directive details the criteria that should be followed to determine whether a given employee actually meets the conditions for self-employment and at the same time simplifies and provides the possibility of changing such qualifications.

In this regard, the following criteria were formulated:

  • imposed salary limits,
  • supervision, including electronic supervision, of work performance,
  • control of the distribution or assignment of tasks,
  • control of working conditions and restriction of freedom to choose working hours,
  • restrictions on the freedom to organize one’s own work and rules regarding the appearance or conduct of employees.

If at least 2 of the 5 above criteria apply to a platform worker, there will be an automatic legal presumption of employment.

During the initial stages of designing the directive, there were opinions that it would be too much interference in the labour market and that it would limit the freedom of employment, especially for self-employed people, and the introduced regulations would artificially force the need to ensure employment under employment contracts or civil law contracts. . However, it seems that such conclusions were definitely premature. Although the directive introduces a “presumption of employment” mechanism, the conditions that must be met for such a presumption to exist are quite broad.

Another thing that will be regulated by the EU directive is the introduction of an information obligation for platform workers regarding the use of algorithms in the workplace. Algorithms are used to manage employees in terms of work organization and monitoring certain areas of work. The processing of selected data regarding platform workers will be subject to restrictions. This will include, among others:

  • data regarding private conversations of employees,
  • information about your emotional or mental state,
  • biometric information, except for data necessary to authenticate the employee,
  • information that may in any way indicate his racial or ethnic origin, health condition, religion or political opinions,
  • issues that may predict trade union action against employers.

What opportunities and threats do the introduction of new regulations regarding platform work bring?

It should be emphasized that the regulations introduced by the European Union are absolutely justified and should be received positively, because their primary goal is, above all, to regulate the previously quite “wild” operation of digital platforms in the employment market. The new regulations ensure the protection of personal rights and improve the quality of employment conditions. Due to low employment costs, digital platforms offer service prices below market prices, which gives them a competitive advantage. The EU directive also tries to at least partially eliminate this problem.

Importantly, it will depend on individual European Union countries how they define the legal definition of “presumption of employment”. In each country this may have a completely different nature, e.g. in Poland it may involve limiting the use of civil law contracts. Therefore, the problem with the new regulations may be their too broad implementation at the national level. However, in the opinion of many experts, it does not solve all problems. In connection with the functioning of platforms, there is the issue of limiting the working hours of drivers providing services as part of this form of employment.

When will the regulations come into force?

Unfortunately, no preliminary agreement on the draft directive has been reached between EU countries at the moment. Once it is achieved, the next step will be legal and linguistic verification of the document and then approval of the agreement by the Council and Parliament. From the moment of approval by both bodies, Member States will have 2 years to implement the provisions into their national legal order.