After a four-year process that seemed like it might never end, the all-important details on the Platform Work Directive were thrashed out over one evening and morning. The final 'trilogue' under the Spanish Presidency met on Tuesday [12 November] evening, and about 12 hours later they announced that Council and Parliament negotiators had come to an agreement. You can read the Gig Economy Project's full report on the provisional agreement here, including reaction from unions, politicians and platform lobbyists. In this newsletter, we will restrict ourselves to just a few points. 1) The saga is not quite over Don't switch off for the holidays yet. The provisional agreement is provisional because it needs to be ratified by the Council of the EU and the European Parliament (EP). The EP vote will be a formality: the Left group and the Greens, which were least in favour of compromising with the Council, have said they're satisfied with the deal, and the Socialists & Democrats, Renew and half of the European People's Party were always going to support whatever EP rapporteur Elisabetta Gualmini MEP negotiated. The Parliament vote will surely be an overwhelming 'yes'. The same can't be said for the Council of the EU. Two-thirds of member-states must back the deal in a vote on Wednesday [20 December] at a meeting called 'Coreper'. AgencyEurope reported before Tuesday's trilogue that the Spanish Presidency was negotiating without a "new, formally revised mandate", and that some member-states remained reluctant to bend at all on the key issue of the presumption of employment. Since the deal was brokered, the same publication has written that whether the French Government - the government in Europe most closely associated with opposition to employment status in the platform economy - decides to give it the green light or not is likely to be decisive."For some observers, no agreement would be validated at Coreper without a positive assessment from Paris," the report, by Solenn Paulic, states. GEP has even been told that some member-states are pushing for negotiations to be re-opened, but it would be surprising if the Spanish Presidency had negotiated a deal without strongly believing they had the numbers on the Council to carry it. Remember, however, that the Spanish Government, represented on this Directive by left-wing Sumar leader Yolanda Díaz, sits at the opposite side of the ideological spectrum from French President Emmanuel Macron, who actively lobbied for Uber when he was in an economy minister in 2015 to defend the company's illegal entry into the French market. Díaz has proven herself to be an effective deal-maker as Spain's Minister of Labour, but bagging Macron may be her biggest coup yet: if she really can pull it off.2) An ifs, buts and maybes presumption of employmentIf the Directive is approved, what will it deliver? GEP has been told the full text won't be released for several weeks, so we can't give a conclusive assessment yet. From the information that has been made available and what we have been able to glean from sources, we can say that, in relation to the question of employment status, the provisional agreement is certainly more likely to deliver employment rights for platform workers than the Council proposal, but there remains significant doubts nonetheless, and we won't really know until it is legally tested. If you want to go deep into the weeds of this issue, you can read our thread here (with some clarifications here). The key point is that there is a presumption of employment and at least two out of five 'indicators' are required to trigger it. It is 'at least' 2/5 because the text states that "Member States may add further indicators to this list." We understand that means more indicators would not increase the threshold of indicators required, so it could go from 2/5 to 2/7, but not to 3/7 (as the Council proposed). Two of five was the proposal of the European Commission (the indicators are very similar to those proposed in the EC text), while the European Parliament had proposed a general presumption of employment (like the Spanish 'Rider Law'). So this is definitely a compromise between the Council and the Parliament.Will the 2/5 indicators mean that an Uber Eats rider, for example, will be considered an employee? The short answer is that we don't really know, and that there may not be one answer for the whole of the EU despite the Directive. Our view is that riders do meet at least two of the five criteria in the Commission proposal, but Will Shu, Deliveroo CEO, told his investors after the Commission proposal was published in December 2021 that he didn't think Deliveroo couriers met the threshold. Moreover, once the platforms rebut the presumption of employment and take the case to court (the burden of proof will now lie with them to do this, not the worker, an important step forward), it will be national definitions of the platform worker which will be used to determine the judgement, so it's unlikely that we will get a harmonisation of platform worker status across the EU.What we can be sure about is that once the legislative battle over platform workers' employment status is over, the legal battle we have seen in courts across Europe in recent years won't end with it. In fact, it might just be getting warmed up.3) Strong on algorithmic workers' rightsThe most unambiguously positive aspect of the deal for gig workers, and the one least attention has been paid to throughout this process, appears to be on the regulation of the algorithmic systems used to manage workers in the gig economy. The good thing about this is there's some clarity here: whatever employment status the workers have, the algorithmic workers' rights contained in the agreement applies to every platform worker in the EU. There are three significant areas: human oversight on key decisions, limits on platforms' personal data collection and workers' data rights. On the first, the European Parliament press release states clearly that "human oversight is also guaranteed for significant decisions such as the suspension of accounts". Again, the nuances will matter here, because there is one thing for a human being to press a button to verify the decision of an automated system, but it's quite another for a human being to actually make the decision themselves. Nonetheless, this does look like it could be an end to the shocking practise of robo-firings and robo-suspensions, which destroy livelihoods overnight.On limits on personal data collection, it will be banned to process data on workers when they are not connected to the app, as well as on a variety of specific things such as their emotional state, their sexuality, on private conversations including trade union activity. "That data cannot be used for other purposes which are unrelated to a person's working life," Gualmini said.Workers and union representatives will have a right to know what automated systems are used, what information is collected on them and how decisions are made related to their work, including how their performance is evaluated. We have been told that in some aspects this will advance considerably beyond current GDPR rights. Platforms will have to establish channels for workers to communicate with one another. “[This means] people in the platform economy will have digital rights that are going to be stronger than workers in traditional sectors," Antonio Aloisi, platform labour expert at IE University in Madrid, told Wired. Again, the details will be crucial here and there may well be gaps. for example we don't believe there's anything on the use of dynamic pricing systems to algorithmically determine pay rates using the personal data history of workers. But the algorithmic management section seems like a good news story nonetheless, whereas on the presumption of employment, it remains too early to tell. Ben Wray, Gig Economy Project co-ordinator
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Gig Economy news round-up |
- CASES OF MODERN SLAVERY OF VTC DRIVERS IN PORTUGAL EXPOSED: Evidence of modern slavery has been found in the taxi and ridehail (VTC) sector in Portugal. InfoMigrants reports that on the night of 6-7 October near Lisbon a driver was pulled over for a routine roadside check, when they found a frightened Nepalese driver and another migrant asleep in a trunk. Both men used the same license, that of a third party. When one drove, the other slept in the trunk, on "rotations". The men were trafficked through Spain to Portugal by a smuggling network, and have had their passports confiscated with money required to buy them back. "It's a classic pattern, it's very worrying because these people have no social protection, they are in great precariousness and are taken hostage by their 'boss'," Luis, a judicial police from greater Lisbon, said, adding: "It’s a growing phenomenon". Another Indian driver told InfoMigrants that he was promised independence to work in the VTC sector if he came to Portugal, but when he arrived he was forced to stay in an unsanitary apartment with 9 other drivers, all of whom had their passports seized and their money controlled by the smugglers. The drivers mainly come from India and Bangladesh, but also Pakistan, Afghanistan, Moldova, Senegal and Guinea. About 2000-2500 migrants are employed in the taxi and VTC sector around the Lisbon area, and around 700-800 in the Porto area, Portugal's second city. Read more here.
- FRENCH STATE SELLS STUART DELIVERY: Stuart Delivery, the last-mile delivery company which is a major sub-contractor of Just Eat Takeaway, has been sold to Mutares SE & CO, a German private equity firm. The deal means Stuart Delivery is no longer owned by GeoPost/DPD, which is a subsidiary of the French publicly-owned postal service company, La Poste. The French state had been an investor in Stuart Delivery, which operates in France, the UK, Spain, Portugal, Poland and Italy, since it launched in 2015, first with a 22% stake which was increased to 100% in 2017. During the Stuart Delivery strike in the north of England last year, the longest strike so far in the gig economy, MEP Leïla Chaibi called on the French Government to intervene to ensure decent working conditions for all Stuart Delivery riders. The 'Global Trade' magazine said Mutares saw the deal "as a strategic opportunity to accelerate Stuart’s sustainable delivery offerings across various sectors". Read more here.
- GLOVO ASKS RIDERS FOR SELF-EMPLOYED PAPERS TO DETECT ILLEGAL WORKING: Spain's largest food delivery platform Glovo is asking app account holders to send papers in within 15 days to prove they are legally registered as self-employed, in a bid to clamp down on illegal working. The practice was reported in the eastern coastal city of Valencia, where 'Levante-EMV' reports that 60% of riders are undocumented, meaning they don't have the legal right-to-work in Spain. Undocumented riders work through rented accounts, for which they pay a rent to the account holder for usage, which in Valencia is usually 30%. Levante-EMV reports that the request for self-employed papers has angered riders, either because they are working undocumented or because they believe they are really employees. The Spanish Government passed the Rider Law in 2021, establishing a general presumption of employment in the food delivery sector, but Glovo has refused to employ its riders. A Glovo source told the newspaper that these are routine checks which have been carried out before, and that if a possible irregularity is found an investigation is conducted and the rider can appeal. Read more here.
- 2000 UBER DRIVERS IN "HISTORIC" OLYMPICS PROTEST IN FRANCE: The INV union, which represents Uber drivers in France, held a "historic" mobilisation in Paris on Thursday [14 December], principally over the exclusion of Uber cars from use of 185 kilometres of lanes reserved for taxis, buses and accredited vehicles at the upcoming Olympics in the summer of 2024. Journalist Clément Lanot, who took a video of the demonstration, said around 2,000 drivers participated. The protest, with Uber drivers moving at a snail's pace, shutdown a main ring road in Paris, causing significant traffic jams. Ben Ali Brahim, leader of the union, described the demonstration as "historic", and said he was due to hold a meeting with the Minister of Transport that same day to discuss their concerns. He warned that if action was not taken the protests would be extended to "a national scale" and they would be willing to "block all the events” of the Olympics next summer, if necessary. In a press release, Ali Brahim blamed the lack of an Olympics permit on "the lack of regulation" in the sector, "exacerbated by the arrival of more than 60,000 new drivers, often part-time, and the proliferation of mafia networks fraudulently exploiting the profession of [the] driver". Read more here.
- GLOVO ANNOUNCES MORE CHANGES TO ITS WORK MODEL: After introducing a change to its terms & conditions last week so that riders can now have 10 substitutes on their account, Glovo has introduced a string of new changes this week for riders. Firstly, riders will no longer receive any money while waiting for already assigned orders. Previously, they received €3 for waits outside restaurants. Secondly, a fee will now be charged to riders for use of the app. Finally, there will no longer be customer ratings of the riders. Tiago Viera, platform work expert at the European University Institute, wrote on Twitter that he believed the changes are an attempt by Glovo to reach a point where their model will be judged by a court to be self-employed. The Spanish Supreme Court found in 2020 that Glovo riders were employees, not self-employed. Referring to the debate around the 'indicators' used in the new Platform Work Directive agreement (see main article above), Viera said: "Now, [are the change to Glovo's model] enough to make Glovo workers freelancers? I say no. They are still dependent on the platform and highly constrained in their choices, as are many precarious employees. However, under the indicators approach, I suspect they would hardly be classified as employees". In Spain, a general presumption of employment exists through the Rider Law, and the consensus among labour law experts until now has been that it is legally water-tight, in the sense that Spanish courts will continue to find Glovo riders are bogus self-employed regardless of the tweaks the company makes to their model. Glovo has racked up fines of over €200 million for false self-employment, with their parent company Delivery Hero setting aside up to €400 million for future fines. A criminal prosecution could also lead to prison sentences for Glovo executives. In response to the cancellation of the waiting time for assigned tasks, the campaign group RidersXDerechos tweeted: "The neo-slavery that Glovo is implementing could not occur without the passivity of the Ministry of Labour.
It is very worrying that despite having more than 80 court rulings that determine that their model is illegal, these companies can continue to freely violate rights." Read more here.
Have we missed something important? You can help keep us informed by sending information to GEP@BraveNewEurope.com. |
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Platform delivery workers and accidents: more exposed, less covered
Piero Valmassoi writes in Econospheres on the experience of food delivery couriers in Brussels, Belgium in relation to accidents and insurance, as part of an international investigation into the topic (in French). Laura Carrer has also written a piece about Milan for Milan Today for this investigation here (paywalled).
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- The European Trade Union Insitute is hosting a talk on 'Getting platform workers out of the legal grey zone', by Tim Christiaens, assistant professor of economic ethics from Tilburg University and author of 'Digital Working Lives'. The talk will be online 2-3pm CET on 19 December. Click here for details and to register.
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The Gig Economy Project is a media network for gig workers and we welcome contributions from workers, writers, academics, activists - anyone who wants to stand up for workers' rights in the gig economy.
If you would like to write for the site, discuss arranging an interview with GEP, or simply have information about developments in the gig economy in Europe you think we should be aware of, get in touch.
Contact project co-ordinator Ben Wray at GEP@BraveNewEurope.com or send a direct message to the Twitter: @project_gig.
And if you like the Gig Economy Project weekly newsletter, why not get your friends and colleagues to subscribe? Here's the link.
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