On Friday [26 January], the Council of the EU voted in favour of a new proposal for the Platform Work Directive. The Belgian Presidency's text was shaped over a few drafts and has ended up looking a lot like the Council's first proposal, agreed under the Swedish Presidency in June 2023, taking next-to-nothing from the European Parliament's mandate into account. What does this new proposal contain? Three indicators are required out of seven to trigger the presumption of employment, rather than the two out of five proposed under the Spanish-negotiated text in December. The indicators are also much tougher to trigger than in the Spanish text, resembling very closely the original Council proposal. They are: a) The digital labour platform determines upper limits for the level of remuneration;b) The digital labour platform requires the person performing platform work to respect specific rules with regard to appearance, conduct towards the recipient of the service or performance of the work;c) The digital labour platform supervises the performance of the work including by electronic mean;d) The digital labour platform restricts the freedom, including through sanctions, to organise's one's work by limiting the discretion to choose one's working hours or periods of absence;da) The digital labour platform restricts the freedom, including through sanctions, to organise one's work by limiting the discretion to accept or to refuse tasks;db) The digital labour platform restricts the freedom, including through sanctions, to organise one's work by limiting the discretion to use subcontractors or substitutes;e) The digital labour platform restricts the possibility to build a client base or to perform work for any third party. These indicators appear almost designed to be avoided by the digital labour platforms, which one suspects is entirely the point. We doubt whether any food delivery courier in Europe would meet three of these criteria, and if they currently do it would not be difficult for the platforms to tweak their models so that, for instance, the rider is able to use "substitutes", a practise which currently facilitates widespread illegal working through sub-letting of accounts. As labour law experts Antonio Aloisi, Silvia Rainone and Nicola Contouris point out in 'Social Europe' this week, the risk of the Council's non-presumption of employment is not just that it is ineffective, but that it "ironically could constrain, rather than enhance, the scope for courts in some member states to confer employment-protection rights on platform workers".The Council proposal contains a number of other significant changes to that negotiated under the Spanish Presidency, including: no requirement on competent national authorities to carry out an inspection of a workplace if a worker has been found to be an employee or to assist a claimant; no obligation to apply the presumption of employment in tax and social security proceedings even if the national authority is competent to do so; platforms must act in correspondence with any collective agreement signed, potentially opening up space for yellow union agreements.“It’s catastrophic,” Leïla Chaibi, Left group MEP, surmises. “We believed in the Belgians, but they’ve really disappointed us.” It's interesting to note where the opposition to this proposal came from on the Council. Swedish trade union official Thomas Göransson reports that eight member-states voted against on Friday: Latvia, Lithuania, Estonia, Spain, Finland, Slovenia, Greece and Hungary, with Germany continuing to abstain. When the original Council proposal passed in June last year, eight states wrote a letter expressing their disagreements with it and clarifying that they only voted in favour or abstained “with the aim of keeping the legislative process on track”. But those eight states were not at all the same as the ones which voted against this time: six of those states - Belgium, Luxembourg, Malta, the Netherlands,
Portugal and Romania - voted in favour on Friday. The Belgian change of mind is the easiest to explain. As the Presidency, they have decided to bend over backwards to accommodate those states led by France who voted against the Spanish-negotiated text in December. Belgium introduced its own platform work law on 1 January 2023 with a presumption of employment whereby two of five or three of seven criteria could trigger the presumption. As GEP has previously reported, the major platforms all indicated they did not meet the criteria and no platform worker has been made an employee to-date. Pierre-Yves Dermagne, the Social Democratic Minister of Economy and Employment who was responsible for the Belgian platform work law and has led negotiations over the new Platform Work Directive text, seems very keen to impose his own domestic error onto the whole of the European Union. As for the other countries, Luxembourg and the Netherlands had elections in October and November respectively which centre-right and far-right parties won. Malta and Portugal still have social democratic governments, while Romania has a power-sharing agreement between the Social Democrats and the centre-right party. The relevant point is that there is now clearly a split in European social democracy over the Platform Work Directive. While the Macron-led right-wing opposition has been most vocal in its opposition to employment status in the platform economy, if the governments led by social democratic parties (including Germany, which has abstained every step of the way) had united behind a strong presumption of employment and stood up to the French Government, the picture at the Council vote on Friday could have looked very different. As it is, the Council will now enter 'trilogue' negotiations on Tuesday [30 January] to try to strike a deal European Parliament interlocutors. Euractiv reports that the chances are slim, after "a meeting of all Parliament negotiators on Wednesday seems to have solidified opposition to [the Belgian text] from across the aisle". In fact, EP negotiators, led by Social Democrat MEP Elisabetta Gualmini, are now looking at splitting the algorithmic management part of the Directive off from the employment status part, so at least the former can pass even if the latter is dead. It's not clear whether that idea would get a green-light from the Council.Barring a miracle, the hopes of many - that the EU might rise to the challenge posed by the gig economy's disruption of the European employment model, re-asserting the primacy of workers' rights in preventing precariousness and hyper-exploitation - appear to have been dashed. When the inevitable reckoning comes, we should be clear that it's not only the right-wing's fault: many governments which still claim to defend the ravaged traditions of socialism and trade-unionism will have their fingerprints all over this failure.Ben Wray, Gig Economy Project co-ordinator
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Gig Economy news round-up |
- FOODORA RIDERS IN AUSTRIA SACKED AFTER PROTESTING: Four riders at Foodora, Austria's second largest food delivery platform, were sacked shortly after protesting for higher pay. The riders in Innsbruck demonstrated last week with one placard stating: “In the cold, in the rain, in the heat… For a pittance.” They demanded a wage increase of at least 8.7% and a “fair share of the increase in productivity”. Foodora, which is owned by German multi-national Delivery Hero, invited the riders for free pizza before the demonstration, an invitation some of the riders ignored. Three days after the protest, they received a letter stating: “We hereby terminate the current freelance employment relationship with you, subject to the statutory notice period of 6 weeks.” Riders in Austria can be hired on a free service contract, which is a third-status between employed and self-employed, without protections from dismissal. The riders say that only those who joined the protest and didn't come for the free pizza were fired. Foodora didn't respond directly when asked by 'Moment' whether there was a link between the protests and the sackings, but stated: "In the case of compliance violations (e.g. regular late arrivals, multiple unexcused absences, theft of transport goods or other significant behaviour that is detrimental to the company), we reserve the right to terminate contracts accordingly." Read more here.
- COURT ANNULS CATALAN GOVERNMENT FINE TO JUST EAT FOR SUB-CONTRACTING: The Superior Court of Justice of Catalonia (TSJC) annulled a fine imposed on Just Eat by the Catalan Government for sub-contracting 183 riders. The Catalan Government found that the riders were really Just Eat employees and did not work for the sub-contractor, Fleet, as Just Eat had claimed. The TSJC found that, on the contrary, the riders were directed, controlled and organised by Fleet, because the sub-contractor controls "order management" and therefore operates "independent" of the Dutch-headquartered food delivery platform. The ruling adds that Just Eat “only has access to data related to the phase and time in which the order is” and “the percentage of connectivity of the delivery people", which was justified on the basis of "the coordination that the main contractor must carry out with the subcontracted company.” The €187,000 fine imposed in April 2022 was therefore ruled invalid. Just Eat employs many of its riders across Europe via sub-contractors. Read more here.
- COURT SUSPENDS COLLECTION OF €64 MILLION GLOVO FINE DUE TO COMPANY'S "EXTREME SITUATION": Spain's National Court has suspended collection of a €64 million fine from Glovo, the country's largest food delivery platform, after the company said to pay the money would put it in an "extreme situation" financially. The company said that as well as a loss of €209 million last year it has "short-term liquidity problems". Additionally, the fall in the stock value of its owners, German multi-national Delivery Hero, "puts at risk the contributions it can make to the company", while Spanish banks and shadow banks "have reduced or eliminated the credit offered," the company told the court. Glovo even did not rule out a "possible closure" if it was forced to pay the fine. The €64 million fine is due to bogus self-employment at the platform, after the company refused to employ its riders despite the introduction of the Rider Law, which established a general presumption of employment in the food delivery sector, over two years ago. Bogus self-employment sanctions now total over €300 million, with Delivery Hero stating in financial accounts last year that it had put €400 million aside to pay Glovo fines. It's unclear as of yet when the suspension of payment will be lifted or if a date has been set to do so. Read more here.
- COURT FINDS AMAZON MUST EMPLOY OVER 3,000 DELIVERY DRIVERS IN SPAIN: The Social Court no. 42 in Madrid has found that 3,688 Amazon delivery drivers are employees, in a significant ruling. The American multinational's delivery service, Amazon Flex, hires delivery drivers on a self-employed basis, including use of their own vehicles, but their work is managed algorithmically via an Amazon app. The court concurred with the initial finding of the Labour Inspectorate that these workers are in fact employees of Amazon. The UGT union, which brought the case forward, said they considered it "an important milestone" that "all the workers [are now] regularised with a contract". "Once again, the position that we have always defended from the union is clear: if a computer application, an algorithm or an AI controls your working conditions, not only are you obviously an employee of said company, but your rights are threatened and a protection must be established," the statement added. Amazon will appeal the ruling. Read more here.
- UBER CHALLENGES RESTRICTIONS ON PARIS VTCs IN COURT: Uber announced on Thursday [26 January] that it was filing an appeal to the Paris Administrative Court “to put an end to unequal treatment with taxis”. The dispute is over the city council's decree prohibiting access of VTCs (ridehail vehicles) to the Rivoli and Saint-Antoine streets, which are available to Parisian taxis. The restrictions imposed by mayor Anne Hidalgo go back to 2020, but are especially significant ahead of this summer's Olympics games in the city, and have been part of the motivation for recent strikes by drivers in the French capital and beyond. Weeks of meetings between the Silicon Valley gig economy giant and the city council have not led to a breakthrough. “She is showing surprising creativity in issuing new orders which have no other purpose than to purely and simply evade clear decisions,” said Camille Vu, Uber's local operations manager, of Hidalgo. 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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Study: Centring Rights in the Platform WorkplaceThis IT for Change study by Shreeja Sen, Sreyan Chatterjee, Sonakshi Agarwal and Amoha Sharma looks at what rights and regulations platform workers need based on interviews with workers and analysis of existing laws.
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- A hybrid event titled 'Riding High, Riding Low: Work Relations After IWGB v Deliveroo' hosted by University College London's Labour Rights Institute and Human Rights Institute will be held 1 February, 6-7.30pm, London. For full details and to register click here. - The fourth transnational alternatives to Uberisation forum, organised by The Left group in the European Parliament, will be held February 21-22, in Brussels, Belgium. Full details TBC.- The European Trade Union Institute (ETUI) will host a conference on Future of work: rethinking workers' rights in the digital age, 21-22 February, in Brussels, Belgium. Click here for full details and to register (limited places available).
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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.
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