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Platform Work Directive: Avoiding "a gingerbread house"

Machinations over the EU Platform Work Directive are heating up. A raft of new information has emerged this week about the state of play in the 'trilogue' negotiations between the Council of the EU and the European Parliament (EP).

Elisabetta Gualmini MEP, EP rapporteur on the Directive, updated the Parliament's Employment and Social Affairs Committee on Wednesday [25 October] on progress with the negotiations. She told MEPs that she had put forward a compromise proposal to the Council in "an attempt to bridge the two positions" on the key question of the presumption of employment.

Gualmini did not explain the detail of the compromise position, but it has previously been reported that the Social Democratic MEP has given up on a general presumption of employment, a shift which has been opposed by The Left and the Green EP groups, while being supported by the Social Democrats, the Renew Group and those MEPs in the Europea People's Party which support a presumption of employment (and represent a significant majority of MEPs).

Gualmini said that the European Commission was "very much supportive of the overall logic" of the new proposal, while the Spanish Presidency of the Council "acknowledged our effort but without being in a position to give a concrete and very detailed assessment". She is hopeful that the Council will put its cards on the table at the next trilogue, on 9 November. She also said that the algorithmic management part of the text is "pretty close to an agreement", with some outstanding issues remaining. On the matter of reaching an agreement before the end of the parliamentary term, she said that "we are little bit worried because time is flying away”.

Since Gualmini's speech, Thomas Göransson, international secretary for EU affairs at the Swedish Unionen, has said that the Spanish Presidency, under the leadership of left-wing minister of labour Yolanda Díaz, "acknowledges that the EP has made some concessions and is asking Member States to do the same." Göransson goes on to list a number of changes the Spanish Presidency is seeking from member-states to the Council's position, changes which give a strong indication of the contours of Gualmini's new proposal:

- "a broader discretion for national authorities in applying the presumption [of employment]";

- "allowing for platform workers and their representatives to launch proceedings";

- "maintain the need to fulfill 3 out of 7 conditions, but criteria are now rebranded as indicators"; 

- "clarifying that the involved parties must be informed about the triggering of the presumption";

- "requirement to take a decision on the establishment of an employment relationship, according to national law, is introduced"

- "clarifies that no automatic re-classification of workers is possible, even if conditions are met."

The important points here are the first three, especially the third: that all of the Council's criteria remains in place, but that they are now called "indicators". We will need a labour law expert to clarify the difference between criteria and indicator in law, but "indicators" strongly suggests that they would be guidelines for, e.g., a labour inspectorate conducting a workplace investigation to follow, but would not be red lines for a judge, if - for example - a platform appealed against a labour inspectorate verdict in court.

It could be the case that the new Gualmini proposal negates the significant risk of passing a Platform Work Directive that could actually undermine the precedents established in courts all over Europe on the question of employment status, thus making it harder, rather than easier, for platform workers to win a legal case of false self-employment against a platform. On the otherhand, the indicators would still set the framework for determining employment status, and the 3 out of 7 schema of the Council is a very weak one indeed.

How is this attempt at a compromise likely to go down with member-states? A report by AgenceEurope states that "a certain number of member-states" were opposed to Gualmini's new proposal at a meeting on 19 October. Some states indicated that they basically didn't want the Spanish Presidency to stray from the Council text, with their remit being to "only allow clarifications and not a change in the mandate of the Council of the EU". 

The Spanish Presidency, surely viewed with suspicion by many member-states given it is the only country in the EU to have a general presumption of employment for food delivery couriers, likely has little room for manoeuvre, but a meeting took place on 27 October in an attempt to bring member-states round to the proposals outlined by Göransson. No information about this meeting has yet been made publicly available. It seems unlikely that the Council is going to back Gualmini's compromise proposal without seeking significant amendments. 

What's at stake here is whether the presumption of employment will be toothless or not. Tim Christiaens, assistant professor of economic ethics at Tilburg University and author of 'Digital Working Lives', puts it well in an article in 'Social Europe', where he identifies the risk that the Directive "could turn into a gingerbread house, as in the Hansel and Gretel folktale."

He explains: "On the outside, it would look nice and appetising, granting employee rights to gig workers, finally tackling infamously exploitative practices. But those who allowed themselves to be seduced by appearances would sooner or later end up in a Silicon Valley witches’ cauldron.

"Thanks to in-built exemptions and legal shrewdness, platform companies could manage to wriggle out of regulatory scrutiny. Only new and smaller platforms would be bridled, while the big players perpetuated their monopolies while making minor adjustments to app designs to avoid the employment presumption." 

Avoiding a gingerbread house in Brussels is priority number one for those seeking workers' rights in Europe's gig economy.

Ben Wray, Gig Economy Project co-ordinator

Gig Economy news round-up

  • EFOOD COURIERS STRIKE IN GREECE FOR COLLECTIVE AGREEMENT: Food delivery couriers at EFood, Greece's largest food delivery platform, struck for four hours on Monday [23 October] to demand a collective agreement. Video footage from the PAME union shows a large motorcade through central Athens, while protests also took place in Greece's other urban centres. The platform, owned by German multinational Delivery Hero, hires employees and freelancers, and the union is demanding the company signs an agreement which would guarantee 35 hours per week for all riders (7 hours a day, 5 days a week). The workers also want health and safety measures, personal protective equipment and a substantial increase in salaries for office staff. In 2021, Efood attempted to rescind all of its couriers contracts and re-hire them all as freelancers, but a major strike and consumer boycott forced the platform to reverse its policy, and hire workers on permanent contracts (they were previously on short, fixed-term contracts). Read more here
  • UBER EATS RIDERS STRIKE IN NORTH OF FRANCE OVER PAY: Uber Eats riders took three days of strike action from Sunday until Tuesday [22 to 24 October] across a string of cities and towns in the North of France, angry over reductions in the pay per kilometre. The strikes in the 'Nord - Pais de Calais' region included Armentières, Arras, Douai and Lille. One of the strikers, Hugo in Lille, told local paper Lille Actu that a "4.9 km delivery used to bring in 6.57 euros. Today it only earns €5.74. The platform was already not very transparent with us regarding remuneration, now it is no longer transparent at all. We were not informed. We can lose up to 2 euros per delivery." Uber Eats defended the changes, stating: "With this new pricing, the average revenue per ride remains similar. Some deliveries, particularly long ones, are slightly revalued, while other shorter ones are slightly less profitable." Uber Eats signed an agreement, alongside Deliveroo and Stuart Delivery, via the French Government's 'social dialogue' mechanism to pay a €11.75 minimum hourly income earlier this year, an agreement which is put into doubt by this new pricing policy. The striking riders said they planned to escalate in coming days, and were setting up a rotation system between them to maximise impact. Read more here
  • 8 RIDERS FROM 6 COUNTRIES TO CYCLE TO BRUSSELS TO DEMAND A STRONG PLATFORM WORK DIRECTIVE: Between 5-8 November, eight delivery riders from six different countries will ride their bikes for 400 kilometres from Paris to Brussels in 'The Great Delivery'. The initiative has been organised by delivery riders’ organisations RidersXDerechos (Spain), La Maison des Livreurs (Belgium), Riders Collective (Austria), FD SUD Commerces et Services (France), and the federation of bike messenger cooperatives CoopCycle. The aim is to deliver their demands to EU policymakers in Brussels for a strong EU Platform Work Directive and to limit the lobbying power of platforms. Every day, they will stop to meet and discuss with other workers that are subject to uberisation – care workers, graphic designers, cashiers, tour guides – and they will be accompanied along their way by ridehail drivers in solidarity. On 8 November, they will arrive in Brussels and hold a commemoration in memory of Sultan Zadran, a delivery rider who died in February in a road accident, and have a meeting with MEP Leïla Chaibi, the Belgian union of platform drivers UCLB (Union des chauffeurs de limousine de Belgique), and the Ligue des travailleuses domestiques (Union of domestic workers) at the Brussels House of Riders. The day after, 9 November at 1pm, riders and drivers will hold a demonstration called “Don’t let Uber make the law” in front of the EU Commission building. Read more here. (Written by Piero Valmassoi)
  • SPANISH CONSTITUTIONAL COURT FINDS RIDER LAW IS CONSTITUTIONAL: The final attempt by Spain's right-wing parties to use the courts to break the Rider Law has been defeated, after the Constitutional Court found that the law is constitutional. The Rider Law, which came into force in August 2021, established a general presumption of employment in the food delivery sector, based on a Supreme Court ruling the year earlier which found that the riders of Glovo, Spain's largest food delivery platform, are employees. The Popular Party and Vox had claimed that the law was unconstitutional because it was pushed through via a Decree, which skips certain aspects of parliamentary procedure on the basis that the law is an emergency. The left-wing coalition government defended that the poor working conditions of the riders meant that it was an emergency, and the court ruled this was an acceptable explanation. Despite the law being in force for over two years, Glovo and Uber Eats continue to refuse to employ all of their riders, a breach which has led to hundreds of millions in fines and the pursuit of criminal prosecutions against the companies' executives. Read more here 
  • MEPs WRITE TO EUROPEAN COMMISSIONER TO "HALT DYNAMIC PRICING": Representatives of the European Parliament's Social Democratic group have written to the European Commissioner for Consumer Policy calling for the EU to "halt dynamic pricing". Dynamic pricing is highly variable price and pay rates based on algorithmic calculations. Lara Wolters MEP and René Repasi MEP were moved to write their letter to Commissioner Didier Reynders due to the use of dynamic pricing in ticketing for concerts, highlighting that a Bruce Springsteen concert in the US saw prices surge to as high as $5,000 due to high demand. But these dynamic pricing systems have also been rolled out by digital labour platforms like Uber to calculate pay rates for riders and drivers, and analysts have found that the lower average rates of pay has been a key driver of Uber's increase in revenues over the past two years which led to the Silcon Valley giant turning its first ever profit in Q2 2023. Wolters and Repasi have called on the Commissioner to investigate whether dynamic pricing is covered under the acquis on consumer protection, to assess whether it is a form of anti-competitive behaviour, and "to adopt legislative measures against this practice". Read more here
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In GEP this week

Why Uber drivers in the App Drivers & Couriers Union logged-off for Gaza

The Gig Economy Project speaks Abdurzaq Hadi, Uber driver and BAME officer for the ADCU, about why the union is among the leading voices of the British trade union movement opposing Israel’s siege of Gaza.
From around the web
Uber Eats drivers in South Africa are unionizing

Kimberly Mutandiro writes in 'Rest of World' about why South African ridehail drivers are getting organised, in the context of a largely deregulated sector.

The Failures of Neoliberal Governance Paved the Way for Uber’s Conquest of the City

Sara Wexler interviews the authors of 'Disrupting D.C.: The Rise of Uber and fall of the city' in Jacobin. 
Working for an app pays less per hour for drivers and delivery people; see salaries

Report by Laís Alegretti in BBC News Brasil looks at unpublished data showing gig workers earn less and work longer hours than the average (in Portuguese). 

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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.

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