93 Amendments of Jordi CAÑAS related to 2021/0414(COD)
Amendment 171 #
Proposal for a directive
Recital 1
Recital 1
(1) Pursuant to Article 3 of the Treaty on European Union, the objectives of the Union are, amongst others, to promote the well-being of its peoples and to work for the sustainable development of Europe based on balanced economic growth, a highly competitive social market economy, aiming at full employment and social progress.
Amendment 172 #
Proposal for a directive
Recital 2
Recital 2
(2) This Directive respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union (‘the Charter’). In particular, Article 31 of the Charter provides for the right of every worker to fair and just working conditions which respect his or her health, safety and dignity. Article 27 of the Charter protects the workers’ right to information and consultation within the undertaking. Article 8 of the Charter provides that everyone has the right to the protection of personal data concerning him or heras well as access to data which has been collected concerning him or her and the right to have it rectified. Article 12 of the Charter provides that everyone has the right to freedom of assembly and of association at all levels. Article 15 recognises that everyone has the right to engage in work and to pursue a freely chosen or accepted occupation. Article 16 of the Charter recognises the freedom to conduct a business.
Amendment 179 #
Proposal for a directive
Recital 3
Recital 3
(3) Principle No 5 of the European Pillar of Social Rights, proclaimed at Gothenburg on 17 November 201753 , provides that, regardless of the type and duration of the employment relationship, workers have the right to fair and equal treatment regarding working conditions, access to social protection and training; that, in accordance with legislation and collective agreements, the necessary flexibility for employers to adapt swiftly to changes in the economic context is to be ensured; and that innovative forms of work that ensure quality working conditions are to be fostered, that entrepreneurship and self-employment are to be encouraged and; that occupational mobility is to be facilitated and that employment relationships that lead to precarious working conditions shall be prevented, including by prohibiting abuse of atypical contracts. The Porto Social Summit of May 2021 welcomed the Action Plan accompanying the Social Pillar54 as guidance for its implementation. __________________ 53 Interinstitutional Proclamation on the European Pillar of Social Rights (OJ C 428, 13.12.2017, p. 10). 54 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘The European Pillar of Social Rights Action Plan’, COM(2021) 102 final, 4.3.2021.
Amendment 182 #
Proposal for a directive
Recital 3 a (new)
Recital 3 a (new)
Amendment 186 #
Proposal for a directive
Recital 4
Recital 4
(4) Digitalisation is changing the world of work, bringing workers and employers advantages such as creating new employment and business opportunities, improving productivity and enhancing flexibility as well as increasing consumer choice, while also carryposing some risks for employment and working conditions including lack of or difficult access to adequate social protection and a lack of occupational health and safety. Algorithm-based technologies, including automated monitoring and decision-making systems, have enabled the emergence and growth of digital labour platforms but can produce power imbalances and opacity about decision-making, as well as technology-enabled surveillance which could exacerbate discriminatory practices and entail risks for privacy, workers´ health and safety and human dignity.
Amendment 193 #
Proposal for a directive
Recital 4 a (new)
Recital 4 a (new)
(4a) New forms of digital interaction and new technologies in the world of work create opportunities for access to the labour market generally as well as in specific fields, in particular for people who traditionally lacked such access, including people with disabilities, young people and people with lower skill levels and this access should be fostered in the future in order to support a sustainable income and a decent standard of living for disadvantaged groups.
Amendment 194 #
Proposal for a directive
Recital 5
Recital 5
(5) Platform work is performed by individuals through the digital infrastructure of digital labour platforms that provide a service to their customers. It is characterised by a high level of heterogeneity in the sectors covered and activities carried out, and the profiles of individuals performing platform work and types of digital labour platforms vary widely. By means of the algorithms, the digital labour platforms may control, to a lesser or greater extent – depending on their business model – the performance of the work, its remuneration and the relationship between their customers and the persons performing the work. Platform work can be performed exclusively online through electronic tools (‘online platform work’) or in a hybrid way combining an online communication process with a subsequent activity in the physical world (‘on-location platform work’). Many of the existing digital labour platforms are international business actors deploying their activities and business models in several Member States or across borders.
Amendment 201 #
Proposal for a directive
Recital 5 a (new)
Recital 5 a (new)
(5a) Platform work occurs in a wide variety of fields ranging from delivery services and passenger transport to child care and care services, IT as well as design and creative industries and provision of technical expertise. As such, action taken at both national and European level must ensure a balanced approach without one-size-fits-all measures.
Amendment 208 #
Proposal for a directive
Recital 6
Recital 6
(6) Platform work canreates employment, provideing opportunities for accessing the labour market more easily, gaining additional income through a secondary activity while also balancing caring responsibilities, education or vocational training or enjoying sommore flexibility in the organisation of working time. It can also facilitate efficiencies in the matching of supply and demand, optimisation of resources and increase consumer choice. At the same time, platform work brings challenges, as it can blur the boundaries between an employment relationship and self- employed activity, and the responsibilities of employers and workers. Misclassification of the employment status has consequences for the persons affected, as it is likely to restrict access to existing labour and social rights. It also leads to an uneven playing field with respect to businesses that classify their workers correctly, and it has implications for Member States’ industrial relations systems, their tax base and the coverage and sustainability of their social protection systems. While such challenges are broader than platform work, they are particularly acute and pressing in the platform economy.
Amendment 224 #
Proposal for a directive
Recital 7
Recital 7
(7) Court cases in several Member States have shown the persistence of misclassification ofMore than 100 court decisions and 15 administrative decisions dealing with the employment status in certaof people working types ofhrough platform work, in particular in sectors where digital labour platforms exert a certain degree of control over the remuneration and performance ofs have been observed in the Member States, with varying outcomes but predominantly in favour of reclassifying people working through platforms as workers. While digital labour platforms frequently classify persons working through them as self-employed or ‘independent contractors’, many courts have found that the platforms exercise de facto direction and control over those persons, often integrating them in their main business activities and unilaterally determining the level of remuneration. Those courts have therefore reclassified purportedly self-employed persons as workers employed by the platforms. However, national case law has resulted in diverse outcomes and digital labour platforms have adapted their business model in various ways, thus increasing the lack of legal certainty for people working through platforms over their employment status as well as hampering a level playing field both within the single market and between digital labour platforms and traditional businesses.
Amendment 240 #
Proposal for a directive
Recital 8
Recital 8
(8) Automated monitoring and decision-making systems powered by algorithms increasingly replace functions that managers usually perform in businesses, such as allocating tasks, giving instructions, evaluating the work performed, providing incentives or imposing sanctions. Digital labour platforms use such algorithmic systems as a standard way of organising and managing platform work through their infrastructure. Persons performing platform work subject to such algorithmic management often lack information on how the algorithms work, which personal data are being used and how their behaviour affects decisions taken by automated systems. Workers’ rRepresentatives and labour inspectoratof persons performing platform work, labour inspectorates and competent supervisory authorities do not have access to this information either. Moreover, persons performing platform work often do not know the reasons for decisions taken or supported by such automated systems and lack the possibility to discuss those decisions with a contact person or to contest them.
Amendment 246 #
Proposal for a directive
Recital 9
Recital 9
(9) When platforms operate in several Member States or across borders, it is often unclear where the platform work is performed and by whom. Also, national authorities do not have easy access to data on digital labour platforms, including the number of persons performing platform work, their employment status, and their working conditions. This complicates the enforcement of applicable rules, including in respect of labour law, taxation and social protection.
Amendment 258 #
Proposal for a directive
Recital 11
Recital 11
(11) Social protection is a solidarity- based safety net that is beneficial not only to the individual but also to society as a whole. Council Recommendation 2019/C 387/0158 on access to social protection for workers and the self-employed recommends Member States to take measures ensuring formal and effective coverage, adequacy and transparency of social protection schemes for all workers and self-employed. Member States currently have had varying degrees of success in improviding social protection to the self- employed and should ensure the full implementation of the Recommendation. Persons performing platform work face unique challenges in satisfying eligibility requirements and qualifying for social security benefits, which in turn impacts their future prospects and the financial viability and solidarity of social security systems. __________________ 58 Council Recommendation of 8 November 2019 on access to social protection for workers and the self- employed (2019/C 387/01) (OJ C 387, 15.11.2019, p. 1).
Amendment 261 #
Proposal for a directive
Recital 11 a (new)
Recital 11 a (new)
(11a) With respect to the powers of the Member States to organise their social protection systems, it is essential to ensure, and where necessary extend, access to social protection to persons performing platform work who do not have an employment relationship including for people transitioning from one status to another or who have both statuses in order to guarantee the portability of accumulated social rights and entitlements and for schemes covering maternity and equivalent parental benefits, and unemployment, accident, long-term care, invalidity, sickness, healthcare and old-age benefits.
Amendment 262 #
Proposal for a directive
Recital 11 b (new)
Recital 11 b (new)
(11b) Particular attention should be given to young people, many of whom perform platform work alongside their studies or training and whose personal situations can greatly differ. Young people performing platform work should be able to be involved in both education and part-time platform work while ensuring the highest possible level of social protection in accordance with their employment status.
Amendment 278 #
Proposal for a directive
Recital 16
Recital 16
(16) This Directive should apply to persons performing platform work in the Union who have, or who based on an assessment of facts may be deemed to have, an employment contract or employment relationship as defined by the law, collective agreements or practice in force in theeach Member States, with consideration to the case-law of the Court of Justice of the European Union. This should include situations where the employment status of the person performing platform work is not clear, so as to allow correct determination of that status. The provisions on algorithmic management which are related to the processing of personal data should also apply to genuine self-employed and other persons performing platform work in the Union who do not have an employment relationship.
Amendment 289 #
Proposal for a directive
Recital 18
Recital 18
(18) Digital labour platforms differ from other online platforms in that they organise work performed by individuals at the request, one-off or repeated, of the recipient of a service provided by the platform. Organising work performed by individuals should imply at a minimum a significant role in matching the demand for the service with the supply of labour by an individual who has a contractual relationship with the digital labour platform and who is available to perform a specific task, and can include other activities such as processing payments. Online platforms which do not organise the work performed by individuals but merely provide the means by which service providers can reach the end-user, for instance by advertising offers or requests for services or aggregating and displaying available service providers in a specific area, without any further involvement, should not be considered a digital labour platform. The definition of digital labour platforms should not include providers of a service whose primary purpose is to exploit or share assets, such as short-term rental of accommodation or the resale of goods/services as they do not rely primarily on personal labour for the provision of the services concerned. It should be limited to providers of a service for which the organisation of work performed by the individual, such as transport of persons or goods or cleaning, constitutes a necessary and essential and not merely a minor and purely ancillary component.
Amendment 307 #
Proposal for a directive
Recital 20
Recital 20
(20) In its case law, the Court of Justice has established criteria for determining the status of a worker62 . The interpretation by the Court of Justice of those criteria should be taken into account in the implementation of this Directive. Genuinely self-employed persons should not fall within the scope of this Directive since they do not fulfil those criteria. The abuse of the status of self-employed persons, as defined in national law, either at national level or in cross-border situations, is a form of falsely declared work that is frequently associated with undeclared work. False self-employment occurs when a person is declared to be self- employed while fulfilling the conditions characteristic of an employment relationship, in order to avoid certain legal or fiscal obligations. Such persons should fall within the scope of this Directive. __________________ 62 Judgments of the Court of Justice of 3 July 1986, Deborah Lawrie-Blum v Land Baden-Württemberg, C-66/85, ECLI:EU:C:1986:284; 14 October 2010, Union Syndicale Solidaires Isère v Premier ministre and Others, C-428/09, ECLI:EU:C:2010:612; 4 December 2014, FNV Kunsten Informatie en Media v Staat der Nederlanden, C-413/13, ECLI:EU:C:2014:2411; 9 July 2015, Ender Balkaya v Kiesel Abbruch- und Recycling Technik GmbH, C-229/14, ECLI:EU:C:2015:455; 17 November 2016, Betriebsrat der Ruhrlandklinik gGmbH v Ruhrlandklinik gGmbH, C-216/15, ECLI:EU:C:2016:883; 16 July 2020, UX v Governo della Repubblica italiana, C- 658/18, ECLI:EU:C:2020:572; and order of the Court of Justice of 22 April 2020, B v Yodel Delivery Network Ltd, C-692/19, ECLI:EU:C:2020:288.
Amendment 327 #
Proposal for a directive
Recital 24
Recital 24
(24) When digital labour platforms control certain elements of the performance of work, they act like employers in an employment relationship. Direction and control, or legal subordination, is an essential element of the definition of an employment relationship in the Member States and in the case-law of the Court of Justice. Therefore contractual relationships in which digital labour platforms exert a certain level of control over certain elements of the performance of work should be deemed, by virtue of a legal presumption, to be an employment relationship between the platform and the person performing platform work through it. As a result, that person should be classified as a worker having all the rights and obligations in accordance with that status, as laid down in national and Union law, collective agreements and practice. The legal presumption should apply in all relevant administrative and legal proceedings and should benefitIt is important to stress that the legal presumption of an employment relationship must not lead to an automatic classification of all persons performing platform work as workers and must ensure theat persons performing platform work who are genuinely self-employed are able to remain so and can continue to access work through platforms. The legal presumption should apply in all relevant administrative and legal proceedings. Authorities in charge of verifying the compliance with or enforcing relevant legislation, such as labour inspectorates, social protection bodies or tax authorities, should also be able to rely on that presumption as well as persons performing platform work who dispute the classification of their employment status. Member States should put in place a national framework of measures, in accordance with their national legal and judicial systems, to reduce litigation and increase legal certainty.
Amendment 344 #
Proposal for a directive
Recital 25
Recital 25
(25) Criteria indicating that a digital labour platform controls the performance of work should be included in the Directive in order to make the legal presumption proportionate, operational and facilitate the enforcement of workers’ rights. Those criteria should be inspired by Union and national case law and take into account national concepts of the employment relationship. The criteria should include concrete elements showing that the digital labour platform, for instance, determines in practice and not merely recommends the working conditions or the remuneration or both, gives specific binding instructions on how the work is to be performed or prevents the person performing platform work from developing business contacts with potential clients. In order for it to be effective in practice, two and future-proof, a majority of criteria should be always fulfilled to trigger the application of the presumption,. At the same time, the criteria should not cover situations where the persons performing platform work are genuine self-employed. Genuine self- employed persons are themselves responsible vis-à-vis their customers for how they perform their work and the quality of their outputs. The freedom to choose working hours or periods of absence, to refuse tasks, to use subcontractors or substitutes or to work for any third party is characteristic of genuine self-employment. Therefore, de facto restricting such discretions by a number of conditions or through a system of sanctions, should also be considered as an element of controlling the performance of work. Closely supervising the performance of work or thoroughly verifying the quality of the results of that work, including through electronic means, which does not merely consist in using reviews or ratings by the recipients of the service, should also be considered as an element of controlling the performance of work. At the same time, digital labour platforms should be able to design their technical interfaces in a way to ensure good consumer experience. Measures or rules which are required by law or which are necessary to safeguard the health and safety of the recipients of the service or to ensure the essential functioning of the service should not be understood as controlling the performance of work.
Amendment 348 #
Proposal for a directive
Recital 26
Recital 26
(26) Effective implementation of the legal presumption through appropriate measures, such as disseminating information to the public, developing comprehensive guidance and, strengthening controls and field inspections and their resourcing and mechanisms for persons performing platform work and digital labour platforms to consult relevant authorities is essential to ensure legal certainty and transparency for all parties involved. These measures should avoid capturing the genuine self-employed and take into account the specific situation of entrepreneurs and start-ups to support the entrepreneurial potential and the conditions for innovation and the sustainable growth of digital labour platforms in the Union.
Amendment 372 #
Proposal for a directive
Recital 28
Recital 28
(28) The relationship between a person performing platform work and a digital labour platform may not meet the requirements of an employment relationship in accordance with the definition laid down in the law, collective agreements or practice in force of the respective Member State with consideration to the case-law of the Court of Justice, even though the digital labour platform controls the performance of work on a given aspect. Member States should ensure the possibility for any of the parties to rebut the legal presumption in legal or administrative proceedings or both by proving, on the basis of the aforementioned definition, that the relationship in question is not an employment relationship. TheA shift in the burden of proof to digital labour platforms is justified by the fact that they have a complete overview of all factual elements determining the relationship, in particular the algorithms through which they manage their operations. Legal proceedings and administrative proceedings initiated by the digital labour platforms in order to rebut the legal presumption should not have a suspensive effect on the application of the legal presumption. A successful rebuttal of the presumption in administrative proceedings should not preclude the application of the presumption in subsequent judicial proceedings. When the person performing platform work who is the subject of the presumption seeks to rebut the legal presumption, the digital labour platform should be required to assist that person, notably by providing all relevant information held by the platform in respect of that person. Member States should provide the necessary guidance for procedures to rebut the legal presumption.
Amendment 381 #
Proposal for a directive
Recital 30
Recital 30
(30) In addition to rights and obligations provided in this Directive, rights and obligations provided in Regulation (EU) 2016/679 continue to apply when personal data are processed. Articles 13, 14 and 15 of Regulation (EU) 2016/679 require data controllers to ensure transparency towards data subjects on the collection and processing of personal data. Articles 16, 17 and 20 provides for the right to rectification, the right to be forgotten and the right to data portability respectively. Moreover, Article 22(1) of Regulation (EU) 2016/679 provides for the data subjects’ right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her, subject to the exceptions provided for in paragraph 2 of that article. Those obligations and rights apply also to digital labour platforms and persons performing platform work.
Amendment 385 #
Proposal for a directive
Recital 32
Recital 32
(32) Digital labour platforms should be subject to transparency obligations in relation to automated monitoring and decision-making systems that are used to monitor, supervise or evaluate the work performance through electronic means; and automated decision-making systems which are used to take or support decisions that significantly affect working conditions, including access of persons performing platform work to work assignments, their earnings, their occupational safety and health, their working time, their promotion and their contractual status, including the restriction, or suspension or termination of their account. In addition to what is provided in Regulation (EU) 2016/679, information and consultation concerning such systems should also be provided where decisions are not solely based on automated processing, provided that they are supported by automated systems. It should also be specified which kind of information should be provided to persons performing platform work regarding such automated systems, as well as in which form and when it should be provided. The obligation of the controller under Articles 13, 14 and 15 of Regulation (EU) 2016/679 to provide the data subject with certain information in relation to the processing of personal data concerning the data subject as well as with access to such data should continue to apply in the context of platform work. Information on automated monitoring and decision-making systems should also be provided to representatives of persons performing platform work and to national labour authorities and the competent supervisory authorities at their request, in order to enable them to exercise their functions.
Amendment 397 #
Proposal for a directive
Recital 33
Recital 33
(33) Digital labour platforms should not be required to disclose the detailed functioning of their automated monitoring and decision-making systems, including algorithms, or other detailed data that contains commercial secrets or is protected by intellectual property rights in accordance with Directive (EU) 2016/943. However, the result of those considerations should not be a refusal to provide all the information required by this Directive.
Amendment 404 #
Proposal for a directive
Recital 35
Recital 35
(35) Digital labour platforms make extensive use of automated monitoring and decision-making systems in managing their human resources. Monitoring by electronic means can be intrusive and decisions taken or supported by such systems directly affect the persons performing platform work, who might not have a direct contact with a human manager or supervisor. Digital labour platforms should therefore ensure human oversight to regularly monitor and evaluate the impact of individual decisions taken or supported by automated monitoring and decision- making systems on working conditions. Digital labour platforms should ensure sufficient human resources for this purpose. The persons charged by the digital labour platform with the function of monitoring should have the necessary competence, training and authority to exercise that function and should be protected from dismissal, disciplinary measures or other adverse treatment for overriding automated decisions or suggestions for decisions. In addition to obligations under Article 22 of Regulation (EU) 2016/679, Article 7(1) and (3) of this Directive provides for distinct obligations of digital labour platforms in relation to human monitoring of the impact of individual decisions taken or supported by automated systems, which apply as specific rules in the context of platform work, including to ensure the protection of the rights and freedoms in respect of the processing of employees' personal data within the meaning of Article 88 of Regulation (EU) 2016/679.
Amendment 406 #
Proposal for a directive
Recital 37
Recital 37
(37) In that context, persons performing platform work should have the right to obtain an human review and explanation from the digital labour platform for a decision, the lack of decision or a set of decisions taken or supported by automated systems that significantly affect their working conditions. For that purpose the digital labour platform should provide the possibility for them to discuss and clarify the facts, circumstances and reasons for such decisions with a human contact person at the digital labour platform. In addition, digital labour platforms should provide the person performing platform work with a written statement of reasons for any decision to restrict, suspend or terminate access to work assignments, to restrict or suspend that person’s account, to refuse the remuneration for work performed by that person, or affecting his or her contractual status, as such decisions are likely to have significant negative effects on persons performing platform work, in particular their potential earnings. A decision to terminate the account of a person performing platform work may be supported but never taken by an automated decision-making system unless necessary to safeguard the health and safety of the recipients of the service. Such decisions should be notified to the person prior to the decision coming into effect. Where the explanation or reasons obtained are not satisfactory or where persons performing platform work consider their rights infringed, they should also have the right to request the digital labour platform to review the decision and to obtain a substantiated reply within a reasonable period of time. Where such decisions infringe those persons’ rights, such as labour rights or the right to non- discrimination, the digital labour platform should rectify such decisions without delay or, where that is not possible, provide adequate compensation.
Amendment 413 #
Proposal for a directive
Recital 38 a (new)
Recital 38 a (new)
Amendment 422 #
Proposal for a directive
Recital 40
Recital 40
(40) Persons who do not have an employment relationship constitute a significant part of the persons performing platform work. The impact of automated monitoring and decision-making systems used by digital labour platforms on their working conditions and their earning opportunities is similar to that on platform workers. Therefore, the rights in Articles 6, 7, 8 and 811a of this Directive pertaining to the protection of natural persons in relation to the processing of personal data in the context of algorithmic management, namely those regarding transparency on automated monitoring and decision-making systems, restrictions to process or collect personal data, human monitoring and review of significant decisions, should also apply to persons in the Union performing platform work who do not have an employment contract or employment relationship. The rights pertaining to health and safety at work and information and consultation of platform workers or their representatives, which are specific to workers in view of Union law, should not apply to them. Regulation (EU) 2019/1150 provides safeguards regarding fairness and transparency for self-employed persons performing platform work, provided that they are considered business users within the meaning of that Regulation. Where such safeguards conflict with elements of specific rights and obligations laid down in this Directive, the specific provisions of Regulation (EU) 2019/1150 should prevail in respect of business users.
Amendment 424 #
Proposal for a directive
Recital 41
Recital 41
(41) In order to ensure that digital labour platforms comply with labour legislation and regulations, taxation and social security contribution obligations, social security coordination and other relevant rules, in particular if they are established in another country than the Member State in which the platform worker is performing work, digital labour platforms should declare work performed by platform workers to the competent labour and social protection authorities of the Member State in which the work is performed, in accordance with the rules and procedures laid down in the law of the Member States concerned.
Amendment 430 #
Proposal for a directive
Recital 42
Recital 42
(42) Information on the number of persons performing platform work through digital labour platforms on a regular basis, their contractual or employment status, average duration of activity and average income from activity and the general terms and conditions applicable to those contractual relationships is essential to support labour inspectorates, social protection bodies and other relevant authorities in correctly determining the employment status of persons performing platform work and in ensuring compliance with legal obligations as well as representatives of persons performing platform work in the exercise of their representative functions and should therefore be made accessible to them. Those authorities and representatives should also have the right to ask digital labour platforms for additional clarifications and details, such as basic data on working conditions regarding working time and remuneration.
Amendment 432 #
Proposal for a directive
Recital 43
Recital 43
(43) An extensive system of enforcement provisions for the social acquis in the Union has been developed, elements of which should be applied to this Directive in order to ensure that persons performing platform work have access to timely, effective and impartial dispute resolution and a right to redress, including adequate compensation. Specifically, having regard to the fundamental nature of the right to effective legal protection, persons performing platform work should continue to enjoy such protection even after the end of the employment or other contractual relationship giving rise to an alleged breach of rights under this Directive.
Amendment 437 #
Proposal for a directive
Recital 45
Recital 45
(45) Platform work is characterised by the lack of a common workplace where workers can get to know each other and communicate with each other and with their representatives, also in view of defending their interests towards the employer. In some areas prevalent in platform work, such as digital remote services or design work, many Member States lack established workers’ organisations or trade unions. Persons performing platform work should be free to organise, choose representatives and be taken into account in social dialogue and collective bargaining processes, regardless of their employment status. Persons performing platform work can also be exposed to the increased risk of violence, including gender-based violence and harassment. It is therefore necessary to create digital communication and reporting channels, in line with the digital labour platforms’ work organisation, where persons performing platform work can exchange with each other and be contacted by their representatives and report incidents of violence or harassment. Digital labour platforms should create such communication channels within their digital infrastructure or through similarly effective means, while respecting the protection of personal data and refraining from accessing or monitoring those communications.
Amendment 446 #
Proposal for a directive
Recital 47
Recital 47
(47) Given that Article 6, Article 7(1) and (3) and Article 8 of this Directive provide for specific rules in the context of platform work to ensure the protection of employees' personal data within the meaning of Article 88 of Regulation (EU) 2016/679 and that Article 10 of this Directive applies those safeguards also in case of persons without employment contract or employment relationship, the national supervisory authorities referred to in Article 51 of Regulation (EU) 2016/679 should be competent to monitor the application of those safeguards and well as the communication channels established in Article 15. Chapters VI, VII and VIII of Regulation (EU) 2016/679 should apply in terms of procedural framework for the enforcement of those safeguards, in particular as regards supervision, cooperation and consistency mechanisms, remedies, liability and penalties, including the competence to impose administrative fines up to the amount referred to in Article 83(5) of that Regulation.
Amendment 464 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
1. The purpose of this Directive is to improve the working conditions and social protection of persons performing platform work by ensuring the correct determination of their employment status, by promoting transparency, fairness, human oversight and accountability in algorithmic management in platform work and by improving transparency in platform work, including in cross-border situations, while supporting the conditions for innovation and the sustainable growth of digital labour platforms in the Union.
Amendment 470 #
Proposal for a directive
Article 1 – paragraph 2 – introductory part
Article 1 – paragraph 2 – introductory part
2. This Directive lays down minimum rights that apply to every person performing platform work in the Union who has, or who based on an assessment of facts may be deemed to have, an employment contract or employment relationship as defined by the law, collective agreements or practice in force in theeach Member States with consideration to the case-law of the Court of Justice.
Amendment 471 #
Proposal for a directive
Article 1 – paragraph 2 – subparagraph 1
Article 1 – paragraph 2 – subparagraph 1
In accordance with Article 10, rights laid down in this Directive pertaining to the protection of natural persons in relation to the processing of personal data in the context of algorithmic management also apply to every person performing platform work in the Union who does not have an employment contract or employment relationship. This Directive shall be without prejudice to the full respect of the autonomy of social partners, as well as their right to negotiate and conclude collective agreements.
Amendment 514 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
(5) ‘representatives’ means the platform workers’ organisations or representatives including trade unions, provided for by national law or practices, or both or the organisations or representatives of persons performing platform work who do not have an employment relationship;
Amendment 538 #
Proposal for a directive
Article 2 – paragraph 2
Article 2 – paragraph 2
2. The definition of digital labour platforms laid down in paragraph 1, point (1), shall not include providers of a service whose primary purpose is to exploit or share assetgoods or assets or the resale of goods or services. It shall be limited to providers of a service for which the organisation of work performed by the individual constitutes not merely a minor and purely ancillary component.
Amendment 548 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. Member States shall have appropriate procedures in place to verify and ensure the correct determination of the employment status of persons performing platform work, with a view to ascertaining the existence of an employment relationship as defined by the law, collective agreements or practice in force in theeach Member States with consideration to the case-law of the Court of Justice, and ensuringe that they enjoy the rights deriving from Union law applicable to workers.
Amendment 554 #
Proposal for a directive
Article 3 – paragraph 2
Article 3 – paragraph 2
2. The determination of the existence of an employment relationship shall be guided primarily by the facts relating to the actual performance of work, taking into account the use of algorithms in the organisation of platform work, irrespective of how the relationship is classified in any contractual arrangement that may have been agreed between the parties involved. Where the existence of an employment relationship is established based on such facts, the party assuming the obligations of the employer shall be clearly identified and shall duly fulfil them in accordance with national legal systems.
Amendment 573 #
Proposal for a directive
Article 4 – paragraph 1 – introductory part
Article 4 – paragraph 1 – introductory part
1. The contractual relationship between a digital labour platform that controls, within the meaning of paragraph 2, the performance of work and a person performing platform work through that platform shall be legally presumed to be an employment relationship. To that effect, Member States shall establish a framework of measures, in accordance with their national legal and judicial systems, in order to ensure that the legal presumption can be relied upon by competent authorities verifying compliance with or enforcing relevant legislation as well as persons performing platform work who dispute the classification of their employment status.
Amendment 593 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 1
Article 4 – paragraph 1 – subparagraph 1
The legal presumption shall apply in all relevant administrative and legal proceedings. Competent authorities verifying compliance with or enforcing relevant legislation shall be able to rely on that presumption.
Amendment 608 #
Proposal for a directive
Article 4 – paragraph 2 – introductory part
Article 4 – paragraph 2 – introductory part
2. Controlling the performance of work within the meaning of paragraph 1 shall be understood as fulfilling at least two majority of the following:
Amendment 619 #
Proposal for a directive
Article 4 – paragraph 2 – point a
Article 4 – paragraph 2 – point a
(a) effectivelyde facto determining, or setting upper limits for the level of remuneration;
Amendment 626 #
Proposal for a directive
Article 4 – paragraph 2 – point b
Article 4 – paragraph 2 – point b
(b) requiring the person performing platform work to respect specific binding rules with regard to appearance, conduct towards the recipient of the service or performance of the work beyond what is required by law or necessary to safeguard the health and safety of the recipients of the service or to ensure the essential functioning of the service;
Amendment 639 #
Proposal for a directive
Article 4 – paragraph 2 – point c
Article 4 – paragraph 2 – point c
(c) closely supervising the performance of work or thoroughly verifying the quality of the results of the work including by electronic means beyond what is required by law or necessary to safeguard the health and safety of the recipients of the service or to ensure the essential functioning of the service;
Amendment 647 #
Proposal for a directive
Article 4 – paragraph 2 – point d
Article 4 – paragraph 2 – point d
(d) effectivelyde facto 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, including from other digital platforms or to use subcontractors or substitutes;
Amendment 658 #
Proposal for a directive
Article 4 – paragraph 2 – point e
Article 4 – paragraph 2 – point e
(e) effectivelyde facto restricting the possibility to build a client base or to perform work for any third party.
Amendment 667 #
Proposal for a directive
Article 4 – paragraph 3 – introductory part
Article 4 – paragraph 3 – introductory part
3. Member States shall take supporting measures to ensure the effective implementation of the legal presumption referred to in paragraph 1 while taking into account the impact on entrepreneurs and start-ups, avoiding capturing the genuine self-employed and supporting the conditions for innovation and the sustainable growth of digital labour platforms. In particular they shall:
Amendment 684 #
Proposal for a directive
Article 4 – paragraph 3 – point b
Article 4 – paragraph 3 – point b
(b) develop comprehensive guidance for digital labour platforms, persons performing platform work and social partners to understand and implement the legal presumption including on the procedures for rebutting it in accordance with Article 5;
Amendment 694 #
Proposal for a directive
Article 4 – paragraph 3 – point c
Article 4 – paragraph 3 – point c
(c) develop guidancecapacity building, guidance, training for enforcement authorities to proactively target and pursue non-compliant digital labour platforms;
Amendment 701 #
Proposal for a directive
Article 4 – paragraph 3 – point d
Article 4 – paragraph 3 – point d
(d) strengthen the controls and field inspections conducted by labour inspectorates or the bodies responsible for the enforcement of labour law, while ensuring their sufficient resourcing so that such controls and inspections are effective, proportionate and non-discriminatory.
Amendment 707 #
Proposal for a directive
Article 4 – paragraph 3 – point d a (new)
Article 4 – paragraph 3 – point d a (new)
(da) develop a consultation mechanism under which persons performing platform work or digital labour platforms can request the relevant authorities to pre- emptively assess, verify and justify the employment status of persons performing platform work on the basis of the control of the performance of work within the meaning of paragraph 2.
Amendment 747 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
Where the digital labour platform argues that the contractual relationship in question is not an employment relationship as defined by the law, collective agreements or practice in force in the Member State in question, with consideration to the case- law of the Court of Justice, the burden of proof shall be on the digital labour platform. Such proceedings shall not have suspensive effect on the application of the legal presumption.
Amendment 755 #
Proposal for a directive
Article 5 – paragraph 3
Article 5 – paragraph 3
Where the person performing the platform work argues that the contractual relationship in question is not an employment relationship as defined by the law, collective agreements or practice in force in the Member State in question, with consideration to the case-law of the Court of Justice, the digital labour platform shall be required to assist the proper resolution of the proceedings, notably by providing all relevant information held by it. Member States shall provide the necessary guidance for procedures to rebut the legal presumption.
Amendment 769 #
Proposal for a directive
Article 5 a (new)
Article 5 a (new)
Article 5a Improvement of working conditions of genuine self-employed persons performing platform work Ensuring correct determination of the employment status shall not prevent the improvement of working conditions of genuine self-employed persons performing platform work. Where a digital labour platform decides, either on a purely voluntary basis or in agreement with the persons concerned, to pay for social protection, accident insurance or other forms of insurance, training measures or similar benefits to self- employed persons working through that platform, those benefits as such shall not be regarded as determining elements indicating the existence of an employment relationship.
Amendment 776 #
Proposal for a directive
Article 6 – paragraph 1 – introductory part
Article 6 – paragraph 1 – introductory part
1. Without prejudice to the obligations and rights of digital labour platforms and platform workers under Regulation (EU) 2016/679, Directive (EU) 2016/943 and Directive (EU) 2019/1152, Member States shall require digital labour platforms to inform platform workers of and consult platform workers and their representatives on:
Amendment 791 #
Proposal for a directive
Article 6 – paragraph 2 – introductory part
Article 6 – paragraph 2 – introductory part
2. The information and consultation referred to in paragraph 1 shall concern:
Amendment 793 #
Proposal for a directive
Article 6 – paragraph 2 – point a – point ii
Article 6 – paragraph 2 – point a – point ii
(ii) the categories of data and actions monitored, supervised or evaluated by such systems, including evaluation by the recipient of the service;
Amendment 800 #
Proposal for a directive
Article 6 – paragraph 2 – point b – point iv
Article 6 – paragraph 2 – point b – point iv
(iv) the grounds for decisions to restrict, or suspend or terminate the platform worker’s account, to refuse the remuneration for work performed by the platform worker, on the platform worker’s contractual status or any decision with similar effects.
Amendment 803 #
Proposal for a directive
Article 6 – paragraph 3
Article 6 – paragraph 3
3. Digital labour platforms shall provide the information referred to in paragraph 2 in the form of a document which may be in electronic format. They shall provide that information at the latest ons soon as possible and at the latest within a calendar week from the first working day, as well as in the event of substantial changes impacting working conditions or monitoring of work performance and at any time upon the platform workers’ request. The information shall be presented in a concise, transparent, intelligible and easily accessible form, using clear and plain language.
Amendment 806 #
Proposal for a directive
Article 6 – paragraph 4
Article 6 – paragraph 4
4. Digital labour platforms shall make the information referred to in paragraph 2 available to platform workers’ representatives and national labour, national labour authorities or national competent supervisory authorities upon their request.
Amendment 813 #
Proposal for a directive
Article 6 – paragraph 5 – introductory part
Article 6 – paragraph 5 – introductory part
5. Digital labour platforms shall not process any personal data concerning platform workers that are not intrinsically connected to and strictly necessary for the performance of the contract between the platform worker and the digital labour platform in accordance with Regulation (EU) 2016/679. In particular they shall not:
Amendment 845 #
Proposal for a directive
Article 7 – title
Article 7 – title
Human monitoringoversight of automated systems
Amendment 850 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
1. Member States shall ensure that digital labour platforms regularly monitor and evaluateoversee and periodically evaluate, at least annually the impact of individual decisions taken or supported by automated monitoring and decision-making systems, as referred to in Article 6(1), on working conditions.
Amendment 854 #
Proposal for a directive
Article 7 – paragraph 2 – point a a (new)
Article 7 – paragraph 2 – point a a (new)
(aa) evaluate the risks of automated monitoring and decision-making systems in replicating gender, racial and other social biases in the selection and treatment of different groups;
Amendment 855 #
Proposal for a directive
Article 7 – paragraph 2 – point c
Article 7 – paragraph 2 – point c
(c) introduce appropriate preventive, corrective and protective measures.
Amendment 861 #
Proposal for a directive
Article 7 – paragraph 2 – subparagraph 1
Article 7 – paragraph 2 – subparagraph 1
(a) They shall not use automated monitoring and decision-making systems in any manner that puts undue pressure on platform workers or otherwise puts at risk the physical and mental health of platform workers.
Amendment 866 #
Proposal for a directive
Article 7 – paragraph 3
Article 7 – paragraph 3
3. Member States shall require digital labour platforms to ensure sufficient human resources for monitoringeffective oversight of the impact of individual decisions taken or supported by automated monitoring and decision- making systems in accordance with this Article. The persons charged by the digital labour platform with the function of monitoringsuch oversight shall have the necessary competence, training and authority to exercise that function. They shall enjoy protection from dismissal, disciplinary measures or other adverse treatment for overriding automated decisions or suggestions for decisions.
Amendment 879 #
Proposal for a directive
Article 8 – paragraph 1 – subparagraph 1
Article 8 – paragraph 1 – subparagraph 1
Digital labour platforms shall provide the platform worker, in writh a written statement ofing or where appropriate, by electronic means, with the reasons for any decision taken or supported by an automated decision- making system to restrict, suspend or terminate access to work assignments, to restrict or suspend the platform worker’s account, any decision to refuse the remuneration for work performed by the platform worker, any decision on the platform worker’s contractual status or any decision with similar effects.
Amendment 881 #
Proposal for a directive
Article 8 – paragraph 2 – introductory part
Article 8 – paragraph 2 – introductory part
2. Where platform workers are not satisfied with the explanation or the written statement of reasons obtained or consider that the decision referred to in paragraph 1 infringes their rights, they shall have the right to request the digital labour platform to review that decision. The digital labour platform shall respond to such request by providing the platform worker with a substantiated reply without undue delay and in any event within one week of receipt of the requestat the latest within one month of receipt of the request. That period may be extended where necessary, taking into account the complexity and number of the requests. The digital labour platform shall inform the platform worker of any such extension as soon as possible and latest within one month of receipt of the request, together with the reasons for the delay.
Amendment 890 #
Proposal for a directive
Article 8 – paragraph 2 – subparagraph 1
Article 8 – paragraph 2 – subparagraph 1
With regard to digital labour platforms which are micro, small or medium-sized enterprises, Member States may provide that the deadline for reply referred to in the first subparagraph is extended to two weekfurther months.
Amendment 892 #
Proposal for a directive
Article 8 – paragraph 2 a (new)
Article 8 – paragraph 2 a (new)
2a. A decision to terminate a platform worker’s account may be supported but not taken by an automated decision- making system unless necessary to safeguard the health and safety of the recipients of the service. The digital labour platform shall provide a reasoned notification to the platform worker in due time prior to the decision coming into effect. Where platform workers are not satisfied with the reasons provided or consider that the decision infringes their rights, they shall have the right to request the digital labour platform to review that decision in line with the procedure set out in paragraph 2.
Amendment 896 #
Proposal for a directive
Article 8 – paragraph 3 a (new)
Article 8 – paragraph 3 a (new)
3a. In accordance with Regulation (EU) 2016/679, Member States shall ensure that platform workers have the right to data portability, the right to be forgotten and the right of rectification.
Amendment 898 #
Proposal for a directive
Article 8 – paragraph 4
Article 8 – paragraph 4
4. This Article shall be without prejudice to dismissal procedures laid down in national law and practice.
Amendment 907 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
1. Without prejudice to the rights and obligations under Directive 2002/14/EC and Directive 2009/38/EC, Member States shall ensure timely information and consultation of platform workers’ representatives or, where there are no such representatives, of the platform workers concerned by digital labour platforms, on decisions likely to lead to the introduction of or substantial changes in the use of automated monitoring and decision-making systems referred to in Article 6(1), in accordance with this Article.
Amendment 918 #
Proposal for a directive
Article 9 – paragraph 3
Article 9 – paragraph 3
3. The platform workers’ representatives or the platform workers concerned may be assisted by an expert of their choice, in so far as this is necessary for them to examine the matter that is the subject of information and consultation and formulate an opinion. Where a digital labour platform has more than 2500 platform workers in a Member State, the expenses for the expert shall be borne by the digital labour platform, provided that they are proportionate.
Amendment 924 #
Proposal for a directive
Article 10 – paragraph 1
Article 10 – paragraph 1
1. Article 6, Article 7(1), 2(a) and (3), Article 8 and Article 811a shall also apply to persons performing platform work who do not have an employment contract or employment relationship.
Amendment 936 #
Proposal for a directive
Article 11 a (new)
Article 11 a (new)
Amendment 940 #
Proposal for a directive
Article 12 – paragraph 1 – introductory part
Article 12 – paragraph 1 – introductory part
1. Without prejudice to Directive(EU) 2016/943, where labour, social protection and other relevant authorities exercise their functions in ensuring compliance with legal obligations applicable to the employment status of persons performing platform work and where the representatives of persons performing platform work exercise their representative functions, Member States shall ensure that digital labour platforms make the following information available to them:
Amendment 942 #
Proposal for a directive
Article 12 – paragraph 1 – point a
Article 12 – paragraph 1 – point a
(a) the number of persons performing platform work on a regular basis through the digital labour platform concerned on a regular basis and their contractual or employment status;
Amendment 944 #
Proposal for a directive
Article 12 – paragraph 1 – point a a (new)
Article 12 – paragraph 1 – point a a (new)
(aa) the average duration of activity and average income from activity of persons performing platform work on a regular basis through the digital labour platform concerned;
Amendment 953 #
Proposal for a directive
Article 12 – paragraph 2
Article 12 – paragraph 2
2. The information shall be provided forto each Member State in which persons are performing platform work through the digital labour platform concerned. The information shall be updated at least every six months, and, as regards paragraph 1, point (b), each time the terms and conditions are modified.
Amendment 954 #
Proposal for a directive
Article 12 – paragraph 3
Article 12 – paragraph 3
3. Labour, social protection and other relevant authorities and representatives of persons performing platform work shall have the right to ask digital labour platforms for additional clarifications and details regarding any of the data provided. The digital labour platforms shall respond to such request within a reasonable period of time by providing a substantiated replyby providing a substantiated reply without undue delay and at the latest within one month of receipt of the request.
Amendment 966 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
Without prejudice to Articles 79 and 82 of Regulation (EU) 2016/679, Member States shall ensure that persons performing platform work, including those whose employment or other contractual relationship has ended, have access to timely, effective and impartial dispute resolution and a right to redress, including adequate compensation, in the case of infringements of their rights arising from this Directive.
Amendment 981 #
Proposal for a directive
Article 15 – title
Article 15 – title
Communication and reporting channels for persons performing platform work
Amendment 982 #
Proposal for a directive
Article 15 – paragraph 1
Article 15 – paragraph 1
In order to foster collective representation and social dialogue, Member States shall take the necessary measures to ensure that digital labour platforms create the possibility for persons performing platform work to contact and privately and securely communicate with each other, and to be contacted by representatives of persons performing platform work, through the digital labour platforms’ digital infrastructure or similarly effective and visible means, while complying with the obligations under Regulation (EU) 2016/679. Member States shall require digital labour platforms to refrain from accessing such channels other than for their functional maintenance or from accessing or monitoring those contacts and communications.
Amendment 987 #
Proposal for a directive
Article 15 – paragraph 1 – subparagraph 1 (new)
Article 15 – paragraph 1 – subparagraph 1 (new)
In order to safeguard persons performing platform work from violence, including gender-based violence and harassment, Member States shall take the necessary measures to ensure that digital labour platforms create effective reporting channels through the digital labour platforms’ digital infrastructure or similarly effective means, while complying with the obligations under Regulation (EU) 2016/679. Member States shall require digital labour platforms to have effective and timely preventative and follow-up procedures to address such reports.
Amendment 992 #
Proposal for a directive
Article 16 – paragraph 2
Article 16 – paragraph 2
2. Member States shall ensure that national courts have the power to order the disclosure of evidence containing confidential information where they consider it relevant to the claim. They shall ensure that, when ordering the disclosure of such information, national courts have at their disposal effective measures to protect such information as laid down in Article 9 of Directive (EU) 2016/943.
Amendment 995 #
Proposal for a directive
Article 18 – paragraph 1
Article 18 – paragraph 1
1. Member States shall take the necessary measures to prohibit the dismissal or measures witsh equivalent effect and all preparations for dismissal or measures witsh equivalent effect of persons performing platform work, on the grounds that they have exercised the rights provided for in this Directive.
Amendment 1000 #
Proposal for a directive
Article 19 – paragraph 1
Article 19 – paragraph 1
1. The supervisory authority or authorities responsible for monitoring the application of Regulation (EU) 2016/679 shall also be responsible for monitoring the application of Article 6, Article 7(1) and (3) and Articles 8, 10 and 105 of this Directive, in accordance with the relevant provisions in Chapters VI, VII and VIII of Regulation (EU) 2016/679. They shall be competent to impose administrative fines up to the amount referred to in Article 83(5) of that Regulation.
Amendment 1019 #
Proposal for a directive
Article 20 a (new)
Article 20 a (new)
Article 20a Dissemination of information Member States shall ensure that the national measures transposing this Directive, together with the relevant provisions already in force relating to the subject matter as set out in Article 1, are brought to the attention of persons performing platform work and digital labour platforms, including SMEs as well as to the general public. This information should be provided in a comprehensive and easily accessible way, including to persons with disabilities and where necessary in the most relevant language(s), as determined by the Member State.