45 Amendments of Elżbieta RAFALSKA related to 2021/0414(COD)
Amendment 167 #
Draft legislative resolution
Citation 2
Citation 2
— having regard to Article 294(2) and Article 153(2), point (b), in conjunction with Article 153(1), points (b), (c) and (d), and Article 16(2) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C9- C9-0454/2021),
Amendment 189 #
Proposal for a directive
Recital 4
Recital 4
(4) Digitalisation is changing the world of work, improving productivity and enhancing flexibility, while also carrying some risks for employment and working conditions. Algorithm-based technologies, including automated monitoring and decision-making systems, have enabled the emergence and growth of digital labour platforms and have created economic opportunity for hundreds of thousands of EU citizens and businesses while offering choice and value to consumers in the EU.
Amendment 198 #
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. By means of the algorithms, the digital labour platforms mayare creating efficiencies that benefit the individuals, businesses and consumers and they may exert 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 199 #
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. By means of the algorithms and artificial intelligence, 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 205 #
Proposal for a directive
Recital 6
Recital 6
(6) Platform work can provide opportunities for accessing the labour market more easily, gaining additional income through a secondary activity or enjoying some flexibility in the organisation of working time. At the same time, platform work brings challenges, as it can not only blur the boundaries between employment relationship and self- employed activity, and the responsibilities of employers and workers but also reach into other agreements, which can pose challenges to social security. Moreover, people working in the platform economy are often classified as self-employed, although many of them claim to be employees1a. There are various reasons for this uncertainty about their status, such as having regular employment as employees or self-employed (in the more traditional sense) and therefore being subject to standard labour laws, or being uncertain about their status and seeing themselves as employees simply because they regularly provide a certain type of service through the same platform. As a result, these individuals may not benefit from the equivalent social, labour, health and safety protections that are associated with an employment contract in most countries. 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. __________________ 1a Estimates from the COLLEEM survey reveal that when asked about their current employment situation, 75.7 % of the platform workers claimed to be an employee (68.1%) or self-employed (7.6%). https://publications.jrc.ec.europa.eu/repos itory/bitstream/JRC112157/jrc112157_pu bsy_platform_workers_in_europe_science _for_policy.pdf
Amendment 217 #
Proposal for a directive
Recital 6 a (new)
Recital 6 a (new)
(6a) Therefore, the proposed solutions should help platform workers to continue their professional activities with their preferred flexibility to organise and control their own status (e.g. as an additional source of income), workload and schedule.
Amendment 219 #
Proposal for a directive
Recital 6 b (new)
Recital 6 b (new)
Amendment 228 #
Proposal for a directive
Recital 7
Recital 7
(7) Court cases in several Member States have shown the persistencecases of misclassification of the employment status in certain types of platform work, in particular in sectors where digital labour platforms exert a certain degree of control over the remuneration and performance of work. 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, with different national definitions of employee and employment relationship, 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 over the employment status.
Amendment 237 #
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’ representatives and labour inspectorates 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 automated systems and lack the possibility to discuss those decisions with a contact person or to contest them. It is therefore legitimate to take measures to prevent discrimination against employees in the context of algorithmic management. About two- thirds of people working through platforms in terms of earnings have access to some measures to prevent discrimination and promote equity1d. __________________ 1d Digital Labour Platforms in the EU. Mapping and Business Models, p.12
Amendment 242 #
Proposal for a directive
Recital 8 a (new)
Recital 8 a (new)
(8a) The allocation of work through algorithms, an essential feature of the business model of many platforms, can have a very negative impact on working conditions. Often the allocation of work is not transparent and perceived as unfair by those working through the platform. In practice, these individuals are often on standby waiting for a job assignment and feel that competition is high, which can cause stress and worsen their work-life balance. In addition, this can lead to a reduction in autonomy and control of the work done through the platform. However, it should be noted that this does not apply to all platforms equally.
Amendment 243 #
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 as Member States do not collect data in this respect. 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 and social protection and therefore it is not possible to determine precisely or even approximately how many workers are affected, let alone to what extent.
Amendment 247 #
Proposal for a directive
Recital 9 a (new)
Recital 9 a (new)
(9a) The popularity of some platforms, in particular transport and food delivery, increased significantly during the pandemic, mainly because they provided access to certain services during a period of isolation. According to research, more than 60% of EU residents say that, even after the COVID-19 crisis, they do not intend to stop using online services, including, for instance, the possibility of ordering meals online1e. __________________ 1e https://www.dw.com/pl/ue-chce-lepiej- chroni%C4%87-pracuj%C4%85cych-za- po%C5%9Brednictwem-platform- cyfrowych/a-56676431
Amendment 248 #
Proposal for a directive
Recital 9 b (new)
Recital 9 b (new)
Amendment 249 #
Proposal for a directive
Recital 9 c (new)
Recital 9 c (new)
(9c) Platforms with their origin outside the EU play an important role in the EU. Platform economy (23% of active platforms and 49% in terms of earnings). Most of these platforms intermediating on-location services nevertheless have an office in the EU, whereas the platforms intermediating online services tend not to have an office in the EU. In total, less than a tenth of the work done through platforms is provided through platforms without an office in the EU1g. __________________ 1g Digital Labour Platforms in the EU. Mapping and Business Models, p.8 https://op.europa.eu/en/publication- detail/-/publication/b92da134-cd82-11eb- ac72-01aa75ed71a1/language-en
Amendment 250 #
Proposal for a directive
Recital 9 d (new)
Recital 9 d (new)
Amendment 257 #
Proposal for a directive
Recital 10 a (new)
Recital 10 a (new)
(10a) The determination of employment relationships or employment contracts is governed by the laws of the individual Member States of the Union. Exceptionally, the Union has competence only in respect of the free movement of workers or, in part, the equal treatment of workers, which requires a uniform application of the concept of worker. The legal form of the employment relationship or employment contract varies from country to country and is a matter of national competence. The characteristics of employment which enable it to be recognised as an employment relationship vary greatly from one Member State to another, as is clearly shown by the extensive research carried out by the labour law representatives from those Member States1i. Therefore, persons working via online platforms could be considered as workers only in the individual Member States and not throughout the Union. __________________ 1i Regulating the employment relationship in Europe: A guide to Recommendation No. 198, European Labour Law Network 2013
Amendment 259 #
Proposal for a directive
Recital 11
Recital 11
(11) 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 varying degrees of providing social protection to the self- employed and the issue of social security remains an exclusive competence of the Member States. __________________ 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 260 #
Proposal for a directive
Recital 11 a (new)
Recital 11 a (new)
Amendment 285 #
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 accommodationor online platforms within the meaning of the Digital Services Act and their directly associated services whose primary purpose is to offer or facilitate offers for sales of goods or services excluding food products for their immediate consumption, or those who provide services that are of non-profit- making nature. 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 322 #
Proposal for a directive
Recital 23
Recital 23
(23) Ensuring correct determination of the employment status should not prevent the improvement of working conditions of genuine self-employed persons performing platform work. Where a digital labour platform decides – 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 should not be regarded as determining elements indicating the existence of an employment relationship.
Amendment 331 #
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 shcould be deemed, by virtue of a legal presumption, to be to be one of the elements of 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 benefit the person performing platform workit should be considered whether that person is entitled to the status of worker if he or she also fulfils the other criteria and should be regarded as worker in accordance with that status, as laid down in national and Union law, collective agreements and practice. It should also be stressed that in the Member States the employment relationship is established on the basis of the actual provision of work, which is verified by the competent control authorities. Authorities in charge of verifying the compliance with or enforcing relevant legislation, such as labour inspectorates, social protection bodieinstitutions or tax authorities, should also be able to rely on that presumption. Member States should put in place a national framework to reduce litigation and increase legal certaintybe the ones responsible for verifying the actual status of a person performing platform work. In addition, it is important to bear in mind the principle of freedom of contract in force in some Member States.
Amendment 336 #
Proposal for a directive
Recital 25
Recital 25
Amendment 354 #
Proposal for a directive
Recital 26
Recital 26
(26) Effective implementation of the legal presumptioncorrect determination of the employment status through appropriate measures, such as disseminating information to the public, developing guidance and strengthening controls and field inspections is essential to ensure legal certainty and transparency for all parties involved. These measures should take into account the specific situation of start-ups to support the entrepreneurial potential and the conditions for the sustainable growth of digital labour platforms in the Union.
Amendment 362 #
Proposal for a directive
Recital 27
Recital 27
Amendment 366 #
Proposal for a directive
Recital 27 a (new)
Recital 27 a (new)
(27a) Introduction of a legal presumption could introduce a privilege of a group of persons providing work for digital platforms in relation to other persons providing work, e.g. on the basis of civil law contracts.
Amendment 367 #
Proposal for a directive
Recital 27 b (new)
Recital 27 b (new)
(27b) An inappropriate choice of criteria for applying the legal presumption could result in a significant number of cases in which the presumption is applied and, consequently, an excessive burden on the judiciary in connection with cases for the rebuttal of the presumption. Moreover, this could interfere with national definitions of an employment relationship, which would mean that the effectiveness of such a presumption could be illusory.
Amendment 368 #
Proposal for a directive
Recital 28
Recital 28
Amendment 377 #
Proposal for a directive
Recital 28 a (new)
Recital 28 a (new)
(28a) Member States should ensure the possibility to rebut determination of employment status in legal or administrative proceedings or both. Member States should provide the necessary guidance for procedures to rebut the determination of employment status.
Amendment 412 #
Proposal for a directive
Recital 38
Recital 38
(38) Online platform work poses a range of both pre-existing and new OSH risks, both physical and psycho-social. Moreover, people working through platforms are exposed to particular health and safety risks, as it is often unclear how existing regulations apply (or not) to them, and the protective factors of a physical workspace do not exist. They usually receive little or no training, and have low prospects of career advancement1k. Council Directive 89/391/EEC63 introduces measures to encourage improvements in the safety and health of workers at work, including the obligation for employers to assess the occupational health and safety risks. As automated monitoring and decision-making systems potentially have significant impact on the physical and mental health of persons performing platform work, digital labour platforms should evaluate those risks, assess whether the safeguards of the systems are appropriate to address those risks and take appropriate preventive and protective measures. __________________ 1k Protecting Workers in EU Platform Economy, EU OSHA 2017, p. 28 63 Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ L 183, 29.6.1989, p. 1).
Amendment 530 #
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 assets or online platforms within the meaning of the Digital Services Act and their directly associated services whose primary purpose is to offer or facilitate offers for sales of goods or services excluding food products for their immediate consumption, or those who provide services that are of non-profit- making nature. 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 553 #
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 facts, the party assuming the obligations of the employer shall be clearly identified in accordance with national legal systems.
Amendment 556 #
Proposal for a directive
Article 3 – paragraph 2 a (new)
Article 3 – paragraph 2 a (new)
2a. Member States shall take supporting measures to ensure the correct determination of the employment status referred to in paragraph 1 while taking into account the impact on start-ups, avoiding capturing the genuine self- employed and supporting the sustainable growth of digital labour platforms. In particular they shall: (a) ensure that information on the correct determination of the employment status is made publicly available in a clear, comprehensive and easily accessible way; (b) develop guidance for digital labour platforms, persons performing platform work and social partners to understand and implement the correct determination of the employment status including on the procedures for rebutting it; (c) develop guidance for enforcement authorities to proactively target and pursue non-compliant digital labour platforms; (d) strengthen the controls and field inspections conducted by labour inspectorates or the bodies responsible for the enforcement of labour law, while ensuring that such controls and inspections are proportionate and non- discriminatory.
Amendment 564 #
Proposal for a directive
Article 3 – paragraph 2 b (new)
Article 3 – paragraph 2 b (new)
2b. Member States shall ensure the possibility for any of the parties to rebut the employment status referred to in paragraph 1 in legal or administrative proceedings or both.
Amendment 566 #
Proposal for a directive
Article 4
Article 4
Amendment 571 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
Amendment 599 #
Proposal for a directive
Article 4 – paragraph 2
Article 4 – paragraph 2
Amendment 664 #
Proposal for a directive
Article 4 – paragraph 3
Article 4 – paragraph 3
Amendment 716 #
Proposal for a directive
Article 4 – paragraph 4
Article 4 – paragraph 4
Amendment 729 #
Proposal for a directive
Article 5
Article 5
Amendment 814 #
Proposal for a directive
Article 6 – paragraph 5 – introductory part
Article 6 – paragraph 5 – introductory part
5. DWithout prejudice to the GDPR 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 particular they shall not:
Amendment 825 #
Proposal for a directive
Article 6 – paragraph 5 – point d
Article 6 – paragraph 5 – point d
(d) collect any personal data while the platform worker is not offering or performinglogged in to the platform work.
Amendment 860 #
Proposal for a directive
Article 7 – paragraph 2 – subparagraph 1
Article 7 – paragraph 2 – subparagraph 1
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 862 #
Proposal for a directive
Article 7 – paragraph 2 – subparagraph 1 a (new)
Article 7 – paragraph 2 – subparagraph 1 a (new)
They shall not use automated monitoring and decision-making systems beyond what is required for compliance with applicable local law or regulations, or collective bargaining agreements, or what is necessary to safeguard the health and safety of the recipients of the service and platform workers, or what is required to provide satisfactory consumer service, or what is required to prevent fraud at the expense of consumers or platform workers.
Amendment 958 #
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 timetwo weeks by providing a substantiated reply.
Amendment 965 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1