35 Amendments of Elisabetta GUALMINI related to 2021/0414(COD)
Amendment 212 #
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 blur the boundaries between 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 labour exploitation, unfair competition, social dumping and 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 253 #
Proposal for a directive
Recital 10
Recital 10
(10) A body of legal instruments provides for minimum standards in working conditions and labour rights across the Union. This includes in particular Directive (EU) 2019/1152 of the European Parliament and of the Council55 on transparent and predictable working conditions, Directive 2003/88/EC of the European Parliament and of the Council56 on working time, Directive 2008/104/EC of the European Parliament and of the Council57 on temporary agency work, and other specific instruments on aspects such as health and safety at work, pregnant workers, work-life balance, fixed-term work, part-time work, posting of workers, information and consultation of workers, among others. Those legal instruments are complemented by particularly relevant case-law of the Court of Justice of the European Union finding that ‘stand-by’ time, during which the worker's opportunities to carry out other activities are significantly restricted and which is a systematic feature of platform work, is to be regarded as working time57a. While those instruments provide a level of protection to workers, they do not apply to the genuine self- employed. __________________ 55 Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union (OJ L 186, 11.7.2019, p. 105). 56 Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ L 299, 18.11.2003, p. 9). 57 Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work (OJ L 327, 5.12.2008, p. 9). 57a Judgment of the Court of 21 February 2018 in Ville de Nivelles v Rudy Matzak, C-518/15, ECLI: EU:C:2018:82; confirmed and elaborated in the judgments of 9 March 2021 in RJ v Stadt Offenbach am Main, C-580/19, ECLI:EU:C:2021:183; and 9 March 2021 in -D.J. v Radiotelevizija Slovenija, C- 344/19, ECLI:EU:C:2021:182.
Amendment 264 #
Proposal for a directive
Recital 13
Recital 13
(13) While existing or proposed Union legal acts provide for certain general safeguards, challenges in platform work require some further specific measures. In order to adequately frame the development of platform work in a sustainable manner, it is necessary for the Union to set new minimum standards in working conditions to address the challenges arising from platform work and to protect workers’ fundamental rights. Persons performing platform work in the Union should be provided with a number of minimum rights aiming at ensuring correct determination of their employment status as well as fair and just working conditions, at promoting transparency, fairness and, accountability, and preventing health and safety risks in algorithmic management, and at improving transparency in platform work, including in cross-border situations and at ensuring the right to bargain collectively. This should be done with a view to improving legal certainty, creating a level playing field between digital labour platforms and offline providers of services and supporting the sustainable growth of digital labour platforms in the Union.
Amendment 294 #
Proposal for a directive
Recital 18
Recital 18
(18) Digital labour platforms differ from other online platforms in that they organise and trade labour, or intermediate in the organisation of work performed by individuals at the request, one-off or repeated, of the recipient of a service provided by the platforminvolving computer programs and procedures. 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. 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 312 #
Proposal for a directive
Recital 22
Recital 22
(22) Where the existence of an employment relationship is established based on facts, the party acting as employer should be clearly identified and that party should fulfil all the obligations resulting from its role as employer. and comply with national law and relevant national or sectorial collective agreements in line with the sector of activity which is to be determined by Member States in cooperation with the most representative social partners, identified in line with national law and practice.
Amendment 316 #
Proposal for a directive
Recital 22 a (new)
Recital 22 a (new)
(22a) It is necessary to introduce enforcement provisions which ensure the use of favourable presumptions in cases of misclassification of workers when reclassifying them, including a presumption that the worker has an open- ended employment relationship, that there is no probationary period and that the worker has a full-time position in the undertaking when relevant.
Amendment 325 #
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 relationshipMember States should take particular care in their national policies to ensure effective protection to workers especially affected by the uncertainty as to the existence of an employment relationship, including female workers, as well as the most vulnerable workers, young workers, older workers, workers in the informal economy, migrant workers, including undocumented migrant workers, and workers with disabilities.
Amendment 337 #
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 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 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 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 should not be understood as controlling the performance of work. The authorities and competent institutions applying the legal presumption should be guided by factual elements indicating that the digital labour platform supervises or exert some control over the performance of work in order to facilitate the enforcement of workers’ rights. Those elements are inspired by Union and national case law as well as by the ILO Employment Relationship Recommendation, 2006 (No 198) and take into account national concepts of the employment relationship, and are therefore in constant evolution, also following the evolution of automated or semi-automated monitoring and decision- making systems. Among the concrete elements that can indicate that the digital labour platform supervises or exert some control over the performance of work, there are those showing that the digital labour platform, for instance: determines in practice the working conditions or the remuneration or both, or issues periodic payment of remuneration to the worker; gives instructions on how the work is to be performed or prevents the person performing platform work from developing business contacts with potential clients; supervises the performance of work or verifies the quality of the work, including by electronic means, that leads to the final result; tracks or monitor the person performing platform work; enforces the performance through penalties, including restricting access to work, or uses customer rating systems as a tool of control and basis for penalties; relies on measures of performance and (mis)conduct as a basis for determining remuneration levels, working conditions and penalties; determines access to jobs through internal rankings; restricts the freedom, including through penalties, 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 or to use subcontractors or substitutes; controls and organises the business activity linked to the platform work performed by individuals or detains the responsibility for related investment and management; provides the worker performing platform work with tools, digital means, materials or machinery that are necessary for the performance of the work; provides the worker with any kind of support for social protection, accident insurance, pension scheme or other forms of insurance, training measures or similar benefits. That list is not exhaustive and any other relevant concrete element can indicate that digital labour platform supervises or exert some control over the performance of work. When assessing on the rebuttal of the presumption, competent authorities should be guided, inter alia, by the concrete elements provided above, as any of them should lead to confirmation of the presumption. At the same time, the presumption 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, while not proving it per se. Therefore, de facto restricting such discretions by a number of conditions or through a system of penalties, should also be surely considered as an element of supervising or controlling the performance of work. Verifying the quality of the results of that work, including through electronic means 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 that measures or rules which are required by law or which are necessary to safeguard the health and safety of the recipients of the service should not be understood as supervising the performance of work.
Amendment 359 #
Proposal for a directive
Recital 26 a (new)
Recital 26 a (new)
(26a) In order to ensure that labour inspections are carried out effectively, Member States should have sufficient labour inspectors, in accordance with ILO Convention 81 on Labour Inspection and ILO Report III on the 95th International Labour Conference in 2006, which recommends that there should be one labour inspector per 10 000 workers.
Amendment 398 #
Proposal for a directive
Recital 33
Recital 33
(33) Digital labour platforms and any other undertaking should not be required to disclose the detailed functioning of their automated or semi-automated monitoring and decision-making systems, including algorithms, or other detailed data that contains commercial secretwhich have implications for is protected by intellectual property rights. However, the result of those considerations should not be a refusal to provide all the information required by this Directivefundamental rights and freedoms of the workers or affecting working conditions or work organisation.
Amendment 405 #
Proposal for a directive
Recital 37
Recital 37
(37) In that context, persons performing platform work and any other worker subject to automated or semi-automated systems should have the right to obtain an 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 platformor semi-automated systems that affect their working conditions at the earliest opportunity and at the latest on the day on which such decisions take effect. For that purpose the digital labour platform and any other undertaking using automated or semi-automated monitoring and decision- making systems 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 and any other undertaking using those systems should provide the person performing platform work and any other worker subject to automated or semi-automated systems with a written statement of reasons for any decision to restrict, suspend or terminate that person’s account, to reject work and to refuse the remuneration for work performed by that person, or affecting his or her contractual status, as such decisions at the earliest opportunity and at the latest on the day on which such decisions take effect, as they are likely to have significant negative effects on persons performing platform work, in particular their potential earnings. Such decisions should be taken in line with applicable provisions in national legislation and collective agreements and those affecting the existence of the contractual relationship should never be taken by automated or semi-automated systems. Where the explanation or reasons obtained are not satisfactory or where persons performing platform work or subject to these systems when performing their work consider their rights infringed, they should also have the right to request the digital labour platform or the undertaking 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 fundamental rights and freedoms, labour rights or the right to non- discrimination, the digital labour platform or the undertaking should rectify such decisions without delay or, where that is not possible, provide adequate compensation.
Amendment 417 #
Proposal for a directive
Recital 39 a (new)
Recital 39 a (new)
(39a) The European Commission in its 2021 Action Plan for the Social Economy has acknowledged the significant economic and social role of social economy entities and has specifically mentioned platform cooperatives as “an example of participatory-governed businesses which use digital platforms to facilitate citizen engagement and the selling of locally produced goods and services, aiming to achieve better working conditions for their members.” The contribution of platform cooperatives to ensuring quality working conditions in platform work has also been recognized in the European Economic and Social Committee’s opinion on “Non-standard employment and platform cooperatives in the digital transformation of industry” (December 2021) and European Parliament’s report “Fair working conditions, rights and social protection for platform workers – New forms of employment linked to digital development” (September 2021).
Amendment 426 #
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 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 workers’ representatives of persons performing platform work in the exercise of their representative functions and should therefore be made accessible to them. Those authorities and workers’ 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. Eurofound and the European Labour Authority should support the collection and sharing of those data for the purpose of developing appropriate risk assessment tools.
Amendment 482 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – introductory part
Article 2 – paragraph 1 – point 1 – introductory part
(1) ‘digital labour platform’ means any natural or legal person providing a commercial service which meets all of the following requirements:using automated or semi-automated processes and algorithms for intermediating, supervising or organising in any way the work performed by individuals, irrespective of whether that work is performed online or in a certain location;
Amendment 522 #
Proposal for a directive
Article 2 – paragraph 1 – point 5 a (new)
Article 2 – paragraph 1 – point 5 a (new)
(5a) ‘automated or semi-automated monitoring and decision-making systems’ means any system, software, or process that involves the use of data, machines and algorithms to make decisions or uses computations to aid or replace management decisions or policy that impact work organisation, working conditions, opportunities, access, freedoms, rights and safety of workers;
Amendment 534 #
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. 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 543 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. Member States shall have appropriate and effective 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 the Member States with consideration to the case-law of the Court of Justice, and ensuring that they enjoy the rights deriving from Union law applicable to workersimplement the presumption of employment relationship in line with article 4.1.
Amendment 557 #
Proposal for a directive
Article 3 – paragraph 2 a (new)
Article 3 – paragraph 2 a (new)
2a. Digital labour platforms exerting the prerogatives of employers are undertakings and shall comply with the corresponding employers’ obligations under national law and collective agreements applicable in the sector of activity, which is to be determined by Member States in cooperation with the most representative social partners, identified in line with national law and practice. Platform workers shall fully enjoy the status of worker in line with national law and sectorial collective agreements, including the right to join a trade union, to organise, and bargain collectively.
Amendment 576 #
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 workA person performing platform work is either a worker or a genuine self- employed. The relationship between a digital labour platform and a person performing platform work through that platform shall be legally presumed to be an employment relationship and therefore digital labour platforms shall be presumed to be employers. To that effect, Member States shall establish a framework of measures, in accordance with their national legal and judicial systems.
Amendment 592 #
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 procedures and administrative and legal proceedings. Competent authorities and bodies responsible for registering administrative procedures, verifying compliance with or enforcing relevant legislation shall be able to rely oneffectively apply that presumption.
Amendment 671 #
Proposal for a directive
Article 4 – paragraph 3 – introductory part
Article 4 – paragraph 3 – introductory part
3. Member States shall take supportingall necessary measures to ensure the effective implementation of the legal presumption referred to in paragraph 1 while taking into account the impact on start-ups, avoiding captur, in order to ensure the effective protection for workers performing work ing the genuine self-employed and supporting the sustainable growth of digital labour platformscontext of an employment relationship. In particular they shall:
Amendment 688 #
Proposal for a directive
Article 4 – paragraph 3 – point c
Article 4 – paragraph 3 – point c
(c) develop guidance forand establish procedures for national competent and enforcement authorities to proactively identify, target and pursue digital labour platforms in order to ensure effective compliance with the provisions established in this directive, including by imposing dissuasive sanctions against non-compliant digital labour platforms;
Amendment 695 #
Proposal for a directive
Article 4 – paragraph 3 – point c a (new)
Article 4 – paragraph 3 – point c a (new)
(ca) develop guidance and establish procedures for competent administrative authorities and institutions to proactively apply the legal presumption in the administrative procedures and to share data with other relevant authorities in order to apply the legal presumption in the processing and registration of contractual relations and social security related data;
Amendment 708 #
Proposal for a directive
Article 4 – paragraph 3 – point d a (new)
Article 4 – paragraph 3 – point d a (new)
(da) provide for an automatic and immediate inspection by labour inspectorates or the bodies responsible for the enforcement of labour law every time a detected case of miss-classification or reclassification, in order to verify the status of all the other persons performing platform work for the same digital labour platform;
Amendment 710 #
Proposal for a directive
Article 4 – paragraph 3 – point d b (new)
Article 4 – paragraph 3 – point d b (new)
(db) provide for sufficient resources and trainings for labour inspectorates or the bodies responsible for the enforcement of labour law in order to strengthen their capacities, especially in the technological field, in order to enable them to effectively comply with points(ca) and (da), also by carrying out routine and announced visits;
Amendment 712 #
Proposal for a directive
Article 4 – paragraph 3 – point d c (new)
Article 4 – paragraph 3 – point d c (new)
(dc) ensuring that duly qualified technical experts and specialists, particularly with respect to algorithmic management, assist the labour inspectorates in their work when necessary.
Amendment 759 #
Proposal for a directive
Article 5 – paragraph 3 a (new)
Article 5 – paragraph 3 a (new)
Member States shall ensure that the legal presumption shall not be rebuttable unless the party seeking the rebuttal of the legal presumption demonstrates that all the following criteria are satisfied: (a) the person performing platform work is free from any control and direction of the digital labour platform in connection with the performance of the work, both under the contract for the performance of the work and in fact; (b) the person performing platform work performs work that falls outside the activities usually performed by the digital labour platform (c) the person performing platform work is usually engaged in an independently established trade, profession or business of the same nature as that with which the work performed is related.
Amendment 762 #
Proposal for a directive
Article 5 – paragraph 3 b (new)
Article 5 – paragraph 3 b (new)
Amendment 765 #
Proposal for a directive
Article 5 – paragraph 3 c (new)
Article 5 – paragraph 3 c (new)
Member States shall regularly review assess and, where necessary, complement these conditions, in consultation with the social partners. Such proceedings shall not have suspensive effect on the application of the legal presumption.
Amendment 823 #
Proposal for a directive
Article 6 – paragraph 5 – point c a (new)
Article 6 – paragraph 5 – point c a (new)
(ca) access, collect or process any personal data revealing racial or ethnic origin, migration status, political opinions, religious or philosophical beliefs, disability or state of health, gender or trade union membership and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, or data concerning a natural person's sex life or sexual orientation, chronic diseases or HIV status;
Amendment 864 #
Proposal for a directive
Article 7 – paragraph 2 a (new)
Article 7 – paragraph 2 a (new)
2a. Digital labour platforms shall consult platform workers and workers’ representatives and allow them to take part in discussions on all questions relating to working conditions, including safety and health at work.
Amendment 927 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
Without prejudice to Regulations (EC) No 883/200469 and 987/200970 of the European Parliament and of the Council, Member States shall requirekeep an update a list of digital labour platforms which are employers to declare work performed by platform workeroperating on their territory and shall require digital labour platforms to declare work performed by persons performing platform work and their employment status to the competent labour, tax and social protection authorities of the Member State in which the work is performed and to share relevant data with those authorities, in accordance with the rules and procedures laid down in the law of the Member States concerned, also in order to comply with their fiscal and social protection obligations in accordance with national law or practice. __________________ 69 Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ L 166, 30.4.2004, p. 1). 70 Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (OJ L 284, 30.10.2009, p. 1).
Amendment 949 #
Proposal for a directive
Article 12 – paragraph 1 – point b a (new)
Article 12 – paragraph 1 – point b a (new)
(ba) information contained in the algorithms or automated or semi- automated processes, their functioning and the elements that have an impact on the workers and on the organization of work, in particular the criteria for assigning work, disconnection and selection used for evaluation, statistics and profiling purposes and to show which data is collected.
Amendment 976 #
Proposal for a directive
Article 14 – paragraph 2
Article 14 – paragraph 2
2. Representatives of persons performing platform work shall also have the right to act on behalf or in support of several persons performing platform work, with those persons’ approvalin accordance with national law or practice.
Amendment 988 #
Proposal for a directive
Article 15 a (new)
Article 15 a (new)