76 Amendments of Gheorghe FALCĂ related to 2021/0414(COD)
Amendment 21 #
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. Furthermore, in the field of transport, drivers' ability to work for different platforms in parallel is a key enabler to reduce emissions, congestions and waiting times, while increasing drivers’ revenues. Ride-hailing, ride-sharing, car-sharing, car-pooling and freight-sharing services complement public transport, reduce the reliability on private cars and increase inclusivity.
Amendment 28 #
Proposal for a directive
Recital 4 a (new)
Recital 4 a (new)
(4a) New technologies, including digital technologies, will play a key role in realising sustainable growth. In particular, digital technologies can help us better manage and track resource use, improve efficiency, and collaborate on reaching ambitious environmental EU goals, as well as quantify and measure progress in this regard.
Amendment 39 #
Proposal for a directive
Recital 6
Recital 6
(6) Platform work can provide opportunities for accessing the labour market more easily, in particular for more marginalised groups, 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 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 54 #
Proposal for a directive
Recital 13 a (new)
Recital 13 a (new)
(13a) The sharing economy has produced different business models and will continue to evolve as technology develops and behaviour changes. These developments need to be integrated in transportation planning, balancing the need for modal choice and the quality of service provision.
Amendment 65 #
Proposal for a directive
Recital 23 a (new)
Recital 23 a (new)
(23a) The Commission and the Member States shall support and encourage platform companies to develop training and professional development pathways in order to broaden their workers’ professional options; Regular obligatory security training and specific training in the transport sector is very important, taking into account the requirements and consumer expectations and ensuring that online platforms and platform workers act responsibly, particularly as regards aspects related to safety, security, health, the protection of privacy and the provision of accurate information; platform workers in the transport sector are exposed to health and safety risks and therefore need to be equipped with adequate protective equipment. It is important that the Commission and the Member States promote incentives for digital careers and re-evaluate education to make it fit for the digital age, focusing policies and incentives on preparing young people for future jobs in the transport sector.
Amendment 70 #
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 and avoid legal uncertainty, a majority of the 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 serviceapplicable local law or regulations, or collective bargaining agreements, to safeguard the health and safety of the recipients of the service, to provide satisfactory consumer service, to prevent fraud at the expense of consumers or platform workers, to reach goals related to low and zero emission mobility, should not be understood as controlling the performance of work.
Amendment 73 #
Proposal for a directive
Recital 26 a (new)
Recital 26 a (new)
(26a) The digital labour platforms in the transport sector exhibit great diversity and include multinational companies, SMEs and start-ups that are active in many different EU countries and hold the potential to enhance multimodal transportation and resource sharing, and facilitate efficiency, and productivity improvement through new business models, products and services for workers, businesses and consumers alike. The platform industry has contributed to business formation and job growth, created flexible working models such as part time jobs, and lowered barriers to entry into the labour market for social groups who have often been discriminated by offering them new professional possibilities; The Covid-19 crisis has increased the growth rate of this kind of business model, in particular in the delivery services, and highlighted the ability of the platform economy to create job opportunities; The Covid-19 pandemic has significantly increased the growth rate for transport and delivery platforms and led to an increased number of platform workers in these industries.
Amendment 74 #
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 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. The 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 in order to avoid the triggering and subsequent rebuttal in cases of genuine self-employment. 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 80 #
Proposal for a directive
Recital 45 a (new)
Recital 45 a (new)
(45a) Significant innovations were made in the field of artificial intelligence, which have become integral to the business models and decision-making of platform companies and recalls that artificial intelligence usage on platforms should uphold the health, safety, privacy and working conditions of platform workers.
Amendment 86 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
1. The purpose of this Directive is to improve the working conditions of persons performing platform workers (i) by ensuring correct determination of their employment status, of dependent contractors, (ii) by promoting transparency, fairness and accountability in algorithmic management in platform work and (iii) by improving transparency in platform work, including in cross-border situations, while supporting the conditions for the sustainable growth of digital labour platforms in the Union.
Amendment 87 #
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 on a case by case basis, may be deemed to have, an employment contract or 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.
Amendment 90 #
Proposal for a directive
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
(2) ‘platform work’ means any work organised through a digital labour platform and performed in the Union by an individual on the basis of a direct contractual relationship between the digital labour platform and the individual, irrespective of whether a contractual relationship exists between the individual and the recipient of the service;
Amendment 92 #
Proposal for a directive
Article 2 – paragraph 1 – point 3
Article 2 – paragraph 1 – point 3
(3) ‘person performingself-employed platform worker’ means any individual performing platform work, irrespective of the contractual designation of the relationship between that individual and the digital labour platform by the parties involved;
Amendment 93 #
Proposal for a directive
Article 2 – paragraph 1 – point 4
Article 2 – paragraph 1 – point 4
(4) ‘employed platform worker’ means any person performing platform work who has an employment contract or 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;
Amendment 96 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. In the event in which such procedures are not already in place, 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 the Member States with consideration to the case-law of the Court of Justice when and where applicable, and ensuring that they enjoy the rights deriving from Union law applicable to workers.
Amendment 98 #
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 by the individual in question, on a case by case basis, 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 104 #
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 beyond what commercial relationships require through that platform shallmay 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.
Amendment 113 #
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 twothe majority of the following:
Amendment 116 #
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 thethe total level of remuneration, beyond what is required by law;
Amendment 122 #
Proposal for a directive
Article 4 – paragraph 2 – point c
Article 4 – paragraph 2 – point c
(c) closely supervising the performance of work or verifying the quality of the results of the work including by electronic means;
Amendment 125 #
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 or to use subcontractors or substitutes;
Amendment 128 #
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 132 #
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 sustainable growth of digital labour platforms. In particular they shall:
Amendment 135 #
Proposal for a directive
Article 4 – paragraph 3 – point b
Article 4 – paragraph 3 – point b
(b) develop precise recommendations providing 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 138 #
Proposal for a directive
Article 4 – paragraph 3 – point c
Article 4 – paragraph 3 – point c
(c) develop guidance for enforcement authorities to proactively target and pursue non-compliant digital labour platforms following a related administrative or legal decision;
Amendment 148 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
Member States shall ensure the possibility for any of the parties to rebut the legal presumption referred to in Article 4 in legal or administrative proceedings or both. Member States shall also ensure that before the presumption can be applied, each party will have the opportunity to present evidence and arguments.
Amendment 151 #
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 154 #
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. Such proceedings shall be held before the respective national authority under the relevant national procedure, especially in case a legal presumption and/or procedure for granting employment status on national level already exists.
Amendment 161 #
Proposal for a directive
Article 5 a (new)
Article 5 a (new)
Article 5 a Improvement of working conditions for 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, 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 162 #
Proposal for a directive
Article 5 b (new)
Article 5 b (new)
Article 5 b Security trainings and specific training in the transport sector Digital labour platforms shall provide the information and access to regular security trainings and specific training in the transport sectors, taking into account the requirements and consumer expectations. They shall ensure that platform workers act responsibly particularly as regards aspects related to safety, security, health, protection of privacy and accurate information and they need to be equipped with adequate protective equipment. They shall develop training and professional development pathways in order to broaden their workers’ professional options.
Amendment 194 #
Proposal for a directive
Article 15 – paragraph 1
Article 15 – paragraph 1
Member States shall take the necessary measures to ensure that digital labour platforms create the possibility for persons performing platform work to contact and 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 mean, high-speed wireless and fixed connectivity or similarly effective means is essential for the further development of digitalised transport services, while complying with the obligations under Regulation (EU) 2016/679. Member States shall require digital labour platforms to refrain from accessing or monitoring those contacts and communications.
Amendment 215 #
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 create employment, increase choice, provide additional income, and lower barriers to entering the organisation of working timelabour market, especially for vulnerable groups. 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 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 218 #
Proposal for a directive
Recital 6 a (new)
Recital 6 a (new)
(6a) Platform work may facilitate flexibility and optimisation of resources, and provide opportunities for both people working in or through digital labour platforms and clients, and the matching of demand for and supply of services.
Amendment 220 #
Proposal for a directive
Recital 6 b (new)
Recital 6 b (new)
(6b) Innovation in digital tools is a precondition for platform work and can contribute to growth in times of crisis and recovery.
Amendment 221 #
Proposal for a directive
Recital 6 c (new)
Recital 6 c (new)
(6c) Platform work can offer advantages for students and those who wish to combine study and work at the same time, as well as creating access to employment for young people not in education, employment or training (NEETs), and people with lower skill levels;
Amendment 227 #
Proposal for a directive
Recital 7
Recital 7
(7) Court cases in several Member States have shown the persistence 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 reclassifiedvarious aspects of the performance of the work. Those courts have therefore reclassified, based on different criteria and national legislative solutions, purportedly self-employed persons as workers employed by the platforms. However, various national legislations, social dialogue practices and 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 232 #
Proposal for a directive
Recital 7 a (new)
Recital 7 a (new)
(7a) No legal uncertainty exists for the traditional regulated liberal professions, irrespective whether their performance is facilitated by digital means or not. Further more, the question of the classification of regulated liberal professions is often clearly regulated on national level and often free lancers, engaged in liberal professions, are legally prohibited from employment under employment contract.
Amendment 272 #
Proposal for a directive
Recital 15
Recital 15
(15) In addition, the Commission held extensive exchanges with relevant stakeholders, including digital labour platforms, associations of persons performing platform work, experts from academia, Member States and international organisations and representatives of civil society. It is of utmost importance for these consultations to continue after the adoption of this Directive, including social partners at all levels, in order to guarantee the smooth transposition and implementation of the Directive and provide for a timely revision, based on lessons learned.
Amendment 293 #
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 significantdetermining 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 determining, necessary and essential and not merely a minor and purely ancillary component.
Amendment 297 #
Proposal for a directive
Recital 18 a (new)
Recital 18 a (new)
(18a) Social dialogue and collective bargaining are of utmost importance for achieving the goals of the present Directive. However, digitally based labour market practices require the use of new digital technologies in organizing social dialogue, too. Therefore, traditional trade union organizations might prove unsuitable for organizing platform workers or collective agreements among self-employed persons, engaged in platform work, especially when established trade unions are not ready to adapt to new digital realities, so new forms of organization of workers should be made available by the Member States.
Amendment 311 #
Proposal for a directive
Recital 22
Recital 22
(22) Where the existence of an employmentExperience shows, that when national law attempts an undiscriminatory reclassification of whole sectors of the digitally based labour market, this regulationship is established based on facts, the party acting as employer should be clearly identif leads to loss of jobs, rise in the undeclared work and/or extensive and dangerous use of subcontracting chains, often resulting in more precarious working conditions for the most vulnerable persons, engaged in platform work, such as minorities, migrants, young people with no qualification or students from low-income familieds and that party should fulfil all the obligations resulting from its role as employer/or migrant and minority background, lone parents etc. It is therefore essential, that the Member States, while transposing this Directive, do not reclassify whole sectors or types of services, neither digital platforms per se, but regulate strictly on precise criteria.
Amendment 323 #
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, as a result of collective bargaining, based on the Code of Conduct agreed among the relevant stakeholders, 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 339 #
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 supplement existing national presumptions and make the Union legal presumption operational in all Member States 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 includebe based on Art. 15 of the CFR and the right to engage in work. Therefore, the main criteria should be the freedom of the person, engaged in platform work, to provide services to unlimited number of clients and/or through unlimited number of platforms and other digital and offline means. They could also include additional 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, gives detailed 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, twoand avoid legal uncertainty, the majority of the additional 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 orapplicable local law or regulations, or collective bargaining agreements, or it is necessary to safeguard the health and safety of the recipients of the service, or it is required to provide satisfactory consumer service, or it is required to prevent fraud at the expense of consumers or platform workers, or it is required to reach goals related to zero emission mobility, should not be understood as controlling the performance of work 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.
Amendment 357 #
Proposal for a directive
Recital 26 a (new)
Recital 26 a (new)
(26a) Code of Conduct based on the agreement among relevant stakeholders as a form of self-regulation focused on improving working conditions of genuine self-employed persons performing platform work including their social protection should be encouraged by the Commission and Member States. Improving working conditions of genuine self-employed persons performing platform work by the platforms involved in the Code of Conduct shall not be considered as fulfilling the criteria as outlined by Article 4 paragraph 2.
Amendment 358 #
Proposal for a directive
Recital 26 a (new)
Recital 26 a (new)
(26a) Collective bargaining agreements between representatives of platform workers and digital labour platforms focusing on the working conditions of platform workers are encouraged and the competent authorities in Member States shall not consider any of the criteria in Article 4 paragraph 2 met where they are included in collective bargaining negotiations.
Amendment 393 #
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, price sensitive information or is protected by intellectual property rights. Digital labour platforms should also not be required to disclose information that, with reasonable certainty, would result in the enabling of deception of consumers or consumer harm through the manipulation of the system. However, the result of those considerations should not be a refusal to provide all the information required by this Directive.
Amendment 433 #
Proposal for a directive
Recital 44
Recital 44
(44) Representatives of persons performing platform work should be able to represent one or several persons performing platform work in any judicial or administrative procedure to enforce any of the rights or obligations arising from this Directive. Bringing claims on behalf of or supporting several persons performing platform work is a way to facilitate proceedings that would not have been brought otherwise because of procedural and financial barriers or a fear of reprisalsExcept to the extent that national law provides for it, individuals should not be subject to collective action on their behalf without having agreed explicitly to the action. This is in order to ensure that collective action by representatives of persons performing platform work would not result in persons performing platform work being reclassified against their will.
Amendment 439 #
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. It is therefore necessary to create digital communication 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. 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 communicationsfacilitate the establishment of such communication channels while respecting the protection of personal data.
Amendment 475 #
Proposal for a directive
Article 1 – paragraph 2 a (new)
Article 1 – paragraph 2 a (new)
2a. 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 499 #
Proposal for a directive
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
(2) ‘platform work’ means any work essentially organised through a digital labour platform and performed in the Union by an individual on the basis of a direct contractual relationship between the digital labour platform and the individual, irrespective of whether an case no contractual relationship exists between the individual and the recipient of the service;
Amendment 504 #
Proposal for a directive
Article 2 – paragraph 1 – point 3
Article 2 – paragraph 1 – point 3
(3) ‘person performingengaged in platform work’' means any individual performing platform work, irrespective of the contractual designation of the relationship between that individual and the digital labour platform by the parties involved;
Amendment 525 #
Proposal for a directive
Article 2 – paragraph 1 – point 6 a (new)
Article 2 – paragraph 1 – point 6 a (new)
Amendment 555 #
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, by the individual in question on a case by case basis 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 605 #
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, without prejudice to collective agreements between digital labour platforms and persons performing platform work:
Amendment 616 #
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 thethe total level of remuneration, beyond what is required by law;
Amendment 627 #
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 specificextensive 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 reasonably necessary to safeguard health and safety or to ensure the essential functioning of the service.
Amendment 640 #
Proposal for a directive
Article 4 – paragraph 2 – point c
Article 4 – paragraph 2 – point c
(c) supervising the performance of work or verifying the quality of the results of the work including by eleincluding by electronic means beyond what is required by law or reasonably necessary to safeguard health and safety or to ensure the essential functrionic means;ng of the service.
Amendment 649 #
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 or to use subcontractors or substitutes;
Amendment 657 #
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 726 #
Proposal for a directive
Article 4 a (new)
Article 4 a (new)
Article 4a 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 or based on the Code of Conduct – 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 740 #
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 presumptionbe held before the respective national authority under the relevant national procedure, especially in case a legal presumption and/or procedure for granting employment status on national level already exists. The suspensive effect on the application of the legal presumption lies entirely within the competence of the respective Member State.
Amendment 745 #
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 770 #
Proposal for a directive
Article 5 a (new)
Article 5 a (new)
Article 5a Improvement of working conditions for 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, 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 783 #
Proposal for a directive
Article 6 – paragraph 1 – point a
Article 6 – paragraph 1 – point a
(a) automated monitoring systems which are used to monitor, supervise or evaluate the work performance of platform workers through electronic means;
Amendment 785 #
Proposal for a directive
Article 6 – paragraph 1 – point b
Article 6 – paragraph 1 – point b
(b) automated decision-making systems which are used to take or support decisions that significantly affect those platform workers’ working conditions, in particular their access to work assignments, their earnings, their occupational safety and health, their working time, their promotion and their contractual status, including the restriction, suspension or termination of their account.
Amendment 795 #
Proposal for a directive
Article 6 – paragraph 2 – point b – point iii
Article 6 – paragraph 2 – point b – point iii
Amendment 812 #
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 theWithout prejudice to articles 6 and 9 of the GDPR digital labour platform. In particular theys shall not:
Amendment 842 #
Proposal for a directive
Article 6 a (new)
Article 6 a (new)
Article 6a Unless otherwise provided in this Directive or in the national law to which the platform operator is subject, in particular legislation concerning access to information, the platform operator shall not be obliged to disclose information which they have designated as confidential.
Amendment 882 #
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 receiptin line with deadlines outlined in GDPR. That period may be extended by two further months where necessary, taking into account the complexity and number of the requests.
Amendment 904 #
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, Member States shall ensure information and consultation of platform workers’ representatives or, where there are no such representatives, of the platform workers concerned by digital labour platforms, onMember States shall ensure that Directive 2002/14/EC is applied to 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 910 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
Amendment 913 #
Proposal for a directive
Article 9 – paragraph 3
Article 9 – paragraph 3
Amendment 930 #
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 require digital labour platforms which are employers to declare work performed by platform workers to the competent labour and social protection authorities of the Member State in which the work is performed and to share relevant data , including all health and social security contributions, with those authorities, in accordance with the rules and procedures laid down in the law of the Member States concerned. __________________ 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 934 #
Proposal for a directive
Article 11 – paragraph 1 c (new)
Article 11 – paragraph 1 c (new)
Member States shall ensure full portability of all health and social security contributions, made through platforms, irrespective of the employment classification, and non-discriminatory treatment of persons, engaged in platform work vis-a-vis any other self-employed person or worker.
Amendment 935 #
Proposal for a directive
Article 11 – paragraph 1 d (new)
Article 11 – paragraph 1 d (new)
Member States shall ensure that platform workers enjoy the right to data portability, including reputational data, (and the right not to transport those data), the right to rectification, erasure and to be forgotten in accordance with Regulation (EU) 2016/679;
Amendment 984 #
Proposal for a directive
Article 15 – paragraph 1
Article 15 – paragraph 1
Member States shall take the necessary measures to ensure that digital labour platforms createfacilitate the establishment of the possibility for persons performing platform work to contact and 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 means, while complying with the obligations under Regulation (EU) 2016/679. Member States shall require digital labour platforms to refrain from accessing or monitoring those contacts and communicationswhile complying with the obligations under Regulation (EU) 2016/679.