31 Amendments of Marian-Jean MARINESCU 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.