26 Amendments of Ádám KÓSA related to 2021/0414(COD)
Amendment 174 #
Proposal for a directive
Recital 2
Recital 2
(2) This Directive respects fundamental rights and observes the principles recognised in particular byArticle 31 of the Charter of Fundamental Rights of the European Union (‘the Charter’). In particular, Article 31 of the Charter provides for the right of every worker to working conditions which respect his or her health, safety and dignity. Article 27 of the Charter protects the workers’ right to information and consultation within the undertaking. Article 8 of the Charter provides that everyone has the right to the protection of personal data concerning him or her. Article 16 of the Charter recognises the freedom to conduct a business.
Amendment 181 #
Proposal for a directive
Recital 3
Recital 3
(3) Principle No 5 of the European Pillar of Social Rights, proclaimed at Gothenburg on 17 November 201753 , provides that, regardless of the type and duration of the employment relationship, workers have the right to fair and equal treatment regarding working conditions, access to social protection and training; that, in accordance with legislation and collective agreements, the necessary flexibility for employers to adapt swiftly to changes in the economic context is to be ensured; and that innovative forms of work that ensure quality working conditions are to be fostered, that entrepreneurship and self-employment are to be encouraged and that occupational mobility is to be facilitated. The Porto Social Summit of May 2021 welcomed the Action Plan accompanying the Social Pillar54 as guidance for its implementation. __________________ 53 Interinstitutional Proclamation on the European Pillar of Social Rights (OJ C 428, 13.12.2017, p. 10). 54 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘The European Pillar of Social Rights Action Plan’, COM(2021) 102 final, 4.3.2021.
Amendment 216 #
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 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 245 #
Proposal for a directive
Recital 9
Recital 9
(9) When platforms operate in several Member States or across borders, it is often unclear where the platform work is performed and by whom. Also, national authorities do not have easy access to data on digital labour platforms, including the number of persons performing platform work, their employment status, and their working conditions. This complicates the enforcement of applicable rules, including in respect of labour law and social protection.
Amendment 256 #
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. 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).
Amendment 268 #
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. 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, at promoting transparency, fairness and accountability in algorithmic management, and at improving transparency in platform work, including in cross-border situationsMeasures supporting the correct determination of the employment status of persons performing platform work in the Union should be introduced and transparency on platform work should be improved, including in cross- border situations. In addition, persons performing platform work should be provided a number of rights aiming at promoting transparency, fairness and accountability in algorithmic management. This should be done with a view to improving legal certainty, creating a and aiming at the 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 274 #
Proposal for a directive
Recital 16
Recital 16
(16) This Directive should apply to every persons performing platform work in the Union who have, or who based on an assessment of facts may be deemed to have, an employment contract or employment relationship as defined by the law, collective agreements or practice in force in the Member States, with consideration to the case-law of the Court of Justice of the European Union. This should. This includes situations where the employment status of the person performing platform work is not clear, so as to allow correct determination of that status. The provisions on algorithmic management which are related to the processing of personal data should also apply to genuine self-employed and other persons performing platform work in the Union who do not have an employment relationship.
Amendment 328 #
Proposal for a directive
Recital 24
Recital 24
(24) When digital labour platforms control certain elements of the performanceDirection and control, or legal subordination, is an essential element of the definition of an employment relationship in the Member States and in the case-law of the Court of Justice. When digital labour platforms restrict a person’s freedom to organise his or her work and control the execution of work, they act like employers in an employment relationship. Direction and control, or legal subordination, is an essential element of the definition of an employment relationship in the Member States and in the case-law of the Court of Justice. Therefore contractual relationships in which digital labour platforms exert a certain level of control over certain elements of the performance of workof this kind should be deemed, by virtue of a legal presumption, to be an employment relationship between the platform and the person performing platform work through it. As a result, thate person performing platform work should be classified as a worker having all the rights and obligations stemming from Union law in accordance with that status, as laid down in national and Un. In addition, it is important that relevant national law, collective agreements and practice. apply to platform workers. The legal presumption should apply in all relevant administrative and legal proceedings and should benefit the person performing platform work. Authorities in charge of verifying the compliance with or enforcing relevant legislation, such as labour inspectorates, social protection bodies or tax authorities, should also be able to rely on that presumpt may also rely on that presumption, unless it is evident that the presumption would be rebutted, taking into account all relevant elements, such as facts and circumstances of the platform work in question, previous assessments of competent national authorities and relevant court decisions. Member States should put in place a national framework to reduce litigation and increase legal certainty.
Amendment 340 #
Proposal for a directive
Recital 25
Recital 25
(25) Criteria indicating that a digital labour platform controls the performancerestricts a person’s freedom to organise his or her work and controls the execution 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 presump de facto determines the remuneration, requires the respect of rules with regard to appearance or conduct, gives instructions on how the work is to be performed or thoroughly verifies 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, restricts the discretion to choose working hours or periods of absence, to refuse tasks, to use subcontractors or substitutes or prevents the person performing platform work from developing business contacts with potential clients, including by using a number of conditions or through a system of sanction,s. 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 workone of the characteristics of genuine self-employment.
Amendment 459 #
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 work by ensuring correct determination of their employment status, by promoting transparency, fairness and accountability in algorithmic management in platform work and by improving transparency in platform work, including in cross-border situations, while supporting the conditions for the sustainable growth of digital labour platforms in the Unionlatform workers and the protection of natural persons performing platform work regarding the processing of their personal data.
Amendment 477 #
Proposal for a directive
Article 1 – paragraph 3
Article 1 – paragraph 3
3. This Directive applies to every person performing platform work in the Union and to every digital labour platforms organising platform work performed in the Union, irrespective of their platform’s place of establishment and irrespective of the law otherwise applicable.
Amendment 502 #
Proposal for a directive
Article 2 – paragraph 1 – point 3
Article 2 – paragraph 1 – point 3
(3) ‘person performing platform work’ means any individual performing platform work, irrespective of the contractual designation of the relationship between that individual and the digital labour platformnature of the contractual relationship or its designation by the parties involved;
Amendment 582 #
Proposal for a directive
Article 4 – paragraph 1 – introductory part
Article 4 – paragraph 1 – introductory part
1. The contractual relationship between a digital labour platform that controls, within the meaning of paragraph 2, the performance of work and a person performing platform work through that platform shall be legally presumed to be an employment relationship. To that effect, Member States shall establish a framework of measures, in accordance when the digital labour platform restricts that person’s freedom, including through sanctions, to organise his or her work and controls its execution, within their national legal and judicial systems meaning of paragraph 2.
Amendment 584 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 1
Article 4 – paragraph 1 – subparagraph 1
Amendment 604 #
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 of the following majority of the following, except where it is required by applicable local law or regulations, collective agreements, or it is necessary to safeguard the health and safety of the recipients of the service, prevent fraud or is required for the essential functioning of the service:
Amendment 618 #
Proposal for a directive
Article 4 – paragraph 2 – point a
Article 4 – paragraph 2 – point a
(a) effectively determining, or setting upper limits for the level of remuneration;
Amendment 629 #
Proposal for a directive
Article 4 – paragraph 2 – point b
Article 4 – paragraph 2 – point b
(b) requirstricting the person performing platform work to respect specific binding rules with regard to appearance, conduct towards the recipient of the service or performance of the wability of an individual to fix their own hours of "work" within certain parameters and to tailor their time to suit their personal convenience rather than solely the interest of the digital labour platforkm;
Amendment 632 #
Proposal for a directive
Article 4 – paragraph 2 – point c
Article 4 – paragraph 2 – point c
Amendment 646 #
Proposal for a directive
Article 4 – paragraph 2 – point d
Article 4 – paragraph 2 – point d
(d) effectively restricting the freedom, including through sanctions, to organise one’s work, in particularrestricting 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 659 #
Proposal for a directive
Article 4 – paragraph 2 – point e
Article 4 – paragraph 2 – point e
(e) effectively restricting the possibility to build a client base or to perform work for any third party.
Amendment 693 #
Proposal for a directive
Article 4 – paragraph 3 – point c
Article 4 – paragraph 3 – point c
(c) in line with national law or practice, develop guidance for enforcementcompetent national authorities to proactively target and pursue non-compliant digital labour platforms;
Amendment 702 #
Proposal for a directive
Article 4 – paragraph 3 – point d
Article 4 – paragraph 3 – point d
(d) in line with national law or practice strengthen the controls and field inspections conducted by labour inspectorates or the bodies responsible for the enforcement of labour law, while ensuring that such controls and inspections are proportionate and non-discriminatory.
Amendment 731 #
Proposal for a directive
Article 5 – title
Article 5 – title
Amendment 733 #
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.
Amendment 744 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
Where, in the context of the administrative or legal proceedings referred to in Article 4, 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 legal and administrative proceedings shall not have suspensive effect on the application of the legal presumption.
Amendment 756 #
Proposal for a directive
Article 5 – paragraph 3
Article 5 – paragraph 3
Where, in the context of the administrative or legal proceedings referred to in Article 4, 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..