SOC/709
Pacáiste um dhálaí oibre – obair ardáin
TUAIRIM
An Rannóg um Fhostaíocht, Gnóthaí Sóisialta agus Saoránacht
Teachtaireacht ón gCoimisiún chuig Parlaimint na hEorpa, chuig an gComhairle, chuig Coiste Eacnamaíoch agus Sóisialta na hEorpa agus chuig Coiste na Réigiún – Better working conditions for a stronger social Europe: harnessing the full benefits of digitalisation for the future of work [Dálaí oibre níos fearr ar son Eoraip shóisialta níos láidre: Leas iomlán a bhaint as an digitiú ar mhaithe le todhchaí na hoibre]
[COM(2021) 761 final]
Togra le haghaidh Treoir ó Pharlaimint na hEorpa agus ón gComhairle maidir le feabhas a chur ar dhálaí oibre san obair ardáin
[COM(2021) 762 final]
Rapóirtéir: Cinzia Del Rio
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Is oth linn nach bhfuil leagan Gaeilge den doiciméad seo ar fáil.
Tá súil againn leagan Gaeilge de gach doiciméad a chur ar fáil a luaithe is féidir i dtús 2022.
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Comhairliúchán
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An Coimisiún Eorpach, 09/12/2021
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Bunús dlí
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Airteagal 304 den Chonradh ar Fheidhmiú an Aontais Eorpaigh
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Rannóg atá freagrach
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Fostaíocht, Gnóthaí Sóisialta agus Saoránacht
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Dáta a glactha sa rannóg
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07/03/2022
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Dáta a glactha sa seisiún iomlánach
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DD/MM/YYYY
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Seisiún iomlánach Uimh.
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Toradh na vótála
(ar son/in aghaidh/staonadh)
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1.Conclusions and recommendations
1.1The pandemic has highlighted some changes in the world of work, which were already underway, and accelerated the expansion of all kinds of platform work, thus reinforcing the growth and impact of the digital economy.
1.2The EESC welcomes the European Commission's proposal for a Directive on improving working conditions in platform work (COM(2021) 762), in the framework of the implementation of the European Pillar of Social Rights. This regulatory intervention should aim to set clear definitions of the criteria for classifying employment relations and for governing the use of algorithms, and should provide access to social and labour protections and rights.
1.3The EESC has already highlighted in a number of previous opinions, which remain relevant for this opinion, the opportunities and challenges that accompany platform work, and the need to set clear and fair rules in order to ensure fair competition in the internal market, effective implementation of workers' rights and improved working conditions. The overall aim is to enforce and strengthen the internal market by securing a level playing field for all actors.
1.4The EESC underlined that the platform economy opens up opportunities for both businesses and workers. Companies can reach new markets, reduce costs, and capitalise on innovations in digital technologies and access to global and local workforces to improve efficiency and enhance productivity. Workers have new income-generating and job opportunities, which are increasingly important and even critical for vulnerable groups such as young people, migrants and women. These opportunities have to be addressed in a socially sustainable way.
1.5The concerns expressed related to the working conditions in the platform economy include more limited access to social protection and social security coverage, health and safety risks, insecure work, fragmented working hours and inadequate levels of income and difficulties in ensuring the recognition of collective rights. These concerns need to be addressed and balanced solutions need to be developed at appropriate levels – European, national and through collective bargaining involving platforms. The EESC deems it necessary to ensure equal treatment between "traditional" companies and those using digital means based on the functions of algorithmic management when used in order to manage work organisation and employment relations: direction, control and/or organisational power.
1.6Digital labour platforms differ in size. For platform SMEs, other challenges exist, which have to be taken into account, including challenges related to the costs associated with infrastructure and administrative burdens and with adapting to the digital transformation.
1.7The EESC recognises that flexibility in working hours can be a positive feature of platform work, welcomed in particular by those relying on platform work as an additional source of income. However, flexibility should always be based on the respect of fundamental social and labour standards guaranteed by EU law.
1.8The EESC agrees that the legal classification of the employment relationship and its clear distinction from genuine self-employment is key to ensuring legal certainty for both businesses and workers and to ensuring workers' rights and protections. However, this issue is dealt with differently in different Member States. Law provisions on specific areas, court rulings following labour disputes, and collective agreements in targeted segments of platform work are causing a fragmentation of existing regulation within the EU and disparities in the way platform workers are treated in the various Member States. It is necessary to clearly identify the legally responsible employer, both in terms of taxation and social contributions and in view of establishing collective bargaining processes.
1.9Europe cannot have different regulatory approaches to the same challenges. The EESC supports the aim of the European Commission's legislative proposal to address these very diverse regulations in the Member States.
1.10The EESC stresses that the new rules of the Directive must be based on the EU social acquis and must include clear definitions, which should not conflict with the legal acquis, collective agreements or the case law of the courts in the individual Member States. The Directive should be a clear legal framework to be adapted at national level according to national laws and practices, encouraging in particular collective bargaining processes.
1.11Moreover, this opinion addresses in particular the following aspects of the proposed Directive:
Classification criteria: the EESC emphasises that the classification criteria set out in Article 4 of the proposal do not reflect the dynamic and rapid evolution of the digital market and would need to be constantly updated, making them vague and ambiguous. It would be more appropriate to state that the presumption of employment operates in favour of individual workers who provide their labour and/or services under the specific functions of direction, control and/or organisational power carried out through algorithmic management exercised by the digital platform in question and therefore to set the criteria according to these functions. The EESC agrees that platforms have the possibility to rebut the presumption of employment.
1.12The EESC points out that the specific dimension of algorithmic management, which has substantial influence on workers, might not apply to defining the presumption of an employment relationship involving registered professionals or members of national professional associations, where these exist.
1.13Rules on algorithmic management: the EESC agrees that algorithmic management has a significant impact on working conditions and should be transparent and accountable for workers and businesses. Algorithmic management oversees, assigns tasks, provides direct instructions limiting the level of autonomy and evaluates workers, including their performance and behaviour, as well as their earnings and working conditions and can even lead to dismissal. The Directive should explicitly state that the rights established in Chapter 3 apply to all situations where algorithmic management is used in an employment context.
1.14The EESC believes that all platform workers should have the guaranteed right to data portability and to download their data from platforms, including data regarding skills. Additionally, further provisions should be added in order to exercise the right to review an automated or semi-automated decision. Decisions that could substantially impact on a labour relationship should be taken by human beings. The EESC appreciates the fact that the European Commission's proposal goes in this direction.
1.15The EESC stresses the importance of effective enforcement through stronger cooperation between data protection authorities and labour inspectorates and the need to clarify where responsibilities lie, including in cross-border situations.
1.16Collective rights: the EESC stresses that Article 14 of the Directive should explicitly refer to trade unions, which have the right to carry out collective bargaining. Furthermore, information and consultation rights and the right to collective bargaining should be extended to all platform workers.
1.17The Directive should ensure fair termination processes for platform workers and information and consultation procedures in case of collective dismissals.
1.18In line with the targets of the European Skills Agenda, the EESC underlines the importance of adequate training and information for platform workers, which could be available in various languages, on how to use and work in the platform in question, and on improving their digital skills.
2.Introduction – The context
2.1The COVID-19 pandemic has accelerated the use of platform work, and made more evident, some changes in the labour world that were already underway. The EESC has already stressed that the platform economy opens up opportunities for both businesses and workers. Digital labour platforms which mediate work have rapidly penetrated a number of economic sectors. Companies can reach new markets, reduce costs, and capitalise on innovations in digital technologies and access to global and local workforces to improve efficiency and enhance productivity. Workers have new income-generating and job opportunities, which are increasingly important and even critical for vulnerable groups such as young people, migrants and women.
2.2However, there are also challenges linked to workers' rights, taxation, wealth distribution and sustainability, which need to be tackled at European level. Platform work is becoming an important element of the new productive map of economic activities linked to digital development and the digital transition. The EESC has already highlighted the opportunities and risks in a number of previous opinions, which are relevant for this opinion, and called for regulatory intervention at European level with clear definitions of the criteria for classifying employment relations, governing the use of algorithms, and providing access to social and labour protections and rights.
2.3The weak economic position of a great number of workers operating on a wide diversity of digital labour platforms increases health and safety risks and job precariousness, a phenomenon that is hard to define within precise and specific national geographical boundaries. Moreover, in most EU legal systems, there is a weakening of general protection and social protection mechanisms for non-standard and atypical workers.
2.4The EESC recognises that flexibility in working hours can be a positive feature of platform work, welcomed in particular by those relying on platform work as an additional source of income, in particular young people. However, flexibility should always be based on respect for fundamental social and labour standards guaranteed by EU law and can be regulated by national law or collective agreements on the basis of the relevant EU legal framework. This is particularly necessary for young people who have fragmented working periods, low and inadequate levels of income and who need to collect their social contributions for their future pensions.
2.5The disparate nature of the employment relations that arise and develop on digital labour platforms within each Member State is not conducive to a uniform national solution in recognising the necessary social protection, the required occupational health and safety measures, adequate levels of income, appropriate working time and decent working conditions. These different forms of labour relations, and of low individual and collective protection at national level are multiplied at EU level, thus creating conditions for social dumping and unfair competition that threaten the very effectiveness of European and national labour protection standards.
2.6Digital labour platforms can be classified into two broad categories: online web-based platforms and location-based platforms. They differ in size. For platform SMEs, other challenges exist, which have to be taken into account, including challenges related to the costs associated with infrastructure and administrative burdens and with adapting to the digital transformation.
2.7The number of people working for employers using online platforms is steadily increasing, not only in the European Union but in the world. As the ILO and Eurofound have shown, the challenges for traditional businesses include unfair competition from platforms, some of which are not subject to conventional taxation and other regulations relating to their workforces. Moreover, a considerable amount of case law has proved that some platform business models build their competitive advantage by seeking to avoid applicable regulations, be it social, environmental or economic legislation. This strategy is not conducive to long-term economic sustainability and is detrimental to fair competition, in particular between large and micro or small platform companies.
2.8With the digital transition, strongly supported by the EU, in the future ever more sectors and professions will be impacted by the model of “online platforms”. The EESC has repeatedly stressed that good internal market regulation must be enforced and strengthened by ensuring a level playing field for all players and that digitalisation must benefit workers and companies. It is essential to develop a regulatory framework that ensures safe, fair and healthy working environments and conditions through a system of clearly defined rights, responsibilities and duties.
2.9All workers have the right to fair and decent working conditions. This is a fundamental principle of international labour law and EU law. The worker has the right, in accordance with Article 4 of Directive 2019/1152, to be informed by the employer on the essential elements of the labour contract or employment relationship. Workers employed by a platform must be subject to the same labour law provisions as those in force in the country where the service is provided.
2.10The key issue is therefore the clear definition of "employee" and its clear distinction from genuine "self-employed worker". The efficacy and effectiveness of the entire regulatory framework of the draft directive depends on the clarity of these definitions. The studies referred to, show that in many cases workers are asked to register as self-employed, and the challenge is to avoid bogus self-employment. Workers should get the necessary information to be able to choose whether they want to be genuinely self-employed or not. The European Commission study referred to in the Commission Staff Working Document Impact Assessment Report on improving working conditions in platform work shows that 5.5 million platform workers are estimated to be incorrectly classified as self-employed.
2.11The issue of the legal classification of the employment relationships is dealt with differently in the Member States. The risk of mistakes in the legal classification of the employment relationships is mainly due to the scarcity of legislation in the national legal systems and the lack of legal clarity. So far, no Member State has comprehensively addressed the issue of the legal classification of platform work. Some Member States (Italy, Spain and France) have opted for sectoral legislation focusing on transport and delivery platforms. A large number of Member States (Belgium, Germany, Greece, Spain, France, Ireland, Italy, the Netherlands and Sweden) have tried to clarify labour relations of uncertain classification through legislation, administrative acts or case law, but these refer to general labour market situations and do not take into account the specificities of platform work. In Italy and Spain, collective bargaining has played an important role with specific agreements and protocols that have anticipated specific legal provisions.
2.12The opinion that the existing regulatory system at national level, in the various EU countries, is currently not suitable for regulating the various profiles of work through digital platforms, is confirmed by almost 100 legal disputes brought by workers and/or their union representatives, and in the diversity of the solutions provided by the case law of many European countries, divided between those that reaffirm the self-employed nature of the employment relationship and the increasingly numerous ones that recognise its employment nature, without excluding those that place this specific case in an intermediate legal situation. Although these procedures have often led to contradictory results, they concern mostly delivery and driver services (on-location platform services) and most of them agree in defining people working on platforms as employees (particularly in the transport and delivery sectors, which are probably those in which there is the most contractual and union protection).
2.13Another key issue regards the impact of algorithmic management on working conditions, which is inherent in the business model of digital labour platforms
. Attention should be paid to ensuring transparency and accountability in relation to algorithms for workers and businesses.
2.14Individual Member States have taken measures to improve this situation by implementing legislative initiatives that specifically address algorithmic management in the workplace, (IT, ES). Meanwhile, a number of Member States (AT, BE, CY, CZ, DK, EE, FI, DE, IE, LV, LT, LU, NL, SV) address algorithmic management by undertaking measures within the framework of privacy, data protection and non-discrimination policies. Pertinent court decisions have been made in several countries (FR, IT, NL, PL and LU)
. The fragmentation of existing regulation within the EU also leaves digital labour platforms operating in different countries subject to different regulations. Given the flexible, mobile and rapidly evolving nature of the platform economy, this lack of a common approach will create difficulties in maintaining a level playing field among the Member States.
2.15In this context, the European institutions’ initiative is to be welcomed, with specific reference to the package of measures submitted by the European Commission on 9 December 2021 for improving the working conditions on platforms, in the framework of the implementation of the European Pillar of Social Rights. The European Commission's initiative recognises the urgency of addressing the disparities in treatment between Member States, addresses the problematic aspects outlined above and puts forward a regulatory proposal with a directive.
3.General considerations
3.1The EESC agrees with the Commission's decision to draw up a proposal for a directive, the scope of which extends to platform-based work developed both through on-line web-based platforms (e.g. legal services, translation services, freelancers, etc.) and through on-location-based platforms, which require the worker to provide a physical service (e.g. taxis, deliveries, home services). As clearly stated in recital 49 of the proposal for a directive, the need for a directive rather than non-binding legal instruments is justified by the extreme diversity of situations, working conditions and legislation in each Member State, particularly with regard to ensuring formal and actual coverage, and the adequacy and transparency of social protection systems, especially as Member States provide for different levels of social protection. The large and growing number of court cases and judgments in favour of classifying this work as employment is a clear demonstration of the fact that the matter is not regulated in a sufficiently clear manner even within the individual national legal systems. The objective of improving working conditions through digital platforms cannot therefore be sufficiently achieved by each Member State alone but, in accordance with the subsidiarity principle, can be better achieved at EU level.
3.2Quite rightly, the proposal for a directive notes in recital 9 that "When digital platforms operate in several Member States or across borders, it is often unclear where and by whom work is carried out via digital platforms. Moreover, national authorities have no easy access to data on digital work platforms, for instance on the number of people carrying out work via digital platforms, their employment situation and their working conditions. This makes the implementation of the relevant rules more complex, also with regard to labour law and social protection". The EESC has already pointed out
that it would be necessary to set up a register of platforms in every Member State and a Europe-wide database of large and small platforms.
3.3These legal uncertainties may in some situations favour the emergence and proliferation of undeclared forms of work and deplorable situations of exploitation and competition between the workers themselves, who might be under illegal subcontracting practices. These workers are often migrants, who are objectively weak and unaware of the minimum protection rights envisaged. The proposed Directive does not contain a provision on subcontracting, hence it does not offer those platform workers any protection against those practices.
3.4The text of the Commission proposal, however, is vague, generic and ambiguous on a number of points. It does not reflect the objectives of protecting and guaranteeing social and labour rights clearly stated in the recitals, in particular, the definition of a worker operating through digital platforms (Articles 2 and 5) and the rights of both workers and union representatives to information and consultation (Article 9, which, however, makes explicit reference only to Directive 2002/14). As a preliminary point, it should be noted that the proposal for a directive often equates the protection of workers' rights with the principle of the freedom to conduct a business. The rights of workers and fundamental freedoms must be properly safeguarded, in accordance with legislation and in line with the Charter of Fundamental Rights.
3.5The EESC deems it necessary for the directive to include specific provisions on working conditions and social security based on the principle of non-discrimination, also with regard to similar and comparable workers employed in the same sector. This would encourage the development of uniform contractual protection for sectors and combat forms of social and fiscal dumping.
3.6The EESC welcomes the proposed efforts of the Commission to support the sharing of good practices in the context of its mutual learning programme, as well as support to the activities of the European Labour Authority within the scope of its mandate; to support Member States with the application of, and guidance on, social security coordination rules, where necessary and through EU programmes (such as Horizon Europe).
3.7The EESC believes that the draft Directive should set out clear reference criteria and principles to guide national lawmakers and to encourage collective bargaining in order to lay down rules that provide certainty, security and predictability to a highly digitalised production environment. These rules must aim to create a level playing field between digital labour platforms and offline service providers. They should not conflict with the legal acquis, should not change the content and scope of the rules defining the employment nature of a service relationship in accordance with national laws, collective agreements, national classification systems or the case law of the courts of the individual Member States, and should not undermine fair competition between companies.
3.8The EESC also deems it necessary to ensure equal treatment between "traditional" companies and those using digital control means based on algorithmic data management, on the basis of transparent and fair competition between them, clarifying the employee status for workers providing services and/or performing activities in these sectors. The EESC also welcomes the aim of the Commission to clarify and support the genuine self-employed. "When necessary, the self-employed will also receive support to clarify their status". The Directive is expected to cement the autonomy of the self-employment and support their ability to take advantage of their entrepreneurial possibilities, e.g. by developing their client pool. Those who are already genuine self-employed will retain the benefits related to their employment status.
3.9It is therefore crucial that the scope of application (in Article 1) is improved and made less ambiguous, to ensure that the directive applies to all digital platforms that provide a mediated supply of labour. It is necessary to clearly identify the real and legally responsible employer also in terms of tax and social contributions and in view of establishing collective bargaining processes, taking into account the specificities of micro and small platforms.
The reference to the concept of organisation of the work performed by individuals may lead to the undesired exclusion of certain digital platforms.
4.Chapter 4 – Specific considerations
4.1In this opinion, the following aspects of the proposal for a directive will be analysed in particular:
-the criteria for classification as an employee
-algorithmic management
-collective rights
4.2Classification criteria
4.2.1Article 4 of the proposal sets out the criteria on the basis of which the presumption of the employment of the work relationship is established. The EESC notes that the proposed criteria should reflect the dynamic of the digital market, and the evolution of business models and working methods, and that they would need to be constantly updated. We regret to note that the criteria set out in Article 4 are still predominantly expressions of different forms of control exercised by the digital platform over the employee's work activity. The EESC believes that anchoring labour protection to the exercise of control does not adequately capture and correct the power imbalance between the platform and the workers.
4.2.2Besides, Article 4 of the proposal leaves too much discretionary power to platforms to decide - as the presumption of employment is linked to the presence of at least two of the five criteria - but in a context that is constantly evolving, it would be easy to circumvent these criteria. The EESC believes that a clearly defined employment status, even for those working few hours, would guarantee the right to social protection, health and safety, the right to organise and the right to collective bargaining in relation to the working hours performed, therefore guaranteeing the necessary flexibility.
4.2.3The criteria should more punctually address the risk of downward labour standards. For this purpose, it would be desirable to have a single criterion for the presumption of employment, which can be rebutted by the platform on the basis of Article 5, which places the reverse burden of proof on the digital platform, proving the self-employment nature of the work relationship. The EESC agrees with the European Commission's proposal that it should be the platforms to rebut the presumption of employment.
4.2.4Indeed, self-employed workers and genuine self-employment relations, for which there is no definition in the directive, must also be adequately protected. There are many different forms of platform work, which cannot fall within one single category. There are forms of work that can be considered similar to employment and there are forms of work which require skilled professionals, even highly skilled workers, which in some countries are comparable to those who are listed on professional registers or who are members of national professional associations. The specific dimension of algorithmic management, which has substantial influence on workers, might not apply to defining the presumption of an employment relationship involving registered professionals or members of national professional associations, where these exist.
4.2.5It would therefore be more appropriate to state that the presumption of employment in the field of digital labour platforms operates in favour of the individual workers who provide their labour and/or services under the direction, control and/or organisational power of a digital platform using algorithmic management.
Platforms should be able to rebut this presumption of employment by proving that they do not exercise commercial powers of organisation, even indirect or implicit, over the provision of the service/labour by the worker.
4.2.6A common argument in court rulings recognising the employment nature of the work relationship - and, indeed, issued by high national courts - is that the platform, and more specifically algorithmic management, fully exercises a form of oversight over the performance of the service executed by the worker. This, in fact, indicates that the service performed by work is fully integrated into the business of the platform. This element in itself reinforces the need to counterbalance the aforementioned control power by providing adequate individual and collective guarantees to all workers providing their labour and/or services through digital platforms.
5.Specific comments and recommendations on algorithmic management
5.1Algorithmic management processes a significant amount of data, oversees, assigns tasks, provides direct instructions limiting the level of autonomy, and evaluates workers, including their performance and behaviour, as well as their earnings and working conditions and can even lead to dismissal. The EESC welcomes the fact that the draft Directive adopts the GDPR- General Data Protection Regulation- principles, and in consistency with GDPR article 9, the Directive should clearly prohibit the processing of sensitive personal data, including political opinions and trade union membership. The Directive should explicitly state that the rights established in Chapter 3 apply in all cases of algorithmic management, also when the platform manages to prove that they do not exercise commercial powers of organisation, even indirect or implicit, over the provision of the service by the worker, and thus, the presumption by the platform that there is no employment relationship.
5.2The systems used by digital labour platforms often rely on elements of artificial intelligence (AI). As platforms will have to abide by both the provisions of the Directive and the AI Act (a product-market regulation), the EESC invites the Commission to cross-reference the proposed directive and the AI Act, and vice-versa, in order to avoid or clarify possible inconsistencies and loopholes.
5.3The EESC encourages once again the Commission to clarify the responsibilities of all parties involved in matters such as health and safety, data protection, insurance and legal liability, with a view to evaluating, adjusting and harmonising existing regulations. The EESC has already noted that algorithms used by platforms should also be considered in the same way as spoken or written instructions in conventional work.
5.4The right to review an automated or semi-automated decision is highly welcome. However, the EESC believes that to practically exercise this right, the Commission should add provisions that require digital labour platforms to: (a) develop their algorithms and systems under the "safe-by-design" principle and b) following the rationale of the proposed AI Act, envisage provisions that require digital labour platforms to undergo a conformity assessment of their algorithms, not only before they deploy them but also during the provision of labour /or service by the worker. The conformity assessment should be carried out with a multidisciplinary approach in order to promote a joint assessment by the experts nominated by the trade unions, the platform and the labour, social protection and other relevant authorities. When a conflict arises in the review of an algorithm-assisted decision, workers should have the possibility to have access to an independent arbitration.
5.5However, the EESC believes that Article 8 should provide that the worker could be represented by the trade union in case of human review of significant decision.
5.6As the platform work model relies on customer review, platform workers should have the ability to transfer and use reviews, as a key element of data, across platforms. The EESC believes that right to data portability should be guaranteed to all platform workers. Even more importantly, the Directive should guarantee their ability to use their profile, including skills, to obtain employment outside the platform economy.
5.7The success of the Commission's proposal will depend on its effective enforcement. Cooperation between data protection and labour authorities is required by the proposed Directive. However, the EESC would like to draw the attention of the Commission to the fact that Data Protection Authorities in several countries do not have the task to carry out in-depth examinations of labour issues, and vice-versa, in particular as far as oversight and redress are concerned. Therefore, the EESC invites the Commission to further clarify the allocation of competences, including cross-border considerations, and to take into account labour inspectorates.
6.Collective rights
6.1In the chapter on enforcement, Article 14 of the Directive refers to workers' representatives and not to trade unions. This is a critical issue since it is important to explicitly refer to trade union representatives so as to avoid creating unions of convenience and providing workers with rights to collective representation, also in the event of a dispute.
6.2The EESC notes that the Directive provides information and consultation rights. However, Article 9 only refers to Directive 2002/14/EC establishing a general framework. A direct reference to Directive 2001/23/EC on transfers of undertaking, Directive 98/59/EC on collective redundancies and to Directive 2009/38/EC on the European Works Council should also be made. The EESC notes that Article 10, that extends the labour rights established in Chapter 3 of the Directive to all platform workers (also to those not having an employment relationship) excludes the information and consultation rights set out in Article 9. This derogation cannot be justified. A clearer definition of information and consultation rights is required in order to support collective bargaining, which is a right that must be recognised for all platform workers too.
6.3The EESC underlines that the rights of information and consultation of workers' union representatives (Article 9) should be guaranteed, also with regard to the parameters, rules and instructions that underpin algorithms or artificial intelligence systems that influence decision-making or the adoption of decisions that may affect working conditions, access to work and the preservation of employment, including profiling.
6.4The EESC notes that platform workers should receive adequate and specific training available in various European languages on how to use and work in the platform and should be trained in the relevant digital skills. As highlighted in a previous opinion, the implementation of the 2021‑2027 Digital Education Action Plan needs to ensure effective social dialogue and consultation with stakeholders, respect for and enforcement of labour rights and workers' right to information, consultation and participation, and workers' ability to develop their digital and entrepreneurship skills, in particular through vocational education and training (VET), adult learning and employee training, in order to reduce the skills gaps companies face.
6.5As stated in a previous opinion, in connection with the introduction of new technologies such as robots and smart machines, the EESC highlights in its study the importance of informing and consulting workers' representatives in advance and the need for collective bargaining to accompany the changes generated by these technologies. It also points out that the Directive on European works councils makes such consultation mandatory.
6.6Bargaining also concerns sectoral collective bargaining, which constitutes a large part of the definition of workers' rights, but there is no reference to sectoral agreements in the proposal for a directive.
6.7Ensuring fair termination processes for platform workers and access to independent dispute resolution mechanisms are important objectives that should be included in a regulatory framework. The proposed Directive only refers to individual dismissals, while it should also address the issue of information and consultation procedures in the case of collective dismissals, referring to existing EU legislation.
Brussels, 7 March 2022
Aurel Laurenţiu Plosceanu
The president of the Section for Employment, Social Affairs and Citizenship
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N.B.:
Appendix overleaf
APPENDIX to the OPINION
of the
European Economic and Social Committee
The following amendments, which received at least a quarter of the votes cast, were rejected during the discussions (Rule 43(2) of the Rules of Procedure):
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AMENDMENT 2
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 2.2
Amend as follows:
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Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
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Draft opinion
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Amendment
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However, there are also challenges linked to workers' rights, taxation, wealth distribution and sustainability, which need to be tackled at European level[1]. Platform work is becoming an important element of the new productive map of economic activities linked to digital development and the digital transition. The EESC has already highlighted the opportunities and risks in a number of previous opinions [2], which are relevant for this opinion, and called for regulatory intervention at European level with clear definitions of the criteria for classifying employment relations, governing the use of algorithms, and providing access to social and labour protections and rights.
[1] OJ C 286, 16.7.2021, p. 70 point 2.7.
[2] OJ C 429, 11.12.2020, p. 173; OJ C 220, 9.6.2021, p. 1; SOC 703 (not yet published in OJ); OJ C 517, 22.12.2021, p. 61; OJ C 286, 16.7.2021, p. 70.
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However, there are also challenges linked to rights and obligations of actors as well as other parameters for fair and sustainable development of digital platform work, which need to be tackled at appropriate levels Platform work is becoming an important element of the new productive map of economic activities linked to digital development and the digital transition. The EESC has already highlighted the opportunities and risks in a number of previous opinions [1], which are relevant for this opinion, and called for balanced solutions at appropriate levels with clear definitions of the criteria for classifying employment relations, governing the use of algorithms, and providing access to social and labour protections and rights.
[1] OJ C 429, 11.12.2020, p. 173–186; OJ C 220, 9.6.2021, p. 1–12; SOC 703 (not yet published in OJ); OJ C 517, 22.12.2021, p. 61–66; OJ C 286, 16.7.2021, p. 70–75.
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Outcome of the vote:
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In favour:
28
Against:
50
Abstention: 6
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AMENDMENT 3
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 2.3
Amend as follows:
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Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
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Draft opinion
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Amendment
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The weak economic position of a great number of workers operating on a wide diversity of digital labour platforms increases health and safety risks [1] and job precariousness [2], a phenomenon that is hard to define within precise and specific national geographical boundaries. Moreover, in most EU legal systems, there is a weakening of general protection and social protection mechanisms for non-standard and atypical workers.
[1] JRC COLLEEM II Survey.
[2] Commission Study (2021).
|
While there are suggestions that the weak economic position of a great number of workers operating on a wide diversity of digital labour platforms increases health and safety risks [1] and job precariousness [2], the wide range of forms of platform work with a great variety contractual relations makes it difficult to draw any generalised assessment of the working conditions of the platform workers, a phenomenon that is hard to define within precise and specific national geographical boundaries.
[1] JRC COLLEEM II Survey.
[2] Commission Study (2021).
|
|
Outcome of the vote:
|
|
In favour:
25
Against:
55
Abstention: 5
|
|
AMENDMENT 5
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 2.5
Delete point:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
The disparate nature of the employment relations that arise and develop on digital labour platforms within each Member State is not conducive to a uniform national solution in recognising the necessary social protection, the required occupational health and safety measures, adequate levels of income, appropriate working time and decent working conditions. These different forms of labour relations, and of low individual and collective protection at national level are multiplied at EU level, thus creating conditions for social dumping and unfair competition that threaten the very effectiveness of European and national labour protection standards.
|
|
|
Outcome of the vote:
|
|
In favour:
32
Against:
57
Abstention: 4
|
|
AMENDMENT 6
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 2.7
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
The number of people working for employers using online platforms is steadily increasing, not only in the European Union but in the world [1]. As the ILO and Eurofound have shown, the challenges for traditional businesses include unfair competition from platforms, some of which are not subject to conventional taxation and other regulations relating to their workforces. Moreover, a considerable amount of case law has proved that some platform business models build their competitive advantage by seeking to avoid applicable regulations, be it social, environmental or economic legislation[2]. This strategy is not conducive to long-term economic sustainability and is detrimental to fair competition, in particular between large and micro or small platform companies.
[1] ILO report The role of digital labour platforms in transforming the world of work; EUROFOUND Report 2018; EC staff document - data on the numbers and turnover that tripled with the pandemic (according to the ILO data, in the EU a 12 billion euros turnover was recorded in 2020); CEPS Final Report 2021; Digital Labour Platforms in the EU; ETUI Study 2021; The definition of worker in the platform economy: exploring workers’ risks and regulatory solutions.
[2] OJ C 123, 9.4.2021, p. 1 point 3.2.7.
|
The number of people working for employers using online platforms is increasing steadily but slowly[1], not only in the European Union but in the world [2]. Only a small proportion – around 1, 4 % - of the working age population – performs platform work as a main form of employment. As the ILO and Eurofound have shown, the challenges for traditional businesses include also unfair competition from platforms, some of which are not subject to conventional taxation and other regulations relating to their workforces. There is also case law showing that some platform business models build their competitive advantage by avoiding applicable regulations. This strategy is not conducive to long-term economic sustainability and is detrimental to fair competition, in particular between large and micro or small platform companies.
[1] However, as regards the pace of development the data collected by COLLEEM I and II surveys concludes that the phenomenon of platform work is increasing slowly but steadily in Europe.
[2] ILO report The role of digital labour platforms in transforming the world of work; EUROFOUND Report 2018; EC staff document - data on the numbers and turnover that tripled with the pandemic (according to the ILO data, in the EU a 12 billion euros turnover was recorded in 2020); CEPS Final Report 2021; Digital Labour Platforms in the EU; ETUI Study 2021; The definition of worker in the platform economy: exploring workers’ risks and regulatory solutions.
|
|
Outcome of the vote:
|
|
In favour:
30
Against:
57
Abstention: 5
|
|
AMENDMENT 7
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 2.10
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
The key issue is therefore the clear definition of "employee" and its clear distinction from genuine "self-employed worker". The efficacy and effectiveness of the entire regulatory framework of the draft directive depends on the clarity of these definitions. The studies referred[1] to, show that in many cases workers are asked to register as self-employed, and the challenge is to avoid bogus self-employment. Workers should get the necessary information to be able to choose whether they want to be genuinely self-employed or not. The European Commission study referred to in the Commission Staff Working Document Impact Assessment Report on improving working conditions in platform work shows that 5.5 million platform workers are estimated to be incorrectly classified as self-employed.
[1] See footnote 6.
|
The key issue is therefore the clear definition of "employee" and its clear distinction from genuine "self-employed worker". The efficacy and effectiveness of the entire regulatory framework depends on the clarity of these definitions. Workers should get the necessary information to be able to choose whether they want to be genuinely self-employed or not. The European Commission study referred to in the Commission Staff Working Document Impact Assessment Report on improving working conditions in platform work shows that 5.5 million platform workers out of 28.8 million are estimated to be incorrectly classified as self-employed.
|
|
Outcome of the vote:
|
|
In favour:
28
Against:
60
Abstention: 6
|
|
AMENDMENT 9
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 2.15
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
In this context, the European institutions’ initiative is to be welcomed, with specific reference to the package of measures submitted by the European Commission on 9 December 2021 for improving the working conditions on platforms, in the framework of the implementation of the European Pillar of Social Rights. The European Commission's initiative recognises the urgency of addressing the disparities in treatment between Member States, addresses the problematic aspects outlined above and puts forward a regulatory proposal with a directive.
|
In this context, the European institutions’ initiative is to be noted, with specific reference to the package of measures submitted by the European Commission on 9 December 2021 for improving the working conditions on platforms, in the framework of the implementation of the European Pillar of Social Rights. The European Commission's initiative recognises the urgency of addressing the disparities in treatment between Member States, addresses the problematic aspects outlined above and puts forward a regulatory proposal with a directive.
|
|
Outcome of the vote:
|
|
In favour:
34
Against:
62
Abstention: 5
|
|
AMENDMENT 10
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 3.1
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
The EESC agrees with the Commission's decision to draw up a proposal for a directive, the scope of which extends to platform-based work developed both through on-line web-based platforms (e.g. legal services, translation services, freelancers, etc.) and through on-location-based platforms, which require the worker to provide a physical service (e.g. taxis, deliveries, home services). As clearly stated in recital 49 of the proposal for a directive, the need for a directive rather than non-binding legal instruments is justified by the extreme diversity of situations, working conditions and legislation in each Member State, particularly with regard to ensuring formal and actual coverage, and the adequacy and transparency of social protection systems, especially as Member States provide for different levels of social protection. The large and growing number of court cases and judgments in favour of classifying this work as employment is a clear demonstration of the fact that the matter is not regulated in a sufficiently clear manner even within the individual national legal systems. The objective of improving working conditions through digital platforms cannot therefore be sufficiently achieved by each Member State alone but, in accordance with the subsidiarity principle, can be better achieved at EU level.
|
The EESC takes note of the Commission's decision to draw up a proposal for a directive, the scope of which extends to platform-based work developed both through on-line web-based platforms (e.g. legal services, translation services, freelancers, etc.) and through on-location-based platforms, which require the worker to provide a physical service (e.g. taxis, deliveries, home services). According to the Commission, recital 49 of the proposal for a directive, the need for a directive rather than non-binding legal instruments is justified by the extreme diversity of situations, working conditions and legislation in each Member State, particularly with regard to ensuring formal and actual coverage, and the adequacy and transparency of social protection systems, especially as Member States provide for different levels of social protection. The large and growing number of court cases and judgments in favour of classifying this work as employment is an indication of the need to regulate the matter in a sufficiently clear manner in the individual national legal systems.
|
|
Outcome of the vote:
|
|
In favour:
28
Against:
66
Abstention: 3
|
|
AMENDMENT 11
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 3.2
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
Quite rightly, the proposal for a directive notes in recital 9 that "When digital platforms operate in several Member States or across borders, it is often unclear where and by whom work is carried out via digital platforms. Moreover, national authorities have no easy access to data on digital work platforms, for instance on the number of people carrying out work via digital platforms, their employment situation and their working conditions. This makes the implementation of the relevant rules more complex, also with regard to labour law and social protection". The EESC has already pointed out[1] that it would be necessary to set up a register of platforms in every Member State and a Europe-wide database of large and small platforms.
[1] OJ C 429, 11.12.2020, p. 173 point 1.15.
|
Quite rightly, the proposal for a directive notes in recital 9 that "When digital platforms operate in several Member States or across borders, it is often unclear where and by whom work is carried out via digital platforms. Moreover, national authorities have no easy access to data on digital work platforms, for instance on the number of people carrying out work via digital platforms, their employment situation and their working conditions. This makes the implementation of the relevant rules more complex, also with regard to labour law and social protection". The EESC has already pointed out[1] that it would be necessary to set up a register of platforms in every Member State and a Europe-wide database of large and small platforms. Moreover, the EESC calls for putting the focus on proper implementation and enforcement of existing rules together with clarifying the existing national rules and definitions concerning the status of worker while respecting the rules that allow the autonomy of entrepreneurs and other forms of self-employed. In this respect actions at European level could also be promoted, such as exchange of information, education and training and cooperation between authorities. Also social partners have an important role to play as well as the platforms themselves.
[1] OJ C 429, 11.12.2020, p. 173–186 point 1.15.
|
|
Outcome of the vote:
|
|
In favour:
29
Against:
71
Abstention: 3
|
|
AMENDMENT 13
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 3.4
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
The text of the Commission proposal, however, is vague, generic and ambiguous on a number of points. It does not reflect the objectives of protecting and guaranteeing social and labour rights clearly stated in the recitals, in particular, the definition of a worker operating through digital platforms (Articles 2 and 5) and the rights of both workers and union representatives to information and consultation (Article 9, which, however, makes explicit reference only to Directive 2002/14). As a preliminary point, it should be noted that the proposal for a directive often equates the protection of workers' rights with the principle of the freedom to conduct a business. The rights of workers and fundamental freedoms must be properly safeguarded, in accordance with legislation and in line with the Charter of Fundamental Rights.
|
The text of the Commission proposal, however, is vague, generic and ambiguous on a number of points. As regards the proposed directive there is a clear risk that the scope and definitions of the directive would cover a much wider range of digital platform activities than intended. The main target of the directive seems to be the low skilled activities but with the proposed definitions and criteria all categories of platform work, even when performed by genuinely self-employed persons would be covered. As a preliminary point, it should be noted that the proposal for a directive often equates the protection of workers' rights with the principle of the freedom to conduct a business. The rights of workers and fundamental freedoms must be properly safeguarded, in accordance with legislation and in line with the Charter of Fundamental Rights.
|
|
Outcome of the vote:
|
|
In favour:
28
Against:
61
Abstention: 6
|
|
AMENDMENT 14
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 3.5
Delete point:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
The EESC deems it necessary for the directive to include specific provisions on working conditions and social security based on the principle of non-discrimination, also with regard to similar and comparable workers employed in the same sector. This would encourage the development of uniform contractual protection for sectors and combat forms of social and fiscal dumping.
|
|
|
Outcome of the vote:
|
|
In favour:
27
Against:
63
Abstention: 5
|
|
AMENDMENT 17
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 3.8
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
It is therefore crucial that the scope of application (in Article 1) is improved and made less ambiguous, to ensure that the directive applies to all digital platforms that provide a mediated supply of labour. It is necessary to clearly identify the real and legally responsible employer also in terms of tax and social contributions and in view of establishing collective bargaining processes, taking into account the specificities of micro and small platforms. The reference to the concept of organisation of the work performed by individuals may lead to the undesired exclusion of certain digital platforms.
|
It is therefore crucial that the scope of application (in Article 1) is improved and made less ambiguous, to ensure that the directive applies univocally to digital platforms that provide a mediated supply of labour. The EESC agrees that when it comes to the definition of an employment relationship it is necessary to clearly identify, in accordance with national rules and practices, the real and legally responsible employer also in terms of tax and social contributions and in view of establishing collective bargaining processes, taking into account the specificities of micro and small platforms.
|
|
Outcome of the vote:
|
|
In favour:
31
Against:
59
Abstention: 5
|
|
AMENDMENT 18
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
New Point 4.2.1
Insert new point after 4.2:
Position: After existing point - Lower level
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
|
The EESC agrees with the aim to ensure that the Member States have necessary mechanisms to ensure “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 workers”. It is important to expressly establish the determination of employment status on the national definitions.
|
|
Outcome of the vote:
|
|
In favour:
29
Against:
57
Abstention: 4
|
|
AMENDMENT 19
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 4.2.1
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
Article 4 of the proposal sets out the criteria on the basis of which the presumption of the employment of the work relationship is established. The EESC notes that the proposed criteria should reflect the dynamic of the digital market, and the evolution of business models and working methods, and that they would need to be constantly updated. We regret to note that the criteria set out in Article 4 are still predominantly expressions of different forms of control exercised by the digital platform over the employee's work activity. The EESC believes that anchoring labour protection to the exercise of control does not adequately capture and correct the power imbalance between the platform and the workers.
|
Article 4 of the proposal sets out the criteria on the basis of which the presumption of the employment of the work relationship is established. The EESC notes that the proposed criteria should reflect the dynamic of the digital market, and the evolution of business models and working methods, and that they would need to be constantly updated.
|
|
Outcome of the vote:
|
|
In favour:
23
Against:
60
Abstention: 5
|
|
AMENDMENT 20
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 4.2.2
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
Besides, Article 4 of the proposal leaves too much discretionary power to platforms to decide - as the presumption of employment is linked to the presence of at least two of the five criteria - but in a context that is constantly evolving, it would be easy to circumvent these criteria. The EESC believes that a clearly defined employment status, even for those working few hours, would guarantee the right to social protection, health and safety, the right to organise and the right to collective bargaining in relation to the working hours performed, therefore guaranteeing the necessary flexibility.
|
However, the EESC has serious doubts as regards the proposed framework for legal presumption to the effect that the performance of work and a person performing platform work through that platform shall be legally presumed to be an employment relationship if two of the five criteria listed in the directive would be fulfilled. In practice, taking into consideration the vague criteria, this means that even genuine self-employed could be forced to become employees by law. The EESC considers that the criteria especially in points (a) [upper limit for remuneration and fees] and (c) [verifying the quality of the results], (d) [timing of the work] and (e) [possibility to build a client base] are regularly used in B2B contracts and would lead to a situation where genuine self-employed would be subject to the employment presumption.
|
|
Outcome of the vote:
|
|
In favour:
28
Against:
56
Abstention: 5
|
|
AMENDMENT 21
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 4.2.3
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
The criteria should more punctually address the risk of downward labour standards. For this purpose, it would be desirable to have a single criterion for the presumption of employment, which can be rebutted by the platform on the basis of Article 5, which places the reverse burden of proof on the digital platform, proving the self- employment nature of the work relationship. The EESC agrees with the European Commission's proposal that it should be the platforms to rebut the presumption of employment.
|
This approach is very likely to lead to situation where platform workers will by default be classified as employees and take away individual´s choice to be self-employed. Hampering entrepreneurial activity should not be in the interest of anybody. With regard to the fact that majority of platform workers consider themselves and want to be considered as self-employed, this approach would even be in contradiction with the fundamental rights and freedoms such as the right to choose an occupation and the right to engage in work and the freedom to conduct a business. Instead of the two- out- of -five criteria the EESC prefers an overall assessment of the criteria for defining the existence of an employee status as generally applicable approach in Member States and in the jurisprudence of the ECJ.
|
|
Outcome of the vote:
|
|
In favour:
28
Against:
55
Abstention: 5
|
|
AMENDMENT 22
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 4.2.4
Delete point:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
Indeed, self-employed workers and genuine self-employment relations, for which there is no definition in the directive, must also be adequately protected. There are many different forms of platform work, which cannot fall within one single category. There are forms of work that can be considered similar to employment and there are forms of work which require skilled professionals, even highly skilled workers, which in some countries are comparable to those who are listed on professional registers or who are members of national professional associations. The specific dimension of algorithmic management, which has substantial influence on workers, might not apply to defining the presumption of an employment relationship involving registered professionals or members of national professional associations, where these exist.
|
|
|
Outcome of the vote:
|
|
In favour:
29
Against:
56
Abstention: 7
|
|
AMENDMENT 23
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 4.2.5
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
It would therefore be more appropriate to state that the presumption of employment in the field of digital labour platforms operates in favour of the individual workers who provide their labour and/or services under the direction, control and/or organisational power of a digital platform using algorithmic management. Platforms should be able to rebut this presumption of employment by proving that they do not exercise commercial powers of organisation, even indirect or implicit, over the provision of the service/labour by the worker[1].
[1] See definition in recital 30 of the Guidelines of the Commission on competition law and collective bargaining: (iii) it involves, as a necessary and essential component, the organisation of work performed by individuals, irrespective of whether that work is performed online or in a certain location. Platforms which do not organise the work of individuals but simply provide a means through which the solo self-employed persons can reach end-users, do not constitute digital labour platforms. For example, a platform that merely aggregates and displays the available service providers (e.g. plumbers) in a specific area, thereby allowing customers to use their services on demand, is not considered a digital labour platform, as it does not organise the work of the service providers.
|
Collective solutions to provide extra benefits for self-employed should clearly not impact their status.[1]
[1] Recitals 23 of the Directive proposal
|
|
Outcome of the vote:
|
|
In favour:
30
Against:
56
Abstention: 4
|
|
AMENDMENT 24
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
New Point 4.2.6
Insert new point after 4.2.5:
Position: After existing point - Same level
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
|
The EESC considers the possibility to rebut the legal presumption as an instrument which is likely to create more problems than to clarify complex legal situations. Setting up this mechanism is confusing with regard to the fact that similar mechanism is already included in the directive on transparent and predictable working conditions as one of the options for Member States.
|
|
Outcome of the vote:
|
|
In favour:
26
Against:
59
Abstention: 5
|
|
AMENDMENT 25
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 4.2.6
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
A common argument in court rulings recognising the employment nature of the work relationship - and, indeed, issued by high national courts - is that the platform, and more specifically algorithmic management, fully exercises a form of oversight over the performance of the service executed by the worker. This, in fact, indicates that the service performed by work is fully integrated into the business of the platform. This element in itself reinforces the need to counterbalance the aforementioned control power by providing adequate individual and collective guarantees to all workers providing their labour and /or services through digital platforms.
|
The possibility of rebutting the legal presumption falls short of fair balance between the parties of the rebuttal process since with the burden of proof on the side of the platform the legal presumption as defined by the five criteria would be difficult to challenge in practice. With regard to the diversity of national definitions the five criteria and their relevance are likely to be interpreted in different ways in Member States thus leading to even more complex patchwork of jurisprudence across Europe. As this process could be pursued both in courts dealing with labour law issues and administrative courts dealing with tax and social security issues the result could be less legal clarity, not more.
|
|
Outcome of the vote:
|
|
In favour:
28
Against:
53
Abstention: 4
|
|
AMENDMENT 26
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 5.1
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
Algorithmic management processes a significant amount of data, oversees, assigns tasks, provides direct instructions limiting the level of autonomy, and evaluates workers, including their performance and behaviour, as well as their earnings and working conditions and can even lead to dismissal. The EESC welcomes the fact that the draft Directive adopts the GDPR- General Data Protection Regulation- principles, and in consistency with GDPR article 9, the Directive should clearly prohibit the processing of sensitive personal data, including political opinions and trade union membership. The Directive should explicitly state that the rights established in Chapter 3 apply in all cases of algorithmic management, also when the platform manages to prove that they do not exercise commercial powers of organisation, even indirect or implicit, over the provision of the service by the worker, and thus, the presumption by the platform that there is no employment relationship.
|
Algorithmic management processes a significant amount of data, which can oversee, assign tasks, provide direct instructions limiting the level of autonomy, and evaluate workers, including their performance and behaviour, as well as their earnings and working conditions and can even lead to dismissal. The EESC welcomes the fact that the draft Directive adopts the GDPR- General Data Protection Regulation- principles, and in consistency with GDPR article 9, the Directive should clearly prohibit the processing of sensitive personal data, including political opinions and trade union membership.
|
|
Outcome of the vote:
|
|
In favour:
29
Against:
54
Abstention: 5
|
|
AMENDMENT 27
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 5.2
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
The systems used by digital labour platforms often rely on elements of artificial intelligence (AI). As platforms will have to abide by both the provisions of the Directive and the AI Act (a product-market regulation), the EESC invites the Commission to cross-reference the proposed directive and the AI Act, and vice-versa, in order to avoid or clarify possible inconsistencies and loopholes.
|
The systems used by digital labour platforms often rely on elements of artificial intelligence (AI). Platforms will have to abide by both the provisions of the Directive and the AI Act (a product-market regulation). The EESC considers that a separate set of rules on issues related to platform work is not appropriate or necessary. The existing rules in the GDPR and the forthcoming AI Act will provide also workers with a variety of rights with respect to their personal data together with a comprehensive set of risk management, human oversight and transparency requirements to mitigate the risks for health and safety and fundamental rights. Therefore unnecessary overlaps and duplications should be avoided.
|
|
Outcome of the vote:
|
|
In favour:
29
Against:
54
Abstention: 5
|
|
AMENDMENT 28
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 5.3
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
The EESC encourages once again[1] the Commission to clarify the responsibilities of all parties involved in matters such as health and safety, data protection, insurance and legal liability, with a view to evaluating, adjusting and harmonising existing regulations. The EESC has already noted that algorithms used by platforms should also be considered in the same way as spoken or written instructions in conventional work[2].
[1] OJ C 429, 11.12.2020, p. 173.
[2] OJ C 429, 11.12.2020, p. 173 point 1.8.
|
Furthermore, it should be ensured that the disclosure requirements concerning the algorithms do not apply to any kind of business secrets or confidential information of any sort. As regards the form and contents of the information to be given by the platforms it should be ensured that the platforms have the necessary room for manoeuvre in terms of defining the technical means to provide the information. The same applies to the methods of evaluating the risks and human reviewing of significant decisions.
|
|
Outcome of the vote:
|
|
In favour:
29
Against:
54
Abstention: 5
|
|
AMENDMENT 29
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 5.4
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
The right to review an automated or semi-automated decision is highly welcome. However, the EESC believes that to practically exercise this right, the Commission should add provisions that require digital labour platforms to: (a) develop their algorithms and systems under the "safe- by -design" principle and b) following the rationale of the proposed AI Act, envisage provisions that require digital labour platforms to undergo a conformity assessment of their algorithms, not only before they deploy them but also during the provision of labour /or service by the worker. The conformity assessment should be carried out with a multidisciplinary approach in order to promote a joint assessment by the experts nominated by the trade unions, the platform and the labour, social protection and other relevant authorities. When a conflict arises in the review of an algorithm-assisted decision, workers should have the possibility to have access to an independent arbitration.
|
The right to request a review an automated or semi-automated decision is highly welcome. The EESC strongly refers to the statement in the Explanatory Memorandum allowing mitigations tailored to SMEs on administrative procedures required by the algorithmic management and on improving enforcement, traceability and transparency. Notably, these include longer deadlines to provide requests of review of algorithmic decisions and the reduction in the frequency of updating relevant information.
|
|
Outcome of the vote:
|
|
In favour:
29
Against:
54
Abstention: 5
|
|
AMENDMENT 30
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 5.5
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
However, the EESC believes that Article 8 should provide that the worker could be represented by the trade union in case of human review of significant decision.However, the EESC believes that Article 8 should provide that the worker could be represented by the trade union in case of human review of significant decision.
|
However, the EESC notes that that Article 8 does not seem to indicate whether the worker could be represented by an employee representative or trade union in case of human review of significant decision.
|
|
Outcome of the vote:
|
|
In favour:
29
Against:
54
Abstention: 5
|
|
AMENDMENT 31
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 5.6
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
As the platform work model relies on customer review, platform workers should have the ability to transfer and use reviews, as a key element of data, across platforms. The EESC believes that right to data portability should be guaranteed to all platform workers. Even more importantly, the Directive should guarantee their ability to use their profile, including skills, to obtain employment outside the platform economy.
|
As the platform work model relies on customer review, platform workers should have the ability to transfer and use reviews, as a key element of data, across platforms. The EESC believes that right to data portability should be guaranteed to all platform workers, in case the GDPR conditions (article 20) are met. Even more importantly, their ability to use their profile, including skills, to obtain employment outside the platform economy should be guaranteed.
|
|
Outcome of the vote:
|
|
In favour:
29
Against:
54
Abstention: 5
|
|
AMENDMENT 32
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 5.7
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
The success of the Commission's proposal will depend on its effective enforcement. Cooperation between data protection and labour authorities is required by the proposed Directive. However, the EESC would like to draw the attention of the Commission to the fact that Data Protection Authorities in several countries do not have the task to carry out in-depth examinations of labour issues, and vice-versa, in particular as far as oversight and redress are concerned. Therefore, the EESC invites the Commission to further clarify the allocation of competences, including cross-border considerations, and to take into account labour inspectorates.
|
The success of the Commission's proposal will depend on its effective enforcement. Cooperation between data protection and labour authorities is required by the proposed Directive. However, the EESC would like to draw the attention of the Commission to the fact that Data Protection Authorities in several countries do not have the task to carry out in-depth examinations of labour issues, and vice-versa, in particular as far as oversight and redress are concerned. Therefore, the EESC invites the Commission to support Members States, through exchange of information, in their efforts to enhance the capacity of the relevant authorities including cross-border considerations.
|
|
Outcome of the vote:
|
|
In favour:
29
Against:
54
Abstention: 5
|
|
AMENDMENT 33
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 6.1
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
In the chapter on enforcement, Article 14 of the Directive refers to workers' representatives and not to trade unions. This is a critical issue since it is important to explicitly refer to trade union representatives so as to avoid creating unions of convenience and providing workers with rights to collective representation, also in the event of a dispute.
|
The proposal seeks to ensure information and consultation of platform workers or their representatives on decisions likely to lead to the introduction of substantial changes in the use of automated monitoring and decision-making systems referred to in the article 6 (1) of the Directive. For this purpose the Directive refers to the Directive 2002/14/EC on information and consultation of workers. As this reference allows the application of existing information and consultation mechanisms as defined at national level and also promotion of social dialogue without establishing any new or duplicate mechanisms this solution can be supported. However, the responsibility of the digital labour platform to bear the expenses for the expert (Art. 9(3)) is not compatible with general rules of information and consultation based on Directive 2002/14/EC.
|
|
Outcome of the vote:
|
|
In favour:
27
Against:
56
Abstention: 3
|
|
AMENDMENT 34
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 6.2
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
The EESC notes that the Directive provides information and consultation rights. However, Article 9 only refers to Directive 2002/14/EC establishing a general framework. A direct reference to Directive 2001/23/EC on transfers of undertaking, Directive 98/59/EC on collective redundancies and to Directive 2009/38/EC on the European Works Council should also be made. The EESC notes that Article 10, that extends the labour rights established in Chapter 3 of the Directive to all platform workers (also to those not having an employment relationship) excludes the information and consultation rights set out in Article 9. This derogation cannot be justified. A clearer definition of information and consultation rights is required in order to support collective bargaining, which is a right that must be recognised for all platform workers too[1].
[1] OJ C 123, 9.4.2021, p. 1, point 3.2.8.
|
The EESC notes that the Directive provides information and consultation rights through a reference to Directive 2002/14/EC establishing a general framework. Whilst the Article 10 of the proposed Directive ensures the application of provisions of transparency, human monitoring and review ( Articles 6, 7, and 8) also to persons who do not have employment relationship, it should also be stressed that the provisions on information and consultation of workers and health and safety at work are only applicable to the workers, not on persons performing platform work who do not have an employment relationship.
|
|
Outcome of the vote:
|
|
In favour:
27
Against:
56
Abstention: 3
|
|
AMENDMENT 35
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 6.3
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
The EESC underlines that the rights of information and consultation of workers' union representatives (Article 9) should be guaranteed, also with regard to the parameters, rules and instructions that underpin algorithms or artificial intelligence systems that influence decision-making or the adoption of decisions that may affect working conditions, access to work and the preservation of employment, including profiling.
|
The EESC underlines that the rights of information and consultation of workers' representatives (Article 9) should be guaranteed For the promotion of fair working conditions in digital platform work the EESC emphasizes the role social dialogue and collective agreements at appropriate levels and within the scope, mandate and autonomy of social partners in Member States. Therefore the EESC questions the limitation of the scope of collective agreements only to agreements which are more favourable to platform workers. This limitation interferes in the autonomy of social partners.
|
|
Outcome of the vote:
|
|
In favour:
27
Against:
56
Abstention: 3
|
|
AMENDMENT 36
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 6.4
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
The EESC notes that platform workers should receive adequate and specific training available in various European languages on how to use and work in the platform and should be trained in the relevant digital skills. As highlighted in a previous opinion,[1] the implementation of the 2021-2027 Digital Education Action Plan needs to ensure effective social dialogue and consultation with stakeholders, respect for and enforcement of labour rights and workers' right to information, consultation and participation, and workers' ability to develop their digital and entrepreneurship skills, in particular through vocational education and training (VET), adult learning and employee training, in order to reduce the skills gaps companies face.
[1] OJ C 286, 16.7.2021, p. 27.
|
The EESC notes the importance of platform workers receiving adequate and specific training that could be available in various European languages on how to use and work in the platform and should be trained in the relevant digital skills. As highlighted in a previous opinion,[1] the implementation of the 2021-2027 Digital Education Action Plan needs to ensure effective social dialogue and consultation with stakeholders, respect for and enforcement of labour rights and workers' right to information, consultation and participation, and workers' ability to develop their digital and entrepreneurship skills, in particular through vocational education and training (VET), adult learning and employee training, in order to reduce the skills gaps companies face.
[1] OJ C 286, 16.7.2021, p. 27–32.
|
|
Outcome of the vote:
|
|
In favour:
27
Against:
56
Abstention: 3
|
|
AMENDMENT 37
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 6.6
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
Bargaining also concerns sectoral collective bargaining, which constitutes a large part of the definition of workers' rights, but there is no reference to sectoral agreements in the proposal for a directive.
|
Depending on the industrial relations system and practices, bargaining can also concern sectoral collective bargaining, which can constitute a large part of the definition of workers' rights. The fact that there is no reference to sectoral agreements in the proposal for a directive does not mean that sectoral bargaining could not take place. As regards the access to relevant information on platform work (Art. 12) the EESC stresses that the self-employed platform users are not employees and should not be included in the information given to employees’ representatives, as these representatives do not by definition represent self-employed unless they would have a specific authorization.
|
|
Outcome of the vote:
|
|
In favour:
27
Against:
56
Abstention: 3
|
|
AMENDMENT 38
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 6.7
Delete point:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
Ensuring fair termination processes for platform workers and access to independent dispute resolution mechanisms are important objectives that should be included in a regulatory framework. The proposed Directive only refers to individual dismissals, while it should also address the issue of information and consultation procedures in the case of collective dismissals, referring to existing EU legislation[1].
[1] Directive 98/59/EC; Directive 2001/23/EC.
|
|
|
Outcome of the vote:
|
|
In favour:
27
Against:
56
Abstention: 3
|
|
AMENDMENT 39
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
New Chapter 7 and Point 7.1
Insert new Chapter after point 6.7:
Position: After existing point - Same level
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
|
7.Remedies
7.1 The EESC stresses the need to clarify the distinction between “workers” and “persons performing platform work” especially as regards remedies and enforcement of the Directive. Article 18 contains similar rules for protection from dismissals for both categories which may lead to confusion and lack of legal certainty as judicial remedies for labour law and contract law in Members States are based on different sets of legislations and are thus not similar. In the same vein, Article 17 (Protection against adverse treatment or consequences) may lead in unwanted consequences and problems in the judicial systems of Member States if different contractual relationships are forced to be treated according same rules.
|
|
Outcome of the vote:
|
|
In favour:
25
Against:
55
Abstention: 4
|
|
AMENDMENT 40
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 1.2
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
The EESC welcomes the European Commission's proposal for a Directive on improving working conditions in platform work (COM(2021) 762), in the framework of the implementation of the European Pillar of Social Rights. This regulatory intervention should aim to set clear definitions of the criteria for classifying employment relations and for governing the use of algorithms, and should provide access to social and labour protections and rights.
|
The EESC takes note of the European Commission's proposal for a Directive on improving working conditions in platform work (COM(2021) 762), in the framework of the implementation of the European Pillar of Social Rights. Any European Union level intervention should aim to help Member States in setting clear definitions of the criteria for classifying employment relations and for governing the use of algorithms, and should provide, where applicable, access to social and labour protections and rights.
|
|
Outcome of the vote:
|
|
In favour:
24
Against:
57
Abstention: 6
|
|
AMENDMENT 44
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 1.8
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
The EESC agrees that the legal classification of the employment relationship and its clear distinction from genuine self-employment is key to ensuring legal certainty for both businesses and workers and to ensuring workers' rights and protections. However, this issue is dealt with differently in different Member States. Law provisions on specific areas, court rulings following labour disputes, and collective agreements in targeted segments of platform work are causing a fragmentation of existing regulation within the EU and disparities in the way platform workers are treated in the various Member States. It is necessary to clearly identify the legally responsible employer, both in terms of taxation and social contributions and in view of establishing collective bargaining processes.
|
The EESC agrees that the legal classification of the employment relationship and its clear distinction from genuine self-employment is key to ensuring legal certainty for both businesses and workers and to ensuring workers' rights and protections. However, this issue is dealt with differently in different Member States, basically reflecting the diversity of national labour market systems. Sometimes diverging law provisions on specific areas, inconsistent court rulings following labour disputes, and collective agreements in targeted segments of platform work are increasing the risk of fragmentation of applicable rules within the EU and disparities in the way platform workers are treated in the various Member States.
|
|
Outcome of the vote:
|
|
In favour:
27
Against:
53
Abstention: 4
|
|
AMENDMENT 45
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 1.9
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
Europe cannot have different regulatory approaches to the same challenges. The EESC supports the aim of the European Commission's legislative proposal to address these very diverse regulations in the Member States.
|
The EESC agrees that, when it comes to the definition of an employment relationship, it is necessary to clearly identify, in accordance with national rules and practices, the legally responsible employer, both in terms of taxation and social contributions and in view of establishing collective bargaining processes.
|
|
Outcome of the vote:
|
|
In favour:
31
Against:
59
Abstention: 5
|
|
AMENDMENT 46
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 1.10
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
The EESC stresses that the new rules of the Directive must be based on the EU social acquis and must include clear definitions, which should not conflict with the legal acquis, collective agreements or the case law of the courts in the individual Member States. The Directive should be a clear legal framework to be adapted at national level according to national laws and practices, encouraging in particular collective bargaining processes.
|
The EESC stresses that the new rules of any European level intervention must be based on the EU social acquis and must include clear definitions, which should not conflict with the legal acquis, collective agreements or the case law of the courts in the individual Member States. A possible Directive should create a clear legal framework to be adapted at national level according to national laws and practices, encouraging in particular collective bargaining processes.
|
|
Outcome of the vote:
|
|
In favour:
27
Against:
53
Abstention: 7
|
|
AMENDMENT 47
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 1.11
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
Moreover, this opinion addresses in particular the following aspects of the proposed Directive:
Classification criteria: the EESC emphasises that the classification criteria set out in Article 4 of the proposal do not reflect the dynamic and rapid evolution of the digital market and would need to be constantly updated, making them vague and ambiguous. It would be more appropriate to state that the presumption of employment operates in favour of individual workers who provide their labour and/or services under the specific functions of direction, control and /or organisational power carried out through algorithmic management exercised by the digital platform in question and therefore to set the criteria according to these functions. The EESC agrees that platforms have the possibility to rebut the presumption of employment.
|
Moreover, this opinion addresses in particular the following aspects of the proposed Directive:
Classification criteria: the EESC emphasises that the classification criteria set out in Article 4 of the proposal do not reflect the dynamic and rapid evolution of the digital market and would need to be constantly updated, making them vague and ambiguous. Furthermore, the EESC has serious doubts as regards the proposed framework for legal presumption to the effect that the performance of work and a person performing platform work through that platform shall be legally presumed to be an employment relationship if two of the five criteria listed in the directive would be fulfilled. Setting up the mechanism of rebutting the legal presumption is confusing and likely to decrease legal clarity with regard to the fact that similar mechanism is already included in the directive on transparent and predictable working conditions as one of the options for Member States.
|
|
Outcome of the vote:
|
|
In favour:
28
Against:
56
Abstention: 5
|
|
AMENDMENT 48
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 1.12
Delete point:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
The EESC points out that the specific dimension of algorithmic management, which has substantial influence on workers, might not apply to defining the presumption of an employment relationship involving registered professionals or members of national professional associations, where these exist.
|
|
|
Outcome of the vote:
|
|
In favour:
29
Against:
56
Abstention: 7
|
|
AMENDMENT 49
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 1.13
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
Rules on algorithmic management: the EESC agrees that algorithmic management has a significant impact on working conditions and should be transparent and accountable for workers and businesses. Algorithmic management oversees, assigns tasks, provides direct instructions limiting the level of autonomy and evaluates workers, including their performance and behaviour, as well as their earnings and working conditions and can even lead to dismissal. The Directive should explicitly state that the rights established in Chapter 3 apply to all situations where algorithmic management is used in an employment context.
|
Rules on algorithmic management: the EESC agrees that algorithmic management has a significant impact on working conditions and should be transparent and accountable for workers and businesses. The EESC welcomes the fact that the draft Directive adopts the GDPR- General Data Protection Regulation- principles, and in consistency with GDPR article 9, the Directive should clearly prohibit the processing of sensitive personal data, including political opinions and trade union membership.
|
|
Outcome of the vote:
|
|
In favour:
29
Against:
54
Abstention: 5
|
|
AMENDMENT 50
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 1.14
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
The EESC believes that all platform workers should have the guaranteed right to data portability and to download their data from platforms, including data regarding skills. Additionally, further provisions should be added in order to exercise the right to review an automated or semi-automated decision. Decisions that could substantially impact on a labour relationship should be taken by human beings. The EESC appreciates the fact that the European Commission's proposal goes in this direction.
|
However, the EESC considers that a separate set of rules on issues related to platform work is not appropriate or necessary. The existing rules in the GDPR and the forthcoming AI Act will provide also workers with a variety of rights with respect to their personal data together with a comprehensive set of risk management, human oversight and transparency requirements to mitigate the risks for health and safety and fundamental rights. Therefore unnecessary overlaps and duplications should be avoided.
|
|
Outcome of the vote:
|
|
In favour:
29
Against:
54
Abstention: 5
|
|
AMENDMENT 51
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 1.16
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
Collective rights: the EESC stresses that Article 14 of the Directive should explicitly refer to trade unions, which have the right to carry out collective bargaining. Furthermore, information and consultation rights and the right to collective bargaining should be extended to all platform workers.
|
Collective rights: The proposal seeks to ensure information and consultation of platform workers or their representatives on decisions likely to lead to the introduction of substantial changes in the use of automated monitoring and decision-making systems. As the Directive allows the application of existing information and consultation mechanisms as defined at national level and also promotion of social dialogue without establishing any new or duplicate mechanisms this solution can be supported.
|
|
Outcome of the vote:
|
|
In favour:
27
Against:
56
Abstention: 3
|
|
AMENDMENT 52
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
Point 1.17
Amend as follows:
|
Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
|
|
Draft opinion
|
Amendment
|
|
The Directive should ensure fair termination processes for platform workers and information and consultation procedures in case of collective dismissals.
|
The Directive proposal recognises that platform workers who are employees are covered by the existing EU rules concerning information and consultation in case of collective dismissals.
|
|
Outcome of the vote:
|
|
In favour:
27
Against:
56
Abstention: 3
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AMENDMENT 54
SOC/709
Pacáiste um dhálaí oibre – obair ardáin
New Point 1.19
Insert new point after 1.18:
Position: After existing point - Same level
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Tabled by:
DE FELIPE LEHTONEN Helena
KONTKANEN Mira-Maria
MINCHEVA Mariya
SOETE Paul
VADÁSZ Borbála
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Draft opinion
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Amendment
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The EESC stresses the need to clarify the distinction between “workers” and “persons performing platform work” especially as regards remedies and enforcement of the Directive.
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Outcome of the vote:
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In favour:
25
Against:
55
Abstention: 4
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