Urgent call to reconsider the Presidency Proposal on the Directive on Improving Working Conditions in platform economy
Letter sent to Pierre-Yves Dermagne, Deputy Prime Minister and Minister of the Economy and Employment
Dear Minister Pierre-Yves Dermagne,
We address you this letter at the beginning of the Belgium Presidency, which we hope will be a successful one.
The European Trade Union Confederation, representing the interests of workers across Europe was extremely disappointed when the compromised text agreed in trialogue negotiations last December did not receive support among the Member States.
We however consider it the best possible base to work on, to improve the conditions of platform workers in all sectors.
We fear that the text presented by the Presidency this week falls short of protecting workers, does not stop exploitative bogus-self-employment, and does not set a level playing field for companies in the platform economy.
The rebuttable legal presumption and reversal of the burden of proof were rightly placed at the heart of the Directive.
The burden to obtain their rights cannot be on the shoulders of the workers, who are the weakest part of the triangular relationship of the platform economy.
Their agreement to unfair working conditions can never be considered as a green light for a platform company to impose a working status because in practise, accepting the terms and conditions proposed by a digital labour platform doesn’t say anything about the actual work organisation.
Provisions allowing platforms not to match certain indicators because of collective bargaining are unacceptable because they pre-empt the possibility of activating the legal presumption.
Only the facts on how the platform work is organised are relevant. If a platform and a worker (or a yellow union) “agree” to call an apple a banana, the facts will continue to determine that it’s an apple. If you negotiate the tariffs, the sanctions, how supervision is done and if and how workers can subcontract, then you’re defining the subordination, and you cannot label it self-employment.
That is why we oppose those provisions resulting from changes in Article 5 together with weaker language on indicators, that big platform companies can easily circumvent, as it has been the case in Belgium so far. We understand from the positions of different Member States that there is a fear that the legal presumption would be in almost all cases met and lead to reclassifications.
We must stress that the trialogue deal does not operate with automatic reclassification but effectively improves the procedure to access workers’ rights for all platform workers while protecting the right of genuinely self-employed workers and the right of the platform the rebut the claim of the worker where they find it unjustified.
Reclassifications happen, only where platforms are unable to prove that they do not subordinate their workers under national definitions of workers. How can this fair procedure be opposed when arguing that workers’ interest matters the most? Matching two indicators to trigger the legal presumption doesn’t say anything about the result of the reclassification.
You might remember that ETUC always opposed the need to match any number of criteria to trigger the legal presumption as an additional burden for workers. We only welcomed the compromised approach in the provisional deal based on two indicators to be matched alongside the supportive measures for implementation that were linked to it. In particular, the request to competent authorities to assist workers who want to benefit from the legal presumption and the obligation to check if the other workers of a platform where a reclassification has occurred are in the same situation.
Without these provisions, which we understand disappeared from your proposal to the Member States, the requirement of matching two criteria is worse than the status quo and will prove ineffective in combating bogus self-employment.
While we agree that these provisions will mean an increased administrative burden in the short-term (during the implementation phase of the Directive), it will undoubtedly reduce it in the long-term as well as it will lead to less litigation. It’s easier and more effective to ask 27 Member States to assist the claimant and then to verify the employment status of other workers in about 1000 digital labour platforms in the EU than to ask 5 million workers to initiate litigation in courts.
All responsible platforms across Europe will suffer from unreversible unfair competition if we allow workers' rights a la carte, undermining the right to social security and fiscal obligations.
Without a strong Directive and with weak provisions only, we provoke the destruction of jobs in platforms and companies that cannot compete with the unfair competition of aggressive platforms.
We ask you to consider urgently not moving forward with the current proposal that we consider would make the situation of platform workers worse than the absence of a Directive.
No text lowering the current level of workers’ protection can obtain trade union support now or ever in the future. We remain at your disposal for any further meeting to discuss the matter in detail.
Kind regards,
Ludovic Voet Confederal Secretary of the European Trade Union Confederation