Amended Directive calls for stronger platform worker protections (European Parliament)

Our key takeaway: If your company is relying on platform-based workers, like delivery drivers, ride-share drivers and other gig workers, then this update is for you. The European Parliament has proposed and adopted an updated Directive to improve working conditions in platform work, which seeks to amend earlier text drafted by the European Commission. The EU Parliament will now enter into negotiations with the European Commission and Council before the Directive is passed as EU law. Core themes reflected across the amended Directive are to strengthen rights and protections for gig and contract workers, who face high risks of precarious work, low wages, health and safety impacts and lack of social safety nets. Key actions: ensure that platform workers are correctly classified; ensure that workers do not lose out on worker protections or benefits as a result of precarious employment; and conduct due diligence on algorithm-powered automated decision-making and monitoring systems that can have unintended human rights consequences for workers. 

The European Parliament has adopted the Report on the proposal for a directive of the European Parliament and of the Council on improving working conditions in platform work (21 December 2022):

• What does the proposed Directive call for?: The Directive is an update to the previous text proposed by the European Commission. Overall, the Directive drives at improving working conditions and other human rights issues for platform-based workers, like delivery drivers, ride-share drivers and other gig workers. Specifically, the Directive focuses on several core areas: ensuring that platform workers are correctly classified, as misclassification can increase their vulnerability; increasing the transparency of data processing and collection platforms and monitoring systems for platform workers and allowing them control over that data; and ensuring that “affected individuals have meaningful access to reporting and redress mechanisms.” Specifically, “[t]his Directive respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union (‘the Charter’). In particular, Article 31 of the Charter provides for the right of every worker to fair and just working conditions which respect his or her health, safety and dignity” (Amendment 2, Proposal for a Directive). The EP’s amendments delve further into a variety of labour rights and other human rights and seek to ensure additional protections for platform workers going beyond the Commission’s original draft, including in areas like fair and just working conditions, freedom of association and freedom of assembly, workers’ rights to information and consultation, the protection of and access to personal data, and non-discrimination among other fundamental human rights. The Directive calls on EU Member States to ensure that “[p]latform workers and, where applicable, persons performing platform work should be provided with a number of minimum rights, the correct determination of their contractual status as well as fair and just working conditions, promoting transparency, fairness, accountability and non-discrimination, and preventing health and safety risks in algorithmic management, improving transparency in platform work, including in cross-border situations, and ensuring the right to bargain collectively in accordance with national law and practice.” (Amendment 16, Recital 13)
  

• Strengthening protections for fundamental workers’ rights in the gig economy: Many amendments have been adapted to strengthen worker protections in platform-work-based informal employment situations, which often pose high risks to workers due to the short-term, shift-based and unpredictable nature of the work, as well as a lack of social benefits and challenges to unionisation and collective bargaining. Amendment 3, Recital 3 adds text stating “that employment relationships that lead to precarious working conditions are to be prevented, including by prohibiting the abuse of atypical contracts.” Amendment 3a, a new clause added to the Directive, aligns with the principles of the European Pillar of Social Rights (November 2017) by providing that “workers have the right to be informed in writing at the start of employment about their rights and obligations resulting from the employment relationship, that prior to any dismissal, workers have the right to be informed of the reasons and be granted a reasonable period of notice and the right to access to effective and impartial dispute resolution and, in the case of unjustified dismissal, a right to redress, including adequate compensation.” In addition, “workers have the right to a high level of protection of their health and safety at work and the right to have their personal data protected in the employment context” as well as “adequate social protection.” 
  

• Needed due diligence and transparency for algorithm-powered automated decision-making and monitoring systems: Another key area raised by the amended Directive is addressing the ever-growing trend towards automation and digitisation of platform work—and the subsequent need for transparency around the use of these platforms and control over data by the workers whose data they collect. Amendment 5, Recital 4 acknowledges that “[n]ew forms of digital interaction and new technologies in the world of work, including the trend towards remote working in many sectors, if well-regulated and implemented, could create opportunities for access to decent and quality jobs for people who traditionally lacked such access, including persons with disabilities.” However, it also underscores the risks for employment and working conditions, such as “the health and safety of workers and for the protection of their fundamental rights, including the right to privacy, as well as for the effective implementation of applicable national labour and tax law thereby also putting the solidarity based social protection system for current and future generations under pressure.” While algorithm-based technologies have driven the development of platform work and created new job opportunities, including for people who may have been left out of the traditional workforce, they “can produce power imbalances and opacity about decision-making, as well as technology-enabled surveillance which could exacerbate discriminatory practices and entail risks for privacy, workers´ health and safety and human dignity and may lead to adverse consequences for working conditions and the exploitation of workers.”