As long-time readers of this newsletter will know, we have been following the Directive from consultation stage through all the years of EU negotiations at the Parliament and the Council, to the transposition stage which we are in today. It’s been a law that has been long in the making, and while the transposition is going to make few headlines (especially in the context of the disastrous global events we are currently living through), the transposition of the Directive is probably the most important part of the whole, half-a-decade-long legislative process.
The reason for that is that the Directive only passed through the EU institutions because it was a compromise, and the major compromise was to agree to disagree on the thorny question of the legal presumption of employment in the platform economy, the centre-piece of PWD. While PWD requires all states to introduce a rebuttable presumption of employment based on facts indicating direction and control, the basis upon which that presumption is triggered - whether it is a broad, general presumption or a tight, conditional presumption - is left to member-states to decide.
Just as importantly, all 27 governments will also decide on the key procedural laws and supporting measures which are needed to activate and animate the law. These are crucial: we have seen a presumption of employment in the platform economy introduced in Belgium in 2023 that is yet to lead to any decisions on employment re-classification because of weak, slow procedural laws and supporting measures. The danger is that PWD ends up the same way as the Belgian law: it looks good on paper, but makes no difference to the lives of platform workers in practise because it is so difficult to activate.
Another crucial issue in transposition is the question of intermediaries. We know many platforms are using intermediary models across Europe to avoid the risks and responsibilities which comes from employing platform workers directly. PWD gives limited instruction on how intermediaries should be regulated under the law: how should authorities decide if they or the platform are the real employer? Should joint and several liability apply, and if so on what basis?
Other transposition questions we address in this guide include how to transpose the algorithmic management section of the Directive and what enforcement remedies are required to ensure compliance with the new law. We know from the more than 15 years of experience with digital labour platforms in Europe that without strong enforcement measures and penalties, platforms will run rough shod over any laws that do exist.
The guide also includes six case studies looking in more detail at specific experiences of regulations and legal cases on platform work in Europe. We also include a few annexes providing practical resources for unions, including a ‘check list’ for unions engaging in the transposition process and ‘red flags’ that unions should be aware of.
The red flag annex in particular was inspired by years of misleading and outright mendacious arguments by the platform lobby, which have often appeared in the mouths of politicians as if they are statements of fact. We know that the platform lobby is pursuing the same sort of manipulative manouveres in all the capitals of Europe right now to influence the transposition. We hope this guide can be a tool to push back.
Finally, the guide looks ahead to after transposition, when the new law is in place. It will be crucial at that point to be able to mobilise platform workers to test the law by pursuing employment re-classification claims. The guide provides some direction as to what approaches unions could take to tackle bogus self-employment effectively.
As ETUC Confederal Secretary Tea Jarc says in her Forward to the guide: “Read it. Use it. Win.”
Ben Wray, Gig Economy Project co-ordinator
