A worker-friendly transposition of the Platform Work Directive was never going to be easy. Uber responded to PWD at the time by claiming that it was a vote for "the status quo", and they are determined to make sure that is the outcome.
To understand the mendaciousness of the manouvering that is going on in the capitals of Europe, it's worth taking a close look at the employer's proposal for PWD transposition in Poland as a case study. As a reminder, PWD mandates national governments to establish a legal presumption of employment in the platform economy where facts indicate direction and control, with the details left to member-states to decide.
The employer proposal is supposedly based on the Yodel ruling at the Court of Justice of the European Union (ECJU). It proposes that for a platform worker to be presumed to be an employee in Poland, it will be necessary that all of the following criteria are met:
- Lack of freedom to use subcontractors or substitutes
- Lack of freedom to accept or reject offered tasks
- Lack of freedom to provide services to more than one entity
- Lack of freedom to determine the timing of service provision
If this were to be implemented, it would not so much be a presumption of employment as a presumption of self-employment, since the bar would be so high to trigger the presumption that it's difficult to imagine that there would be a platform worker in the whole of Poland that would meet it. As Polish trade-unionists have pointed out, a substitution clause is standard in the civil law contracts that most platform workers are hired under in Poland, so they would all fall at the first hurdle, based on a clause that is barely ever utilised by workers in reality.
What's more, this proposal is a complete bastardisation of the Yodel case, which was a 'reasoned order' by one CJEU judge, not a full CJEU judgement, and was about one relatively obscure parcel delivery company in the UK, and so can hardly be considered definitive of what the CJEU thinks about the question of employment status in the platform economy.
The judge found that there were four criteria for independence which are needed in combination for a worker to be considered self-employed: discretion to use sub-contractors or substitutes, discretion over which tasks and how many tasks workers have to accept, discretion to provide services to any third party, and discretion to fix their own working hours. So whereas the Polish proposal is that any one of these four show that the worker is not an employee, Yodel found that all four need to be met to prove worker autonomy.
But that's not all. The CJEU judge also stated that the above criteria could only apply if: a) the independence of the worker did not appear to be fictitious, and b) if it is not possible to establish a relationship of subordination between the worker and the platform on any other basis. This additional criteria in Yodel is completely missing from the Polish proposal, and is decisive, since it is exactly on other bases to the ones proposed above that most courts in Europe have found that platform workers are employees.
If you don't believe me, here is the evidence. Labour law academic Christina Hießl has studied every employment status case relating to digital labour platforms across Europe up until February 2024, finding that 508 cases have found that they are an employee, with 143 finding that they are self-employed, 38 finding that they are a third category of worker, and 11 that they are a temporary agency worker. In many cases where employment status has been found, Yodel has been cited as part of a justification in favour of the decision.
If we take the question of the use of substitution clauses specifically, Hießl finds that out of courts in 14 countries that have considered the role of substitutes on delivery platforms, just one (the UK Supreme Court) has seen this as “an insurmountable barrier for their classification as employees.” In other words, out of hundreds of legal cases, just a handful of judges have considered substitution clauses to be worthy of attention, and just one has considered it to be decisive evidence of self-employment, yet the Polish employers' proposal would mean that the legal presumption would fall on this one issue alone.
And let's remember that the whole idea of a legal presumption is that it is supposed to be a presumption, not legal certainty. That means that the evidence needed to trigger the presumption should be substantially easier to meet than what is required in a court of law, or what the European Commission guidelines to PWD has called "prima facie evidence". The Platform Work Directive is very clear about this, that the presumption is supposed to “make it easy” for platform workers to make an employment re-classification claim and “should not be burdensome”, given the “power imbalance” between platforms and platform workers. If the Polish employer proposal were implemented, there would be a very strong case that it would not be compliant with the Directive and therefore would be illegal.
The platform lobby has huge financial resources and the winds of Trumpian tech deregulation are sweeping through Europe. In that context, those who are interested in platform workers' rights will have to be on guard for sabotage proposals like this one from Poland, which are dressed up in the language of the Court of Justice to give craven politicians and government officials a legal pretence to do the bidding of the platforms. If you hear yodelling in the corridors of power, treat it as a fog horn that the platform lobby's influence is bearing fruit.
Ben Wray, Gig Economy Project co-ordinator |
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Gig Economy news round-up |
GLOVO RIDERS STRIKE IN LĘBORK, POLAND: Glovo food delivery couriers took a week long strike action in the Polish city of Lębork from 19-25th January over poor working conditions, including low wages and having to work in extreme weather conditions. The riders have complained that pay rates do not increase in proportion with the distance travelled, especially when they are delivering a package of two or three orders, at which point "payment for a single order drops to 4-5 PLN", about €1.20. The riders said that Glovo, which is owned by German multi-national Delivery Hero, did not take account for torrential rain, strong winds or low temperatures aside from sometimes paying a nominal weather bonus. They often have to wait 20-30 minutes in extreme weather for an order, time that goes unpaid. Finally, the riders complained that none of their costs for fuel, energy or parts are covered by the platform. "We're calling on you to raise awareness of the issue and initiate discussions about fair rates, real weather bonuses, and rules that will allow those performing this work to earn a decent living," the riders told 'Lebork24.info'. Read more here. DUTCH COURT FINDS UBER DRIVER EMPLOYMENT STATUS MUST BE DETERMINED INDIVIDUALLY: The Dutch Court of Appeal has ruled that the employment status of Uber drivers cannot be determined on a collective basis. Instead, thousands of drivers must have their case assessed individually, court case by court case. The ruling is a setback for the FNV union, which won a case at a lower court in 2021 that Uber drivers are employees. Uber appealed the ruling, which the Court of Appeal sent to the Supreme Court in 2023 to ask preliminary questions about the importance of entrepreneurship and how to determine the employment status of group of workers. The Supreme Court responded last year that entrepreneurship was a potential factor and that is possible that the employment relationship of one worker can be different from another even if they are working for the same platform under the same terms & conditions. On this basis, the Appeals Court ruled last week that six drivers were self-employed. "Although the court does not rule out that there may be individual drivers who work for Uber on the basis of an employment contract, in the absence of data relating to individual circumstances the court has been unable to identify any individual drivers or groups of drivers for whom this applies," the Court found. Marius Schönfeld, Uber’s Director for Northern Europe, welcomed the ruling as a "great victory", adding: "The Court of Appeal is crystal clear: you cannot tar all drivers with the same brush, as FNV tried to do." Amrit Sewgobind from the FNV union stated: "This isn't a no to drivers, but a legal obstacle. The judge isn't saying all drivers are self-employed. That distinction is crucial." Read more here. EUROPEAN WORKS' COUNCIL ESTABLISHED AT JUST EAT: For the first time, food delivery couriers at Just Eat have established a Works' Council at European level. The European Works' Council (EWC) was agreed after negotiations between the company and worker representatives across 11 different countries. The Gig Economy Project understands that the vast majority of representatives on the EWC are members of unions. The EWC will meet at least four times a year and a key topic is set to be the company's shift away from directly employing its riders in many countries, including Germany and Austria. EWC's can be established at company's which have 1000+ staff across EEA countries, with 150+ required in at least two states. Their primary purpose is to address transnational concerns at a company, including the strategic direction of the company and commonly shared issues with working conditions, such as health & safety. Read more here. RIDERS IN COPENHAGEN DEMAND 'PLATFORM WORK DIRECTIVE NOW': Food delivery couriers in the Danish capital protested outside a meeting of the Employment Minister, to demand 'Platform Work Directive now'. Riders in the 3F union held banners and chanted outside the meeting in snowy conditions. A social media post by the minister, Kaare Dybvad Bek, referred to the protest, suggesting the demonstrators come inside for a beer. The protest comes as preparations for the transposition of the EU Platform Work Directive have been stepped up following the publication of the European Commission's guidelines in January. The Danish Government is yet to publish its plans for the transposition. Riders at Just Eat in Denmark are demanding government action over the company's layoffs. The company has been re-structuring in Denmark since last Spring, with riders' jobs being cut and sub-contracting being progressively rolled-out. One of the protesting Just Eat rider's, Rasmus Hjorth, stated on Instagram that he was "disappointed" at the deterioration in working conditions at the company and that politicians in the country "don't seem to care". FREENOW CRITICISES UBER AT IRISH PARLIAMENTARY HEARINGS: FreeNow, the ridehail platform that is now owned by US firm Lyft, has taken aim at its rival Uber at Irish parliament transport committee hearings on the Silicon Valley giant's controversial shift to up front fares in the country. The shift to upfront fares in November, rather than pay being determined by the taximeter, sparked a series of major strikes by drivers, pressuring politicians to formally investigate the change. FreeNow's General Manager Danny O’Gorman took the opportunity to criticise Uber for reverse-charging VAT obligations onto drivers. O'Gorman said that most drivers were unaware of the "hidden" obligation and that the obligations accumulated, jeopardising their right to receive a Tax Clearance Certificate, which is needed for their taxi licence, potentially putting their ability to work as a taxi driver in Ireland at risk. Uber's General Manager Kieran Harte responded that the reverse-charging practise was not unusual and that they were compliant with Irish taxi regulations. Harte also claimed that Uber's rate of commission has not changed despite the introduction of upfront fares, and the company still takes the same commission as the taximeter requires: 12%. This was disputed, with screenshots from drivers showing Uber taking 'adjustments' on pay slips which dramatically increase the rate of commission, a fact that Harte denied. The transport committee chair, David McGuiness, said the committee would need to get to the bottom of Uber's real rate of commission. Read more here.
Have we missed something important? You can help keep us informed about what's going in the gig economy in Europe by e-mailing GEP@BraveNewEurope.com. |
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The Counter-app podcast series explores how app-based workers can counter the power of their algorithmic bosses. Each episode is based on new research for the ETUC on platform work, with the second episode exploring how vulnerable different industries are to Uberisation. Listen here. |
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The EU campaign for decent platform work has a webinar on the social security implications of the Platform Work Directive with Alberto Barrio from the University of Copenhagen, on February 26, 10.30-12pm CET, register here. |
Contact project co-ordinator Ben Wray at GEP@BraveNewEurope.com with news, events, ideas, feedback...whatever you think might be useful.
And if you like the Gig Economy Project newsletter, why not get your friends and colleagues to subscribe? Here's the link. |
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