30 Amendments of Stefan BERGER related to 2021/0414(COD)
Amendment 286 #
Proposal for a directive
Recital 18
Recital 18
(18) Digital labour platforms differ from other online platforms in that they organise work performed by individuals at the request, one-off or repeated, of the recipient of a service provided by the platform. Organising work performed by individuals should imply at a minimum a significant role in matching the demand for the service with the supply of labour by an individual who has a contractual relationship with the digital labour platform and who is available to perform a specific task, and can include other activities such as processing payments. Online platforms which do not organise the work performed by individuals but merely provide the means by which service providers can reach the end-user, for instance by advertising offers or requests for services or aggregating and displaying available service providers in a specific area, without any further involvement, should not be considered a digital labour platform. The definition of digital labour platforms should not include providers of a service whose primary purpose is to exploit or share assets, such as short-term rental of accommodation. It or to resell goods or services. For example, where providers of a service resell automotive parts, these activities relate to the sale of goods, rather than the provision of personal labour. The definition of digital labour platforms should be limited to providers of a service for which the organisation of work performed by the individual, such as transport of persons or goods or cleaning, constitutes a necessary and essential and not merely a minor and purely ancillary component.
Amendment 469 #
Proposal for a directive
Article 1 – paragraph 2 – introductory part
Article 1 – paragraph 2 – introductory part
2. This Directive lays down minimum rights that apply to every person performing platform work in the Union who has, or who based on an assessment of facts may be deemed to have, an employment contract or employment relationship as defined by the national law, collective agreements or practice in force in the Member States with consideration to the case-law of the Court of Justice.
Amendment 508 #
Proposal for a directive
Article 2 – paragraph 1 – point 4
Article 2 – paragraph 1 – point 4
(4) ‘platform worker’ means any person performing platform work who has an employment contract or employment relationship as defined by the national law, collective agreements or practice in force in the Member States with consideration to the case-law of the Court of Justice;
Amendment 529 #
Proposal for a directive
Article 2 – paragraph 2
Article 2 – paragraph 2
2. The definition of digital labour platforms laid down in paragraph 1, point (1), shall not include providers of a service whose primary purpose is to exploit or share assets or to sell goods or services, or organisations classified as a small or medium sized enterprise according to Commission Recommendation 2003/361/EC. It shall be limited to providers of a service for which the organisation of work performed by the individual constitutes not merely a minor and purely ancillary component. The organisation of work as a digital intermediary must be an essential and predominant part of the company's business model and of a systematic nature. Companies that conclude work or service contracts electronically with external service providers are not included.
Amendment 547 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. Member States shall have appropriate procedures in place to verify and ensure the 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, case 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.
Amendment 568 #
Proposal for a directive
Article 4 – title
Article 4 – title
Amendment 581 #
Proposal for a directive
Article 4 – paragraph 1 – introductory part
Article 4 – paragraph 1 – introductory part
1. The contractual relationship between a digital labour platform that controls, within the meanMember States shall establish a framework of measures, in accordance with their national legal, case law and judicial systems ing of paragraph 2, the performance of work and arder to be able to determine the employment status of persons performing platform work through that platform shall be legally presumed to be an employment relationship. To that effect, Member States shall establish a framework of measures, in accordance with their national legal and judicial systems. Member States shall ensure that people doing platform work can have their employment status checked in a low- threshold and easily accessible manner via an official national body.
Amendment 586 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 1
Article 4 – paragraph 1 – subparagraph 1
Amendment 603 #
Proposal for a directive
Article 4 – paragraph 2 – introductory part
Article 4 – paragraph 2 – introductory part
2. Controlling the performance of workIn particular, the instruction- bound provision of the service speaks in favour of classification as a platform employee. This is assessed within the meaning of paragraph 1 shall be understood as fulfilling at least two of the followingexisting national legislation. The competent national bodies that check or enforce compliance with the relevant legal provisions may, insofar as this is compatible with applicable national law and national legal practice, take the following additional points into account in the classification:
Amendment 605 #
Proposal for a directive
Article 4 – paragraph 2 – introductory part
Article 4 – paragraph 2 – introductory part
2. Controlling the performance of work within the meaning of paragraph 1 shall be understood as fulfilling at least two majority of the following, without prejudice to collective agreements between digital labour platforms and persons performing platform work:
Amendment 616 #
Proposal for a directive
Article 4 – paragraph 2 – point a
Article 4 – paragraph 2 – point a
(a) effectivelyDe facto determining, or setting upper limits for thethe total level of remuneration, beyond what is required by law;
Amendment 627 #
Proposal for a directive
Article 4 – paragraph 2 – point b
Article 4 – paragraph 2 – point b
(b) requiring the person performing platform work to respect specificextensive binding rules with regard to appearance, conduct towards the recipient of the service or performance of the work;, beyond what is required by law or reasonably necessary to safeguard health and safety or to ensure the essential functioning of the service.
Amendment 630 #
Proposal for a directive
Article 4 – paragraph 2 – point b
Article 4 – paragraph 2 – point b
(b) requiring the person performing platform work to respect specific binding rules with regard to appearance, conduct towards the recipient of the service or performance of the workservice;
Amendment 640 #
Proposal for a directive
Article 4 – paragraph 2 – point c
Article 4 – paragraph 2 – point c
(c) supervising the performance of work or verifying the quality of the results of the work including by eleincluding by electronic means beyond what is required by law or reasonably necessary to safeguard health and safety or to ensure the essential functrionic means;ng of the service.
Amendment 641 #
Proposal for a directive
Article 4 – paragraph 2 – point c
Article 4 – paragraph 2 – point c
(c) supervising the performance of workthe service or verifying the quality of the results of the work including by electronic means;
Amendment 649 #
Proposal for a directive
Article 4 – paragraph 2 – point d
Article 4 – paragraph 2 – point d
(d) effectivelyDe facto restricting the freedom, including through sanctions, to organise one’s work, in particular the discretion to choose one’s working hours or periods of absence, to accept or to refuse tasks or to use subcontractors or substitutes;
Amendment 657 #
Proposal for a directive
Article 4 – paragraph 2 – point e
Article 4 – paragraph 2 – point e
(e) effectivelyde facto restricting the possibility to build a client base or to perform work for any third party.
Amendment 668 #
Proposal for a directive
Article 4 – paragraph 3 – introductory part
Article 4 – paragraph 3 – introductory part
3. Member States shall take supporting measures to ensure the effective implementation of the legal presumptionmeasures referred to in paragraph 1 part 2 and paragraph 2 while taking into account the impact on start-ups, avoiding capturing the genuine self-employed and supporting the sustainable growth of digital labour platforms. In particular they shall:
Amendment 677 #
Proposal for a directive
Article 4 – paragraph 3 – point a
Article 4 – paragraph 3 – point a
(a) ensure that information on the application of the legal presumptionf the measures is made publicly available in a clear, comprehensive and easily accessible way;
Amendment 681 #
Proposal for a directive
Article 4 – paragraph 3 – point b
Article 4 – paragraph 3 – point b
(b) develop guidance for digital labour platforms, persons performing platform work and social partners to understand and implement the legal presumption including on the procedures for rebutting it in accordance with Article 5measures;
Amendment 705 #
Proposal for a directive
Article 4 – paragraph 3 – point d
Article 4 – paragraph 3 – point d
(d) strengthen the controls and field inspections conducted by labour inspectorates or the bodies responsible for the enforcement of labour law, while ensuring that such controls and inspections are proportionate and non-discriminatory.
Amendment 721 #
Proposal for a directive
Article 4 – paragraph 4
Article 4 – paragraph 4
4. With regard to contractual relationships entered into before and still ongoing on the date set out in Article 21(1), the legal presumptionmeasures referred to in paragraph 1 shall only apply to the period starting from that date.
Amendment 730 #
Proposal for a directive
Article 5 – title
Article 5 – title
Amendment 737 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
Member States shall ensure the possibility for any of the parties to rebut the legclarify the contractual presumption referred to in Article 4lationship in legal or administrative proceedings or both.
Amendment 739 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
Amendment 745 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
Where the digital labour platform argues that the contractual relationship in question is not an employment relationship as defined by the law, collective agreements or practice in force in the Member State in question, with consideration to the case- law of the Court of Justice, the burden of proof shall be on the digital labour platform. Such proceedings shall not have suspensive effect on the application of the legal presumption.
Amendment 751 #
Proposal for a directive
Article 5 – paragraph 3
Article 5 – paragraph 3
Amendment 770 #
Proposal for a directive
Article 5 a (new)
Article 5 a (new)
Article 5a Improvement of working conditions for genuine self-employed persons performing platform work Ensuring correct determination of the employment status shall not prevent the improvement of working conditions of genuine self-employed persons performing platform work. Where a digital labour platform decides, in agreement with the persons concerned, to pay for social protection, accident insurance or other forms of insurance, training measures or similar benefits to self-employed persons working through that platform, those benefits as such shall not be regarded as determining elements indicating the existence of an employment relationship.
Amendment 973 #
Proposal for a directive
Article 14 – paragraph 2
Article 14 – paragraph 2
Amendment 983 #
Proposal for a directive
Article 15 – paragraph 1
Article 15 – paragraph 1
Member States shall take the necessary measures to ensure that digital labour platforms crefacilitate the possibility for persons performing platform work to contact and communicate with each other, and to be contacted by representatives of persons performing platform work, through the digital labour platforms’ digital infrastructure or similarly effective means, while complying with the obligations under Regulation (EU) 2016/679. Member States shall require digital labour platforms to refrain from accessing or monitoring those contacts and communications.