24 Amendments of Jan-Christoph OETJEN related to 2021/0414(COD)
Amendment 24 #
Proposal for a directive
Recital 4
Recital 4
(4) Digitalisation is changing the world of work, improving productivity and enhancing flexibility, while alsocreating new employment and business opportunities, particularly in the context of the COVID- 19 pandemic, as well as increasing consumers’ choice while also potentially carrying some risks for employment and working conditions. Algorithm-based technologies, including automated monitoring and decision-making systems, have enabled the emergence and growth of digital labour platforms.
Amendment 27 #
Proposal for a directive
Recital 4 a (new)
Recital 4 a (new)
(4a) Mobility as a Service (MaaS),the Logistics as a Service (LaaS) and the collaborative mobility facilitated by the emergence of platforms with new digital and innovative solutions benefit considerably multimodality and reduces congestion in urban and sub-urban areas, saving time and efforts for consumers and enhancing the competitiveness of the related businesses
Amendment 37 #
Proposal for a directive
Recital 6
Recital 6
(6) Platform work can provide opportunities for accessing the labour market more easily, gaining additional income through a secondary activity or enjoying some flexibility in the organisation of working time. In this regard, platform economy has become an integral and rapidly growing part of the European transport and tourism sectors, providing new business models, talent and work opportunities. At the same time, platform work brings challenges, as it can blur the boundaries between employment relationship and self- employed activity, and the responsibilities of employers and workers. Misclassification of the employment status has consequences for the persons affected, as it is likely to restrict access to existing labour and social rights. It also leads to an uneven playing field with respect to businesses that classify their workers correctly, and it has implications for Member States’ industrial relations systems, their tax base and the coverage and sustainability of their social protection systems. While such challenges are broader than platform work, they are particularly acute and pressing in the platform economy.
Amendment 48 #
Proposal for a directive
Recital 9 a (new)
Recital 9 a (new)
(9a) Stresses the importance to empower the platform workers with data and ensure genuine competition between platforms by providing better access to data and standardizing data connectivity to enhance conditions for self-employed workers while also maintaining the dynamic capacity of the platform economy;
Amendment 56 #
Proposal for a directive
Recital 17
Recital 17
(17) This Directive should apply to all digital labour platforms, irrespective of their place of establishment and irrespective of the law otherwise applicable, provided that the platform work organised through that digital labour platform is performed in the Union. A targeted set of mandatory rules should be established at Union level to ensure minimum rights on working conditions in platform work while ensuring legal certainty and predictability for the most concerned sectors, such as in the fields of transport and tourism .
Amendment 66 #
Proposal for a directive
Recital 23 a (new)
Recital 23 a (new)
(23a) Stresses the importance to create a safety nets for self-employed platform workers for protection against accidents, unemployment and pension in line with subsidiarity principle and national competences of Member States whereas the potential of voluntary benefits from digital labour platforms should be taken into account;
Amendment 67 #
Proposal for a directive
Recital 23 b (new)
Recital 23 b (new)
(23b) Stresses that the criteria of this directive should respect the unique features of platform work; takes account that the Court of Justice of the European Union has assessed the status of the employment relationship in the Yodel case (C-692/19) in April 2020, and addresses co-legislators to be consistent with obeying this criteria, which identify the specificities of platform work;
Amendment 69 #
Proposal for a directive
Recital 24
Recital 24
(24) When digital labour platforms control certain elements of the performance of work, they act like employers in an employment relationship. Direction and control, or legal subordination, is an essential element of the definition of an employment relationship in the Member States and in the case-law of the Court of Justice. Therefore contractual relationships in which digital labour platforms exert a certain level of control over certain elements of the performance of work should be deemed, by virtue of a legal presumption, to be an employment relationship between the platform and the person performing platform work through it. As a result, that person should be classified as a worker having all the rights and obligations in accordance with that status, as laid down in national and Union law, collective agreements and practice. The legal presumption should apply in all relevant administrative and legal proceedings and should benefit the person performing platform work. Authorities in charge of verifying the compliance with or enforcing relevant legislation, such as labour inspectorates, social protection bodies or tax authorities, should also be able to rely on that presumption. Member States should put in place a national framework to reduce litigation and increase legal certainty. In this regards, national frameworks should take into account the opportunities provided by the collaborative services and platforms in the transport and tourism sectors. Furthermore, the national framework should foresee the necessary autonomy and flexibility for these sectors.
Amendment 83 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
1. The purpose of this Directive is to improve the working conditions of persons performing platform work by ensuring correct determination of their employment status, by promoting transparency, fairness and accountability in algorithmic management in platform work and by improving transparency in platform work, including in cross-border situations, while supporting the conditions for the sustainable growth of digital labour platforms in the Union, maintaining their development, autonomy and flexibility and providing legal certainty.
Amendment 102 #
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 meaning of paragraph 2, the performance of work and a person 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, in order to ensure that the legal presumption can be relied upon by competent authorities verifying compliance with or enforcing relevant legislation as well as persons performing platform work who dispute the classification of their employment status.
Amendment 108 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 1
Article 4 – paragraph 1 – subparagraph 1
The legal presumption shall apply in all relevant administrative and legal proceedings. Competent authorities verifying compliance with or enforcing relevant legislation shall be able to rely on that presumption.
Amendment 114 #
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:
Amendment 117 #
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 the level of remuneration;
Amendment 119 #
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 work beyond what is required by law or necessary to safeguard the health and safety of the recipients of the service or to ensure the essential functioning of the service;;
Amendment 121 #
Proposal for a directive
Article 4 – paragraph 2 – point c
Article 4 – paragraph 2 – point c
(c) closely supervising the performance of work or thoroughly verifying the quality of the results of the work including by electronic means beyond what is required by law or necessary to safeguard the health and safety of the recipients of the service or to ensure the essential functioning of the service;
Amendment 124 #
Proposal for a directive
Article 4 – paragraph 2 – point d
Article 4 – paragraph 2 – point d
(d) de facto effectively 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, including from other digital platforms or to use subcontractors or substitutes;
Amendment 127 #
Proposal for a directive
Article 4 – paragraph 2 – point e
Article 4 – paragraph 2 – point e
(e) de facto effectively restricting the possibility to build a client base or to perform work for any third party.
Amendment 131 #
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 presumption referred to in paragraph 1 while taking into account the impact on entrepreneurs and start-ups, avoiding capturing the genuine self-employed and supporting the conditions for innovation and the sustainable growth of digital labour platforms. In particular they shall:
Amendment 136 #
Proposal for a directive
Article 4 – paragraph 3 – point b
Article 4 – paragraph 3 – point b
(b) develop comprehensive 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 5;
Amendment 139 #
Proposal for a directive
Article 4 – paragraph 3 – point c
Article 4 – paragraph 3 – point c
(c) develop guidancecapacity building guidance, training for enforcement authorities to proactively target and pursue non-compliant digital labour platforms;
Amendment 143 #
Proposal for a directive
Article 4 – paragraph 3 – point d a (new)
Article 4 – paragraph 3 – point d a (new)
(da) (da) develop a consultation mechanism under which persons performing platform work or digital labour platforms can request the relevant authorities to pre-emptively assess, verify and justify the employment status of persons performing platform work on the basis of the control of the performance of work within the meaning of paragraph 2.
Amendment 152 #
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 156 #
Proposal for a directive
Article 5 – paragraph 3
Article 5 – paragraph 3
Where the person performing the platform work 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 digital labour platform shall be required to assist the proper resolution of the proceedings, notably by providing all relevant information held by it. Member States shall provide the necessary guidance for procedures to rebut the legal presumption.
Amendment 160 #
Proposal for a directive
Article 5 a (new)
Article 5 a (new)
Article 5 a Improvement of working conditions of 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, either on a purely voluntary basis or 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