42 Amendments of Cindy FRANSSEN related to 2021/0414(COD)
Amendment 169 #
Proposal for a directive
Citation 5 a (new)
Citation 5 a (new)
— having regard to the Commission Communication on draft Guidelines on the application of EU competition law to collective agreements regarding the working conditions of solo self-employed persons (C(2021) 8838);
Amendment 170 #
Proposal for a directive
Citation 5 b (new)
Citation 5 b (new)
— having regard to the Commission Staff Working Document Impact Assessment Report (SWD(2021 396);
Amendment 225 #
Proposal for a directive
Recital 7
Recital 7
(7) Court cases in several Member States have shown the persistence of misclassification of the employment status in certain types of platform work, in particular in sectors where digital labour platforms exert a certain degree of control over the remuneration and performance of work. Approximately 5.5 of 28.3 million persons performing platform work in the European Union are estimated to be subject to a certain degree of control.1a While digital labour platforms frequently classify persons working through them as self-employed or ‘independent contractors’, many courts have found that the platforms exercise de facto direction and control over those persons, often integrating them in their main business activities and unilaterally determining the level of remuneration. Those courts have therefore reclassified purportedly self- employed persons as workers employed by the platforms. However, national case law has resulted in diverse outcomes and digital labour platforms have adapted their business model in various ways, thus increasing the lack of legal certainty over the employment status. __________________ 1a Commission Impact Assessment Report, SWD(2021) 396 final
Amendment 241 #
Proposal for a directive
Recital 8
Recital 8
(8) Automated monitoring and decision-making systems powered by algorithms increasingly replace functions that managers usually perform in businesses, such as allocating tasks, giving instructions, evaluating the work performed, providing incentives or imposing sanctions. Digital labour platforms use such algorithmic systems as a standard way of organising and managing platform work through their infrastructure. Persons performing platform work subject to such algorithmic management often lack information on how the algorithms work, which personal data are being used and how their behaviour affects decisions taken by automated systems. Workers’ representatives, including trade unions, and labour inspectorates do not have access to this information either. Moreover, persons performing platform work often do not know the reasons for decisions taken or supported by automated systems and lack the possibility to discuss those decisions with a contact person or to contest them.
Amendment 255 #
Proposal for a directive
Recital 10
Recital 10
(10) A body of legal instruments provides for minimum standards in working conditions and labour rights across the Union. This includes in particular Directive (EU) 2019/1152 of the European Parliament and of the Council55 on transparent and predictable working conditions, Directive 2003/88/EC of the European Parliament and of the Council56 on working time, Directive 2008/104/EC of the European Parliament and of the Council57 on temporary agency work, and other specific instruments on aspects such as health and safety at work, notably Directive 89/391/EEC, information and consultation of workers, notably Directive 2002/14/EC and Directive 2009/38/EC, pregnant workers, work-life balance, fixed- term work, part-time work, posting of workers, information and consultation of workers, among others. While those instruments provide a level of protection to workers, they do not apply to the genuine self- employed. __________________ 55 Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union (OJ L 186, 11.7.2019, p. 105). 56 Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ L 299, 18.11.2003, p. 9). 57 Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work (OJ L 327, 5.12.2008, p. 9).
Amendment 266 #
Proposal for a directive
Recital 13
Recital 13
(13) While existing or proposed Union legal acts provide for certain general safeguards, challenges in platform work require some further specific measures. In order to adequately frame the development of platform work in a sustainable manner, it is necessary for the Union to set new minimum standards in working conditions to address the challenges arising from platform work. Persons performing platform work in the Union should be provided with a number of minimum rights aiming at ensuring correct determination of their employment status, at promoting transparency, fairness and accountability in algorithmic management, and at improving transparency in platform work, including in cross-border situations, as well as to ensure the right to participate in collective bargaining in accordance with national law and practice. This should be done with a view to improving legal certainty, creating a level playing field between digital labour platforms and offline providers of services and supporting the sustainable growth of digital labour platforms in the Union.
Amendment 292 #
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, or to resell goods or services. It 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 326 #
Proposal for a directive
Recital 23 a (new)
Recital 23 a (new)
(23a) Collective bargaining is a key tool to improve working conditions of persons performing platform work, irrespective of the contractual designation of the relationship. The Commission Guidelines on the application of EU competition law to collective agreements regarding the working conditions of solo self-employed persons shall to this end serve as providing useful guidance without prejudice to Member States discretion as regards the scope and form of collective representation.
Amendment 329 #
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, should the determination of an employment relationship of a person performing platform work be disputed in a legal or administrative proceeding, 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 not lead to an automatic determination of all persons performing platform work as platform workers to be in an employment relationship and 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.
Amendment 353 #
Proposal for a directive
Recital 26
Recital 26
(26) Effective implementation of the legal presumption through appropriate measures, such as disseminating information to the public, developing guidance in the form of concrete and practical recommendations and strengthening controls and field inspections is essential to ensure legal certainty and transparency for all parties involved. These measures should take into account the specific situation of start-ups to support the entrepreneurial potential and the conditions for the sustainable growth of digital labour platforms in the Union.
Amendment 374 #
Proposal for a directive
Recital 28
Recital 28
(28) The relationship between a person performing platform work and a digital labour platform may not meet the requirements of an employment relationship in accordance with the definition laid down in the law, collective agreements or practice in force of the respective Member State with consideration to the case-law of the Court of Justice, even though the digital labour platform controls the performance of work on a given aspect. Member States should ensure the possibility to rebut the legal presumption in legal or administrative proceedings or both by proving, on the basis of the aforementioned definition, that the relationship in question is not an employment relationship. The shift in the burden of proof to digital labour platforms is justified by the fact that they have a complete overview of all factual elements determining the relationship, in particular the algorithms through which they manage their operations. Legal proceedings and administrative proceedings initiated by the digital labour platforms in order to rebut the legal presumption should not have a suspensive effect on the application of the legal presumption. A successful rebuttal of the presumption in administrative proceedings should not preclude the application of the presumption in subsequent judicial proceedings. When the person performing platform work who is the subject of the presumption seeks to rebut the legal presumption, tsuch proceedings should have a suspensive effect on the application of the legal presumption. The digital labour platform should be required to assist that person, notably by providing all relevant information held by the platform in respect of that person. Member States should provide the necessary guidance for procedures to rebut the legal presumption.
Amendment 387 #
Proposal for a directive
Recital 32
Recital 32
(32) Digital labour platforms should be subject to transparency obligations in relation to automated monitoring and decision-making systems that are used to monitor, supervise or evaluate the work performance through electronic means; and automated decision-making systems which are used to take or support decisions that significantly affect working conditions, including access of persons performing platform work to work assignments, their earnings, their occupational safety and health, their working time, their promotion and their contractual status, including the restriction, suspension or termination of their account. In addition to what is provided in Regulation (EU) 2016/679, information concerning such systems should also be provided where decisions are not solely based on automated processing, provided that they are supported by automated systems. It should also be specified which kind of information should be provided to persons performing platform work regarding such automated systems, as well as in which form and when it should be provided. The obligation of the controller under Articles 13, 14 and 15 of Regulation (EU) 2016/679 to provide the data subject with certain information in relation to the processing of personal data concerning the data subject as well as with access to such data should continue to apply in the context of platform work. Information on automated monitoring and decision-making systems should also be provided to representatives of persons performing platform work, including trade unions, and to national labour authorities at their request, in order to enable them to exercise their functions.
Amendment 395 #
Proposal for a directive
Recital 33
Recital 33
(33) Digital labour platforms should not be required to disclose the detailed functioning of their automated monitoring and decision-making systems, including algorithms, or other detailed data that contains commercial secrets or is protected by intellectual property rights or which would with reasonable certainty result in the enabling of deception of consumers or consumers harm through the manipulation of the system without prejudice to Directive (2016/943). However, the result of those considerations should not be a refusal to provide all the information required by this Directive.
Amendment 401 #
Proposal for a directive
Recital 34
Recital 34
(34) Articles 5 and 6 of Regulation (EU) 2016/679 require that personal data are processed in a lawful, fair and transparent manner. Digital labour platforms should therefore not be allowed to process any personal data concerning persons performing platform work that are not intrinsically connected to and strictly necessary for the performance of the contract between those persons and the digital labour platform. Article 6(5) of this Directive provides for more specific rules in the context of platform work, including to ensure the protection of the rights and freedoms in respect of the processing of employees' personal data within the meaning of Article 88 of Regulation (EU) 2016/679. Digital labour platforms should not under any circumstances provide for discriminatory practices when processing personal data.
Amendment 409 #
Proposal for a directive
Recital 37
Recital 37
(37) In that context, persons performing platform work should have the right to obtain an explanation from the digital labour platform for a decision, the lack of decision or a set of decisions taken or supported by automated systems that significantly affect their working conditions. For that purpose the digital labour platform should provide the possibility for them to discuss and clarify the facts, circumstances and reasons for such decisions with a human contact person at the digital labour platform. In addition, digital labour platforms should provide the person performing platform work with a written statement of reasons for any decision to restrict, suspend or terminate that person’s account, to refuse the remuneration for work performed by that person, or affecting his or her contractual status, as such decisions are likely to have significant negative effects on persons performing platform work, in particular their potential earnings. Where the explanation or reasons obtained are not satisfactory or where persons performing platform work consider their rights infringed, they should also have the right to request the digital labour platform to review the decision and to obtain a substantiated reply within a reasonable period of time and in line with Article 12 of Regulation EU (2016/679). Where such decisions infringe those persons’ rights, such as labour rights or the right to non- discrimination, the digital labour platform should rectify such decisions without delay or, where that is not possible, provide adequate compensation.
Amendment 411 #
Proposal for a directive
Recital 37 a (new)
Recital 37 a (new)
(37a) Article 20 of Regulation (EU)2016/679 lays down the right of data subjects, including persons performing platform work, to have the personal data transmitted directly from one controller to another, where technically feasible.
Amendment 427 #
Proposal for a directive
Recital 42
Recital 42
(42) Information on the number of persons performing platform work through digital labour platforms on a regular basis, their contractual or employment status and the general terms and conditions applicable to those contractual relationships is essential to support labour inspectorates, social protection bodies and other relevant authorities in correctly determining the employment status of persons performing platform work and in ensuring compliance with legal obligations as well as representatives of persons performing platform work, including trade unions, in the exercise of their representative functions and should therefore be made accessible to them. Those authorities and representatives should also have the right to ask digital labour platforms for additional clarifications and details, such as basic data on working conditions regarding working time and remuneration.
Amendment 434 #
Proposal for a directive
Recital 44
Recital 44
(44) Representatives of persons performing platform work, including trade unions, should be able to represent one or several persons performing platform work in any judicial or administrative procedure to enforce any of the rights or obligations arising from this Directive. Bringing claims on behalf of or supporting several persons performing platform work is a way to facilitate proceedings that would not have been brought otherwise because of procedural and financial barriers or a fear of reprisals.
Amendment 448 #
Proposal for a directive
Recital 48
Recital 48
(48) Automated monitoring and decision-making systems used in the context of platform work involve the processing of personal data and affect the working conditions and rights of persons performing platform work. They therefore raise issues of data protection law as well as labour and social protection law. Data protection supervisory authorities and relevant labour and social protection authorities should therefore cooperate in the enforcement of this Directive, including by exchanging relevant information with each other, including in cross-border situations, without prejudice to the independence of data protection supervisory authorities.
Amendment 457 #
Proposal for a directive
Recital 52 a (new)
Recital 52 a (new)
(52a) Member States should take appropriate measures to ensure that all digital labour platforms recognise the right of persons performing platform work to organise, to join a trade union, and to participate in collective bargaining, in accordance with national law and practice.
Amendment 474 #
Proposal for a directive
Article 1 – paragraph 2 – subparagraph 1 a (new)
Article 1 – paragraph 2 – subparagraph 1 a (new)
This Directive shall be without prejudice to the autonomy of social partners and their right to negotiate and conclude collective agreements in accordance with national law and practice.
Amendment 539 #
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 resell goods or services. 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.
Amendment 574 #
Proposal for a directive
Article 4 – paragraph 1 – introductory part
Article 4 – paragraph 1 – introductory part
1. TShould the determination of the employment status of a person performing platform work be disputed in a legal or administrative proceeding in accordance with national legislation and practices, 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.
Amendment 588 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 1
Article 4 – paragraph 1 – subparagraph 1
The legal presumption shall not lead to an automatic determination of all persons performing platform work to be in an employment relationship and 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. determine if the contractual relationship is legally presumed to be an employment relationship within the meaning of paragraph 2, and be able to rely on that presumption. To this end, the digital labour platforms shall be required to assist the competent authorities, notably by providing all relevant information held by it.
Amendment 625 #
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, excluding measures or rules required by existing EU, national and local law to safeguard data protection and the health and safety of persons performing platform work and the recipients of the service provided;
Amendment 655 #
Proposal for a directive
Article 4 – paragraph 2 – point e
Article 4 – paragraph 2 – point e
(e) effectively restricting the possibility to build a client base or to perform work for any third party, excluding measures or rules required by national law or collective agreements.
Amendment 660 #
Proposal for a directive
Article 4 – paragraph 2 – subparagraph 1 (new)
Article 4 – paragraph 2 – subparagraph 1 (new)
Amendment 680 #
Proposal for a directive
Article 4 – paragraph 3 – point b
Article 4 – paragraph 3 – point b
(b) develop guidance in the form of concrete and practical recommendations 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 757 #
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. Such proceedings shall have suspensive effect on the application of the legal presumption.
Amendment 779 #
Proposal for a directive
Article 6 – paragraph 1 – introductory part
Article 6 – paragraph 1 – introductory part
1. Without prejudice to the obligations and rights of digital labour platforms and platform workers under Directive (EU) 2019/1152 and 2009/38/EC, Member States shall require digital labour platforms to inform persons performing platform workers of:
Amendment 809 #
Proposal for a directive
Article 6 – paragraph 4 a (new)
Article 6 – paragraph 4 a (new)
4a. Digital labour platforms shall not be required to disclose algorithms or any information that, with reasonable certainty, would result in the enabling of deception of consumers or consumers harm through the manipulation of the system, without prejudice to Directive (EU) 2016/943.
Amendment 828 #
Proposal for a directive
Article 6 – paragraph 5 – point d a (new)
Article 6 – paragraph 5 – point d a (new)
(da) under any circumstances provide for discriminatory practices when processing personal data.
Amendment 887 #
Proposal for a directive
Article 8 – paragraph 2 – introductory part
Article 8 – paragraph 2 – introductory part
2. Where platform workers are not satisfied with the explanation or the written statement of reasons obtained or consider that the decision referred to in paragraph 1 infringes their rights, they shall have the right to request the digital labour platform to review that decision. The digital labour platform shall respond to such request by providing the platform worker with a substantiated reply without undue delay and in any event within one weekmonth of receipt of the request.
Amendment 891 #
Proposal for a directive
Article 8 – paragraph 2 – subparagraph 1
Article 8 – paragraph 2 – subparagraph 1
With regard to digital labour platforms which are micro, small or medium-sized enterprises, Member States may provide that the deadline for reply referred to in the first subparagraph is extended to two weekmonths.
Amendment 899 #
Proposal for a directive
Article 8 – paragraph 4 a (new)
Article 8 – paragraph 4 a (new)
4a. Member States shall ensure the right of persons performing platform work to data portability, right to erasure, in accordance with Article 20 of Regulation (EU) 2016/679.
Amendment 941 #
Proposal for a directive
Article 12 – paragraph 1 – introductory part
Article 12 – paragraph 1 – introductory part
1. Where labour, social protection and other relevant authorities exercise their functions in ensuring compliance with legal obligations applicable to the employment status of persons performing platform work and where the representatives of persons performing platform work, including trade unions, exercise their representative functions, Member States shall ensure that digital labour platforms make the following information available to them:
Amendment 956 #
Proposal for a directive
Article 12 – paragraph 3
Article 12 – paragraph 3
3. Labour, social protection and other relevant authorities and representatives of persons performing platform work, including trade unions, shall have the right to ask digital labour platforms for additional clarifications and details regarding any of the data provided. The digital labour platforms shall respond to such request within a reasonable period of time by providing a substantiated reply.
Amendment 972 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
1. Without prejudice to Article 80 of Regulation (EU) 2016/679, Member States shall ensure that representatives of persons performing platform work, including trade unions, or other legal entities which have, in accordance with the criteria laid down by national law or practice, a legitimate interest in defending the rights of persons performing platform work, may engage in any judicial or administrative procedure to enforce any of the rights or obligations arising from this Directive. They may act on behalf or in support of a person performing platform work in the case of an infringement of any right or obligation arising from this Directive, with that person’s approval.
Amendment 975 #
Proposal for a directive
Article 14 – paragraph 2
Article 14 – paragraph 2
2. Representatives of persons performing platform work, including trade unions, shall also have the right to act on behalf or in support of several persons performing platform work, with those persons’ approval.
Amendment 999 #
Proposal for a directive
Article 19 – paragraph 1
Article 19 – paragraph 1
1. The supervisory authority or authorities responsible for monitoring the application of Regulation (EU) 2016/679 shall also be responsible for monitoring the application of Article 6, Article 7(1) and (3) and Articles 8 and 10 of this Directive, in accordance with the relevant provisions in Chapters VI, VII and VIII of Regulation (EU) 2016/679. They shall be competent to impose administrative fines up to the amount referred to in Article 83 (4) and (5) of that Regulation.
Amendment 1005 #
Proposal for a directive
Article 19 – paragraph 2
Article 19 – paragraph 2
2. The authorities referred to in paragraph 1 and national labour and social protection authorities shall, where relevant, cooperate in the enforcement of this Directive, within the remit of their respective competences, in particular where questions on the impact of automated monitoring and decision-making systems on working conditions or on rights of persons performing platform work arise. For that purpose, those authorities shall exchange relevant information with each other, including in cross-border situations, including information obtained in the context of inspections or investigations, either upon request or at their own initiative.
Amendment 1022 #
Proposal for a directive
Article 20 a (new)
Article 20 a (new)
Article 20a Collective bargaining Member States shall take appropriate measures to ensure that all digital labour platforms recognise the right of persons performing platform work to organise, to join a trade union, and to participate in collective bargaining, in accordance with national law and practice.