138 Amendments of Konstantinos ARVANITIS related to 2021/0414(COD)
Amendment 177 #
Proposal for a directive
Recital 3
Recital 3
(3) Principle No 5 of the European Pillar of Social Rights, proclaimed at Gothenburg on 17 November 201753, provides that, regardless of the type and duration of the employment relationship, workers have the right to fair and equal treatment regarding working conditions, access to social protection and training; that, in accordance with legislation and collective agreements, the necessary flexibility for employers to adapt swiftly to changes in the economic context is to be ensured; and that innovative forms of work that ensure quality working conditions are to be fostered, that entrepreneurship and self-employment are to be encouraged and that occupational mobility is to be facilitated, and advocates preventing employment relationships that lead to precarious working conditions, including by prohibiting the abuse of atypical contracts. The Porto Social Summit of May 2021 welcomed the Action Plan accompanying the Social Pillar as guidance for its implementation. __________________ 53 Interinstitutional Proclamation on the European Pillar of Social Rights (OJ C 428, 13.12.2017, p. 10). 54 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘The European Pillar of Social Rights Action Plan’, COM(2021) 102 final, 4.3.2021.
Amendment 183 #
Proposal for a directive
Recital 3 a (new)
Recital 3 a (new)
(3a) Principle 7 of the European Pillar of Social Rights, proclaimed at Gothenburg on 17 November 2017, provides that workers have the right to be informed in writing at the start of employment about their rights and obligations resulting from the employment relationship, including any probationary period, and that they are entitled to be informed of the reasons for their dismissal prior to it happening and given a reasonable notice period and, lastly, that they have the right to access to effective and impartial dispute resolution and, in case of unjustified dismissal, a right to redress, including adequate compensation.
Amendment 187 #
Proposal for a directive
Recital 4
Recital 4
(4) Digitalisation is changing the world of work, improving productivity and enhancing flexibility, whether desired or not, while also carrying some risks for employment and working conditions, health and safety in the workplace, the protection of the fundamental right to privacy, tax law, and labour law in general. Algorithm-based technologies, including automated and semi-automated monitoring and decision-making systems, have enabled the emergence and growth of digital labour platforms. However, the architecture or the configuration of the business model of digital labour platforms has adverse effects on workers and often gives rise to poor working conditions, the circumvention of labour law, greater casualisation of labour and worker exploitation.
Amendment 195 #
Proposal for a directive
Recital 5
Recital 5
(5) Platform work is performed by individuals through theusing a digital infrastructure ofthat enables digital labour platforms thato provide a service to their customers. By means of the algorithms, the digital labour platforms may controlsupervise, organise, control and impose penalties for, to a lesser or greater extent – depending on their business model – the performance of the work, its remuneration and the relationship between their customers and the persons performing the work and sometimes the workers themselves. Platform work can be performed exclusively online through electronic tools (‘online platform work’) or in a hybrid way combining an online communication process with a subsequent activity in the physical world (‘on-location platform work’). Many of the existing digital labour platforms are international business actors deploying their activities and business models in several Member States or across borders without, however, complying with the labour and/or tax law rules in each Member State.
Amendment 206 #
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. At the same time, platform working brings challenges, as it candigital platforms do not comply with EU and national legislation and fraudulently oblige their workers to work with self-employed status, circumventing labour law, seeking to blur the boundaries betweenof the employment relationship and self- employed activity, andenabling employers to shirk their responsibilities of employers andtowards workers. Misclassification of the employment status has serious consequences for the persons affected, as it is likely to restricts access to existing labour and social rights. It also leads tohas ramifications for all workers, since platform working in its current form undermines and, in the long term, unravels all social protections and labour law. It also leads to worker exploitation, unfair competition, social dumping and 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 229 #
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 or oversight over the remuneration and performance of work. 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.
Amendment 235 #
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, setting pay levels and working hours, 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 and labour inspectorates do not have access to this information either. Moreover, persons performing platform work and workers whose organisation of work or working conditions are subject to automated or semi-automated monitoring and decision-making systems 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. Persons performing platform work and their representatives are also deprived of the opportunity to discuss, negotiate and review the algorithmic systems that nonetheless directly impinge on their working conditions, whereas working conditions normally a matter for negotiation between the employers and representative trade unions within the company.
Amendment 252 #
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 Council on transparent and predictable working conditions55, Directive 2003/88/EC of the European Parliament and of the Council on working time56, Directive 2008/104/EC of the European Parliament and of the Council on temporary agency work57 , the Court of Justice of the EU ruling (Judgment of the Court of 21 February 2018 in case C-518/15 – Ville de Nivelles v Rudy Matzak ECLI:EU:C:2018:82; confirmed and elaborated upon in the judgments of 9 March 2021 in case C- 580/19 – RJ v Stadt Offenbach am Main, ECLI:EU:C:2021:183; and 9 March 2021 in case C-344/19 – D.J. v Radiotelevizija Slovenija, ECLI:EU:C:2021:182, which found that ‘waiting time’ significantly curtails opportunities to carry out other activities and must be regarded as working time, and other specific instruments on aspects such as health and safety at work, 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. Other legal instruments to be considered are the Collective Redundancies Directive (98/59/EC) and the Transfer of Undertakings Directive (2001/23/EC). __________________ 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 265 #
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 and to protect workers’ fundamental rights. Persons performing platform work in the Union should be provided with a number of minimum rights aiming at ensuringare deemed to be employees and should enjoy the rights deriving from this status, as well as fair working conditions with a view to respecting the correct determination of their employment status, at promotensuring transparency, fairness and accountability in algorithmic management, particularly in respect of health and safety, and at improving transparency in platform work, including in cross-border situations. This should be done with a view to improvguaranteeing 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 271 #
Proposal for a directive
Recital 15
Recital 15
Amendment 275 #
Proposal for a directive
Recital 16
Recital 16
(16) This Directive shouldall apply to persons performing platform work in the Union who have, or who based on an assessment of facts may be deemed to have, an employment contract or employment relationship as defined by the law, collective agreements or practice in force in the Member States, with consideration to the case-law of the Court of Justice of the European Union. This should include situations where the employment status of the person performing platform work is not clear, so as to allow correct determination of that statusare subject to automated or semi-automated monitoring and decision- making systems and are therefore salaried workers, unless a successful rebuttal of the legal presumption of a salaried employment relationship proves that they are genuinely self-employed. The provisions on algorithmic management which are related to the processing of personal data should also apply to genuine self-employed and other persons performing platform work in the Union who do not have an employment relationship.
Amendment 282 #
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 throughvia 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.
Amendment 288 #
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, which 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 componentcovered by another directive to prevent, inter alia, property speculation.
Amendment 295 #
Proposal for a directive
Recital 18 a (new)
Recital 18 a (new)
(18a) The frequent misclassification of persons performing platform work, together with the lack of a common workplace where platform workers can get to know and communicate with each other and organise themselves, including for the purpose of defending their interests against the employer, make the phenomenon of company trade unions or workers’ representatives that are established or controlled by the employer itself in the interests of the employer rather than those of the workers, particularly serious in platform work. Such company trade unions or workers’ representatives are contrary to Article 2 of International Labour Organization (ILO) Convention No 98 and to Directive 2002/14/EC of the European Parliament and of the Council1a and the Member States should ensure that direct or indirect financial or constituent links with the employer are forbidden. When establishing or implementing practical arrangements for information, consultation, negotiation and social dialogue, employers and the workers’ representatives should work in a spirit of cooperation and with due regard for their reciprocal rights and undertake collective work to improve working conditions and workers' rights. Digital labour platforms shall ensure, together with trade unions, that elections for workers’ representatives comply with fundamental rights and freedoms and are in line with applicable national law and practices. They shall ensure that these elections aim to represent workers and make their voice heard within the labour platform and that these elections are not used as a pretext for actually defending the interests of the platforms, notably by helping them circumvent labour law. These elections should enable workers to freely choose the issues to be discussed in negotiation meetings, their status for instance.
Amendment 303 #
Proposal for a directive
Recital 19
Recital 19
(19) A worker is either a salaried worker or a self-employed worker. The creation of a third status, allowing the digital platform to benefit from the advantages of the status of employer, without assuming the responsibilities that accompany it, is in no way justified and should not be a possibility that arises from this directive. Indeed, working via a digital platform using an algorithm that organises and distributes work, sets rates or sanctions workers is not an innovation in the field of work but merely reproduces the framework and role of the employer in the digital realm. Thus, digital work platforms must apply labour law and the collective agreements in the applicable sectors in the same way as all the companies concerned. To combat false self-employment in platform work and to facilitate the correct determination of the employment status, Member States should have appropriate procedures in placeintroduce a general legal presumption of a rebuttable employment relationship and a reversal of the burden of proof to prevent and address misclassification of the employment status of persons performing platform work. The aim of those procedures should be to ensure salaried employment status applies and to ascertain the existencnature of anthe employment relationship as defined by national law, collective agreements or practice with consideration to the case-law of the Court of Justice, and, where such in the event the platform or an employee makes a rebuttal. Where a self-employed employment relationship exists, to ensure full compliance with Union law applicable to workers as well as national labour law, collective agreements and social protection rules. Where self- employment or anself-employed workers or workers with intermediate employment status – as defined at national level – is the correct employment status,must be ensured and the rights and obligations pursuant to that status should apply.
Amendment 306 #
Proposal for a directive
Recital 19 a (new)
Recital 19 a (new)
(19a) The establishment of a general legal presumption of a salaried employment relationship is intended to ensure that workers performing work via a platform are properly classified as employees. With a view to affording the correct status to platform workers and enforcing labour law as soon as possible, Member States must apply the legal presumption as soon as this Directive enters into force as set out in Article 5, so that all workers enjoy from the correct status and the associated rights, at the latest on the first day of the entry into force of the legislative provisions.
Amendment 309 #
Proposal for a directive
Recital 20
Recital 20
(20) In its case law, the Court of Justice has established criteria for determining the status of a worker62. The interpretation by the Court of Justice of those criteria should be taken into account in the implementation of this Directive. The abuse of the status of self-employed persons, as defined in national law, either at national level or in cross-border situations, is a form of falsely declared work that is frequently associated with undeclared work. False self- employment occurs when a person is declared to be self- employed while fulfilling the conditions characteristic of an employment relationship, in order to avoid certain legal or fiscal obligations and gives rise to a situation of unfair competition in respect of law-abiding companies. A company using bogus self-employed workers must be punished. __________________ 62 Judgments of the Court of Justice of 3 July 1986, Deborah Lawrie-Blum v Land Baden-Württemberg, C-66/85, ECLI:EU:C:1986:284; 14 October 2010, Union Syndicale Solidaires Isère v Premier ministre and Others, C-428/09, ECLI:EU:C:2010:612; 4 December 2014, FNV Kunsten Informatie en Media v Staat der Nederlanden, C-413/13, ECLI:EU:C:2014:2411; 9 July 2015, Ender Balkaya v Kiesel Abbruch- und Recycling Technik GmbH, C-229/14, ECLI:EU:C:2015:455; 17 November 2016, Betriebsrat der Ruhrlandklinik gGmbH v Ruhrlandklinik gGmbH, C-216/15, ECLI:EU:C:2016:883; 16 July 2020, UX v Governo della Repubblica italiana, C- 658/18, ECLI:EU:C:2020:572; and order of the Court of Justice of 22 April 2020, B v Yodel Delivery Network Ltd, C-692/19, ECLI:EU:C:2020:288.
Amendment 314 #
Proposal for a directive
Recital 22
Recital 22
(22) Where the existence of an employment relationship is established based on facts, the party acting as employer should be clearly identified and that party should fulfil all the obligations relating to employment law and criminal liability resulting from its role as employer.
Amendment 315 #
Proposal for a directive
Recital 22 a (new)
Recital 22 a (new)
(22a) Numerous human and labour rights abuses have been observed in the value chains of platforms. These abuses occur, for example, when platforms use bogus self-employed workers, abusive subcontracting schemes, wage portage, allow account leasing or take advantage of situations of undeclared labour, including work carried out by minors or undocumented workers. Given these serious and proven risks, platforms must be recognised as a high-impact sector as defined in the proposal for a directive on corporate sustainability due diligence (COM/2022/71). The imposition of the requirement for European due diligence on certain platforms must ultimately go hand-in-hand with the adoption of sector- specific rules on due diligence for platforms so as to extend the scope and content of due diligence to cover to the specific nature of the sector and to guarantee compliance with labour law, uphold fundamental rights and ensure the health and safety at work of platform workers.
Amendment 320 #
Proposal for a directive
Recital 23
Recital 23
(23) Ensuring correct determination of the employment status should not prevent the improvement of working conditions of genuine self-employed persons performing platform work. Where a digital labour platform decides – 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 should not be regarded as determining elements indicating the existence of an employment relationship.
Amendment 332 #
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 s since this is a sign that the activity performed by the worker is fully integrated into the platform's business. Subordination, i constitutes 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 anfall under the scope of a salaried 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 andis as a worker who should enjoy all the rights and be subject to all the obligations in accordance with that status, as laid down in national and Union law, and collective agreements and practice. The legal presumption should apply in all relevant administrative and legal proceedings andof salaried employment 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 certaintyproactively apply that presumption.
Amendment 345 #
Proposal for a directive
Recital 25
Recital 25
(25) Criteria infor the existence of subordicnating that a digital labour platform controls the performance of work should be included in the Directive in order to make the legal presumption operational and facilitate the enforcement of workers’ rights. Those criteria should be inspired by Union and national case law and take into account national concepts of the employment relationship. The criteria should include concrete elements showing that the digital labour platform, for instance, determines in practice and not merely recommends the working conditions or the remuneration or both, gives instructions on how the work is to be performed or prevents the person performing platform work from developing business contacts with potential clients. In order for it to be effective in practice, two criteria should be always fulfilled to trigger the application of the presumption,. At the same time, the criteria should not cover situations where the persons performing platform work are genuine self-employed. Genuine self- employed persons are themselves responsible vis-à-vis their customers for how they perform their work and the quality of their outputs. The freedom to choose working hours or periods of absence, to refuse tasks, to use subcontractors or substitutes or to work for any third party is characteristic of genuine self-employment. Therefore, de facto restricting such discretions by a number of conditions or through a system of sanctions, should also be considered as an element of controlling the performance of work. Closely supervising the performance of work or thoroughly verifying the quality of the results of that work, including through electronic means, which does not merely consist in using reviews or ratings by the recipients of the service, should also be considered as an element of controlling the performance of work. At the same time, digital labour platforms should be able to design their technical interfaces in a way to ensure good consumer experience. Measures or rules which are required by law or which are necessary to safeguard the health and safety of the recipients of the service should not be understood as controllingon, which is a defining aspect of the employment relationship and distinguishes the employment contract from other contracts, should be included in the Directive. Those elements are inspired by Union and national case law as well as by the ILO’s Employment Relationship Recommendation, 2006 (No 198) and take into account national concepts of the employment relationship. These concrete elements indicate that the digital work platform supervises or exercises control over the performance of the work, further elements show that the digital work platform determines in practice the working conditions or the remuneration, or both, or provides the worker with periodic remuneration; gives instructions on how the work is to be performed or prevents the person performing platform work from developing business contacts with potential clients; supervises the performance of work or verifies the quality of the work, including by electronic means, that leads to the final result; tracks or monitors the person performing platform work; enforces the performance through penalties, including restricting access to work, or uses customer rating systems as a tool of control and basis for penalties; relies on measures of performance and (mis)conduct as a basis for determining remuneration levels, working conditions and penalties; determines access to jobs through internal rankings; restricts the person’s freedom, including through penalties, to organise work, in particular the discretion to choose working hours or periods of absence, to accept or to refuse tasks or to use subcontractors or substitute; controls and organises the business activity linked to the platform work performed by individuals or detains the responsibility for related investment and management; provides the worker performing platform work with tools, digital means, materials or machinery that are necessary for the performance of the work; provides the worker with any kind of support for social protection, accident insurance, pension scheme or other forms of insurance, training measures or similar benefits. That list is not exhaustive and any other relevant concrete element can indicate that digital labour platform supervises or exert some control over the performance of work.
Amendment 351 #
Proposal for a directive
Recital 26
Recital 26
(26) Effective implementation of the legal presumption through appropriate measures, such as bringing proceedings to rebut the presumption of salaried employment, disseminating information to the public, developing guidance 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 361 #
Proposal for a directive
Recital 27
Recital 27
Amendment 373 #
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 by means of the facts of the case, 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. Platform workers may also contribute to the process by providing supporting information in their possession. 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, 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 378 #
Proposal for a directive
Recital 29
Recital 29
(29) While Regulation (EU) 2016/679 establishes the general framework for the protection of natural persons with regard to the processing of personal data, it is necessary to lay down rulesapply the framework to addressing the concerns that are specific in the processing of personal data in the context of platform work. This Directive also 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. In this context, terms relating to the protection of personal data in this Directive should be understood in light of the definitions set out in Regulation (EU) 2016/679.
Amendment 380 #
Proposal for a directive
Recital 30
Recital 30
(30) In addition to rights and obligations provided in this Directive, rights and obligations provided in Regulation (EU) 2016/679 continue to apply when personal data are processed. Articles 13, 14 and 15 of Regulation (EU) 2016/679 require data controllers to ensure transparency towards data subjects on the collection and processing of personal data. Moreover, Article 22(1) of Regulation (EU) 2016/679 provides for the data subjects’ right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her, subject to the exceptions provided for in paragraph 2 of that article. Those obligations apply also to digital labour platforms. Platform workers' representatives must, where necessary, have access to workers' personal data in accordance with Regulation (EU) 2016/679.
Amendment 384 #
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, or to monitor workers outside the performance of their work; 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 and to national labour authorities at their request, in order to enable them to exercise their functions.
Amendment 390 #
Proposal for a directive
Recital 32 a (new)
Recital 32 a (new)
Amendment 392 #
Proposal for a directive
Recital 32 b (new)
Recital 32 b (new)
(32b) Digital platform work, as defined in Article 2, is the most visible form of a wider and increasingly frequent trend towards the organisation of work in a manner subject to the use of automated or semi-automated algorithms which remain largely invisible to workers and their representatives and over which they often have little control, leading to a growing precarisation of work, as evidenced by the ever-increasing number of atypical workers. This Directive should therefore apply to all workers working via an automated or semi-automated system.
Amendment 396 #
Proposal for a directive
Recital 33
Recital 33
(33) Digital labour platforms and any other undertaking should not be required to disclose the detailed functioning of their automated or semi-automated monitoring and decision-making systems, includingas well as algorithms, or and other detailed data that contains commercial secrets or is protected by intellectual property rights. However, the result of those considerations should not be a refusal to provide all the information required by this Directiveinfluence the way work is organised and working conditions.
Amendment 400 #
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. However, for the majority of data processed at work, the legal basis cannot and should not be employee consent, owing to the unbalanced nature of the employer-employee relationship, trade unions should play an important role in data governance to ensure that the rights laid down in Regulation (EU) 2016/679 are fully guaranteed in the employment relationship. Moreover, workers and workers’ representatives should have the right to access all data gathered, as well as to obtain the rectification or erasure of the data, to restrict the processing and to be notified about any rectification or erasure of personal data or restriction of processing carried out in accordance with Article 16, Article 17(1) and Article 18 of Regulation (EU) 2016/679.
Amendment 403 #
Proposal for a directive
Recital 35
Recital 35
(35) Digital labour platforms and an increasing number of other undertakings make extensive use of automated monitoring and decision-making systems in managing their human resources. Monitoring by electronic means can be intrusive and discriminatory and contrary to labour law, and decisions taken or supported by such systems directly affect the persons performing platform work, who might not have a direct contact with a human manager or supervisor. Digital labour platforms should therefore regularly monitoroversee and evaluate the impact of individual decisions taken or supported by automated monitoring and decision- making systems on working conditions. Digital labour platforms should ensure sufficient human resources for this purpose. The persons charged by the digital labour platform with the function of monitoroverseeing should have the necessary competence, training and authority to exercise that function and should be protected from dismissal, disciplinary measures or other adverse treatment for overriding automated decisions or suggestions for decisions. In addition to obligations under Article 22 of Regulation (EU) 2016/679, Article 7(1) and (3) of this Directive provides for distinct obligations of digital labour platforms in relation to human monitoring of the impact of individual decisions taken or supported by automated systems, which apply as 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.
Amendment 407 #
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 they have been discriminated against or have had 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. Persons may receive support, assistance and advice from workers’ representatives if they wish, and can also assert their rights before a judicial or administrative authority. 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 adequatbe prosecuted and punished just like any other company, and the worker should be compensationed.
Amendment 414 #
Proposal for a directive
Recital 39
Recital 39
(39) Directive 2002/14/EC of the European Parliament and of the Council64 establishes a general framework for informing and consulting employees in the Union. The introduction of or substantial changes in the use of automated monitoring and decision-making systems by digital labour platforms have direct impacts on the work organisation and individual working conditions of platform workers. Additional measures are necessary to ensure that digital labour platforms inform and consult, consult and take into account the requests and remarks of platform workers or their representatives before such decisions are taken, at the appropriate level and, given the technical complexity of algorithmic management systems, with the assistance of an expert chosen by the platform workers or their representatives in a concerted manner where needed. __________________ 64 Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community (OJ L 80, 23.3.2002, p. 29).
Amendment 416 #
Proposal for a directive
Recital 39 a (new)
Recital 39 a (new)
Amendment 419 #
Proposal for a directive
Recital 40
Recital 40
(40) Persons who do not have an employment relationship constitute a significant part of the persons performing platform work. The impact of automated monitoring and decision-making systems used by digital labour platforms on their working conditions and their earning opportunities is similar to that on platform workers. Therefore, the rights in Articles 6, 7 and 8 of this Directive pertaining to the protection of natural persons in relation to the processing of personal data in the context of algorithmic management, namely those regarding transparency on automated monitoring and decision-making systems, restrictions to process or collect personal data, human monitoring and review of significant decisions, should also apply to persons in the Union performing platform work who do not have an employment contract or employment relationship. The rights pertaining to health and safety at work and information and consultation of platform workers or their representatives, which are specific to workers in view of Union law, should not apply to them. Regulation (EU) 2019/1150 provides safeguards regarding fairness and transparency for self-employed persons performing platform work, provided that they are considered business users within the meaning of that Regulation. Where such safeguards conflict with elements of specific rights and obligations laid down in this Directive, the specific provisions of Regulation (EU) 2019/1150 should prevail in respect of business users.
Amendment 425 #
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 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. Digital work platforms should be listed in the applicable public business register, which should include relevant information on all digital work platforms operating in the country. This information should include, inter alia, the company’s number of workers, status and turnover.
Amendment 441 #
Proposal for a directive
Recital 45
Recital 45
(45) Platform work is characterised by the lack of a common workplace where workers can get to know each other and communicate with each other and with their representatives, also in view of defending their interests towards the employer. It is therefore necessary to create private and protected digital communication channels, in line with the digital labour platforms’ work organisation, where persons performing platform work can exchange with each other and be contacted by their representatives. Digital labour platforms should create such communication channels within their digital infrastructure or through similarly effective means, while respecting the protection of personal data and refraining from accessing, limiting or monitoring those communications.
Amendment 456 #
Proposal for a directive
Recital 51
Recital 51
(51) In implementing this Directive Member States should avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of micro, small and medium-sized enterprises. Member States shouldmay assess the impact of their transposition measures on start-ups and on small and medium-sized enterprises in order to ensure that they are not disproportionately affected, giving specific attention to micro-enterprises and to the administrative burden. Member States should also publish the results of such assessments.
Amendment 465 #
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 with a view to guaranteeing their rights, 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.
Amendment 473 #
Proposal for a directive
Article 1 – paragraph 2 – subparagraph 1
Article 1 – paragraph 2 – subparagraph 1
In accordance with Article 10, rights laid down in this Directive pertaining to the protection of natural persons in relation to the processing of personal data in the context of algorithmic management also apply to every person performing platform work in the Union who does not have an employment contract oregardless of their employment relationshipstatus.
Amendment 478 #
Proposal for a directive
Article 1 – paragraph 3
Article 1 – paragraph 3
3. This Directive applies to digital labour platforms organising platform work performed in the Union, irrespective of their place of establishment and irrespective of the law otherwise applicableof the company or the customer. The digital work platform must comply with the applicable legislation in the country in which the service is provided.
Amendment 481 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – introductory part
Article 2 – paragraph 1 – point 1 – introductory part
(1) ‘digital labour platform’ means any natural or legal person providing a commercial service which meets all of the following requirements:s via a workforce which it organises by automated or semi- automated means and algorithms, with a view to the performance of the service it offers. Digital labour platforms exercise, by means of automated or semi-automated systems, the prerogatives of an employer and must therefore assume their responsibilities and comply with the obligations incumbent upon employers under national law.
Amendment 487 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point a
Article 2 – paragraph 1 – point 1 – point a
Amendment 490 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point b
Article 2 – paragraph 1 – point 1 – point b
Amendment 491 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point c
Article 2 – paragraph 1 – point 1 – point c
Amendment 498 #
Proposal for a directive
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
(2) ‘platform work’ means any work organisenabled through a digital labour platform and performed in the Union by an individual on the basis of a contractual relationship between the digital labour platform and the individual, irrespective of whether a contractual relationship exists between the individual and the recipient of the service;
Amendment 512 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
(5) ‘“workers’ representatives’” means: (a) trade union representatives, namely, representatives designated or elected by trade unions or by members of such unions in accordance with national legislation and practice; (b) elected representatives, namely, representatives who are freely elected by the workers’ of the organisations or representatives provided for by national law or practices, or both; , not under the domination or control of the employer in accordance with provisions of national laws or collective agreements and whose functions do not include activities which are the exclusive prerogative or trade unions; (c) where (under national law and in practice) both trade union representatives and elected representatives are present in the same organisation, the appropriate measures shall be taken to ensure that the existence of elected representatives is not used to undermine the position of trade unions or their representatives and to ensure the exclusive prerogatives of trade unions are preserved, in particular the right to collective bargaining and to conclude a collective agreement and to have (digital) access to the workers; (d) workers’ right to choose to organise in a trade union and to collective bargaining must be upheld;
Amendment 526 #
Proposal for a directive
Article 2 – paragraph 1 – point 6 a (new)
Article 2 – paragraph 1 – point 6 a (new)
(6a) ‘self-employed person working via a platform’ means any person providing services via the digital work platform in a manner that, on the basis of an assessment of the facts, meets all of the following criteria: (a) the person performs the work without supervision and without instruction from another party, both on the basis of the contract governing the work and in view of the facts; (b) the worker performs activities which are not part of the activities normally carried out by the employer’s company; (c) the person performing the work is normally engaged in a trade, profession or self-employed activity of the same nature as the work performed.
Amendment 527 #
Proposal for a directive
Article 2 – paragraph 1 – point 6 b (new)
Article 2 – paragraph 1 – point 6 b (new)
(6b) ‘automated monitoring and decision-making systems’ means any system, software or process that makes use of computations to aid or replace management decisions or rules that impact the organisation of work or the opportunities, access, freedoms, rights and/or safety of workers.
Amendment 528 #
Proposal for a directive
Article 2 – paragraph 1 – point 6 c (new)
Article 2 – paragraph 1 – point 6 c (new)
(6c) ‘undocumented third-country worker’ means a third-country national who performs work in the territory of a Member State and who does not fulfil or who no longer fulfils the conditions for legal presence or residence in that Member State.
Amendment 535 #
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. 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 546 #
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 independent employment relationship as defined by the 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 550 #
Proposal for a directive
Article 3 – paragraph 2
Article 3 – paragraph 2
2. The determination of the existence of an employment relationship shall be guided primarily by the facts relating to the actual performance of work, taking into account the use of algorithms in the organisation of platform work, irrespective of how the relationship is classified in any contractual arrangement that may have been agreed between the parties involved and the will of the parties. WThere the existence party assuming the obligations of anthe employment relationship is established based on facts, ter shall be clearly identified in accordance with national legal systems. Member States may not adopt regression clauses liable to exempt digital work platforms from their responsibility as employers. The party assuming the employer’s obligations of the employer shall be clearly identified in accordance with national legal systemsmust therefore comply with its legal obligations under national law in respect of labour requirements (including sectoral obligations established by collective agreements), income tax, social security funding, health and safety responsibilities, due diligence and corporate social responsibility.
Amendment 575 #
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 salaried employment relationship. To that effect, Member States shall establish a framework of measures, in accordance with their national legal and judicial systems. classifying workers performing work via a digital platform as employees with stable contracts1a, in accordance with their national legal and judicial systems. __________________ 1a https://www.ilo.org/public/french/bureau/ stat/class/icse.htm
Amendment 587 #
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 legisfrom the entry into force of this Directive. Competent authorities and bodies registering administrative procedures, verifying compliance with or enforcing relevant legislation must be able to rely on that presumption. To that end, the procedure for platforms already operating within the Member States shall be as follows: (a) Member States shall provide and maintain a list of digital platforms operating on their territory; (b) The platform shall be informed that workers performing work on a digital platform are deemed to be salaried workers from the entry into force of this Directive. The transposition period will enable administrative and legal measures to be put in place to ensure compliance with this presumption or rebuttal of it before the authorities of the Member State in which the platform operates; (c) If a rebuttal of the legal presumption via a reversal of the burden of proof as provided for in Article 5 has not taken place or has not been upheld by the authorities responsible for enforcing the legislation, then the worker performing work via a digital platform must hold a stable employment contract at the latest on the day on which these legislative provisions enter into force in accordance with Article 21, without precluding digital platforms or Member States from implementing the legal presumption in advance. If a new platform is established: (a) Member States shall update the list of digital platforms operating on their territory; (b) The presumption of a salaried employment relationship shall be able to rely on that presumption. apply; (c) The platform may attempt to rebut the legal presumption via a reversal of the burden of proof, as provided for in Article 5. If the authorities responsible for enforcing the legislation uphold the rebuttal, then the platform’s workers must be self-employed. The platform may operate in the territory of the Member State in question, provided that it complies with the decision of these authorities; (d) Both the platform and the workers may lodge an appeal against the decision if they see fit.
Amendment 596 #
Proposal for a directive
Article 4 – paragraph 2
Article 4 – paragraph 2
Amendment 613 #
Proposal for a directive
Article 4 – paragraph 2 – point a
Article 4 – paragraph 2 – point a
Amendment 622 #
Proposal for a directive
Article 4 – paragraph 2 – point b
Article 4 – paragraph 2 – point b
Amendment 637 #
Proposal for a directive
Article 4 – paragraph 2 – point c
Article 4 – paragraph 2 – point c
Amendment 642 #
Proposal for a directive
Article 4 – paragraph 2 – point d
Article 4 – paragraph 2 – point d
Amendment 652 #
Proposal for a directive
Article 4 – paragraph 2 – point e
Article 4 – paragraph 2 – point e
Amendment 666 #
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 start-ups, avoiding capturing the genuine self-employed and supporting the sustainable growth of digital labour platforms. In particular they shall:
Amendment 679 #
Proposal for a directive
Article 4 – paragraph 3 – point b
Article 4 – paragraph 3 – point b
(b) develop guidance for digital labour platforms (including start-ups), persons performing platform work and social partners to understand and implement the legal presumption and how it works, including on the procedures for rebutting it by means of a reversal of the burden of proof in accordance with Article 5;
Amendment 686 #
Proposal for a directive
Article 4 – paragraph 3 – point b a (new)
Article 4 – paragraph 3 – point b a (new)
(ba) develop guidance and establish procedures for competent administrative authorities and institutions to proactively apply the legal presumption and refer cases to and share data and information with other relevant authorities in order to apply the legal presumption in the processing and registration of contractual relations and social security-related data;
Amendment 690 #
Proposal for a directive
Article 4 – paragraph 3 – point c
Article 4 – paragraph 3 – point c
(c) develop guidance forelines for competent national enforcement authorities to proactively targetidentify, target, pursue and pursuenish non-compliant digital labour platforms;
Amendment 700 #
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. To that end, Member States must ensuringe that such controls and inspections are proportionate and non- discriminatorlabour inspectors have the necessary means to carry out controls and inspections properly.
Amendment 709 #
Proposal for a directive
Article 4 – paragraph 3 – point d a (new)
Article 4 – paragraph 3 – point d a (new)
(da) ensure that each platform worker is registered with the labour inspectorate.
Amendment 720 #
Proposal for a directive
Article 4 – paragraph 4
Article 4 – paragraph 4
4. With regard to contractuThe legal prelationships entered into before and still ongoing on the date set out in Article 21(1), the legal presumption referred to in paragraph 1 shall only apply to the period starting from that datesumption of a salaried employment relationship referred to in paragraph 1 shall apply immediately to the future effects of ongoing contracts.
Amendment 724 #
Proposal for a directive
Article 4 – paragraph 4 a (new)
Article 4 – paragraph 4 a (new)
4a. The legal presumption of salaried employment referred to in paragraph 1 shall, as a procedural rule, apply immediately to ongoing proceedings.
Amendment 734 #
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 legal presumption of a salaried employment relationship referred to in Article 4 in legal or administrative proceedings or both.
Amendment 743 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
Where the digital labour platform argues that the contractuchallenges the legal prelationship 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. Suchsumption of a salaried employment relationship before a judge, it shall fall to the platform to substantiate its objection. Until the exhaustion of remedies, proceedings shall not have suspensivd the effect on the applications of the legal presumption.
Amendment 754 #
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 Justicechallenges the presumption of salaried employment, the digital labour platform shall be required to assist the proper resolution of the proceedings, notably by providing all relevant information held by it.
Amendment 760 #
Proposal for a directive
Article 5 – paragraph 3 a (new)
Article 5 – paragraph 3 a (new)
The Member States must designate the administrative or judicial authorities responsible for deciding on the request for a rebuttal filed by one of the parties. Their decision shall reflect the reality of the relationship between the worker and the digital labour platform. The labour inspectorate or other law enforcement authorities should be charged with examining the rebuttal filed by the party.
Amendment 763 #
Proposal for a directive
Article 5 – paragraph 3 b (new)
Article 5 – paragraph 3 b (new)
A rebuttal of the presumption of an employment relationship may be assumed where all the following conditions are met: (a) the person performs the work without supervision and without instruction from another party, both on the basis of the contract governing the work and in view of the facts; (b) the worker performs activities which are not part of the activities normally carried out by the employer; (c) the person performing the work is normally engaged in a trade, profession or self-employed activity of the same nature as the work performed.
Amendment 764 #
Proposal for a directive
Article 5 – paragraph 3 c (new)
Article 5 – paragraph 3 c (new)
Where digital labour platforms voluntarily decide to pay for social protection, accident insurance or any other kind of insurance, training courses or any similar benefits for the self- employed persons working through them, such decisions shall be deemed indicative of an employment relationship.
Amendment 766 #
Proposal for a directive
Article 5 – paragraph 3 d (new)
Article 5 – paragraph 3 d (new)
Amendment 767 #
Proposal for a directive
Article 5 – paragraph 3 e (new)
Article 5 – paragraph 3 e (new)
In Member States where an administrative procedure is in place for rebutting the presumption of a salaried employment relationship, workers must not be prevented from challenging the rebuttal decision or appealing before a court.
Amendment 768 #
Proposal for a directive
Article 5 – paragraph 3 f (new)
Article 5 – paragraph 3 f (new)
In the event of a rebuttal of the presumption of a salaried employment relationship, the worker shall not be required to repay the amounts or entitlements received as a result of that presumption.
Amendment 771 #
Proposal for a directive
Chapter II a (new)
Chapter II a (new)
Chapter IIa PROMOTING THE RIGHT TO COLLECTIVE BARGAINING Article 5a Persons performing platform work shall enjoy the full right to join a trade union, to collective organisation and to collective bargaining. Digital labour platforms must adhere to pay rates and other working conditions established by law or in collective agreements for the sector and/or the geographical area concerned and, where applicable, to the statutory minimum wage, as well as uphold Union, national and international labour and social law. This Directive shall be without prejudice to the full respect of the autonomy of social partners, as well as their right to negotiate and conclude collective agreements. Member States shall: (a) encourage the creation of social partners and strengthening of their capacity to engage in collective bargaining to establish the working conditions of persons performing platform work; (b) prohibit and take measures to prevent any acts that violate the right of persons performing platform work to join a trade union or which prevent them from doing so, or which discriminate against workers and trade union representatives who participate or wish to participate in collective bargaining; (c) see to it that employers, in view of the size and capacity of the company concerned, provide trade union representatives with the right information and infrastructure to perform their collective bargaining duties; (d) make sure that trade unions have the right to access the workplace and workers, including digitally, to meet and contact workers individually or collectively, with the aim of organising workers, negotiating wages on their behalf and representing them.
Amendment 772 #
Proposal for a directive
Article 6 – title
Article 6 – title
Transparency on and use of automated and semi-automated monitoring and decision- making systems
Amendment 773 #
Proposal for a directive
Article 6 – paragraph -1 (new)
Article 6 – paragraph -1 (new)
-1. The rights referred to in Chapter III shall apply to persons working through a digital platform whose work is organised by automated or semi- automated means and algorithms.
Amendment 774 #
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, Member States shall require digitalthat algorithms are consistent with labour platforms to inform platform workers of: w, since these algorithms, whether they are automated or semi-automated, serve as rules of procedure and organise the work. Platform workers, via their representatives, must have the power of co-decision over algorithmic systems and have a say in and be able to review the systems that impact their working conditions at annual negotiations, in particular via:
Amendment 786 #
Proposal for a directive
Article 6 – paragraph 1 – point b
Article 6 – paragraph 1 – point b
(b) automated decision-making systems which are used to take or support decisions that significantly affect those platform workers’ working conditions, in particular their recruitment, their access to work assignments, their earnings, their occupational safety and health, their working time, their promotion, their ranking and their contractual status, including the restriction, suspension or termination of their account.
Amendment 788 #
Proposal for a directive
Article 6 – paragraph 1 b (new)
Article 6 – paragraph 1 b (new)
1b. The labour inspectorate and/or occupational health and safety authorities must also have access to information on the algorithm, in particular the points listed in paragraph 2.
Amendment 789 #
Proposal for a directive
Article 6 – paragraph 1 c (new)
Article 6 – paragraph 1 c (new)
1c. Any predictive system, software or process that makes use of computations to aid or replace decisions or management decisions that affect the opportunities, access, freedoms, rights and/or safety of workers or that might have a bearing on a decision concerning work relations or the working conditions of platform workers must be monitored to remove any bias. Trade union representatives must be informed of and consulted on the parameters and the way they operate, how they were set up, and the way in which human oversight is assured.
Amendment 790 #
Proposal for a directive
Article 6 – paragraph 1 d (new)
Article 6 – paragraph 1 d (new)
1d. Member States shall also require that digital labour platforms inform trade unions of, and consult them on, the use of the monitoring and decision-making systems mentioned in points a) and b), and that the matter is subject to collective bargaining. In accordance with Regulation (EU) 2016/679, a ‘data controller’ (the employer) must seek the views of data subjects or their representatives, where appropriate, when carrying out an assessment of the impact of access to or the processing of personal data.
Amendment 797 #
Proposal for a directive
Article 6 – paragraph 2 – point b – point iii a (new)
Article 6 – paragraph 2 – point b – point iii a (new)
(iiia) the functioning and mode of operation of elements that affect the employment relationship, in particular recruitment, access to work assignments, earnings, health and safety, working time, promotion, ranking and the restriction, suspension or termination of accounts;
Amendment 798 #
Proposal for a directive
Article 6 – paragraph 2 – point b – point iv
Article 6 – paragraph 2 – point b – point iv
(iv) the grounds for decisions to restrict, suspend or terminate the platform worker’s account, to refuse the remuneration for work performed by the platform worker, on the platform worker’s contractual status or any decision with similar effects. Such decisions should nevertheless be in line with the measures under which employers state the grounds for disciplinary action and dismissals, and the reasoning behind the decisions should be subject to collective bargaining.
Amendment 802 #
Proposal for a directive
Article 6 – paragraph 3
Article 6 – paragraph 3
3. Digital labour platforms shall provide the information referred to in paragraph 2workers and their trade union with the information referred to in paragraph 2, in advance and in time for a thorough examination thereof, in the form of a document which may be in electronic format. They shall provide that information at the latest on the first working day, as well as in the event of substantial changes and at any time upon the platform workers’ request. The information shall be presented in a concise, transparent, intelligible and easily accessible form, using clear and plain language. Digital labour platforms shall be accountable to the workers and their representatives for any changes to the working conditions. Elements of the algorithm relating to management of the work which cannot be explained to the workers and their trade unions should be banned.
Amendment 811 #
Proposal for a directive
Article 6 – paragraph 5 – introductory part
Article 6 – paragraph 5 – introductory part
5. Digital labour platforms shall not processmust comply with Regulation (EU) 2016/679. Under this regulation, indiscriminate monitoring of employees is illegal and therefore digital labour platforms shall have no access to, neither shall they collect and/or process, any personal data concerning platform workers that are not intrinsically connected to and strictly necessary for the performance of the contract between the platform worker and the digital labour platform. Algorithmic management must not, in any circumstances, facilitate discriminatory practices against workers. In particular they shall not:
Amendment 816 #
Proposal for a directive
Article 6 – paragraph 5 – point a
Article 6 – paragraph 5 – point a
(a) access, collect and/or process any personal data on the emotional or psychological state of the platform worker;
Amendment 817 #
Proposal for a directive
Article 6 – paragraph 5 – point b
Article 6 – paragraph 5 – point b
(b) access, collect and/or process any personal data relating to the health of the platform worker, except in cases referred to in Article 9(2), points (b) to (j) of Regulation (EU) 2016/679;
Amendment 820 #
Proposal for a directive
Article 6 – paragraph 5 – point c
Article 6 – paragraph 5 – point c
(c) access, collect and/or process any personal data in relation to private conversations, including exchanges with platform workers’ representatives; including conversations between workers and between trade unions and workers with a view to organising trade union activity, including collective action;
Amendment 824 #
Proposal for a directive
Article 6 – paragraph 5 – point d
Article 6 – paragraph 5 – point d
(d) collectneither access, nor collect and/or process any personal data while the platform worker is not offering or performing platform work.
Amendment 827 #
Proposal for a directive
Article 6 – paragraph 5 – point d a (new)
Article 6 – paragraph 5 – point d a (new)
(da) access, collect and/or process data collected by automated and semi- automated systems with a view to suspending or terminating the employment relationship between the digital labour platform and the worker.
Amendment 830 #
Proposal for a directive
Article 6 – paragraph 5 – point d b (new)
Article 6 – paragraph 5 – point d b (new)
(db) certain monitoring tools, such as biometric checks or constant video surveillance to monitor performance, should be banned.
Amendment 838 #
Proposal for a directive
Article 6 – paragraph 5 a (new)
Article 6 – paragraph 5 a (new)
5a. The platforms must give workers and their representatives access to their data arising from Regulation (EU) 2016/679 so they can verify compliance with the latter.
Amendment 839 #
Proposal for a directive
Article 6 – paragraph 5 b (new)
Article 6 – paragraph 5 b (new)
5b. If using automated or semi- automated decision-making systems, and without prejudice to the possible right of workers and their representatives to access the technical details of how they operate, the company shall, proactively and every time that a system affecting the workers is featured, provide the workers and their representatives with an algorithmic prospectus containing at least the following information: the system developer and operator (and their legal roles as data controller/data processor), a description of the type of system (recommendation, risk assessment, supervised/unsupervised system), a description of the system’s aims, details of training data used, details of variables used, information on the performance of the mandatory impact study and/or independent external audit (and access to the findings thereof), an analysis of the percentage of false positives and false negatives foreseen or detected by the developer, and information on the remedies available to those affected.
Amendment 843 #
Proposal for a directive
Article 7 – title
Article 7 – title
Human monitoring of automated or semi- automated systems
Amendment 846 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
1. Member States shall ensure that digital labour platforms regularly monitor and evaluate the impact of individual decisions taken or supported by automated monitoring and decision-making systems, as referred to in Article 6(12), on working conditions. Member States shall safeguard workers’ right of co-decision, via their representatives, in algorithmic systems, and ensure human intervention in or human oversight of all decisions impacting working conditions (for example, workflow, working time, pay and promotion), particularly when it comes to key decisions, like those concerning disciplinary action, dismissals and profiling models.
Amendment 858 #
Proposal for a directive
Article 7 – paragraph 2 – subparagraph 1
Article 7 – paragraph 2 – subparagraph 1
They shall not use automated monitoring and decision-making systems in any manner that violates labour law, puts undue pressure on platform workers or otherwise puts at risk the physical and mental health of platform workers.
Amendment 869 #
Proposal for a directive
Article 7 – paragraph 3 a (new)
Article 7 – paragraph 3 a (new)
3a. Algorithm-based predictive actions shall be deemed high-risk processes and therefore assessed as part of each company’s occupational risk prevention plan.
Amendment 870 #
Proposal for a directive
Article 8 – title
Article 8 – title
Human review of significant decisions
Amendment 871 #
Proposal for a directive
Article 8 – paragraph 1 – introductory part
Article 8 – paragraph 1 – introductory part
1. Member States shall ensure that platform workers have the right to obtain an explanation from the digital labour platform for any decision taken or supported by an automated decision- making system that significantly affects the platform worker’s working conditions, as referred to in Article 6(1), point (b). In particular, Member States shall ensure that digital labour platforms provide platform workers with access to a contact person designated by the digital labour platform to discuss and to clarify the facts, circumstances and reasons having led to the decision. Digital labour platforms shall ensure that such contact persons have the necessary competence, training and authority to exercise that function.
Amendment 878 #
Proposal for a directive
Article 8 – paragraph 1 – subparagraph 1
Article 8 – paragraph 1 – subparagraph 1
Digital labour platforms shall provide the platform worker with a written statement of the reasons for any decision taken or supported by an automated decision- making system to restrict, suspend or terminate the platform worker’s account, any decision to refuse the remuneration for work performed by the platform worker, any decision on the platform worker’s contractual status or any decision with similar effects. The explanation and human review of disciplinary action and dismissals provided for in this article shall not preclude the digital labour platforms from complying with labour law and the applicable collective agreements governing the statement of grounds for such disciplinary action.
Amendment 886 #
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, theyorkers and their trade unions 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 week of receipt of the request. This explanation should nevertheless be complementary to the application of the existing obligation for employers to state the grounds for disciplinary action and dismissals.
Amendment 888 #
Proposal for a directive
Article 8 – paragraph 2 – subparagraph 1
Article 8 – paragraph 2 – subparagraph 1
Amendment 901 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
1. Without prejudice to the rights and obligations under Directive 2002/14/EC and 2009/38/EC, Member States shall ensure information and consultation of platform workers’ representatives or, where there are no such representatives, of the platform workers concerned by digital labour platforms, on decisions likely to lead to the introduction of or substantial changes in the use of automated monitoring and decision-making systems referred to in Article 6(1), in accordance with this Article. The right of workers to be informed and consulted, of access to information for representatives and the relevant authorities, and of access to evidence must be granted irrespective of whether the algorithm is run by the digital labour platform or a sub-contractor that sells its management services to the platform.
Amendment 909 #
Proposal for a directive
Article 9 – paragraph 1 a (new)
Article 9 – paragraph 1 a (new)
1a. The labour inspectorate must have access to the whole content of the algorithm so that it can check the algorithmic management criteria.
Amendment 914 #
Proposal for a directive
Article 9 – paragraph 3
Article 9 – paragraph 3
3. The platform workers’ representatives or the platform workers concerned may be assisted by an expert of their choice, in so far as this is necessary for them to examine the matter that is the subject of information and consultation and formulate an opinion. Where a digital labour platform has more than 500 platform workers in a Member State, the expenses for the expert shall be borne by the digital labour platform, provided that they are proportionate.
Amendment 921 #
Proposal for a directive
Article 9 – paragraph 3 a (new)
Article 9 – paragraph 3 a (new)
3a. The approval of the trade union and/or the labour inspectorate should be a prerequisite for the introduction of any automated or semi-automated monitoring or decision-making system permitted under Article 6.
Amendment 923 #
Proposal for a directive
Article 10 – paragraph 1
Article 10 – paragraph 1
1. Article 6, Article 7(1) and (3), Article 8 and Article 815 and OSH provisions on transparency and human oversight shall also apply to persons performing platform work who do not have an employment contract or employment relationship.
Amendment 925 #
Proposal for a directive
Article 10 a (new)
Article 10 a (new)
Article 10a Data portability Persons working through a digital platform shall be granted the right to data portability, including in relation to reputational data, and the right to not transport that data should that be their wish, as well as the right to rectification, to erasure and to be forgotten. Digital labour platforms shall make their reputational systems interoperable to enable these data transfers.
Amendment 928 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
Without prejudice to Regulations (EC) No 883/200469 and 987/200970 of the European Parliament and of the Council, Member States shall require digital labour platforms which are employers to declare work performed by platform workers to the competent labour and social protection authorities of the Member State in which the work is performed and to share relevant data with those authorities, in accordance with the rules and procedures laid down in the law of the Member States concerned, and to meet their tax and social protection obligations under national law. __________________ 69 Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ L 166, 30.4.2004, p. 1). 70 Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (OJ L 284, 30.10.2009, p. 1).
Amendment 937 #
Proposal for a directive
Article 12 – paragraph -1 (new)
Article 12 – paragraph -1 (new)
-1. Platform workers should enjoy the right to be informed and consulted in accordance with the above-mentioned Directive 2002/14/EC establishing a general framework for informing and consulting employees. Self-employed persons working through a digital labour platform should also be granted the right to be informed, in particular as regards algorithmic transparency.
Amendment 939 #
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 exercise their representative functions, Member States shall ensure that digital labour platforms make the following information available to them, regardless of the country in which the platform is established:
Amendment 947 #
Proposal for a directive
Article 12 – paragraph 1 – point b
Article 12 – paragraph 1 – point b
(b) the general terms and conditions applicable to those contractual relationships, provided that those terms and conditions are unilaterally determined by the digital labour platform and apply to a large number of contractual relationships.
Amendment 952 #
Proposal for a directive
Article 12 – paragraph 2
Article 12 – paragraph 2
2. The information shall be provided for each Member State in which persons are performing platform work through the digital labour platform concerned. The information shall be updated at least every six months, and, as regards paragraph 1, point (b), each time the terms and conditions are modified after informing and consulting the trade unions and workers.
Amendment 957 #
Proposal for a directive
Article 12 – paragraph 3
Article 12 – paragraph 3
3. Labour, social protection and other relevant authorities and workers’ representatives of persons performing platform work 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 961 #
Proposal for a directive
Article 12 a (new)
Article 12 a (new)
Article 12a Due diligence for platforms 1. In order to combat human and labour rights violations by sub- contractors and along platforms’ value chains, Member States shall subject them to due diligence. 2. Platforms are required to take all necessary and proportionate measures to prevent human and labour rights violations along their value chains, to detect them and to respond accordingly as and when they occur. 3. Member States shall determine the conditions in which platforms shall be held criminally, civilly or administratively liable for violations of those rights along their value chains, as well as the remedies available to victims.
Amendment 962 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
Without prejudice to Articles 79 and 82 of Regulation (EU) 2016/679, or to existing labour legislation concerning the termination of employment contracts or any other labour law, Member States shall ensure that persons performing platform work, including those whose employment or other contractual relationship has ended, have access to quick, free, fair, effective and impartial litigation or dispute resolution and a right to redress, including adequate compensation, in the case of infringements of their rights arising from this Directive. The autonomy of the social partners in decisions relating to dispute resolution and the right to appeal must also be upheld.
Amendment 970 #
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 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,and in accordance with Directive 2002/14/EC, Member States shall ensure that workers’ representatives 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 977 #
Proposal for a directive
Article 14 – paragraph 2
Article 14 – paragraph 2
2. Representatives of persons performing platform work shall also have the right to act on behalf or in support of several persons performing platform work, with those persons’ approval.
Amendment 980 #
Proposal for a directive
Article 14 – paragraph 2 a (new)
Article 14 – paragraph 2 a (new)
2a. Persons performing platform work should be entitled to take industrial action.
Amendment 986 #
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 create 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, in a visible and operational manner, 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.
Amendment 990 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
1. Member States shall ensure that in proceedings concerning a claim regarding correct determination of the employment status of persons performing platform work, national courts or competent authorities are able to order the digital labour platform to disclose any relevant evidence which lies in their control, regardless of the country in which the digital labour platform is established and irrespective of the fact that platforms outsource some aspects of algorithmic management to contractors in another country.
Amendment 994 #
Proposal for a directive
Article 17 – paragraph 1
Article 17 – paragraph 1
Member States shall introduce the measures necessary to protect persons performing platform work, including those who are their representatives, from any adverse treatment by the digital labour platform and from any adverse consequences resulting from a complaint lodged with the digital labour platform or resulting from any proceedings initiated with the aim of enforcing compliance with the rights provided for in this Directive. These measures should include the creation of accessible and effective complaint mechanisms. Undocumented third-country nationals should have access to justice without fear of reprisal or risk of deportation. This requires the establishment of a division between work to enforce labour legislation and the courts and migration control mechanisms.
Amendment 996 #
Proposal for a directive
Article 18 – paragraph 1
Article 18 – paragraph 1
1. Member States shall take the necessary measures to prohibit the dismissal or its equivalent (including long- term suspensions, which may cause harm without equating to a dismissal) and all preparations for dismissal or its equivalent of persons performing platform work, on the grounds that they have exercised the rights provided for in this Directive.
Amendment 997 #
Proposal for a directive
Article 18 – paragraph 1 a (new)
Article 18 – paragraph 1 a (new)
1a. Digital labour platforms must comply with the measures applicable to employers as regards stating the grounds for disciplinary action and dismissal.
Amendment 998 #
Proposal for a directive
Article 18 – paragraph 3 a (new)
Article 18 – paragraph 3 a (new)
3a. This article on protection from dismissal shall also apply to genuinely self-employed persons, on the basis of the protection against wrongful termination of contracts afforded to self-employed commercial agents under Union law.
Amendment 1002 #
Proposal for a directive
Article 19 – paragraph 1 a (new)
Article 19 – paragraph 1 a (new)
1a. The authorities referred to in paragraph 1 and the national labour and social protection authorities shall, where relevant, cooperate in the application of this Directive, within the remit of their respective competences, in particular where questions arise concerning the impact of automated monitoring and decision-making systems on working conditions.
Amendment 1003 #
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 information obtained in the context of inspections or investigations, either upon request or at their own initiative. This cooperation should also include cross-border cooperation in the form of assistance, support and the exchange of information between authorities to achieve effective cross- border application. The labour inspectorate or the other law enforcement authorities should be fully equipped and sufficiently resourced to carry out the relevant investigations filed by the digital labour platform.
Amendment 1008 #
Proposal for a directive
Article 19 – paragraph 2 a (new)
Article 19 – paragraph 2 a (new)
2a. Platform workers should have the right to complain against digital labour platforms, including in cross-border disputes, to which the Rome I and Brussels I Regulation should apply.
Amendment 1009 #
Proposal for a directive
Article 19 – paragraph 3
Article 19 – paragraph 3
3. Member States shall lay down the rules on penalties applicable to infringements of national provisions adopted pursuant to provisions of this Directive other than those referred to in paragraph 1 or of the relevant provisions already in force concerning the rights which are within the scope of this Directive. The penalties provided for shall be effective, proportionate and dissuasive. The penalties provided for should be subject to review throughout the application of the directive, to ensure they remain an effective deterrent. Digital labour platforms that break the law should, among other penalties, be denied access to public money and public procurement.
Amendment 1010 #
Proposal for a directive
Article 19 – paragraph 3 a (new)
Article 19 – paragraph 3 a (new)
3a. For the purposes of applying the law, and without prejudice to the rights to information under Article 11 and Article 12.2, digital labour platforms should be entered in the appropriate public business register, along with information on all digital labour platforms operating in the country. This information should include, inter alia, the company’s headcount, status and turnover.
Amendment 1016 #
Proposal for a directive
Article 20 – paragraph 2
Article 20 – paragraph 2
2. This Directive shall not affect the Member States’ prerogative to apply or to introduce laws, regulations or administrative provisions which are more favourable to platform workers, or to encourage or permit the application of collective agreements which are more favourable to platform workers, in line with the objectives of this Directive. As regards persons performing platform work who are not in an employment relationship, this paragraph shall only apply insofar as such national rules are compatible with the rules on the functioning of the internal market.