- Hans Weber
- September 29, 2023
Czech presidency proposes derogations to the rebuttable presumption on worker status
In its first compromise to the platform worker directive, the Czech presidency of the EU Council kept the Commission’s criteria for the rebuttable presumption of the worker status but introduced important derogations.
The compromise will be discussed at the Social Question Working Party on 26 and 27 September. The text covers the proposed directive’s entirety and introduces significant changes to the part on algorithm management.
“Delegations will find attached a presidency compromise proposal covering the whole operational part of the proposal. The recitals have been taken out as they do not reflect the changes made to the operational part of the text. They will be aligned in a future Presidency compromise proposal,” reads the compromise, seen by EURACTIV.
For the Czechs, the digital labour platform definition must include automated monitoring or decision-making systems. They also introduced the concept of ‘intermediary’, recruitment agencies that put in touch with the workers and the platforms.
Member states will need to ensure that the intermediary, platform or both are covered under the directive, stressing they should “ensure that the use of intermediaries does not lead to a reduction in the protection afforded to persons performing platform work.”
The compromise text keeps the Commission’s overall approach to the legal presumption of employment status, namely that meeting at least two of a set of five criteria would automatically reclassify a platform worker as an employee, although the wording was slightly tweaked.
Importantly though, the presidency added a caveat. According to a new paragraph, if a platform worker met the criteria of setting the maximum limit for remuneration and making requirements regarding the workers’ appearance, such as wearing a uniform, the legal presumption would not automatically be triggered.
In other words, these two specific criteria would not suffice; a third one would be needed to trigger the presumption. Obligations meant to ensure the safety and health of a worker, such as wearing a helmet for a delivery biker, are not considered for the criteria.
Derogations to the presumption
The Czechs also added a paragraph specifying the legal presumption applies in all legal proceedings where the employment status of the platform worker is a central or preliminary aspect. However, it will not apply to tax and criminal proceedings, whereas the “member states may decide not to apply the presumption in social security proceedings.”
The text confirms the Commission’s original idea that if the platforms do not consider the contractual relationship to be that of an employee, it will fall on them to dispute it in court. However, the compromise includes the possibility of workers contesting their status, in which case the platforms would be required to assist in the proceedings.
In addition, when verifying compliance with the legislation, the competent national authorities would “have the discretion not to apply the presumption, if it is manifest that the presumption would be successfully rebutted.”
Finally, Prague is proposing that, when a platform is contesting a decision on the employment status of its workers, the legal proceedings should not have a suspensive effect.
The Czechs have added transparency requirements for automated monitoring systems that supervise or evaluate the worker’s performance and those that collect data on their work.
The text includes a reference to the EU’s General Data Protection Regulation for what concerns the processing of data regarding the emotional and health state of the worker, private conversations and non-work-related activities.
The presidency strengthened the human review of AI-powered systems impacting the worker by stressing that reviewers must be able to override automated decisions and be safeguarded from the termination of their contracts for exercising their functions.
When an automated system leads to a decision to suspend the worker’s account, payment or anything related to the contractual status, the worker will have the right to contest the decision. The platform will have to provide a written reply within two weeks.
If the decision proves unjustified, Prague proposes that within two weeks, the platform would have to remedy the decision or, where not possible, pay for the damage and modify the automated system that led to it.
The Czechs added platforms should “not use automated monitoring and decision-making systems in any manner that puts undue pressure on platform workers or otherwise puts at risk the physical and mental health of platform workers.”
The compromise would require EU countries to support the effective implementation of the legal presumption by putting in place a series of measures, notably in the form of guidance for the platforms, workers and social partners to understand the provisions and how they can be disputed.
Similarly, guidance should also be provided to the national authorities “to proactively target and pursue non-compliant digital labour platforms” and to the labour inspectorates to ensure that their field inspections are proportionate and non-discriminatory.