Is the Platform Work Directive a win for workers?

3 min read

After years of wrangling between and within the EU institutions, the Platform Work Directive was finally agreed on 11 March. Greece and Estonia broke ranks with France and Germany, depriving the EU’s two big heavy-weights of their ‘blocking minority’ over the regulation. The final text, negotiated between the Belgian Presidency of the Council and European Parliament (EP) interlocutors, is in every sense a compromise, with both sides having to accept that their own distinct proposals in relation to how to decide on the employment status of platform workers would never see the light of day.

The European Parliament proposal, backed overwhelmingly by MEPs in February 2023, had sought to establish a general presumption of employment. This would have been a highly flexible tool by which labour inspectorates and courts could judge whether a platform worker was bogus self-employed based on the real facts of the working relationship. Spain’s ‘Rider Law’, passed in 2021, is based on such a general approach. On the otherhand, the Council proposal, agreed in June 2023, had proposed a rigid set of seven criteria for triggering the presumption of employment, for which three would have been necessary for a platform worker to be considered an employee. The Council proposal also contained opt-outs for member-states which did not believe there should be a presumption of employment mechanism at all, such as France. The platform lobby, which has been extremely active in Brussels in seeking to influence this Directive, argued that the EP approach would lead to an automatic re-classification of platform workers. This was and is erroneous.

Wrongful employment classification is not resolved by legislation alone: it requires a labour inspectorate or a court (or both) to investigate a specific workplace, identify the facts of the working relationship and make a ruling. This is what has happened in Spain with tens of thousands of food delivery couriers, as the two main food delivery platforms in the country, Glovo and Uber Eats, have refused to employ them despite the Rider Law.

Unions were much more on point with their criticisms of the Council’s proposed criteria. They argued that the criteria set such a high-bar for proving employment status that it would actually make it more difficult for platform workers’ to prove they are employees than the current status quo, where they go to court to make their case (and usually win). Moreover, carving a set of criteria in stone is a difficult task when digital labour platforms are constantly evolving their models. The risk of even a good set of criteria is that the platforms update their models and find ways to avoid them, without relinquishing the real control they exercise over their workers in practise. In the end, the Council and the Parliament agreed to disagree. “The modalities of the legal presumption, should be set out by the Member States,” the final text states.

What this means is that there will be no harmonisation of platform work standards across the EU, the original purpose of the Directive. In each country - based on national definitions of an employee, jurisprudence and the politics guiding each member-states configuration of the legal presumption - the question of employment status in the platform economy will be resolved differently. This is a Platform Work Directive-lite.

Does that mean the Directive is a failure for the labour movement? Absolutely not. First of all, outcomes far worse than this were very possible. If the Council had got its way and imposed a high-bar for employment status in the platform economy, it would have made it harder not easier for gig workers’ to access employment rights. Secondly, there is now a requirement for all 27 member-states to establish a presumption of employment, when currently only two countries (Belgium and Portugal) have done so off their own volition. Unions will campaign in all of the capitals of Europe for a general presumption of employment along the lines of Spain’s Rider Law. Finally, the less controversial part of this Directive, on rights relating to the algorithmic management of work, are a significant advance. Platform workers in the EU will be the first anywhere in the world to have limits on platforms’ processing of their personal data, to have ‘robo-firing’ banned and to have the right to an explanation over the suspension or termination of their account.

Uber has responded to the Directive by claiming that the EU has “voted to maintain the status quo”. That is certainly what they will be fighting for when every member-state transposes this Directive into national law in the next two years. Without determined opposition, Uber could well achieve that goal. However, over the four years that this Directive has been in play, a movement of platform workers’ has developed which has been effective in pushing back against the platform lobby. That movement met in Brussels in February and agreed to establish an independent network which will keep the fight going regardless of the outcome of the Directive. Now that we know the outcome, the platform workers’ movement is going to have a lot of work to do.

The fight for platform workers’ rights in Europe isn’t over. In fact, it might only have just begun.