Changes from report parliamentary committee draft to plenary report

AddedRecital 43: (43) An extensive system of enforcement provisions for the social acquis in the Union has been developed, elements of which should be applied to this Directive in order to ensure that persons performing platform work have access to appropriate, timely, effective and impartial dispute resolution and a right to redress, including adequate compensation. Access to such dispute resolution and right to redress should be free of charge at least for persons who do not have sufficient means. Specifically, having regard to the fundamental nature of the right to effective legal protection, persons performing platform work should continue to enjoy such protection even after the end of the employment or other contractual relationship giving rise to an alleged breach of rights under this Directive.

RemovedRecital 49: (49) Since the objective of this Directive, namely to improve working conditions in platform work and work subject to automated or semi-automated monitoring and decision-making systems, cannot be sufficiently achieved by the Member States but can rather, by reason of the need to establish common minimum requirements, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

AddedRecital 44: (44) Representatives of persons performing platform work, including trade unions, should be able to represent one or several persons performing platform work in any judicial or administrative procedure to enforce any of the rights or obligations arising from this Directive. Bringing claims on behalf of or supporting several persons performing platform work is a way to facilitate proceedings that would not have been brought otherwise because of procedural and financial barriers or a fear of reprisals.

RemovedRecital 50: (50) This Directive lays down minimum requirements, thus leaving untouched Member States’ prerogative to introduce and maintain provisions which are more favourable for platform workers and workers subject to automated or semi-automated monitoring and decision-making systems. Rights acquired under the existing legal framework should continue to apply, unless more favourable provisions are introduced by this Directive. The implementation of this Directive cannot be used to reduce existing rights set out in existing Union or national law in this field, nor can it constitute valid grounds for reducing the general level of protection in the field covered by this Directive.

AddedRecital 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. In some areas prevalent in platform work, such as digital remote services or design work, many Member States lack established workers representatives' organisations or trade unions. In accordance with national law and practice, persons performing platform work should be free to organise, choose representatives and be taken into account in social dialogue and collective bargaining processes, regardless of their employment status. Persons performing platform work can also be exposed to the increased risk of violence, including gender-based violence and harassment. It is therefore necessary to create private, secure, possibly through encryption, digital communication and reporting 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 and report incidents of violence or harassment. Digital labour platforms should create such communication and reporting channels within their digital infrastructure or through similarly effective means, while respecting the protection of personal data and refraining from accessing or monitoring those communications. For the same reasons, collective bargaining should be promoted by ensuring…

RemovedArticle 1 – paragraph 1: 1. The purpose of this Directive is to improve the working conditions: / (a) of persons performing platform work by ensuring the correct determination of their employment status, by promoting transparency, fairness, safety and accountability in algorithmic management in platform work and by improving transparency in platform work, including in cross-border situations; / (b) of any other worker subject to automated or semi-automated monitoring and decision-making systems, by promoting transparency, fairness, safety and accountability in algorithmic management.

AddedRecital 46: (46) In administrative or judicial proceedings regarding the correct determination of the employment status of persons performing platform work, the elements regarding the organisation of work allowing to establish the employment status and in particular whether the digital labour platform controls or directs certain elements of the performance of work, may be in the possession of the digital labour platform and not easily accessible to persons performing platform work and competent authorities. National courts or competent authorities should therefore be able to order the digital labour platform to disclose any relevant evidence which lies in their control, including confidential information, subject to effective measures to protect such information

RemovedArticle 1 – paragraph 2 – subparagraph 1 a (new): In accordance with Article 10a, rights laid down in this Directive pertaining to the transparency on, and use of, automated or semi-automated monitoring and decision-making systems, the human monitoring of automated or semi-automated systems, the human review of significant decisions and those related to information and consultation and to the protection of natural persons in relation to the processing of personal data in the context of algorithmic management also apply to every worker in the Union subject to automated or semi-automated monitoring and decision-making systems.

AddedRecital 47: (47) Given that Article 6, Article 7(1) and (3) and Article 8 of this Directive provide for specific rules in the context of platform work to ensure the protection of employees' personal data within the meaning of Article 88 of Regulation (EU) 2016/679 and that Article 10 of this Directive applies those safeguards also in the case of persons without employment contract or employment relationship, the national supervisory authorities referred to in Article 51 of Regulation (EU) 2016/679 should be competent to monitor the application of those safeguards. Chapters VI, VII and VIII of Regulation (EU) 2016/679 should apply in terms of procedural framework for the enforcement of those safeguards as well as the communication and reporting channels established in Article 15 of this Directive. in particular as regards supervision, cooperation and consistency mechanisms, remedies, liability and penalties, including the competence to impose administrative fines up to the amount referred to in Article 83(5) of that Regulation.

RemovedArticle 1 – paragraph 3 a (new): 3a. Articles 6, 7, 8 and 9 shall also apply to every worker subject to automated or semi-automated monitoring and decision-making systems when performing work and to undertakings using those systems.

AddedRecital 48: (48) Automated monitoring and decision-making systems used in the context of platform work involve the processing of personal data and affect the working conditions and rights of persons performing platform work. They therefore raise issues of data protection law as well as labour and social protection law. Data protection supervisory authorities and relevant labour and social protection authorities should therefore cooperate, including at cross-border level, in the enforcement of this Directive, including by exchanging relevant information with each other, without prejudice to the independence of data protection supervisory authorities.

RemovedArticle 2 – paragraph 1 – point 1 – introductory part: (1) ‘digital labour platform’ means any natural or legal person using computer programs and procedures for intermediating, supervising or organising in any way the work performed by individuals, irrespective of whether that work is performed online or in a certain location;

AddedRecital 48 a (new): (48a) As the rights and freedoms of individuals can be seriously undermined by automated monitoring or decision-making systems, it is essential that affected individuals have meaningful access to reporting and redress mechanisms with the relevant national authority, be it the data protection authority or the labour inspectorate. They should be able to report possible infringements of this Directive to the competent national authority and have the right to be heard and to be informed about the outcome of their complaint and the right to a timely decision.

RemovedArticle 2 – paragraph 1 – point 1 – point a: deleted

AddedRecital 49: (49) Since one of the objective of this Directive, namely to improve working conditions in platform work, cannot be sufficiently achieved by the Member States but can rather, by reason of the need to establish common minimum requirements, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. Minimum harmonisation at Union level is necessary to improve working conditions in platform work and to protect workers’ rights across the Union considering the Union-wide dimension of many digital labour platforms, in order to avoid a Union-wide race to the bottom regarding working conditions and in order to create a level playing field for businesses that respect social standards. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

RemovedArticle 2 – paragraph 1 – point 1 – point b: deleted

AddedRecital 51: deleted

RemovedArticle 2 – paragraph 1 – point 1 – point c: deleted

AddedArticle 1 – paragraph 1: 1. The purpose of this Directive is to improve the working conditions of persons performing platform work by ensuring the correct determination of their employment status, by promoting transparency, fairness, human oversight, safety and accountability in algorithmic management in platform work and by improving transparency in platform work, including in cross-border situations, while fostering the sustainable growth of digital labour platforms in the Union.

Change 17

ChangedArticle 21 – paragraph 12 – pointsubparagraph 2: (2) ‘platform work’ means anyIn workaccordance organisedwith orArticle enabled10, throughrights alaid digitaldown labourin platformthis andDirective performedpertaining into the Unionprotection byof annatural individualpersons onin the basiscontext of a contractual relationship between thealgorithmic digitalmanagement labouralso platformapply andto theevery individual,person irrespectiveperforming ofplatform whetherwork ain contractualthe relationshipUnion existswho betweendoes thenot individualhave andan theemployment recipientcontract ofor theemployment service;relationship.

Change 18

AddedArticle 2 – paragraph 1 – point 1 – point b: (b) it is provided at the request of a recipient of the service or it involves the allocation of work through an open call;

AddedArticle 2 – paragraph 1 – point 1 – point c: (c) it involves the organisation of work performed by individuals, irrespective of whether that work is performed online or in a certain location and irrespective of the contractual designation of the relationship between that individual and the natural or legal person providing the service;

AddedArticle 2 – paragraph 1 – point 2: (2) ‘platform work’ means any work organised through a digital labour platform and performed in the Union by an individual, irrespective of whether a contractual relationship exists between the individual and the recipient of the service;

Article 2 – paragraph 1 – point 5: (5) ‘workers' representatives’ means representatives of recognised trade unions in accordance with national law and practice or other persons who are freely elected or who are designated by the workers in an organisation to represent them in accordance with national law or practices, or both;

Change 19

ChangedArticle 2 – paragraph 1 – point 5 a (new): (5a) ‘automated or‘representatives semi-automatedof monitoringpersons andperforming decision-makingplatform systems’work’ means any system,the software,representatives orof processrecognised thattrade involvesunions thein useaccordance ofwith data,national machineslaw and algorithms topractice makeor decisionsother orpersons useswho computationsare tofreely aidelected or replacewho managementare decisionsdesignated by the workers or policyby thatthe impactself-employed performing platform work organisation,in opportunities,an access,organisation freedoms,to rightsrepresent andthem safetyin ofaccordance workers;with national law or practices, or both;

Change 20

RemovedArticle 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 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.

AddedArticle 2 – paragraph 1 – point 5 b (new): (5b) ‘automated monitoring systems’ means any automated systems used for or supporting monitoring, supervising or evaluating the work performance;

RemovedArticle 3 – paragraph 1: 1. Member States shall have appropriate and effective 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 employment relationship.

AddedArticle 2 – paragraph 1 – point 5 c (new): (5c) ‘automated decision-making systems’ means any automated systems used to take decisions or support decision-making;

RemovedArticle 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. Where the existence of an employment relationship is established based on facts, the party or parties assuming the obligations of the employer in relation to labour law,including sectorial obligations established by collective agreements, income tax and financing of social protection shall be clearly identified in accordance with national legal systems, taking into account Article 12b on subcontracting liability.

AddedArticle 2 – paragraph 1 – point 5 d (new): (5d) ‘biometric data’ means biometric data as defined in Article 4, point (14), of Regulation (EU) 2016/679;

RemovedArticle 3 – paragraph 2 a (new): 2a. Digital labour platforms exerting the prerogatives of employers are undertakings and shall comply with the corresponding employers’ obligations under national law and collective agreements applicable in the sector of activity. Platform workers shall fully enjoy the status of worker in line with national law and sectorial collective agreements, including the right to join a trade union, to organise, and bargain collectively.

AddedArticle 2 – paragraph 1 – point 5 e (new): (5e) ‘biometrics-based data’ means data resulting from specific technical processing relating to physical, physiological, or behavioural features, signals, or characteristics of a natural person, such as facial expressions, movements, pulse frequency, voice, keystrokes or gait.

RemovedArticle 4 – paragraph 1 – introductory part: 1. The contractual relationship between a digital labour platform, and a person performing platform work through that platform shall be legally presumed to be an employment relationship. To that effect, Member States shall establish a framework of measures, in accordance with their national legal and judicial systems.

AddedArticle 2 – paragraph 2: 2. The definition of digital labour platforms laid down in paragraph 1, point (1), shall not include providers of a service whose primary purpose is to exploit or share assets or that allow private individuals to resell goods. 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.

RemovedArticle 4 – paragraph 1 – subparagraph 1: The legal presumption shall apply in all relevant administrative procedures and administrative and legal proceedings. Competent authorities and bodies responsible for registering administrative procedures, verifying compliance with or enforcing relevant legislation shall be able to rely on that presumption.

AddedArticle 3 – paragraph 1: 1. Member States shall have appropriate and effective procedures in place to verify and ensure the correct determination of the employment status of persons performing platform work, with a view to applying the presumption of an employment relationship in accordance with Article 4(1) for the purpose of ascertaining the existence of such a relationship as defined by applicable law, collective agreements or practice in force in the Member States and with consideration to the case-law of the Court of Justice, and ensuring that such persons enjoy the rights deriving from Union law applicable to workers.

AddedArticle 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. Where the existence of an employment relationship is established based on such facts, the party or parties assuming the obligations of the employer shall be clearly identified in accordance with national legal systems and with Article 12b, and shall dully fulfil those obligations.

AddedArticle 3 – paragraph 2 a (new): 2a. Where digital labour platforms are recognised to exercise the prerogatives of employers, they shall comply with the corresponding employers’ obligations under national law and collective agreements applicable in the sector of activity, including in relation to labour law, income tax and financing of social protection. Platform workers shall fully enjoy the status of worker in accordance with national law, collective agreements or practice in force in the Member States, including the rights to join a trade union, to organise, and to bargain collectively.

AddedArticle 3 – paragraph 2 b (new): 2b. This Directive applies in full to digital labour platforms exerting the function of temporary work agencies, in addition to Directive 2008/104/EC.

AddedArticle 4 – paragraph 1 – subparagraph 1: A person performing platform work shall be either a platform worker or a genuinely self-employed person. The contractual relationship between a digital labour platform and a person performing platform work through that platform shall be legally presumed to be an employment relationship and therefore digital labour platforms shall be presumed to be employers. To that effect, Member States shall establish a framework of measures, in accordance with their national legal and judicial systems, in order to ensure that the legal presumption can be relied upon by competent authorities and bodies that verify compliance with or enforce relevant legislation as well as by persons performing platform work and their representatives.

AddedArticle 4 – paragraph 1 – subparagraph 1 a (new): Where competent authorities and bodies, including those responsible for registering administrative procedures, consider that a person performing platform work might be wrongly classified, they shall apply the presumption. Where a person performing platform work or a trade union acting on behalf or in support of several persons performing platform work, in accordance with national law or practice, dispute their classification in an administrative or legal proceeding, the presumption shall be applied.

AddedArticle 4 – paragraph 1 – subparagraph 2: The application of the legal presumption shall not lead to an automatic reclassification of all persons performing platform work as platform workers. Digital labour platforms shall have the possibility to rebut the presumption of employment before a decision for reclassification is taken in administrative or legal proceedings. The rebuttable presumption of employment shall apply in all relevant administrative procedures and administrative and legal proceedings. Competent authorities and bodies, including those responsible for registering administrative procedures, verifying compliance with or enforcing relevant legislation, including collective agreements, shall effectively apply that presumption. To that end, digital labour platforms shall be required by the competent authorities and bodies to provide all relevant information in order for the authorities to determine, based on an objective assessment, the correct classification of the persons performing platform work.

Article 4 – paragraph 2: deleted / (deleted) / (deleted) / (deleted) / (deleted) / (deleted)

Change 21

ChangedArticle 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 1,1 in order to ensure the effective protection forof workers performing work in the context of an employment relationship. In particular they shall:

Change 22

RemovedArticle 4 – paragraph 3 – point c: (c) develop guidance for national competent and enforcement authorities to proactively identify, target, pursue and sanction non-compliant digital labour platforms;

AddedArticle 4 – paragraph 3 – point b: (b) develop comprehensive guidance, including in the form of concrete and practical recommendations, for digital labour platforms, persons performing platform work and the social partners to understand and implement the legal presumption including on the procedures for rebutting it in accordance with Article 5;

AddedArticle 4 – paragraph 3 – point c: (c) develop guidance, capacity building and training and establish procedures for national competent and enforcement authorities to proactively identify, target, and pursue digital labour platforms in order to ensure effective compliance with this Directive, including by imposing dissuasive penalties on non-compliant digital labour platforms;

Article 4 – paragraph 3 – point c a (new): (ca) develop guidance and establish procedures for competent administrative authorities and institutions to proactively apply the legal presumption in the administrative procedures and to share data with other relevant authorities in order to apply the legal presumption in the processing and registration of contractual relations and social security related data;

Change 23

ChangedArticle 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 ensuring that such controls and inspections are proportionate and non-discriminatory. Member States shall be encouragednon-discriminatory, toand determineestablish, every yearyear, a national target for the number of inspections to be carried out in respect of the sectors of activity in which digital labour platforms operateoperate, in order to determine the correct classification of workers;

Change 24

ChangedArticle 4 – paragraph 3 – point d a (new): (da) provide for an automatic and immediate inspection by labour inspectorates or the bodies responsible for the enforcement of labour law every time a person performing platform work is newly recognised as platform worker, within one month of such recognition, in order to verify the status of the other persons performing platform work for the same digital labour platform;

Change 25

ChangedArticle 4 – paragraph 3 – point d b (new): (db) provide for trainingssufficient resources and training for labour inspectorates or the bodies responsible for the enforcement of labour law in order to strengthen their capacities, especially in the technological field, in order to enable them to effectively comply with points (ca)(d) and (da).(da), including by carrying out routine or announced visits;

Change 26

RemovedArticle 4 – paragraph 4: 4. With regard to contractual relationships 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 date without prejudice to other applicable national and Union law, in particular Directive (EU) 2019/1152 that could apply before that date.

AddedArticle 4 – paragraph 3 – point d c (new): (dc) ensure that duly qualified technical experts and specialists, particularly with respect to algorithmic management, assist the labour inspectorates in their work when necessary;

RemovedArticle 5 – paragraph 2: Where the digital labour platform argues that the contractual relationship in question is not an employment relationship, the burden of proof shall be on the digital labour platform. Such proceedings shall not have suspensive effect on the application of the legal presumption.

AddedArticle 4 – paragraph 4: 4. With regard to contractual relationships 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 date, without prejudice to Directive (EU) 2019/1152 that could apply before that date.

RemovedArticle 5 – paragraph 3: Where the person performing the platform work argues that the contractual relationship in question is not an employment relationship, the digital labour platform shall be required to assist the proper resolution of the proceedings, notably by providing all relevant information held by it.

AddedArticle 5 – paragraph 1: 1. Member States shall ensure the possibility for any of the parties to rebut the legal presumption referred to in Article 4 in legal or administrative proceedings or both.

RemovedArticle 6 – title: Transparency on and use of automated or semi-automated monitoring and decision-making systems

Added(Paragraph 1 in the Commission text has become subparagraph 1 of paragraph 1 in Parliament’s amendment.)