First, one clarification: the full name of the document is “Directive of the European Parliament and of the Council on the improvement of working conditions via online platforms”.
The first and main task of the Directive is to introduce a presumption of employment for everyone who works via the Online Platform. It will be necessary to establish criteria whose fulfillment causes a “contractor”, “entrepreneur” or “subcontractor” to simply become an employee employed under an employment contract. Each country will set these criteria independently. There may be few of them, e.g. two or three, but there may also be a dozen of them. It is known: the more of them there are, the more difficult it will be to “become” an employee. These could be, for example: work is performed at specific hours, there is an employee evaluation system, remuneration for work is determined by the Platform (and not by the alleged “entrepreneur”).
The second task of the Directive is to establish the principles of employee management using Algorithms. The idea is to regulate which decisions regarding employees can be made by an algorithm and which only by humans. It is also about defining clear and open criteria for making decisions for the employee. Currently, we often do not know why our evaluation (as an employee) was lowered or what the criteria for determining our remuneration are. Similarly, it is now common practice that the only contact with the Platform is a chat with a bot. The directive changes this.
The directive introduces a number of definitions that clearly establish what is what.
Digital Work Platform (Article 2)
There is a natural or legal person (company) providing a service that meets all of the following requirements:
1) The service is provided at least partially remotely via electronic means such as a website or mobile application
2) The service is provided at the request of the service recipient (customer)
3) The platform is a necessary and important element in the organization of work performed by natural persons who receive remuneration for it, regardless of whether this work is performed online or in a specific place
4) The Platform’s activity involves the use of an automated monitoring or decision-making system
And what is important: The directive does not specify what type of services these are. Of course, these include people transport services, goods delivery, but also all others: cleaning, care, online work…
Legal presumption of an employment relationship (Article 5)
The contract between the Platform and the person performing work on this Platform is considered under the law to be an employment relationship (in Poland, Employment Agreement) if certain facts indicate control and direction of this work. The principle of presumption of employment should work in favor of people performing work via Internet Platforms.
Role of Intermediaries (Article 3)
Member States should ensure that persons carrying out work through Platforms who have a contractual relationship with an Intermediary (and not directly with the Platform) benefit from the same level of protection provided by the Directive as persons who have a direct contract with the Platform.
Algorithmic Management (Articles 7 to 15)
The directive introduces restrictions on the processing of our personal data. It also introduces transparency regarding automated monitoring or decision-making systems. Human supervision of the Algorithms will be necessary. This means that any decision to limit, suspend or terminate an employment contract or suspend the account of a person performing work on the Platform or any other decision involving “equivalent damage” should be made by a human and not by an Algorithm.
The directive also introduces the right to have a human review a decision made by an algorithm and explain it.
The directive also introduces the obligation to assess risks related to occupational health and safety rules in the context of decisions made by the Algorithm (e.g. when it forces an employee to drive dangerously fast on snow-covered streets).
Most of these rights also apply to self-employed people via online platforms.
Information and consultation (Article 13)
The directive confirms the application of other EU directives on the right to information and consultation also in relation to business decisions. These are decisions that may lead to the introduction or changes in the use of automated employee monitoring or automated decision-making (this seems to be important for trade unions, which will be able to participate in consultations)
Communication channels of persons working on the platform (Article 20)
Platforms must enable people doing work to contact and communicate with each other privately and securely.
Promotion of collective bargaining (Article 25)
Member States should take appropriate measures to promote the role of social partners (e.g. trade unions) and encourage the exercise of the right to bargain collectively with employees working for the Platforms.
How will the Directive be implemented in Poland?
The translation texts of the Directive into the languages of the European Union have not yet been agreed. So there is no uniform text yet. According to information from the Ministry of Family, Labor and Social Policy, the translations will be agreed in autumn 2024. If this happens, the real prospect for the Directive to be implemented in Poland is the end of 2025.
Temporarily, the text of the directive (including an extensive introduction) can be found e.g. here
And of course (as we have already written about): it is not known how the Directive will be implemented in Poland. The Ministry of Labor will propose its solutions, then the Sejm and Senate can change it at will. So the most important question for us: “Will the Directive improve our working conditions or will it cement the status quo?” is still unanswered.
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We would like to thank Sylwia Rainone from ETUI for providing materials for this article.
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