Author: Martijn Arets (Website - LinkedIn - Twitter)
Last week was the last attempt to get something more of the watered-down European 'platform work directive' off the ground. Unfortunately, once again member states failed to reach an agreement and the future of the Directive looks pretty bad.
I have written several times about this directive. Bottom line, my reflections boiled down to the following:
- Combining presumption of employment relationship and impact of technology on the worker, the directive was a tricky one right from the start. My advice was and is to pull the two apart;
- The directive distinguishes between those who find (mostly precarious) work through a platform and those who find the same work through other channels, so I really saw a possible success of the directive as a starting point, but a somewhat cumbersome one (but if it works, it works. But it doesn't work, unfortunately...);
- There is a danger that, as with the AB5 legislation in California at the time, platform companies will modify their systems and algorithms so that they do not fall under the criteria. A small 'effort' resulting in a potentially long cat-and-mouse game.
And so now there is no platform directive at all. Which has shown that agreeing something on labour market at European level is extremely difficult. And governments throw the biggest bullshit arguments (spurred on here and there by the lobby of platform companies) on the table to get out of it. France, for example, thought the directive was a danger to innovation. I am curious in which definition of innovation 'undermining workers' rights' is included. I would be happy to receive a link.
What next?
I cannot imagine that this is an end point, and I also do feel that too many national stakeholders waited too long to take their own measures, hoping that the directive would come anyway. I hope these stakeholders will now quickly work their own plan and possibly work together. What policymakers could do now:
- Indeed, in many cases regarding the classification issue, no new legislation was needed at all, but can be solved under current labour law (regardless of whether the working with a subcontractor model is better off). Meanwhile, more cases are won than not in Europe;
- From silo (vertical) to horizontal law. Actually, it was already odd that, on the one hand, certain laws would apply to a worker based on how a transaction had come together. I can also imagine that parts of the directive on which we did agree are now the subject of separate agreements. For instance, making automatic decision-making processes explainable, prohibiting (and this already falls under AVG, so: enforce) 'robo-firing' (being fired by the algorithm) and directing and encouraging data portability (which also already falls under AVG, so again: enforce).
- More focus on new platform-specific pain points. Taxi drivers were freelancers before Uber, so it is questionable why that is the problem now. What is the problem is that there is unclear and non-transparent (personal) pricing, workers do not make informed decisions, there are no fixed prices (no one knows what the fare will be in 2 months' time), the apps try via gamification to 'nudge' the driver to do what is in the app's best interest and more. Or in the case of delivery: the worker being paid per job (which does not contribute to traffic safety) and sitting on the phone during the ride. And actually in general: how the risk of no work (and everything that comes with it) is shoved entirely on the shoulders of the working person.
Because maybe getting everyone into (subcontractor / temp) employment would be a nice goal, but we should also not (like too many stakeholders) be too naive that an employment contract is going to solve all the problems. There are other ways to get what you want to achieve done. In New York, for example, a minimum rate has been agreed for delivery workers with positive results (read this piece):
The city's new minimum pay rate for delivery workers, which went into effect late in 2023 after numerous legal challenges, is incentivising workers to slow down, stop at red lights, and follow the rules of the road - transgressions that have become commonplace within the industry as workers perilously rush to deliver someone's chicken fingers before they get cold.
I wonder what the next steps will be. As mentioned more than once, I was not a fan of the directive, as it was too generic and completely ignored the non-platform market, but nevertheless, it would have been a nice starting point of improving the labour market. And that you, as a consumer, then have to pay a bit more for your pizza delivery (like in New York where platforms raised delivery prices by $2), so be it. That's the price of labour. The customer ordering a pizza will also want to be paid decently for their own labour.
What I mainly hope is that the Platform Work Directive process has put the issue of precarious workers on the map. Before the platform discussion, there was no European and national focus on the position of delivery drivers and taxi drivers, and almost no policymakers, union leaders or academics had this target group on the agenda.
The directive process has revealed what the pain points are, and is now giving national governments the kick in the pants to work on this at the national level. If that is the case, those 800 days of wrangling over that directive will not have been in vain.