Uberisation of workers or will the EU deliver? 

The Platform Work Directive seeks to bolster the employment rights for 28m gig economy workers, but companies such as Uber and Deliveroo are lobbying hard to water it down, writes Darragh Golden

The likes of Uber and Deliveroo are quite effective when it comes to ‘quiet’ politics, better known as lobbying. Picture PA 

Critics of economic integration often make the argument that the EU is run in the interests of big business and is detached from the material worries and concerns of workers and citizens. Currently, the EU has before it a directive which puts that very argument to the test. The Platform Work Directive  seeks to bolster employment rights for 28m workers in the platform economy. However, the well-resourced platforms companies are lobbying heavily to hollow-out its content.

The likes of Uber and Deliveroo are quite effective when it comes to ‘quiet’ politics, better known as lobbying. Uber’s flagrant disregard for laws and its ability to curry favour with politicians is well-documented. The former vice-president of the European Commission Neelie Kroes secretly facilitated Uber’s lobbying of top Dutch politicians, including the (former) prime minister. President Emmanuel Macron of France was particularly receptive to Uber’s advances and its business model as a means for addressing a stubborn unemployment problem. Irish politicians were less receptive to Uber’s overtures, but that might have since changed with the arrival of Deliveroo.

Successful court cases — UK (Uber), Spain (Deliveroo), the Netherlands (Deliveroo), France (Uber) — have been taken, usually by unions, against the platform companies particularly on the question of employment status. Recently in Ireland, the Supreme Court ruled that Dominos delivery drivers are classified as employees.

Should the proposed directive be too lenient, member states, when transposing the law, could render such court decisions obsolete. Similarly, progressive national legislation, such as the Spanish Rider’s Law, could be challenged as EU law trumps national law. For this reason, unions and NGOs have been mobilising across the EU.

Revenues in the EU platform economy grew almost fivefold from an estimated €3bn to around €14bn between 2016 and 2020 with the largest profits being in food-delivery and taxi services. A modest estimation suggests that 5.5m workers are misclassified as self-employed.

The EU has been pioneering in regulating the digital economy and in December 2021, the European Commission proposed the Platform Work Directive, which seeks to improve platform workers’ personal data protection by improving transparency in the use of app-based algorithmic management. The more controversial aspect has to do with the correct determination of workers’ employment status.

The European Parliament, as co-legislator and the only directly elected EU institution, debated the Commission’s proposal. The European Peoples Party, to which Fine Gael belongs, and Renew Europe, to which Fianna Fáil is affiliated, were split on whether the PWD went too far or not far enough. Fine Gael’s MEP for Midlands-North-West, Maria Walsh, was on the Employment Committee, however, her personal website makes no mention of the legislation. The Committee voted in favour by 41 votes to 12 with the EU Parliament following suit, in February, 2023, with 376 voting in favour and 212 against.

The MEP in charge of the legislation’s passage through the parliament, Elisabetta Gualmini, was very critical of the platforms’ lobbying tactics, accusing them of “interfering with [the parliament’s] democratic processes”.

Participating in the European Council is Fine Gael’s Simon Coveney, Minister for Enterprise, Trade, and Employment. In June, 2023, agreement in the Council was reached. According to the council’s agreement, platform workers will be legally presumed to be employees of a digital platform, rather than self-employed, if their relationship with the platform fulfils at least three of seven criteria. This was seen as a watering-down of the commission’s proposal which presumed employment where two out of five criteria must be satisfied.

There remain some obstacles before the directive is adopted. A final draft is subject to negotiations between the  parliament, commission and the European Council in an opaque inter-institutional process known as trilogues.

The trilogues began in July but encountered difficulties on account of a split in the European Council between national governments. The split was between a more socially-minded grouping, coalescing around Spain, and a more neo-liberal cohort, uniting behind France. The former grouping — Belgium, Luxembourg, Malta, the Netherlands, Portugal, Romania and Slovenia — are in favour of more protections for platform workers. The latter grouping, which includes Italy, Denmark, Sweden and Austria, wants to limit the onus on platform companies. The position of Germany is unclear.

A letter, sent on behalf of Mr Coveney, stated: “It is essential that this proposal delivers legal certainty for both platforms and persons performing platform work for this directive to be efficient and realistically applicable.” 

This leaves us none the wiser as to which grouping the Irish government is more closely aligned with. There is, however, an onus on the Government, and Mr Coveney, to ensure that platform workers, expected to reach 43m by 2025, are provided with necessary protections to prevent the 'flexploitation' of platform workers, of whom a disproportionate number are migrants.

A provisional agreement emerged in recent weeks, which Gualmini described as revolutionary. According to the agreement, the presumption of employment exists when two out of five criteria are satisfied. This reverts back to the original commission’s proposal. However, there is some scope for strengthening it. For instance, the criteria list ‘can be expanded by member states’. This will be important when transposing the legislation into Irish law. While the burden of proving genuine self-employment is with the platform company, the case must be taken by the worker, many of whom are migrants with a lack of resources and legal knowledge.

The agreed text has yet to be released and so the exact content of the five criteria remains unknown. Also, it has to be officially ratified by the European Parliament (absolute majority) and council (qualified majority) before becoming a directive. The latter will hold a meeting on December 20, in which the Spanish presidency will need to convince two thirds to support the provisional agreement before it is ratified. 

A qualified majority is calculated based on a formula that is based on population size and there remains a distinct possibility that the French government could lead a ‘blocking minority’ scuppering the proposal. Such an outcome would not bode well for platform workers and could have a bearing on the parliament elections.

Darragh Golden is an Ad Astra Fellow at University College Dublin where he lectures in European employment relations