On Tuesday (28 November), the European Parliament, the Council and the Commission will meet for the fifth time in the so-called trilogues to advance negotiations on the platform workers directive.
The legislation, proposed by the EU executive in December 2021, aims to improve the working conditions of more than 28 million people who work via a digital labour platform. This includes everyone from taxi drivers to food delivery drivers or care workers who use apps to provide their services.
Yet so far, all the focus has been on the misclassification of workers, and little on the rules around the use of algorithmic management of these platforms, which are an attempt to create the first EU law on the use of AI in the workplace.
The chapter on algorithmic management is based on the principles and provisions of the landmark EU General Data Protection Regulation (GDPR) — but during the inter-institutional negotiations, some deviations have come to light.
“The trilogue negotiations are now indicating a deviation from the principles and provisions established by the GDPR, which would weaken the protection platform workers need and deserve,” Aída Ponce del Castillo, researcher at the European Trade Union Institute (ETUI), wrote.
According to the ETUI researcher, the text under negotiation could create ambiguity on the processing of personal data by the platform and would violate the GDPR by including the use of so-called ‘robo-firing’ — the dismissal of workers by automated decision-making systems.
Firstly, because it includes a proposal to move from a ban on all processing of personal data to only allowing specific bans on automated monitoring and decision-making systems.
Secondly, it challenges the fact that workers’ consent is not a valid legal basis for processing their personal data in the context of the workplace. This is a point that, if included, could lead to less harmonisation between member states, whereas the directive seeks to achieve the contrary.
“Consent is not a valid legal basis to process workers’ data in the context of work. Courts around Europe have been very clear on this,” the European Trade Union Confederation (ETUC) stressed.
The third deviation is the possibility of using robo-firing.
Ponce del Castillo believes that this tool should be banned in the directive, and that automatic decisions by digital platforms should be considered automatic by default unless the platform proves otherwise.
Algorithmic management should not be “underestimated” by MEPs, as it can bring new rights and protections for workers and “will serve as a blueprint for future legislation on the topic”, the researcher writes.
MEPs and national capitals still far apart
The Spanish EU presidency of the council aims to reach an agreement in the first reading of the text, but there is still “a considerable gap” between the member states position and the parliament’s, an EU diplomat said.
The presumption of employment remains the most problematic area of agreement, as it would automatically mean the reclassification of 5.5 million bogus self-employed workers if agreed as in the Parliament’s amended text — and risks that the directive will not be adopted this mandate.
“As currently drafted, the directive focuses almost exclusively on determining the employment status of a platform worker using a number of broad and difficult to interpret criteria,” an Uber spokesperson said.
Taking into account the reclassification of workers, the commission estimated that prices in major cities could rise by up to 40 percent.
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Uber says the number of couriers using its Uber Eats app in Spain fell by 50 percent after the first legislation of its kind, the so-called ‘Riders Law’, entered into force.
The company has already warned that these major regulatory changes would damage its business model and force them to shut down its activity in hundreds of cities.
“If Uber or somebody else thinks they can’t adapt their model to that, then that’s their problem,” said EU commissioner for jobs and social rights Nicholas Schmit in an interview with the Financial Times.
Schmit also said that EU consumers will have to pay higher prices to ensure better working conditions and rights for the gig workers.
“There’s this idea you can correct the low price by a tip. This is not normal. If there’s a cost it has to be paid,” the commissioner stressed.