HOTREC, CEEMET and IRU letter

Dear Ms Gualmini,

IRU, HOTREC and CEEMET – representing road transport operators, hospitality and the metal, engineering and technology-based industries – call upon legislators to agree on the upfront application of EU-wide criteria to determine the existence of an employment relation under the Platform Workers Directive, as provided in the Council’s General Approach. A simple collaboration between an individual and a platform should not necessarily lead to the classification of that relation as an employment.

Applying criteria at a later stage, after the relation has already been classified as employment, as proposed by
the European Parliament, would discourage businesses from collaborating with genuine self-employed workers from the very beginning. If a platform begins the collaboration, it faces a high-risk legal process to prove that the criteria are not met. This would involve time and costs and create legal uncertainty for a prolonged period.

The EU’s economy is a combination of traditional employment and self-employment, in balance and full respect of social and taxation models. The self-employment model is well established and has been used in the EU since its inception in accordance with national laws. There is no reason to eliminate this model simply because some market players have taken the opportunity to deviate from it. According to the European Commission’s Explanatory Memorandum to the proposal only 5.5 million out of the 28 million people working in platforms are likely to be of risk of misclassification. The rules should be embraced by those players only.

Our concerns

Our sectors largely consist of brick-and-mortar asset-based businesses, such as truck and bus companies, hotels, restaurants, and metallurgical production. However, due to the internet revolution, our businesses, and the service businesses connected to ours, are adapting and increasingly changing the traditional way they run certain processes. For example, in practice, it can become difficult to establish if a company providing transport and logistics may act in some instances as a “platform”. Moreover, traditional businesses such as hotels or restaurants may use genuine platforms to engage services such as food delivery or cleaning.
No matter how appropriate the final definition agreed on by the European Parliament and the Council will be, in some cases the distinction cannot be fully made on the basis of a simple definition. Additional specific criteria are necessary from the very beginning to enable a complete assessment. Moreover, where our members, such as hotel or restaurant businesses or IT-companies, engage with genuine platforms, it is important for their partners to preserve the legal option to engage self-employed, especially since there is significant labour shortage in the broader tourism sector.

The European Parliament’s criteria would come in too late. They are also optional and non-exhaustive. Even
though the legal text expressly defines this situation as not being an automatic presumption of employment, it actually is. Once a business is classed as a “platform” based on the definition, the relation of employment with the collaborator is presumed to exist. This is problematic for two reasons. Firstly, this will lead to costly litigation if businesses try to establish their “innocence” before a labour authority or a court. Secondly, the presumption of employment continues to apply all along the appeal, with all the relative costs and legal consequences included.

Solution

In order to safeguard genuine self-employment in the Platform Workers Directive and support legal certainty, we urge the negotiators to closely follow the Council’s General Approach and retain in the final text of the Directive the following elements in particular:

• Establish a robust set of EU-wide criteria that ultimately enable the correct classification of the relation as employment or self-employment from the very beginning.
• Keep the national systems of appeal in place, as available in each Member State, instead of introducing
  a cumbersome new appeal procedure (“rebuttal process”) as prescribed in the Parliament’s text.
• Move recital 24a of the Council’s General Approach, which allows platforms to collaborate with genuine
  self-employed workers without being classified as an employer when acting in compliance with specific
  national legislation or collective agreements, into the main body of the Directive.

We count on the negotiators to support a well-balanced text with mandatory ex-ante EU-wide criteria
determining the employment relationship. This is essential to maintain self-employment throughout
Europe, while simultaneously avoiding unnecessary legal complications for genuine self-employed individuals, employers and authorities in Member States.

Sincerely,

Raluca Marian
Director EU Advocacy and EU General Delegate of IRU

Marie Audren
Director General of HOTREC

Delphine Rudelli
Director General of CEEMET