BACK TO WHAT TRULY MATTERS:
Platforms, AI, and Youth in the Workplace

To inspire policy making by providing all-round view, this report presents a concise overview of major challenges and points of agreement and disagreement, in relation to three timely future of work topics: (i) the impact of the platform work directive; (ii) AI in the workplace; and (iii) youth employment and workplace well-being.

Resulting from constructive discussions facilitated among 32 organisations, representing different viewpoints and expertise, this report highlights areas that require further deliberation as well as areas of consensus. In this way the report provides a practical guide for policy makers but also union and business leaders that value multitude of perspectives.

The impact of the platform work directive

The European Commission’s draft proposal for a new Directive is a bold move that has generally been well accepted by majority of stakeholders, from companies to unions. The critical piece of the draft proposal that ignited debate is the legal status of platform workers.

While some platform workers are genuinely self-employed, the European Commission states that many others are bogusly self-employed; as the Commission proposes, they should be reclassified as employees, enjoying the same rights.

Furthermore, there is disagreement about the tools to achieve increased workers’ protection. Generally, the criteria provided would help judges, regulators, and interested parties to properly classify platform workers; in this sense, the proposed Directive increases certainty and facilitates business planning.

Yet, while the proposed Directive increases legal certainty, labour protection coverage, transparency, and predictability in platform work, it will not solve all the problems encountered in this area of work. As the discussions revealed, there is considerable room for improvement. Below we list key policy recommendations that can improve

• Clarify employment status indicators without undermining the achievements in case law at the national level.
• Provide a “rulebook” with criteria that platforms can use to rebut the presumption.
• Ensure that genuine self-employed individuals can maintain the same status if they wish so.
• Extend social protection to all workers, regardless of their legal status.
• Adopt a dedicated legal instrument to extend the provisions on algorithmic management to cover all workers subject to automated monitoring

AI in the workplace

Data-intensive technologies such as Artificial Intelligence (AI), augmented reality, the Internet of Things, and facerecognition systems can potentially increase organisations’ productivity and efficiency. At the same time, they may challenge the fundamental rights of workers (e.g., anti-discrimination, dignity, privacy, collective rights) and what constitutes the notion of decent work.

AI is used across the sectors, from ride-hailing and food delivery to healthcare and the public sector. Moreover, the proliferation of remote monitoring and surveillance tools, which surged 108% in the United States and the EU in the first months of the pandemic, has led to a spike in digital monitoring, in turn causing the reduction of worker autonomy and loss of job control.

The pressing question now is whether the main stakeholders of employment relations (e.g., workers, trade unions, employers, and institutions) can transit to the future where technological developments breed higher productivity rates, as well as sustainability, equity, and fairness. Some of the recommended actions include:

• Encourage workers to exercise their data protection (privacy) rights as envisioned in GDPR (right to be informed; right of access; right to rectification; right to erasure) and non-discrimination rights.
• Ensure that the exercise of these rights is presented in understandable and explainable formats, including through toolkits and blueprints.
• Support AI design that takes into account gender, race, ethnicity, etc. Although “datasets free of errors” are not feasible, biases and prejudices embedded in datasets should be exposed and minimised.
• Establish public registries of AI systems used in the world of work. These registries would enable the inspection, auditing, and dissemination of a better understanding of applied AI solutions.

Youth employment and workplace well-being

The COVID-19 pandemic has had particularly negative effects on the youth, as well as on the emotional well-being of workers in general. Global youth employment dropped almost three times more than adult employment in 2020 (decreases of 8.7 and 3.7 per cent, respectively) (ILO, 2021). The chances of young people (re)entering the labour market following the pandemic were hampered as employers focused on retaining, not recruiting workers.

The pandemic also led to one in four youth not being engaged in employment, education, or training (NEET), the highest rate in the last 15 years (ILO, 2022). When it comes to emotional well-being, the pandemic caused a 25 per cent increase in anxiety and depression globally, affecting youth and women in particular (WHO, 2022).

We recommend the following policy actions to support youth and ensure workplace well-being:

• Create public-private partnership programmes for upskilling and reskilling.
• Foster the uptake of apprenticeships to support the transition from education to work.
• Promote and support “participative entrepreneurship”, a broad concept for strategies to create collective ownership, which is possible at three axes: (i) a voice in operational decisions and (ii) strategic and (iii) financial co-ownership, which varies from profit-sharing to shareholding.
• Promote and support coop entrepreneurship as a model of solidarity, cooperation, and mutualisation of risks stemming from a wider social, economic, political, and ecological landscape.
• Enable access to mental health support programmes for all workers, regardless of their status (e.g., employee or self-employed).

What is the impact of new forms of work on businesses and the way we work? How are data-driven technologies such as artificial intelligence (AI) changing work as we know it? What can be done to create better working conditions for current and future generations?

New technological advancements such as AI undeniably introduced a number of efficiencies at the workplace as well as novel ways of conducting work. However, they also brought new challenges, including the inflation of short work arrangements that appear more flexible and efficient yet may be infused with insecurity and precariousness.

The years 2021 and 2022 were marked by significant policy efforts on the side of the EU. In particular, efforts have been made to address regulatory challenges posed by platform workE.g., Proposal for a directive of the European Parliament and of the Council on improving working conditions in platform work., AI deployment at workE.g., Proposal for a regulation of the European Parliament and of the Council laying down harmonised rules on artificial intelligence (artificial intelligence act) and amending certain union legislative acts., youth unemploymentE.g., Initiatives within the European Year of the Youth., and post-COVID challenges to wellbeing in the workplaceE.g., EU Strategic Framework on Health and Safety at Work 2021-2027.. They are at the different level of policy cycle (see Table 1. below), determining the scope of the next actions that may have a decisive impact on the future of work.

Table 1. Policy cycle – Oxford Policy Management Approach

Resonating with the topics at the top of the EU agenda, the Reshaping Work Dialogue facilitated constructive discussions among 32 organisations, representing different viewpoints and expertise to further inspire policy-making, as well as provide concrete solutions to the pressing challenges, specifically regarding: (i) the impact of the platform work directive; (ii) AI in the workplace; (iii) youth employment and workplace well-being. Policy recommendations are discussed and tailored considering the current stage of the policy cycle of each topic.

Multistakeholder approach

The key added value of this report is its multistakeholder approach, a methodology pioneered by the Reshaping Work foundation, which gathers a multitude of stakeholders from companies and start-ups to unions and research institutes, ensuring that every party has a say in the debate that concerns them. As such, this approach has inclusivity and diversity at its heart.

To ensure that all the views are represented and that the report has a strong factual and scientific grounding, we relied on three sources of input. Firstly, we facilitated four roundtable discussions (between April and October 2022) among 32 organisations that represented different perspectives and/or had extensive expertise on the topics discussed. Roundtable discussions focused on addressing major challenges pertaining to platform work, AI in the workplace, and youth employment and well-being – the three topics addressed by this report. The goal was to expose this diverse set of stakeholders to different opinions, creating a safe place where views could be exchanged, positions could be negotiated, and novel solutions could come to light. Meeting minutes were taken and shared following each roundtable discussion, giving a chance to participating organisations to review them and provide comments.

Second, we conducted a systematic literature review of the topics discussed to provide a comprehensive overview of the major challenges faced, breaking new ground for policy interventions. Finally, we were informed by discussions and speeches at the Reshaping Work 2022 conference in Amsterdam, as well as the knowledge of three independent experts who peer-reviewed the report. Taken together, these steps ensured that information and policy recommendations presented in this report present balanced views, as well as highlight organisational or sectoral perspectives, building upon an array of studies and reports that precede it.

How to use this report

The report covers three topical areas: the impact of the platform work directive (Section 1), AI in the workplace (Section 2), and youth employment and well-being (Section 3). It is primarily intended for policy-makers, as it outlines points of convergence and divergence between different stakeholders and provides a resourceful repository of potential solutions. The report may also be useful to companies, unions, researchers, and international organisations that value multitude of perspectives and want to familiarise themselves with the debate surrounding these timely future of work topics. Below, we provide a summary of what each section covers and to whom it may be useful:

• Section 1 on the impact of the platform work directive (“The EU Regulation Clearing New Paths to Platform Work”) is useful for anyone working on public policy and legal issues concerning diverse (non-standard) forms of employment and worker rights more generally. It is also useful for policy makers that strive to create a healthy competition environment in Europe.
• Section 2 on AI in the workplace (“AI in the World of Work: Still No Silver Bullet Solution for Decent Work”) is useful for policy makers looking to regulate the use of AI at work. It may also be of use to data scientists, unions, and legal practitioners as it points to major challenges faced with the introduction of AI at work, as well as possible ways forward that ensure decent working conditions in light of data-driven disruptions.
• Section 3 on youth employment and workplace well-being (“Youth Employment and Workplace Well-Being: Pursuing a Brighter Future”) is useful for policymakers and civil society organisations with youth integration in the labour market as a strategic objective. The section also covers well-being at the workplace and emphasises the importance of devoting attention to mental health risks and prevention, which may be informative for HR professionals and companies more generally.

Introduction

In December 2021, the European Commission published its proposal for a new Directive on improving the working conditions in platform work (European Commission, 2021). The proposal is considered the boldest regulatory move at the international level surrounding platform work to date, possibly setting a precedent for the rest of the world to follow.

Delivering on the European Pillar of Social Rights, the European Commission’s proposal for a new Directive aims to (i) tackle employment status misclassification; (ii) ensure fairness, transparency, and accountability in algorithmic management and; (iii) improve enforcement of the applicable rules.

Platform work can have a positive impact on the EU labour market. It can boost productivity, unleash creativity, and promote more flexible and efficient working conditions. Moreover, it can facilitate inclusivity and labour market integration by providing a source of income for people who are disadvantaged or traditionally excluded from the labour market (Andjelkovic, Jakobi, and Kovac, 2021).

At the same time, platform work can be associated with long and unsociable working hours (ILO, 2021; Eurofound, 2021) and low and unstable incomes (Piasna et al., 2022; Pulignano et al., 2021; Vandaele, 2018), leaving many platform workers exposed to physical and psychosocial health risks (Möhlmann, 2021).

Platform workers are usually not covered by labour and social protection legislation to the extent employees are. Platform workers are often classified as “self-employed” and enjoy a limited number of rights compared to “employees” or “workers” for the purposes of EU law. However, some categories of platform workers are under the de facto control of the platforms to which they provide their services (Aloisi & De Stefano, 2022). The Commission believes a number of workers to be bogusly self-employed (European Commission, 2021). As the proposal for the new Directive estimates, over 28 million people in the EU work through digital labour platforms, 5.5 million of whom are at risk of employment status misclassification.

Some Member States (e.g., France, Italy, and Spain) have already adopted protective legislation for certain categories of platform workers. Furthermore, employment tribunals in Spain, Italy, France, and the UK have litigated on the issue, re-classifying bogus selfemployed platform workers as “workers” for the purposes of national labour and social law provisions (Hießl, 2022; Aloisi, 2022). Other countries, such as Estonia and France, provide national frameworks for self-employment.

Organisations that took part in the Reshaping Work Dialogue mostly agree that the adoption of a legislative instrument in this area of work is of paramount importance to facilitate business planning, promote development through fair competition, and provide greater certainty, clarity, and coverage, thus, preventing a race to the bottom that could lead to the erosion of workers’ rights. At the same time, most concerned parties took the view that there is significant room for improvement, yet there is disagreement on which provisions should be altered and how.

Reflecting on the latest research results, expert opinions, and roundtable discussions facilitated by Reshaping Work Dialogue, this section critically analyses the proposed Directive’s impact and limitations, suggesting ways it can be improved to provide greater protection to vulnerable platform (and other categories of) workers.

Introducing a rebuttable presumption of “worker” status

One of the main aims of the proposed Directive is to tackle employment status misclassification in the platform economy. To address this issue, the proposed Directive defines a “platform worker” as “any person performing platform work who has an employment contract or employment relationship as defined by the law, collective agreements, or practice in force in the Member States with consideration to the case-law of the Court of Justice (‘CJEU’)”. Hence, unlike some laws introduced in certain Member States that cover only platform workers engaged in a particular sector (i.e., “the Riders Law” in Spain that covers only food- or grocery-delivery platform workers), the proposed Directive covers platform workers engaged in all forms of work, whether online or onlocationFor the difference between online and on-location work, see Reshaping Work, 2021 and 2022.. This would thus cover ride-hailing workers (i.e., Uber, Bolt) but also graphic designers and household workers work via a platform (i.e., Upwork, Helpling, to name a few).

To help tribunals make the assessment, the proposed Directive introduces a legal presumption of “worker” status for persons controlled by a platform. The existence of this needed “control” is considered to be the case when two out of the five following criteria apply:

1. The platform effectively determines or sets upper limits for the level of remuneration;
2. The platform requires the person performing platform work to respect specific binding rules regarding appearance, conduct towards the recipient of the service, or performance of the work;
3. The platform supervises the performance of work or verifies the quality of the results of the work, including by electronic means;
4. The platform effectively restricts the freedom, including through sanctions, to organise one’s work, in particular, the discretion to choose one’s working hours or periods of absence, to accept or to refuse tasks or to use subcontractors or substitutes;
5. The platform effectively restricts the possibility of building a client base or performing work for any third party.

At the time of writingThis could change as a result of the proposed Platform Work Directive., individuals who fulfil two of these criteria will be presumed to be under the platform’s control and will be granted “worker” status for the purposes of the Directive. The presumption, however, is rebuttable. Platforms can refute the presumption by proving that the contractual relationship is not an employment relationship according to national laws and the case law of the CJEU (Article 5). In making the assessment, attention should be paid to how the person actually carries out the assignment/task in question rather than to his/her formal classification in the contract (“primacy of facts” principle).

Overall, most stakeholders who partook in the Reshaping Work Dialogue welcomed the proposed Directive as a step in the right direction. However, there is disagreement about the tools used to achieve increased worker protection. Generally, the criteria provided would help judges, regulators, and interested parties to properly classify platform workers; in this sense, the proposed Directive increases certainty and facilitates business planning. If adopted, the legal presumption of “worker” status, the reversal of the onus of proof, and the recognition of algorithmic management as a new form of control could lead to the reclassification of several bogus self-employed platform workers. However, the exact classification would be left to the national provisions due to the setting of EU labour law.

Potential loopholes and recommendations for improvement

At the same time, most stakeholders note that there is room for improvement. The breadth of the Directive’s coverage will depend, to a large extent, on how it is transposed into the domestic jurisdictions and interpreted by the CJEU, which could be activated using requests for preliminary rulings to assess the consistency between EU law and the domestic law that transposes it. The following aspects of the proposed Directive could prove problematic and hence require further elaboration.

Unions and advocacy groups that partook in the Dialogue argue that some of the indicators used to trigger the presumption might reinforce a stricter notion of “control” than the dynamic notion of control that has gradually been accepted at the domestic level by employment tribunals in several Member States (i.e., France, Germany, Italy, and Spain). This would reduce the workers’ chances to be reclassified by a court and thus limit the level of protection afforded to platform workers. For example, the indicator of whether the platform effectively restricts a worker to choosing working hours is used to signify autonomy, even though the person might not have any real choice over these matters (e.g., food delivery riders have to work during peak hours or bad weather conditions to earn a decent living). For this reason, these stakeholders suggest re-wording or dropping these indicators of control so that they do not make access to protection more burdensome and challenging for vulnerable platform workers.

Unions and advocacy groups also fear that requiring two out of five indicators to be present for the legal presumption to apply might prove too restrictive. For this reason, they suggest that any one indicator should be enough to trigger the presumption. The European Confederation of Independent Trade Unions – CESI, for instance, points out that the issue may lie in the fact that platforms would self-categorise and assess themselves. For this reason, some unions advocate for dropping the five indicators of control altogether and instead adopting a broad presumption of employment status for all persons who perform work under the control of a platform.

An expansive approach has also been put forward by the Member of the European Parliament, Elisabetta Gualmini. In her report, Gualmini suggests expanding the indicators of “control” from five to eleven and moving them to the Preamble of the Directive (European Parliament, 2022). This way, the list of indicators becomes not exhaustive and not binding. According to her proposal, platforms would have to declare the workers’ contracts to the relevant social security bodies and labour inspectorates. If the declared contracts indicate that the individuals who provide services through them are “self-employed”, the relevant authorities will have to assess – by applying the “primacy of facts” principle – whether the legal presumption of employment status applies.

On the other hand, platforms oppose broadening the presumption. As they argue, the legal presumption of “worker” status as it currently stands is too strong and would lead to the reclassification of many genuine self-employed individuals as “workers” for the purposes of the proposed Directive. For platforms, most individuals who provide services through them prefer the “self-employed” status for the flexibility and autonomy it provides. If these persons were to be classified as “workers” for the purposes of the Directive, platforms say that they would be required to work specific shifts, something that would restrict their freedom to choose their hours of work. Furthermore, platforms would have to pay them a wage regardless of whether there is work available, which in turn would result in an increase in pricing to final customers (paying for unused capacity) and a lower level of service (less capacity during peak hours). For these reasons, platforms advocate against expanding the legal presumption of “worker” status and generally for a more balanced approach.

The proposed Directive does not specify the criteria platforms can use to rebut the presumption; thus, this would likely be left to the Member States. The problems with access to justice in these cases are well documented, as the fight to get “worker” status can be a lengthy and costly process. Furthermore, unions fear that platforms may exploit the unclear framework and use it as leverage to avoid providing labour and social law protections to platform workers, for instance, by tweaking their terms and conditions. To avoid this, the criteria for rebuttal need to be clarified, though such clarification will likely be at the discretion of Member States. This would help (i) provide legal certainty; (ii) increase coverage of labour protection; (iii) level the playing field across platforms; and (iv) avoid lengthy and costly disputes.

According to the proposed Directive, “the party assuming the obligations of the employer shall be identified in accordance with national legal systems”. The reference to the national “employer” definition allows for divergent national approaches, opening the door to regulatory arbitrage but also hindering the scaling of platforms across Europe. Furthermore, this provision might be construed to mean that only one party can assume the obligations of the employer while, in reality, platform workers often work for multiple platforms (multi-homing) and might be dependent on some or even on all of them to make a living. Thus, the final instrument must clarify (i) who can act as the employer and (ii) whether multiple platforms can assume that role.

Research has shown that some platforms use complex subcontracting networks to avoid employer responsibilities and make it difficult for platform workers to claim their rights (Fairwork, 2021; Pulignano, 2022). As the proposed Directive currently covers only contractual relationships between the digital labour platform and the individual, the danger is that platform workers hired through an intermediary agency might not be covered by the Directive, as has occurred in countries such as Spain, when a similar presumption was introduced. In this instance, the contractual relationship would be between the individual and the agency, not between the individual and the platform. To prevent this from happening, the final instrument should clarify that platforms cannot absolve themselves of liability by using subcontracting chainsIn this respect, guidance can be drawn from Article 12 of the Posted Workers Enforcement Directive (2014/67/EU) to ensure that platforms and sub-contracting agencies are held jointly and severally liable for the provision of the rights provided by the proposed Directive..

The proposed Directive states that digital labour platforms will be covered only if they “involve, as a necessary and essential component, the organisation of work performed by individuals”. In contrast, platforms whose primary purpose is to exploit or share assets (i.e., AirBnB) might not be covered by the proposed Directive. Legal scholars (e.g., Countouris, De Stefano, Prassl, Aloisi) have pointed out that these provisions need to be clarified so that they do not unjustifiably remove protection from vulnerable online workers.

Adequate access to social protection is important to improve the working conditions in platform work. A key tenet of the proposed Directive is that adequate access to social protection can be achieved domestically by correctly classifying the employment status of individuals performing platform work. This means that those who will be granted “worker” status for the purposes of the Directive will likely be given access, on a national level, to social security rights, such as healthcare, insurance against work accidents and occupational diseases, and (potentially) access to unemployment and pension benefits. Admittedly, whether adequate social protection will be achieved will also depend on the national system in place and whether workers meet local applicable minimum thresholds (of income or working hours) to be in scope. Therefore, it is likely that there will still be social protection gaps.

In contrast, individuals deemed “genuinely self-employed” will not be covered by the proposed Directive and will not be fully entitled to EU labour and social protectionUnlike “workers”, individuals who are classified as “self-employed” for the purposes of EU labour and social law provisions cannot benefit from protective EU legislation regarding equal pay, working time (holidays, rest periods, overtime pay), maternity and paternity leave and pay, health and safety, information and consultation, collective redundancies, and other benefits. That does not mean, however, that Member States cannot introduce more favourable provisions that provide social security to the selfemployed. The Directive simply sets a floor of rights, not a ceiling (Article 20).. This could be particularly problematic, especially considering the precarious position of many persons engaged in platform work. As has already been noted, individuals who perform platform work are often exposed to financial, physical, and psychosocial risks (Georgiou, 2022; ILO, 2021; Piasna et al., 2022), not to mention unpredictable schedules and the shortcomings associated with output-related remuneration schemes. Taking into account the vulnerability of self-employed persons, especially in the case of exogenous events beyond their control (i.e., the pandemic), it becomes clear that they also need social protection.

The idea that the proposed Directive should be amended to provide social protection to the self-employed also raised several concerns. Malt and TaskRabbit expressed the view that their responsibilities lie solely with ensuring meaningful income that is at least minimum wage, providing fair access to work, and engaging in social dialogue. Concerns have also been raised about the EU’s lack of legal competence to regulate social security mattersSee, however, the Council Recommendation on access to social protection for workers and the self-employed..

On the other hand, many stakeholders who partook in the Dialogue (including certain platforms) criticised the Commission’s approach for focusing too much on the “worker vs self-employed” status while failing to raise the standard of social protection for all persons performing platform work. Indeed, most interested parties (unions, researchers, advocacy groups, businesses, and some platforms) agreed that baseline social protection should be granted to all individuals engaged in this line of work, regardless of their employment statusOn this issue, see Freedland and Kountouris (2011)..

While there is an overall consensus regarding the need to provide baseline social protection to all persons performing platform work, disagreement exists vis-à-vis how such a system could be financed. More particularly, platforms and insurers note that the development of social protection systems in the platform economy is not without challenges due to the specific characteristics of platform work (i.e., diversity of the workforce in the various platforms, multi-homing, cross-border activity, etc.). Industry-wide protection would need to create a mechanism to collect contributions from multiple platforms to centralise the benefits to one worker. Insurers stated that they are confident that they could support the creation of a mechanism for basic industry-wide protection. Box 1. presents alternative solutions to the current proposal.

Enhanced algorithmic management rights

It is well-known that platforms use customer ratings, electronic monitoring, AI systems, and other technologically advanced tools (i.e., GPS, dynamic pricing software etc.) to ensure matching efficiency and assess workers’ performance. These methods – commonly referred to as “algorithmic management” (De Stefano & Taes, 2021) – can constitute a form of control that can be just as, if not more, invasive than stricto sensu control exercised by managers in a traditional work setting. Albeit novel and innovative, these methods can generate negative outcomes for workers, including increased workload and stress, potentially unfair evaluations and discipline, data privacy concerns, and transparency issues (Aloisi & De Stefano, 2022; Acemoglu, 2021)For another perspective, emphasising the importance of context in which algorithmic management is applied, see: https://dl.acm.org/doi/10.1145/3492823 For a more extensive analysis on issues regarding the use of algorithmic management and AI at work, see the following chapter on “AI in the World of Work: Still No Silver Bullet Solution for Decent Work”..

Recognising the potential pervasive effects of algorithmic management, the proposed Directive strives to increase transparency and accountability in the use of automated monitoring and decision-making systems. More particularly, it stipulates that platforms must now disclose to all persons who provide services through them the types of activities monitored and the types of decisions taken through automated decision-making systems. Platforms must also disclose the parameters factored into such automated decisionmaking, the relative weight attributed to them, and the grounds for decisions taken to restrict, suspend, or terminate individuals’ accountsSome companies have taken initiatives in this regard. For instance, see Wolt’s Algorithmic Transparency report here: https://assets.ctfassets.net/23u853certza/5G5O7KFnwzDGWzE1JFwCN/8afadac22e5666af2d5a83a1f50214e3/ Wolt_Algorithmic_Transparency_Report.pdf. Furthermore, the proposed Directive provides for human oversight of the decisions taken using automated systems and introduces a right to request their review. If the decision is found to impinge upon the individual’s rights, the platform has to rectify it without undue delay or provide adequate compensation. In addition to broad access to information and review rights, the proposed Directive also provides that platforms must not process any personal data that are not strictly necessary for the performance of the contract.These provisions specify and complement existing rights in relation to the protection of personal data prescribed in the General Data Protection Regulation (GDPR).

What is particularly important is that, with certain exceptions, these rights are afforded not only to workers but also to the self-employed. The recognition of the potential pervasive effects of algorithmic management and the introduction of new material rights for all individuals who provide services through platforms are welcomed by all stakeholders who took part in the Reshaping Work Dialogue. These provisions will not only increase transparency and accountability vis-à-vis the use of algorithms to manage and control workers but will also level the playing field by requiring platforms to provide some basic rights to all persons who offer services through them regardless of their employment status (some of these rights are already part of the GDPR).

At the same time, the following criticisms have been raised. First, researchers have criticised the proposed Directive for adopting an ambiguous approach vis-à-vis control. For instance, Aloisi and Georgiou note, “the text risks being self-defeating: how can it be acceptable that platform workers are subject to intense algorithmic management and yet still be classified as self-employed when control is the key trigger of the presumption of employment status?” (Aloisi & Georgiou, 2022). The final text, thus, should clarify what constitutes control to prevent unintended outcomes.

Second, unions such as UNI Europa have criticised the provisions on algorithmic management for capturing only fully-automated monitoring and decision-making systems. As they say, platforms could use semi-automated systems (currently not captured by the proposed Directive or the GDPR) to avoid legal obligations, even though such systems might still be damaging to workers’ rightsOn the view that the proposed Directive captures semi-automated systems, see Aloisi and Potocka-Sionek (2022)..

Third, various stakeholders (including platforms, the business sector, unions, and advocacy groups) have criticised the proposed Directive for creating a divide between the platform and other categories of workers. Nowadays, digital features and AI control and monitoring systems are increasingly being used not only in the context of the platform economy but also in traditional work settings (i.e., brick-and-mortar businesses). The provisions on algorithmic management could lead to a case in which persons performing platform work would, in principle, be protected to a much greater extent than workers and data subjects in conventional sectors. For this reason, they argue that the provisions on algorithmic management should be extended to cover all individuals who are subject to such systems and not just those working in the platform economy (the AI Act aims to address some of these; see section 2, “AI in the Workplace: Still No Silver Bullet Solution for Decent Work”). A similar proposal was also made by the Member of the European Parliament, Gualmini, in her report on the proposed Directive.

Fourth, while most stakeholders welcome the introduction of access to information rights, they note that these rights will fall short of achieving the desired outcomes if they are not supplemented by provisions to increase digital literacy. Without specialised knowledge, most individuals cannot understand the function or assess the impact of algorithms on their workNotably, the proposed Directive also provides for the possibility of assistance by an expert chosen by platform workers or their representatives to examine the matter subject to information and consultation and formulate an informed opinion (Article 9). (i.e., technical aspects, bias). To mitigate these issues, the following measures have been suggested by different stakeholders:

• The inclusion of software engineers into policy debates;
• The establishment of a standard prescribing what aspects of algorithmic management need to be explained and to what extent;
• The strengthening of capacities and resources of labour inspectorates and data protection authorities to assess the information and enforce the regulation;
• The promotion of social dialogue on algorithmic management and the empowerment of unions to negotiate the adoption of technological tools with monitoring and decision-making potential (see below).

Finally, unions argue that the provisions concerning health and safety at workArticle 7(2). that are currently directed only at platform workers should be extended to cover all persons who provide services through platforms, regardless of their employment status. Aloisi and Georgiou (2022) uphold this view in their commentary on the proposed Directive.

Information and consultation and other collective rights

The proposed Directive also introduces collective rights regarding information and consultation on adopting automated monitoring and decision-making systems and implementing substantial changes related to their use. More particularly, it is stipulated that platforms must inform and consult with workers’ representatives if they wish to introduce new automated monitoring and decision-making systems or make substantial changes to those systemsArticle 9.. This way, the proposed Directive increases transparency and fosters social dialogue on algorithmic management, precipitating better working conditions.

Other collective rights introduced include (i) a provision that enables representatives of persons performing platform work to bring claims and engage in judicial and administrative procedures on their behalf and (ii) an obligation that platforms must create communication channels for persons performing platform work. These provisions have been put in place to help platform workers overcome geographical, procedural, and cost-related obstacles in defending their rights and to communicate with each other with a view to defending their interests.

Unions, researchers, and advocacy groups welcome the introduction of collective rights but emphasise the need to further amplify workers’ voices by strengthening the provisions on social dialogue, which is supported by researchers (De Stefano & Aloisi, 2019; Vandaele, 2021). Social dialogue helps mitigate imbalances of power in the workplace, thus increasing democracy at work.

Furthermore, it has been suggested that a provision should be added that requires digital labour platforms to refrain from any act that could directly or indirectly undermine the right to unionise or to join a trade union or discriminates against individuals performing platform work who participate or wish to participate in collective bargaining. Finally, the Directive should clarify that workers’ representatives must be designated by elections open to all persons performing platform work.

It should also be noted that the Commission has recently adopted new Guidelines that reduce the tension between competition law and collective bargaining for many solo selfemployed individuals, including persons who provide services through platforms. Genuinely self-employed platform workers can now bargain collectively for the amelioration of their working conditions without the fear of breaching competition law provisions. However, adequate frameworks that enable this must be implemented within the Member States. Most stakeholders welcome the adoption of the new Guidelines and suggest that they could be used as a basis for the proposed Directive. More particularly, researchers and advocacy groups have suggested that the proposed Directive would benefit from introducing protective provisions for the categories of self-employed persons covered by covered by the Guidelines, such as (i) economically dependent self-employed workers and (ii) those who work “side-by-side” with employed workers. These categories of genuinely self-employed individuals could also be recognised in the proposed Directive as vulnerable and be afforded a similar level of protection as platform workers.

Declaration of platform work and access to relevant information

Difficulties in enforcement and lack of traceability and transparency are also thought to exacerbate poor working conditions and inadequate access to social protection. National authorities do not always have sufficient access to data on digital labour platforms and the people working through them. The problem of traceability is especially relevant when platforms operate in several Member States, making it unclear where platform work is performed and by whom.

To address this issue, the proposed Directive stipulates that platforms must declare platform work to the relevant national authorities and make available to them and to representatives of persons performing platform work key information regarding the number of people working through digital labour platforms, their employment status, and their standard terms and conditions. Most stakeholders welcome these provisions, as they will help national authorities ensure compliance with labour rights and collect social security contributions, improving the working conditions for platform work.