The Open Talent Report
Listen to Connor Heaney discuss all things open talent with industry experts. In each episode Connor speaks with legal, talent and leadership experts. Connor is the managing director of CXC EMEA a contingent workforce management company. Connor has a particular interest in the future of work in the open talent sector.
The Open Talent Report
Ep. #45 | EU Directive on Platform Work
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Recently Connor Heaney, MD at CXC EMEA was joined by legal experts Lucas Stuurop (Lexence) and Julie Van Kerckhoven (Van Havermaet) to discuss the recent proposed directive that aims to improve the working conditions of those working in the platform economy.
Topics discussed:
- What is the goal of the directive?
- What impact will it have on workers?
- What impact will it have on platforms?
- What will it mean for the future of the platform economy?
Disclaimer - While Lucas and Julie are legal professionals what they discuss on this webinar is their opinion and should not be taken as legal advice.
Connect with Connor: https://www.linkedin.com/in/hrmconnorheaney/
Connect with Lucas: https://www.linkedin.com/in/lucasstuurop/
Connect with Julie: https://www.linkedin.com/in/julievankerckhoven/
Visit CXC: www.cxcglobal.com
Visit Lexence: https://www.lexence.com/
Visit Van Havermaet: https://vanhavermaet.be/
Hello and welcome to the Open Talent Report. This is the podcast where we discuss the emerging trends in labor law, employment law, independent work, and the gig economy, which many organizations are wrestling with due to the growth of the open talent and gig economy. I'm your host, Connor Heaney. When I'm now presenting the podcast, I'm the MD at CXC Global, EMEA, which compliantly connects talent and opportunity. Hello and welcome to today's webinar on the EU draft directive on platform work. A very warm welcome to our audience. Thank you very much for joining us. It's a pleasure to have you back. Also, a very warm welcome indeed to our guest speakers today. We're very pleased and very privileged to have um Julie Van Keekhoven, Senior Manager, Social Law at Von Hermat in Belgium. Julie, a warm welcome to you. So lovely to see you, and thank you for joining us.
SPEAKER_03Thank you.
SPEAKER_02And we're also very pleased to welcome Lucas Sterb, partner at Lexons in the Netherlands. Lucas, thanks as ever. So good to see you. How are you doing?
SPEAKER_00Likewise, yeah, very good. Excited to uh have this discussion today.
SPEAKER_02Well, well, it's an exciting topic, and as we found out in our prep session, it's a it's a topic that could make people's heads spin. So hopefully we'll bring some some clarity and certainty to the matter. Um, as always, guys, um, both Lucas and Julie are here um to give their opinion only. What they say in the call should not be taken as legal advice or acted upon as legal advice, it's their opinion only. So that's our that's our disclaimer today, and we've got that out of the way. Um, just by by way of introduction, my name is Conrahiney. I'm the managing director at CXE Global Enamia. So thanks so much for joining us. I think before we get into the substantive topics, folks, I think it's fair to say that the gig and platform economy has been under what could be considered serious legal assault over the last 10 to 12 years. And also, I think it's fair to say that it's been a sector that has been unregulated and has suffered from a lack of primary legislation or law. And we've seen a large number of cases, um, particularly over the last three years in the UK, Netherlands, Belgium, Spain, Italy, um, and more recently Ireland, in relation to workers seeking to be reclassified from independent contractors to employees or to have some sort of worker status. So, Lucas, if I may, would you mind just giving an overview of the of the case law to date in relation to labor digital labor platforms or driver platforms in the Netherlands and just maybe give some examples of the of the recent case law there? Thanks, Lucas.
SPEAKER_00Yeah, yeah, yeah. Thank you, uh Conor. I guess um the the best examples are the the Uber and the Liveroo uh cases, uh which operate, of course, um platforms in the Netherlands. The the Liveroo case has also uh gone to appeal, um, and there have been diverting uh uh assessments of that matter. But the latest in that is that in the appeal it was actually uh determined that um the liveroo is uh the employer of its um workers that do that do food delivery. Um it that has a lot of consequences. Um and and the the assessment there is that's of course very interesting and mainly based on on the way the algorithm works uh in in basically rating the the uh the the workers and and and dividing the work. So it has brought um yeah basically a new reality in which the position of the platform companies is is really starting to look increasingly limited in um in the means of operating a platform with the use of uh of freelancers instead of uh um employees. Yeah, and and uh the the the coming time will be interesting to see if there are new um developments in that respect and if this will will indeed become um a settled case law that applies to the whole of the platform sector, or that these are you know um that these will need to be reviewed separately, all of them. Um and in that sense, of course, the the whole directive that is looming over this discussion is is is very interesting to and also to see how this will impact um you know those existing discussions and and of course the platform economy in the future.
SPEAKER_02Thanks, Lucas. I can't I can't wait to get into it because this is a meaty, complex topic that has the potential for volatility, uncertainty, complexity, and ambiguity in in the European Union labor market. And um, Julie, over to you. Would you mind talking about the the recent delivery case in in Belgium and any other any other lead cases in this space? Thank you.
SPEAKER_03I can actually repeat uh Lucas' words. Um here in Belgium, there is also the delivery case, which is uh pending again uh in for the court of appeal um because the public public prosecution has appealed the um its case. The case um in uh the labor court actually ruled that uh delivery um freelancers were indeed self-employed um and not employees. So the public prosecution has now um filed for appeal um in the at the beginning of this year. And there is now also uh an Uber case pending. Um there is uh the social ruling commission here in uh Belgium, which is like an administrative organ, uh administrative body. Um, and they ruled that uh Uber drivers are employees. Um and now uh Uber has uh appealed this decision uh and it's pending for uh court right now. Um given the case over here in Belgium, we might expect um some clarity within the next two years or maybe even longer. So um yeah, that's the uncertainty remains, but here in Belgium, we um there is maybe something interesting to say about that because with regard to Uber, they are um they they fall within the the sector of transport. Um and here in Belgium, this is a protected um sector and uh with protective criteria, uh special criteria with regard to false self-employment. And um, so this is something different than I think in the Netherlands. Here we already have criteria, and it's there is a little bit um it's clear what should be uh should be absent this uh uh in such an employment relationship and what should not be absent. Um, so um I think this will be with yeah, it will be very interesting to hear what the court has to say about it.
SPEAKER_02So thank you, Julian, and thanks, Lucas, for for the case law summaries, or at least the the lead case law summaries in in both the Belgium and and Netherlands jurisdiction. It struck me when the the draft EU directive came out in December, guys, that it was A to be welcomed because it brought a degree, at least on the face of it, certainty to workers. I have described in the past as low choice, no choice, which rather crudely describes the the plight of gig workers where essentially they are shoehorned into contracts for services when in all reality they're essentially employees or some form of worker. But and there's always a but the more I started reading the preliminary drafting of the directive, it struck me that there's likely to be a whole series and set of unintended consequences, and perhaps the EU um commission is actually using a sledgehammer to swat a fly. And really, these are some of the topics that we're going to delve into today. But just I think for the benefit of our audience and the benefit of our listeners, Julia or Lucas, would you care to just give a high-level overview of what the draft directive means, which workers are likely to be um affected by this, and also what is a digital labour platform? Because the definition um on the face of it seems straightforward, but the more I read it, it seemed very wide, and that could be problematic for non-digital labor platforms um as well. So uh Julie, are you happy to cover that or or or Lucas, would you?
SPEAKER_03I will I will start, Lucas. You can interrupt me whenever you want. So uh the directive indeed, uh its goal is its official goal, uh, is of course um firstly to create better employment conditions for platform workers, but also, and that was quite interesting to read, to uh increase legal certainty for those platforms, digital platforms, and to ensure more flexibility for genuine self-employed people. That is that's how they wrote it. Um so I'm quite curious uh what Lucas thinks if uh if this directive will achieve that goal. Um, but that's the goal of the directive, and um for obtaining um this they uh implement five criteria um which a digital platform must respect. Um and if not, um then uh there is a legal presumption that the platform will um act as an employer uh and not merely as a digital platform anymore, but actually as an employer with all consequences, of course. Um but that's up to national legislation, of course. Um so that's in short the the impact of the directive. Like those criteria are quite interesting, actually, but I don't know if it's now the time to talk about these criteria already, or do you say yes, yeah, I think I think so.
SPEAKER_02I think it would be great for audience just to get that next level deeper in understanding.
SPEAKER_03The definition, of course, of what is a digital platform that's up for discussion. Uh the the definition is not quite clear. Um, but those criteria which are implemented, those remain vague as well. The terms are a little bit um familiar to me because in Belgium we have already a similar system in place. Um the first criteria is that um digital platform can no longer determine of or set limits for the level of remuneration of digital platform workers. Um they also cannot require the platform worker to respect specific binding rules in regard to appearance or conduct. Um they can not can no longer supervise the performance of the work or the quality thereof, which is very weird to me because, in my opinion, uh everyone um ensures the quality of the work uh they um they outsource to a service provider. Um then the fourth criteria is that a platform, of course, cannot restrict the freedom of a platform worker, including through sanctions to organize the work or to choose the working hours. Of course, I think that's very logical. Um, and then the last criteria is that the platform cannot restrict the possibility to build a client base or to perform work for any third party. That is that seems very logical to me. Um, but I think the the three first criteria are up for this or food for discussion um and are less clear than the last two. I don't know, Lucas, what do you think about that?
SPEAKER_00Yeah, no, I I mean uh if you look at the objectives, I guess the first one basically is to create uh legal certainty for for the workers on their employment status. Are they um independent contractors, freelancers, or are they uh employees slash workers? Um I mean the second is also there's also something about transparency of transparency of the algorithms that that make the uh the assessments and apply the uh the controls control functions on the workers. But I think the main topic here indeed is the uh the assessment of the of the status. I mean if the aim is to provide certainty, uh it should, in my opinion, also leave a little bit of room for for for both sides of the uh of the of the aisle, basically, two types of workers, um freelancers and employees. But if you look at the criteria, these are so broad, and um, I mean, um they encompass such a large part of what I would call also typical freelance work. So that my question here is uh referring you referred to a sledgehammer, I would say throw the baby out with the with the buttwater bathwater. Um the big question is if if the effect will not be that uh a too large portion of of the workers will also be deemed uh uh automatically deemed employees. Um and and and I question whether the the mechanism or the instruments currently proposed are proportionate to the objectives and the the quite recent um substantiation of of the proposal. So that is my my my my big concern there. Uh so I guess Julie, I concur with your analysis of the five uh points. One or two are quite easy to accept, but the others are more difficult to uh yeah comprehend.
SPEAKER_03I agree, and I also I also agree that those criteria are not specifically related to an employer, employer-employee situation. Um and uh I believe that these criteria are actually um determined um with the Uber and the Liverpool cases in mind and not um not with any other platform in mind. And that brings us to the definition of the platform indeed, um, which is not clear at all. I think I I already told you, Conra, that if you read the preliminary works, then I I believe it's not the intention to apply this directive to all kinds of platforms, just such as CXC Global, for example, or any other uh platform which which um makes and matches uh supply and demand for employment. Um but if you then read the definition of what is an actual platform according to the directive, then I believe those platforms cannot automatically be excluded. And so that's not clear. So it starts actually at the beginning uh with questions. Um but so that's for yeah, something to discuss, I think. And I think this is only a proposal directive. So I let's hope this there will be some clarity once the once there is an actual directive.
SPEAKER_00And also to to further comment on that, I mean if you read the the the um the rationale behind the directive, the intention is not to introduce a universal definition of employeeship, it is just a mechanism to switch legal presumption uh in case of platform work, whatever that exactly uh might be. Um but I mean the effect uh it might well have is that it will be used as a definition, especially especially in platform situation, um situations where this definition is so broad that will encompass a lot of lot of work. For example, um and the the the third one is the supervising or verifying the quality of of the results of the work via electronic means. If you're talking about algorithms that actually effectively control the outcome or the way employees or workers are uh carrying out their services, I would understand, but this definition is so broad. I mean, is it also via email? Or uh if you have a handheld device which you know um confirms whether you correctly uh installed a uh a unit somewhere, does it also apply? Um, and also if you look at the local legislation, I think it this will create a lot of challenges to effectively implement this because if you look at Dutch law, the definition of an independent contractor, a contract for services, um and it's not really a clear definition, but if you look at the um the uh rights of the uh the client, the client always has the right to verify the quality of the results. If you hire a painter, uh you you would want to make sure that he painted the house in the correct color, right? For example, does it also suddenly fall under uh the employer state? That those questions uh arise to mind, and there's only a few examples, specific examples of very clear uh points that will probably lead to a lot of discussions, uh, and therefore might not um the objective of making this very clear and um um you know uh easy to assess might not be achieved.
SPEAKER_02Yeah, I I think that's for a fair summary and for a comment from you both. I a thought just came to mind there. So let's say we look at a um a matching platform um that matches labor with uh client demand. So Upwork or Twago or one of the 500 other labor platforms that are out there. So typically those platforms act for an end user or end client. So, you know, big bank B, uh large pharma companies C, they match, they send their job vacancies to the platform. The platform matches um the job with the the person, right? So in the UK, they brought in IR 35 legislation and and they brought it into the private sector. And what essentially they put the onus on determining whether a worker was inside or outside IR-35 on the end user. For me, this is quite problematic, this uh draft directive, because it's putting the presumption and the responsibility, as I understand it, on the platform. But where is the end user and all this? Because the end user will essentially engage directly or indirectly the worker, right? So, how how does that work? Can it work?
SPEAKER_03I totally agree. I had the same remark, Connor, and I actually made I actually was thinking it can actually lead to an employee having two employers, I think, uh, according to Belgian law, that is, because you have on the one hand or current law with regard to false independency. Um yes, um, where indeed if the if the end user is exercising authority over an over a self-employed person, the end user will become um employer, even if the platform is the in-between uh person and if there's no direct contract between them. If this directive um is implemented into Belgian law as well, then in my opinion, it may lead to the situation where we have two employers. If there's an end user and the platform who indeed supervises uh the performance of the work. So indeed, uh, I share a concern there that it's not clear how this will be how this will how this will play out in practice.
SPEAKER_02Yes. Lucas, what what's your thought?
SPEAKER_00I guess it would actually require require and uh at least from the perspective of Dutch, the Dutch regime would require an in-depth analysis of who exercises factual control. Um and of course that doesn't really make the situation easier, but um in under Dutch law there are no clear criteria uh on how to determine whether employment relations exists. The the Supreme Court court has determined that there needs to be a holistic um assessment of all factors and even at the intention of part of. Parties isn't really relevant, so it's you need to assess all the factual circumstances. So, in this specific example, you you will have a very complex situation where you have to weigh in uh who will be uh the employer in that sense, and it might well be that the that the conclusion is that there are two employers, but which of course is is in in principle not possible, uh, because you can only be employed on the basis of one contract with one employer in that sense. So it's um yeah, it's complicated. It is. I guess to to add to that, I also this is exactly the point which which I believe also mentioned earlier. Who who is actually the target? Because we what what who is the which group of workers is at risk of being you know put in a position with low low-paid position with no rights? Is that the group that uh finds an employer or a uh a client via these these these these boards, or are those other uh groups of workers and shouldn't the director be more focused on those specific groups of workers instead of the whole of the platform economy, which which it now basically does?
SPEAKER_03I if I may just may one moment, Connor, sorry, because I heard Lucas say something interesting, um, that in the Netherlands, the intention of parties, um, the choice they made to become uh independent workers or uh employer employee uh is no is not relevant. And it's the same in the directive. Article 3 indeed states that um the correct determination of the employment status should be based on the facts relating to the performance um and not on the the wording on the contract. And um in it's totally the opposite of what Belgian law states. Belgium in Belgium, the starting point is the attention of parties as it appears from in the contract. That's the starting point of everything. So I'm quite curious to how this uh how this all how this can be aligned with Belgian law indeed, uh, because the approach is totally different.
SPEAKER_00Yeah, correct me if I'm wrong, but I guess the the directive then totally uh eradicates or annuls the whole Belgian way of assessing this because it removes the intention of parties as well to a large extent, right? So um yeah, that would be interesting to see.
SPEAKER_03The starting point is different indeed.
SPEAKER_02Yeah, yeah, I think I I I think though, Julian Lucas, you you're on to a number of problems that we can identify with this directive and some of those unintended consequences. So on the face of it, I think from my perspective, the directive is a good thing. It wants to protect a certain portion or segment of workers, right? But I think the the impact of it has gone too far. And I think Lucas was on to something there that you've got the low choice, no choice workers that are typically on lower paid um contracts, either of agency work or um of independency or freelancing, and then you've got the high choice, high-paid workers. She or he can essentially negotiate where and when they work. They're typically freelancers, registered as a CZPR, or registered as an independent contractor in Belgium, Netherlands, Germany, Ireland, UK. They've got the financial risk, they've got the appropriate insurances in place, they've got an appropriate agreement in place, they've got potentially multiple sources of income, right? My view is that those workers should almost be discounted from this directive. And I think, Lucas, where you were going was quite interesting because there was a draft proposal in Netherlands around said ZP workers that they would have uh at least a minimum hourly rate, if I'm not mistaken. And um, maybe that's where the directive needs to go. Look after those workers that have the least choice, the least rights, the least negotiation power, and leave the market to look after the market. Now, I'm a capitalist, but I'm also pro-rights. I believe that the the most vulnerable in society should be protected. So I think we've got this dichotomy between high-paid high choice that will be captured potentially by this directive, and then low choice, no choice low-paid workers that need to be captured by this directive and need to be protected by it. Would you guys agree with that rather crude summary?
SPEAKER_00Yeah, yeah, and I definitely do. And indeed you're correct, referring to a uh currently this Carter proposal in the Netherlands, where you would have basically have an opt-out. Um, if you earned above a certain uh fee per hour, um, you would simply have the the option to contractually opt out of the whole discussion of being employee uh or not, you would basically definitively be um a um uh contractor, um uh as long as you keep working in accordance with what you you you agreed on paper. But unfortunately that better has been removed and has been replaced now with a more broader holistic uh draft tool, of which it's also quite uncertain of it will be implemented. Um, so in the Netherlands we are still also really searching for a way to make that uh make that work. But um indeed if if the aim is to provide provide certain groups of workers with certain rights, such as minimum wage, social security, a safety net, uh working time regulations, etc. Um, the question is whether this instrument really achieved it or or whether this is the correct instrument to achieve that. Um you can also, I don't believe Julie, you can fill me in there, but in in the Belgium, in Belgium, uh they have actually quite a good system in place. Even if you are a uh independent contractor, you still have uh part of those protections, uh, you still have to pay social contributions, etc. So a part of the problem would then already be solved, uh in my in my view, if you just put it put in place a safety net for uh, for example, a certain category of low-paid uh uh freelance workers, and that would be maybe an easier way even to to create those uh protections and safety nets for the group that you aim uh yeah you aim for.
SPEAKER_03Yeah, I I think um I agree with what you're saying, Connor, that it ideally it should be the case that uh independent workers uh enjoy social protection as well, and that this can be guaranteed, which is the case in Belgium. Uh, there is a minimum protection here um as a self-employed person, you pay contributions on a quarterly basis, and uh you enjoy social protection with the acceptance of unemployment benefits, but everything else is covered. Uh, and still we have the discussion here, and still they claim they're uh underpaid, underrepresented by trade unions, etc. etc., and their interests are not as well. So I don't think it's a great solution. Also, I'm actually wondering if the European Union would be competent, but this is an open question. I have to look it up. Um I have to look it up if the European Union would be competent to rule something about uh social security for independent workers. I don't think they're competent to do so. Um I also agree, I don't agree with Lucas because we talked about it yesterday, about the opt-out uh possibility. I see someone in the chat is uh um commenting on that as well. I don't agree with that because you we need the legal certainty. I think platforms need it. Uh I don't think they want to go to court every year. Uh that costs a lot of money as well, it's bad press. Um so I'm not a big fan of the opt-out because I think it's we need the legal certainty, but I agree that the definition of the directive had to be more clear, and I think they should have dared to limit it to gig workers, which is indeed different from talent workers. We had that in a previous podcast, which is interesting for all uh of our company to for the company to listen to as well. Um, but indeed the gig workers who indeed it's not important who does the work as long as the work is done, low-based. And then you have the talent workers there, it's very important, they're highly skilled, you uh hire them for their skills. Um, and I think the directive should should have made this this distinction. I think if you read the preliminary works, they're aware of it. Um, and but then in the definition, something went wrong. And uh the scope of the directive, I think indeed is too broad to to um achieve the goals that it sets.
SPEAKER_00Yeah, I I yeah, and and to to comment on the question, shall I conner? Sorry, shall I comment on the question that I saw in the in my screen?
SPEAKER_02Yeah, yeah, yes, please, Lucas. I I think that would be helpful. Thank you.
SPEAKER_00Yeah, so the the point made is that allowing workers to opt out would be would lead to workers opting out to save and for uh on employee uh the payroll taxes. Um of course that I I agree that that could be a risk. Um but this could also be limited by increasing a threshold, for example, the you know what we propose in the Netherlands, that it's only you're only only able to opt out above a certain uh uh fee or wage, and so you you you take away the as you say the the incentive maybe for lower paid workers to to make use of that to get more money and but then bringing putting themselves into trouble later on when they don't have uh the corresponding social security protections. Um but you could also still you know um issue a um um you say a directive basically stating that the national tax legislator has to implement mechanisms to evaluate whether or not that is a you know uh correct opt-out or not. So you you can still manage, I guess, at least over above a certain threshold, manage that is not uh abused in that sense. Um also not saying it's it's um it's the the the miracle solution, um but I think it's one of the one of the options we have um um to make it more um you know uh nuanced in that sense. Um and I guess I think the Jeffrey Newton is also asking what the true objectives of the EU directive are. Um I don't think catching tax cheating is is one of those. Uh it's definitely uh creating uh protection of uh of workers that are now working as as of working as freelancers and not enjoying minimum wage um protection as regards to um uh working hours, uh sick pay, etc. Um, and and yeah, they went and they want to create a more level playing field, I guess, for workers who are uh you know disadvantaged by working on certain platforms as a freelancer.
SPEAKER_02Thanks, Lucas. And guys, I just wanted to look at the presumption of employment. So as I understand it, there's the five criteria that that Julie very helpfully mentioned and outlined, but uh at its base form, the workers will automatically be presumed to be employees. Isn't that problematic where you have that bona fide freelancer or talent worker that Julie referred to? That worker that has uh taken on the financial risk, they've got a BV structure, or they're registered at the Dutch Chamber of Commerce as a freelancer. Where is their right of appeal in this if they're automatically considered an employee? What does that do to their company status or their status as a freelancer? Netherlands and Belgium and Ireland in Poland as a B2B? Is there anything in the draft directive around that, around the workers' right of appeal? If she or he wants to say, well, actually, I'm not an employee, I'm actually a freelancer.
SPEAKER_03I I just want to say that if you read the definition of digital labor platform, it mentions the somewhere the organization of work performed by individuals. So I'm actually quite wondering if you work with a company as a freelancer, does this directive apply to you? That's a good question, Connor. Uh so let's start there. Um first, I think you can uh indeed say that the directive does not apply to you, but of course, we must see how national legislation will um will be will implement the directive, of course. Um but here in Belgium, um it's it's an understanding from Lucas that it's different in the Netherlands, but in Belgium for courts and social inspection services, it's uh not an obstacle if someone is an independent worker through his own company. Um the person behind it can automatically be qualified as an employee, and uh the company can keep existing. Uh, it's just the the natural person itself who will become an employee, and all the consequences are for the employer with regard to social security, um regularization of um end-of-year bonuses, vacation, holiday pay, etc. etc. And it's all risks are for the employer, so um little to no risk for the person behind uh a BV company.
SPEAKER_00Yeah, it's it's a really interesting uh question, uh Connor, as well. Indeed, in an uh an individual can also have a company, uh there's no legal uh differentiation between the company and the individual in that sense. So that's different than I I understand that it is in Belgium. Um but of course, um the the directive focuses on an individual assessment, however, uh these platforms usually work with the same mechanism. So, for example, if you have a platform with 4,000 workers, uh it's not really visible, you can't really understand or see see it clearly how um if one worker is deemed to be an employee, what the impact would be on the other 3999 workers uh working on the same platform? Will there also be an individual assessment of that particular case? Or will will the general assumption be well, it's the same algorithm, the same platform, so you are now all employees? And does it also mean, and this is a very interesting question, that all those workers are forced into accepting being an employee, which also means in the Netherlands you have to work in certain rosters, you cannot refuse assignments, you have to accept uh um wages based on um collective labor bargaining agreements, for example, um, the impact on your on your net income, maybe investments you have made will suddenly be um uh you can suddenly disregard because they will not be of any use as an employee anymore. So the impact thereof is very uh very high, also for a lot of people that might not even want to be and have good reason for not wanting to be uh an employee because they have made investments, they have made a sound decision on being an entrepreneur using one or more platforms. Um, also that that you know that's so that's a really interesting question. Uh my assumption or my assessment of this is that there will be a big discussion in the beginning of uh after the implementation, and afterwards it's clear which platforms are not employer and which platforms are based on you know the their specific algorithm, and then the discussion might end, and this whole legal presumption effect is also just temporary one and used to define which companies is and which companies not a uh employer. I mean, yeah, so uh and I'm not sure of if that effect is desired desirable.
SPEAKER_03Yeah, I'm I'm actually wondering, I have a question for you, Lucas and Connor. I have a question. Uh, how is it in the UK and the Netherlands here in Belgium? A judgment can never be a general statement. Um, so it's always linked to the parties involved and only applies to them. So if it's between the platform and uh one in the butt platform worker, then it only relates to the platform worker and cannot be a general statement. So it has to be like a class action, actually, if you want to um make the uh make this a general something. Um I'm wondering how it is in UK and in the in the Netherlands.
SPEAKER_02Is this the same principle apply or yeah, I I that's my understanding, Julia. I haven't worked worked in in law for for years, but based on my understanding of the Uber judgment in the UK, it applied to those those workers that brought the action. So it doesn't have general effect, but I think it has something called, going back to my legal days here, uh called instructive. Um, it's instructive in terms of other cases. So let's say 20 workers of delivery brought the same sort of action in the same set of circumstances, it's likely that the court would look to that previous case against Uber and take that as being instructive. So that's so that's my understanding. And I think that the big problem in the UK is that there's a lack of primary legislation with regards to gig workers. Um there's a there's something called worker status in the UK, but it's not quite clear how they're governed.
SPEAKER_03Um governed those umbrella agreements, right?
SPEAKER_02There's all sorts, and I I see Julia Cromode on the call, um, who's a who's a a bona fighting expert in in this uh space. Julia, if you're listening and and not on another call, would you would you care to comment on the on the UK position?
SPEAKER_01I wouldn't do my video because um I'm not suitable for the public something afraid at the moment. Um in terms of the position it's it's got it's really happening in the in the UK. It's it's difficult because it's all just continuously in I don't think it will necessarily apply, but I do think that the UK will take notice of it. Um and I think there will be problems if if the UK doesn't. I don't know if that's helpful or not because it's all so vague, isn't it? So sorry if I'm not being helpful.
SPEAKER_02That's great. Thank thanks for jumping on and and sorry for catching in on the hop there.
SPEAKER_01Always happy.
SPEAKER_02Thanks, Julia. Uh Lucas, same question, yeah, Julian.
SPEAKER_00Yeah, go, yeah, sure. No, so I mean, and I guess in the Netherlands, also the starting point is that the the judicial verdict can only bind the direct part parties in the procedure. However, uh there are there, it's a little it's not as clear as that. Um in general, it the the the starting point is that other parties might also have a beneficial effect of a verdict, but it cannot be it cannot be detrimental to their position. But even that that is a very uh um vague assessment. And also what what what what you see in the Netherlands, also in particular in these kind of cases, that um some parties find a way around that. I mean there are have been some cases based on on class action, uh, but for example, you can they you've also certain cases where they where they basically make the judge rule that uh the employees of a certain platform are uh or the workers of a certain platform are employees, um, and and of course this this creates case law uh which uh other employees can simply use and hold up their hand and say, look, the judge ruled that I'm an employee, because all all workers on the platform are employees, because the the platform has been obliged to apply certain um a certain collective bargaining agreement in a certain sector, or and so it's it's a it's an indirect effect of these judgments that it then in reality they are bargaining uh for the platform towards all um individuals working on it. So um, yeah, of course, and then this is my point. Uh once a couple of those cases have been uh published, is there actually going to be any any room for rebuttals or discussions anymore? Um because the the defining argument is the the way that the the platform works, operates, and the way the the algorithm works or the how the work is verified, especially with the with these platforms that have these algorithms in place.
SPEAKER_02this will be the same for all for all workers if you if you if you're talking about the um the high skill workers that might be a different scenario there and so there might be actual individual cases where that needs to be assessed but for the larger platforms i guess that's um it will be dealt with uh uh very clearly after a couple of those court uh cases and then it's just uh governing case law basically I think it's going to be a challenging time if you're a platform operator given the the wide definition that we see today the other thought and I wanted to ask you both this question guys and I I know we're talking about the future and we need to see um how the the the local legislators or countries will put this um directive into effect but if there's the automatic presumption that that the worker is some form of employee does that mean that a labour platform or digital labor platform should be registered with the Federgon for example in Belgium or why we registered in Netherlands or should they be registered potentially with those already what what what's your take on that guys so um for those who are not uh from Belgium Federigon is the the federal uh institution here for um um temporary labour um and you should they advise um and um you have to have a membership uh as an I think you're referring to the the legislation here regarding temporary work right yeah that's correct you have in Belgium you have to have uh you have to have um you have to be recognized as an official temporary work agency um what is very specific for temporary work is that the employer's authority is transferred from the temporary work agency to the end user and here uh if you apply the criteria and all the criteria are met then indeed the platform uh would be the employer and indeed exercising authority over its workers so it's not the end user so it's not temporary work then I would I would imagine if it would be the case then we have a problem I think because then there's some weird logical uh experience behind it um but I think uh this directive somehow strangely would minimize the risk then for platforms which is in Belgium the case because if you work if you are considered a non-recognized uh agency for temporary work then there are severe sanctions however if this would be if you were re-qualified as an employer then in my opinion you cannot be a temporary work agency because the authority is with you and not with the end user um that would be the logical uh reasoning behind it that you never know what will what the future will hold but I I think because right now if you don't have um the situation right now would be indeed that the end user would be considered the client sorry the employer and uh if then there is a platform in between then the platform could be considered um a temporary work agency who is who is non not recognized as such and indeed uh would be um would be risking uh sanctions for that so this directive with regard to that exp aspect is a good thing of course the sanctions for becoming an employer the consequences for becoming an employer are much more severe but um you're not risking to be uh to fall within the scope of the legislation for temporary work understood thanks thanks Julian Lucas the the same question to you but my my presumption would be that if you're operating a platform company in the Netherlands you really don't want to become the employer of the workers given that the employment legislation as an employer is quite quite rigid in the Netherlands but same question to you Lucas please yeah no indeed yeah no I mean uh um there are some companies as I believe just e takeaway is also issued statement that throughout Europe they want to get rid of uh freelancers and they actually want to have employees on their payroll the net the Netherland the Dutch uh company uh of just e takeaway I believe currently also already only operates with employees so there there is already companies that that do see the benefits perhaps on having um basic staff uh uh what do you say staff take if they have on paywall um but yeah indeed the the the the Dutch protection uh for for for employees is very high it's really hard to to terminate an employment relationship there's all sorts of of minimum wage rides minimum amount of hour rides per per assignment etc so it's a really complex um and and and heavily regulated um piece of legislation you you will you will get there as a as an employer um uh as regards to um you know uh um posting workers yeah you you you do have um uh basically the requirement in the Netherlands that uh um as a as a temp agency you can only be a temp agency if you bring together the uh you know the clients looking for for for labor and the people offering uh labor and but it's not per se a negative thing to be qualified uh a temp agency because you have a uh in the Netherlands at least because you have a uh um of employment law regulations that applies it's easier to to for example to offer employees more definite term contracts in a row than you would otherwise be allowed to as a normal employer and the question is whether or not these these platforms would actually be deemed tech agencies given the requirements that have been recently introduced in the Netherlands but if so um that that particular part is not the problem I think the problem is being an employer why why you don't want to be an employer um at least for from the perspective of those companies then um so it will be really depending on a specific platform whether or not what the the impact thereof is if they would be deemed temp agencies and what the the consequences would would would be um yeah thanks Lucas your question it does um Lucas and sorry we're I know we're we're drilling down in into the into some of the detail but I think what I wanted to demonstrate is how potentially problematic and complex this directive is going to be when it's interpreted into local legislation and the other the other question that I wanted to get your thoughts on guys relates to the test for employment right and in terms of whether the worker that's presumed to be an employee automatically that she or he is truly an employee right so each each country in the EU as we all know has different interpretations of what an employee is but if you think about a platform that's headquartered in Ireland but has borderless talent in Netherlands Belgium Italy Germany how do we get a do we need a universal test as part of this directive to ensure that she or he is truly an employee in that particular country what what's your thoughts on that either Lucas or Julie or both I could go well yeah I mean it's it's an interesting point because the directive explicitly does not intend to provide for a universal definition of what an employee is um it's it just creates that presumption uh on uh on on the basis of these five criteria that have been introduced for the whole of the EU but it it's um it leaves it to the national legislature legislator to for example in case of rebuttals to to determine uh whether or not an employee is in fact uh worker is in fact in fact an employee or not based on local legislation so it doesn't provide actually doesn't provide for a for a universal uh definition which of course it does seem a little bit problematic uh at the same time because they do introduce these five criteria so uh it there there are definitely going to be conflicts between local jurisdictions in the assessment of in case of rebuttals I would assume so but from the perspective of this Irish company um yeah you you do have to take into account all the differences in local legislation and I I would believe that the the place where the the worker will be carrying out its services or its its its activities will be uh the defining um um um you know point meaning that you wherever that worker is is carrying out his work that that is the jurisdiction that you should take into into account for the assessment I agree here in Belgium it also touches upon the legislation regarding social security which is of uh public order so you can never uh derogate from from that um so uh every service provider every employer must follow this kind of legislation and the social security contributions would be due then you must pay them yeah and and and also to point out a clear friction with for example how it goes in the Netherlands in the in the Netherlands the Supreme Court has determined you have as I said before you have to have this holistic assessment of all the circumstances to determine whether or not in fact there is an employment relationship or not whether there a certain employer's control is exercised over the worker but now you are confronted with with only five criteria at least in the case of of platform work so how is that going to be translated into um you know um the new Dutch legislation how are courts going to be dealing with that um yeah that that's a big big question yeah here in Belgium we have four criteria uh in general for some sectors there are multiple criteria and nine criteria or more uh but general generally speaking there are four criteria and you can only re-qualify so the starting point is the intention of the parties as the peer would appear from the contract and you can only re-qualify into something else if there are elements in the global situation that would be um which are um which cannot be um how do you say it in English I cannot find the word right now this is embarrassing and so uh if you cannot find if there are elements which uh you cannot um which are yeah help me help Lucas only is the incompatible is the word I was looking for which are incompatible with the status the chosen status so if you were if you have chosen for an independent contract um a contract for uh independent work um you can only requalify into an employment situation if there are elements which are incompatible with such a situation of independent work and this directive indeed I agree also agree with Lucas uh in Belgium as well this is it's totally different because you have five criteria and uh there is no cra no criteria of um of incompatibility compatibility anymore so it just limits companies a little bit more I think I I I think my takeaway from today Julie and Lucas is that this is going to be very problematic for platform operators potentially very problematic for workers that are providing their services or being engaged by platform companies but I think it's going to be very good for labor and employment lawyers I hope so anyway for you for you guys but it in summary Lucas do you think this is going to be problematic for the platforms yes or no oh well definitely yes and Julie same question uh if there is a clean if there is coming a clear definition of platform platform uh then I don't think it's too problematic uh but we need it we need a clear definition I it it must be more uh clarified than what it is right now if there if if not then indeed it would be it will be problematic and give rise to a lots of this lot of discussion. I think so guys I going back to my own legal studies there was this great phrase in English law that you could drive a a coach and four four horses uh through this this particular definition because it's it's so broad and so wide and I I think perhaps that's a good way to end the webinar today. Lucas and Julie thank you very much indeed uh to you both for your expertise and opinion I won't call it advice because of the disclaimer at the beginning um we will link your respective uh companies in the show notes and also on internet so if anyone uh in our audience does have any legal queries or concerns in terms of what we've raised today that they can contact you um individually and directly so guys that that was great I've got learned a lot about the directive today I think there's a lot of problems there but also some opportunities to to your point Julie and um thank you very much indeed to your audience for joining us so guys have a great afternoon and and day ahead and and thanks ever so much for joining us everyone all the best