Belgium: Labour Deal 2022: Better Protection for Digital Platform Workers

Belgium has not escaped the global and long-standing debate on the social status and protection of platform workers. Belgian case law and the Labour Relations Commission (Administrative Commission for the Regulation of Labour Relations) have so far played the leading role regarding the qualification of the employment relationship between platform workers and the digital platform, but no unambiguous interpretation has emerged from this, so the discussion continues. Following the European Commission’s proposed Directive of late 2021 and perhaps further hastened in this regard by the ruling of the Brussels French-speaking labour tribunal of 8 December 2021 (which qualified Deliveroo riders as self-employed workers), the Labour Deal Act contains a Chapter 4 that introduces two measures to improve the protection of platform workers. The first measure introduces a rebuttable legal presumption that platform workers are bound by an employment contract if certain criteria are met. A second measure requires digital work platforms to offer work accident insurance to self-employed platform workers.

1) Rebuttable presumption of employment contract

The first section of Chapter 4 makes some changes to the labour relations law, notably by introducing a new Chapter entitled “Presumption regarding the nature of the employment relationship for digital commissioning platforms”. The main novelties are in a new Article 337/3 Labour Relation Act.

This first defines some key terms, in particular “digital platform client”, the “platform worker” and the “platform operator”. These definitions immediately delineate the scope of application. A digital platform principal is “the provider of a for profit service that, by means of an algorithm or any other equivalent method or technology, is able to exercise a decision-making or controlling power with regard to the manner in which performance is to be realised and with regard to labour or pay conditions, and that provides a paid service that meets all the following requirements: a) it is provided, at least in part, remotely via electronic means, such as a website or a mobile application; b) it is provided at the request of a recipient of the service“. This does not cover platforms whose main purpose is to exploit assets or resell shared goods or services or that provide a service on a non-profit basis. Digital platforms such as Airbnb will therefore not be covered.

The “platform worker” is then “any person performing platform work through a digital platform principal, regardless of the nature of the contractual relationship or its qualification by the parties involved.” And the platform operator refers to “the natural or legal person who, directly or through an intermediary, operates the digital platform principal.”  In particular, it is the operator who will be able to take actions that may indicate the existence of an employment contract and thus qualification as an employee for the platform worker. The above terms and definitions are not quite the same as those used in the European Commission’s proposed EU directive although they are inspired by it.[3] One may ask why they have not adopted these European definitions, although they are not yet final. Moreover, it is bizarre that the definition of digital platform principal already itself refers to the platform’s decision-making or controlling power over how performance is carried out, whereas this is precisely what the criteria are supposed to examine.

Second, the labour deal introduces a special rebuttable legal presumption of the existence of an employment contract for the platform economy in Article 337/3, §2 Labour Relations Act. The aim of this is to create more legal certainty for platform workers and platforms and thus to provide more clarity in the discussion on the nature of their employment relationships, without wanting to ensure an overly rigid demarcation. After all, it should remain possible to perform services for a platform as a genuine self-employed person.

For the digital platform principal, until proven otherwise, employment relationships are presumed to have been carried out under an employment contract if the analysis of the employment relationship shows that at least three of the eight included criteria or two of the last five criteria are met. In particular, the last five criteria correspond to the criteria of the legal presumption proposed by the European Commission.  With a view to a future transposition of the potential directive, these criteria were largely “copy-pasted” into the labour deal and three more Belgo-Belgian criteria were added. Below, we discuss the eight criteria.

The three Belgo-Belgian criteria are:

• 1° The platform operator may claim exclusivity with respect to its field of activity: this criterion is not further clarified. It is striking that the legislator uses “may” here and in most of the following criteria, making it only a possibility for the platform operator, i.e. one does not have to prove that it actually happens. An important question here is what the legislator means by the “field of activity”. Perhaps one should look at the type of services offered by the platform. However, this limitation to the field of activity seems unnecessary. After all, if the platform operator were to claim a general exclusivity that is not limited to its own field of activity, this would even more clearly indicate a relationship of authority between the parties.
• 2° The platform operator may use geolocation for purposes other than the proper functioning of basic services. The use of geolocation is a classic criterion that recurs in domestic and foreign case law. Especially when geolocation is used as a means of control, it indicates a subordinate employment relationship. This then points to a hierarchical control which is one of the four general criteria to determine the employment relationship (Art. 333, §1 Labour Relations Act). The criterion here provides a general exception for the case where geolocation is used for the proper functioning of services. This very broad definition leaves much to be desired. Indeed, any platform operator will claim that geolocation is only used for the proper functioning of the app. It is usually very difficult to refute this, especially if there is no clarity on how the platform’s algorithms work.
• 3° The platform operator may restrict the freedom of the platform worker regarding the manner of performing the work. This criterion corresponds to one of the four general criteria to determine the nature of the labour relation qualification, namely the freedom of organisation of work (Art. 333, §1 Labour Relations Act). The explanatory memorandum gives the example of a bicycle courier who is not free to choose his route or determine the method of delivery himself, or if he has to notify the platform of the receipt of the parcel according to a predetermined procedure, indicating the time of receipt.

The five European criteria are:

• 4° the platform operator may limit the level of the platform worker’s income, in particular, by paying hourly rates and/or limiting a platform worker’s ability to refuse orders based on a proposed basic rate and/or by not allowing him to determine the price of the work. Collective bargaining agreements are excluded from this clause. This criterion is not explained further but concerns the independent decision-making power of the platform worker over the price of services. It is noteworthy that the criterion excludes price provisions in collective bargaining agreements. The explanatory memorandum even refers specifically (and only) to collective bargaining agreements of the National Labour Council, while the Act itself refers purely to collective bargaining agreements in general. At present, it is not legally possible to conclude collective bargaining agreements in accordance with the Collective Bargaining Act for self-employed workers. But perhaps the legislator here envisages a future adaptation of the Collective Bargaining Agreement Act. We will not delve into this mystery any further.
• 5° To the exclusion of legal provisions, particularly on health and safety, applicable to users, customers or workers themselves, the platform operator may require a platform worker to comply with mandatory rules on appearance, behaviour towards the recipient of the service or performance of the work. The typical example of this is the imposition of a uniform, but other guidelines on appearance and behaviour of platform workers also come into consideration. Most platforms have such rules laid down in policies and may easily meet this criterion.
• 6° The platform operator can determine the prioritisation of future job offers and/or the amount offered for a job and/or the determination of the ranking by using the information collected and by monitoring the performance of the platform workers, excluding the result of this performance by electronic means. This criterion indicates, among other things, the frequent use of “user ratings” to monitor and evaluate the performance of platform workers and attach certain consequences, including sanctions, to it. This obviously indicates hierarchical control (one of the four general criteria).
• 7° The platform operator may restrict, possibly including by means of sanctions, the freedom of organisation of work, in particular the freedom to choose its working hours or periods of absence, to accept or refuse tasks or to use subcontractors or substitutes, except when in the latter case the law expressly limits the possibility of using subcontractors. Again, this incorporates one of the four general criteria, namely freedom of organisation of working time. This criterion also points to the practices whereby platform workers are sanctioned if they refuse certain shifts or if they are not available enough for shifts. As a result, they would be assigned fewer assignments, for example, or would only be given access to the platform at less popular times.
• 8° the platform operator may restrict the platform worker’s ability to build a customer base outside the platform or to perform work for a third party. Most platforms give platform workers limited visibility of users’ data; this may also follow from the application of the GDPR. This also targets exclusivity clauses.

As noted, several of these criteria are quite similar to, or are specific elaborations of, the four general criteria to determine the employment relationship (Art. 333, §1 Labour Relation Act). Nevertheless, this is a rebuttable presumption that applies until proven otherwise (by all means) and will therefore also be rebuttable using the general criteria themselves. This is reminiscent of the Brussels French-speaking labour tribunal’s ruling on the Deliveroo riders in which the court found that Deliveroo met most of the criteria of the transport sector’s rebuttable presumption but then used the four criteria to rebut the presumption.  Based on that finding, one might cynically ask whether such a rebuttable presumption would then be useful in creating more legal certainty for the parties. It will probably depend on its application by the courts and the Labour Relations Commission.

A final note on the rebuttable presumption is that one has to take into account the use of algorithms. This amounts to the primacy of the actual exercise of the agreement over the legal qualification chosen by the parties.  Thus, it will not be possible to neutralise the application of the criteria by providing specific clauses in an agreement when in practice the platform’s algorithms indicate a different operation. Of course, this is easier said than done. For example, it is unclear what disclosure platforms should provide about the operation of their algorithms. They are often reluctant to do so, as this is usually a trade secret. Even if they were to provide transparent disclosure, it is not obvious for judges or Labour Relation Commission members to properly assess the functioning of the algorithms and they may have to rely on external expertise. In the proposed EU Directive, the European Commission did consider this further and there is a comprehensive information obligation on the operation of algorithms towards platform workers.  However, the Belgian legislator has not gone that far.

This section will come into force on 1 January 2023. Its scope is the same as that of the Labour Relations Act and thus equally concerns the public sector (as far as contractual workers are concerned).

2) Accident coverage for self-employed platform workers

The second Section of Chapter 4 of the Labour Deal Act provides for a legal obligation for platform operators to provide insurance for self-employed platform workers to cover bodily harm resulting from accidents occurring during the performance of remunerated activities through the digital platform or accidents occurring on the way to and from these activities. So, de facto, they should take out a sort of occupational accident insurance for the self-employed platform workers similar to the one for employees. Either the platform worker will be considered an employee and, the platform operator (being an employer) should therefore take out work accident insurance in any case. Either the platform worker is a self-employed person – or the platform operator will claim this in any case – and then he will equally have to take out insurance. So, there is no possibility left to escape.

The platform operator who fails to fulfil this obligation will be held civilly liable for damages to the platform workers. Moreover, Chapter 14 of the Labour Deal Act in Book XV, Title 3, Chapter 2 of the Economic Law Code provides a level 2 criminal sanction for platform operators not conforming with this obligation.

Moreover, Article 581 of the Judicial Code will be amended so that labour tribunals -and courts of appeal will also have jurisdiction to hear disputes concerning this “common law (industrial accident) insurance”. Thus, self-employed platform workers will thus have equal access to the same courts as employees.

The king can extend the coverage to legal aid and, in addition, he should set the minimum guaranteed conditions of the insurances. The protection should be similar to that for workers’ industrial accident insurance. The fact that the government still has some work to do in working out this system has also led to the fact that the effective date of this section will be determined by royal decree. Thus, it could be some time before this system becomes a reality. Especially given that it is hard to imagine that the three short articles in the Labour Deal Act can regulate in sufficient detail a complex fact like a legal accident insurance.