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Nicolas Schmit, European Commissioner for Jobs and Social Rights

Serbia Must do More for Workers

In order to enhance the wellbeing of workers across the region, I urge Serbia to revisit the 20 principles of the European Pillar of Social Rights and its three Action Plan targets, which are key to the EU agenda for social justice and worker protection

According to Nicolas Schmit, European Commissioner for Jobs and Social Rights, the Platform Work Directive represents a significant step in addressing bogus self-employment in the platform economy and establishing pioneering regulations on algorithm use in the workplace. Speaking in this interview for CorD, Schmit discusses the recent milestones reached in regulating working conditions for platform workers in the EU, AI at work and the benefits of Serbia’s faster alignment with the European Pillar of Social Rights.

The Commission’s proposal, which was negotiated between the European Parliament and Council, culminated in a new directive being confirmed by the employment and social affairs ministers of EU member states on 11th March 2024. With over 28 million EU citizens currently working through digital platforms and that total expected to increase to 43 million by 2025, these regulations have a significant and timely impact.

The Directive targets the regulating of work conducted via online digital labour platforms like Upwork, as well as on-location platforms like Glovo or Wolt. Serbia and the wider region, as significant global suppliers of labour for digital platforms, face challenges with ambiguities of employment status, particularly among freelancers and couriers, making it an imperative to swiftly implement this Directive in domestic legislation.

News of the reaching of a consensus on the EU Platform Work Directive was received with either great enthusiasm and accolades or with a sense of half-hearted relief. Ultimately, does the final text meet your initial expectations?

— I am satisfied with the final result. The Directive will be a game-changer in tackling bogus self-employment in the platform economy. And it is a world first in the sense that it establishes the first-ever set of comprehensive rules to deal with the role of algorithms in the workplace.

The presumption of employment will help misclassified platform workers access the labour rights to which they are entitled, such as minimum wage or paid annual leave. This Directive is an important advance in improve working conditions and data rights for people working on digital labour platforms.

More cautious people are noting that many important issues related to the quality of work for platform workers that were not addressed in the Directive – such as working times, privacy at work, and information and consultation of workers and their representatives – are central to the rights and livelihoods of workers. Did you deliberately leave those issues to be regulated by the expected ILO Convention?

— The EU already has solid minimum standards on aspects like working time or collective rights. The issue we set out to tackle was ensuring that people who work through digital labour platforms and are really workers, and not self-employed associates, could enjoy those standards and rights.

More EU action is needed to address AI and algorithmic management at work, benefiting the Single Market. Decisions will involve the next Commission, European Parliament, and Member States

I do, however, recognise that problems might differ in other jurisdictions, including in the Global South, where minimum rights still need to be established. I am therefore looking forward to the efforts of the ILO to engage in standard setting for the platform economy.

The new approach embraced by the EU Platform Work Directive is arguably part of a broader, long-advocated trend towards expanding labour rights to all those who perform work in a predominantly personal capacity. Is this sufficient to address the changing nature of work resulting from technological advances and to provide adequate protection to isolated workers?

— We have to ensure that nobody in today’s world of work is left out. All people who work should be entitled to basic rights and protections, whether they are an employee or are self-employed. Labour rights are mainly for workers, but self-employed solo workers can also be in a vulnerable position. We are therefore working with member states to ensure that self-employed persons also enjoy adequate social protection coverage. Similarly, we have clarified that solo self-employed people engaging in collective bargaining to improve their working conditions does not violate the rules of EU competition law.

The current text of the Directive essentially delegates to national authorities the task of designing their own—possibly ‘less stringent’—rebuttable presumption of employment status. Considering that France was a harsh opponent of the Directive and Germany was undecided, while many other member states gave only lukewarm support to the Directive, is there a risk that the essential idea of the Directive to protect gig workers could be watered down in national legislations? If the EU shifts further towards the right side of the political spectrum, how will this impact the current success of the Directive?

— Don’t forget that 25 of the 27 member states ultimately supported this Directive. This sends an important signal. Of course, our initial proposal was more ambitious, as it included a set of harmonised criteria to trigger the presumption.

Member states now have more freedom to design the presumption in line with their national legislation, but the common triggering point remains the same: facts indicating that the platform directs and controls the platform worker. When transposing the Directive, member states must ensure that the presumption is effective and constitutes a real procedural facilitation on the ground.

According to the latest research conducted by Eurofound, the proportion of self-employed workers in the EU has not increased since the start of the 21st century, while it fell from 15.4% to 13.7% between 2010 and 2022, which could be interpreted as a positive sign. However, many EU member states lack formal (compulsory) coverage for unemployment or sick leave and accidents at work for self-employed people. Why is that; and where is more future effort needed at the EU level?

— Our social protection systems were designed for workers in full-time, open-ended jobs and have only recently started to adapt to the increasingly diverse, fast-changing world of work. In 2022, almost 40% of the population in employment were in non-standard forms of work, including self-employment, and many of them face significant gaps in social protection coverage. The self-employed are not covered by at least one branch of social protection in 19 Member States, most often unemployment, sickness and accidents at work.

With the 2019 Council Recommendation on access to social protection, we made a clear case for member states to take action to ensure formal coverage and effective access to adequate benefits for all workers and the self-employed. Several steps have been taken since then, but much still remains to be done. Effective monitoring, mutual learning and reform guidance and support are key tools in our hands, and we are pursuing them resolutely. In the end, adapting social protection systems is a long-term process.

The boundaries between self-employment and employment are blurring, prompting many experts to suggest that the criteria for determining employment status need to be clarified. Are we on the cusp of establishing new definitions of employees and employers in labour laws across Europe?

— The Directive doesn’t aim to establish a new definition of who qualifies as a worker. We have national definitions of the employment relationship – which, by the way, don’t differ so much from one another – and we also have the case-law of the Court of Justice.

The main benefit of the employment chapter of the Directive is in shifting the burden of proof: if there are facts indicating control and direction, it is up to the platforms to prove that the person is self-employed and not a worker

Many courts have used the established national definitions and case law to reach the conclusion that it is the platforms’ algorithms that are directing and controlling workers. As such, the main benefit of the employment chapter of the Directive is in shifting the burden of proof: if there are facts indicating control and direction, it is up to the platforms to prove that the person is self-employed and not a worker.

One major success of the Platform Work Directive is its provisions related to algorithmic management. How widespread is algorithmic management becoming in traditional sectors of work and is there a need for a new directive addressing the application of AI at work?

— The use of algorithmic management has been reported most often in logistics (transportation, storage and delivery services) and manufacturing. Up to a quarter of EU companies might already be using algorithmic management in their workplace.

As of 2022, up to 28% of European companies may have been using technology solutions and/or AI tools to support recruiting and hiring efforts. However, there is scope for further EU policy action to tackle the use of AI and algorithmic management at work, with straightforward benefits across the Single Market. Of course, this will be for the next Commission and the new European Parliament to decide, together with the member states.

For the first time in recent history, the European Commission has made significant comments regarding Serbia’s accession process in Chapter 2 (Free Movement of Workers) and Chapter 19 (Social Policy and Employment). As we are at the beginning of the opening of the labour market across the region; what would you suggest to Serbia and the countries of the region regarding workers’ wellbeing?

— To ensure workers wellbeing – not only in Serbia, but across the whole region – I invite Serbia to revisit the 20 principles of the European Pillar of Social Rights and the three targets of its Action Plan, which are milestones of the EU agenda for social justice and workers’ protection. Serbia should also already start planning what actions the state can take on its path of upward social convergence. Support for a decent minimum wage system and collective bargaining in private and public sectors, to ensure good working conditions and equal treatment, should be at the centre of this process.

I welcome the fact that Serbia and other Western Balkan countries are actively participating in the European Year of Skills

No free movement can be successful without adequate social protection and active labour market measures for the participation of all. The important aspect running through the report on Serbia’s accession is strengthening labour market and social institutions, and preparing for working with the ELA and EURES. Bringing women and youth into the labour market needs special attention. Within the free movement, negotiating bilateral agreements with EU member states and neighbouring countries to ensure social security and pension rights, and to avoid double taxation for mobile workers, should be addressed. And, last but not least, I would recommend delivering on all these policies through effective social dialogue and the full involvement of social partners.

The EU proclaimed last year as the European Year of Skills. The European Training Foundation, representing the EU, is implementing numerous projects across the region that are aimed at improving the skills and competences of the workforce. How will the Year of Skills be extended in the EU and the Western Balkans, and how will it address the lack of labour in the region and the inadequate digital and other skills of the workforce for the future?

— I welcome the fact that Serbia and other Western Balkan countries are actively participating in the European Year of Skills. They have nominated National Coordinators and are promoting many activities to address skills gaps and promote a culture of lifelong learning and up/reskilling. The Year will come to a close on 8th May, with a closing conference taking place shortly before that [30th April]. However, this doesn’t mean that our work on skills will end then. Skills will remain a key policy priority for the EU, including through our European Pillar of Social Rights and EU Skills Agenda. Indeed, the European Training Foundation is an active partner in the Western Balkans region, and you can be sure that it will continue to provide support for the development of strategies and tools for a skilled workforce. The ETF has been supporting the modernisation of Serbia’s VET (Vocational Education and Training) and education system, developing dual-VET and assisting with mapping the needs of teacher training to increase the quality of education and training in Serbia.

LEADERS

The EU Platform Work Directive is a world first in the sense that it establishes the firstever set of comprehensive rules to deal with the role of algorithms in the workplace

SKILLS

Skills will remain a key policy priority for the Union, including through our European Pillar of Social Rights and EU Skills Agenda

LESSON

The opening of the region’s labour market should be followed by adequate social protection and active labour market measures for the participation of all

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