Crowd Working and the Transparent and Predictable Working Conditions Directive

On 16 April the European Parliament voted to approve the Transparent and Predictable Working Conditions Directive, which is aimed at strengthening the rights of workers and improving working conditions by promoting more transparent and predictable employment whilst ensuring labour market adaptability.

The Directive applies in particular to platform workers (aka crowd workers), but also covers workers including those in casual or short-term employment, on-demand workers, intermittent workers, and voucher-based workers. Genuinely self-employed persons should not fall within scope, but the Directive states that the determination of the existence of an employment relationship should be guided by facts relating to the actual performance of the work, not the parties’ description of the relationship.

Increased transparency
When the Directive is transposed into national law, all workers will have to be informed( from day 1 and no later than 7 days after commencing work where justified) of the essential aspects of their terms and conditions, including a description of duties, start date, the expected duration, remuneration (including component elements and frequency and method of payment), and standard working day or reference hours for those with unpredictable work schedules. The information can be provided in electronic form provided it can be stored or printed.
Where a worker is required to work abroad for periods of 4 weeks or more, additional information must be provided.

Minimum requirements relating to working conditions
Probationary periods: Probationary periods will be limited by law to a maximum of 6 months. In the case of fixed-term contracts, the probationary period must be proportionate to the expected duration of the contract and the nature of the work. Member States may, however, provide for longer probationary periods on an exceptional basis, or for the probationary period to be extended where the worker has been absent from work.

Parallel employment: Employers will be prohibited from preventing a worker from taking up employment with other employers outside the work schedule established with that employer. However, Member States may lay down conditions for the use of restrictions by employers including protection of confidentiality.
Of particular importance in the Crowd Working context – Minimum predictability of work: Where a worker’s work pattern is entirely or mostly unpredictable, the worker will not be required to work unless (1) the work takes place within the reference hours and days notified to the worker at the outset and (2) the worker is informed of the assignment within a reasonable notice period (as established by law or collective agreement). Workers will be entitled to compensation if the employer cancels a work assignment after a specified reasonable deadline.
On-demand contracts: Member States will be required to take measures to prevent the abuse of on-demand contracts, including limitations on use and duration, a rebuttable presumption of the existence of an employment contract with a minimum amount of paid hours based on the average hours worked in a given period, and other equivalent measures.
Transition to more stable employment: Where a worker has 6 months’ service with the same employer they will be able to request a form of employment with more predictable and secure working conditions where available and receive a reasoned written reply within 1 month.
Enforcement: Member States will be required to put in place effective enforcement mechanisms and to protect workers from detriment or dismissal for exercising their rights.

In the case of crowd workers, it depends on the individual case whether they are regarded as workers and whether the Directive applies to them. The contractual provisions on potential rights to issue instructions are of major importance in this respect. The employee concept of the European Court of Justice, the national case law of the German Federal Labour Court (Bundesarbeitsgericht) and the recently introduced and controversial Sec. 611a of the Civil Code (Bürgerliches Gesetzbuch, BGB) must be taken into account in this context. Ultimately, only careful drafting and clear and unambiguous wording of the contract can protect against unwanted surprises that neither crowd workers nor platform operators or their clients expected.