Member Article

Platform work entails the use of an online platform, serving as an intermediary between the clients and the workers for the performance of particular services or to carry out particular jobs in return for payment. In this way, division of work into specific jobs is favoured over a long-standing employment relationship. One can distinguish between online labour platforms where the tasks are carried out regardless of the location and can thus be performed remotely, and on-location labour platforms, like the transport of people or food, the latter gaining increasing popularity throughout the COVID-19 pandemic.

Classification of individuals carrying out platform work as workers is of utmost significance in that it entails the right to a minimum wage, the right to leave, health and safety protection, unemployment and sickness benefits, pensions and collective bargaining.

Despite the fact that Malta does not have a regulatory legal framework dedicated exclusively to platform work, the Employment Status National Standard Order (S.L. 452.108) is relevant in this area. This National Standard Order establishes a presumption in favour of an employment relationship with respect to the employment status of those who are defined as being self-employed and this on the basis of certain criteria being met. It will be interesting to see how the Maltese legislator will combine this Order with the implementation of the new Directive to ensure there is consistency between the two.

The European Commission while recognising the increasing importance of the platform economy, is also aware of its risks, especially with respect to working conditions. Furthermore, due to the ambiguity that surrounds the legal status of such platform workers, the extent to which such workers are entitled to social and labour protection is not clear cut. This lack of protection places platform workers in a vulnerable position which can be easily exploited.

In this respect, the Commission has put forward a proposal for a Directive on improving working conditions in platform work. The main scope of the proposed Directive is to bring clarity with respect to the employment status of those working via online platforms. The determination of employment status will be based on the actual work being carried out and not on the way that the contract is worded. The Directive sets out a legal presumption that there is an employment relationship between the online labour platform and the platform worker as long as the former controls certain features of the execution of the latter’s work. If the platform meets at least two of the following criteria, then it is presumed to be the employer:

• it determines the level of remuneration or sets upper limits for the level of remuneration;
• it supervises the performance of work or verifies the quality of the results of the work using electronic means;
• it restricts the freedom to choose one’s working hours or periods of absence, to accept or to refuse tasks or to use subcontractors or substitutes;
• it requires the worker to respect rules with regard to appearance, conduct towards the recipient of the service or performance of the work;
• it restricts the possibility to build a client base or to perform work for any third party.

The presumption is not juris et de jure as the prospective Directive allows for the possibility of rebuttal by proving that there is no employment relationship. The onus of proof falls on the online labour platform.

Disclaimer: This document does not purport to give legal, financial or tax advice. Should you require further information or legal assistance, please do not hesitate to contact Dr. Christine Calleja on [email protected]

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