Date
15 February 2023

Tag

Active

Country
Belgium Belgium
Geographical scope
National
Type
  • Type

    Provision of insurance and social protection

    Legal
  • Type

    Legislation

    Legal
  • Type

    Employment contract

    Legal
  • Type

    Algorithmic management

    Legal

Description

Scope of the Initiative

Two measures have been introduced to Chapter 4 of the Labour Relations Act (Act), improving the protection of platform workers:

  • Criteria have been defined for a ‘rebuttable presumption of employment contract’ for platform workers.
  • Those working for a platform and are deemed self-employed must still have an offer for work accident insurance.

A new chapter titled ‘Presumption regarding the nature of the employment relationship for digital commissioning platforms’ has been inserted into Chapter 4 of the Act. To define the scope which the Act can be applied to, ‘digital platform principal’, the ‘platform worker’ and the ‘platform operator’ are defined in Article 337/3. The definitions provided are as follows:

The ‘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’. Note, this does not apply to platforms such as Air BnB, where the main purpose is to exploit assets or resell shared goods or services or that provide a service on a non-profit basis. The ‘platform worker’ is ‘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’. The ‘platform operator’ refers to ‘the natural or legal person who, directly or through an intermediary, operates the digital platform principal.’

The ‘rebuttable legal presumption of the existence of an employment contract’ for the platform economy in Article 337/3, §2 of the Act has eight criteria which help identify when a ‘platform worker’ and platform should have the legal presumption of an employment relationship. The criteria are as follows:

  1. The platform operator may claim exclusivity with respect to its field of activity.
  2. The platform operator may use geolocation for purposes other than the proper functioning of basic services. Note, geolocation used as a means of control indicates hierarchical control and thus, subordinate power relations typical of employment.
  3. The platform operator may restrict the freedom of the platform worker regarding the manner of performing the work. For example, a bicycle courier who is not free to choose his route or determine the method of delivery himself, or if he must notify the platform of the receipt of the parcel according to a predetermined procedure, indicating the time of receipt.
  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.
  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.
  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.
  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.
  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.

Accident coverage for self-employed ‘platform workers’ in Chapter 4 of the Act must be offered by the ‘platform operator’ to self-employed platform workers. This must cover bodily harm resulting from accidents occurring during the performance, or on the way to and from, remunerated activities for the platform. This means regardless of a platform worker being in an employment relationship or self-employed, those working for the platform will de facto receive an offer for occupational accident insurance.

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.


Updates (2)

The following recent changes to this initiative have been recorded.

8 May 2024

On the 2nd of May 2024, the Belgian social security department's labour relations committee has decided that three Uber Eats drivers in Belgium have been wrongfully classified as self-employed, and must be provided with employment contracts.

The background of this decision is the three Uber Eats drivers, supported by the trade union ACV-CSC, having reached out to the committee about the issue in December of 2023 to see whether their classification as self-employed was in line with the amendment to the labour law on the platform economy.

The committee cited three grounds for its decision: Uber Eats has "wide possibility" to monitor the couriers using geolocation; the freedom of the couriers is "very relative"; and Uber Eats sets the pricing without consulting the couriers. Since this is the first time such a decision has been taken after the amendment of the labour law, it now remains to be seen whether it sets the precedent for future cases.

Uber Eats has announced that it will appeal this decision and take it to the labour court.

13 June 2024

Belgium is further expanding its law on accident insurance and compensation for platform workers. The law is set to come into force on 01 January 2026. This is to allow all those involved the necessary time to implement the changes.

It contains provisions for all platform workers to get compensation in the event of an accident during work or on the way to and from work. The primary incapacity benefit for one self-employed individual will serve as the basis for basic compensation, which is commendable as it typically exceeds what platform workers earn. Furthermore, the cost of insurance is to be borne entirely by the platforms as well as insurers. Lastly, to ensure that all platform workers can be compensated, a 'Work injury fund for self-employed digital platform workers' is also being established to provide compensation to the victim or their dependents in the event that the platform does not have mandatory insurance.

Additional metadata

Keywords
employment status, regulatory changes
Actors
Government
Sector
No specific sector focus

Sources

Citation

Eurofound (2023), Amendments to the Labour Relations Act to Recognise the Platform Economy (Initiative), Record number 4257, Platform Economy Database, Dublin, https://apps.eurofound.europa.eu/platformeconomydb/amendments-to-the-labour-relations-act-to-recognise-the-platform-economy-110020.