Labour deal: presumption of the existence of an employment contract for platform workers

The labour deal introduces 8 new specific criteria into law applicable for work through a platform that gives orders (commissioning platform).

When a certain number of these specific criteria are met, until proven otherwise, it is presumed that an employment contract exists between the platform operator and the person performing the work.

The measure will enter into force on 1 January 2023.

Concepts

'Commissioning digital platform' is understood to mean the provider:

• who, through an algorithm or any other equivalent method or technology, is able to exercise a decision-making or controlling power over the manner in which the services are to be performed and over the terms and conditions of work or remuneration,

and

• who provides a paid service that meets the following requirements:

• the service is provided, at least in part, remotely via electronic means (e.g. website or mobile application);
• the service is provided at the request of a recipient of the service.

Important note! This does not include:

• platforms providing services whose main purpose is to exploit or share assets or resell goods or services;
• platforms providing a non-profit service.

‘Platform worker’ is understood to mean any person:

• performing platform work through a commissioning digital platform;
• regardless of the nature of the contractual relationship or its qualification by the parties.

'Platform operator' is understood to mean the (natural or legal) person who, directly or through an intermediary, operates the commissioning digital platform.

Presumption of the existence of an employment contract

Criteria

The employment relationship between the operator of a commissioning digital platform and a person performing work through that platform is presumed, until proven otherwise, to be performed under an employment contract if it appears from the analysis of the employment relationship that at least 3 of the 8 following criteria or 2 of the last 5 following criteria are met:

1.           the platform operator may demand exclusivity in relation to its field of activity;

2.           the platform operator may use a geolocation mechanism for purposes other than the proper operation of its core services;

3.           the platform operator may restrict the platform worker’s freedom in how the work is performed;

E.g. The bike courier's freedom in how he performs the work could be restricted:

• if he cannot freely choose the route taken or
• if he is obliged to deliver the package personally to the recipient or
• if he must notify the platform, according to a predetermined process, that the parcel has been received, specifying the time of receipt.

4.           the platform operator may limit the income level of the platform worker, in particular:

• by paying an hourly rate
• and/or by limiting the platform worker's right to refuse job offers based on the rate offered
• and/or by not allowing the platform worker to set the price of the service;

Important note! Collective bargaining agreements concluded in the National Labour Council are excluded from this clause.

5.         the platform operator may require the platform worker to comply with binding rules with regard to appearance/conduct towards the recipient of the service or the performance of the work;

Important note! In any case, the legal provisions applicable to users, customers or workers must be complied with, among others in terms of health and safety.

6.           the platform operator may determine the priority of future job offers and/or the amount offered for a job and/or the determination of ranking by using the information collected and by monitoring the performance of the platform worker, excluding the result of this performance, among others by electronic means;

7.           the platform operator may restrict, including by means of sanctions, the freedom to organise work, among others the freedom to choose working hours or periods of absence, to accept or refuse tasks or to use subcontractors or replacements, unless the legislation expressly restricts the possibility of using subcontractors;

8.           the platform operator may restrict the platform worker's possibility to build a customer base or to perform work for a third party outside the platform.

Rebuttable presumption

The presumption of the existence of an employment contract is rebuttable: it can be rebutted by any means of law.

The qualification resulting from the actual exercise of the employment relationship must take into account the use of algorithms and other technological means in the organisation of work.

If this qualification excludes the legal qualification chosen by the parties, it cannot be limited to the qualification included in an agreement between the parties.

Source: Law of 3 October 2022 containing various work-related provisions, Belgian Official Gazette of 10 November 2022.