Teresa Coelho Moreira (Associate Professor with Aggregation at the Law School of the University of Minho | Integrated member of JusGov )

▪           

Nowadays there is an app for everything or almost everything, from simpler activities, such as food delivery, to more complex ones, such as providing legal services, with new digital platforms emerging every day. Indeed, in theory, any activity can be transformed into a task that can be performed through digital platforms and we witnessed this during the pandemic.

In view of this situation, one of the issues that assumes enormous importance is the qualification of the existing relationships between those who provide the activity in digital platforms, with numerous cases having been already ruled around the world.

Bearing this situation in mind, the importance of establishing presumptions increases. However, the presumption provided for in Article 12 of the Portuguese Labour Code, although positive, was envisaged for typical labour relations, for employment relations in the pre-digital era. Regarding the new ways of providing work, the work in digital platforms, it is necessary to recognize the inadequacy of the presumption of employment to face the emerging problems of the new ways of working through digital platforms. Factors such as, inter alia, the ownership of work equipment and instruments, the existence of a work schedule determined by the beneficiary of the activity and the payment of a certain remuneration, are classic signs of legal subordination, but they are hardly operational signs to address the new types of dependency resulting from the provision of services for a particular company, via platforms.

It is in this context that the Green Paper on the Future of Work 2021, originally written in Portuguese – Livro Verde sobre o Futuro do Trabalho 2021 – outlines a path that we identify with and that we believe should be followed, as one of the guidelines for discussion regarding public policies on digital platforms: “Create a presumption of employment adapted to work on digital platforms, to make clearer and more effective the distinction between employee and self-employed, stressing that the circumstance that the service provider uses his own work tools, as well as the fact that he is exempted from duties of attendance, punctuality and non-competition, is not incompatible with the existence of a dependent employment relationship between the provider and the digital platform.”

In the wake of the Green Paper, the Portuguese Law 13/2023, of 3 April, created Article 12-A with the title Presumption of employment contract within the scope of a digital platform,[1] after several versions that substantially increased its scope. The initial version, published in the Portuguese official journal, Diário da Assembleia da República, no. 14, of 22/06/2022, had a wording that, in our opinion, was not sufficiently clear and precise because the presumption was established in equal terms between the digital platform and the person providing the activity therein and between the latter and the intermediary (not only between the first two, creating here a third entity). This was not in accordance with what had been advocated in the Guidelines for Public Policies in the Green Paper on the Future of Work 2021, although on 20 October 2022 a proposal to amend this Article was presented, which substantially improved its wording and was amended on 15 December to an even better version: the one that appears in the final version approved and that comes into force on 1 May. It should be acknowledged that this is a very long – 12 paragraphs – and complex Article, but it is considerably better than the two previous versions presented, and the final balance seems clearly positive to us for several reasons.[2]

Firstly, we welcome the fact that the presumption set out in paragraph 1 will now be established between the digital platform and the activity provider operating on it. The figure of the intermediary disappears from this paragraph. This is a very positive aspect and in accordance with the Proposal for a European Directive on the improvement of working conditions of people working through digital labour platforms because the existence of this entity in the intermeddling reflected a change in the vision of the legislator and of the collaborative economy business model itself.

In fact, the existence of this intermediary could (and may) raise some problems. First of all, because this third person may be the one who works in the platform but disguised/ masked as a legal person as it happens in several cases of platform drivers, although in this case by legal imposition through Portuguese Law 45/2018, of 10 August. However, regarding this Law, the so-called Portuguese TVDE Law, the legislator also decided to clarify, and rightly so as far as we are concerned, because one question that arose in previous versions was how to reconcile the remission of Law 45/2018, of 10 August to Article 12 of the Labour Code with the current Article 12-A. Well, now, the legislator, in paragraph 12 of Article 12-A, has responded in the sense of defending that the presumption provided for in paragraph 1 of this Article also applies “to digital platform activities, namely those that are regulated by specific legislation regarding individual and remunerated transportation of passengers in uncharacterized vehicles from an electronic platform.” This means, in our opinion, that Law 45/2018, of 10 August, will have to be amended in several aspects.

Of course, the role of the intermediary does not disappear completely by arising in no. 5 of this Article, but only in a subsidiary capacity and as a way for the platform to try to rebut the presumption. However, even in this situation, the Law clarified once again that it is up to the court to determine who the employer is.

On the other hand, another aspect that seems very positive to us and that was already foreseen in the amendment made on 20 October 2022, is the establishment of joint and several liability now provided for in no. 8, as well as in no. 7, regarding equality and non-discrimination.

However, we cannot fail to consider that the legislator could have been more careful in the wording of the characteristics provided in paragraph 1 of this Article. If we read the various sub-paragraphs of this paragraph, it seems to us that the legislator used terminology that is specific to the existence of an employment contract when its existence is still being presumed.

Therefore, does the existence of a power of direction not qualify as a characteristic of the existence of an employment contract? However, the legislator used this same terminology in paragraph 1(b). As to the wording of subparagraph c) – to control and supervise in real time, namely through algorithmic management, would that not in itself suffice to make the presumption work? And what about subparagraph e), referring to the possibility of exercising disciplinary power, are we not already under an employment contract?

We believe that the legislator should have been more careful when drafting these indexes – called characteristics –, especially because the way they are worded, even if one of these subparagraphs is fulfilled is not enough because at least 2 characteristics must be fulfilled.

We also believe that an index/characteristic that is quite important is missing here, and that is the fact that the activity provider does not have its own business activity, but is inserted in a third party’s business activity, as it has been a criterion valued by jurisprudence, and suffices to recall the ruling of the Spanish Supreme Court of September 25, 2020, and other cases decided on this issue, as well as by the wording of Article 11 of the Labour Code.

By having approved this change of wording and, more generally, by having created this presumption, the legislator made Portugal the first legal system to have such a wide presumption because it applies to online crowdwork and offline crowdwork platforms, as stated in the definition of digital platform in no. 2. And this is very beneficial because we are sure of one thing. Undoubtedly the digital platforms do not have a 19th or even a 20th century worker, but for sure, in many instances, they do have a 21st century worker. We have a new type of subordinated worker, with different contours from the traditional ones, but, ultimately, still dependent and subordinated in the way he/she develops his/her activity.

Bearing this in mind, another aspect that we consider highly favourable is the reference in no. 9 that only the rules foreseen “in the present Code that are compatible with the nature of the activity performed, namely the provisions regarding accidents at work, termination of the contract, prohibition of dismissal without just cause, minimum remuneration, holidays, limits to normal working hours, equality and non-discrimination” shall apply. This is quite important because it draws attention to an aspect that is often referred to by platforms as preventing the application of labour law rules and that is the inapplicability of several aspects of the so-called classic labour relations with these new forms of providing work. As we have seen with the evolution of Labour Law, it has enough malleability and flexibility to respond to these situations and not apply certain aspects and create others.

However, we cannot end without appealing for more progress to be made in the regulation of this type of work, once this first part is over. No doubt that many of these situations will be framed as true subordinate work, but immediately afterwards a question of unquestionable importance arises which has not been dealt with. Which regime will be applicable to them? Would it not be more logical to consider it as a type of work contract with its own specificities in terms of working hours, remuneration and non-competition? Because we consider that this is, without a doubt, the real challenge posed by work on digital platforms. It is an employment contract. But what rules will we apply? Clearly, those that are already set out in paragraph 9 of this Article. However, in several other aspects, it is necessary to reflect and to have specific regulations, inter alia, regarding flexible working hours and freedom to manage working time.

By way of conclusion, the final balance we make of this provision, although not perfect (and we have many doubts that any of it will be) is quite optimistic because it allows that Labour Law may welcome these new service providers by means of platforms, proceeding to the due regimental adaptation, i.e., building its own labour regime adjusted to the characteristics of these new forms of providing services. Nevertheless, we underline, a labour regime. And this is what the legislator started to do by consecrating this presumption of employment.

Not adopting a legal presumption of employment would mean saying to people who consider that they are real workers that they would have to go to court and prove all the facts when we are faced with a relationship of imbalance of power and with total opacity regarding the way they work, how the algorithm works, without fulfilling the duties of information. Starting a legal process is, in itself, difficult enough. Demonstrating that one is a worker, without having access to the algorithm or to official documents about how the platform works, is almost impossible. It would mean, we would argue, allowing platforms to continue exploiting workers.

This presumption is obviously not going to put an end to autonomous work. With real autonomous work! On the contrary, it will put an end to the impunity of platforms. Requiring platforms to rebut the presumption when it works will finally force them to be transparent and to take responsibility for the way they organise work and thus to face their legal and social obligations.

---

[1] In Portuguese (original wording): Presunção de contrato de trabalho no âmbito de plataforma digital.

[2] We are not referring here to the first version of the Decent Work Agenda (Agenda do Trabalho Digno), published in the Bulletin of Labour and Employment, no. 33, of 29/10/2021, where the presumption was established in the framework of a two-way relationship between the digital platform and the activity provider and Article 12-A had, in that version, six paragraphs.

Picture credits: RODNAE Productions on Pexels.com.