Digital Platform Delivery Wages Council Wage Regulation Order, 2022 under the Employment and Industrial Relations Act 2002

Article 17. 1. Without prejudice to the rights and obligations of the employers and platform workers under the Transparent and Predictable Working Conditions Regulations, those employers to whom this order is applicable shall inform platform workers of the following: 

(a) automated monitoring systems which are used to monitor, supervise or evaluate the work performance of platform workers through electronic means; and 

(b) automated decision-making systems which are used to take or support decisions that significantly affect the platform workers’ working conditions, in particular their access to work assignments, their earnings, their occupational safety and health, their working time, their promotion and the status relating to their employment, including the restriction, suspension or termination of their digital account. (...) 

Article 18. 1. Employers shall regularly monitor and evaluate the impact of individual decisions taken or supported by automated monitoring and decision-making systems, as referred to in article17 (1), on working conditions. (...) 

Article 19. 1. Platform workers shall have the right to obtain an explanation from the employer for any decision taken or supported by an automated decision-making system that significantly affects the platform worker’s working conditions, as referred to in article 17(1)(b). (...)

Article 4. 1. When considering the employment status of a person performing digital platform work, it shall be presumed that there is an employment relationship and that the digital labour platform for whom the platform work is provided, or the work agency who assigns such person to or places him at the disposal of any digital labour platform, as the case may be, is the employer and that the provisions of the Act and of the regulations or orders issued there under apply to that relationship. 

2. Any declaration made by any person in relation to his own or to another person’s employment status shall be considered to be null and void if its consequences are in any way in conflict with the provisions of this order. 

3. Where the digital labour platform or the work agency, as the case may be, claims that the contractual relationship with the person performing digital platform work is not an employment relationship in accordance with sub-article (1), the burden of proof shall be on the digital labour platform or the work agency, as the case may be, when declaring that there is no such employment relationship by proving that it does not control directly or indirectly the performance of the digital platform work because it does not fulfil at least four (4) of the following criteria in relation to the person performing the platform work: 

(a) the effective determination of, or stipulating the maximum limits for the level of remuneration;

(b) the requirement that the person performing digital platform work respects specific binding rules with regard to appearance and conduct towards the recipient of the service or performance of the work;

(c) the supervision of the performance of the work or the verification of the quality of the results of the work, including by electronic means;

(d) the effective restriction of the freedom, including through sanctions, to organise one’s work, in particular the discretion to choose one’s working hours or periods of absence, to accept or to refuse tasks or to use sub-contractors or substitutes;

(e) the effective restriction of the possibility to build a client base or to perform work for any third party: Provided that, any proceedings relating to such claim shall not have a suspensive effect on the application of the legal presumption. 

4. Where the person performing digital platform work claims that the contractual relationship with the digital labour platform or the work agency, as the case may be, is not an employment relationship in accordance with sub-article (1), the digital labour platform or the work agency, as the case may be, shall be required to assist the proper resolution of the proceedings, primarily by providing all relevant information held by it. The determination of the existence or otherwise of such an employment relationship shall be established by the person performing digital platform work by the application of the criteria mentioned in sub-article (3): Provided that, any such proceedings relating to such claim shall not have a suspensive effect on the application of the legal presumption. 

5. Any claims made either by the digital labour platform, or the work agency, as the case may be, or by the person performing digital platform work in accordance with sub-articles (3) and (4) respectively shall be made to the Director General responsible for Employment and Industrial Relations who shall proceed to investigate such claims and, based on the verification of the facts, establish whether an employment relationship exists or otherwise, where upon the legal presumption shall apply or otherwise. This shall be without prejudice to the authority of the Director General responsible for Employment and Industrial Relations to enforce the provisions of sub-article (1) independently of any claim lodged by the digital labour platform, or the work agency, as the case may be, or by the person performing digital platform work. 

6. Notwithstanding any provision in any law or in any collective agreement or individual contract, if a person performing platform work had been performing digital platform work on a self-employed basis with any person prior to the date of entry into force of this order, and whose relationship by virtue of article 4(1) is deemed to be an employment relationship, any penalty clause laid down in the previous contract for service in relation to events occurring before the coming into force of this order, shall on the entry into force of this order, be null and void unless and until it is authorized by the DirectorGeneral responsible for Employment and Industrial Relations in accordance with the provisions of the Act: Provided that this does not in any way waive any right to institute civil procedures for damages which may be available to either party to the contract for service.

Article 6. 1. In accordance with this order, the employer shall be obliged to grant platform workers, in respect of all hours of work: (a) with respect to wages: (i) the same wages paid to a comparable employee employed by the same employer, which in no event shall be less than the applicable national minimum wage; or (ii) when there is no such comparable employee, the pay shall not be less than the applicable national minimum wage: Provided that if there is disagreement as to the payable wage and the platform worker terminates his employment, the provisions laid down in article 15(2) shall apply; (...) 

Article 12. Notwithstanding any other provision of this order, the basic working and employment conditions of platform workers engaged by a work agency shall, for the duration of the time in which the platform workers are assigned to or placed at the disposal of any one or multiple digital labour platforms to provide services consisting of the delivery of any product, be at least those that would apply if they had been recruited directly by the digital labour platform or multiple digital labour platforms, as the case may be, to occupy the same job, by virtue of the Act, or any regulations issued there under or under any other legislation or by virtue of any applicable collective agreement (...)

Article 15. (...) 2. If a platform worker does not agree with: (a) any of the conditions of employment listed in a letter of engagement or a signed declaration in accordance with this article; or (b) the amount of wages being proposed to be given as specified in paragraph (a) of article 6, and leaves employment, he may institute proceedings before the Tribunal where he may claim unfair dismissal and the relevant provisions of the Act shall apply. 

Article 26. (...) 2. Platform workers who consider that they have been dismissed, or have been subject to measures with equivalent effect, on the grounds that they have exercised the rights provided for in this order, may request the digital labour platform or work agency, as the case may be, to provide duly substantiated grounds for the dismissal or the equivalent measures. The digital labour platform or work agency, as the case may be, shall provide those grounds in writing within a period of ten (10) working days. 

3. When a platform worker establishes before the Tribunal facts from which it may be presumed that there has been such a dismissal or equivalent measures, it shall be for the digital labour platform or work agency, as the case may be, to prove that the dismissal or equivalent measures were based on grounds other than those referred to in sub-article (1). 

4. In cases referred to in sub-articles (1) and (2), a platform worker may file a complaint in front of the Tribunal set up in terms of Part III of Title II of the Act.

Article 13. Without prejudice to the general obligations in terms of the Occupational Health and Safety Authority Act and any regulations issued there under, the employer shall be responsible to ensure that a safe working environment is provided for platform workers by ensuring that risks relating to the platform workers’ duties are identified and measures are taken for such risks to be avoided as much as possible.

Article 6. 1. In accordance with this order, the employer shall be obliged to grant platform workers, in respect of all hours of work: (a) with respect to wages: 

(i) the same wages paid to a comparable employee employed by the same employer, which in no event shall be less than the applicable national minimum wage; or 

(ii) when there is no such comparable employee, the pay shall not be less than the applicable national minimum wage: Provided that if there is disagreement as to the payable wage and the platform worker terminates his employment, the provisions laid down in article 15(2) shall apply; (b) (…)

Article 26. 1. A platform worker who is dismissed or is subject to measures with equivalent effect shall be regarded for the purposes of this order as having been unfairly dismissed or subject to measures with equivalent effect, if the reason there for is that the platform worker has exercised the rights provided for in this order. (...)

Article 17. 5. Employers shall not process any personal data concerning platform workers that are not intrinsically connected to and strictly necessary for the performance of their work. In particular, they shall not: 

(a) process any personal data on the emotional or psychological state of the platform worker; 

(b) process any personal data relating to the health of the platform worker, except in cases referred to in Article 9 (2), in points (b) to (j) of the General Data Protection Regulation; 

(c) process any personal data in relation to private conversations, including exchanges with platform workers’ official representatives; 

(d) collect any personal data while the platform worker is not offering or performing platform work.