Know your Rights | Digital Platform Work

Authors: Ann Bugeja & Christine Borg Millo

Digital platform work spans various industries and job categories, providing individuals with opportunities to engage in more accessible and flexible working conditions in today’s dynamic market. It covers sectors such as ride-sharing taxi services, freelance services, short-term booking accommodation networks, food, drink and groceries delivery, and online tutoring services, among many others.

The work involves any productive activity performed by individuals, to produce goods or provide services carried out through or on a digital platform. That digital platform, such as a phone application, controls and organises the essential aspects of the activities, including the facilitation of payment, distribution of goods and prioritization of the work. It has become one of the most common types of work, as it displays a form of job opportunity which suits the employee’s expertise whilst also offering an additional source of income to workers involved.

In order to adequately regulate the employment conditions for those employees engaged in platform work in Malta, the Digital Platform Delivery Wages Council Wage Regulation Order (the “WRO”) was published on the 21^st of October, 2022, and it came into force on the 21^st of January 2023. Meanwhile, the proposal for an EU Directive on Platform Work was presented by the European Commission and adopted by the Council on the 12^th of June 2023, and it must now be negotiated with the European Parliament prior to becoming EU Law.

The objective of the WRO is to guarantee that persons engaged to provide paid services, consisting of the delivery of any consumer product, gain access to labour rights and social protection rights like all other employees. This is by ensuring that their employment status is correctly determined and transparency, traceability, fairness and accountability in algorithmic management[1]is promoted.

What is Digital Platform Work?

Firstly, a digital labour platform worker is defined as any natural or legal person providing a commercial service enabling the delivery of any product. For a platform to be considered as a digital labour platform, the following requirements must cumulatively be satisfied:

1. The digital labour platform is provided at least partially, at a distance, through electronic means, like a website or mobile application;
2. The digital labour platform is provided at the request of a recipient of the service; and
3. The digital labour platform involves the organisation of work performed by persons, such as food couriers, through use of transportation. This has to be a necessary and essential component of the organisation of work.

Note that the concept of a digital labour platform in the law excludes providers of a service whose primary purpose is to exploit or share assets. It is limited to service providers for which the organisation of work performed by the person does not only constitute a minor or ancillary component.

Secondly, the digital platform work, which is organised through a platform and performed by the employee in Malta, can be of two (2) kinds of contractual relationships:

1. Work between the digital labour platform and the person; or else
2. Work between the work agency and person who is assigned to or placed at the disposal of any digital labour platform or multiple platforms by the work agency.

Additionally, the law provides for a definition of who is considered to be a platform worker. The employee is defined as being either:

1. Any person performing digital platform work and who has entered into a contract of employment with a digital labour platform or multiple platforms, where the worker is engaged to provide services consisting of the delivery of a product, whether on a regular or irregular basis; or
2. Any person performing digital platform work and, who has entered into contract of employment with a work agency, where the worker is assigned to or placed at disposal of any labour platform or multiple platforms, to provide services consisting in delivering products, whether regular or irregular.

Rules Applicable to Platform Workers

The existence of a platform work carries with it the presumption that there is an employment relationship. This means that the platform providing the work, or the work agency assigning the work to that worker, is the employer and the platform worker is the employee. Therefore, the provisions of the Employment and Industrial Relations Act (Chapter 452 of the Laws of Malta) applies to both parties with respect to their rights and obligations within that relationship.

The burden of proof then falls on the digital labour platform or work agency, as the employer, to claim that there does not exist a contractual relationship between the parties performing and working in a digital labour platform. Here, the employer must prove that any four (4) of the below criteria were not met by the employee’s work:

1. An effective stipulation of maximum limits of remuneration/pay levels;
2. The requirement at 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;
3. Supervision of the work or verification of the results;
4. 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;
5. Effective restriction of the possibility to build a client base or to perform work for any third party.

In the event where there already existed a digital platform work relationship between the employer and the employee prior to the WRO coming into force, the employment relationship presumption once again holds. However, the date of engagement is deemed to be the date of entry into force of the WRO. Similarly, the probationary period is considered to have begun either on the date of the initial continuous provisions of services^[2] by the platform worker with the employer. If no employment contract existed prior to the entry in force of the WRO, the commencement date of the new employment contract applies.

Additionally, the seniority and notice period due in case of any potential redundancy is calculated accordingly. In this regard, the general rule is that the employment relationship is deemed to be indefinite, whole time and based on a forty (40) hour normal week unless otherwise specified. However, the law does not in any way limit the creation of an employment relationship stipulating different conditions, so long as the working week does not exceed forty (40) hours, with the possibility of an additional eight (8) hours of overtime.

Obligations of the Employer and Rights of the Employee

The employer holds great responsibility for its employees working in the digital platform sector, to improve and standardise the working conditions of platform work, in order to promote and safeguard the well-being, health, safety and dignity, of the platform workers.

A primary obligation of the employer is to grant platform workers, for all hours of work, the same wages as a comparable employee (which can never be less than minimum wage), the same conditions of employment as a comparable employee, such as bonuses, income supplements, general increases in wages by the Government and all the conditions of employment and entitlements referred to in the WRO. If the employee works less than the normal forty (40) hour working week, he is entitled to conditions of employment on a pro rata basis.

Furthermore, the employer, when necessary, is responsible to provide appropriate vehicles for the employee, to be used for the delivery of the product. The vehicles must be equipped and maintained in good running order, and can consist of electric motorbikes and motorcycles, electric bicycles but exclude electric or kick scooters. The vehicles must be properly equipped, which means having valid insurance and licence, and fuel expenses are at the cost of the employer. The employer must also provide to the employee, all equipment, material and tools in relation to their work, such as uniforms, and working apparel like safety helmets and that the overall safekeeping of the vehicles is the responsibility of the employer. They must also provide them with a mobile phone and internet services to be used for the employee’s duties (unless an adequate allowance is granted to the employee in its stead).

The law in addition states that it is the responsibility of the employer to ensure that a safe working environment is provided for the worker, as per the Occupational Health and Safety Authority Act (Chapter 424 of the Laws of Malta).

As per article 15, the employer is bound to give/send to the employee a letter of engagement or signed declaration to include information listed in the Transparent and Predictable Working Conditions Regulations (S.L. 452.126), within seven (7) days from the date of entry into force of the WRO, or within seven (7) days from commencement of employment relationship. The employee always has the option to institute proceedings before the Industrial Tribunal if he does not agree with any of the conditions stipulated or wages being proposed.

The right to information is adequately covered and protected by the WRO, in line with GDPR rules. Indeed, employers must inform the workers of any automated monitoring systems used to monitor, supervise or evaluate the work performance of the worker as well as any automated decision-making systems used to take or support decisions that may significantly affect the employee’s working conditions. The WRO also protects the personal data of the employee. In fact, as per sub-article 5 of article 15, employers shall not process any personal data of workers that are not intrinsically connected to and strictly necessary for the performance of their work.

Conclusion

Due to its extensive applicability across various community sectors and types of employees, platform work exhibits remarkable diversity. For this reason, the local legal framework plays a crucial role in ensuring not only the high quality of services provided by platform workers but also in establishing fair and adequate employment terms for these individuals.

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[1] This is defined in the law as the use by digital labour platforms  of  any  automated  systems,  including  automated monitoring systems and automated decision-making systems, in any manner, to match supply and demand for work, and to  assign  tasks,  and  monitor,  evaluate  and  take decisions for the platform workers.

[2] Applying to those contracts, whether on a  self-employed  or  employment  basis,  when  the  work performed was essentially the same and the period between one contract and another does not exceed 6 months;