The Spanish Ministry of Labor and Social Economy, trade unions, and the employers’ organisations CEOE and CEPYME have reached an agreement on the regulation of the labour relations of digital delivery workers, the so-called Riders Law.
According to this agreement, the Spanish Workers’ Statute will recognise the employment relationship of delivery workers who perform their services “through companies that carry out this task through the algorithmic management of the service or working conditions, via a digital platform”.
The most relevant change is the introduction into the statute of a new 23rd Additional Provision clarifying and strengthening the employment status of service providers for digital delivery platforms. It is a presumption of sectorial and specific employment, with a rather limited scope – digital delivery platforms.
This new provision attempts to incorporate relevant recent case law into the Workers’ Statute. To some extent, the inclusion is redundant, insofar as the employment status of riders has already been addressed by the courts considering, exclusively, articles 1 and 8 of the current statute.
In short, our legal system already makes it possible to declare riders to be employed, without the need for further confirmation, as has been shown by the recent Supreme Court ruling on the matter.
For this reason, this new legislation seems to reinforce the protections, no longer given exclusively by articles 1 and 8 of the Workers’ Statute, and the case law surrounding it, but also by this new provision.
For the direct application of this provision, the activity provided by such delivery persons, to be considered in a labour relationship, must be:
- a remunerated activity;
- an activity in the context of delivery or distribution of any consumer product or merchandise to third parties (this requirement is very relevant since there is a statutory exclusion for those who provide “transport services under administrative authorisations”); and
- an activity subject to the power of management, organisation, and control “directly, indirectly, or implicitly through a digital platform through algorithmic management of the service or working conditions”.
This nuance is also important for the new presumption of employment since, to a certain extent, the degree of intensity with which management and organisational power and control must be exercised is lowered or mitigated by allowing the indirect or implicit management of the service through the digital platform.
Likewise, it is required that the mentioned management or organisation is performed through the digital platform’s algorithms. Therefore, the existence of a platform that manages the service, as well as the working conditions, through algorithms is required to trigger the presumption of employment.
Having stated the above, the last sentence of the new regulation should be noted, since the mentioned presumption will not exist if the provisions of article 1.3 of the Workers’ Statute apply, and especially concerning its section 1.3g.
Notwithstanding the existence of a true employment relationship will still be denied if the following requirements are met:
- the rider is the holder of a transport licence;
- the rider is providing the service with a commercial public service vehicle, owned by the rider or over which they hold direct control; and
- the current regulations allow services to be provided continuously for the same shipper or marketer (ie, digital platform).
In other words, our Workers’ Statute already allowed, if the specific requirements are met, the exclusion of the self-employed or carrier as long as the above requirements are met.
As a result of the new provision and recent case law, platforms will have to reorganise so that their service providers are included in the exclusive scope of article 1.3g.
It is crucial to mention the last new regulation provision: the expansion of the information rights of the employees’ representatives in companies that use algorithms or artificial intelligence systems with labour conditions or organisational impact.
Under this new regulation, the employees’ representatives must be informed “of the rules that contain the algorithms and artificial intelligence systems that can affect the working conditions by which the platforms are governed, including access and maintenance of employment and the elaboration of profiles”.
This expands the employees’ representatives’ information rights and consultation not only in the context of digital platforms, but also concerning any company that uses algorithms or artificial intelligence systems that have effects in the workplace.
It is, therefore, necessary that such systems are at the base of decision-making with employment effects. This refers not only to working conditions, but also to employment, both in its initial recruitment phase and at its termination.
It should also be noted that the developing of profiles – the “profiling” – of workers through technological means is included in the scope of this expanded information duty, taking into account that it also directly affects data protection regulations.