On march 26, the Senate has retoqué an article of the law limiting the built-up of the workers of the digital platforms, in a contract of employment. But nothing is played.
in recent months, the case law has continued to undermine the economic model of digital platforms: the Court of cassation has held, on 28 November, the drivers to bike-Take it Easy (which is bankrupt by 2016) were not independent but employees; 10 January, the court of appeal of Paris has considered that the relationship of a driver with Uber is not of a commercial nature, but part of a contract of employment.
The bill direction of mobility (LOM), currently under consideration in the Senate, intended to “secure” the Uber, Deliveroo and the like, while providing social protection to autoentrepreneurs of which they appoint the services. It was a matter of two birds with one stone : reduce the risk of “re-skilling” of the employers and to reduce the precariousness of the workers, while establishing a charter optional specifying the contours of the social responsibility first. They believe that this is inappropriate, the senators have dropped.
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That was precisely the charter ? Rules ensuring that the “non-exclusive nature of the relationship of platforms with their workers, in other words, the freedom for these to work for several providers competing. It was in black and white guarantees a “decent price for their service”, presented measures to improve working conditions and prevent occupational hazards and specified how the worker must be “informed of any change in the conditions for the exercise of their professional activity”. She also described “the quality of service expected on each platform and the circumstances that can lead to a rupture of commercial relations” with the worker, as well as “guarantees of social protection complementary negotiated by the platform” (hedge of a risk of death, invalidity, maternity, incapacity,…) and the benefits constituted “in the form of pensions, allowances or bonuses to retirement or end of career”.
More crucial, it was established that the charter could not “characterize the existence of a link of legal subordination” with the workers, one of the constituent of the contract of employment. in This even then that she formalisait a set of elements which are all signs of labour : social protection, geolocation, able to provide guidance, control the execution of the mission, discipline, etc
“The judges will continue to look at the facts”
The senators did not want the charter, but the members of parliament, who will review the proposed direction of mobility in June, will be able to restore it.
To Grégoire Leclercq, co-founder of the Observatory of the ubérisation and the collaborative economy. it is of a nature to secure the platforms. “The latest rulings were political, they were meant to move the legislature, he says. If the companies show their good will by signing of charters, and ensuring a social protection minimum, the judges, in their majority, will stop the built-in contract of employment.”
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Blandine Allix, a partner in the law firm Flichy Grangé Avocats, does not share this opinion. “The magistrates will retain their sovereign power of appreciation, and will continue to look at the circumstances in which the activity is carried out for workers more than the terms of the contract or of the charter”, said she.
“We want to break the system”
In the eyes of the unions, the assignment of platforms in front of the courts presents a strategic interest group. “We want to break the system, so that Uber can’t we impose all of these constraints, in the first place, its price is too low, so that the drivers earn 1000 euros for 70 hours of work,” explains Sayah Baaroun, secretary-general of the trade Union of drivers of private VTC. Only built-up a massive can force Uber to be just a platform of the relationship, such as Booking, which is the intermediation between individuals and hotels, but do not decide the price of the room. It is a paradox, but only of reclassifications massive wage-labor can lead to this that in the end, we truly become independent.”
A cost deterrent ?
If the principle laid down in article 20 was finally voted by the deputies, it is not said that the platforms seize. They could be hampered in their enthusiasm for financial reasons. The charter provides that they feed into the personal account of formation (CPF) workers in conditions fixed by decree. “Our discussions with the ministry of Labour suggest that there is a package of 300 euros from 5,000 euros of turnover, says Gregory Leclercq. By adding the contributions to the mutual and provident funds workmen’s compensation, they might have to pay 10% of the turnover achieved by the employee, or often the entirety of their commission.”
Sayah Baaroun feared, to the contrary, that the platforms do not grasp the opportunity to secure their model and reflect the non-negligible cost of the charter on their commissions, which would weaken them further their worktheir.
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The article 20 is adopted, it will have to pass in front of the constitutional Council. Last year, the Sages had retoqué a version, provided for in the law professional future, on the grounds that it was a “jumper” legislative, that is to say, an article introducing provisions that have nothing to do with the subject matter dealt with by the bill.