New Legal Notice on Digital Platform Work

The Covid-19 pandemic has played an important role in shaping labour markets by accelerating the growth of digital labour platforms which have in turn brought a number of challenges. These include issues in determining the correct employment status of workers performing platform work leading to inadequate access to basic labour and employment rights, lack of fairness, transparency and accountability in algorithmic management and, difficulties in enforcement and lack of traceability by the authorities. In Malta, these issues were being particularly felt within the sector of the delivery of consumer products. This prompted a national debate on the need to introduce a new legal framework to regulate platform workers providing this type of service.

Accordingly, the new Legal Notice 268 of 2022 entitled ‘Digital Platform Delivery Wages Council Wage Regulation Order 2022’ (“the Legal Notice”) seeks to regulate platform work performed by persons who are engaged by a digital labour platform or who are engaged by a work agency and are then assigned to or placed at the disposal of a digital labour platform, to provide services consisting of the delivery of any product.

The Legal Notice defines “platform worker” as:

• any person performing digital platform work and who has entered into a contract of employment or an employment relationship or any other form of arrangement irrespective of the contractual designation with any digital labour platform or multiple digital labour platforms and who is engaged, whether on a regular or on an irregular basis, to provide services consisting of the delivery of any product; and
• any person performing digital platform work and who has entered into a contract of employment or an employment relationship or any other form of arrangement irrespective of the contractual designation with a work agency and who is assigned to, or placed at the disposal of, whether on a regular or on an irregular basis, any digital labour platform or multiple digital labour platforms to provide services consisting in the delivery of any product;

A fundamental concept introduced by this Legal Notice is the legal presumption of an employment relationship in Article 4. By virtue of this article, all persons performing digital platform work will be presumed to be in an employment relationship (i.e. have the status of an employee) and the digital labour platform for whom the platform work is carried out or, the work agency, as the case may be, shall be presumed to be the employer.

This legal presumption can be rebutted by both the digital labour platform or work agency and, the person performing digital platform work by making a claim to the Director General responsible for Employment and Industrial Relations. In order for such a claim to be successful, it needs to be proven that the digital labour platform or work agency does not control directly or indirectly the performance of digital platform work because it does not fulfil at least 4 of the following criteria in relation to the person performing platform work:

1. Effectively determining, or setting upper limits for the level of remuneration;
2. Requiring the person performing platform work to respect specific binding rules with regard to appearance, conduct towards the recipient of the service or performance of the work;
3. Supervising the performance of work or verifying the quality of the results of the work including by electronic means;
4. Effectively restricting the freedom, including through sanctions, to organize 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 subcontractors or substitutes;
5. Effectively restricting the possibility to build a client base or to perform work for any third party.

Once an employment relationship is established, the employer is bound to give or send to the employee, a letter of engagement or a signed statement which shall include the information listed in the Transparent and Predictable Working Conditions Regulations.
This information is to be provided within seven calendar days from the date of entry into force of this Legal Notice for those persons who are already carrying out platform work and, within seven calendar days from the commencement of the employment relationship for those persons engaged after the coming into force of this Legal Notice.

With respect to labour rights, the Legal Notice provides that all platform workers shall be granted the same wages and, the same employment conditions as comparable employees employed by the same employer provided that, the wages shall in no instance be less than the national minimum wage and, the conditions of employment shall in no event be less than the minimum prescribed by the Employment and Industrial Relations Act (Chapter 452 of the Laws of Malta). These are in addition to the other conditions of employment and entitlements laid down by the Legal Notice itself such as sick leave and, minimum overtime rates.

The Legal Notice further requires the employer to provide platform workers at its expense, all equipment, material and tools that they may require to perform the platform work. These include a vehicle (which shall not be an electric or other kick scooter), a mobile phone and internet services and, uniforms or other apparel including helmets.

Apart from regulating the traditional aspects of employment law, the Legal Notice also regulates the use of automated systems by digital labour platforms including the use of automated monitoring systems and automated decision making systems which are known as “algorithmic management”. The Legal Notice imposes an obligation on the employer to inform the platform workers of the automated monitoring systems which are used to monitor, supervise or evaluate the performance of the platform workers through electronic means and, to inform them of automated decision-making systems which are used to take or support decisions that affect their working conditions.

In order to ensure fairness and transparency in the use of such systems, the Legal Notice introduces a number of safeguards, including:

1. Placing an obligation on the employer to designate a person to whom platform workers can direct their queries on facts, circumstances and reasons that led to a particular decision taken by an automated decision-making system;
2. Giving the platform workers the right to request an explanation for any decision taken or supported by an automated decision-making system which affects their working conditions;
3. Giving the platform workers the right to request a review of a decision taken by an automated decision-making system; and
4. Requiring the employer to inform the platform workers’ official representative (or the platform workers) on any decisions likely to lead to to introduction of or changes in the use of automated monitoring and decision-making systems

Where it is determined that any decision taken or supported by any automated system, infringed the platform worker’s rights, the employer shall be bound to rectify the decision and where this is not possible, offer adequate compensation.

The Legal Notice also extends an obligation on the employer to evaluate and assess the risks of automated monitoring and decision-making systems to the health and safety of platform workers and, introduce appropriate preventive and protection measures. It considers that employers are to ensure that such systems do not place undue pressure on the platform workers which could affect their physical and mental health.

Finally, it is also worth mentioning that the regularisation of digital platform work has also been discussed at EU level and in fact, the European Commission has issued a ‘Proposal for a Directive of the European Parliament and of the Council on improving working conditions in platform work’.