Ordinance No. 2021-484 of 21 April 2021 to establish representation for platform workers
Ordinance No. 2021-484 of 21 April 2021 sets the terms and conditions for the representation of self-employed workers using platforms for their activity and the conditions for exercising this representation.
This ordinance sets the terms and conditions for the representation of self-employed workers using platforms for their activity as well as the conditions for exercising this representation. This ordinance aims to develop collective bargaining and establish the representativeness for platform workers in France. The representation will be initially established at the sector level (firstly private cars with drivers and delivery) and eventually at the platform level.
The ordinance creates the Employment Platforms Social Relations Authority (Autorité des relations sociales des plateformes d’emploi, ARPE). The authority body has five main roles:
- Organising and supervising the election of platform workers' representatives, on behalf of the state;
- Financing the training of representatives and compensating their training and delegation hours;
- Facilitating social dialogues between workers and platforms, particularly for the first round of social dialogue, and approving the agreements signed between workers and platforms;
- Settling disputes between workers' representatives and platforms, in particular to avoid any risk of discrimination against representatives;
- Collecting the data transmitted by platforms and producing studies and statistical reports based on the collected data. When collecting the data, the ARPE needs to ensure that the data transmitted by platforms shall only be related to the activities of platforms and their workers and shall not include any personal information of consumers.
The ARPE may request any document from platform companies when necessary for fulfilling its responsibility, especially for the examination of requests for authorisation to terminate the commercial contracts of workers' representatives, as well as for the hearing of any person likely to contribute to its information. The ARPE is funded by a tax paid by the platforms, with the rate and the base determined by the finance law.
Additionally, the ordinance specifies the terms of election of representatives. The workers vote for trade union organisations (not for individuals) which must have existed for at least six months. Workers must have been working in the economic sector in question for at least three months to be eligible to vote. Each worker has one vote. The organisations must achieve at least 8% of the votes cast to be considered as representative.
The selected representative organisations then appoint representatives, whose commercial contract cannot be terminated at the initiative of the platform unless authorised by ARPE. This authorisation is given when the proposed termination is not related to the representative functions performed by the appointed worker.
Two national ballots are to be organised to establish the representativeness of the organisations representing workers defined in article L.7341-1 of Labour Code (i.e. the workers who are self-employed and are using digital platforms for the exercise of their activities). The first national ballot will be organised before 31 December 2022, via an electronic vote supervised by ARPE. For the first ballot, the organisations must achieve only 5% of the votes cast to be considered as representative. The list of representative organisations will be decided before 30 June 2023. The second ballot must be conducted within two years of the date of the first ballot.
The previous ordinance does not provide the representation of the platforms themselves and the conditions of collective bargaining between platforms and representatives of self-employed workers.
Therefore, on 13 July 2021, a bill ratifying this ordinance was submitted to the Council of Ministers, which gives government the power to finalise the rules governing social dialogue within platforms by ordinance.
Regarding the representation of platforms, the bill provides that the government may define:
- how platforms are represented;
- the purpose and content of sectoral agreements, in particular their scope, form and duration, as well as, where applicable, the areas and frequency of compulsory negotiations;
- the conditions for negotiation and validity of sectoral agreements;
- the articulation of sectoral agreements with legal and regulatory provisions, contracts established between self-employed workers and platforms, platform agreements and social responsibility charters;
- the conditions of application of the sectoral agreements, as well as the procedures for informing self-employed workers of these agreements;
- the conditions under which, through the approval of the state, sectoral agreements can be made binding on all platforms and self-employed workers included in their scope.
To empower the government to define the rules organising social dialogue at the level of each platform with self-employed workers, the ordinance provides that the government may define:
- how self-employed workers are represented, as well as the conditions for exercising this representation, in particular, where applicable, the guarantees offered to representatives in terms of protection against breach of contract;
- the purpose and content of platform agreements, in particular their scope, form and duration, as well as, where applicable, the areas and frequency of compulsory negotiations;
- the conditions for negotiation and the validity of platform agreements;
- the articulation of platform agreements with legal and regulatory provisions, contracts established between self-employed workers and platforms, and social responsibility charters;
- the conditions of application of platform agreements, as well as the procedures for informing self-employed workers of these agreements;
- the terms and conditions under which platforms ensure the information and consultation of self-employed workers on the conditions of exercising their activity.
The ordinance issued in April 2021 already specified the responsibilities of ARPE. In addition, the new July 2021 ordinance provides that ARPE could act as a mediator between platforms and self-employed workers, and provide expertise, analysis and proposals related to the activity of platforms and their workers.
The ordinance also provides that the government could ‘supplement the obligations on platforms regarding the workers who use them, in order to strengthen the autonomy of these platform workers when exercising their activity’. Possible measures include improving the way in which they are informed about service proposals and guaranteeing them the autonomy to determine the way in which the services are provided and the means to be used for the provision of such services.
As of August 2021, the bill has not yet been approved by the Parliament. Once it is adopted by the Parliament, the ordinance should enter into force within a maximum of 18 months following the promulgation of the law.
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