Three self-employed delivery drivers in our country deliver meals for the American platform Uber Eats must be reclassified as employees. The Commission for Regulation of the Employment Relationship (the CAR, which falls under the FPS Social Security) recently decided this. The decision, which was first reported by Le Soir but which De Standaard was also able to view, came after three delivery drivers from Uber Eats went to the CAR at the end of December.
The platform does not employ any delivery personnel itself and requires its delivery personnel to register as self-employed persons. These can be used more flexibly, and fewer social and employer contributions have to be paid. But it also means that the income of the meal deliverers, who are paid per delivery, is uncertain, and no social rights such as holidays and pension are accrued. They are also barely protected in the event of illness or accident.
The delivery drivers, assisted by the Christian union ACV-CSC, therefore asked the committee whether such an obligation was in line with the new legal framework for platform workers. This was established by the federal government in 2022 with its labor deal and has been in force since the beginning of last year.
New law
With this new framework, Minister of Labor Pierre-Yves Dermagne (PS) wanted to reverse the burden of proof. Where it used to be up to platform workers to go to court if they wanted to challenge their status (often resulting in lengthy procedures), the presumption of employment is now taken as the starting point. This means that digital platforms such as Uber Eats or Deliveroo must be able to prove that the couriers are not employees. Eight criteria have been established to determine this employment relationship. For example, it is examined whether a platform checks couriers via geolocation and whether the couriers have sufficient freedom in carrying out their work.
After its analysis, the Commission to regulate the employment relationship has now decided that there are indeed sufficient indications for the three couriers involved that they should be regarded as employees. She judges, among other things, that the freedom of the delivery person is “very relative”, that Uber Eats has “a wide opportunity” to monitor the couriers with geolocation and that the price is determined by Uber Eats without the couriers’ participation.
According to the CAR, all this means that the Uber Eats couriers do not have the freedom of a self-employed person and that there is in fact an employment contract as an employee. And so Uber Eats must also grant them the rights of an employee, such as a minimum wage and insurance.
Precedent?
The big question now is whether the decisions in these files will set a precedent for the sector. Trade unionist Martin Willems (United Freelancers), who assisted the couriers, certainly hopes so. “We are very happy,” he told Le Soir. “This decision is very important and binding. For me, these three delivery drivers are now employees and labor law must be respected.”
And Minister Dermagne also appears satisfied. “Thanks to the new law and the presumption of employment, the competent committee has taken very clear decisions,” he said in Parliament on Thursday. “The new law has not missed its target: better protection of platform workers.”
Uber Eats announced on Friday that it would challenge the decision in the labor court. “We regret this outcome, which is based on the individual circumstances of three individuals and applies only to them,” the American company responded. “Thousands of independent couriers choose our app because of the flexibility to decide if, when and where they want to work. We will appeal this decision,” a spokesperson said.
The decision will be followed with attention not only in Belgium but also elsewhere in Europe. Especially after a European agreement was recently concluded under the Belgian presidency to improve the working conditions of platform workers. This should also make it easier for platform workers to challenge their status in the future, without having to go to court.
