Submitted text
The EU recently adopted a Directive on platform work adopted. This directive is an important step forward for employees working in the platform economy. It introduces two important principles: 1. platform companies are automatically considered employers 2. More transparency is required when using algorithms in work planning.
Following the adoption of the EU directive on platform work, we ask the Federal Council to answer the following questions:
- What adjustments would be necessary and how could the reversal of the burden of proof be enshrined in law? Are there any considerations in this direction?
- What measures have the Confederation and the cantons taken to enforce court rulings that qualify platforms such as Uber or Uber Eats as employers, to subject these companies to labor law and to ensure that Uber or Uber Eats complies with its obligations as an employer?
- How much effort have the social insurance funds put into processing and taking legal action against the platforms’ new contracts that provide for self-employment?
- How does the federal government view the directive and what impact will it have on Switzerland?
- Is the Federal Council planning to introduce transparency provisions for the use of algorithms?
Justification
Although the current laws in Switzerland are in principle sufficient to qualify platforms as employers, an automatic qualification would also make sense in our country, as this would put a stop to multinational corporations that are active in the platform economy and systematically perform illegal work by passing employees off as self-employed. The presumption of an employment relationship could be enshrined in law by amending the Swiss Code of Obligations. The use of algorithms should also be based on the EU directive. Employees have the right to be informed about the functioning of automated systems and, above all, to challenge the resulting decisions.
Opinion of the Federal Council of 15.5.2024
1. the Federal Council, in the context of the report “Digitalization – examination of a more flexible social security law” of 27 October 2021 (available at: www.bsv.admin.ch > Publications & Services > Reports and expert opinions > Federal Council reports) analyzed in detail the legal framework and the various options for the further development of social insurance law in relation to the emerging digital business models.
In the aforementioned report, the Federal Council specifically examined the advantages and disadvantages of a statutory regulation that would presume that platform workers are gainfully employed and the possibility of overturning this presumption by providing evidence to the contrary. The report concludes that there is currently no need for further action in this regard.
2 The cantons organize their random inspection activities independently on the basis of the Employment Act. They do this on a risk basis or on the basis of specific reports. The question of the existence of an employment relationship is assessed by the Federal Supreme Court on a case-by-case basis. The cantonal labor inspectorate (KAI) directly affected therefore primarily implements the decision issued and informs the other KAIs and SECO within the framework of existing channels about the experiences made and the procedure they have chosen. As the contractual conditions of Uber/Uber Eats are constantly being adapted, the decisions can often not be directly transferred to other situations without further ado.
3. the Swiss social security system is flexible enough to adapt to developments in the digital economy and new forms of work. The legal qualification of platform workers therefore poses no particular challenge for the social security authorities. As with other gainful employment, it is carried out on the basis of the actual economic circumstances with a case-by-case assessment. The implementing authorities only incur additional costs if legal proceedings are initiated, as these can be very time-consuming and lengthy. The extent of the costs and expenses incurred by the social insurance institutions in this regard is not known.
4 The European directive on platform work has not yet been formally adopted. In the view of the Federal Council, it is therefore too early to assess any consequences or determine any need for action.
5. the automated systems used by the platforms are already taken into account when determining social security status if they have an impact on the actual economic circumstances. As the Federal Council stated in its response to the Interpellation Feller (23.3516 “Fundamental or temporary ban on certain artificial intelligence platforms”) has recorded, closely monitors developments at international level with regard to the regulation of artificial intelligence and will take the necessary measures if required.