The work provided through digital platforms, known numerically, has brought, to the work relationship, a new context of factual situations that diverge from the traditional way of employment relationship where work is physically identified with the place, people, and clear information regarding the object of the employment contract, with duties and obligations more clearly identified.
The concern for legal classification of this new form of employment relationship, with the purpose of supporting the service provider with labor rights, adhered to the binary model that characterized the formation of Labor Law. The European Union, driven by the series of conflicts existing in the EU countries, approved and published Directive (EU) 2024/2831, from the European Parliament and Council, which came into force on December 2, 2024, and whose deadline for transposition to the Member States will expire on December 2, 2026. The directive applies to digital work platforms organizing work on digital platforms carried out in the European Union, regardless of their establishment location or the law otherwise applicable.
According to the citation by community legislation, the directive aims to improve working conditions and the protection of personal data in digital platforms work through: a) The introduction of measures to facilitate the determination of the correct professional status of people working on platforms; b) Promoting transparency, fairness, human supervision, safety, and accountability in the algorithmic management of work on digital platforms; and c) Improving transparency regarding work on digital platforms, including in cross-border situations.
The directive also establishes minimum rights applicable to all individuals working on digital platforms who have an employment contract or employment relationship or, based on an assessment of the facts, can be determined to have an employment contract or employment relationship, as defined by law, collective agreements, or current practices in the Member States, taking into account the case law of the Court of Justice.
The directive includes Article 5, which provides reference to the legal application to the contractual relationship between the individual and the digital platform, the presumption of employment relationship subject to the proof of the exercise of management power and control by the platform, subject to the conditions practiced by national law. Therefore, it will be up to the platform to rebut the legal presumption if it is of interest.
From what has been seen, we continue with the same previous rules where the framing of the constitutive facts of the claim for legal status depends on relevant and unquestionable elements for the provider to be considered an employee. In other words, technological evolution and transformations in labor relations show that the elements of the employment bond formation cannot be defined by the legislator but will always depend on the legal qualification of the facts.
As seen, the issue of the presumption of subordination has always accompanied and will continue to accompany discussions on the recognition of the employment relationship. The law does not have the power to exhaust and pacify the discussion because it seems that the investigation of facts is still essential for convincing judges who, today, when it comes to work through digital platforms, must face the autonomy of will and good faith in contractual relations, as the Brazilian Supreme Court has been affirming.
