The work provided through platforms, called numerical platforms, has brought a new context of factual situations to employment relationships that diverge from the traditional form of employment, where work is physically identified with the location, people, and clear information regarding the purpose of the employment contract, with duties and obligations more clearly defined.
The concern for legally classifying this new form of employment relationship, with the aim of protecting 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 EU countries, approved and published Directive (EU) 2024/2831 of the European Parliament and the Council, which entered into force on December 2, 2024, and whose deadline for transposition into Member States will expire on December 2, 2026. The directive applies to digital work platforms that organize work on digital platforms carried out in the European Union, regardless of their place of establishment or the law otherwise applicable.
According to the citation by community legislation, the directive aims to improve working conditions and personal data protection in digital platform work through: a) The introduction of measures to facilitate the determination of the correct professional status of people working on platforms; b) The promotion of transparency, fairness, human oversight, security, and accountability in the algorithmic management of digital platform work; and c) The improvement of transparency regarding digital platform work, including in cross-border situations.
The directive also establishes minimum rights applicable to all people working on digital platforms who have an employment contract or employment relationship or who, 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 practices in force in the Member States, taking into account the case law of the Court of Justice.
The directive includes Article 5, which legally applies to the contractual relationship between the person and the digital platform, establishing a presumption of employment conditioned on proof of the exercise of directive power and control by the platform, in accordance with the conditions practiced by national law. It will therefore be up to the platform to rebut the legal presumption, if it so wishes.
From what has been seen, we continue with the same previous rules in which the classification of facts constituting the claim to legal status depends on relevant and unquestionable elements for the provider to be considered an employee. In other words, technological evolution and transformations in employment relationships demonstrate that the elements of employment formation cannot be defined by legislators but will always depend on the legal qualification of the facts.
As can be seen, the issue of the presumption of subordination has always accompanied and will continue to accompany discussions regarding the recognition of employment relationships. The law does not have the power to exhaust and settle the debate, as it seems that the verification of facts remains fundamental for convincing judges who, today, when dealing with work through digital platforms, must address the autonomy of will and good faith in contractual relationships, as the Federal Supreme Court has been affirming.
