Presumption of subordination at work through platforms

Work provided through digital platforms, known as gig work, has introduced a new context of factual situations into labor relations that diverges from the traditional employment model, where work is physically identified with a specific location, people, and clear information regarding the employment contract's purpose, with more clearly defined duties and obligations.

The concern regarding the legal classification of this new form of labor relationship, aimed at protecting the service provider with labor rights, has adhered to the binary model that characterized the formation of Labor Law. Driven by the series of conflicts existing in EU countries, the European Union approved and published Directive (EU) 2024/2831 of the European Parliament and of 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 labor platforms that organize platform work within the European Union, regardless of their place of establishment or the law that would otherwise be 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 persons performing platform work; b) The promotion of transparency, fairness, human oversight, safety, and accountability in the algorithmic management of digital platform work; and c) Improving transparency regarding digital platform work, including in cross-border situations.

Furthermore, the directive establishes minimum rights applicable to all persons performing digital platform work 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 contains Article 5, which expressly states that, legally, a presumption of an employment relationship shall apply to the contractual relationship between the person and the digital platform, conditioned upon proof of the exercise of directive power and control by the platform, observing the conditions practiced by national law. It will therefore be incumbent upon the platform to rebut the legal presumption, should it have an interest in doing so.

From what has been observed, we continue with the same previous rules where the classification of facts constituting the claim to a legal status depends on relevant and unquestionable elements for the service provider to be considered an employee. In other words, technological evolution and transformations in labor relations demonstrate that the elements forming an employment relationship cannot be defined by the legislator 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 surrounding the recognition of an employment relationship. The law does not have the power to exhaust and settle the discussion, as it seems that the investigation of facts remains fundamental for convincing judges who, today, in cases of work through digital platforms, must address the autonomy of will and good faith in contractual relationships, as the Supreme Federal Court has been affirming.