Work provided through platforms, called numerical, has brought, to the employment relationship, a new context of factual situations that differ from the traditional form of employment relationship in which work is physically identified with the place, people and clear information regarding the object of the employment contract, with better identified duties and obligations.
The concern with the legal framework of this new form of employment relationship, aimed at protecting the worker's labor rights, has adhered to the binary model that characterized the development of Labor Law. The European Union, driven by the series of conflicts existing in the EU countries, approved and published Directive (EU) 2024/2831 of the European Parliament and the Council, which came into force on December 2, 2024, and whose transposition deadline for Member States will expire on December 2, 2026. The directive applies to digital work platforms that organize work on digital platforms carried out within the European Union, regardless of their place of establishment or the law that is otherwise applicable.
According to the citation by Community legislationthe directive aims to improve working conditions and the protection of personal data at work on digital platforms through: a) Of the introduction of measures to facilitate the determination of the correct professional status of people working on platforms; b) Of promoting transparency, fairness, human oversight, safety, and accountability in 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 persons working on digital platforms who have an employment contract or employment relationship or who, on the basis of 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.
There is, in the directive, Article 5, which states that, legally, the contractual relationship between the person and the digital platform shall be presumed to be an employment relationship, conditioned on proof of the exercise of managerial authority and control by the platform, in accordance with the conditions established by national law. Therefore, it will be up to the platform to challenge the legal presumption, if interested.
As observed, we continue with the same previous rules in which the framing of the constitutive facts of the claim to the 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 of employment relationship formation 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 regarding the recognition of employment relationship. The law does not have the power to exhaust and pacify the discussion, as it seems that the investigation of the facts is still fundamental for convincing the judges who, today, when it comes to work through a digital platform, must face the autonomy of will and good faith in contractual relations, as the Supreme Federal Court has been affirming.