Recently, Malta witnessed a sudden growth in services provided by means of digital platforms. However, persons engaged to provide their services on such digital platforms remained highly unregulated, which led to numerous issues in determining the existence of an employment relationship or otherwise and consequently, the rights and obligations which would be attached thereto.
On the 21st October 2022, the Digital Platform Delivery Wages Council Wage Regulation Order, Legal Notice 268 of 2022 was implemented with the scope of ensuring that platform workers gain access to labour and social protection rights. Platform workers include any person performing digital platform work and who has entered into any form of arrangement with any digital labour platform or multiple digital labour platforms in virtue of which he is engaged, whether on a regular or on an irregular basis, to provide services consisting of the delivery of any product. Furthermore, this Regulation also includes in the definition of a platform worker any person performing digital platform work who enters into any form of arrangement with a work agency and who is assigned to, or placed at the disposal of, whether on a regular or on an irregular basis, any digital labour platform or multiple digital labour platforms to provide services consisting in the delivery of any product.
This regulation seeks to provide platform workers with access to labour and social protection rights by ensuring the correct determination of their employment status, by promoting transparency, fairness and accountability in algorithmic management in respect thereof and by enhancing transparency, traceability and awareness of developments in relation to said activity.
Algorithmic management is defined in the regulations as the use by digital labour platforms of any automated systems, including automated monitoring systems and automated decision-making systems, in any manner whatsoever to match supply and demand for work, as well as to assign tasks, and monitor, evaluate and take decisions for the platform workers.
Furthermore, this legal notice outlines that platform workers must be provided with a work contract within 7 days from starting their employment. Such contract must include the conditions of employment outlined in the Transparency and Predictable Working Conditions Legal Notice 267 of 2022. Since this labour sector is niche, the employer must provide certain information to the employee within the first day of employment in addition to the contract. Firstly, the employee should be provided with information on the automated monitoring system which is used to monitor the work performance of platform workers through electronic means, and on automated decision-making systems which are used to take or support decisions that will significantly impact or affect the platform workers’ working conditions, to the employee.
Secondly, information on how the main parameters that such systems consider and their importance in the automated decision-making system, must be communicated to the employee. Lastly, the employee must be provided with information on grounds for the decisions to restrict, suspend or terminate the platform worker’s account or any decisions with similar effect. Employers are also obliged to make this information available to the Department for Industrial and Employment Relations and the respective representatives of the workers upon request, within a reasonable timeframe.
These regulations further bind the employer to regularly monitor and evaluate the impact of individual decisions taken or supported by the algorithmic management, and to perform the necessary evaluations of automated monitoring systems and decision-making systems for the safety and health of platform workers. There must be sufficient human resources monitoring the impact of individual decisions taken by the systems on their workers.
Moreover, employers are prohibited from processing any personal data of platform workers when it is not necessary for the performance of their work, and platform workers have the right to communicate with each other and to liaise with their representatives.
As outlined in the regulations, the current labour force which has been already engaged to perform the labour work will be considered as an employee from the entry into force of this order. However, with regards to the probationary period, any platform worker shall be considered to have already been engaged on the initial date of employment and the provision of service shall be deemed as continuous by the platform worker with the respective digital labour platform or work agency accordingly. Any equipment and vehicles which are necessary for the employees to perform their work, shall be supplied by the employer.
This order shall come into force on the 21st January 2023.
written by Dr Charlene Gauci and Dr Jodie Darmanin
For more information you can contact one of our Team Members at Mifsud & Mifsud Advocates.