FAQs – Digital Platform Delivery Wages Council Wage Regulation Order, 2022

FAQs – Digital Platform Delivery Wages Council Wage Regulation Order, 2022

The ongoing debate on the regulation of platform work and the protection of platform workers has culminated in the publication of the Digital Platform Delivery Wages Council Wage Regulation Order, 2022.

What is this Order all about? These FAQs seek to answer a few of the more obvious questions that are being asked about the new employment regulatory framework that is being introduced by virtue of this Order.

What does the Order aim to do?

The scope of this Order is to ensure that persons who are engaged to provide paid services consisting of the delivery of any consumer product, are able to gain access to employment and social protection rights.

The Order seeks to achieve this aim by ensuring the correct determination of the employment status of such persons, by promoting transparency, fairness and accountability in algorithmic management in respect of such workers, and by enhancing transparency, traceability and awareness of developments in relation to such activity.

Who falls within the scope of this Order?

This Order essentially applies to workers who are engaged either by work agencies (i.e. agencies that place or assign such workers with digital labour platforms) or directly by digital labour platforms (i.e. electronic platforms that provide services enabling product deliveries to consumers), in order for such workers to provide product delivery services.

The form or contractual designation of a worker’s arrangement is irrelevant for the purposes of the Order. As such, the Order prioritises substance over form when considering its applicability to contractual arrangements or relationships.

Are delivery personnel considered to be employed or outsourced sub-contractors?

The Order creates a legal presumption of an employment relationship. When considering the employment status of a platform worker, it will be presumed that there is an employment relationship between the platform worker as an employee, and the work agency or the digital labour platform as the employer (depending on whether the worker is engaged directly with a work agency or directly with a digital platform).

The implications of this legal presumption are significant, insofar as it will be presumed that the provisions of the Employment and Industrial Relations Act and the regulations and orders that are issued under its authority, would also apply to the relationship between the platform worker and the work agency or digital platform (as the case may be).

If the work agency or digital platform claim that a contractual relationship with a platform worker is not an employment relationship, the work agency or digital platform have the burden of proving such allegation on the basis that the agency or platform does not directly or indirectly control the performance of work by the platform worker. The Order sets out a number of criteria as a legal basis for determining the level of control exercised by a work agency or digital platform over a platform worker.

Any claims relating to the determination of the status of a platform worker in light of the said legal presumption, must be made to the Director General responsible for Employment and Industrial Relations, who is responsible to investigate such claims and enforce the said legal presumption.

Are there any specific conditions regulating wages?

The employer would be bound to grant platform workers, in respect of all hours of work, the same wages paid to a comparable employee employed by the same employer, which must not be less than the applicable national minimum wage. If there is no such comparable employee, the pay must not be less than the applicable national minimum wage.

The employer will also be obliged to grant platform workers the same conditions of employment (including statutory bonuses, income supplements and general Government increase in wages) as those enjoyed by a comparable employee, which conditions may never be less than the minimum statutory employment conditions. Where there is no such comparable employee, such other employment conditions must comply with the minimum employment conditions that may be prescribed by applicable law.

The Order also prescribes minimum overtime rates. Overtime rates will be payable to all whole-time platform workers as follows:

• for all time worked in excess of forty hours in any one week, the overtime rate will be time-and-a-half, i.e. one and a half times the actual time rate applicable to the platform worker;

• for all time worked on any pre-determined day of rest, the overtime rate will be double time, i.e. twice the actual time rate applicable to the platform worker.

What about vacation leave?

As already stated above, the employer will be obliged to grant platform workers the same conditions of employment as those enjoyed by a comparable employee, which conditions may never be less than the minimum statutory employment conditions. Where there is no such comparable employee, such other employment conditions must comply with the minimum employment conditions that may be prescribed by applicable law.

This means that, at the very least, platform workers will benefit from the minimum statutory annual vacation leave entitlement that may be set out by applicable employment law and regulations from time to time.

Moreover, when a platform worker provides work on a national holiday or any other public holiday, although remuneration for such work will be at the normal rate, the platform worker will be entitled to an additional number of hours so worked as vacation leave during that same calendar year in respect of each such national or other public holiday.

Are there any other leave entitlements?

Yes, the Order secures various other leave entitlements for platform workers, including:

• Sick Leave – in every calendar year, whole-time platform workers will be entitled to sick leave of at least the equivalent of two working weeks on full pay, less an amount equal to the sum set for sickness benefit entitlement at the rate established under the Social Security Act. Part-time platform workers will have a pro rata entitlement to sick leave in hours on full pay, less an amount equal to the sum set for sickness benefit entitlement at the rate established under the Social Security Act, which amount is also to be calculated on a pro rata basis. The first three days of any claim for sick leave must be paid in full by the employer, and a medical certificate covering the period of absence must be provided to the employer. Whole-time platform workers employed for less than one year will be entitled to paid sick leave in proportion to the number of months in employment;

• one working day of bereavement leave;

• two working days of marriage leave;

• up to one year of injury leave;

• jury service leave for as long as necessary;

• quarantine leave for any period of quarantine as may be determined by the Superintendent of Public Health or by any other public authority.

Can a delivery driver be asked to pay a fee for entering into an agreement with an agency?

No payments or charges may be demanded or levied through a deduction from wages from any platform worker in consideration for recruitment by a work agency or any digital labour platform, or in consideration for concluding a contract of employment with a work agency or any digital labour platform.

Likewise, no deduction may be made from the wages of a platform worker by a work agency or digital labour platform in consideration of any other circumstances, except and insofar as such deductions are permissible in terms of law.

Are delivery drivers entitled to receive a summary of the conditions regulating their engagement?

Yes, platform workers may not be left in the dark as to the conditions that regulate their work.

Where the employment status of a platform worker is deemed to be one of employment, the employer must give such worker a letter of engagement or a signed declaration. This document must set out and confirm certain fundamental information relating to the engagement which the law binds the employer to provide to its employees. This document must be provided to the employee within seven calendar days from the commencement of the employment relationship.

Moreover, the employer has a duty to provide to the platform worker the reasons for any difference in treatment, if the worker considers that his employer may have treated him in a manner which infringes a right conferred on him by law, and if the worker requests such information.

Does the Order introduce any other safeguards?

The Order introduces various other safeguards that are specific to platform work, including in relation to:

• vehicles, equipment and mobile telephony – the employer will be responsible to provide, at his expense, appropriate vehicles for use by workers. The employer must also cover all costs associated with the use of such vehicles, including insurance, licence fees and fuel. The employer must also provide all other equipment, material and tools for platform workers to carry out their work, such as uniforms and helmets. Importantly, the employer may not demand any fee or deposit from the platform worker for any asset that is supplied by the employer as aforesaid. The employer will also be responsible to provide a mobile phone and internet services for use by platform workers in the conduct of their duties – alternatively it may be agreed for the employer to cover or grant an allowance for costs relating to the use of mobile telephony and internet services by the platform worker.

• health and safety – the employer will be responsible to ensure a safe working environment for its platform workers, by ensuring that risks relating to such work are identified and measures taken for such risks to be mitigated.

• use and monitoring of automated systems – the Order requires digital platforms to be transparent with their employees on the use by digital platforms of automated monitoring and decision-making systems, and the effects that these may have on their workers. Employers must provide this information in the form of a document which is concise and intelligible and using plain and clear language.

• information and consultation – the employer must ensure information and consultation of the platform workers’ official representatives, or where there are no such representatives, the platform workers, on decisions likely to lead to the introduction of or substantial changes in the use of automated monitoring and decision-making systems.

• communication channels – employers will be responsible for the creation of the possibility for platform workers to contact and communicate with each other, and to be contacted by official representatives of platform workers, through the relevant digital infrastructure or similarly effective means. Employers must refrain from accessing or monitoring those contacts and communications.

• recourse to the Director General responsible for Employment and Industrial Relations and the Industrial Tribunal – as an employee, a platform worker will have access to all legal remedies that may be applicable to employees under applicable Maltese employment legislation, whether by recourse to the Director General responsible for Employment and Industrial Relations or to the Industrial Tribunal, as may be available in terms of law.

When does this Order come in force?

This Order shall come into force within three months of its publication in the Government Gazette. The Order was so published on 21 October, 2022, meaning that it will become effective on 21 January, 2023.