S.L. 452.127 Art. 4Legal presumption of an employment relationship.

(1) When considering the employment status of a person performing digital platform work, it shall be presumed that there is an employment relationship and that the digital labour platform for whom the platform work is provided, or the work agency who assigns such person to or places him at the disposal of any digital labour platform, as the case may be, is the employer and that the provisions of the Act and of the regulations or orders issued thereunder apply to that relationship.

(2) Any declaration made by any person in relation to his own or to another person’s employment status shall be considered to be null and void if its consequences are in any way in conflict with the provisions of this order.

(3) Where the digital labour platform or the work agency, as the case may be, claims that the contractual relationship with the person performing digital platform work is not an employment relationship in accordance with sub-article (1), the burden of proof shall be on the digital labour platform or the work agency, as the case may be, when declaring that there is no such employment relationship by proving that it does not control directly or indirectly the performance of the digital platform work because it does not fulfil at least four (4) of the following criteria in relation to the person performing the platform work:

(a) the effective determination of, or stipulating the maximum limits for the level of remuneration;

(b) the requirement that the person performing digital platform work respects specific binding rules with regard to appearance and conduct towards the recipient of the service or performance of the work;

(c) the supervision of the performance of the work or the verification of the quality of the results of the work, including by electronic means;

(d) the effective restriction of the freedom, including through sanctions, to organise one’s work, in particular the discretion to choose one’s working hours or periods of absence, to accept or to refuse tasks or to use sub-contractors or substitutes;

(e) the effective restriction of the possibility to build a client base or to perform work for any third party:

Provided that, any proceedings relating to such claim shall not have a suspensive effect on the application of the legal presumption.

(4) Where the person performing digital platform work claims that the contractual relationship with the digital labour platform or the work agency, as the case may be, is not an employment relationship in accordance with sub-article (1), the digital labour platform or the work agency, as the case may be, shall be required to assist the proper resolution of the proceedings, primarily by providing all relevant information held by it. The determination of the existence or otherwise of such an employment relationship shall be established by the person performing digital platform work by the application of the criteria mentioned in sub-article (3):

Provided that, any such proceedings relating to such claim shall not have a suspensive effect on the application of the legal presumption.

(5) Any claims made either by the digital labour platform, or the work agency, as the case may be, or by the person performing digital platform work in accordance with sub-articles (3) and (4) respectively shall be made to the Director General responsible for Employment and Industrial Relations who shall proceed to investigate such claims and, based on the verification of the facts, establish whether an employment relationship exists or otherwise, whereupon the legal presumption shall apply or otherwise. This shall be without prejudice to the authority of the Director General responsible for Employment and Industrial Relations to enforce the provisions of sub-article (1) independently of any claim lodged by the digital labour (CONDITIONS OF WORK) REGULATION

platform, or the work agency, as the case may be, or by the person performing digital platform work.

(6) Notwithstanding any provision in any law or in any collective agreement or individual contract, if a person performing platform work had been performing digital platform work on a self-employed basis with any person prior to the date of entry into force of this order, and whose relationship by virtue of article 4(1) is deemed to be an employment relationship, any penalty clause laid down in the previous contract for service in relation to events occurring before the coming into force of this order, shall on the entry into force of this order, be null and void unless and until it is authorized by the Director General responsible for Employment and Industrial Relations in accordance with the provisions of the Act:

Provided that this does not in any way waive any right to institute civil procedures for damages which may be available to either party to the contract for service.