Gianni Arrigo: The Development of EU Law in the Field of Occupational Health and Safety.

Gianni ARRIGO. The Development of EU Law in the Field of Occupational Health and Safety. Lessons from the past, and challenges for the future.

SUMMARY. 1.- Introduction. 2.-The long journey of European occupational health and safety law. From founding treaties to the present day. 3.-“Better regulation”: really better for health and safety at work ? 4.-The European Commission Strategic Frameworks: importance and limitations. 5.- Digitalisation at workplaces: innovation potentials and new OSH risks. The EU strategy on Artificial Intelligence. 6.- The EU Artificial Intelligence Act. General aims and key elements. 7.-Digital platform work and OSH implications. 8. The legal presumption of salaried status for workers on digital platform. 9.-The Platform work Directive and OSH risk prevention. Some critical comments by way of conclusions.

1.Introduction.

1.1. This essay proposes a reflection on the effectiveness of existing OSH legislation, in light of the new challenges associated with the evolution of digital technologies. 

The changing nature of work and the work organization is widely recognized and discussed[1]. While these arrangements may represent more flexibility for employers, they can translate into Terms of employment have changed for many workers with nonstandard work: short-term contracts, gigs, platform work, etc.. more precarious employment for workers; lower pay for equivalent education, skills, and experience than those with long-term employment arrangements; fewer benefits; and greater turnover. These outcomes can negatively affect the health of the workforce and their overall well-being.

In the following paragraphs, after a brief reconstruction of the regulatory evolution of EU Occupational Health and Safety, this essay sets out the strengths and weaknesses of the current regulation regarding OSH, trying to answer the following questions: are the principles laid down by the basic European legislation, still relevant in face of digitalisation process? Has the current regulation on health and safety at work achieved a level of consistency adequate to effectively pursue its fundamental objectives?

1.2. Workplace accidents and diseases prevention have been the focus of law-making in European Union (EU) since the first European Communities. Along the process of European integration, the occupational health and safety law grew progressively under the treaties of Rome, Paris, Maastricht, Lisbon and through sectoral regulations. In 1989 the adoption of Directive 89/391/EEC (hereinafter: the Framework Directive) marked the transition from a prescriptive approach to one goal-oriented, with greater attention to social dialogue.

The OSH importance in Europe has gradually grown, in the light of the development of digitalisation and new forms of work. Health protection in the workplace became an increasingly crucial objective, especially in view of fastchanging and ever more competitive working environments, as well as widespread policies of deregulation in some EU countries[2].

Another crucial factor to consider is the increasing migration.

Migrant workers are required to fill the demand in those sectors and those jobs least favoured by the native-born, for which, consequently, there is a shortage of local labour. Most of these are the so-called 3D jobs (dangerous, dirty, and demanding/degrading). The roles offered include precarious positions in the labour market; the absence of contracts due to irregular employment or temporary assignments; the tasks assigned being among the most burdensome, arduous, manual, physically demanding; the schedules and shifts proposed often being unfavourable, with demand for flexible work and sustained rhythms; the positions available requiring low skills, often disproportionate to the real level of experience or qualification; and the salary generally being low. This is the case of the so-called riders.

The uncertain nature of the employment relationship and the lack of bargaining power, legal defence, and information are in particular some of the aspects that bring about a disadvantage and exacerbate the difficulty in expressing requests concerning better working conditions, often for fear of retaliation, negatively affecting the possibility of exercising one’s rights.

Migrant workers are constantly confronted with difficulties in gaining decent working conditions, in having accidents and illnesses reported and compensated, in communicating, in gaining access to training, etc.

1.3. In recent years the European OSH had to deal with structural changes induced by digital technologies, such as artificial intelligence (AI), advanced robotics, widespread connectivity, the internet of things and big data, mobile devices and online platforms.

The diffusion of digital technology in almost every business and workplace is changing the nature and location of work, who works and when, and how work is organised and managed, including the new types of jobs that have emerged, employment relationships, the skills required and the quality of work. Digital technologies undoubtably permit workers to benefit from higher levels of autonomy and flexibility, or facilitate the access of a more diverse workforce to the labour market, in particular vulnerable groups. Digitalisation also offers opportunities for more effective OSH training, advanced workplace risk assessment, communication and OSH inspections. However, depending on how technologies are designed and implemented, on the organisational context and on the employment status, digitalisation may result in some workers being more exposed to OSH risks such as ergonomic and safety risks, including functional safety risks associated with cybersecurity.

The rate at which these developments are taking place is faster than ever before. This puts a strain on the adaptability and effectiveness of the protection system at various levels of regulation

The European OSH legislation has evolved for many years. A rigorous sanctioning system against transgressors has been adopted, also in terms of criminal sanctions. Nonetheless, according to recent data from Eurostat, despite an overall decrease in fatal accidents at work (with the exception of Italy[3]), there has instead been an increase in occupational diseases. Accidents are mainly concentrated in the manufacturing industry sector, as well as in the construction, transport, logistics and healthcare sectors.

It is possible to state that those situations range from inadequate regulations to unsafe employee behaviours and the shortcomings in adapting to technology. However, various solutions are available to overcome these challenges. Managing digitization within an ethical framework, providing education and involvement for employees, and implementing regulations that enhance safety are key steps in transitioning occupational health and safety to the digital age.

A continuous and organic action is essential to guide the transformation brought by digitization in the safest and healthiest manner possible. The complexity of elements and objectives requires an integrated set of political instruments, and as consequence, the involvement of  all stakeholders: decision-making bodies, European and national authorities, trade unions, works councils,  labour inspectorates, employers in all industrial sectors, researchers, scientists and ethicists, occupational doctors and preventive services, non-governmental organisations, international organisations.In this regard, the European Agency for Safety and Health at Work (EU OSHA) provides a very significant contribution.

1.4. The exact fulfilment of the prevention obligation by the employer is important, given that safety obligations are traditionally linked to the physical contact of the places where the work performance takes place and linked to the employer’s legal power to dispose of these items.

The approach at health and safety at workplace is influenced by a wider context, that includes OSH regulations, access to specialist expertise, knowledge of new and emerging risks, industrial relations, etc.

The evidence of those dynamics calls for careful reflection of work, its organisation, its social meaning and its legal regulation. It is to be hoped that any forthcoming EU legislation will be inspired by the modus operandi of the European Commission (EC) at the end of the Eighties, when the EC set hand the necessary modernization of regulatory and prevention techniques through appropriate measures to encourage improvements in the safety and health of workers at work.

It should be added that the pandemic crisis, albeit contingent and temporally limited, has heightened the need for some pragmatic regulatory solutions which in turn are necessary by the ongoing “double transition”, ecological and digital.

Now, more than three decades after the adoption of Directive 89/391, we have to understand whether the protection techniques in force can effectively respond to the risks and protection needs expressed by the new organization of work. This also to respond to the requests expressed by workers and social partners at various levels (national, European and international), which press for an evolution of the health and safety protection system based on values of sustainability, solidarity, specificity and legal certainty.

This was also the focus of the ILO, which, in celebrating its 100th anniversary, reiterated the paradigmatic value of health and safety protection for the future of labour law[4].

2.The long journey of European occupational health and safety law. From founding treaties to the present day.

2.1. The Beginning (after the Marcinelle disaster). Occupational health and safety law and administration (OSH) is one of the most important branches within EU labour law. Unlike other sectors of EU law, it early achieved an organised and organic structure that is still lacking in other areas today, with the sole exception, perhaps, of anti-discrimination law[5]. Yet, the journey was long, and not always easy or linear. The beginning, moreover, was dramatic. In 1956, even before the birth of the European Economic Community, a Permanent Body for Safety in Coal Mines was established within the European Coal and Steel Community (ECSC) in the wake of tragedy in the Belgian coal mine of Bois du Cazier, occurred on 8 August 1956, that cost the lives of 262 miners, of over twelve different nationalities, more than half of whom, 136, were Italian. After this catastrophe, many actors shifted the question of blame and responsibility from an individual and national level to the european level. Mining risks were discussed as a structural and european issue. Furthermore, the ECSC saw the disaster as an opportunity for more european integration in new domains, most notably social policy.

The Marcinelle disaster had a long-lasting impact on the way in which risks and accidents were managed on the european level. Some measures were deemed more ‘technical’, but played a social role as well. The implemented and established institutions and practices within the High Authority of ECSC, remained influential in the decades to come. On a more theoretical level, the case of Marcinelle illustrates the importance of combining risk and European integration frameworks.

Under the auspices of the ECSC, various research programmes were carried out in the field of OSH. The need for a global approach to the matter became manifest within the European Economic Community (EEC), a few years after its establishment. Indeed, the early years of the EEC made little impact upon the social and employment spheres, outside the impact arising from economic integration.

2.2. The first Social Action Programme (1974). The direction began to change in the 1970s, when the Commission approved the first Social Action Programme (1974). This Programme paid great attention to occupational health and safety issues, which were which were later explored in depth by two others specific Action Programmes, adopted respectively with Council Resolutions of 29 June 1978 and 27 February 1984[6].

Still in 1974 an Advisory Committee on Safety, Hygiene and Health Protection at Work was set up to assist the Commission[7]. Moreover, minimum OSH requirements were needed in order to complete the European single market.

On the basis of the mentioned Action Programmes, many directives were approved in the Seventies and Eighties, taking advantage of the legal basis offered by the art. 100 of the Treaty, allowing the Council to act unanimously in order to approximate the legislations of the Member States having a direct impact on the establishment or functioning of the common market[8].

The Council Resolutions of 1978 (the “predecessor” of today’s Strategic Framework), was ambitious in its objectives, recognizing that the number of accidents and diseases resulting from work remained high and had incalculable consequences for society. The aim of the 1978 Action Programme was to increase the level of protection against occupational risks of all types; it aimed to do this by increasing preventive measures as well as by the monitoring and controlling of risks. As early as 1978, the Action Programme indicated the need to determine, fix and harmonise exposure limits for dangerous substances, especially carcinogens; to incorporate safety and ergonomic aspects in the various stages of the design, production and operation of machinery and work equipment; and stressed that the use of modern technology and advanced processes was increasing and would lead to new dangers – without however clearly identifying these.

With regard to more specific health issues, the 1978 Action Programme recognised the need to promote collaboration with Member States in the field of occupational medicine. The Council of EEC indicated the need to plan the monitoring of workers’ health. The Action Programme also made reference to psychosocial considerations; it suggested the adaptation of work to workers as a way to achieve the highest level of physical and mental well-being. All in all, it set an ambitious agenda for the European Communities, which would have a substantial impact on the negotiation of the ensuing EEC health and safety directives.

The most important measure adopted at that time was the Directive no. 80/1107 on the protection of workers from the risks related to exposure to chemical, physical and biological agents at work, a Framework Directive, later completed by four “daughter” directives (or “individual Directive within the meaning of Article 8 of Directive 80/1107/EEC”), such as Directive 82/605/EEC (replaced by Dir. 98/24/EC) on protection against the risks associated with metallic lead; Directive 83/477/EEC (last amended by Dir. 2009/148/EC) on asbestos; Directive 86/188/EEC (last amended by Dir. 2003/10/EC) on noise at work; Directive no. 88/364, by the banning of certain specified agents and/or certain work activities (No longer in force; end of validity: 5 May 5/2001).

2.3. The Single European Act (1987), the OSH Framework Directive (1989), the Jacques Delors’ contribution to the social dimension of the European Single Market. In 1987, the adoption of the Single European Act opened the European Community to important innovations in the field of social policy and, in particular, towards a more incisive protection of health and safety at work.

With regard to social innovations, the Single Act gave Member States the opportunity to confirm their desire to promote workers’ health and safety and to develop the social dialogue. It was the first treaty to set out, in a practical way, the gradual establishment of a European social area. Wishing to eliminate the imbalances in the Community between the developed regions and the poorer regions, imbalances which had continued to grow during the enlargement process, the Member States undertook to enhance economic and social cohesion. In order to facilitate the joint pursuit of social policies, the Commission (at that time chaired by Jacques Delors) was instructed to promote dialogue between the social partners, with a view, in particular, to the conclusion of national multi-industry agreements. The role of the trade unions was thus recognised by the Single Act. The Commission was also responsible for the reform of the Community’s structural funds such as the European Social Fund, the European Agricultural Guidance and Guarantee Fund and the European Regional Development Fund.

The Twelve Member States also decided that Community social policy might be developed with the help of directives adopted by the Council, by qualified majority on a proposal from the Commission, following consultation of the Economic and Social Committee. According to Article 118a of the Treaty establishing the European Economic Community[9], ‘the Council shall adopt, by means of Directives, minimum requirements for encouraging improvements, especially in the working environment, to guarantee a better level of protection of the safety and health of workers”. The aims were: to improve workers’ health and safety at work; to harmonise conditions in the working environment; to prevent ‘social dumping’ as completion of the internal market progressed; and to prevent companies from moving to areas with a lower level of protection in order to gain a competitive edge.

In respect of health and safety, the biggest change was the Health and Safety Framework Directive (89/391/EEC, hereafter ‘Framework Directive’), and five “daughter” directives which established broad-based obligations on member states to ensure that employers evaluate, avoid and reduce workplace risks in consultation with their workforce[10]. Based on Article 118a of the Treaty establishing EEC, the Framework Directive guarantees minimum safety and health requirements throughout Europe while Member States are allowed to maintain or establish more stringent measures. The Framework Directive was fully transposed in all Member States by 1992.

The Framework Directive and its daughter directives established a new and robust legal framework in Europe, supported by multiannual Community strategies. Through these, the European Commission planned to improve working conditions in Europe by addressing specific political objectives and ambitions.

Some provisions of the Directive brought about considerable innovation including the following: a) the term “working environment” was set in accordance with International Labour Organization (ILO) Convention No. 155 and defines a modern approach taking into account technical safety as well as general prevention of ill-health; b) the Directive aimed to establish an equal level of safety and health for the benefit of all workers (the only exceptions are domes-tic workers and certain public and military services); c) the Directive obliged employers to take appropriate preventive measures to make work safer and healthier; d) the Directive introduced as a key element the principle of risk assessment and defines its main elements (e.g. hazard identification, worker participation, introduction of adequate measures with the priority of eliminating risk at source, documentation and periodical re-assessment of workplace hazards); e) the new obligation to put in place prevention measures implicitly stressed the importance of new forms of safety and health management as part of general management processes.

The Framework Directive is still a substantial milestone in improving safety and health at work. It brings together several achievements of the Labour Movement and has the advantage of being a self-standing piece of legislation, rather than a Europeanized version of national pieces of legislation, even though the rules it contains do exist also in International Labour Conventions.

The Directive’s main objective is to improve the safety and health of workers. For this purpose, the principle of prevention has become the cornerstone of the system. The Directive defines general principles for managing safety and health; identifies the responsibilities and obligations of the employer, as well as the rights and duties of workers; and establishes the obligation to conduct risk assessments. Social dialogue, worker participation, training, safety representatives and safety committees are all part of the legislation, with a variety of rights.

Several aspects of the directive’s text are still particularly relevant: a) It seek to harmonize health and safety, as well as to guarantee working conditions and well-being; b) It set minimum requirements for Member States, in the sense that they are  free to provide a level of protection that is more stringent or detailed than that resulting from EU law; c) References are  made to the nature and size of companies, including the need to avoid imposing constraints that might affect the development of small and medium sized enterprises; d) It is expansive, valid for all enterprises and all industrial sectors; e) It allows Member States discretion as to its implementation, although reporting on implementation to the European Commission is  required.

The Framework Directive and its daughter directives established a new and robust legal framework in Europe, supported by multiannual Community strategies. Through these, the European Commission planned to improve working conditions in Europe by addressing specific political objectives and ambitions.

2.4.The Treaties of Amsterdam and Lisbon. In 1997, the Treaty of Amsterdam strengthened the status of employment issues by introducing the title on employment and the Social Agreement. For the first time, directives setting out minimum requirements in the field of health and safety at work and working conditions were adopted by both Parliament and the Council by means of the codecision procedure.

The Lisbon Treaty (2007), for his part, contains a ‘social clause’ under which social requirements must be taken into account in the EU’s policies. Upon the entry into force of the Lisbon Treaty, the Charter of Fundamental Rights of the European Union became legally binding on the Member States when they apply EU law.

Between 1989 and 2013, some 30 “daughter directives” with more detailed requirements were adopted; these covered a broad range of topics and risks such as physical, chemical and biological agents, general workplace requirements, work equipment, personal protective equipment, manual handling of loads and display screens equipment.

The EU legislative structure was supported by various building blocks such as the European Agency for Safety and Health at Work (EUOSHA)[11] and the Advisory Committee on Safety and Health at Work[12].

However, the legislative system put in place by the Framework Directive started misfiring in certain key aspects of occupational health: new legislation was and still is difficult to achieve, and enforcement is still problematic. This was the result (among other things) of the limited capacity of labour inspectorates at national level and the sometimes-difficult cooperation with safety representatives, despite legal obligations to involve the inspectorates and provide them with information. Also, trade unions were quite willing to engage in OSH but sometimes lacked the necessary scientific knowledge to negotiate with employers on very technical matters. On the other hand, industry gradually started moving away from a preventive approach and pushed for a simplification of policy and rules.

2.5. The EU Pillar of Social Rights. The modernisation of the EU OSH legislation from the middle of the 1980s on has created a critical frame for prevention of OSH risks. The EU Member States, governments and social partners have agreed on this legislation and the Member States have transposed it into their national legislation. The overall legislative framework is generally comprehensive. Moreover, the European Commission launched an initiative to agree on the ‘European pillar of social rights’ (hereinafter: the Pillar), comprising 20 guiding principles for the work of the EU-institutions in the field of social policy. In 2017, the Pillar was agreed by the Member States[13].

The Pillar fosters a high level of protection of workers, regardless of their age, about from occupational safety and health risks. Its Principle 10 provides that “Workers have the right to a high level of protection of their health and safety at work. Workers have the right to a working environment adapted to their professional needs and which enables them to prolong their participation in the labour market. Workers have the right to have their personal data protected in the employment context”.This is particularly important in the context of the EU Pillar, as it aims to deliver fundamental social rights, including fair working conditions, equal opportunities and access to the labour market[14].

According to the Commission Staff Working Document establishing a European Pillar of Social Rights[15], the Member States, but also employers, should go “beyond the minimum requirements laid down in the current acquis and to get as close as possible to an accident-free and casualty free working environment. This does not mean only applying the rules, but also establishing ever-improving health and safety policies with the help of tools such as web-based and tools to facilitate risk assessments, dialogue with workers and workplace suppliers, all supported by guidance”. Furthemore, the Principle (10b) of the Pillar introduces two inter-related rights: “first, it goes beyond the protection of health and safety by affording workers the right to a working environment adapted to their specific occupational circumstances. Secondly, in accordance also with the principle of active ageing, it recognises the need to adapt the working environment in order to enable workers to have sustainable and longer working careers”.

In other words, longer and healthier working lives can reduce precariousness while improving productivity. Indeed, good safety and health at work leads to numerous benefits, such as reducing sickness absence, cutting healthcare costs, keeping older workers in employment, stimulating more efficient working methods and technologies and contributing to a better work-life balance. 

2.6. A beneficial “common acquis”. As above said, the European Union has always been establishing basic rules to protect the health and safety of workers: in fact, from the Treaty of Rome (1957), occupational health and safety issues have been considered key areas of action for the European Authorities. The change of pace occurred with the adoption of Directive 89/391/EEC (Framework Directive). Almost 70 specific Directives in this field have been released, thus giving more detailed and precise provisions on particular aspects/hazards.

Although sometimes considered too demanding and over detailed, the EU Directives (starting from the Directive 89/391 on) have represented a strong response to the maintenance and development of the social dimension in the changing world of work.

Their implementation in 27 Member States and the enlargement process have created a beneficial “common acquis” on a modern and advanced policy framework with some limits in implementation, in particular into small and medium enterprises (SMEs). Also, the public sector shows significant shortcomings, though. High-risk workers are also found amongst young people, temporary workers and those with low qualifications[16]. However, since the enactment of the Framework Directive, an active process of rethinking and implementing OHS issues has started, with a strong impact on Services organization and delivery as well as on Research infrastructures.

On the side of OHS Services, the EU Directives and their ratification at national level, have favoured the improvement of health conditions at the workplace through the adoption of even more severe and efficient measures to protect workers’ health at the workplace and the identification of the human resources, the so-called OHS professionals, needed for the enforcement and implementation of health and safety measures provided by law.

3. “Better regulation”: really better for health and safety at work ?

At beginning of the 2000s, the European Commission adopted ‘Better Regulation’ as a key strategy. At the Lisbon Council in 2000 the European Union carved out an ambitious strategic goal for the next decade. The EU wanted to become the most competitive and dynamic knowledge-based economy in the world, capable of sustainable economic growth, with more and better jobs and greater social cohesion. The general feeling since the Lisbon Council is that European legislation, as an important instrument for these targets, needs to be tuned to this overall strategy. In its white paper on European governance of 2001, the Commission conceded that the European Union needs to pay ‘constant attention to improving the quality, effectiveness and simplicity of regulatory acts.’[17]. Later that year the Commission wrote an interim report[18] and issued a Communication on Better Lawmaking, mapping out the strategy for the three key elements of the new philosophy: simplifying and improving the regulatory environment; promoting a culture of dialogue and participation (i.e. furthering transparency, consultation, etc.); and the systemization of impact assessment by the Commission.[19] The Communication was accompanied by an action plan ‘Simplifying and improving the regulatory environment,’ detailing the responsibilities of the legislative institutions and the actions required of them[20]. Many elements have been enshrined in the Interinstitutional agreement on Better Lawmaking of 2003 (IIA 2003)[21]. Better Lawmaking policy has left an impressive number of documents and policies in its wake.

The better law-making agreement (2003) aims to improve the way the EU legislates and to ensure that EU legislation better serves citizens and businesses. It should make the EU legislative process more transparent, open to stakeholder input and easier to follow. It will also help assess the impact of EU law for small and medium-sized enterprises, local industry and ordinary citizens.

It will introduce a new agreement between the EU institutions, designed to make cooperation between them smoother and clearer.

One of the main aims of the better law-making agreement, also known as ‘better regulation’ or ‘smart regulation’, is to ensure that EU policies and laws achieve their objectives at minimum cost and administrative burden. This way of working aims to ensure that political decisions are prepared in an open, transparent manner, informed by the best available evidence and backed by the comprehensive involvement of stakeholders. Better regulation covers the whole policy cycle – policy design and preparation, adoption, implementation, application, evaluation and revision. For each phase of this cycle, there will be specific principles, objectives, tools and procedures to make sure that the EU has the best regulation possible. 

The purpose of Better Regulation is to make EU laws simpler, more targeted and easier to comply with. The Commission has a long history of reducing regulatory burdens, starting in 2002. The approach to burden reduction has evolved over the years and has been systemised with the REFIT programme.

Better Regulation focuses on simplifying legislative actions and, in the case of OSH directives, advocates the modernization of ‘older’ provisions. Updating directives and their content is a reasonable endeavour but, in this case, the European Commission focuses mainly on competitiveness, innovation. It also uses impact assessments and ex-post evaluations to systematically reduce regulatory costs and burdens, without taking into account the benefits of regulation and the cost of non-Europe[22]. In February 2007, the European Commission published its strategy for 2007-2012, entitled ‘Improving quality and productivity at work: Community Strategy 2007-2012 on health and safety at work’[23]. However, at this time the issue of working conditions in the European Union was at a standstill. Primary prevention at the workplace -which accounted for at least 8% of avoidable cancers- was still not a core pillar of the OSH. Action on musculoskeletal disorders was also missing. Weak points became increasingly visible and obvious, such as the need to deal with risks related with asbestos pollution, dangerous chemicals, carcinogens, mutagens and substances having a toxic effect on reproduction. The wider legislative framework became gradually affected by the weight of political debates about competitiveness versus legislation, cost versus benefit, innovation versus prevention and safety versus profit.

4. The European Commission Strategic Frameworks: importance and limitations.

Various strategies or Action Programmes have been adopted since 1978. Strategic Frameworks are key instruments.They identify priorities and common objectives; provide a framework for coordinating national policies and promoting a holistic culture of prevention; establish a clear European direction.

4.1. The Strategic Framework 2013- 2020.

In 2011 a new Strategic Framework was announced for a new period. Expectations were running high, given the importance of the framework as a common tool. However, the Commission needed two more years to negotiate, develop and internally renegotiate the Strategic Framework on Health and Safety at Work for the period 2014–2020. Indeed, the Framework came out, in 2014 instead of 2012[24]. It proposed three major challenges: i) improving the implementation record of Member States, in particular by enhancing the capacity of micro and small enterprises to put in place effective and efficient risk prevention measures; ii) improving the prevention of work-related diseases by tackling existing, new and emerging risks; iii) tackling demographic change. These challenges were linked to the following objectives: consolidating national strategies; facilitating compliance with OSH legislation, particularly by micro and SMEs; improving enforcement in Member States; simplifying existing legislation; addressing the ageing of the workforce and emerging risks; improving statistical data collection and reinforcing coordination with international organisations.

However, the Strategy had several weaknesses. In particular many of the so-called ‘key’ challenges, such as improving implementation, occupational diseases and an ageing workforce, were not really new, having already been presented as ‘key’ for a long time. Furthermore, most of the work that needed to be done to achieve the objectives, were delegated to the Bilbao Agency, which was already overburdened by its own work programme and, additionally, had no executive power. In other words, the European Commission was focused on what appeared to be the most important and almost the sole strategic objective: simplifying existing legislation. The Strategic Framework seemed therefore perfectly aligned to the REFIT programme in the following way: by assessing whether the OSH acquis is fit for purpose, by finding out how to improve its implementation and by ensuring better and effective compliance by Member States and enterprises. Instead, the Programme should have been designed around real workplace issues, particularly in small and less developed companies where workers are more exposed to risks. Important real issues were, for example, psychosocial risks, musculoskeletal disorders and exposure to dangerous substances, such as nanomaterials, endocrine disruptors and reprotoxics. It should also have looked at other empirical risks, such as those faced by migrant workers, crowd workers and cloud workers.

For his part the ETUC expressed its disappointment criticizing the fact that the Strategy threatened to deregulate health and safety, claiming a need to ‘simplify legislation where appropriate’ to make it easier for SMEs to implement health and safety. The ETUC concluded that ‘the strategy proposes to treat health and safety as part of the REFIT programme of cutting so-called red-tape. Workers’ safety is not a bureaucratic burden’[25].

No less critical were the European Parliament’s reactions to the Strategic Framework. A Resolution on the EU Strategic Framework on Health and Safety[26] stressed the need for clear and efficient rules, while regretting that the European Commission had not set out specific targets in the framework. It also suggested that more concrete legislative and or non-legislative measures should be made, and also that implementation and enforcement tools should be included in the framework following its review in 2016. The European Parliament asked the Commission to draw up indicative reduction targets for occupational diseases and accidents in order to ensure that national OSH strategies reflect the EU-OSH Strategic Framework and are fully transparent and open to input from social partners and civil society. The Parliament also called on Member States and social partners to act, urging them to improve the skills and competences of safety representatives and company managers. Member States should also promote the involvement of workers in OSH prevention activities; they are free to adopt higher standards than the minimum OSH requirements.

4.2. The Strategic Framework 2021-2027. Context and key priorities. From the Covid pandemic to the ‘double transition’.

4.2.1. The 2021-2027 OSH framework[27], announced in the European Pillar of Social Rights action plan, and adopted on 28 June 2021, sets out the key priorities and actions necessary for improving workers’ health and safety over the coming years in the context of the post-pandemic world, marked with green and digital transitions, economic and demographic challenges and the changing notion of a traditional workplace environment[28].

The Strategic Framework 2021-2027 is born in a context profoundly changed by the Covid-19 pandemic and the double transition started by Europe, green and digital.

Therefore, although the Commission reiterates that the priorities of the previous strategic framework still remain relevant, the change in emphasis is notable, from the centrality of the application profiles to that of the anticipation and management of risks connected to the transformations of the world of work resulting from the double transition and demographic evolution, without neglecting adequate preparation for the possible recurrence of new pandemics.

However, as regards the effectiveness of workplace safety and Health laws, the development of the guidelines and online tools, improved and made available to the public by the European Agency for Safety and Health at Work, is highlighted above all, as well as, on the inspection front, the guides and tools developed by the Committee of senior managers of the labour inspectorate.

Compared to the previous Strategic Framework, the Commission’s analysis is more accurate. The reference period is broader. The role of factors such as deindustrialization and improved medical care is highlighted. The substantial importance of European workplace safety law in achieving the various and complex objectives is underlined.

4.2.2. The Strategic Framework builds on a stocktaking exercise of the achievements in the implementation of the EU strategic framework on health and safety at work 2014-2020. The stocktaking exercise identified a number of challenges linked to shorter-term implementation of the strategic framework in light of: i) resource constraints in Member States; ii) the need to increase focus on occupational diseases, demographic change, psychosocial risks and musculoskeletal disorders; and iii) the need to help both labour inspectorates and companies improve their OSH standards.

This Strategic Framework is also based on input from a broad range of stakeholders, mirroring the commitment of all actors in its implementation. The groundwork was laid by an EU-OSHA report on the national OSH strategies, a specific evaluation report, and advanced survey tools. Additional crucial input to the framework came from: i) several Council conclusions; ii) reports, recommendations, hearings and other exchanges with the European Parliament; iii) exchanges with social partners, and independent experts; iv) replies from an open public consultation; and, v) the opinion from the Advisory Committee on Safety and Health at Work (ACSH).

It also builds on the information provided by the assessment of the practical implementation of the Framework Directive 89/391/EEC on safety and health of workers at work and related EU Directives for the period 2013-2017.

4.2.3. Healthy and safe working conditions are a prerequisite for a healthy and productive workforce. Nobody should suffer from job related diseases or accidents. It is also an important aspect of both the sustainability and competitiveness of the EU economy.

The Covid-19 pandemic has shown how crucial OSH is for protecting workers’ health, for the functioning of our society, and for the continuity of critical economic and social activities. Therefore, the road to recovery and reactivation of productivity must also include the renewed commitment to keep occupational safety and health at the forefront and to improve the synergies between OSH and public health policies.

The priorities of the previous framework remain relevant. However, further OSH actions in the EU are is needed to make the workplaces fit for the increasingly rapid changes in the economy, demography, work patterns, and society at large. For a certain part of the EU workers, the concept of workplace is becoming more fluid but also more complex as new organizational forms, business models and industries are emerging. The Covid-19 pandemic has accentuated these complexities and made OSH and public health policy more interrelated than ever before.

The strategic framework therefore focuses on three crosscutting key objectives for the coming years: a) anticipating and managing change in the new world of work brought about by the green, digital and demographic transitions; b) improving prevention of workplace accidents and illnesses; c) increasing preparedness for any potential future health crises.

To deliver on these objectives, actions are needed at EU, national, sectoral, and company level.

The implementation of these objectives will be underpinned by: i) social dialogue; ii) strengthening of the evidence base; iii) strengthening of enforcement; iv) awareness raising; and v) funding.

A) Anticipating and managing change. The nature of many tasks, work patterns, and workplaces is changing. Jobs that did not exist a decade ago have emerged, fuelled by the green and digital transitions. The European Green Deal, the EU digital strategy, and the new industrial strategy for Europe will together: (i) generate major investments; (ii) contribute to growth, innovation and job creation; and (iii) provide flexibility and opportunities for workers, businesses, and the self-employed. The EUR 1.8 trillion EU budget for 20212027, including Next Generation EU, will support these initiatives and contribute to a sustainable recovery. At the same time, demographic change in the form of an ageing workforce in Europe requires continuous reflection and response. Occupational health and safety play an essential role in this, as workers are getting older it is necessary to adapt the working environment and tasks to their specific needs and minimise risks. The Green Paper on Ageing has therefore launched a debate including on the conditions for labour market participation of older workers.

Advances in technology can provide new opportunities for workers at all stages of their life and career. Digital technologies can provide workers, including workers with disabilities or older workers, and their employers with digitally enabled solutions to support their health and wellbeing. These technological advances can offer increased opportunities to improve work life balance for both women and men, and support OSH implementation through accessible tools, awareness raising and more efficient inspection. Robotisation, the use of artificial intelligence, and the greater prevalence of remote work reduce the risks of dangerous tasks, such as those in highly contaminated areas like wastewater systems, landfills, or agricultural fumigation areas. However, new technologies also pose a number of challenges due to both: (i) the increased irregularity in when and where work is performed; and (ii) the risks related to new tools and machinery. Climate change can also affect workers’ safety and health, including through increased ambient temperature, air pollution and extreme weather.

B) Improving prevention of workplace accidents and illnesses.The ‘vision zero’ approach.The Strategic framework will promote a ‘vision zero’ approach to eliminate work-related deaths in the EU. The Commission will also update EU rules on hazardous chemicals to combat cancer, reproductive, and respiratory diseases. With this fundamental transversal objective, the Strategic Framework returns to a classic theme of European workplace safety law, which has characterized its DNA since its inception: “the focus on prevention”. The Commission is expressly aiming for the goal of “zero victims”, as expressly requested by the European Parliament with a Resolution[29] that calls on the Member States to commit to eliminating work-related deaths and substantially reduce work-related illnesses.In line with the global approach to health and safety at work that traditionally characterizes the Strategic frameworks, the Commission insists on the need to take into account the diversity of workers, starting from the risk assessment, not only with regard to gender, but also, for example, to disabilities, and their diversified needs. The fight against discrimination, violence and harassment offers a fundamental contribution to overall well-being in the workplace. The Commission also intends to proceed to verify the continuing adequacy of the Directive 2009/52 on minimum sanctions against employers who employ irregular workers, to more effectively combat labour exploitation.

‘Vision zero’ aligns with the legal requirements of the Framework Directive 89/391, which has long been transposed into EU Member State legislation. ‘Vision zero’ allows for the legally required preventative ethos that fully utilises the hierarchy of controls. The enterprises would therefore be expected to eliminate OSH risks in the first instance. ‘Vision zero’ also has the scope to ensure that the full spectrum of chemical, physical, biological and psychosocial risks that can manifest themselves in enterprises will be appropriately managed. This will ensure that cross discipline issues, for example bullying, harassment, violence, stress, gender based effects and all detrimental OSH related health outcomes, are equally subject to the required preventative ethos of the Framework Directive 89/391. This widespread adoption of ‘vision zero’ is well known by European Union Labour Inspectorates and enforcement agencies. They will therefore recognise the contribution to compliance with relevant OSH legislation, that well-implemented “vision zero” strategies will bring.

“All efforts must be deployed to reduce work-related deaths as much as possible, in line with a ‘vision zero’ approach to work-related deaths in the EU”, the Strategy says. In order to achieve this, the key actions point will be: a) Improving data collection on accidents at work and occupational diseases, and analysing the root causes for each work-related death or injury; b) setting up a tripartite working group on “vision zero”  under the Advisory Committee on Safety and Health at Work (ACSH), and developing targeted information actions and tools to increase awareness; c) strengthening enforcement by supporting the Senior Labour Inspectors Committee (SLIC) in increasing awareness on reducing work-related deaths at company level, sharing good practices, and supporting increased training for labour inspectorates.

According to ETUC opinion[30], ‘vision zero’ should not be restricted to work-related deaths, but should include all work-related accidents and diseases. The ‘vision zero’ approach should also seek to be more proactive in focusing on risk prevention and elimination, building on the Framework Directive’s prevention principles. Any European policy and legislative strategy which is OSH related should abide to the principle of prevention of risk, developed and delivered through consultation, social dialogue and underpinned by strong regulation and enforcement.

C) Increasing preparedness for any potential future health crises. Drawing lessons from the Covid-19 pandemic, the Strategic Framework will develop emergency procedures and guidance for the rapid deployment, implementation and monitoring of measures in potential future health crises, in close cooperation with public-health actors.

The actions in the strategic framework will be implemented through: i) strong social dialogue; ii) improved Evidence-Based Policymaking; iii) improved enforcement and monitoring of existing EU legislation; iv) awareness-raising, and, v) mobilising funding to invest into occupational safety and health, including from EU funds like the Recovery and Resilience Facility and Cohesion policy funds. The Commission also calls on Member States to update their national occupational safety and health strategies to ensure that the new measures reach the workplace. Beyond EU borders, the Commission will also continue playing a leading role in promoting high occupational safety and health standards globally.

As above said, the 2021-2027 Strategic Framework was adopted in a phase that was struggling to emerge from the pandemic: it is therefore not surprising that one of the fundamental transversal objectives concerns preparation for future (possible) health crises. According to this document, in 2022 the Commission published a Recommendation following a tripartite agreement between Member States, workers and employers in the Advisory Committee on Safety and Health at Work (ACSH) on the need to recognise COVID-19 as an occupational disease[31]. The text includes recommendations for Member States improving policies on occupational diseases such as measures on: the recognition of, compensation for, and prevention of occupational diseases; the setting of national objectives for the reduction of occupational illnesses; the reporting and recording of occupational diseases;the collection of data concerning the epidemiology of diseases;the promotion of research in the field of ailments linked to an occupational activity;the improvement of diagnosis of occupational diseases;the dissemination of statistical and epidemiological data on occupational diseases, and the promotion of an active role for national public health and healthcare systems in preventing occupational diseases.

The Strategy aims develop EU emergency procedures and guidelines to enable faster action, both at European and national level, in the event of potential future health crises.

Member States are invited to integrate preparedness plans for possible future health crises into their national strategic frameworks. The Strategic Framework insists in recalling the delicate situation of mobile and cross-border workers, including seasonal workers from both EU and non-EU countries: these workers often find themselves not only carrying out their work in unhealthy and unsafe environments, but also living in inadequate, crowded accommodation and in precarious hygienic conditions.

5. Digitalization at workplace: innovation potentials and new OSH risks. The EU strategy on Artificial Intelligence.

The socioeconomic and ethical issues of digitalisation have been highlighted by the European Commission since April 2018 in the ‘Communication on artificial intelligence for Europe’[32]. This EU strategy places people at the centre of the development of AI (human-centric AI) and proposes a three-pronged approach, namely: (i) to boost the EU’s technological/industrial capacity and competitiveness; (ii) to prepare for socio-economic changes associated with AI (ensuring that no one is left behind in the digital transformation); (iii) to ensure that Europe will have an appropriate ethical and legal framework to deal with AI development and deployment, based on the Union’s values and in line with the Charter of Fundamental Rights of the EU, including the rights to a high level of protection of their health and safety at work.

The EU strategy on AI put forward trust/safety/security as a prerequisite to ensure a human-centric approach to AI. Artificial Intelligence should serve people, aiming at increasing human well-being and benefiting people and society as a whole. The power of AI should be placed at the service of human progress, human dignity, freedom, pluralism, justice, and equality.

It will be the task of legislator and social partners at various levels, in the design and implementation of policies and reforms, to maintain a balance between the challenges and the opportunities presented by digitalisation[33]; particularly with a view to prevent risks for workers[34]. That depends on the proper application of technologies and how they are managed and regulated in the context of social, political and economic trends such as workforce demographics, the state of the economy, social attitudes, governance and skills. Political, administrative, technical and regulatory interventions are necessary to ensure that good safety standards and occupational health are maintained[35].

Digital mobile technologies offer the opportunity for increased flexibility, but this could also mean a demand for permanent availability and precarious forms of work. As workers become more dispersed and diverse, with 24/7 (24 hours, 7 days a week) flexible working becoming the norm, overseeing and regulating OSH could become more challenging. With business hierarchies changing and many workers either managing themselves or being managed remotely or by AI, there is likely to be a loss of clarity about who is responsible for OSH and how it should be overseen and regulated

Advanced robotics and AI offer vast potential to meet growing demand and increase productivity, but could be detrimental to workers’ mental health. Pervasive monitoring allowed by AI-supported digital monitoring technologies can have a negative impact in particular on workers’ mental health. Workers may feel that they will lose control over work content, pace and scheduling and the way they do their work, that they are unable to interact socially or take breaks when they want to, and that their privacy is invaded. The use of data for example to reward, penalise or even exclude workers could lead to feelings of insecurity and stress. To prevent this, it is important to ensure transparency in relation to the collection and use of such data. New types of smart monitoring tools may also provide an opportunity to improve OSH surveillance, support evidence-based prevention and increase the efficiency of inspections.

As noted above, the development of digital technologies can create new challenges for OSH and its management. For this reason it is necessary intervene to take into account the risks to which workers may be exposed. This means involving key institutions, social partners and other stakeholders and focusing on three key priorities: a) anticipating and managing changes in the context of digital transitions; b) improving the prevention of work accidents and occupational diseases and making efforts towards an approach based on the principle of ‘vision zero’; c) increasing preparedness to respond to current and future challenges and risks.

There is no lack of good practices that can be followed, in order to mitigate the OSH challenges presented by digitalisation[36].Those practices include: i) the development of an ethical framework for digitalisation, codes of conduct and proper governance; ii) a strong ‘prevention through design’ approach that integrates human factors and worker-centred design; iii) the involvement of workers in the design and implementation of any digitalisation strategies; iv) collaboration between academics, industry, social partners and governments on research and innovation in digital technologies to properly take account of the human aspects; v) a regulatory framework to clarify OSH liabilities and responsibilities in relation to new systems and new ways of working; vi) an adapted education system and training for workers; vii) the provision of effective OSH services to all workers of the digital world of work.

6. The EU Artificial Intelligence Act. General aims and key elements.

6.1. The AI Act. Introduction.

In 2021, three years after the Communication on artificial intelligence for Europe, the EU Commission adopted the proposal for a Regulation on Artificial Intelligence[37] (Artificial Intelligence Act, hereinafter: the AI Act), in line with the EU Strategic Framework on Health and Safety at Work 2021-2027 (see above, par. 4.2.), and the objectives of the European Digital Strategy.

In the light of the increasing use of digital technologies at work, the Commission incorporated OSH aspects into Regulation (EU) 2023/1230 on machinery[38]. OSH aspects are also addressed in the proposal for a Directive “on improving working conditions in platform work”[39] (see further Par. 6).

The AI Act defines AI in the following way: ‘‘an artificial intelligence system (AI system) means software that is developed with one or more of the techniques and approaches […] and can, for a given set of human-defined objectives, generate outputs such as content, predictions, recommendations, or decisions influencing the environments they interact with”.

The Al Act sets rules for the development, placement on the market and use of AI systems in the EU, following a proportionate risk-based approach, aiming to: a) harmonise AI-regulation within the EU; b) protect fundamental rights; c) enhance the positive aspects of AI, and, d) ensure free movement of AI systems.

The AI Act includes a risk-based approach depending on AI purposes (and risk levels divided in categories “unacceptable risk”, “high risk”, “limited risk” and “minimal risk”).

The AI Act lays down a risk methodology to define “high-risk”AI systems, that pose significant risks to the health, safety or fundamental rights of persons.

Those AI systems will have to comply with a set of horizontal mandatory requirements for trustworthy AI, and follow conformity assessment procedures before those systems can be placed on the EU market. Clear obligations are placed on providers of AI systems, to ensure safety and respect of existing legislation protecting fundamental rights throughout the whole AI systems’ lifecycle. The rules will be enforced through a governance system at Member States level, and a cooperation mechanism at Union level with the establishment of a ‘European Artificial Intelligence Board’. The placing on the market, putting into service or use of certain AI systems intended to distort human behaviour, whereby physical or psychological harms are likely to occur, is forbidden. Such AI systems deploy subliminal componentsthat individuals cannot perceive, or exploit vulnerabilities of children and people due to their age, physical or mental incapacities. They do so with the intention to materially distort the behaviour of a person and in a manner that causes or is likely to cause harm to that or another person.

According to the text adopted by European Parliament in its last position (Aprile 2024)[40], the purpose of the AI Act is to improve the functioning of the internal market by laying down a uniform legal framework in particular for the development, the placing on the market, the putting into service and the use of artificial intelligence systems (AI systems) in the Union, in accordance with Union values, to promote the uptake of human centric and trustworthy artificial intelligence (AI) while ensuring a high level of protection of health, safety, fundamental rights as enshrined in the Charter of Fundamental Rights of the European Union (hereinafter: the ‘Charter’), including democracy, the rule of law and environmental protection, to protect against the harmful effects of AI systems in the Union, and to support innovation. The AI Regulation ensures the free movement, cross-border, of AI-based goods and services, thus preventing Member States from imposing restrictions on the development, marketing and use of AI systems, unless explicitly authorised by this Regulation. This Regulation should be applied in accordance with the values of the Union enshrined as in the Charter, facilitating the protection of natural persons, undertakings, democracy, the rule of law and environmental protection, while boosting innovation and employment and making the Union a leader in the uptake of trustworthy AI[41].

6.2. The relation between the AI Act and the OSH legal framework.

One aim of the AI Act is to guarantee ‘consistency with existing Union legislation applicable to sectors where high-risk Artificial Intelligence systems are already used or likely to be used in the near future’, which includes the EU social acquis[42]. In this context, the reference to the rights guaranteed by the Charter includes the respect for the human dignity, for private life and the protection of personal data; includes also the right to fair and just working conditions and the right to a high degree of health and safety protection. This should be ensured in particular by an effective control mechanism. Artificial intelligence is to be controlled by humans.

However, this only applies to high-risk AI systems.

When an employer decides to integrate an AI software at work, he should evaluate the extent to which the algorithmic management’s use, or its integration within the working environment, and the impact on workers’ health and safety. For this purpose, and in the light of Art. 6(2) Directive 89/391, the employer shall eliminate or reduce the risk by adapting the working methods with a view to alleviating monotonous work and work at a predetermined work-rate, as part of a coherent overall prevention policy that covers technology[43]. Taking into account the potential risks of the AI, the employer should consider all the risks identified by the provider on the occasion of the risk management evaluation and assessment, which should be communicated to the employer as a user of the AI (Art. 13(3)(iii) AI Act)[44]. This means that, according to Art. 9(2)(a) AI Act[45], the provider should have identified and mitigated the known and foreseeable risks associated with the AI system. The employer, furthermore, as a user of AI, should have been informed by the provider, of the residual risks of the AI system (Art. 9(4) AI Act)[46]. This means that the employer should consider the providers’ risk assessment to evaluate the potential impact of the AI system at work  (Art. 9. “Risk management system”).

Indeed, the impacts on operational work processes or occupational health and safety must be explicitly considered in the risk management system required for high-risk AI systems.

The provider can contribute to a better and fairer application of AI at work when he develops the software, in compliance with health protection laws, above all with Directive 89/391, in particular with its Art 6(3)(c)[47], which moreover provides that workers and/or their representatives should be consulted when a new technology is implemented at the workplace.

Other provisions of the AI Act, such as the following, should also be interpreted in light of Directive 89/391.

According to Article 14 of the AI Act (‘Human oversight’), high-risk artificial intelligence systems will be designed and developed in such a way, including by incorporating appropriate human-machine interface tools, that natural persons can effectively supervise them during the period of use of the high-risk AI system in order to prevent or minimise risks to health, safety or fundamental rights. For its part, the Article 15(1) of the AI Act (‘Accuracy, robustness and cybersecurity’) introduces the principle that high-risk AI systems should be “designed and developed in such a way that they achieve”, given their intended use, “an appropriate level of accuracy, robustness and cybersecurity”.

Article 16 of the AI Act (‘Obligations of providers of high-risk AI systems’) provides for the obligations of providers of high-risk AI systems, whereby they are to ensure that their high-risk artificial intelligence systems comply with the relevant requirements laid down in the AI Act, “have a quality management system in place that complies” with certain principles described in the AI Act and have drawn up technical documentation of the AI system.

The problem is that AI Act does not introduce such obligations explicitly for the employer. Nevertheless, assuming that the user is the employer, it can be assumed that the employer could have identical obligations as the provider in certain situations. However, these would be the exceptional cases referred to in Article 17 of the AI Act (‘Quality management system’)[48]. Such tasks would only have to be carried out by the employer if it were to market or commission a high-risk AI system bearing a trade name or trademark, if it were to change the intended use of that system, or if it were to make significant changes to that system. In such a situation, the de facto responsibilities of the provider are transferred to the employer having, as it were, the status of the user and provider at the same time[49].

Under Article 29(1) of the AI Act (‘Obligations of users of high-risk AI systems’), the employer (as a user) is obliged to follow the accompanying instructions for use of AI systems as a high-risk user[50]. In addition, under Article 29(4)[51], the employer (as a user) should monitor the operation of that system based on the instructions for use. If the employer (as a user) suspect that using that system following the instructions for use may lead to risks within the meaning of Article 65(1) (‘Procedure for dealing with AI systems presenting a risk at national level’) he should inform the provider or distributor and stop using the system. An analogous information obligation exists if a serious incident or system malfunction is identified.

According to the AI Act, the employer (as a user) should also keep records of events automatically generated by the system. Notwithstanding these obligations, the employer should ensure safe and healthy working conditions with artificial intelligence systems.

In light of Article 29(2) of the AI Act[52], it is legitimate to argue that remain in force the general obligations of employer arising from the Directive 89/391, such as the obligation under Article 6(1), which requires the employer to take the measures necessary to ensure the safety and health of workers, including the prevention of occupational hazards. That general obligation should also apply in responding to risks arising from the use of AI in the work process.

It is crucial to achieve the stated goal of protecting the employees’ health in the working environment, which can be challenging for employers from the perspective of the new risks associated with artificial intelligence.

Furthermore, AI should be supervised by the employer or those acting on the employer’s behalf.

The AI Act allows that to implement human surveillance of artificial intelligence indicated by the provider, the employer can freely take any measure to achieve this goal. The employer could also promote all types of negotiation, consultation or simply exchange of information  in order to manage AI in the context of OHS risks.

The AI Act also introduces notification mechanisms for high-risk AI systems. Each Member State will be responsible for designating or establishing a notifying authority responsible for developing and applying the procedures necessary for the assessment, designation and notification of bodies that assess and monitor high-risk AI systems in the context of legislation.

6.3.The constant role of Directive 89/391.

6.3.1.AI induces new challenges for labour law and OSH legal framework. Indeed, as soon as AI is intended to be used in employment context, it is integrated in the work organization[53], and the employer becomes subject to both labour law (including OHS) and the AI Act (as a user, and sometimes, a provider). Regarding the impact on the OHS regulation, it easy to identify overlaps between the AI Act and the Directive 89/391 and argue that AI software intended to be used in the employment context should be developed and deployed in a way that guarantees the protective purposes of OHS legislation. For example, when the provider identifies a risk for the health and safety of the (end) user, some space should be left to the workers’ representatives to adjust the functioning of the AI to the work organization (e.g., setting target goals that guarantee the physical and mental health of workers and not placing them under undue pressure)[54].   

Additionally, reporting mechanisms to third-party agencies should be accessible to workers and their representatives, which is not the case in the AI Act. Indeed, it is not clear how the platform can assess and prevent the risks of algorithmic management if there is no way to adjust the functioning of the algorithm. Even if the platform workers and their representatives have the right to be consulted when new AI is introduced to the work process (or if there is a change in the work organization impacting their health and safety), their inputs will be limited if the way the software is used cannot be adjusted to the needs of the specific work process.   

Thus, even if the AI Act does not take into account the specific dynamics of employment relations, it still applies to situations of employment. If providers adopt a “worker-centric” approach while developing AI software intended to be used in the employment context, it will have the potential to leave some space for the participation of health and safety

6.3.2. The AI Act does  not provide clear indications on the employer’s obligations towards employees and their representatives, concerning occupational health and safety. Notably absent is a direct indication of a worker’s right to safe and healthy working conditions when using AI in the work process.

The use of algorithmic management software at work has proven to negatively impact impacty workers’ health and safety. Continuous monitoring via wearables indubitably increases work stress while affecting productivity. The way the algorithm allocates tasks and tracks workers affects the work organisation and negates workers’ right to appropriate break time, leading to severe physical and psychological stress.

Employees should have more comprehensive information on how AI works and the risks involved. The current regulation relating in principle to the obligations of the AI system provider do not correspond with the risks in the working environment and the health protection needs of the worker. In light of the above, it is legitimate to conclude that the model proposed by the EU for protection against the harmful effects of using AI in the AI Act appears inadequate from the labour law perspective.

If it is true that the AI Act respect EU occupational health and safety legislation, then it would be necessary to provide an effective preventive and participatory approach[55], in the elaboration and implementation of the preventive measures at work, as required by the Directive 89/391, whose Recital 13 states as follows: “the improvement of workers’ safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations”.

Despite its age, Directive 89/391 retains its nature as a cornerstone of EU OSH legal framework, providing a general employer’s obligation to ensure the safety and health of workers in every aspect related to work via the application of the principles of prevention. The Directive adopts a worker-centric approach with the employer obligation to consult and to inform the workers or their representatives. It also provides workers or their representatives with the right to appeal to the competent authority if they consider that OSH prevention is inadequate. Workers and their representatives are an important part of the elaboration and the implementation of the preventive measures at work.

These principles must also apply in the application of AI Act.

When an employer considers integrating AI software at work, he should evaluate to what extent the algorithmic management’s use, or its integration within the working environment, will impact workers’ health and safety. According to Art 6(2) Directive 89/391[56], the employer shall eliminate or reduce the risk by adapting the working methods to alleviate predetermined work-rate, as part of a coherent overall prevention policy that covers technology.

Additionally, to guarantee the effective application of workers’ rights at workplaces, the providers should promote and respect the role of the social partners in the implementation and deployment of the software. Therefore, the providers should guarantee: a) full transparency as to how their algorithms process information and provide recommendations; b) whether the data on which the AI has been developed are suitable for the specific work and do not repeat previous biases/discrimination; c) leave some scope for the social partners to adjust the functioning to the work organisation (e.g., in relation to setting targets or the communications of the data collected at work). Moreover, to guarantee and to support the feedback from end users of the AI, reporting mechanisms to third-party agencies should be accessible to workers and their representatives.

The relationship between AI Act and Directive 89/391 is essential to ensure that the development and deployment of AI in the work environment will neither lead to worker discrimination, nor represent a threat to workers’ health. It is also fundamental, keeping an eye on the Directive 89/391, that the implementation of AI at work does not undermine the role of social partners, the social dialogue and democracy at work.

New OHS risks require special interaction between Public Authorities and employers, between employers and workers’ representatives. It is vital to involve all stakeholders in the OHS process, from the OHS inspection authorities, the provider of the artificial intelligence system, the employer who uses the system, to the workers themselves involved in the work process. Only a comprehensive approach to the new OHS challenges posed by the development of artificial intelligence will allow an efficient and structured response to changing working conditions.

7.Digital platform work and OSH implications.

7.1. Gig economy and workers protection.

It is a widely shared opinion that Platform Work offers “alternative work arrangements” including but not limited to temporary work, contingent work, part-time work, contract work, and freelance work for pieces of jobs, which are mediated by digital platforms.

There are serious concerns about the working conditions and social rights of people working in the “gig economy”, as many platforms claim that their role is not of traditional employers but as intermediaries between customers and self-employed service providers. This has led many platform companies to compensate workers through remuneration rather than a fixed salary. Some even require workers to establish their own companies to which the salary is then paid.

As gig economy has evolved, the platform economy has shifted economic risk-taking and responsibilities from employers to workers without offering any meaningful opportunity for rewards in the form of pay increases or job stability[57].

The influence of the algorithmic management systems controlled by the platform introduces a new dynamic which intensifies competition among workers bidding for jobs, consequently heightening the risks associated with low incomes.

Owing to the nature of those contracts, there are vulnerabilities in platform work, including employment instability, poor job quality, and often low salaries. Platform worker vulnerabilities can be classified into the following categories: a) occupational, b) precarity, and, c) platform-based vulnerabilities[58]. The latter vulnerability is obviously associated with the nature of the occupation.

Digital platform workers are not exposed to the same risk factors as workers performing the same tasks in the traditional economy. Platform work induces multiple and peculiar risks: greater control and surveillance, greater job precariousness, greater isolation of workers and fragmentation of the workplace[59]. These risks affect both workers’ physical and mental health[60].

Exposure to physical risk factors depends on whether digital platform work is carried out on-location or online, whereas psychosocial risks and work-related stress is extensively reported in association to any type of platform work. 

Not all of these issues have been addressed by the EU Directive on improving working conditions in platform work (hereinafter: the Directive). For example, as will be better explained later in this paper,  it doesn’t distinguish between psychosocial risks factors, work-related stress, and how to address them; in practice, this could lead the risk that only a limited number of workers would be able to benefit from these provisions.

The Directive has its weaknesses and strengths. Anyway, it represents a potential step forward in mitigating the impact of platform work on workers’ health and safety, including psychosocial risks.

7.2.The EU Directive on improving working conditions in platform work. Personal and material scope.

Aware of the challenges and the legal uncertainty that the platform economy represents for the working conditions of the people involved, in December 2021, the European Commission published a draft of a Directive on working conditions for platform work. Another parallel initiative with the potential to improve the health and safety of platform workers is the draft of the EU Regulation on Artificial Intelligence published in April 2021 (see. above, par.5).

On April 2024, the EU Parliament and the Council of the EU have reached an agreement on the proposed Platform Work Directive (the Directive)[61]. 

In order to improve the health and safety of platform workers, the Directive sets up the following measures: a) measures to ensure the determination of the correct employment status of persons performing platform work; b) measures ensuring the fairness, transparency and accountability of algorithmic management in platform work; and c) measures improving the transparency of platform work, including in cross-border situations[62].

The Directive aims to improve the working conditions of platform workers and to protect the personal data of persons performing platform work. Both objectives are being pursued simultaneously and, whilst mutually reinforcing and inseparably linked, one is not secondary to the other.

The Directive is interesting on algorithmic management as it covers with more specificity ground already covered by the General Data Protection Regulation (hereinafter: GDPR) and which will also be covered by the EU AI Act. All these instruments can apply to automated monitoring and decision making relating to platform workers. Platform operators are going to have to take account of them all[63].

The Directive prohibits automated monitoring or decision making based on the psychological or emotional state, private conversations, activity outside of the performance of the platform work, data used to predict the person’s exercise of fundamental rights (such as collective bargaining or association), inferences relating to certain sensitive characteristics and one from many biometric identifications of the person performing platform work. It appears that the intention is to catch decision support systems as well as wholly automated systems and these activities will therefore be banned.

Outside these prohibited areas all automated monitoring and decision making of platform workers is deemed to trip the requirement to undertake a Data Protection Impact Assessment (DPIA) under the GDPR, workers representatives must be consulted (they also have a right to be assisted by an expert of their choice) before the system’s introduction and provided with comprehensive and detailed information about how the system will be used and what the parameters and weightings used to make decisions are, whilst workers or applicants themselves must receive the same information in a concise form.

In identifying the main challenges of AI Act for OSH, it is important to focuses on three questions.

The first question, which appears to be the most relevant, concerns the subjective field of application of the Directive. It  is divided into two levels of protection, distinguishing those who have a contract or employment relationship recognized by national Law, and persons performing platform work who do not have an employment relationship (see further, par.8). The second question concerns the mechanism of the “legal presumption” of employment subordination applicable to platform work (Article 5 of the Directive). This is a simplified procedure for verifying the employment status of digital workers, which, however, is extraneous to many national legal systems, thus requiring a regulatory and interpretative connection that is not simple.

The third question concerns the definition of “European workers’ rights” towards the digital platform. The Directive is focused on the rights connected to algorithmic management and the transparency of automated decision-making systems (see Article 9), while it even seems to include or restrict the operational scope of some substantial safeguards recognized in many national legal systems.

A right to human review within 2 weeks (quicker than under the GDPR) is included and platform workers are entitled to require monitored data relating to their activities to be moved to other platforms.The system’s operation must be reviewed at least every two years and the results shared with workers representatives. Private rights of action are created and GDPR penalties can be applied for breach of these provisions.

8. The legal presumption of salaried status for workers on digital platform. 

8.1.The personal scope of the Directive covers not only employees, whose status is determined according to the laws of the Member States taking into account the practice of the Court of Justice of the EU (CJEU), but some others provisions are direct to cover all persons performing platform work. The Directive also applies to all digital platforms organising work that is performed in the EU and includes online platform work that can be performed exclusively online through electronic tools and on-location platform work that combines an online communication process with a subsequent activity in the physical world.

Indubitably, the provision on the determination of the employment status of platform workers is quite important, because it results in the application of some minimum standards of occupational protection; for this very reason  is a potential source of controversy.

Indeed, the employment status of platform workers is critical for OSH risk prevention, as the workers categorised as self-employed are not covered by EU OSH directives or by national OSH legislation in most Member States.

According to the text of the Directive (as agreed on April 2024), Member States will establish a “legal presumption” that will help determine the correct employment status of persons working in digital platforms in their legal systems.  The legal presumption will be triggered when “facts” indicating control and direction are found.  People working in the digital platforms, their representatives or national authorities may invoke the legal presumption and claim that they have been misclassified.  The burden of proof will be on the digital platform to prove that there is no employment relationship. In addition, Member States will provide guidance to digital platforms and national authorities when the new measures are put in place.

The original drafting provided that individuals would be presumed to be employees when two out of a list of five “indicators” of control or direction were present, such as upper limits on the amount of money workers could receive, supervision of their performance including by electronic means, and control over the distribution or allocation of tasks. Nevertheless, it would in theory be possible to work under a tight control of a platform in one listed form. and still not be regarded an employee. However, it cannot be denied that the indicators could have opened up to an extensive interpretation of the notion of employee, taking into account the complex of intrinsic and extrinsic characteristics of the employment relationship that refer to the concept of hetero-organization, beyond the narrowest perimeter of hetero-direction. The original proposal in fact constructed a mix of criteria which did not refer exclusively to the managerial power as an intrinsic characteristic of the subordinate performance, but also to the less pervasive ability of the client to organize the worker’s performance to make it compatible with the productive factors and with the results of the company (such as the verification of the quality of the results, the limitation of the freedom to organize the working time or to hand over the work to third parties). Ultimately, not only the control dynamics are taken into account, but also the organizational aspects -of the work performance- closer to technological subordination.

The final text means that the Directive will not outline the conditions to determine employment status; instead, this responsibility is given to each EU Member State taking into account national law, collective agreements and EU case law. 

Each Member State is required to create a legal presumption that a contractual relationship between a “digital labour platform” and a “platform worker” is an employment relationship in certain circumstances; but rather than prescribing those circumstances, the directive merely says that this must apply “when facts indicating control and direction, according to national law, collective agreements or practice in force in the Member States and with consideration to the case-law of the Court of Justice, are found”.

8.2. The Directive therefore requires Member States to adopt a presumption of employment for platform workers, based on “facts” rather than just legal criteria. This solution could be theoretically a crucial procedural aid for platform workers seeking reclassification. Also, the Directive expressly states that: (i) this presumption should amount to a procedural facilitation for workers, and (ii) courts will have to verify concretely the working conditions of platform workers when deciding on employment status; this decision cannot be just based on their contract: it’s facts that matter.

As regards Article 153(1), point (b), TFEU, the Directive sets out rules aimed at supporting the correct determination of the employment status of persons performing platform work and improving working conditions and transparency on platform work, including in cross-border situations, as well as the protection of workers in the context of algorithmic management. As regards Article 16 TFEU, the Directive establishes rules to improve the protection of natural persons performing platform work regarding the processing of their personal data by increasing transparency, fairness and accountability of relevant algorithmic management procedures in platform work[64].

Member States therefore are responsible for establishing the modalities of the legal presumption. This means that Member States are given discretion in terms of defining the mechanism of the presumption. It also provides that Member States are responsible for defining when sufficient facts indicating control and direction are found to trigger the legal presumption. Within this framework, Member States remain obliged to ensure a result, meaning that the legal presumption is effective in a way that it constitutes a procedural facilitation to the benefit of persons performing platform work.

The final decision on the correct employment status remains a matter of national law, as defined therein, in collective agreements or practice in force in the Member States, with consideration to the case-law of the Court of Justice.

In practical terms, this means that Member States can draw on existing national law tests as to what constitutes “control” and “direction”, merely having “consideration” for the ECJ’s case-law. Once a presumption has been established, “it shall be for the digital labour platform to prove that the contractual relationship in question is not an employment relationship as defined by the law, collective agreements or practice in force in the Member States, with consideration to the case-law of the Court of Justice”[65].

As in the general approach, the rules on a rebuttal set out that in case the digital labour platform rebuts the legal presumption, the burden of proof that the contractual relationship in question is not an employment relationship, as defined in the Member States, lies on the digital labour platform.

In line with the general approach, the rule that the legal presumption should apply in all relevant administrative or judicial proceedings where the correct determination of the employment status of the person performing platform work is at stake has been kept alongside the carve-out for proceedings concerning tax, criminal and social security matters[66]. unless the Member State chooses to apply the presumption as a matter of national law.

The competent national authorities are obliged to act, where they consider that a person performing platform work might be incorrectly classified. They however have a discretion as to the choice of the measure to be taken (Article 5(5)). The competent national authorities might therefore initiate appropriate actions or proceedings. Similarly, authorities in the Member States are responsible for deciding to carry out, where appropriate, controls and inspections where the existence of the employment status of a person performing platform work has been ascertained by a competent national authority.

Both platform workers and their representatives are to have the right to start proceedings to ascertain their status, and “competent national authorities” (Labour Inspectorates and their equivalents) will be under a duty to do so when they think platform workers have been misclassified.

Each Member State will also be required to put in place a “framework of supporting measures”, guidance (“including in the form of concrete and practical recommendations, for digital labour platforms, persons performing platform work and the social partners to understand and implement the legal presumption including on the procedures for rebutting it”), and a regime to allow for “controls and inspections” of platforms[67].

8.3. All the people performing work for a platform who will benefit from the presumption of employability will also benefit from the OHS protective framework (and fall within the scope of Article 3(b), Directive 89/391).

In this regard, Article 12 of the Directive (“Safety and health”), addresses specifically OHS considerations, as follows: “1. Without affecting Council Directive 89/391/EEC and related directives in the field of safety and health at work, with regard to platform workers, digital labour platforms shall:

(a) evaluate the risks of automated monitoring and decision-making systems to their safety and health, in particular as regards possible risks of work-related accidents, psychosocial and ergonomic risks;

(b) assess whether the safeguards of those systems are appropriate for the risks identified in view of the specific characteristics of the work environment;

(c) introduce appropriate preventive and protective measures.

2.In relation to the requirements under paragraph 1 of this Article, digital labour platforms shall ensure effective information, consultation and participation of platform workers and/or their representatives in accordance with Articles 10 and 11 of Council Directive 89/391/EEC.

3. Digital labour platforms shall not use automated monitoring or decision-making systems in any manner that puts undue pressure on platform workers or otherwise puts at risk safety and the physical and mental health of platform workers.

4. In addition to automated decision-making systems, this Article shall also apply where they use automated systems supporting or taking decisions that affect platform workers in any manner.

5. In order to ensure safety and health of platform workers, including from violence and harassment, Member States shall ensure that digital labour platforms take preventive measures, including effective reporting channels”.

This provision not only makes it clear that all the provisions of the Directive 89/391would apply (including the consultation, information, and training of the workers), but also provides new obligations for the platform (as employer) regarding some distinctive aspects of health and safety. As it is worded, this is the first European provision which recognizes the impact of algorithmic management (automated monitoring and decision-making systems) on workers’ health and safety. To this end, it provides an obligation on the platform to evaluate those risks and adopt preventive measures in addition to safeguards to the systems.

In addition, the Platform work directive will be the first European legal act mentioning work-related psychosocial risks and pressure at work (which is a psychosocial risk factor)[68] and explicitly stating that both physical and mental health of platform workers should be protected. The the Platform work directive, by strenghting and integrating the provisions of Directive 89/391 with new requirements addressing the specific features of platform work, is able to provide adequate prevention to all the risks that platform workers are exposed to. Even if the platforms do not respect it, this provision provides a promising legal ground for litigation[69].  

It is also worth stressing that, about “information and consultation”, Article 13 of the Directive provides as follows: “1.This Directive shall not affect Directive 89/391/EEC as regards information and consultation, or Directives 2002/14/EC and 2009/38/EC.

2. In addition to complying with the Directives referred to in paragraph 1 of this Article, Member States shall ensure that information and consultation, as defined in Article 2, points (f) and (g), of Directive 2002/14/EC, of workers’ representatives by digital labour platforms also covers decisions likely to lead to the introduction of or to substantial changes in the use of automated monitoring or decision-making systems. For the purposes of this paragraph, information and consultation of workers’ representatives shall be carried out under the same modalities concerning the exercise of information and consultation rights as those laid down in Directive 2002/14/EC

3. The platform workers’ representatives may be assisted by an expert of their choice, in so far as this is necessary for them to examine the matter that is the subject of information and consultation and formulate an opinion. Where a digital labour platform has more than 250 workers in the Member State concerned, the expenses for the expert shall be borne by the digital labour platform, provided that they are proportionate. Member States may determinate frequency of requests for an expert, while ensuring the effectiveness of the assistance”.

“Where there are no representatives of platform workers” -as Article 14 duly points out-“Member States shall ensure that digital labour platform directly inform the platform workers concerned on decisions likely to lead to the introduction of or substantial changes in the use of automated monitoring or decision-making systems. The information shall be provided in the form of a written document which may be in electronic format and shall be presented in a transparent intelligible and easily accessible form, using clear and plain language”.

9. The Platform work Directive and OSH risk prevention. Some critical comments by way of conclusions

9.1. Even if some objectives of the Directive have been achieved, others remain neglected or unfinished. Among these the determination of the employment status of platform workers. Despite the initial purpose, the EU legislation fails to achieve a harmonised way, applicable to all Member states, to effectively determine the correct employment status of platform workers. Instead, it asks Member states to come up with their own way of doing it. In simple terms, this means that Member states who have until now taken little action to get the employment status of platform workers right can continue to do so.

As a result, there will be no regulatory harmonisation in that matter.

Considering the variation in the EU on this issue, it is realistic fear a patchwork of national regulations. This will create even more uncertainty, more or less in line with the patchwork of case-law (on the proper employment status of platform workers) which currently prevails in many Member States. 

There is clearly a double development in the above-mentioned context. On the one hand, traditional employment has to deal with more autonomy and independence than before, as part of employment status under labour law. On the other hand, self-employed work increasingly features elements of dependence, whether economic or otherwise.

The European legislator, in contrast with the debate at the national levels on the redefinition of the criteria for access to protective regimes through the construction of a socle of minimum protections regardless of contractual types, does not deviate from the classic subordination-autonomy dichotomy. As proof, the measures on algorithmic management establish a series of graduated protections depending on whether one is an employed worker or a self-employed worker. The persistent formal differentiation between employed and self-employed workers would seem to fuel the inequality of regulatory treatment based on contractual status.

The final approach taken raises the question of what will happen in those Member States where a so-called ‘third route’ was created in regulations. This “third route” -although not directly nor exclusively directed towards gig or platform workers- clearly interferes with the entire discussion of the appropriate or proper status for the worker operating on platform. Conscious of the limits of its legislative competence in the area, the Directive’s presumption rule does not extend to social security or tax law.

9.2. Some provisions of the Directive, as they are formulated, appear to be able to produce limit or obstacles to an effective protection against health and safety risks, as required in particular by Article 12. In this respect, it must be noted that Article 12 only mention psychosocial risks but neither define what they are nor provide additional obligations[70]. As above emphasized, platform work increases exposure of workers to psychosocial risks, in particular from the constant surveillance and monitoring. Currently, there is no specific directive on work-related psychosocial risks in the EU and only the general principles for prevention of the Directive 89/391 apply, alongside two European autonomous framework agreements on work-related stress (2004) and workplace bullying (2007). It means that the implementation of this provisions would rely on the national rules on psychosocial risks. This fragmented approach to work-related psychosocial risks leads to inequal protection of workers. In turn, the inequal protection amongst sectors and countries will be replicated in the platform economy, unless the Article 12 will be  complemented by a specific EU Directive on psychosocial risks.

Another factor which might limit the positive impact of the Directive is that the provisions on health and safety at work are specifically direct to employed workers and do not apply to self-employed. Now, according to Recital 28 of the Directive, a worker can be self-employed “even though the digital labour platform controls the performance of work on a given aspect.” This means that a self-employed person would still be monitored and controlled by the platform and will remain in the position where they have the legal and financial OHS obligations without the organizational freedom to protect themselves. This exception might weaken considerably the positive effect of the presumption of employment and would leave the platform in a situation where they would benefit from the employers’ prerogatives without the responsibilities.  Therefore,  a person can be self-employed ‘even though the digital labour platform controls the performance of work on a given aspect’ (Recital 28). This means that a person might be found to be ‘self-employed’ even though they are under some level of control from the platform. This is because ‘control’ is not the only criterion used by the CJEU and the domestic courts to classify individuals.

In few words: the rights pertaining to the protection of natural persons in relation to the processing of personal data in the context of algorithmic management, namely those regarding transparency on automated monitoring or decision-making systems, restrictions to process or collect personal data, human monitoring and review of significant decisions, should also apply to persons performing platform work who do not have an employment relationship. The rights pertaining to health and safety at work and information and consultation of platform workers or their representatives, which are specific to workers in view of Union law, should not apply to them. Regulation (EU) 2019/1150[71] provides safeguards regarding fairness and transparency for self-employed persons performing platform work, provided that they are considered business users within the meaning of that Regulation. With regard to human review of significant decisions, the specific provisions of Regulation (EU) 2019/1150 should prevail in respect of business users

Yet another factor of limitation relates to the enforcement  of  the  presumption  of  employability, and of the requirements for OHS prevention. The Directive underlines the crucial role of monitoring and inspection  in ensuring compliance and enforcement. Article 6 states that Member States “shall, in particular […] c) provide for effective controls and inspections conducted by national authorities, in line with national law or practice, and in particular provide, where appropriate, for controls and inspections on specific digital labour platforms where the existence of an employment status of a person performing platform work has been ascertained by a competent national authority, while ensuring that such controls and inspections are proportionate and non-discriminatory”.

Indeed, the administrative enforcement method is cost-intensive for states, which has resulted in many authorities facing a reduction in staff and an increase in bureaucracy rather than being able to actually go to the places where work is performed or to check the algorithms used by online platforms to assess whether and to what extent online platforms comply with applicable laws and regulations[72].

Some authors advocate for platforms to be “compelled to supply any such inspectorate with appropriate and sufficient information to inform policy development around social protection and rights for gig workers”[73]. Placing the burden of communicating the relevant information on the platforms (which are the entities already in possession of such information) would also be a way to address the mentioned difficulties faced by labour inspectorates.

9.3. The Platform Work Directive addresses some of the key challenges that platform workers have to face, such as misclassification, risk of algorithmic management, and work-related psychosocial risks (amongst other risks). As already highligthed, the Directive covers only platform workers and does not address the problem of algorithmic management (and associated risks) for other workers who might face similar pressure. These limitations, together with others might lead to restrictive interpretations, leaving some platform workers unprotected even if they are under the control of the platform.

All over Europe, according to the decisions of national courts, a high degree of monitoring and control constitute sufficient grounds for the determining the employment status. However, the Directive accepts that those who are self-employed could be monitored and managed by automated systems. Such an ambiguity could be open to all sorts of opportunistic strategies, often coupled with the tactic of using intermediaries in order to dilute responsibilities and discourage grievances.

The current formulation of data rights for self-employed platform workers betrays that the Directive is still embedding a misunderstanding of contemporary conditions of work. All workers (employed by a platform or not) are now likely to be subject to some form of algorithmic management. Moreover, the fact that the Directive admits the possibility of a self-employed person being under such intense algorithm-driven management frustrates the intended purpose of the Directive[74].

The EU debate on the notion of worker, in discussions relating to the legal regulation of platform work, but also following discussions in relation to the Transparent and Predictable Working Conditions Directive[75], show that the cultural and legal process in this crucial area has made few significant avances.

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[1] Casale, G.-Treu, T. (eds.) (2018), Transformations of work: challenges for the national systems of labour law and social security, XXII World Congress of the International Society for Labour and Social Security Law, Giappichelli, Turin.

[2] Alhaique, D., Carnevale, F., Marri, G. and Pepe, A. (1999),  Union struggles for working environment control in Italy from the postwar period to the 1970s in Grieco A., Iavicoli S. and Berlinguer G. (eds.) Contributions to the History of Occupational and Environmental Prevention, Amsterdam, Elsevier, 353-366; Vogel, L. (2015), The machinery of occupational safety and health policy in the European Union, History, institutions, actors, Brussels, ETUI.

[3]With the exception of Italy. Of the 1,041 fatal accidents counted in Italy during 2023, there were 799 fatal accidents at work, while 242 were recorded  “in Itinere”. There is a decrease in the total number compared to 2022 (there were 1,090) but, numbers in hand, the decrease is given by the decrease of -19.3% for accidents “initinere” (from 300 in 2022 to 242 in 2023) while those at work increased by 1.1% (790 in 2022 versus 799 in 2023).

[4] Casale, G.-Treu, T. (eds.) (2018), cit.; Casale, G.(2018),  Il ruolo dell’ILO negli ultimi cent’anni, Lavoro, Diritti, Europa, 2. 

[5] Fasani, M. (2019), Legal issues and trajectories in equality and non-discrimination. A comparative overview, Giappichelli, Turin.

[6] Council Resolution of 29 June 1978 and Council resolution of 27 February 1984, on Action programmes of the European Communities on safety and health at work.

[7]Council Decision of 27 June 1974 on the setting up of an Advisory Committee on Safety, Hygiene and Health Protection at Work (74/325/EEC).

[8] Treaty establishing the European Economic Community. Article 100:“The Council, acting by means of a unanimous vote on a proposal of the Commission, shall issue directives for the approximation of such legislative and administrative provisions of the Member States as have a direct incidence on the establishment or functioning of the Common Market. […]”.

[9]Later: Article 137 TEC (Treaty establishing the European Community); now Art. 153 TFEU.

[10] Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work.

[11] The creation of the EU-OSHA in 1994 contributed to a modern occupational health sector in Europe, collecting information and raising awareness through the focal points established in various Member States. This Agency, established in Bilbao, is a tripartite body that takes a comprehensive approach to occupational health and safety and provides a platform wherein trade unions, employers and governments can defend their interests and try to reach consensus on various issues.

[12] In 2003, a Council Decision (2003/C 218/01) set up the Advisory Committee on Safety and Health at Work in order to streamline the consultation process in the field of occupational safety and health and to rationalise the bodies created by previous Council Decisions. The Advisory Committee has established a series of thematic Working Parties, such as the Standing Working Party (SWP) on the mining industry, and the Working Parties on chemicals, standardisation and strategy. The Advisory Committee’s remit is to assist the European Commission in the preparation, implementation and evaluation of activities in the fields of safety and health at work, in particular by giving opinions in the area of OSH, identifying OSH policy priorities and establishing relevant strategies towards achieving goals. The Committee also facilitates the exchange of views and experiences between Member States and stakeholders, operating as an interface between the European and national level.

[13]Though not legally binding in itself, the Pillar is a package of legislative and soft-law measures that aims to drive upward convergence in living and working conditions in the EU.

[14]Besides the rights contained in principle 10, the Pillar provides several principles on working conditions and social protection especially relevant in to platform work. These include the right to secure and adaptable employment (principle 5), the right to fair wages, which provide for a decent standard of living (principle 6), the right to information about employment conditions and protection in case of dismissals (principle 7), the right to social dialogue and workers’ involvement in matters relevant to them (principle 8) and the right to a good work-life balance (principle 9), as well as all principles related to social protection and inclusion (principles 11-20).  

[15] Commission staff working document, Accompanying the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, The European Pillar of Social Rights Action Plan (SWD/2021/46 final).

[16]European Commission (2004), Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions on the Practical Implementation of the Provisions of the Health and Safety at Work Directives 89/391 (Framework), 89/654 (Workplaces), 89/655 (Work Equipment), 89/656 (Personal Protective Equipment), 90/269 (Manual Handling of Loads) and 90/270 (Display Screen Equipment).

[17] See: the White Paper on European Governance COM (2001) 428 final; the EU Commission’s Action Plan on Better lawmaking COM (2002) 275 final; A strategic review of Better regulation in the European Union (Common Better regulation Strategy, for short) launched in a Commission communication of 14 November 2006 COM (2006) 689.

[18] Interim-report Improving and Simplifying the Regulatory Environment, COM (2001) 130 final.

[19] Simplifying and improving the regulatory environment, COM (2001) 527 final. 106 COM (2001) 278 final.

[20]ibidem.

[21]Interinstitutional Agreement on better law-making (OJ 2003 C 321 at 1).

[22] Vogel, L. and Van den Abeele, E. (2010) Better Regulation: A critical assessment, Report 113, Brussels, ETUI.

[23]Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of 21 February 2007, entitled “Improving quality and productivity at work: Community strategy 2007-2012 on health and safety at work’ [COM(2007)62 final]”. 

[24]Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on an EU Strategic Framework on Health and Safety at Work 2014-2020 Brussels, 6.6.2014 COM (2014) 332 final.

[25] ETUC (2014), Resolution of 6 June 2014. EU Commission’s Framework on Health and Safety at Work. “too late, too weak”.

[26] EU Parliament (2015),  Resolution of 25 November 2015 on the EU Strategic Framework on Health and Safety at Work 2014-2020 (2015/2107(INI)).

[27] Commission (2021), Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: “EU Strategic Framework on Health and Safety at Work 2021-2027 Occupational safety and health in a changing world of work (COM 2021(23) final)”.

[28]The legal basis for the OSH Strategic Framework lies in Article 153(2) of the Treaty on the Functioning of the European Union (TFEU), authorising the EU to adopt legislation on health and safety to support and complement the activities of its Member State

[29] EU Parliament, 2020/2084(INI).

[30] ETUC (2021), Etuc position on the EU strategic framework on health and safety at work 2021-2027, adopted at the Executive Committee Meeting of  5-6 October 2021 (www.etuc.org).

[31]Commission (2022),  Recommendation (EU) 2022/2337 of 28 November 2022 concerning the European schedule of occupational diseases.

[32] Commission (2018),  Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions, Artificial Intelligence for Europe {SWD(2018) 137 final}.

[33]“In light of the speed of technological change and possible challenges, the EU is committed to strive for a balanced approach. It is in the Union interest to preserve the EU’s technological leadership and to ensure that Europeans can benefit from new technologies developed and functioning according to Union values, fundamental rights and principles” (Cf. “Proposal for an Artificial Intelligence Act, 1.Context of the proposal 1.1.Reasons for and objectives of the proposal”; see further, Par. 5.2.).

[34] Moore, P. V. (2018), The threat of physical and psychosocial violence and harassment in digitalised work, Geneva: ILO; see also: European Agency for Safety and Health at Work (2018), Foresight on new and emerging occupational safety and health risks associated with digitalisation by 2025, Luxembourg.

[35] EU-OSHA (2018), Foresight on new and emerging occupational safety and health risks associated digitalisation by 2025, https://osha.europa.eu/ro/themes/digitalisation-work .

[36] Timellini, C. (2023), Verso una Fabbrica Intelligente: come l’AI invita a ripensare la tutela della salute e della sicurezza dei lavoratori, in Variazioni su Temi di Diritto del Lavoro, n. 4.

[37] Commission (2021), Proposal for a regulation of the European Parliament and of the Council laying down harmonised rules on artificial intelligence (artificial intelligence act) and amending certain union legislative acts. COM(2021) 206 final. On May 21, 2024, after the almost unanimous approval by MEPs in the Plenary sessionon on March 13, the 27 EU governments gave the green light to AI Act. 

[38] Regulation (EU) 2023/1230 of the European Parliament and of the Council of 14 June 2023 “on machinery and repealing Directive 2006/42/EC of the European Parliament and of the Council and Council Directive 73/361/EEC”.

[39] Commission (2021), Proposal for a Directive of the European Parliament and of the Council “on improving working conditions in platform work”, [COM/2021/762 final].

[40]Cf. the text amended by the European Parliament on 19 April 2024 [document  published in “CORRIGENDUM  to the position of the European Parliament adopted at first reading on 13 March 2024”. ( P9_TA(2024)0138 (COM(2021)0206 – C9-0146/2021 – 2021/0106(COD)].

[41]Ibidem.

[42] AI Act Proposal. “Explanatory memorandum. 1.Context of the proposal1.2.Consistency with existing policy provisions in the policy area. The horizontal nature of the proposal requires full consistency with existing Union legislation applicable to sectors where high-risk AI systems are already used or likely to be used in the near future. Consistency is also ensured with the EU Charter of Fundamental Rights and the existing secondary Union legislation on data protection, consumer protection, non-discrimination and gender equality. The proposal is without prejudice and complements the General Data Protection Regulation (Regulation (EU) 2016/679) and the Law Enforcement Directive (Directive (EU) 2016/680) with a set of harmonised rules applicable to the design, development and use of certain high-risk AI systems and restrictions on certain uses of remote biometric identification systems. Furthermore, the proposal complements existing Union law on non-discrimination with specific requirements that aim to minimise the risk of algorithmic discrimination, in particular in relation to the design and the quality of data sets used for the development of AI systems complemented with obligations for testing, risk management, documentation and human oversight throughout the AI systems’ lifecycle. The proposal is without prejudice to the application of Union competition law”.

[43]AI Act, Article 6 (Classification rules for high-risk AI systems): 1.Irrespective of whether an AI system is placed on the market or put into service independently from the products referred to in points (a) and (b), that AI system shall be considered high-risk where both of the following conditions are fulfilled:(a)the AI system is intended to be used as a safety component of a product, or is itself a product, covered by the Union harmonisation legislation listed in Annex II; (b)the product whose safety component is the AI system, or the AI system itself as a product, is required to undergo a third-party conformity assessment with a view to the placing on the market or putting into service of that product pursuant to the Union harmonisation legislation listed in Annex II.2.In addition to the high-risk AI systems referred to in paragraph 1, AI systems referred to in Annex III shall also be considered high-risk”.

[44]AI Act, Article 13. Transparency and provision of information to users. […]. 3. The information referred to in paragraph 2 shall specify: (iii) any known or foreseeable circumstance, related to the use of the high-risk AI system in accordance with its intended purpose or under conditions of reasonably foreseeable misuse, which may lead to risks to the health and safety or fundamental rights […].

[45]AI Act, Art. 9(2)(a): “The risk management system shall consist of a continuous iterative process run throughout the entire lifecycle of a high-risk AI system, requiring regular systematic updating. It shall comprise the following steps:(a) identification and analysis of the known and foreseeable risks associated with each high-risk AI system”.

[46] AI Act, Art. 9(4): “ The risk management measures referred to in paragraph 2, point (d) shall be such that any residual risk associated with each hazard as well as the overall residual risk of the high-risk AI systems is judged acceptable, provided that the high-risk AI system is used in accordance with its intended purpose or under conditions of reasonably foreseeable misuse. Those residual risks shall be communicated to the user”.

[47]Directive 89/391, Art 6(3)(c):”General obligations on employers […].Without prejudice to the other provisions of this Directive, the employer shall, taking into account the nature of the activities of the enterprise and/ or establishment:c)ensure that the planning and introduction of new technologies are the subject of consultation with the workers and/ or their representatives, as regards the consequences of the choice of equipment, the working conditions and the working environment for the safety and health of workers”.

[48]Cf. Jarota, M. (2023), Artificial intelligence in the work process. A reflection on the proposed European Union regulations on artificial intelligence from an occupational health and safety perspective, Computer Law & Security Review,  Volume 49.

[49] Cefaliello, A. & Kullmann, M. (2022), Offering false security: How the draft artificial intelligence act undermines fundamental workers rights, European Labour Law Journal.

[50]Article 29(1) of the AI Act: “Users of high-risk AI systems shall use such systems in accordance with the instructions of use accompanying the systems, pursuant to paragraphs 2 and 5”. Article 29(2): “The obligations in paragraph 1 are without prejudice to other user obligations under Union or national law and to the user’s discretion in organising its own resources and activities for the purpose of implementing the human oversight measures indicated by the provider”.

[51]Article 29(4): “Users shall monitor the operation of the high-risk AI system on the basis of the instructions of use. When they have reasons to consider that the use in accordance with the instructions of use may result in the AI system presenting a risk within the meaning of Article 65(1) they shall inform the provider or distributor and suspend the use of the system. They shall also inform the provider or distributor when they have identified any serious incident or any malfunctioning within the meaning of Article 62 and interrupt the use of the AI system. In case the user is not able to reach the provider, Article 62 shall apply mutatis mutandis”. Article 62 (Reporting of serious incidents and of malfunctioning): 1.Providers of high-risk AI systems placed on the Union market shall report any serious incident or any malfunctioning of those systems which constitutes a breach of obligations under Union law intended to protect fundamental rights to the market surveillance authorities of the Member States where that incident or breach occurred. Such notification shall be made immediately after the provider has established a causal link between the AI system and the incident or malfunctioning or the reasonable likelihood of such a link, and, in any event, not later than 15 days after the providers becomes aware of the serious incident or of the malfunctioning”..

[52]See note 50.

[53] Fasani, M. (2019); Trasformazioni del lavoro e del suo diritto al tempo della “economia digitale”, in  Rivista di Studi Politici, aprile–giugno, 87-101.

[54]Cf. Aloisi, A.and De Stefano, V., (2024), Gig’ workers in Europe: the new platform of rights, Social Europe, 16th March 2024 (www.socialeurope.eu); Covelli, R. (2023). Lavoro e intelligenza artificiale: dai principi di trasparenza algoritmica al diritto alla conoscibilità. Labour & Law Issues.

[55] Cf. Cefaliello A, & Kullmann, M. (2022), The Interconnection between the AI Act and the EU’s Occupational Safety and Health Legal Framework, in Global Workplace Law & Policy.

[56]Directive 89/391, Art 6(2): “General obligations on employers […]. 2. The employer shall implement the measures referred to in the first subparagraph of paragraph 1 on the basis of the following general principles of prevention: (a)avoiding risks;(b)evaluating the risks which cannot be avoided:(c)combating the risks at source;(d)adapting the work to the individual, especially as regards the design of work places, the choice of work equipment and the choice of working and production methods, with a view, in particular, to alleviating monotonous work and work at a predetermined work-rate and to reducing their effect on health.(e)adapting to technical progress;(f)replacing the dangerous by the non-dangerous or the less dangerous;(g)developing a coherent overall prevention policy which covers technology, organization of work, working conditions, social relationships and the influence of factors related to the working environment;(h)giving collective protective measures priority over individual protective measures;(i)giving appropriate instructions to the workers.

[57]Freni-Sterrantino, A, and Salerno, V. (2021),  A plea for the need to investigate the health effects of gig-economy. Front Public Health, Feb. 9.

[58]Bajwa, U., Gastaldo, D., Di Ruggiero, E, Knorr, L. (2018), The health of workers in the global gig economy. In Glob Health.

[59] Arrigo, G. (2019) Il lavoro al tempo della “subordinazione digitale” (“cominciò con un clic e finì con un sms”), Mimesis Edizioni, 71-86.

[60] Cefaliello, A. (2023), An Occupational Health and Safety Perspective on EU Initiatives to Regulate Platform Work: Patching up Gaps or Structural Game Changers? J Work Health Saf Regul., 1; 117‒137.

[61]Directive of the European Parliament and of the Council on improving working conditions in platform work (COM/2021/762 final).  On 24 April 2024, the EU Parliament approved the Platform Work Directive. NB.please note:When the present essay was written (May 2024), the text of the Directive was awaiting to be formally approved by the EU Council.

[62] Recital 14:“While existing Union legal acts provide for certain general safeguards, challenges in platform work require some further specific measures. In order to adequately frame the development of platform work in a sustainable manner, it is necessary for the Union to set minimum rights for platform workers and rules to improve the protection of personal data of persons performing platform work to address the challenges arising from platform work. Measures facilitating the correct determination of the employment status of persons performing platform work in the Union should be introduced, and transparency on platform work should be improved, including in cross-border situations. In addition, persons performing platform work should be provided rights aiming at promoting transparency, fairness and accountability. Those rights should also be aimed at protecting workers and improving working conditions in algorithmic management, including the exercise of collective bargaining. This should be done with a view to improving legal certainty and aiming at a level playing field between digital labour platforms and offline providers of services and supporting the sustainable growth of digital labour platforms in the Union”.

[63] Directive: Article 7 and Article 8.

[64] Recital  17 of  Directive.

[65] Article  5 of the Directive.

[66] Article 5(3).

[67]Article  6  of the Directive.

[68]Currently, there is no specific directive on work-related psychosocial risks in the EU and only the general principles for prevention of the Directive 89/391/EEC apply, alongside two European autonomous framework agreements on work-related stress (2004) and workplace bullying (2007).

[69] Cefaliello, A. (2023), An Occupational Health and Safety Perspective on EU Initiatives to Regulate Platform Work, cit.

[70]Article 12. Safety and health.See above, par. 8.3.

[71] Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services. 

[72] Cefaliello, A. (2023),  An Occupational Health and Safety Perspective, cit.

[73] Forde, C., et  al. (2022). “Three Unanswered Questions About the EU Directive on Gig Work”. Digital Futures at Work Research Centre (blog), February 8, https:// digit-research.org.

[74] Aloisi, A. and Georgiou, D. (2022), Two steps forward, one step back: the EU’s plans for improving gig working conditions

A critique of the EU’s proposed approach to employment status and algorithmic management for platform workers, Ada Loveace Institute.

[75] Workers’ rights: Directive (EU) 2019/1152 on transparent and predictable working conditions.