Spain: New Royal Decree - law on the employment rights of workers who deliver for digital platforms

On 12 May 2021, Spain's Official State Journal (Boletín Oficial del Estado, or BOE) published Royal Decree-Law 9/2021, of 11 May, which amends the recast Spanish Workers' Statute Law, approved by Legislative Royal Decree 2/2015, of 23 October, which guarantees the labour rights of people who deliver for digital platforms (RDL 9/2021 or the Riders Law), which will enter into effect on 12 August 2021.

The Riders Law has made a number of significant amendments to the Spanish Workers Statute, approved by Royal Decree 2/2015, of 23 October (the WS) and has enacted the contents of the agreement reached on 10 March this year by the Ministry of Employment and Social Economy, trade unions and business associations.

The specific aim of RDL 9/2021 is twofold: (i) to regulate the employment relationship existing in the area of delivery for digital platforms, and (ii) to regulate the right of worker representatives to information in a digitised working environment.

The main new elements brought in by the Riders Law

The Riders Law has one article and two final provisions, which contain the following new elements concerning contractual relationships with digital platforms.

Presumption of an employment relationship

• By adding a new additional provision to the WS, it is now presumed that an employment relationship exists in the delivery or distribution of any kind of product or good where the service or the working conditions are managed algorithmically over a digital platform. That presumption is subject to: (i) organisation, (ii) management, and (iii) control by the corporate entity concerned using a digital platform.
• The criteria of the Spanish Supreme Court's ruling in Judgment 805/2020, dated 25 September, rendered to unify case law, has also been included; that ruling recognises the need to adapt the features of any employment relationship (dependence and working for a third party) to the digital platform services sector.

Right of information on algorithms

• According to the new provisions, companies must provide: (i) algorithm parameters, and (ii) mathematical formulae that have an impact on the employment relationship with workers.
• An amendment is made to article 64 ET, related to workers' legal representatives (WLR) right to information. Companies must now inform the WLR of: (i) the rules on which algorithms or artificial intelligence systems are based that affect decisions that could have an impact on working conditions, (ii) access to employment, and (iii) continued employment, including profile building.

Adaptation of the provisions of RDL 9/2021

Companies must adapt to the provisions of RDL 9/2021 within three months from the date on which it was published in the BOE.