User:Bastiankenn/Regulation platform work

Working conditions in the food delivery and taxi sector, dominated by multinational companies such as Deliveroo or Uber (which also coined the term Uberisation), are increasingly catching the attention of legislators globally and in the European Union in particular. Referred to as the platform economy, workers in these industries often face detrimental employment conditions with some of the major labour rights issues concerning pseudo self-employment, unpaid work, the prevention of activities related to collective action and unionization as well as concerns related to the functioning of the platform themselves, based on algorithms whose exact methodology is shielded from the public.

The platform economy is an umbrella term that describes a business model in which companies facilitate Customer to customer, business to business, and business to customer relations by means of online platforms. These companies are also referred to as gig economy companies (see List of gig economy companies) and workers in the industry are referred to as gig workers, which are typically independent contractors and thus in non-standard employment relationships with the respective companies.

On the one hand, business representatives and other proponents of the current business model point to the economic opportunities created for low-income earners to complement their revenues in a flexible and self-determined manner. On the other hand, labour unions and other opponents highlight that most platform workers work full-time in the industry, denouncing the narrative that platform work was just a side-job that is regularly put forward by the respective companies, and thus call for extensive regulation that tackles the above-mentioned labour rights issues and creates employment conditions which provide the typical benefits associated with standard employment, notably social security.

According to the Egmont Institute, an estimate 24 million individuals in the EU have engaged in platform work at least once, which is 11% of the EU’s workforce.[1] The European Commission estimates 28 million people to work through digital labour platforms and projects the number to reach 43 million people in 2025.[2]

= Major labour rights issues =

1.    Prevention of activities related to collective action and unionization
There are several reported incidences of platform companies actively preventing or prohibiting collective organization and unionization, also referred to as union busting. For example, in 2019, French investigative journalist Elise Lucet confronted the food delivery service Deliveroo with evidence that the company had used GPS data to identify participants of strikes protesting a planned reduction of renumeration fees. The company had then collected “compromising” information against these riders to let them off, effectively undermining and sanctioning the right to collective organization.[3] Deliveroo, Uber and other platform-based companies have further prevented the creation of unions in several documented cases, as in the case of the Gorillas Workers Collective in Berlin, Germany.[4] Companies want to decrease cost and stress the self-employment nature of contractual relationships in a free-market logic: If individuals are unhappy with the renumeration, they are free to change to a better paying platform service. This creates a race to the bottom that could be prevented by unionization across businesses of a particular sector, such as food delivery or taxi-like services.

2.    False self-employment
False self-employment (also referred to as fake, pseudo, bogus employment) is at the heart of the challenges faced by many platform workers, especially in the app-based ride-haling and food delivery sector.[5] Platform-based businesses insist on the self-employment nature of their employees, stressing the fact that workers can 1) carry out tasks/work for several companies simultaneously and 2) are free to choose their own working hours as well as the number of hours they wish to dedicate to any individual employer. They equally advance that platform work can be a side- job allowing individuals to easily earn extra money (in addition to a traditional employment relationship). While this sounds attractive in theory in practice most contractors rely on single platforms and find themselves in daily but unregulated employment. The European Commission estimates that around 5,5 million people are incorrectly classified as self-employed.[6]

Discussions on creating an entirely new status for platform workers have emerged in France and Belgium (see box 2 “Recent legislative developments in Member States” below), but so far, no initiative in this direction has succeeded. Business lobby groups advocate for guaranteeing access to basic social protection for the self- employed by fully implementing the 2019 Council recommendation on “access to social protection for workers and the self-employed” but such an approach is seen as insufficient by labour unions[7] and does not effectively address the issue of pseudo self-employment ( See also “European Union Regulation on Platform Work”).

3.    Health care and economic insecurity
In a report on issues faced by platform workers, the International Labour Organization (ILO) reports that only six out of ten respondents were covered by health insurance, and only 35% had a pension or retirement plan.[8] These issues are linked to the non-standard employment or pseudo self-employment described above. Classifying workers as self-employed allows platform companies to retain significant profits while bypassing labour and social security legislation.[9] While highly skilled and better remunerated platform workers such as IT experts, translators, etc. often possess the means necessary to finance health care and savings, this is not the case for many workers in lower-skilled and low-pay jobs, which constitute a significant share of the platform economy (delivery, transportation, etc.).

In addition, platform workers in these sectors also often must shoulder material and human capital investment, redeployment, and maintenance costs. Under many contracts, they must provide their own equipment, as well as insurance protecting their own safety and their equipment in unforeseen circumstances.[10] According to Eurofound, plaform workers are also 47% less likely to receive training compared to their employed counterparts.[11]

4.    Algorithms and other issues related to the technological functioning of platform services
The concerns of platform workers are not restricted to more “traditional” aspects of social standards described above, but workers’ rights are also impacted directly through the technological functioning of the respective platforms.

Platform services operate on complex algorithms that bring together business and service providers. For the most part, these algorithms are not publicly accessible, and their exact functioning cannot be evaluated. For example, the algorithm may punish a worker by attributing them fewer gigs when said workers has been absent from work for legitimate reasons, such as health or care or participation in strikes. The Court of Bologna (Italy) recently ruled in favour of a complaint brought about by trade unions, in which case Deliveroo’s algorithm Frank had discriminated workers and restricted their access to working slots following absence for strike, or for health or care reasons.[12] There is a wide array of evidence pointing to further discrimination in the functioning of algorithms (on the basis or skin colour or gender for example), some of which are currently being evaluated in court.[13]

5.    Unpaid labour
Unpaid labour is another major concern for platform workers that results from the “piece rate system” employed by several companies such as Deliveroo.[14] Unlike an hour-based system where workers are renumerated per hour worked, a piece rate system means compensation is paid per task fulfilled, e.g., per food delivery successfully completed. This results in platform workers spending a large share of their workday waiting for the next gig, without receiving any pay.[15] This also includes travel to and from the place of work, which is contrary to EU law. In Federación de Servicios Privados del CC.OO v Tyco, the European Court of Justice ruled that journeys made by workers without fixed places of work between their place of residence and the first and last customer of the day is considered working time and needs to be remunerated.[16]

The graphic below shows a comparison of unpaid labour between a piece rate and an hourly-based work model.

= Notable court rulings in EU Member States =

In the absence of comprehensive regulation of platform work in EU Member States, cases brought forward in Court, notably by labour unions, have often condemned the practices of gig companies and notably the employment status of platform workers. Consequently, companies were forced, or haven taken the voluntary decision of adjusting their business practices. [17] As a result of these rulings, labour unions have also managed to negotiate collective agreements for workers in Denmark, Austria, and Sweden.[18]

More than 100 rulings and 15 administrative decisions have been pronounced in the EU.[19] Below is an overview of some of the most impactful cases.

This list is non-exhaustive.

= Notable regulation in EU Member States =

Very few EU Member States have adopted legislation that tackles the working conditions of platform workers specifically. Rather, platform work is regulated indirectly through existing labour law, which is increasingly seen as insufficient to tackle the challenges faced by platform workers.[23] Some notable regulatory acts specifically addressing platform work are listed below.

This list is non-exhaustive.

= European Union legislation on platform work =

European Union Directive on transparent and predictable working conditions
As the EU’s competences in the field of social policy are limited, it can only decide on minimum standards. Realising that the existing regulatory framework did no longer fit changing business practices, notably a steady increase of workers in non-standard employment relationships, EU institutions adopted the Directive on Transparent and Predictable Working Conditions in 2019.[30] Welcomed as a first step towards improving the conditions of platform workers, this directive did not sufficiently tackle the issue of bogus self-employment, and therefore did not address the central challenge faced by platform workers.[31]

European Union Directive on improving working conditions in platform work
In its 2021 work programme, the European Commission announced to bring forward a proposal for a directive on improving working conditions in platform work that was subsequently presented to the European Parliament the Council of the European Union in December 2021.[32] The directive addresses three central elements: the employment relationship between platforms and workers, algorithmic management, and transparency provisions, i.e. obligations on companies to report work activities and the number of workers to the competent authorities of the Member State in which the activity is performed.[33] Concerning the employment status of platform workers, the directive intends to establish five criteria to determine whether workers must be considered employees. If companies fulfil at least two out of these five criteria, their contractors must be considered employees:

-       effectively determining, or setting upper limits for the level of remuneration;

-       requiring the person performing platform work to respect specific binding rules with regard to appearance, conduct towards the recipient of the service or performance of the work;

-       supervising the performance of work or verifying the quality of the results of the work including by electronic means;

-       effectively restricting the freedom, including through sanctions, to organise one’s work, in particular the discretion to choose one’s working hours or periods of absence, to accept or to refuse tasks or to use subcontractors or substitutes;

-       effectively restricting the possibility to build a client base or to perform work for any third party.[34]

= Notable events and organized activity by platform workers =

Gorilla Workers Collective
In early 2021, eight workers of the instant grocery delivery service Gorillas started organising for better working conditions and prepared for the instalment of a staff council in Berlin, Germany. In reaction to the termination of a colleague in June 2021, 20 Gorilla riders spontaneously went on strike. These strikes continued in the following months with peaks in which Gorilla was unable to continue its operations. While Gorillas’ management first announced its intention to respond to the demands of striking workers, in October 2021, 350 workers were let off according to German trade union Ver.di due to “illegal strike activities” as communicated by Gorilla’s spokesperson.[35] Gorilla workers continued mobilizing as a reaction and organised public protests in front of Gorilla warehouses in Berlin. Gorillas has announced its intention to restructure its company, an attempt that labour unions such as Ver.di evaluate as a further attempt to prevent any activities of unionization.[36]

= See also =

-       Platform capitalism

-       Platform evangelism

-       European labour law

-       2020 California Proposition 22 [1] Marcel Muraille, ‘Addressing Regulatory Gaps in the Booming Platform Economy : A Look at the Social and Economic Implications of the EU Proposal on Platform Workers’, Egmont Institute, 14 December 2021, https://www.egmontinstitute.be/addressing-regulatory-gaps-in-the-booming-platform-economy-a-look-at-the-social-and-economic-implications-of-the-eu-proposal-on-platform-workers/.

[2] ‘Improving Working Conditions in Platform Work’, European Commission, accessed 15 April 2022, https://ec.europa.eu/commission/presscorner/detail/en/ip_21_6605.

[3] Cash Investigation, Cash Investigation - Au Secours, Mon Patron Est Un Algorithme (Intégrale), 2019, https://www.youtube.com/watch?v=pFoU-cBCPMk.

[4] Janis Ewen, Heiner Heiland, and Martin Seeliger, ‘Dynamiken autonomer Arbeitskonflikte im digitalen Kapitalismus: Der Fall “Gorillas”’, Research Report (Schriftenreihe Institut Arbeit und Wirtschaft, 2022), https://www.econstor.eu/handle/10419/249962.

[5] Muraile, op. cit.

[6] European Commission, op. cit.

[7] ‘ETUC Position: Proposal for a Council Recommendation on Access to Social Protection for Workers and the Self-Employed’, ETUC | European Trade Union Confederation, accessed 16 April 2022, https://www.etuc.org/en/document/etuc-position-proposal-council-recommendation-access-social-protection-workers-and-self.

[8] International Labour Organization, ‘The Role of Digital Labour Platforms in Transforming the World of Work’, Report, 23 February 2021, http://www.ilo.org/global/research/global-reports/weso/2021/WCMS_771749/lang--en/index.htm.

[9] Despoina Georgiou, ‘The New EU Directive on Transparent and Predictable Working Conditions in the Context of New Forms of Employment’, European Journal of Industrial Relations, 4 January 2022, https://doi.org/10.1177/09596801211043717.

[10] Ibid.

[11] Irene Mandl et al., ‘New Forms of Employment’ (Eurofound, 2015), https://www.eurofound.europa.eu/publications/report/2015/new-forms-of-employment.

[12] ‘Italy : The Court of Bologna Condemns Deliveroo’s Algorithm for Discrimination - Digital Platform Observatory’, accessed 14 April 2022, https://digitalplatformobservatory.org/legal-case/the-court-of-bologna-condemns-deliveroos-algorithm-for-discrimination/.

[13] Digital Freedom Fund, ‘Taking Uber’s Racist Facial Recognition Algorithm to Court’, Digital Freedom Fund (blog), accessed 16 April 2022, https://digitalfreedomfund.org/taking-ubers-racist-facial-recognition-algorithm-to-court/.

[14] Valeria Pulignano et al., ‘Does It Pay to Work? Unpaid Labour in the Platform Economy’, ETUI Research Paper - Policy Briefs 2021.15, SSRN Scholarly Paper (Rochester, NY: Social Science Research Network, 20 January 2022), https://doi.org/10.2139/ssrn.4013358.

[15] Ibid.

[16] Judgement of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras (CC.OO.) v Tyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA, C‑266/14, ECLI:EU:C:2015:578.

[17] ‘National Rulings on Platform Work Show Need for EU Action’, ETUC | European Trade Union Confederation, accessed 14 April 2022, https://www.etuc.org/en/pressrelease/national-rulings-platform-work-show-need-eu-action.

[18] ‘EU Action Needed after Uber & Deliveroo Court Defeats’, ETUC | European Trade Union Confederation, accessed 14 April 2022, https://www.etuc.org/en/pressrelease/eu-action-needed-after-uber-deliveroo-court-defeats.

[19] ‘Q&A: Improving Working Conditions in Platform Work’, European Commission, accessed 19 April 2022, https://ec.europa.eu/commission/presscorner/detail/en/qanda_21_6606.

[20] ‘Netherlands – Court of Appeals Rules Deliveroo Couriers Are Employees, Not Self-Employed’, accessed 14 April 2022, https://www2.staffingindustry.com/eng/Editorial/Daily-News/Netherlands-Court-of-Appeals-rules-Deliveroo-couriers-are-employees-not-self-employed-56714.

[21] ‘March 2020 - France - UBER / Mr X (Contractual Relationship)’, WageIndicator, accessed 14 April 2022, https://wageindicator.org/labour-laws/platformeconomy/platform-economy-court-cases/march-2020-france-uber-mr-x-contractual-relationship.

[22] Mathieu Pollet, ‘Deliveroo condamnée à une amende de 375 000 euros pour travail dissimulé’, www.euractiv.fr, 19 April 2022, https://www.euractiv.fr/section/economie/news/deliveroo-condamnee-a-une-amende-de-375-000-pour-travail-dissimule/.

[23] European Commission, op. cit.

[24] Journal officiel de la République française, ‘LOI N° 2016-1088 Du 8 Août 2016 Relative Au Travail, à La Modernisation Du Dialogue Social et à La Sécurisation Des Parcours Professionnels (1)’, 2016-1088 § (2016).

[25] ‘Autorité Des Relations Sociales Des Plateformes d’emploi (ARPE)’, Eurofound, accessed 16 April 2022, https://www.eurofound.europa.eu/data/platform-economy/initiatives/autorite-des-relations-sociales-des-plateformes-demploi-arpe.

[26] Gazzetta Ufficiale della Repubblica Italiana, ‘Conversione in legge, con modificazioni, del decreto-legge 3 settembre 2019, n. 101, recante disposizioni urgenti per la tutela del lavoro e per la risoluzione di crisi aziendali’, n. 257 L. (2 novembre 2019).

[27] Moniteur Belge – Belgisch Staatsblad, ‘Loi/Wet 2016021055’, accessed 16 April 2022, http://www.ejustice.just.fgov.be/cgi/article_body.pl?language=nl&caller=summary&pub_date=16-07-04&numac=2016021055.

[28] ‘National Rulings on Platform Work Show Need for EU Action’, ETUC | European Trade Union Confederation, accessed 14 April 2022, https://www.etuc.org/en/pressrelease/national-rulings-platform-work-show-need-eu-action.

[29] Diário da República, ‘Lei n.o 63/2013 | DRE’, Diário da República Eletrónico, accessed 16 April 2022, https://dre.pt/ ;

Diário da República, ‘Lei n.o 55/2017 | DRE’, Diário da República Eletrónico, accessed 16 April 2022, https://dre.pt/.

[30] Georgiou, op. cit.

[31] Ibid.

[32] European Commission, ‘Proposal for a Directive of the European Parliament and of the Council on Improving Working Conditions in Platform Work’ (2021), https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A52021PC0762.

[33] ‘A Guide to the New EU Proposals on Digital Platform Workers’, Ius Laboris (blog), 6 January 2022, https://iuslaboris.com/insights/new-eu-proposals-on-digital-platform-workers/.

[34] Ibid.

[35] Ewen, Heiland, and Seeliger, op. cit.

[36] Ibid.