GEP reports from the European Trade Union Institute’s conference on the digital transition and labour rights in Brussels, which heard arguments for the European Commission to avoid a “narrow” law on platform work and instead embrace an “anticipatory perspective”.
The Gig Economy Project, led by Ben Wray, was initiated by BRAVE NEW EUROPE enabling us to provide analysis, updates, ideas, and reports from all across Europe on the Gig Economy. If you have information or ideas to share, please contact Ben on GEP@Braveneweurope.com
This series of articles concerning the Gig Economy in the EU is made possible thanks to the generous support of the Andrew Wainwright Reform Trust
A two-day conference on the digital transition and labour rights heard labour law professors and politicians express fears that the EU Commission’s plans to regulate platform work in December will not go far enough to fundamentally shift the dial when it comes to the “unbalanced power distribution” between platforms and their workers.
The Commission is expected to publish its legislative proposals on 8 December, and when enacted the legislation will enter into force in all 27-member states. But speakers at the European Trade Union Institute (ETUI) conference in Brussels on 28-29 October expressed doubts that it would rise to the challenge of providing platform workers across the continent with the rights and social protections needed.
Leïla Chaibi, France Insoumise MEP and campaigner for platform workers’ rights, told the ETUI conference on Thursday [28 October] that there are in reality three options on the table when it comes to the EU Commission’s considerations on the issue of classification of platform workers.
The first is the third category status in place in the UK, where platform workers are neither employees nor self-employed but are a new status of worker which gives them some of the benefits of being an employee (such as minimum wage and a pension) but not all. That “seems to be have been eliminated for now, but we remain vigilant,” Chaibi said.
The preferred option of the trade unions and the one backed overwhelmingly by the European Parliament, that the EU Commission establishes a presumption of employment for platform workers, remains possible, she said, but warned that a third strategy was now being raised, one which would “give the impression that something is being done without doing much, which is simply to change the burden of proof without the presumption of employment”.
Chaibi, who was one of the key organisers of a global conference of platform workers in Brussels on Wednesday in which there was clear support for employment status, added that reversal of the burden of proof would be “better than nothing” but it would mean that workers would still “have to go to court” to try to secure their labour rights.
The European Parliament resolution – which was backed by 524 MEPs in favour, 39 against and 124 abstentions – made an unequivocal statement in defence of “a presumption of employment” which would be “in combination” with “the reversal of the burden of proof”.
The motion reads that “a rebuttable presumption of an employment relationship would facilitate the correct classification of platform workers in combination with the reversal of the burden of proof, which means that where workers dispute the classification of their employment status in legal or administrative proceedings, it is for the party who is claimed to be the employer to prove that there is no employment relationship in accordance with national definitions as set out in the legislation or collective agreements of the respective Member State.”
However, the European Parliament vote is non-binding, as it is the non-elected EU Commission, led by Nicolas Schmit, the Commissioner for jobs & social rights, who will ultimately draw up the legislative design of the platform work directive. Speaking immediately after the EU Parliament’s vote, Schmit described the reversal of the burden of proof as a “good solution” and “extremely important for all those who work on the platforms”.
Speaking on Friday [29 October], labour law assistant professor Antonio Aloisi of the IE Law School in Madrid, said that he believed if the Commission was only to address the question of employment classification in a “narrow sense” the directive would be a “failure”, because it would “leave too much room for circumvention and arbitrage” on the part of the platforms, which are “sophisticated in twisting language and tweaking terms to undermine legal rulings”.
Classification should instead be part of a broad sweep of reforms for platform workers, Aloisi argued, including addressing artificial intelligence, anti-discrimination and equality issues, and occupational health and safety.
Asked about the possibility of the Commission’s directive being limited only to shifting the legal burden of proof from the platform worker to the platform, Aloisi, who co-authored an article last week on the platform work directive, replied: “If the only major achievement is the inclusion of a rebuttable of presumption [of employment] or the inclusion of something that can be used in court to streamline the burden of proof it will not be a significant achievement.
“This is why we should probably consider that we should be entering the second platform work age. Now we are pretty sure that almost all courts recognise the existence of an employment relationship, so now we should be tackling other issues, including algorithmic protection – protecting rights.
“I am concerned about the concrete outcome of the Directive because it appears to be going down a too narrow perspective. I am not even sure of the potential usefulness of this instrument, because there will be the proposal, then room for negotiation, then several years of transposing the directive to the domestic level. The potential for the adaptation of the platform economy [in that time] will be massive, thus disempowering and undermining this Directive. So we should be smarter than this and try to adopt an anticipatory perspective.”
The importance of algorithmic management
Also speaking at the ETUI conference on the question of platform workers’ employment status was Anna Ginès Fabrellas, professor at the ESADE Law School in Barcelona, who argued that the algorithmic management of platform workers was “a higher degree of control than workers in non-digital employment spheres [experience]”.
Fabrellas said that because the algorithm assigns a service to a platform worker only when a customer requests it, they are hired “only for the exact duration of the execution of that service”, which “means that in reality platforms are using zero-hour contracts, which by the way are not necessarily legal in all European countries.”
The algorithm not only controls the service provided by the worker, they also own and control all the data which comes with the provision of that service, to the extent that the worker is actually “prohibited from pursuing a business opportunity outside the platform if the contact is made in the platform”. Thus there is a complete “absence of entrepreneurial opportunities”.
“The platform is acting as an employer by organising the work available within the internal marketplace of the platform,” Fabrellas concluded. “It would be a mistake to adapt our labour relationship to a business model that is based on eluding that labour relationship.”
Silvia Rainone, researcher at the ETUI, spoke about the original “emancipatory function” of labour law, which was created so that “working conditions shall not disproportionately reflect the interest of the dominant party” and to impose “limits to the tendency of businesses to compete on lowering labour costs”.
Understood in this way, Rainone said that “reinventing the wheel” of labour law for platform capitalism “is not necessary”, and what instead was required was a simple legal recognition that “labour rights should be recognised whenever labour is performed in conditions of unbalanced power distribution”. She said one way to do this could be to apply labour rights in all circumstances where “algorithmic management” is in use.
The conference also heard from Aida Ponce Del Castillo, a senior researcher at ETUI who has published a highly critical paper on the European Union’s draft Artificial Intelligence Act, which was released in April.
Castillo was scathing both of the substance of the Act and the process which the EU Commission followed in producing it, stating that they “granted producers of AI systems with basically a white page on how they can put their products and services into the market.”
She said that there was “no guidance whatsoever for those who might suffer from misuses” of AI, and listed a number of protections which should have been in the Act but weren’t, and that could be included in other upcoming digital regulation, including the platform work directive. Those possible reforms included a ban on the use of facial recognition in the workplace, employee data protection and the right of workers to a meaningful explanation of “the inner workings of the algorithm”, including clarification of the role of “the human element” in management decision.
Dutch lawyer Anton Ekker highlighted his work in using the EU’s GDPR legislation to pursue legal action on behalf of gig workers to “curb asymmetric power and algorithmic harms”.
Ekker, who has been representing the UK-based Worker Info Exchange, led by ADCU union co-founder James Farrar, said that his most successful legal action so far was in support of ‘Ola’ drivers, as the court found that under article 22 of GDPR, platform workers do have protection from algorithmic decision-making, such as prevent ‘robo-firing’ and the right to access ratings data (although only on an anonymised basis) and fraud probability scores.
The conference also heard speeches from trade union leaders who are engaged in organising platform workers.
Silvia Simoncini, National secretary of the NidiL Cgil union in Italy, explained that the union had sought to enter a dialogue with the platforms in Italy, which are grouped in an association, but it did not produce an agreement.
The association, named Assodelivery, instead signed an agreement with the far-right union ‘General Union of Labour’ (UGL), which was described by labour law expert Valerio de Stefano as “the first collective agreement that deprives workers of rights”.
NidiL Cgil then began to pursue cases in court on behalf of platform workers over health & safety rights, which they won. The judge said said the employers had to provide workers with individual protective equipment, even though they were self-employed. In Italy, self-employed workers are entitled to collecting bargaining rights.
The union then did agree a deal with one of the platforms, Just Eat, which “recognises that the worker has a hierarchical link with the employer” and accepts “a collective bargaining decision at national level”, according to Simoncini.
“Today this agreement functions pretty well and it enabled us to include 6,000 riders in the agreement,” Simoncini added.
The union has continued to pursue further legal actions, including against the Assodelivery-UGL agreement, which a Bologna court found to be illegitimate. Another court case in Bologna at the beginning of the year pursued by NidiL Cgil found that Deliveroo’s algorithm was discriminatory against workers who went on strike or were off-sick. Simoncini said that the union aims to deliver a similar national agreement with Deliveroo as it has with JustEat.
Martin Willems of the United Freelancers acv-csc union in Belgium also addressed the event, and explained the difficulties in getting false self-employed platform workers to back the idea of employment status.
“Of course they want to be self-employed, they don’t want to have a hierarchical link and be subordinated, but the reality is they are. We want both – we want the labour law and more freedom,” he said.
Willems said unions should value this desire among workers for more autonomy from their boss, because it was a “sign of empowerment” if it can be channelled in the right way. Unions had to work to tackle a “widespread feeling” among platform workers that unions are “not for them”, and instead represent “traditional” workers.
He explained that his union was opposed to any third status for platform workers and did back a presumption of employment status, as long as workers who are actually self-employed and work on platforms can continue to do so.
In rounding up the conference, Ludovic Voet of the European Trade Union Confederation (ETUC) struck a positive note, saying the trade union movement had “won the battle of ideas” when it comes to regulation of platform work, something which was not the case only recently.
“Two years ago there was not a lot of people saying presumption of employment relationship in platform work, now it is on the table,” he said. “Now the platforms have to defend themselves against this presumption of employment relationship, two years ago they were not afraid of this.”
He added that this was not just a fight for those presently working in the gig economy, but the many sectors which are and will undergo platformisation.
“It is easily conceivable to transform some sectors,” Voet said. “The restaurant work, agricultural work, book-keeping…the list is long. As soon as the intelligence of the algorithm will be able to organise these sectors, they will do it.”
The Gig Economy Project will be publishing a full interview with Voet shortly.