The Gig Economy Project speaks to Edouard Bernasse of the Collective of Autonomous Platform Delivery Workers (CLAP) about the gig economy in France, Macron’s new platform worker ‘social dialogue’ law and much more.
Vous pouvez lire cette interview en français ici.
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.
FRANCE has been the beating heart of many of the great labour disputes of the past, and now it is at the centre of the debate over the future of work in Europe’s digital economy.
Last week, the French Parliament passed a ‘social dialogue law’, which President Emmanuel Macron’s government says will provide a basis for ‘independent’ gig workers to negotiate with the food delivery and ride-hail platforms they work for. Opponents on the left have described the law as “the institutionalisation of Uberisation”.
Meanwhile, Macron has just taken up the rotating Presidency of the EU Council as it considers the EU Commission’s ‘Platform Work Directive’, which proposed a presumption of employment for platform workers. Macron – widely considered to be an ally of the digital platforms – may use his influence on the council to amend the Directive.
Finally, the French Presidential elections are just a few months away, which could have a big impact on what happens next in France’s gig economy.
Edouard Bernasse is co-founder and secretary-general of the Collective of Autonomous Platform Delivery Workers (CLAP) in Paris. In this podcast, we discuss:
1:49: Why CLAP?
9:28: The shape of France’s food delivery sector
12:26: Platform worker’s status in France and the ‘social dialogue’ law
31:29: The EU Platform Work Directive and Macron’s role on the EU Council
37:18: France’s Presidential elections and the gig economy
AN ABBREVIATED TEXT VERSION OF THIS INTERVIEW IS ALSO AVAILABLE BELOW
The Gig Economy Project: Tell us about CLAP: how did it get started? How has it evolved since then?
Edouard Bernasse: CLAP is an association, we are not a union. We started in 2017 and we organised following a change in the income policy in Deliveroo. We were all very, very anxious about the platform, because there was another platform in France called ‘Take it Easy’, a Belgian platform, which went bankrupt six months earlier. We organised and we thought it would be great to have a structure with some representatives and spokespeople in front of the media, and to organise some events and to defend the delivery couriers against those platforms.
Over five years, we’ve been doing a lot of work, a lot of fighting against the platform, which is still changing the working conditions and you know we have a lot of precariousness now in our working conditions, and we are still fighting against their way of organising. We are still denouncing that all the workers are not truly independent, they are actually employees because the platform is matching every criteria of a classic employer.
So we are fighting against the platform and all their friends in France, and unfortunately [that includes] the French Government because Emmanuel Macron is very fond of the platform business model and the gig economy.
GEP: What was it about being a collective – an association – that you are attracted to, more than a traditional trade union structure?
EB: First of all, in France you have to respect many conditions to be authorised as a union. It’s in the law, and we couldn’t match that representativeness criteria. We thought being an association was good enough to do the job, but there’s also another reason.
A great part of the couriers were not very aware of the classical union way of representing them. And as independent contractors and independent workers the French unions were a bit lost, because they have a strong history with the employees and the classic working conditions and so they took time to act in favour of the platform workers. We were the first to organise and we could see that the couriers didn’t have a very positive opinion about the unions, they were very young and some of them told us that their parents were in unions before and those unions disappointed them because they became maybe more like political parties than real unions. Some of the couriers told us that as an independent worker they wanted to work for themselves according to their conditions, but they also wanted to defend those working conditions themselves. So it is kind of a mix of all of those elements.
GEP: Can you tell us a bit about the food delivery sector in France? What are the working conditions like and how has the experience of the pandemic been for couriers?
EB: There are a lot of platforms in France nowadays. There is Uber Eats, Deliveroo, Frichti – a French platform which was employing shadow workers, and they are about to be bought by Gorillas [a German firm]. And they have also many new platforms where the worker has employee contracts, such as Gorillas, Flink, Getir…All of those platforms are employing couriers; it’s not the ideal working conditions because it’s only the beginning of the history. But you have two branches – employee [platforms] and gig economy platforms.
The working conditions are decreasing so fast on Uber Eats and Deliveroo and so on, and the platforms are free to do so, there is no concrete law to stop them and force them to respect the social law, so it is still a fight that we are leading.
GEP: Can you tell us a bit about the ‘micro-entrepreneur” status in France? There’s also been debate about the platform worker status changing; there has been the Frouin Report which Macron commissioned, and Macron has also been involved in what he has called the ‘social dialogue’ law with platform workers.
EB: The micro-entrepreneur status is an independent contract. So you work for yourself according to your tools, your method of working, you can find clients for yourself and you can negotiate your working conditions and your price and you have to ensure your own social protection afterwards.
So in France it costs more to be an independent worker than an employee because that status is very weak when we speak about social protection. So micro-entrepreneurs have to protect themselves with very expensive insurance, they have to think about their own retirement, their own protection against unemployment, so it’s very expensive. It’s a status made for people who have a strong experience, strong skills and a strong network and want to be a micro-entrepreneur, not for platform workers.
This status was asked for by the platform; you can’t work on a platform if you don’t have that status. You spoke about the pandemic situation and it is true that we have seen a lot of new micro-entrepreneurs after the pandemic and Macron was very proud about that, but when you look at the numbers, okay there are a lot of independent contractors but many of them are working in the sector of transport and food delivery. It is not a reason to be proud because they won’t make the economy better as they’ll be working in poor working conditions.
In terms of the Frouin report, Mr Frouin was a former judge in the highest jurisdiction in France, the Court of Cassation. He has a strong legal knowledge. And Edouard Phillipe, the former prime minister of France, asked Mr Frouin to think about a better status for gig economy workers, but at the same time they asked Mr Frouin not to think so much about the employment status, because they didn’t want Frouin to write about employment [status]. So Mr Frouin tried to find solutions and at the end he only said maybe it would be good for platform workers to have a system of wage portage, whereby an [intermediary] could assume the rights for the platform workers. Basically it is transferring the responsibilities of the platforms to someone else, and it couldn’t be accepted. So the government finally let it go.
Now, we have the law for the platform workers social dialogue, it has been adopted by the French Senate, and in that law it is said that all of this social dialogue is entirely lead by the government. It is a social dialogue, but not the classic social dialogue.
For example, it is up to the government to decide what to discuss about and when to discuss it. If you look precisely at the law, you can see that the income is not an object of the social dialogue. So you can speak about everything, but not the income, which is very problematic for us, because it’s the main thing. It is said in the text that the government can decide to speak about the income, but it is a very subtle way of writing it, it is not the income itself – it is minimum wages. It talks about the way of determining the income, which is slightly different: you can for example speak about: ‘guys, we have to agree on a minimum wage and you have to respect that minimum’ – that is one thing. And another thing is: ‘guys, we can tell you how your income is calculated’.
We are thinking that the new authority created by this law, a new administrative body, has very strong powers, for example the general director can authorise a commercial contract rupture of a worker representative, so it is very problematic because in France administrative law is determined by an administrative judge, and here you have an administration that can pronounce rupture of a commercial contract, so it is problematic.
It is also a special jurisdiction made for the platform. For example, this new authority can authorise or not a new sector agreement, but in France we have the social administration to do that, so what’s the point? Another example: the authority has the possibility to organise arbitration between the platform and the worker, but there is also a social jurisdiction for that, so we can see that everything is made for the platform and everything is made to preserve the platform from any objectivity. And who is objective? A judge.
So [the social dialogue] is very convenient for the platform. It’s too many things for us to accept: we can’t speak about income; the authority has strong powers; and we don’t think it is a social dialogue anymore. We think it’s like a classroom, maybe a conference, but it’s not a social dialogue.
GEP: What would CLAP ideally like to see happen, what would be your preferred solution to the issue of the status of food delivery couriers?
EB: It is very difficult to have data on what the food delivery couriers want, because only the platforms own that data and you can’t verify that data, but they are claiming that all of the workers still want to be independent and not employees.
But what we are saying is that you kind of want to be independent but it doesn’t exclude you from being an employee in the facts. And it’s not for us to say so, it’s not for the platforms to say so, or for the politics to say so, it’s only for the Judge to verify it. It is their role to verify if there are many couriers under subordination and if many criteria are met, they can say: ‘you are employees, and the platform is a classic corporation’.
So what we say is whatever your contract is you have to respect it, that’s a basic thing. We have independent contracts but we can’t do anything by our own, we can’t use our own tools, it’s the platform application [that we use], we receive orders, we can be punished for not following the orders. In fact, we are employees. So if we are so, we are claiming that we have the right to minimum wages, to social protections, pensions, and so on, because we don’t have this right now. We have the inconvenience of the two status’: of the micro-entrepreneur status and of the employee status. We are controlled by the platform – this is the inconvenience of being employees – and we are very badly protected socially, which is the inconvenience of being a contractor.
So, in our opinion, if you want to have decent working conditions it would mean to have a law with minimum wages for the platform workers and – during a true social dialogue – you could negotiate your income from that legal basis. You can afterwards negotiate about your connecting time, about the working conditions during the weekend, the nights, but you have the security of the minimum wage in the law; that would be a strong security.
GEP: I presume you have seen the EU Commission’s proposals for the Platform Work Directive? Emmanuel Macron is going to be president of the EU Council for the next six months, and the proposals in the Directive are going to be potentially amended by the EU Council and the EU Parliament. If they are passed they will be the law in all member-states, including France. So what do you think about the Directive and do you think there is a risk that with Macron having this position of power in the Council, the Directive could be made worse?
EB: I think it’s a very good Directive. The European Commission heard the legal decisions across Europe from the highest jurisdictions in a lot of countries. So it is good for the platform workers, it is a good solution to presume that they are employees and the responsibility is on the platform to prove that they are not employees. And the five criteria [for employment status] are very good, because none of the platforms which I know can prove that someone is not an employee. The strongest criteria is that the platform determines the income policy, because I can’t see the platform changing the income policy and saying to the workers ‘okay guys, how much do you want to earn?’
So it’s good, but you are absolutely right that Macron will take [the leadership] of the EU Council, and this is a bad thing because the French Government is the last government to protect the platforms at all costs. We spoke earlier about the social dialogue law, that law is only to win some time actually, so [the French Government] will try to amend [the EU Commission] criteria.
A few weeks ago I met Mounir Mahjoubi, who was the Secretary of State for the Digital Economy under Macron. He quit it for his own reasons, but when we spoke to him he told us that ‘yeah Macron will indeed try to amend those criteria and we expect the platforms to unleash their lobbyists to do so’. But it is a European question, it’s not a national question, and I hope that the European deputies will fight for the workers because in their own countries the highest jurisdictions said so.
So I really think it will go that way but we have to be very aware of the situation’s evolution. It’s the last chance for the Macron Government, if he can’t do something to amend or suppress those criteria I can’t see how he can preserve the platform model anymore; that’s the strongest point for us in France. We thought the Directive could protect us and change our working conditions once and for all, but we still are at the point of fighting against Macron – which is an old habit for us now – but at the European level.
GEP: To talk a bit about the wider situation in France: you have the presidential election in April: can we expect the French workers to show their power soon and to have an impact on France’s national politics?
EB: It’s a good question! It’s difficult for us to guess the future, especially now because there are a lot of candidates for the Presidential election, especially at the left side, and they are all saying that platform workers should have better working conditions, so we are okay with that. On the Right side, we could have Valérie Pécresse, who is a right-wing candidate, we haven’t heard from her about the platform worker yet, but we know they are very embarrassed when it is time to regulate the gig economy because it’s very practical for them to find a service worker faster and at a cheaper price. So they very much have a class [based] perspective.
I think the main thing about the gig economy is that it goes beyond only the question of couriers and their working conditions, it goes far beyond that. It’s a question about what we want from our society. In France you have strong solidarity in our way of thinking, a lot of public services, a lot of taxes to make those public services to work because they are fundamental. I think that if we let the platform impose their working conditions and if we are deciding to adapt our legal system to those platforms – which are not financially viable yet – we allow our rights to be different according to the worker.
For example, you can be a taxi employee or a cab driver on Uber, but you won’t have the same rights because you have a law – for example the social dialogue law – which will allow platforms to live the social dialogue and escape the transport regulations, in order to escape the social security payments. We call it a new status between independents and employees, and if we let those kind of mixed statuses [exist], it is a danger for our equality actually and our society model based on solidarity. We think it is very dangerous because it will mean at the end that France will be a new American society.
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