The Gig Economy Project speaks to the European Trade Union Confederation’s Secretary Ludovic Voet about the EU Commission’s platform work directive, trade union organising in the gig economy, and whether the present moment is one for a revival of trade unionism in Europe.
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.
TRADE union leaders always have to express confidence and optimism that the workers can win, but listening to Ludovic Voet speak about the platform economy, it sounds genuine.
Voet became confederal secretary of the European Trade Union Confederation (ETUC), which represents 45 million trade unionists from 39 European countries, in 2019 at the age of just 33, previously having been a national youth leader of the Belgian CSC union.
He addressed two conferences on the gig economy in Brussels from 27-29 October which the Gig Economy Project was also in attendance at (see our reports here and here). Both times Voet expressed his belief that the legal battle for labour rights for gig workers had been won in Europe, and that the trade union movement was now making the weather when it comes to the European Commission’s much anticipated platform work directive in December, which – he said – has put digital labour platforms like Uber and Glovo on the back-foot.
Confidence is all well and good but at some point it has to be put to the test. Can the trade union movement really win in Brussels, where platform capitalism significantly outguns the trade unions in their ability to fund expensive lobbying efforts? And even if the ETUC’s demands for the platform work directive are met by the EU Commission, do the 92 ETUC-affiliated unions have it in them to do the hard yards of organising precarious, low-paid platform workers in Europe that would be necessary to transform their working conditions?
The Gig Economy Project met Voet in his ETUC office in Brussels to discuss all this and more:
01:11: Will the EU Commission’s platform work directive be a step forwards or backwards?
05:26: Spain’s Rider’s Law as a case study
09:21: Trade union demands for digital workers’ rights
12:24: Trade union organising and the platform economy
19:06: “Striketober” and the potential for trade union renewal
Gig Economy Project: The ETUC has been very clear about saying what it wants from the European Commission’s directive on platform work: a presumption of employment status, and the burden of proof of employment status to shift from employees to platforms. If the European Commission does not deliver on those things, and if it in fact passes a law that encourages the platforms to continue to defy numerous supreme court rulings across the continent in favour of employment status, what sort of a blow would that be to the idea that there is a ‘social Europe’?
Ludovic Voet: This will be the moment where either we have a directive that protects workers, a directive that is based on building the legal protection of workers, or one that is more focused on potential growth or on internal market elements to provide legal protection for companies.
In the latter case, indeed it can be a danger because platforms could use it to challenge member-states which go in the direction of protecting workers; you can think about Spain which did a law for riders which already provides this presumption of employment relationship for these riders. With a bad directive of course it will be a challenge.
So we hope we will have a directive that is ambitious enough and will protect all those who want to go forward on social rights and that’s why this moment, the directive at the end of the year, will determine a lot on how Europe can deliver on social issues.
GEP: There has been some suggestions that what the European Commission will come up with is a sort of half-way to what the European Parliament’s resolution had supported. So this half-way would be that it includes the element of changing the burden of proof from employees to platforms, but it doesn’t include changing the presumption employment status. If that happened, presumably it would push the legislative ball and the legal ball back into the courts of the national governments. What would you think if that sort of solution was proposed?
LV: The Commission’s idea is that there are four options, but the two most discussed are the presumption of employment relationship, and the second one to ease the burden of proof. Indeed, in that case still workers would have to go to court, and maybe with the reversal of burden of proof we would ask the platforms to prove the situation. But if you don’t start from the starting point that there is in the majority of situations a subordination from the platform to the worker, then this reversal of the burden of proof doesn’t exist.
If it is still up to the workers to go to court, nothing changes from now because the element which is problematic now is not that workers do not win in the courts. The workers win with their trade unions, but then there is no generalisation of the decision. So what would make this option of only easing the burden of proof a game changer? Nothing. If you don’t have a presumption of employment relationship from the start, complemented by this element of reversing the burden of proof – of asking the platform to go in front of a court or an administrative body to challenge the fact that they think they would trigger the rebuttal of the presumption of employment and show that they really only have self-employed with them and only act as an intermediary – without that there will be no change.
GEP: The Rider’s Law in Spain came into force in August and the platforms have responded to it in a variety of ways: Deliveroo left Spain altogether, Glovo has only hired a very small percentage of its workers, the rest are still self-employed, Uber Eats and Just Eat have hired their workers but usually through sub-contracting. Is the example of the Rider’s Law suggest that it could be a danger for the trade union movement to focus on employment status when that might not solve the underlying problem of the fact that these jobs are low-paid and precarious?
LV: I think the Spanish law gives the lessons we need to learn for how to deal with it at European level. There’s two elements there. First, how it came into legislation in Spain is also a good lesson: a lot of court cases won by trade unions and the workers, fines and sanctions of the platforms; that they have to pay for social security, etc. So recognition of the wrong doings of the platforms, but no change. Exactly as I was saying before, no generalisation of the decision.
So then it comes to policy. The government wants to do something, they come and discuss with social partners, and unfortunately with the social partners the trade unions were asking to involve all the platform economy, the employers’ [association] only agreed to do it for the riders. And then you have a law that comes, so this shows that from judicial court rulings to policy-makings how we can get there.
But then there are shortcomings. There are shortcomings because it’s only applying to riders, and then also it’s how you enforce this decision when the law enters into force. So as you said, it’s important to see that [the platforms] are already trying to escape their responsibility by sub-contracting to another company in order to hire these workers, and in some cases they do not apply the law and they continue with self-employment. So this shows we have to anticipate this already for the EU directive and foresee provisions that would ensure how to enforce this legislation.
This leads also to the question of sub-contracting, because if the rule is also that workers are allowed to collectively bargain with the platform, if they have a contract with a sub-contractor company, the company that hires them is not the platform. So you integrate a right to discuss how the algorithm affects the working conditions in the law [as the Rider’s Law has done]; yeah but if they are sub-contracted they have no right to discuss with the platform that hired them because the company that hired them has no interaction with the algorithm. So this would defeat the purpose of having this employment relationship, because the real employer would still not be obliged in that case to respect its obligations.
So I think this is a good case-study that we have to protect, because it gives the right tool from the beginning – presumption of employment relationship, reversal of the burden of proof – but it shows the shortcoming of enforcements and only riders when all the workers in the platform economy have to be protected. So yes it gives a lot of thoughts on how to deal with it at European level.
GEP: Platform workers also face a lot of other issues than just classification. I’ve spoken to Uber drivers who have been incredulous that after working for 10 years, suddenly they are terminated from the app, given no explanation for why, they completely lose their rating that they have built up over all those years. Not just unfair dismissals, problems with facial recognition technology, problems with not understanding the algorithm and why they are getting paid what they are getting paid. Does the trade union movement have a clear set of digital rights demands?
LV: It’s clear that the starting point for workers when they want to improve their working condition is not to ask for the contract. It’s to ask what is related to a contract and the protections that are related to a contract. So for sure the trade union demands are that when platforms have to respect these rules they will also enter into discussions with trade unions to enter collective agreements. In the collective agreements they will have to ensure there is a fair distribution of work, which is not the case now because [based on] your rating you get the job or you don’t, that there’s a protection against discrimination, that there’s a fair distribution of work in terms of the average hour that you are entitled to, that the health & safety issues are also addressed so as to minimise the risk the workers are taking and that it is the employer’s responsibility also to take this into account.
When they will have to be employers, they will have to consider this risk. Now that they are not employers, they do not care about the risks that the workers are taking. So of course the employment status is not exactly everything the workers are asking, but the employment status is guaranteeing that a lot of the things that they are asking are granted and are rights for them. So for example, the question of a minimum hourly wage, this does not exist and this would allow you to be paid during your waiting time, for the moment you are not and you are only paid when you have a ride or a task. This would completely change the game if they are entitled to the rights that workers have.
All the rights that were won with decades of fights by the trade union movement to ensure in the different sectors there are collective bargaining agreements to protect workers and to give them decent working conditions, all these provisions have to also be applied to these workers and benefit from all of what the trade union movement was able to win over the decades.
GEP: How do you think the trade union movement is responding to the challenge of the pandemic and the rise in platform work that we have seen? Some estimates that the number of food delivery couriers has doubled in Europe since the pandemic began. A lot of the struggles we’ve seen since the beginning of when the gig economy really took off about six or seven years ago have been led by workers’ collectives and grassroots affiliated unions, and not ETUC-affiliated traditional unions. Do you think these big traditional unions are starting to respond to the fact that this platform economy is not going away, and that it is in fact growing quickly?
LV: Yes, I’m quite sure our organisations are responding to this phenomenon. The problem from the start is you have workers who are misclassified as self-employed and who are unable to organise and often from vulnerable groups who do not have contact with trade unions from the start. And trade unions also cannot be imposed from the top, it is also a matter of collective organising of those who are working there. The challenge to organise for the workers is really strong because they are not protected against dismissals, so they are not protected if they are doing movements and collective claims, and it was not a sector of the trade union movement that was existing because it was new sectors. It might change because also platforms are coming to existing sectors, so in that case it would challenge the employment status of those who are already in the trade union movement, and then it is maybe easier to approach it as a trade union movement.
But also in the platform economy there are a lot of initiatives within the trade union movement to try to organise them to defend them and to help them concretely with services that employers should give. Having a place to eat when you are not working, having a place to go to the toilet or to rest a little bit before continuing working, these are things that more and more unions are trying to provide to the workers to also enter into communication with them. But it is with the challenge that these workers are also often not occupied on a long term basis with the job, and we know that trade union involvement needs also stability to ensure that you can negotiate with the employers, that you can be protected against dismissal. If the turnover is so important and it is also understandable by the business model, not only by the willingness of the workers, then it is more and more challenging to organise.
But this is more and more happening, I would say in on-location platform work, because it is easier to enter into contact, but then the next move will be how do you tackle organising people who are working online, maybe working online only ten hours a week who do not see a lot of problem with the situation because they are already protected by another job. So that also is often a problem, if you have a micro-task online to translate for a platform but you are already in employment in another sector, your social protection coverage is already there so you don’t see the problem of being exploited and not having rights to organise, not having rights to social protection on these tasks. So this is an additional challenge, but this is a challenge the trade union movement will have to face because if not the work will be more unequal than before.
GEP: You talked about platformisation moving into other sectors, more traditional sectors. Does the ETUC have a clear idea in mind of where platform capitalism is going and what sectors it’s going to, and how you might have to respond to that as a trade union movement?
LV: I think capitalism has a clear view of where they want to expand platforms, and so we know already where they can go. I take the example of just after the vote of Prop-22 in California was done, just after the referendum, there was an op-ed by an Uber investor to say how important it was to envisage that in a lot of sectors they could expand this through sub-contracting and independent self-employed. They say it can go to agriculture, zoo-keeping, care work, it can go to nursing, to restaurant work, to IT, to data; they already know they can do this.
But we also know that a lot of the sectors where we have difficulty to organise people, for example if you look at all the people active in temporary work, the temporary agency is easily transformable into a platform. We have cases in the Netherlands where our union has won against ‘Helpling’ and ‘Tempers’, which are two platforms which are temporary agencies but which are not respecting the obligations of temporary agencies. So all the work that is easy to transform into platform work is all the work that is on-call, that you need the worker from one day to another and you just don’t want to have a contract to pay the waiting time. In the construction sector, in the agricultural sector, also in the [manufacturing] industry this is possible to conceive.
Also, because we are putting so much money from the recovery plans [‘Next Gen EU’] into digitalisation. This means that with the digitalisation of all the economy companies will be able to see how they can best organise to make more profit, so we know where it can go and we have to anticipate this and react strongly as the trade union movement.
GEP: This month has been dubbed ‘Striketober’ in the United States because there has been lots of strikes in lots of different industry sectors, including the platform economy with Instacart workers. We’ve also seen in the UK masses of workers leaving their jobs, some signs on the continent that is happening too. Is this a moment for the revival of the trade union movement, the pressures workers are facing in terms of inflation, people having a different perspective on work after the pandemic thinking ‘do I need to put up with this type of boss, this type of stress anymore’. Do you see it as a moment for renewal and could it be a moment for a European General Strike?
LV: I think the situation we are in, if you link what you present also with the covid-19 pandemic and the fact that people lost their job etc, it shows different things.
There is more and more the pressure to deliver on having minimum wage everywhere because there are a lot of workers working on the poverty line. Also with the energy price crisis, this is something that becomes more and more urgent.
It’s also a moment for quality job creation and taking into account also the opportunities of the green transition to deliver with good working conditions, while doing a fair transition for the workers that have to change from oil will be key.
Then for all those who are unemployed at the moment because of the pandemic or are in an unstable situation, including precarious workers, are also those who are often easy to attract to the platform economy. Because if you have lost your job there is a possibility to have an income rapidly, there is no entry cost in the platform because you just have to log-on.
So these are mega-trends that we have to take into account and have concrete answers: minimum wage, quality jobs and creation of jobs so that we ensure that there is a future of European workers that is not underpaid jobs, or the destruction of jobs due to the green transition, which is a danger that if it is not dealt with properly will happen. And [the danger] to leave a generation behind, a generation that have a precarious job or are already unemployed and can go in the new economy which is completely destroying social rights. So I would say this is the conjunction we have in front of us from which we need some responses.
GEP: We’re here in Brussels and you have addressed four conferences on the platform economy this week, and heard from workers all over the world. What has been your main take away from that and something that maybe you will take into your work with the ETUC?
LV: I think that from this week I take a lot of faith that it is possible to put the pressure necessary to deliver a good [EU Commission] directive. It’s not that the battle is won, but we have seen a lot of workers who are organising and a lot of trade union initiative to work, to go to court and to win against these platforms.
As I said in one of the conferences, the battle of ideas has been won on the topic so we know where is the problem, the platforms are in the uncomfortable situation, we are in the offensive one. This was not the case a few years ago where the narrative was ‘let the platform economy grow, there are a lot of economic opportunities, and we have to adapt to the new world of work’. We cannot hear this anymore and that is a good thing.
Of course platforms will continue to lobby against any directive, and if a directive comes they will do their best to evade every responsibility we will put on them. But I have a feeling that all the efforts that are put by a lot of organisers of workers at European level and of trade unions all over Europe are giving results, so I hope it will be transformed into a political victory.
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