T2-07: Legal aspects of digital work

A challenge for the Nordic model, the social partners and the legislation

Annamaria Westregård, Department of Business Law, Lund University

» Full paper: ilera-2019-paper-110-Westregard.pdf

Workers in the new digitalized economy, crowdworkers, often find themselves outside the existing labour contracts, collective agreements and not covered by the existing legislation. Whether the crowdworker is regarded as employee or self-employed in the European binary system depends very much on the business model of the platform. In EU Law there is no single definition of ‘worker‘ as it varies according to the area in which it is to be applied such as right to workers, the social fields or the freedom of movement for workers etc. To this comes that the Member States decides themselves who is to be considered a worker in their national law. The definition of the crowdworker as a worker or self-employed is important as it gives the scope for legislation and collective agreements.

The protection for the employees in legislation and collective agreements where designed for   permanent employees with regular, full-time work and for temporary employees, with irregular working times and incomes, and those with more than one employer and the `false self-employed´, different problems arise. Therefore, several new and precarious forms of work in the digitalized economy remain in the grey zone. They have problems entering the protection in legislation and collective agreements, insurances and the calculation of benefits that could be in disadvantage for crowdworkers.

By tradition social partners enjoy a strong legal status in the Nordic model and the collective agreements is often the most important regulative instrument for working conditions, and only the collective agreements contain e.g. minimum salary and important supplementary social security regulations.  The unions are interested in organizing crowdworkers – both employees and self-employed - and do so already. They also want to regulate the conditions in collective agreements, but if the collective agreements are extended to self-employed and regulate conditions for them, it can easily create a conflict with the competition regulations and Article 101 on the Treaty on the Functioning of the European Union (see FNV Kunsten Informatie in Media, C-413/13 Judgment EU:C:2014:2411). This legal conflict is not yet solved for in the legislation.

A new business model that has been rapidly adopted in Sweden, keeping pace with the rise of the collaborative economy, is a variant of the umbrella company where the platforms use umbrella companies as middlemen. These umbrella companies have a special structure. The performing party bids for work and, if successful, arranges both the work and the remuneration with the client. The performing party then makes sure the client has signed a contract with the umbrella company. The client is invoiced by the umbrella company, which in turn employs the performing party for the duration of the assignment. Once the client has paid the umbrella company, the performing party is credited, after deductions for tax, social security contributions, and the umbrella company’s commission. The parties rarely meet in real life, with all contact between them conducted electronically. One might indeed say that the performing party hires its own employer. This is a completely new construction and both the legislator and the social parties have difficulties to handle this structure.

In this paper I will analyze, from the perspective of the Nordic model, the problems arising for social partners as they seek to regulate conditions for crowdworkers subject to a collective agreement, as well as from the emergence of fundamentally new types of employers. I will also analyse the Swedish experience of the legislative amendments in labour law and social security, created to improve conditions for those with precarious work in the digitalized economy.

An analysis of policy actors‘ ideas and strategies in the gig economy

Alessio Bertolini, University of Glasgow

» Full paper: ilera-2019-paper-96-Bertolini.pdf

The project developed in this paper is part of the broader ERC- funded research project ‘Work on Demand: Contracting for Work in a Changing Economy’ headed by Professor Ruth Dukes at the University of Glasgow. The umbrella project explores the current viability of systems of labour law in the face of an increased use of casual contracts, work on demand and ‘gig’ jobs in contemporary labour markets.

Although there is an emerging academic literature on gig economy work and on proposals for its regulation, scholars have hitherto paid very little attention to how policy makers and stakeholders conceive and think of gig economy work, also in relation to other forms of casual employment, and which policy solutions they are introducing, selecting and discussing and why.

The project explained in this paper explores different policy makers’ and stakeholders’ ideas as regards gig economy work and its regulation in a comparative perspective. It addresses the question whether and how these ideas can be related to the actors’ interests, cognitive frames and their embeddedness in the employment-related institutional framework of the countries considered. The paper uses the economic sociology of law (Dukes, 2018) as a theoretical framework in the conviction that only by considering the complex interaction between economic, social and political factors are we able to fully understand how labour law operates in practice.

The paper focuses on two countries, the UK and Italy, with very different employment relations systems and labour law traditions. While the UK can be regarded as a prime example of a liberal market economy, with a deregulated labour market and a fragmented system of industrial relations , Italy can be considered an example of a coordinated market economy with a highly regulated labour market, albeit only for certain categories of workers (Eichhorst and Marx, 2010; Checchi and Leonardi, 2016). In both countries, the gig economy is a relatively new phenomenon and the regulation of gig economy work is still very much ‘in the making’, with several debates among policy stakeholders’ on gig economy work and how to regulate it.

Using document analysis and semi-structured interviews, this paper explores how these actors perceive and think about gig economy work also in relation to the broader phenomenon of casualization of employment, that is their ideas in terms of problem definition (Mehta, 2010). At the same time, it investigates the actors’ ideas about past, present and future labour law and whether and how it is perceived as inadequate and, if that is the case, their strategies for reform (ideas in terms of policy solution, ibidem). Finally, it analyses whether and how the problem definitions and policy solutions provided by different actors can be related to the broader employment-related institutional framework of the two countries.

Do they have the right to form and to join trade unions

Siyami Alp Limoncuoglu, Izmir University of Economics
Gonca Yilmaz

The development of technology and the emergence of digital platforms has led to new forms of work organisation and task distribution. Digital platforms emerged by the combination of decentralized information networks, big data analytics and mobile digital devices. As a result of this, there has been a rise in non-standard forms of employment and work globally. A new type of employment is expressed as “platform work”.

According to Eurofound, “platform work” is an employment form in which organisations or individuals use an online platform to access other organisations or individuals to solve specific problems or to provide specific services in exchange for payment. The individuals who provide services through online platforms are called “platform workers”.

Although they are called “platform workers”, a strong legal argument has already risen on identifying whether the relationship between these people and the online platforms fits into the definition of the labour contract or not.

One of the most important court decisions about platform workers came from England. A U.K. employment tribunal judge ruled that Uber drivers should be classified as formal workers and not self-employed. As the decision was appealed, there was no final decision on the case yet. The Fair Work Commission (FWC) in Australia has determined (Klooger v Foodora Australia Pty Ltd [2018] FWC 6836, 16 November 2018) that a rider who works in one of these online platforms is an employee. In Italy, on the contrary, a recent ruling has found that platform workers are not employees (Tribunale di Milano, 10 settembre 2018, n. 1853.).

The concept of platform work and workers are not well known in Turkey. The subject is not debated in academic literature nor in case law. For this reason, the workers of these platforms does not have knowledge on their legal status and the rights arising from their relation with online platforms.

These arguments and contradictory rulings pose a challenge in industrial relations as well. Since the membership to the trade unions is only open to “employees”, the growing number of “platform workers” are faced with a big risk of not being able to protect their rights arising from employment via collective solidarity. The trade unions, on the other hand, have a potential to increase their members - if and only these people are accepted as employees - and to keep their place as a key role player in this new “gig-economy”.

The purpose of this work is to study whether the platform workers are employees who work under labour contracts or not and whether they are able to enjoy the freedom and the right to form and join trade unions.