Improving Working Conditions and Facilitating the Access to Collective Representation in Platform Work

By Klaus Heeger, CESI — European Confederation of Independent Trade Unions

The platform economy is here to stay. In large parts of the world, the absence of targeted legislation in combination with a too common rule-avoiding behavior of many leading platforms operating in the so-called ‘gig economy’ have created unprecedented precarious employment conditions for numerous workers who offer their services through these platforms. Difficulties in controlling working time, high risks of accidents, stress due to excessive inter-worker competition, financial insecurities in the absence of continued pay, and fear of dismissal without any unemployment benefits constitute the ‘new normal’ for a growing number of workers which are essentially dependent on the platforms for work and income.

Under these circumstances, the European Commission launched this year a social partner consultation on possible EU measures to improve employment in the platform economy. Committed to the promotion of decent working conditions for all workers, the European Confederation of Independent Trade Unions (CESI)* participated in the consultation to assess the Commission’s ambitions and communicate its priorities on a possible EU initiative in the area of platform work.

Evaluating the proposed policy interventions proposed by the European Commission to address existing challenges for better employment and working conditions in the platform economy, the following priorities can be identified as the road ahead:

Α. Employment status

It is essential to recognise that the contractual relationship with the platform worker lies at the core of precarious versus decent work in the platform economy. As many social security entitlements and fundamental working rights are linked to an employment status, and since the distinction between employment and self-employment is increasingly blurred, it is important to cover as many platform workers as possible with core social and labour rights. On the one hand the employment status should be recognised for as many platform workers as possible, giving them full access to existing labour law and social security schemes. On the other hand, it is about establishing at least certain minimum standards even for those not classified as employees.

B. Working conditions

The widespread lack of minimum wage or minimum income schemes further increases the precariousness of work in the platform economy. Because of its task-based nature, platform labour often consists of very short tasks (sometimes as short as one click), each of which can be extremely low-paid. In the absence of any minimum pay standards (e.g. in the form of minimum fees per task, or minimum working time) platform workers struggle to accomplish microtasks with very little economic value; the total benefit derived from the performed tasks is minimal. Ideally, they should hence be covered by either a minimum wage or a minimum income scheme.

The particular risks of on-location platform work and online platform work regarding health and safety should be carefully identified because risks vary significantly based on the kind of platform. Of particular importance in this regard are serious psycho-social risks including technostress, isolation, technology addiction and cyber-bullying. Importantly, also, in the recent consultation the European Commission correctly identified the implications of platform work on gender equality, but overlooked problems of age discrimination which may be very prominent too. The required digital skills, as well as the precarious conditions of platform labour (and particularly the need to compete for tasks and the rapid pace of work) exclude many older people that are no digital natives from this market.

C. Social protection

The precarious nature of platform work mandates effective measures for the adequate, affordable, and effective protection of the involved persons. The principles established in the Council recommendation on access to social protection of 2019 should be guiding social protection in the platform economy too.

D. Challenges related to algorithmic management

Special attention should be paid to information asymmetries and data privacy. More precisely, legislators should address risks that platform workers face in the digital environment in which they operate and in this context focus particularly on (1) the collection and processing of sensitive information, (2) profiling of workers, (3) information sharing to third parties and the provision of personal data that has economic value, as well as (4) matters related to the portability of data (the ability of workers to transfer data to another platform) and data deletion (the so-called ‘right to be forgotten’), and (5) invasive and deceptive practices such as de-anonymisation (re-identification of private encrypted information), spamming (unwelcome messages), stalking (systematic surveillance), malware attacks, and scams.

E. Cross-border aspects

Especially online platform work is often subject to high competition among workers from different countries with different labour standards. This fact challenges national and EU standards in as much as the EU workforce would compete with workers from non-EU countries with lower income and labour standards. Especially, as regards the outsourcing to third countries, the EU should seek agreements at international level to ensure a level playing field for EU-based workers.

F. Skills, training and professional development of people working through platforms

The routine-biased technological change (RBTC) that accompanies the expansion of the platform economy and the task-based nature of platform work enhance job polarisation by increasing the demand for highly qualified workers with advanced digital competencies against less-skilled workers that become more and more ‘disposable’. These discrepancies can be reduced only by the implementation of systems that guarantee equal access of platform workers to training.

G. Collective representation and bargaining

The limitations of article 101(1) Treaty on the Functioning of the European Union (TFEU) for self-employed persons constitute an important obstacle to the collective representation of platform workers. In view of this, two critical aspects should be considered. The first is the need to provide self-employed platform workers with collective bargaining rights and the right of association (and, by extension, representation through unions) which would help them avoid being excessively sold out by market powers, and the second is the classification of as many platform workers as possible as employees which would in this way automatically receive the right to collective bargaining.

These approaches would facilitate the collective representation of labour in the platform economy and help mitigate another challenge that needs to be addressed, namely the low degree of participation of platform workers in trade unions.

As regards the first target which focuses on the recognition of collective rights to the self-employed platform workers, a current general prohibition of collective bargaining via trade unions on the grounds that there may be cartel-forming through joint wage negotiations is not in line with the spirit and the purpose of EU competition law. Justifying the prohibition of collective bargaining by reference to the need to maintain the integrity of the single market (article 101 TFEU) is a misplaced contextualization of EU law, especially when it is applied to vulnerable and precarious self-employed persons (these often working as solo self-employed and having only few or a single customer).

This misplaced contextualization is all the truer when considering that collective bargaining only affects the wage of the service provider and thus only a limited part of the total cost of a service provision, which is in fact determined by many further elements. Here, the establishment and preservation of collective ‘wage’-bargaining powers are legitimate to guarantee a general balance of powers and interests between all actors involved, namely the service provider, the service taker, and the platform, and to avoid that those concerned are excessively sold out by market powers and forced to provide work for indecently low wage levels. It is therefore of major importance to allow and strengthen the collective labour rights especially of the precarious and vulnerable self-employed platform workers.

An extension of the right to collective bargaining especially to the precarious and the vulnerable self-employed platform workers would thus be desirable. Such a right to collective bargaining must however be embedded in a four-tier approach which gives the concerned self-employed (1) the right to join trade unions, (2) the right to collective bargaining, (3) the right to become a part of collective agreements, and thus (4) also the right to take industrial action.

A preferred policy option would include making EU competition law compatible with collective bargaining at least for all solo self-employed providing their own labor through digital platforms with the exception of regulated (and liberal) professions. This should be implemented by a clear Council regulation and be coupled to a clear-cut definition and a positive list of regulated liberal professions which may operate in the platform economy but are in fact not facing precarious employment as a result of their self-employment.

Importantly, this measure should not aim to alleviate challenges for the bogus self-employed platform workers, which by definition work in exploitative and precarious conditions. Bogus self-employed platform workers are denied regular employee contracts because employers want to avoid higher social ‘costs’. Supporting the right of collective bargaining for the bogus self-employed would mean treating symptoms, not tackling roots. Bogus self-employed are, as the term reveals, false self-employed and de facto employees. What is necessary here is to ensure that they are considered as regular employees with all consequences (access to regular individual and collective labour law and rights and social security schemes), thus eliminating bogus self-employment in the first place. Clear legal frameworks are required and (well-staffed and resourced) labour inspectorates need to be put in place to control their application and issue (deterring) sanctions for violations.

These thoughts lead to a second target, which is the establishment of criteria that will reduce misclassifications in the employment status of platform workers. In order to facilitate the access to collective representation in cases when a prohibition of collective bargaining for the self-employed applies, an inclusive approach that would lead to the recognition of the employment status for as many platform workers as possible would be highly desirable. The EU should lay down concrete criteria or indicators that will assist in the clarification of the employment status of people working through platforms. Of course, the aim is not only to guarantee a fair and objective classification procedure, but also offer the protection of an employment status to the majority of the workforce involved, something which would require the application of a possibly uniform wide interpretation of the notion of a worker in line with established case law of the European Court of Justice.

Such an EU initiative could be based on a rebuttable legal presumption that assumes that if platform work involves the provision of services, then the person providing the services is a regular employee. This would apply to all platforms offering a consistent working framework — potentially however excluding platforms that merely consist in creating the link between the two parties. Should the platform claim that the person in question is self-employed, then this will have to be proved with sufficient evidence based on pre-defined binding and objective criteria, including whether the platform starts and ends the employment relation, if it provides work and pay and receives the fruits of the provided work, and if it has general considerable ‘organizational power’ for the delivery of the service and the extent of the managerial prerogatives.

• The European Confederation of Independent Trade Unions (CESI) is a confederation of over 40 national and European trade union organisations from over 20 European countries, with a total of more than 5 million individual members. Founded in 1990, CESI advocates improved employment conditions for workers in Europe and a strong social dimension in the EU. CESI represents public and private sector workers.

The opinions and views expressed in this publication are those of the authors. They do not purport to reflect the opinions or views of Reshaping Work.