Is the Glass Full or Still Half Empty?

by Valeria Pulignano, KU Leuven

On December 9, 2021, the European Commission issued a new proposal for a directive on improving the conditions of platform workers by focusing on three main concerns: misclassification of the employment status; fairness, transparency, and accountability in algorithmic management; and enforcement of the applicable rules.

Article two of the directive specifies that it will apply to all forms of digitally-mediated work ‘irrespective of whether that work is performed online (e.g. on Upwork) or offline (e.g. Deliveroo or Uber) in a certain location’. The ambition of the directive is to close one of the most important loopholes in the employment status by providing universal workers’ rights, while, however, potentially watering down the idea of ‘freedom’ and ‘flexibility’, particularly regarding self-employed as someone who can freely decide ‘when’ to work.

Examples of national laws and court decisions across Europe that have addressed similar issues are, for instance, the July 2021 Riders Law in Spain, which requires food-delivery platforms to inform workers’ legal representatives about the mathematical or algorithmic formula determining their working conditions. Another example is the February 2021 UK Supreme Court decision ruling that Uber drivers must be treated as workers rather than self-employed. As a consequence, thousands of Uber drivers are now entitled to minimum wage and holiday pay in the UK.

However, a key problem in online platform work is recognizing freelancers’ power to decide prices vis-à-vis clients. Although the directive specifies that it will apply to all forms of work on a digitally mediated platform, it cuts short on the protection of collective bargaining rights for all. Does protection for on-location platform workers, for example, equals protection for freelancers in the platform economy? Research we have undertaken within the scope of the ERC ResPeTMe project indicates that this is often not the case.

We found that, conversely to on-location platform-based workers , freelancers want to be independent and not depend on crowd-work platforms like Upwork, for example, where you pay to be able to work. Moreover, freelancers (in particular, translators and graphic designers) face the problem of building ‘reputation’ as the way to access work. Some platforms do not allow these professionals to carry/transfer the ‘reputation’ they build from one platform to the other, and more extensively, from online to ‘offline’ labour market. If freelancers want to move to another online platform, they often have to start from scratch.

In this economy, therefore, freelancers are not able to be free to move as they like unless facing the financial and social consequences of their choice. There is also another concern, which is that there is time-based unpaid work that riders, care workers, and freelancers experience when providing their services using platforms. Time-based unpaid labour on platforms can take different forms, such as waiting time between orders and long unpaid breaks for riders, as well as time for job searching for both care workers and freelancers.

Although the directive recognizes the importance of employment status and data transparency as key issues to tackle in improving the work and living conditions of platform workers, it does not tackle directly the issue of working time which can be an important source of unpaid labour for platform workers. Moreover, it is not clear which aspects of data transparency are needed in order to mitigate power imbalances in platforms between clients and workers. When there are payment systems based on gigs, for example, the problem of unpaid work can often be exacerbated in comparison to platforms that apply earnings per hour. In addition, and this is particularly the case in food-delivery platforms, workers can be either hired as employees by the platform or through temporary agencies. In both cases, our empirical evidence shows that hours and shifts still cannot be guaranteed because the workers do not know how much and when they will work. They are active but, for example, their breaks are not paid for.

Hence, it is crucial to complement debates on the employment status with those on workers’ discretion and autonomy over their own pay and working conditions when defining the collective rights for workers providing their services within the platform economy. It is about enacting ‘power over’ as the way to express the voice of workers. On the other hand, and directly linked to this, it is also desirable that the recognition of employment status is followed by concrete protections regarding the condition at work through the use of collective bargaining structures and encompassing collective agreements at sectoral (and industry) level as the way to avoid the fragmentation of the work and the 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.