Towards collective protections for crowdworkers

Abstract

German

French

The ‘sharing economy’ and the collaborative economy are shaping new forms of employment in which digital platforms enable multilateral work relationships. This article discusses some initiatives aimed at the collective protection of crowdworkers. The first section investigates whether it is possible to extend EU labour protection – in particular, collective rights – to independent digital contractors. The second section looks at whether the national level may offer more effective measures for economically dependent digital workers or for distance workers, by comparing three selected countries: Italy, France and Spain. The article then explores the possibility of extending to crowdworkers the protections offered by collective bargaining and addresses how trade unions could have a role in implementing guarantees for crowdworkers. Comparative analysis is used to show how different constitutional systems recognise freedom of association, especially in relation to ‘subordinated’ workers. A strategy of viewing collective rights as human rights could be applied in order to reduce the contractual weakness of self-employed workers on digital platforms – and might even form the basis of a bill of rights.

Keywords

Crowdworking collaborative economy digital platforms employment protection collective bargaining collective rights economic freedom EU labour law

Introduction

This article discusses how the rights of crowdworkers can be protected, looking at the combination of legislation and collective bargaining and how this fits into the EU competition framework. The research aims to ascertain whether national or European labour regulation could be applied to platform workers.

As concerns the European level, the article analyses the definition of a ‘worker’ on the basis of rulings by the Court of Justice of the European Union (CJEU) and examines the possibility of including crowdworkers within the scope of European labour law.

Given the limited application of European regulations beyond the scope of ‘subordination’, it seems appropriate to investigate the national level and, in particular, whether it would be possible to extend some or all of the collective agreement guarantees currently afforded to employees – and whether these are sufficiently responsive to the needs of a platform worker. The research also considers regulatory provisions for other emerging forms of employment with similar features, such as the employment of economically dependent workers or distance workers.

In seeking reliable comparisons, it seems particularly appropriate to consider three European countries with similar socio-demographic workforce profiles and analogous normative systems: Italy, Spain and France.

A comparison of EU countries that have other social and economic characteristics and different labour market structures could yield other results. In Nordic countries with high union density, for instance, crowdworker protection could easily be achieved through collective bargaining or through self-regulation implemented by the platforms themselves under pressure from unions (Däubler, 2016: 499–501).

Crowdworkers: who are they?

Working as part of a ‘crowd’ via a ‘digital’ platform is an instance of major change resulting from the digitalisation of the economy. The spread of working through online platforms has the potential to increase the transparency of the labour market, the traceability of payments and the taxation of income, actively contributing to formalising certain sectors of the economy. At the same time, digitalisation may cause an epoch-defining migration of work – in the broadest sense – from the formal to the informal economy (Bronzini, 2016: 92 and, contra, Huws, 2016),¹ since crowdworking lacks heteronomous regulation and functions on the basis of terms and conditions set by the platform used.

‘Crowd employment’ can cover all forms of ‘paid work organised through online labour exchanges’ (EU-OSHA, 2015: 1) in which the platform selects, organises, evaluates and remunerates workers (according to De Stefano, 2016: 2, as far as both ‘crowdwork’ and ‘work-on-demand via apps’ are concerned; see Valenduc and Vendramin, 2016: 33; Drahokoupil and Fabo, 2016), matching labour supply to demand. Within this broad classification, further distinctions relate to the professional status of service providers, whether they are self-employed or employed, whether their workplace is online or offline and whether the client is a private individual or a business (EU-OSHA, 2015: 1).

Since there is certainly confusion about the various activities labelled as ‘crowdworking’, it is worthwhile examining the characteristics of this new form of employment (Eurofound, 2015). For example, a recent Communication of the European Commission (European Commission, 2016a: 5–7; European Commission, 2016b: 22–24) deals with problems related to the work of ‘collaborative platforms’ which provide ‘services normally…for remuneration, at a distance, by electronic means and at the individual request of a recipient of services’ (and these problems are in addition to the tax and market regulation issues they raise).

To establish a clear distribution of obligations and responsibilities, it is crucial to distinguish between the various contractual relationships behind each platform’s business model. To grasp the opportunities created by digitalisation while averting the risk of ‘reification of human labour’ (Tullini, 2015: 13), we need to define the work carried out via these platforms, avoiding the use of definitions such as ‘e-commerce’² and separating it from the contiguous phenomenon of ‘the sharing economy’ (Botsman, 2015).

From a labour law perspective, the main problem lies in classifying the relationship between the client and the platform.

Work done via digital platforms is covered by a blend of different legal models: employment/self-employment, procurement, labour market intermediation. Platforms may be regarded as ‘temporary work agencies, labour exchanges, social enterprises, service providers (…), advertising platforms or just online directories’ (EU-OSHA, 2015: 4). Sometimes, intermediation is the sole function, in other cases the prevalent one (Donini, 2015: 433–458). ‘Services provided tend to be intermediation services but can also be ancillary services, e.g. facilitation of payments’ ( European Commission, 2016b: 13), accompanied by other activities, such as organisation or procurement of equipment.

Especially in the case of low-skilled digital work,³ the platform may play a larger role in the organisation and integration of labour: it defines and directs the work by means of Tayloristic hetero-direction (‘…is akin…to a certain form of digital Taylorism’, see Degryse, 2016: 36; see also Scholz, 2013; Cherry, 2016: 594–602). Online work ‘is widely exchanged across borders in a similar way to merchandise trade’ (European Commission, 2016b: 23), and this may lead to an employer-employee relationship (for a case study, see Aloisi, 2016).

In some cases, work activities are assigned to providers operating with a certain amount of independence, in both virtual services (Upwork and Freelancers platforms) and locally provided real-world services (TaskRabbit platform). Even where the worker can be considered independent, the platform often retains a considerable role in organising and controlling the work.

According to the European Commission’s Communication, platforms are invariably providers of ‘information society services’ as defined in the eCommerce Directive,⁴ while also sometimes directly providing ‘underlying services’ (European Commission, 2016a: 5–7) such as transport and other offline services. The supplier of the service is the platform rather than the worker, and, for this reason, workers who provide their activities ‘for’ the digital organisation,⁵ irrespective of their self-employed or employee status, need legal protection in relation to the platform.

Crowdworkers and their employment relationship: the application of European labour law

In trying to identify the most appropriate regulatory framework, it is worth considering whether or not crowdworkers are covered by EU legislation.

The only concept of ‘workers’⁶ available at EU level is the one laid down by the CJEU with regard to freedom of movement under Article 45 TFEU. The definition is based on the actual characteristics of the services rendered personally, on the control exercised by the receiver of the service and on the nature of the payment agreement.⁷

For a long time, the CJEU focused its attention not so much on distinguishing between self-employed and employed workers, but on whether the services performed were genuine and effective. Freedom of movement (and rights conferred by it) were extended to ‘on-call workers’⁸ and to workers in certain types of training.⁹ This distinction excluded citizens performing marginal or ancillary services of no economic significance, in the aim of limiting the movement of economically inactive citizens and safeguarding Member States’ social security systems.

The judgment in FNV Kunsten Informatie en Media¹⁰ reaffirmed this concept, clarifying that a worker falling within the scope of EU law is someone who cannot choose his work schedule, place and content, does not participate in business risk and is integrated into the enterprise, forming an economic unit with it (paragraph 36). Similarly, under the judgment in Haralambidis,¹¹ the European definition of ‘worker’ ‘excludes organisational independence for the worker, implying, on the contrary, that the worker cannot offer services directly on the market or to other potential clients’ (Ichino, 2015: 575). This ‘negative’ definition of workers was created in order to exempt a collective agreement which sets minimum fees for self-employed service providers from competition rules (Article 101 TFEU: Rules on competition applying to undertakings), because they are ‘service providers in a situation comparable to that of employees’¹² (see also the opinions of the European Economic and Social Committee in EESC, 2010, 2013).

When recent trends in CJEU judgments are taken into account, the EU concept of a worker seems sufficiently wide as to include digital platform workers where they perform activities that require remuneration, have economic value and character and are not marginal or ancillary. This is the case with a digital platform that does not give the worker the responsibility of determining independently how the service will be performed because ‘that person…forms an integral part of the employer’s undertaking, so forming an economic unit with that undertaking’.¹³

According to the European Commission, the criterion for the existence of a subordination link¹⁴ can be viewed as met when the digital platform not only acts as a network bringing workers and enterprises together and providing underlying services (payment services, for example) but also determines the choice of activities to be performed, the remuneration and the working conditions (European Commission, 2016a: 11–12).

Workers covered by the European Union’s concept of ‘subordination’, which is closely tied to the non-occasional performance of economically significant work, are offered a minimum set of rights based on EU citizens’ freedom of movement and connected with access to social security systems. This set of rights is broader than the one afforded to citizens tout court and ‘tends to influence, in particular, equal treatment and health and safety’ (Giubboni, 2009: 42).¹⁵

The CJEU has also held that the EU definition of a ‘worker’ is to be used in determining the scope of certain directives,¹⁶ but that, in most cases, the definition of which workers are subject to EU provisions is to be left to the interpretation of national legislators.

Health and safety

Although most supranational legislation in this field is aimed at protecting the safety of employees, there are numerous examples of provisions aimed at improving health and safety for self-employed workers and for any kind of work which takes place within the context of organised economic activity.

Unlike Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (the Occupational Safety and Health Framework Directive), which is consistent with the European concept of ‘worker’ as established by the CJEU in relation to freedom of movement, Directive 92/57/EEC of 24 June 1992 on the implementation of minimum safety and health requirements at temporary or mobile construction sites requires that certain regulations concerning work equipment and protective devices are applied to the self-employed. Provisions of this kind were extended by Directive 2002/15, which focuses specifically on road transport drivers, even self-employed ones. More recently, they have also been implemented in regard to EU strategies on workplace health and safety (European Commission, 2007).

Since the trend towards extending health and safety measures to autonomous work is justified by the nature of the asset to be protected¹⁷ or by the risks found in specific sectors of activity (Council of the European Union, 2003), there is no reason to exclude the possibility of extending legal guarantees designed to safeguard fundamental rights (see the Charter of Fundamental Rights of the European Union, Article 3, Right to the integrity of the person, and Article 31, Fair and just working conditions) to crowdworkers.

In the light of the recent considerations put forward by the European Agency for Safety and Health at Work (EU-OSHA) (EU-OSHA, 2015: 4–6), it is evident that legislation covering work on digital platforms needs to be enacted without delay, not only to avoid competitive advantages to the detriment of companies which observe economic and legislative obligations laid down in regard to employees, but also to prevent the infringement of inviolable human rights.

It is also possible to argue this position on the basis of the principles stated in the Charter of Fundamental Rights of the European Union, in particular the articles that recognise health (Article 35) and workplace safety (Article 31) as fundamental assets, as well as Article 53, which prohibits restrictive interpretations of human rights and of fundamental freedoms.

Collective rights

CJEU rulings leave room for the possible exemption of digital workers from anti-competition regulations and, consequently, for specific collective negotiations on their behalf.

The CJEU’s position¹⁸ demonstrates that restrictions on competition can legitimately be pursued if they are justified by ‘imperative reasons relating to the public interest’ and are compatible with EU law and if they do not disproportionately limit economic freedom. In addition to the grounds explicitly mentioned in Article 36 of the Treaty on the Functioning of the European Union (public order, safety, safeguarding health, safeguarding the environment), the concept of ‘reasons of public interest’ also covers collective social rights, since these are fundamental rights resulting from the constitutional traditions shared by the Member States and are thus protected by Article 6(3) of the Treaty on the European Union (TEU).¹⁹

Article 6(1) TEU endows the Charter of Fundamental Rights of the European Union with the same legal value as the Treaties (Caruso, 2010; Caruso and Alaimo, 2010): in so doing, it both recognises the primary value of the right to collective bargaining and action (as set out by Article 28 of the Charter) and endorses the principle of the greatest possible extension of fundamental rights (Article 53).

These provisions could constitute a legal basis for extending the area in which collective rights operate to cover all cases where non-salaried services are provided in situations of contractual weakness – for instance, in the case of an employing platform which, by imposing contractual conditions unilaterally, is in a position to impair the crowdworker’s self-determination.

The idea of extending collective rights to economically dependent workers also seems to be supported by the most recent rulings of the European Court of Human Rights (ECtHR). The ECtHR is increasingly tending to include both social and trade union rights under its jurisdiction, drawing them both into the human rights perspective (Merino, 2007: 463–492; Zagrebelsky, 2006: 297–311). Starting from the premise of the indivisibility of human rights, the Court has gradually come to consider workers’ rights and trade union rights as intrinsic human rights (Bronzini, 2009: 975–983; Marguénaud and Mouly, 2009: 739–742; Bruun and Lörcher, 2012: 397–400).

Although the ECtHR’s understanding of the right of association derives originally from an individualistic standpoint, it has relied on Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) as the legal basis for international protection of the right to negotiate and to take collective action (Novitz, 2010: 409–439; on Article 11 ECHR, see Ridola, 2001: 350–368). In UNISON v. the United Kingdom and Federation of Offshore Workers’ Trade Unions and Others v. Norway,²⁰ the right to engage in collective bargaining and the right to strike were held to be subject only to the limits expressed in Article 11(2) ECHR, i.e. those measures necessary to guarantee ‘national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others’. In Demir and Baykara v. Turkey, the ECtHR asserted the indissoluble nexus between freedom of association and collective bargaining: thus, it implemented a synergistic reading of international and European sources of law, seeing them as integrated interpretative parameters²¹ (Bücker et al., 2011: 315–360; Dorssemont et al., 2014; Ewing and Hendy, 2010: 48).

If the trend towards viewing collective social rights as a part of human rights were to be consolidated, it would open the way for the further extension of collective rights to independent workers whose position is weak, since there would be no justification to prevent access to a human right solely on the basis of employment status (Aloisi, 2016; De Stefano, 2015: 25).

Collective protection for digital workers: a comparative analysis

The regulatory landscape of digital platforms is sketchy: contributions to the discussion are mostly descriptive, aiming simply to bring the issue to the attention of national and European decision-makers. If we are to find more effective measures to support economically dependent digital workers, we need to focus on the national level.

It is worth considering the possibility that legislation and collective bargaining may be combining to set rules in this sector. The earliest legislative proposals have focused on sharing economy platforms,²² and the issue of employment has hardly come to the fore in this sector as yet (see next section). But, as national legislators have not yet laid out any prescriptive indicators, perhaps it is useful to analyse collective bargaining outputs in order to ascertain whether any kind of collective protection for crowdworkers has been achieved through this avenue. Further useful indications may be found in legal provisions covering forms of employment which have a number of relevant similarities to digital platform working.

Italy

According to rulings of the Constitutional Court (Corte costituzionale) from the 1970s onwards,²³ economically dependent workers – even those who are self-employed – have access to freedom of association, which is enshrined in Article 39 of the Italian Constitution. However, in the absence of implementing legislation, there is some uncertainty about the access of crowdworkers to collective rights.

Some collective agreements in force in Italy do mention the use of technologies at work as offering greater flexibility of time and place.

Experiments in ‘agile working’²⁴ seek to create a better work-life balance while, at the same time, boosting productivity and reducing business costs (Dagnino et al., 2016).²⁵ Collective agreements at company level sometimes offer the opportunity for employer and employee to make a specific agreement for the latter to work from home (or another location) for between one and three days a week, with the worker taking responsibility for data security and safety.²⁶

These agreements do not attempt to adapt the way contracts are structured in order to reflect the current transformation of work (Tiraboschi, 2016: 4), and their main impetus is to focus entirely on the same needs as those of teleworking. These agile working experiments are supported by legislation and, where their goal is to improve labour productivity, they have free access to tax incentives linked with performance-based bonuses.²⁷

A recent collective agreement (Bassilichi SpA., Florence, 1 April 2016) promoted a plan for ‘teleworking plus co-working’ following closure of a branch office, in order to avoid having to transfer workers to another city. This agreement demonstrates some potential for remote working through an intermediate technological co-working structure, as part of a corporate restructuring project.²⁸

In addition to projects promoting flexibility on the basis of the use of technology, it is worth mentioning collective agreements dedicated to self-coordinated continuous collaboration, by virtue of Article 409(3)(1) of the Italian Civil Procedure Code.²⁹ These collective agreements introduce rules on remuneration, contract termination, rest periods and health and safety in call centres,³⁰ universities,³¹ market research³² and other sectors³³ (Imberti, 2016: 399–417).

These agreements open up embryonic collective bargaining discussions, as the self-employed enter into relationships with an enterprise; at the same time, they may exclude the possibility of applying current employment regulations. Article 2(1) of the Decreto Legislativo: Disciplina organica dei contratti di lavoro e revisione della normativa in tema di mansioni (Framework regulation of employment contracts and review of regulations on job tasks, Legislative Decree no. 81/2015 of 15 June 2015 – a ‘Jobs Act’ decree) provides for the application of employment contract protections to collaborations in which the worker has no control, from various points of view, over organisation of the work.³⁴ However, the possibility remains for collective bargaining to lead to opt-out from labour law regulation (Article 2(2)).

This new legislation leaves room for widely differing interpretations of which situations should be covered by the regulations on subordinate work (in the case of collaborations organised in a variety of ways, see Article 2 of the Decree n. 81/2015) and which should not. It may be that a ‘settling-down’ period will be required, while the courts produce a body of case-law from which precedents may emerge.

Some labour protection might also be extended to crowdworkers on the basis of an existing collective agreement of 1 August 2013: ‘Collective agreement for the regulation of project-based collaborations in the business of selling goods and services and credit recovery by outbound call centres’.³⁵ Article 1 of this collective agreement identifies the following parties: a client who entrusts the call centre developer with the task of selling but has no direct contact with the worker; the call centre developer, who is commissioned to sell services on behalf of a third party (the client); and the worker – who completes this triangle in a similar way to that required by the activities of a digital platform. The protection provided by this collective agreement may be adaptable to the crowdworker relationship, especially if the general terms and conditions of a given platform make the collective agreement binding on user-buyers and user-providers.

While collective bargaining at company level tries to introduce forms of agile and flexible working, legislative measures are under discussion in Parliament. A bill³⁶ currently being discussed in the Italian Parliament promotes the introduction of forms of ‘smart working’ aimed at supporting business competitiveness. Once this has been passed into law, it will be possible to enter into agreements about labour relationships organised on the basis of phases, cycles or objectives without any constraints of time or place and on the basis of the potential use of technological tools partly on corporate premises and partly externally, without any fixed location.

A further legislative initiative being studied by the Italian Parliament would provide a legal framework for the exchange of goods and services on digital platforms.³⁷ The proposal includes rules for the management and functioning of platforms operating on a bilateral market, in order to ensure ‘new opportunities for growth, employment and entrepreneurship’. The aim of promoting employment, however, seems to be contradicted by Article 2(1)(a) of the same draft legislation, which states that ‘there is no subordinated employment relationship between platform managers and users’ – and seems to leave no room for any other, alternative kinds of employment contract.

Spain

In Spain, the debate about digital working and crowdworking is still in its early stages (Todolí Signes, 2015: 3, 1–25).

The Spanish Constitution may be argued to support collective bargaining, in that its Article 28(1) states that ‘everyone has the right to unionise freely’ – which leaves definition and interpretation of the area and scope of the constitutional norm to the legislature or the courts respectively. This was implemented by the Ley Organica de Libertad Sindical (Framework Act on Trade Union Freedom, 11/85 of 2 August 1985), whose Article 1(1) provides collective rights exclusively for salaried employees – although Article 3(1) establishes that contractors and micro-entrepreneurs may affiliate with workers’ unions.

It is clear how conflict of collective interest can arise between service providers and platforms or final buyers/clients (Sepúlveda Gómez, 2005: 194–195). The online contractors’ interests are completely the opposite of those of the enterprise for which they are providing the service, and in many cases there may actually be a contractual imbalance, similar to the situation of regular employees (Reyna, 2006: 37–49).

Spain’s unique approach has yet to produce adequate coverage, since the extension of Article 3(1) of the Framework Act on Trade Union Freedom, which favours freedom to organise unions for ‘weak’ independent workers, includes only a small part of the collective rights reserved for employees – which, taken as a whole, make up the constitutional principle of freedom for unions; these independent workers have no right to exclusive and specific trade union activity or collective bargaining (Palomeque López, 2000: 429–444). Nevertheless, the explicit recognition of independent workers (Article 3(1)) opens the way to possible ‘solidarity bargaining’ (Penalva, 2009: 201), which could extend some contractual rights – usually offered only to hired employees – to independent workers who do not have employees and who are members of the trade unions negotiating the collective agreement – among whom there could definitely be some digital platform workers.

A possible obstacle to extending the content of collective agreements to digital workers emerges from Article 37(1) of the Spanish Constitution, which limits the effectiveness of collective agreements to areas of application in terms of persons (who must be hired employees in a specific category) and geography (nationally or at the level of the Autonomous Communities, regions, provinces, municipalities) (Cruz Villalón, 2000: 542).³⁸ In essence, all clauses of a collective agreement that go beyond the given area of application are to be considered inapplicable.

The provisions of Article 3(1) of the Framework Act may be quite useless for crowdworkers, at best amounting to a mere variation on freedom of association (Article 22 of the Spanish Constitution), rather than extending trade union freedom (Article 28 of the Constitution). Under Article 82.3 of the Estatuto de los Trabajadores (Workers’ Statute, Consolidating Text approved by Royal Legislative Decree 1/1995 of 24 March 1995), the application of collective agreements is tied to individual contracts of employment: as long as only hired employees and their employers come within the scope of collective bargaining, a contract negotiated collectively can never be an effective normative tool for independent crowdworkers – not even when they derive their income exclusively from the digital platform.

Despite these significant problems, there are some encouraging signs for ad hoc collective regulation for platform workers in the Estatuto del Trabajador Autónomo (Self-Employed Workers’ Statute, Law no. 20/2007 of 11 July 2007), which sets out a specific mechanism for the collective protection of contractors who are economically dependent.³⁹ This initiative allows unions to negotiate collective ‘professional interest’ agreements (acuerdos de interés professional, or AIPs). While these agreements are not the same as collectively negotiated contracts, they do make it possible for economically dependent workers to claim the right to contracts that are objectively more effective, as they expressly state that any clauses contained in individual contracts will be invalid if they run counter to the provisions of the AIP accepted by the worker.

These legal provisions cannot be said to give adequate and proper protection to economically dependent workers: nevertheless, they have begun to create a system of specific collective regulations (Cruz Villalon and Valdés Dal-Re, 2008) with regard to pricing, location, timing and the way in which independent contract work is carried out⁴⁰ (Castro Argüelles, 2011: 34–80).

This system of specific protective regulations could offer a model of regulation for independent digital platform workers, either through specific professional agreements or by extending the effect of collective agreements for economically dependent self-employed workers, at least to include a guaranteed minimum wage.

France

In the French context, specific attention has been paid to crowdworking. The first acknowledgement of the issue came in the Mettling Report, Transformation numérique et vie au travail (Mettling, 2015), requested by the Minister for Labour, Employment, Vocational Training and Social Dialogue in order to look at the effects of digital change on the labour force. This highlighted the need to implement effective strategies and a social dialogue along the lines of initiatives in Germany, where trade unions and employers’ organisations have started discussing the statutes applying to digital workers.⁴¹

Article 60 of the Loi travail (the Labour Act, known as ‘the El Khomri Law’, Law no. 1088 of 4 August 2016) proposed the establishment of statutes to protect independent workers who operate on the kind of platforms mentioned in Article 242 bis of the Code général des impôts (General Tax Code). The latter was introduced by the 2016 Budget Act⁴² and applies to workers who receive a specific amount of income, established by special government decree, from these online platforms. In particular, when the platform determines the characteristics of the work and sets the remuneration, independent digital platform workers become entitled to certain guarantees usually applied to employees.

Articles L. 7342-1 to L. 7432-6 of the Labour Code (as amended by the El Khomri Law) extend protection in the case of injury sustained or disease contracted during work or work-related training, charging the cost to the digital platform. Further, there is recognition of trade union rights, with the right to form a union and the right to strike, except where the exercise of these rights is abusive. This confirms the part of the Preamble to the French Constitution of 1946 which does not make any distinction between independent and salaried employment. Similarly, Article 28 of the Charter of Fundamental Rights of the European Union (‘Right of collective bargaining and action’) gives any worker the right to negotiate and conclude collective agreements and, where there is conflict of interest, to take collective action, including strike action.

Conferring social responsibility on a digital platform does not eliminate the power of a judge to reclassify an individual crowdworker as an employee where certain defining conditions are met (client direction of the actual performance of the work; subordination to the employer’s controls and discipline). Making the platform responsible only for those crowdworkers who have already taken out their own workers’ insurance against accidents and occupational disease may incentivise companies to prefer recruiting independent contractors who are not covered by occupational injury insurance. It is also important to take into account that the El Khomri Law does not subject these independent workers to other forms of regulation – in particular, those governing workplace safety, office hours and the right to disconnect from company communications⁴³ (Favennec Héry, 2015: 119).

Concluding remarks

Following this comparative analysis, we find multiple approaches at the legislative level: while Spanish and Italian policy-makers are still far from defining specific legislation for crowdworking, France has outlined a first attempt at heteronomous regulation. The main obstacle to protecting digital platform workers through legislation is the rigid dichotomy between employment and self-employment – the limits of which seem increasingly evident in both national and European legal systems. Comparative analysis of the situation in southern European countries also reveals some difficulties connected to the intermediate status of economically dependent workers (specifically, in Italy and in Spain; Tullini, 2017: 151). A more favourable approach might be an alternative form of legal regulation that would take into account the actual need for protection and promote the idea of benefiting ‘the person’ rather than ‘the worker’.

From the collective bargaining standpoint, there are numerous visible limitations on the potential for introducing protective measures, in particular the fact that constitutional systems allow only employees full trade union access.

To avoid the risk of stratification of undeclared work, there is an undeniable need for collective protections and for the creation of a minimum core of human rights for crowdworkers.

Perhaps a useful strategy would be to follow the ECtHR’s latest rulings relating to Article 11 ECHR, which recognise collective bargaining and trade union action in the area of non-subordinate work. This strategy could be applied in situations where contractual weakness means that the stronger party can unilaterally impose terms and conditions, thus impairing the service provider’s self-determination.

Footnotes

Funding

This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.

Notes

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