Abstract
In recent years, the advent of platform work, i.e. work activities channelled through web platforms or apps, has been at the centre of discussions for being ‘an opportunity-generating machine’, and its darker side, that is the poor quality of working conditions associated with it, has also been discussed. Work patterns inherent in platform work, such as unpredictable work schedules and work insecurity (even for the next minute or hour), the lack of a stable income, and exclusion from even basic protections, have long been detected. They can be traced back in the daily work of dock workers in the late nineteenth century, but also in more contemporary forms of casual work, such as on-call work or zero-hours work. Accordingly, history seems to repeat itself, and even go to extremes with platform work. Against this background, this article focuses on the intersection of casual work and platform work, and explains that as a result of it, platform work can actually fall within the scope of broader regulatory strategies applicable to casual work, hereinafter the casual work agenda. The regulatory challenges deriving from the insecure nature of the work have already been dealt with by national and supranational regulators in the context of casual work. This article evaluates an already-available blueprint - the casual work agenda - in light of reducing the working hours, job (work), income, and employment status insecurity associated with platform work. To this end, it observes that a rich legal landscape exists in the Netherlands for addressing these insecurities. At the EU level, there are also insightful legal tools, prominent examples being the Transparent and Predictable Working Conditions Directive, the Fixed-Term Work Directive, and the Working Time Directive. They provide for important legal safeguards, especially in countering working time and job insecurity. This article also looks at the proposed EU Directive on Platform Work and notes that it overlooks the legal safeguards contained in these instruments. Having regard to this, it calls on EU policymakers to redefine this legal initiative in light of the best regulatory practices offered by the casual work agenda.
Keywords
Introduction
‘Study the past if you would divine the future’ 1
Confucius
Casual work arrangements, such as zero-hour contracts, on-call or on-demand work, are growing in numbers and importance. They can range from work of a very short duration to long-lasting work arrangements which are highly unstable. These work models can be traced back in the late nineteenth century, and were a feature of the daily work of dock workers.
In recent years, work activities carried out through web platforms or apps have been spreading, a phenomenon labeled as platform work. The International Labour Organization has considered the emergence of platform work as one of the major transformations in the world of work over the past decade. 2 Due to the deployment of technology in the platform work context, platform work has been sometimes perceived as a new reality in labour markets.
Contrary to this line of reasoning, this article argues that rather than being novel, platform work is part of broader labour market trends, such as the spread of casual work arrangements. Both work typologies are characterised by an insecure or precarious nature, more specifically by an exclusion from labour protections, unpredictable working patterns, and job insecurity, together with the lack of a stable and decent income. These common traits point to a significant intersection between casual work and platform work arrangements, with more significant deterioration in working conditions associated with platform work.
As Confucius wisely advised many centuries ago, it is crucial to study the past in order to understand the future. Against this background, the study of existing regulatory experiences with regard to casual work can provide insights on how to govern platform work. Indeed, an important legal consequence of the intersection of casual work and platform work is that the latter can be included into broader regulating strategies aimed at improving the protections of casual workers, hereinafter the casual work agenda. This can be conducive for many platform workers, who practically face a labour protection gap. Notwithstanding the attention that this phenomenon has gained, the normative responses to it are either incomplete (e.g. the riders’ law in Spain), or still in the pipeline (e.g. the EU Proposal for a Platform Work Directive). Furthermore, they mainly centre around matters such as employment status and algorithmic management.
No in-depth legal analysis of enhancing the labour protection of platform workers by looking at the casual work agenda to date. This article takes on this challenge and evaluates whether the casual work agenda can reduce the insecurities associated with platform work, namely, employment status, working hours, job, and income insecurity. It argues that reducing these insecurities would enhance the labour protection of platform workers. This normative argument will be developed in the following sections.
Section 2 attempts to define what constitutes casual work and platform work are. By recognising the challenge that casual work does not constitute a unitary phenomenon, it construes and explores a definition on it. Furthermore, it digs into some historical roots of the phenomenon and draws parallels with the emergence of the same work patterns within the realm of platform work. In this way, the section explains the significant intersection of casual work and platform work, and then moves to look at the legal implications of it, i.e. the inclusion of platform work in the casual work regulatory setting - an inclusion which is beneficial for the labour protection of platform workers. Finally, it has been made clear that, in the context of this research, enhancing the labour protection of platform workers will be understood as reducing insecurities, namely, employment status, working hours, job, and income insecurity.
Section 3 looks into the national legal landscape on casual work. A comparative legal analysis of governance systems in the United Kingdom, Italy, the Netherlands, and Belgium highlights the prominent differences in the approaches of the countries in regulating forms of casual work.
Section 4 then expands to the supranational level, and concretely, to the EU one. First, it attempts to identify how a casual work agenda has been shaped in the European Union. After introducing the pathway to a European regulatory approach to casual work, it singles out three important constituents of this agenda, the Directive on Transparent and Predictable Working Conditions, the Fixed-Term Work Directive, and the Working Time Directive. The relevance of these legal instruments, in light of countering the four insecurities selected, is elaborated.
Section 5 then moves to highlighting the lessons learned from the national and EU casual work agenda. It finds that, overall, the casual work agenda represents a significant blueprint for improving the labour protection of platform workers. In particular, the Transparent and Predictable Working Conditions Directive and the Working Time Directive offer important insights into dealing with working time insecurity. The Fixed-Term Work Directive and regulatory models used in the Netherlands to respond to job (work) insecurity are also found to be inspirational for use in the platform work context. Finally, with respect to employment status insecurity, it has is argued that some lessons can be actually learned from a ‘platform work agenda’, which is represented by the European Commission Proposal for an EU Directive on Improving Working Conditions in Platform Work.
Section 6 concludes that in order for the protection of platform workers to be effectively enhanced, the lessons learned from the casual work agenda need to materialise in the platform work regulatory setting, with the prominent example of the aforementioned proposed EU Directive. A scan of the provisions of this Directive shows that it does not provide a full response to challenges posed by platform work. Accordingly, the article concludes by making some recommendations for EU policymakers on how to redefine this legal initiative in light of existing protections offered by the casual work agenda. The contribution that this set of protections can make will help deliver an enriched legal landscape for platform workers and lay a better foundation for a sustainable and responsible platform economy.
What is casual work and platform work: Explaining the intersection between them
Casual work and its ‘chameleonic tendencies’
Work arrangements that are alternative to ‘stable, open-ended and direct arrangements between a dependent, full-time employee and their unitary employer’ 3 constitute an important work reality today. Within the vast group of non-standard work, casual work arrangements, such as zero-hour contracts, on-call or on-demand work, are growing in numbers and significance. 4 There is no widely accepted definition of casual work, 5 although current literature frequently uses the terminology. 6 This definitional challenge can be attributed to the fact that casual work arrangements do not constitute a unitary phenomenon. Instead, a broad spectrum of work arrangements can fall within the concept, a heterogeneity which has been referred to as the ‘chameleonic tendencies’ of casual work. 7
Notwithstanding the complex legal situation posed by casual work, many legal scholars and international institutions have nonetheless attempted to shed some light on its ‘chameleonic tendencies’. Authoritative definitions have been produced, for instance, by the European Parliament, which refers to casual work as ‘work which is irregular or intermittent with no expectation of continuous employment’[. 8 Eurofound advances a similar definition, together with a two-fold distinction of casual work, which consists of ‘intermittent work’ or work of a short duration, and on-call work which is characterised by a longer duration, but more instability in respect of working hours. 9 Eurofound's approach to casual work has been extensively relied upon by the European Commission in the preparatory stage to draft various legal instruments. 10 At the international level, the International Labour Office perceives casual work, as ‘work that is executed for a very short period or occasionally and intermittently, often for a specific number of hours, days or weeks’. 11
Considering the legal developments surrounding casual work, this article construes a working definition on this work typology. Such a definition should be perceived as an attempt to draw the contours of the phenomenon and underline the core features of casual work, rather than to advance a fixed definition. With a view to providing an encompassing understanding of casual work, casual work will be considered in this article as an umbrella term that includes a variety of work arrangements that are of:
- a very short duration and which can be called in by the employer on a regular or irregular basis, such as daily work, seasonal work, etc.; - a long-lasting or continuous nature, but which are characterised by some, or significant, insecurity in respect of working hours, which depend on the business needs of the employer, such as min-max and zero-hours work arrangements.
Having said that, it can be also argued that casual work is not a novel phenomenon. Historical evidence suggests that it can be traced back in the late nineteenth century, and the daily work of male dock workers in particular.
12
Going back in time, one can imagine a large pool of these workers standing in front of a port, competing against each other in the hope of getting a few hours of low-paid work. Their selection, together with other important aspects of their work, such as setting the price, was arranged by a middleman.
13
This intermediary could choose them among the others in the crowd, based on criteria such as ‘regular attendance, hard work, and obedience’.
14
Since then, a proliferation of casual work arrangements has been noted in both developing and developed countries, especially in sectors such as hospitality, cleaning, home care, etc.
15
It is striking that today, work patterns similar to those of dock workers can be observed in work arrangements channelled by means of online platforms or apps, a phenomenon referred to as platform work.
16
While many might perceive platform work as a revolution to the future,
17
the reality seems to suggest that a regression to past work practices might be actually occurring.
Platform work as a ‘bad’ successor of casual work
The algorithmic management standing at the heart of platform work enables the supply and demand sides of labour to be matched at an unprecedented speed, as a result of which an immediately available workforce is supplied. 18 This matching happens on a global basis, in which case the work is executed online (e.g. Amazon Mechanical Turk), or on a local basis with work performed in the local labour market (e.g. Uber, Deliveroo). This two-fold distinction that is characteristic of platform work, based on the place of execution of the work, has been referred to by De Stefano as crowdwork and work-on-demand via apps, respectively. 19 Platform work has been considered as an opportunity-generating machine, as it brings with it opportunities that were unheard of in the past, e.g. access to services and products which were previously inaccessible. 20 At first glance, the technological component inherent in platform work creates the impression that a brand new form of work has emerged.
Nevertheless, many legal scholars, and also international institutions and courts worldwide, have decided to look underneath the ‘technological vest’ of platform work, and are not easily ‘fooled by appearances’. 21 The control exerted by platform operators over the workers has been observed as resembling the managerial prerogatives exercised by employers, 22 and even magnifying such prerogatives, e.g. through tracking the location of workers. 23 Control over aspects of the work such as the selection, evaluation or termination of it, are all prerogatives of a traditional legal employer. Turning to the reality of doing platform work, it has been noted that it has long-existed in non-standard employment. 24 Prassl contends that for many centuries the existence of a pool of available workers, who were managed by an intermediary and faced poor working conditions, constituted a feature of the labour market. 25 More explicitly, the Global Commission on the Future of Work, in its ‘Work for a brighter future’ report, has pointed out that platform work is producing ‘future generations of digital day labourers’. 26
Both casual work and platform work rely on an ‘on-demand’ workforce, a pool of workers who are called upon at the employer's discretion. Being called upon only when the business needs arise implies being subject to unpredictable working schedules, which can be associated with working conditions with high levels of insecurity, such as job and income insecurity, including a low level of pay. 27 Such working conditions are exacerbated in a platform work context. This can be attributed, first, to the fact that platform workers are normally classified as self-employed persons, which leads to their exclusion from basic forms of labour protection, such as minimum wages, working time protection, and rights to associate and collective bargaining. 28 Furthermore, in platform work, working hours can be quite short, for example, for workers working with in micro-task platforms, whose working hours may total only a few minutes. 29 Highly unpredictable work schedules, together with underemployment, and work during unsocial hours (e.g. evenings or weekends), are also common scenarios for many platform workers. 30 The lack of guaranteed working hours goes hand in hand with work and income insecurity. 31 The income insecurity of platform workers becomes extreme in so-called ‘wage theft practices’, i.e. in cases where the client retains the work and refuses to pay the worker without giving any reason for the refusal. 32 The level of pay can easily fall below the minimum wage, which becomes extremely low for crowdworkers from developed countries, who compete on a global basis and end up being paid in the same way with crowdworkers from developing countries. Expenses related to working in the taxi industry, e.g. fuel and insurance, 33 have also been observed to significantly lower the already-modest income level of platform workers in this sector.
Considering the aforementioned challenges within the realm of platform work, it can be argued that platform work constitutes a ‘bad’ successor of the casual work that originated in the nineteenth century.
The legal implications of the intersection of casual work and platform work
Having set the background, platform work and casual work seem to share a crucial common denominator, that is the precarious 34 or insecure nature of the work, with a particular focus on working hours, job, income, and employment status insecurity. 35 This intersection between casual work and platform work arrangements has been widely acknowledged in legal scholarship, and also in the authoritative reports of the International Labour Office and Eurofound. For instance, Eurofound refers to platform work as the ‘internet-enabled casual work’, 36 and De Stefano considers it as ‘the casual work of the XXI century’. 37
An important legal consequence of the intersection, or large overlap, between casual work and platform work is that platform workers can actually benefit from the existing regulatory landscape on casual work, in order to respond to the aforementioned insecurities. It should be noted that while legal protections are in place for casual workers to respond to such insecurities, platform workers currently face a gap in labour protection. The adoption of the so-called riders’ law in Spain, 38 which regulates a limited part of platform work and the advancement of an EU legal initiative to improve working conditions in platform work, 39 an instrument which is still in the pipeline, cannot be considered enough to fill in this legal vacuum.
This article argues that reducing the insecurities inherent in platform work will enhance the labour protection of platform workers. While it is true that the insecurities associated with platform work can be numerous, 40 the scope of this paper is limited to examining and reducing only four of them, namely, employment status, working hours, job, and income insecurity.
Employment status insecurity is related to the fact that platform workers are often falsely engaged as independent contractors by platform companies. As the employment relationship remains ‘an essential gateway to labour protections’, 41 these workers are deprived of basic labour protections associated with employee status. Working hours insecurity is particularly challenging due to the fact that platform workers often have a low number of working hours, which are irregular and unpredictable in nature, and over which they usually lack control. As the boundaries between the insecurities identified are not clear-cut, the working hours insecurity can be inextricably linked to the uncertainty around the continuity of employment, 42 an insecurity often referred to as job (or work) insecurity. The latter is also closely related to income insecurity or, in other words, the lack of a stable and decent income.
Considering these vulnerabilities, 43 this article assesses whether the regulatory framework on casual work can provide platform workers with at least some minimum level of labour protection 44 against them. As there has been no in-depth legal analysis of enhancing the labour protection of platform workers that involves looking at the casual work agenda to date, the article attempts to address this gap. To this end, both the national and EU regulatory landscape on casual work, referred to as the casual work agenda, will be examined in the remaining sections.
The legal landscape of casual work in the United Kingdom, Italy, the Netherlands, and Belgium
The national legal landscape of casual work in developed countries is an under-researched area. 45 These countries are characterised by a proliferation of casual work arrangements, but at the same time, by a lack of awareness around them, a phenomenon which De Stefano labels ‘an underground casualization’. 46 A contrasting legal situation has been observed in developing countries, which are generally aware of the phenomenon, but also tend to regulate it. 47
In order to address this research gap, the countries chosen for comparative legal analysis are the United Kingdom, Italy, the Netherlands, and Belgium. These countries were chosen based on the spread of different forms of casual work, but also on the adoption of diverse regulatory approaches to it. This diversity is quite prominent, as the legal protections they offer sit between two extreme ends of the spectrum, from ensuring some minimal labour protection to casual workers to equipping them with a wide set of protections.
The United Kingdom has seen the proliferation of a specific (and the most insecure) form of casual work, namely, zero-hours work. 48 Notwithstanding the great extent of zero-hours work in the UK, 49 the legislator has opted for loose regulation in response to it. The only legal development was introduced in the amended Employment Rights Act (ERA) in 2015, in the form of a ban on exclusivity clauses. 50 As a result of this legal provision, zero-hours workers were given the freedom to work for more than one employer. Another problematic aspect of this work typology is the employment status of zero-hours workers. 51 In many cases, UK courts have decided to grant them an intermediate employment status, namely, that of a limb (b) worker. Such legal status provides workers with access to a limited and basic set of labour rights, and specifically, to the right to the minimum wage, working time rights, collective labour rights, 52 and protection against discrimination in employment. 53 Accordingly, zero-hours workers are deprived of access to the ‘passport’ to a full set of labour rights associated with employee status. 54 The protections available to casual workers in the UK currently appear to be quite weak, 55 something which stands in contrast with the other countries which form the subject of this analysis.
Contrary to the regulatory passivity prevalent in the UK with respect to casual work, the Belgian legislator has opted for a strict regulation of casual work. In Belgium, casual work of very short duration, or travail occasionnel (gelegenheidsarbeid), is regulated 56 mainly by restricting its use and duration. Travail occasionnel is allowed in the tourism sector for up to two consecutive days, 57 with a maximum duration per year. The employer has two hundred days, while the worker has fifty days to make use of this type of work. Importantly, Belgium also regulates flexi-jobs, a form of work resembling casual work arrangements due its flexible and unstable nature. 58 Flexi-jobs have been created as a complementary form of work, with a view to providing workers who already have a job with an additional source of income. 59 What is striking is that the Belgian legislator has also formulated a vague legal response to zero-hours work. These types of contracts are neither allowed, nor prohibited at the domestic level. 60 In practice, these types of contracts clash with working time rules, according to which the worker must be guaranteed at least three paid working hours. 61
While it is true that the Italian legislator also attempts to restrict the use of casual work (albeit to a lesser extent than in Belgium), a protective regulatory solution to lavoro intermittente has been advanced in Italy. 62 The main regulatory framework makes a distinction between the performance of casual work for predetermined periods during the week, month, or year, and responding to business needs pre-identified in collective agreements on a more irregular basis. 63 Referring to the latter scenario, employers can deal with their unexpected business needs, without being restricted by the needs set out in collective agreements, by relying on workers belonging to a specific age category (under 24 years of age and over 55 years of age). In Italy, an overall duration of 400 days over a period of three years has been provided for casual work, with an exception applying to the tourism, public service, and entertainment sectors. These observations suggest that casual work in Italy is particularly encouraged in certain sectors of the economy, and for specific workers. Due to application of these legal limitations, lavoro intermittente represents a very small percentage of work in the Italian labour market. 64 Finally, a peculiar legal protection has been envisaged by the Italian legislator in the form of a monthly payment as compensation for the worker’s promise to be available for work, the so-called availability indemnity. 65
The most conducive legal landscape for casual workers can be observed in the Netherlands. The regulatory framework available for casual workers seems to be quite broad, composed of specific legal safeguards, which consider the unstable nature of casual work, but also some more general legal measures. 66 It regulates three types of casual work arrangements, namely, zero-hours work (with no guaranteed working hours), min-max contracts (with some guaranteed hours), and on-call contracts by agreement, in which a fixed-term contract is concluded at the moment the worker accepts the call to work. 67 Specific legal measures provided for these workers consist of, firstly, the provision of three paid hours of work which lasts for less than three hours in cases where the employment contract has no specified weekly hours or provides for less than 15 hours per week. 68 Furthermore, there is provision for an advance notice, before starting or cancelling work. Importantly, employers need to make an offer of fixed working hours to workers who have worked on-call for one year, even with different employers.
What is more, all workers in the Netherlands, including casual workers, can benefit from a legal presumption of the existence of an employment relationship on completion of a specified period (three months) and frequency (weekly basis or at least 20 hours per month) of work for the same person. 69 Additionally, workers meeting the above conditions are entitled to some minimum guaranteed hours, based on the hours worked in the previous three months. 70 This legal rule implies that zero-hours contracts cannot last for more than three months in the Netherlands. After this period, the worker must be guaranteed some working hours. Nevertheless, social partners can stipulate, by means of collective agreement, that zero-hours contracts will last longer than three months.
The pathway to a European regulatory approach to casual work: A curve with peaks and troughs
A casual work agenda in the making
The attempt to identify an EU regulatory landscape on casual work requires going back in time and tracking various legal developments, which have impacted on the governance of this work typology. It should be made clear that this article maintains a broad conception of the casual work agenda. Therefore, it does not solely focus on tailor-made legal solutions for casual work, but looks at the bigger picture and includes all relevant instruments for its regulation. It is the combination of both broader and targeted regulatory frameworks that have jointly contributed to shaping a regulatory landscape for casual work at the EU level. The first regulatory efforts in this direction can be traced back to the 1980s, and the endeavours to respond to the ‘first wave of flexibility’, i.e. the proliferation of specific forms of non-standard employment, including part-time, fixed-term, and temporary agency work. 71 The normative treatment for this triad of work arrangements was developed more than a decade later.
A major source of inspiration for all legal developments relevant to casual work was the Community Charter of Fundamental Social Rights of Workers, 72 which highlighted the need to improve the living and working conditions of non-standard workers. The first Directives adopted in compliance with the spirit of the Charter were the Directive on the Health and Safety for workers in temporary employment, 73 the so-called Written Statement Directive, 74 and the Working Time Directive. 75 Notwithstanding the adoption of these Directives, the need to govern the three specific forms of atypical work 76 was brought back to the fore by the European Commission through a White Paper of on the Future of European Social Policy in 1994, 77 and a background document for first-stage consultation of social partners on the flexibility in working time and security for workers in 1995. 78 As a follow up to that, the European social partners decided to conclude framework agreements on part-time and fixed-term work, which were given effect by means of two EU Directives. 79
Casual work gained visibility in the European arena through a report of the European Parliament on atypical work, which explicitly acknowledged it as a crucial form of non-standard employment. 80 The importance of this report also lay in the fact that it advanced a working definition of casual work, namely, ‘work which is irregular or intermittent with no expectation of continuous employment’. From moment of recognition, a period of stagnation began not only for non-standard work in general, 81 but also for very flexible work more in particular, including casual work. 82
To sum up, the pathway to a European approach to casual work has not been a linear one, but rather has resembled a curve with peaks and troughs. At the time of writing, the curve seems to be at its highest point, as the EU legislator has finally decided to extend its hands-on approach to vulnerable workers on the edge of the labour market, inter alia, casual workers. It was time to end the inactive and exclusionary approach towards casual work, 83 and take into consideration the proliferation of such work arrangements. Things started to take a turn with the endorsement of the European Pillar of Social Rights in 2017, which led to some important legal initiatives, including the Transparent and Predictable Working Conditions Directive. 84 The Pillar made clear that all workers, notwithstanding the duration or status of their employment, deserve ‘fair and equal treatment regarding working conditions’. 85
Important constituents of the EU casual work agenda
The aforementioned legislative developments have all contributed to shaping an EU casual work agenda. This article examines more closely three constituents of this agenda, which have been singled out for being particularly relevant to responding to the insecurities identified for both casual workers and platform workers, namely, working hours, jobs, income, and employment status insecurity. These legal instruments are the Fixed-Term Work Directive, the Working Time Directive and the Transparent and Predictable Working Conditions Directive.
The Fixed-Term Work Directive
The ambiguousness of casual work arrangements has led several studies to position it either within the broad category of part-time work, or that of fixed-term work. 86 Indeed, casual work shares core features with both work typologies. Both casual work and part-time work are noted as having very short working hours, which are often unpredictable in nature. 87 On the link between casual work and fixed-term work, both work typologies are characterised by the lack of future work security, or even for the next day or hour. 88
Given this legal situation, the Directives regulating part-time and fixed-term work might provide legal protections for casual workers and platform workers. Some scholars, such as Alosi and Rosin, acknowledge the significance of these instruments for platform work, a matter which has remained unexplored to date. 89 The Part-Time Work Directive does not seem to contain any protections to deal with the working time insecurity inherent in casual work and platform work. 90 For this reason, the Directive has not been included as an important constituent of the casual work agenda. On the other hand, the Fixed-Term Work Directive contains a legal provision to address the work insecurity characteristic of fixed-term work, through the so-called anti-abuse clause. 91 This legal provision, as will be outlined below, might be of use in finding ways to address the work insecurity underpinning casual and platform work arrangements.
The Working Time Directive
Another crucial component of the EU casual work agenda is the Working Time Directive, which governs an essential aspect for casual workers, that is working time. 92 The instrument in question attempts to address an aspect that brings further insecurity to working time, namely, stand-by time, i.e. periods during which the worker is not actually working, but is available to work. In this regard, there is a wide corpus of case law from the Court of Justice of the EU (CJEU), which has ruled on the questions of whether stand-by time is to be considered working time or a rest period. This jurisprudence is valuable in dealing with different stand-by time scenarios experienced by casual workers and platform workers, with prominent examples being time spent waiting to be assigned shifts or orders while logged into the app, or time spent at customers’ doors delivering orders.
The Transparent and Predictable Working Conditions Directive
The most important constituent of the EU casual work agenda was introduced only recently, when the Directive on Transparent and Predictable Working Conditions (TPWCD) was adopted. This Directive emerged as a successor to the Pillar of Social Rights, and repealed the old Written Statement Directive. 93 The TPWCD constitutes a crucial leap from past legislative developments, as it has not only brought the debate on working conditions front and centre, 94 but it has also put the spotlight work on with ‘entirely or mostly unpredictable’ patterns. 95 What is more, it has introduced a broader definition of the ‘worker’ concept, as it has expanded the national definition of ‘worker’ by making reference to the notion of ‘worker’ developed by CJEU in its case law. 96 As a result of this broader personal scope, the TPWCD includes within its scope a variety of workers, e.g. casual workers, domestic workers and platform workers, 97 that were largely neglected in the past. 98 In respect of its material scope, the Directive provides for rights for all workers, which may be relevant for casual workers, e.g. the right to request transition to more predictable and secure employment, or to work for more than one employer; 99 and importantly, it lays down specific rights for those in casual work situations, e.g. the right to pre-determined reference hours and days, and to a reasonable advance notice period prior to starting work. 100 Taking note of these considerations, the TPWCD stands at the heart of the EU casual work agenda, as it constitutes the first targeted and most comprehensive legal instrument on casual work.
Lessons learned from the casual work agenda for the labour protection of platform workers
Thus far, this research has identified and briefly outlined the most prominent protections offered by the casual work agenda. In this part, an evaluation of these protective standards will be carried out to determine whether they can contribute to enhancing the labour protection of platform workers. In other words, the casual work agenda will be assessed for its responsiveness to the labour protection needs identified for platform workers, such as those relating to working hours, jobs, income, and employment status insecurity. To this end, both national and supranational (EU) components of the casual work agenda will be taken into consideration.
Working hours insecurity
The casual work agenda seems to offer important legal avenues to reducing working hours insecurity for platform workers. This is because combatting this insecurity is at the heart of the Transparent and Predictable Working Conditions Directive, and also of the Dutch regulatory response. In this regard, both governance systems provide for a reasonable advance notice period before starting (or cancelling) work as an important protection against the unpredictability of working hours. In light of further enhancing predictability, the TPWCD sets out the right to some pre-established reference hours and days, which must be determined at the start of the employment relationship. The Dutch agenda's contribution in this regard extends to providing some minimum or fixed working hours after a certain period of time, namely, after three months and twelve months of work, respectively. As the legal landscape stands, the Dutch agenda seems to go beyond merely ensuring predictability in the way work is organised, as it also aims to equip workers with some guaranteed working hours. 101
As noted, the Working Time Directive and, more specifically, the CJEU jurisprudence on it, offers legal insights into dealing with stand-by time scenarios. The available judicial practices become crucial considering that unpaid stand-by time remains a grey area for many casual and platform workers. 102 On several occasions, the CJEU has highlighted that the main characteristic of working time is that it significantly restricts a worker’s ability to organise his or her personal and social life. 103 Furthermore, in its recent jurisprudence, the Court has broadly defined the notion of the ‘workplace’, by extending it to include any place where the worker carries out an activity under the instructions of the employer. 104 In light of this broad interpretation of the notions of ‘working time’ and the ‘workplace’, the Court has ruled that many examples of stand-by time qualify as working time. In this way, this jurisprudence underlines how paramount it is to recognise stand-by time and pay workers for it. Having said that, peculiar stand-by time scenarios experienced by platform workers could meet the test for being regarded as working time under the CJEU jurisprudence. For instance, the UK Supreme Court has already ruled that time spent waiting to be assigned orders or shifts constitutes working time, provided platform workers fulfil three conditions, such as being logged into the app, located within the area where they are licensed to operate, and ‘ready and willing to accept trips’. 105 In a similar vein, the time that delivery platform workers spend waiting at customers’ doors or restaurants severely impacts on their ability to organise their free time, and hence, should also be qualified as working time. 106 Finally, the CJEU has ruled that the travel time of mobile workers, who travel to and between jobs, constitutes working time - an outcome which may potentially extend to many platform workers. 107
Jobs (work) insecurity
In terms of reducing work insecurity, the normative references that will be used are the TPWCD, the FTWD, and the Dutch legislation. They all contain valuable, but at the same time different, protections in reducing such insecurity. To start with, the TPWCD attempts to counter the lack of security of future employment through the provision of the right to request transition to another form of employment, which is more predictable and secure, after six months of work with the same employer. 108 The way EU legislators have formulated this entitlement seems to be rather cautious, by providing for a right to merely ask for something. As a result, employers can easily refuse workers’ requests by simply putting down the reasons for such refusals in writing. On the other hand, the FTWD's approach towards ensuring greater work stability can be found in its anti-abuse clause (Clause 5). This legal provision calls on the Member States to combine or choose one of three types of legal measures, with a view to protecting workers against abuses arising from the use of successive fixed-term contracts or tasks. 109 These measures include the provision of objective reasons to justify the renewal of successive contracts or tasks, the establishment of a maximum duration of such contracts, and a limitation on the number of renewals. If abuse is detected, it is up to the Member States to decide on the consequences, which might include conversion into a permanent contract. 110
The anti-abuse clause contained in the FTWD can actually provide a crucial blueprint for reducing work insecurity within the realm of platform work. 111 As Risak points out, in platform work, it is not clear ‘whether there is an ongoing employment relationship or just a sequence of fixed-term contracts’. 112 Nevertheless, in order for the anti-abuse clause to be effective in this specific context, it warrants an update which takes into consideration the short-termism underpinning platform work. 113 The update should, firstly, extend to the legal measures contained in the clause, in particular to the provision of a maximum duration for contracts or tasks, and a maximum number of renewals. A maximum duration of some years, or a number of renewals limited to only a few, cannot obviously be effective considering the short-term tasks performed by platform workers. Furthermore, the update is also necessary in respect of the consequences in cases where an abuse with consecutive contracts or tasks is detected. The work security of platform workers will be enhanced if they are guaranteed at least a sufficient volume of work after an abuse has been identified. The Dutch legislation provides an inspirational regulatory example, as pursuant to this model, after a maximum duration of work has been reached (abuse identified), some minimum guaranteed or fixed working hours are guaranteed to the worker (a sufficient volume of work).
Income insecurity
The income insecurity problem appears to be an issue which has been overlooked by the EU legislators. Indeed, the three EU Directives analysed here reflect a legal vacuum in this regard. Some domestic agendas have, nonetheless, included some considerations on reducing income insecurity. This is the case, for instance, in Italy, where a monthly payment is guaranteed to workers who promise to be available for work. This so-called availability indemnity can be regarded as a form of compensation for the lack of steady income, something inherent in casual and platform work arrangements. Furthermore, countries such as Belgium and the Netherlands provide for the payment of workers for at least three hours of work where work lasts less than three hours, in case of contracts with unspecified working hours.
Employment status insecurity
A common legal solution implemented by several regulatory frameworks to deal with employments status insecurity, which deprives workers even of basic labour protections, is the provision of a rebuttable legal presumption of an employment relationship. The way this legal presumption has been formulated points to some crucial differences between these regulatory strategies.
The TPWCD merely suggests that Member States adopt this legal presumption, among other proposed legal measures, in order to prevent abusive practices related to on-demand contracts. 114 Accordingly, Member States can choose whether to incorporate the legal presumption into their legal systems, and also how to formulate it. The regulatory approach adopted by the EU legislator in relation to the TPWCD contrasts with other legal acts, which grant a mandatory nature to this legal presumption. By way of an example, in the Netherlands, this legal presumption has long been adopted for all workers when requirements around a specified period and frequency of work are met. 115
In a similar vein to the Netherlands, the proposal of the European Commission for a Directive on Improving Working Conditions in Platform Work, 116 hereinafter the draft Platform Work Directive, obliges Member States to apply the legal presumption of an employment relationship every time a reclassification demand is introduced, either by a platform worker, trade union, or a national authority. According to the Commission's proposal, workers need to fulfil two out of five conditions, including remuneration-setting and the imposition of behavioral standards by the platform, in order to prove that they are employees. 117 It was only recently that the European Parliament amended this version of the presumption, 118 by completely removing the criteria to trigger the presumption. 119 By acknowledging that the provision of a legal presumption constitutes a step forward in addressing the employment status insecurity of platform workers, 120 their effectiveness in practice can nonetheless be questioned. 121 Not only are judicial proceedings associated with risks and costs, 122 but the application of rigid criteria for triggering the presumption, 123 together with the fact that many platform workers who need to trigger it are not university educated or have a migrant background, 124 also result in a lower success rate for workers who wish to reap the benefits of this legal presumption.
The interplay between the casual work agenda and the platform work agenda: Recommendations for the way forward
Having highlighted the lessons learned from the casual work agenda, it should be noted that they can effectively enhance the labour protection of platform workers, only if they are applied in the platform work regulatory setting. Until recently, platform work was widely unregulated, but the advancement of the proposal for a Platform Work Directive marked the end of ‘platform work’ exceptionalism’. 125 Accordingly, the legal safeguards contained in the casual work agenda should be incorporated in this landmark legal development. This last section looks at the interplay between the casual work agenda and the platform work agenda, where the latter is represented by the draft Platform Work Directive.
Notwithstanding that the draft Platform Work Directive has, as a cornerstone, the legal presumption of an employment relationship, it also governs other aspects, such as algorithmic management and transparency in platform work. This set of protections makes the draft Platform Work Directive not only the first supranational instrument regulating platform work, but also the most comprehensive one introduced to date. Nevertheless, as the legal landscape stands, the draft Platform Work Directive clearly does not provide a full response to the challenges posed by platform work. In particular, it does not seem to acknowledge the precarious or insecure nature of platform work. In this way, the draft legislation overlooks the existing protective standards contained in the casual work agenda, which are enlightening in dealing with this dimension. 126
Prior to advancing some recommendations for addressing this protection gap, a note of caution should be added with regard to the casual work agenda per se. This agenda is not perfect, and there may be some room for improvement. For instance, the TPWCD reflects the need to enhance the current protection against work insecurity, and to find ways to deal with income insecurity. In terms of enhancing employment status security, the casual work agenda can actually learn from the protections provided for this purpose in the draft Platform Work Directive, such as the mandatory legal presumption of an employment relationship. These flaws identified in the casual work agenda cannot, in any way, undermine the importance of the wide set of protections it provides in the journey to enhancing labour protection for platform workers.
Having said that, this article has attempted to address a series of key challenges, taking into account the lack of security related to work and working conditions in the platform world. There are, self-evidently, many other legal challenges involved in the platform work agenda, including the role of minimum wages, work-life balance, privacy protection, and collective rights. Taking into account the limits of this research, a number of recommendations can be made to improve the regulation of platform work in light of the casual work agenda. Three main issues come to the fore in this regard: the insecure nature of the work, the stand-by time, and the work insecurity. Therefore, a platform work-related legal initiative should provide a response to the following key legal issues and challenges:
If no action on these issues is taken, the available protection for platform workers will remain incomplete and scattered, which will give rise to confusion and make the legal protection of platform work weaker in practice. The contribution that this set of regulatory strategies can make will lead to an enriched legal landscape for platform workers and lay a better foundation for a sustainable and responsible platform economy.
Conclusions
This article concludes that in the world of platform work, responses to the regulatory challenges deriving from the insecure nature of the work can already be found in the casual work agenda. This rich legal landscape can indeed offer lessons, such as that the provision of an advance notice period, reference hours and days, and some guaranteed hours of work, represent useful legal means to combat the extreme working hours insecurity at the heart of platform work. This blueprint merely needs to be acknowledged as directly applicable to platform work. Furthermore, the broad concepts of ‘working time’ and the ‘workplace’ advanced by the CJEU in its jurisprudence is quite helpful in shedding some light on the unclear stand-by time scenarios faced by platform workers. The anti-abuse clause of the Fixed-Term Work Directive is also there to remind us that some work security can be offered to platform workers, even in the form of guaranteeing them a sufficient volume of work. National regulatory examples can also be inspirational in combatting the insecurity in working conditions, even if no action has been taken in this regard at the supranational level. For instance, domestic legislation suggests that the lack of stable income can be reduced through the provision of a monthly payment if workers promise to accept calls, and payment for at least three hours of work for periods of work that are shorter than that. Finally, the article observes that lessons can also be learned from the platform work agenda. The provision of a legal presumption of an employment relationship in the draft Platform Work Directive, without requiring the worker to meet some fixed criteria, can help many platform workers to benefit from basic rights associated with the employee status. All these things considered, the pathway to decent platform work remains an arduous one, as manifold regulatory challenges need to be tackled. However, looking at platform work through the lenses of the casual work agenda represents a step in the right direction.
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
This article has been made possible thanks to funding from the Research Foundation Flanders (FWO) under the Odysseus project (Ref. 179461/G0H8118N) on employment rights and labour protection in the on-demand economy, coordinated by Professor Frank Hendrickx and Professor Valerio De Stefano. It is based on the PhD dissertation defended at KU Leuven on 2 March 2023. This implies that, occasionally, some overlaps between the paper and doctoral research might occur.
