The Gig Economy Project has been in Edinburgh and Brussels this week speaking to workers, trade union leaders, academics, data specialists and many more about all things gig work. One issue that has come up a few times is the question of how a general presumption of employment in the platform economy - as the European Parliament has proposed for the Platform Work Directive - would be triggered in practise. What is the mechanism by which legislation would lead to a change in labour status?Listen to the digital labour platforms, and they will tell you that they fear the mechanism would be an automatic re-classification. In an article by 12 EPP MEPs close to the platform lobby in June last year, they stated that the European Parliament's proposal "would lead to mandatory employment for everyone who works via digital platforms." A graphic designer on Upwork, or a translator on Freelancer.com, or indeed a food delivery courier at Uber Eats, would go to bed self-employed and wake-up to suddenly find themselves an employee. Perhaps the app will suddenly start making a ringing noise at 8.30am, demanding that they get out of bed and start typing or riding, as they are on a 9-5pm work schedule, disrupting their best laid plans for a lie-in bed, such are the boons of 'flexibility'...Ridicule is the only worthy response to the automatic re-classification myth, because it's obviously complete nonsense. Legislation doesn't trigger an overnight change in labour contracts. As European Trade Union Institute researcher Aude Cefaliello points out in a useful explainer on Social Europe, "freedom of contract means that if platforms want to hire people as freelances they can, and will continue to, do so". In that case, what does the presumption of employment do?"[The presumption of employment] is a legal mechanism which will be essential when examining a contractual relationship during a judicial or administrative procedure," Cefaliello writes. "The presumption of an employment relationship will be a tool for checking whether the performance of a contract really corresponds to the contractual definition chosen by the parties."The process for investigating fake self-employment would go something like this: a Labour Inspectorate conducts an investigation into a platform where workers are hired on a self-employed basis, if it determines that the real relationship between the platform and the workers is of an employment nature it would have the power to issue the platform with a notice that they must employ the workers and pay fines for false self-employment and the back-payment of tax contributions. The platform would then have the possibility to rebut the presumption of employment at court by appealing the decision. In this way, the burden of proof shifts from the platform worker (who currently has to go to court if she feels her employment classification is wrong) to the platform.The reason we can be fairly confident that this would be the process is that we have a case study in the general presumption of employment: Spain. The Spanish Labour Inspectorate has been conducting investigations and issuing notices for employment and fines on the same basis as above since 2018, as case law established the legal norms for working in the food delivery sector. This was stepped up once the Spanish Government formalised the presumption of employment when it passed the so-called 'Riders Law' in 2021. This has been resisted by Glovo in particular, which has refused to abide by the Labour Inspectorate's rulings and as a consequence has racked up fines worth over €200 million. Due to Glovo (and Uber Eats') efforts to frustrate the presumption of employment, the Labour Inspectorate has now been issued with enhanced powers in the recently passed Employment Law to enforce the presumption of employment. These new powers mean it can force the platform to employ the riders without waiting for the judge to rule, which, according to University of Valencia labour law and platforms expert Adrián Todolí, is a "revolution" in the practise of the Labour Inspectorate because it prevents the platforms from delaying the process of re-classification by dragging it through the courts. After an inspection in the Andalućia region of Spain in March, Glovo was forced to employ 3,000 of its riders.The presumption of employment can be stronger or weaker depending on the powers and resources of the Labour Inspectorate, but the essential elements to keep in mind are: 1) there is nothing 'automatic' about it, 2) a labour inspection always takes place to uncover the reality of the work relationship, and 3) the burden of proof is on the platform to challenge the Labour Inspectorate's findings in the court. This last point is key: if the EU Platform Work Directive does not reverse the burden of proof, the only power labour inspectorates will have is to conduct an investigation and announce their findings. The responsibility will still lie with the worker to take every case to court, we will essentially be no further forward and any 'presumption of employment' in the Directive will be an empty shell. There is a reason why the platform lobby is working hard to get the burden of proof out of the EU Council text, and it's not because they don't have enough highly-paid lawyers: they know that if they have to take the case to court, they will almost certainly lose.
Ben Wray, Gig Economy Project co-ordinator, and Piero Valmassoi, EU policy expert specialising in the platform economy
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BRAVE NEW EUROPE's yearly crowdfunding pays for the Gig Economy Project's website presence, but staff costs and other expenses are all paid for through grant funds. Unfortunately, our last grant fund from the Andrew Wainwright Reform Trust runs out at the end of May and we have not been successful in lining up new funding yet. If we cannot find any new funding, we will not be able to continue the project. That would be untimely as we feel it is just starting to build momentum. We are always looking for new grant funding opportunities, but we seem to fall between two stools: we are not investigative enough for investigative journalism grants, and we are too media orientated for activist funding. We are hoping our subscribers may have some ideas of where GEP could get new funding from. Even if you think it's a long shot, we would like to hear it. E-mail GEP@BraveNewEurope.com if anything comes to mind.
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Gig Economy news round-up |
- FIRED GORILLAS WORKERS LOSE RIGHT TO STRIKE COURT CASE: Three workers at Gorillas, the recently-sold grocery delivery app, in Berlin who were fired after going on a wildcat strike in 2021 have lost their case against dismissal in the Berlin-Brandenburg Regional Labour Court, with the judge finding the terminations were valid. Under German labour law, strikes can only be organised for collective agreements, and collective agreements can only be signed between unions and employers, therefore making strikes by workers who are non-unionised illegal. However, the lawyer for the riders, former member of Parliament Benedikt Hopmann, argued that the limitation on the right to strike to collective bargaining is in breach of the European Social Charter, and is a hang-over from Germany's Nazi era. Hopmann also argued that the nature of platform work, where workers are often working at a company for a very short-period of time, makes it "de facto impossible" to organise a strike on the basis of a union seeking a collective bargaining agreement. A protest was held outside the court before the hearing began, with unions calling for a "comprehensive right to strike". The workers are now set to appeal the decision to the Federal Labour Court. Read more here.
- CLAIM THAT JUST EAT WORKERS' DATA RIGHTS WERE BREACHED IN 'ROBO-FIRINGS': Worker Info Exchange has published a new report claiming that Just Eat breached their riders' data protection rights by de-activating them from the app without a human explanation. The 11 riders used GDPR rights to make formal requests for the data Just Eat held on them after they had been robo-fired for alleged over-payments, worth on average £1.44, for claiming to be waiting for an order when they were not. The responses show that the basis for each riders' deactivation was as few as two or three over-payments, while in several cases the riders in question had moved just 1-2 minutes away. Couriers say they are sometimes asked by restaurants to move away from the entrance while they are waiting, which may have triggered Just Eat's GPS system. “Just Eat’s approach to providing evidence is: ‘Just take our word for it'," report author Cansu Safak of Worker Info Exchange said. Just Eat claimed that when their system flags a case as potentially fraudulent, the case is examined by a human being, but Safak said that Just Eat has provided no evidence of serious human involvement. Read the report here and the news report here.
- FAIRWORK GIVE UBER EATS AND BOLT 0 OUT OF 10 IN UK RATINGS: FairWork, a research-action project on the platform economy, has published its 2023 ratings for platforms in the UK, giving Uber Eats, Bolt, TaskRabbit and FreeNow it's lowest possible score: zero out of 10. The report finds that 2023 has been "a particularly challenging
one for platform workers" due to the inflation crisis and that "many platform workers continue to face
unfair working conditions and lack social protections". Fairwork lead with a call for increased algorithmic transparency from platforms, highlighting the role out of dynamic pricing systems of pay as having a destabilising effect on platform workers financial security. Pedal Me, the electric bike cargo company based in London which signed a recognition agreement with the IWGB union earlier this year, received the highest rating in the study, with eight out of 10. Read the full report here.
- RESTAURANT OWNERS IN FINLAND CALL FOR HUMAN CHECKS ON WHO IS DELIVERING THE FOOD: An investigation by Finnish newspaper Helsingin Sanomat has exposed the fact that the two main delivery platforms in the country, Wolt and Foodora, are often unaware of who is delivering the food on the app, with a high number of riders being undocumented workers, who pay account holders up to 30 per cent of their income on the app. Restaurant chains which use these platforms responded to the story by calling for Wolt and Foodora to establish a human "checkpoint" to identify who is really doing the deliveries. "Pick-up of the delivery takes place in the same way, regardless of whether it is the owner of the courier account or a deputy", Aku Vikström , CEO of Noho Partners, a leading restaurant chain, said. Wolt responded to the story by saying they are carrying out 500 investigations a week to uncover the extent of undocumented work on its platform. Couriers at Wolt and Foodora in Finland are hired on a self-employed basis. Read more here.
- 60 UNDOCUMENTED RIDERS ARRESTED IN LONDON: In a UK Government week-long crackdown on illegal work, 60 food delivery couriers were arrested across London, the Home Office announced on Monday [24 April]. Forty-four of the undocumented riders were detained pending deportation, while 16 were released on immigration bail. Asylum seekers and migrants without residence permits do not have the right to work in the UK, with food delivery being one of the few ways they can get paid work due to the lack of human management of the workers and the lack of employment contracts. Many have to pay platform account holders a part of their wage, sometimes up to 50%. James Farrar, General Secretary of the App Drivers and Couriers union, told the Evening Standard that it is “not the role of the police to make immigration checks on the streets in this way”. An Uber Eats spokesperson said that "there is no place for illegal work on our platform". Home Secretary Suella Braverman said: "Illegal working damages our communities, cheats honest workers out of employment and defrauds the public purse." Read more here.
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Benedikt Hopmann: Germany's restrictions on the right to strike have their roots in the Nazi-era
Benedikt Hopmann is the lawyer for three Gorillas app-based grocery delivery workers in Berlin, who were fired in 2021 after participating in a wildcat strike. On Tuesday [25 April], the workers challenged their dismissal on the basis that Germany’s restrictive laws on the right to strike are in breach of international law, do not correspond with the reality of modern work and are a hangover from the country’s Nazi-era. They lost the case, but will appeal to the German Federal Labour Court. Here, Hopman outlines the argument for a comprehensive right to strike.
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Delivery riders from all over Europe, unite
Laura Carrer and Luca Quagliato spoke to riders across Europe about their experiences. Laura writes in IRPI Media's 'Life is a Game Series' about what they found (video/photography by Luca). In Italian.
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- The Stanford Social Innovation Review and Ford Foundation online conference 'Data on Purpose 2023: “Making Tech Work for Workers”' on 2-3 May will see sessions on 'the gig economy and the end of employment', 'building digital guardrails that serve workers', and 'bossware is coming for you'. Click here for full details and to register.- The Platform Labor Project and the Global Digital Cultures Initiative are holding a hybrid international conference on 'Global Perspectives on platforms, labour and social re-production', at the University of Amsterdam, 27-28 June. Details here.
Know of upcoming events we should be highlighting? Let us know at GEP@BraveNewEurope.com.
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The Gig Economy Project is a media network for gig workers and we welcome contributions from workers, writers, academics, activists - anyone who wants to stand up for workers' rights in the gig economy.
If you would like to write for the site, discuss arranging an interview with GEP, or simply have information about developments in the gig economy in Europe you think we should be aware of, get in touch.
Contact project co-ordinator Ben Wray at GEP@BraveNewEurope.com or send a direct message to the Twitter: @project_gig.
And if you like the Gig Economy Project weekly newsletter, why not get your friends and colleagues to subscribe? Here's the link.
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