At the table, not on the menu: Non-standard workers and collective bargaining in the platform economy

@LawAhead

Is collective bargaining a viable tool to “negotiate” the direction of the phenomenon of the digital transformation of work?

Author: Antonio Aloisi is an Assistant Professor of European and Comparative Labour Law

 

The future of work is not what it used to be. Recent months have been marked by a series of major developments in the conflictual relationship between platform-mediated workers and gig-economy companies. Positive signs are indeed emerging all over Europe. Both traditional unions and informal groups are developing strategies to represent workers involved in the most recent waves of restructuring that result from the introduction of advanced digital technology and new organisational patterns.

Landmark achievements for platform-mediated workers

In May 2018, institutional trade unions, workers’ autonomous collectives and the management of the food-delivery company Sgnam-MyMenu (later joined by Domino’s Pizza Italia) signed a local collective agreement in Bologna. The Charter sets out a fixed hourly rate in line with the sector’s minimum wage – established by the collective agreement for the respective industry – and includes compensation for overtime, holidays, bad weather and bicycle maintenance, accident and sickness insurance. It also guarantees trade union rights (a detailed analysis can be found here).

In July 2018, a historic collective agreement was signed between the Danish trade union 3F and Hilfr.dk, a platform providing cleaning services. Thanks to the agreement, domestic cleaners, who were formerly invariably classified as self-employed, will be considered employees after completing 100 hours of work, unless they explicitly opt out of this status. The single-employer agreement sets a significant hourly minimum wage, protection in case of dismissal, data protection rights and a system regulating the cancellation of shifts.

In February 2019, the British courier company Hermes negotiated a new agreement with the GMB union, offering drivers guaranteed minimum wages and holiday pay in a deal to provide trade union recognition.

These three landmark achievements demonstrate an unexpected vitality, if not even a revival, in collective bargaining and labour militancy in a fluid and atomised world of work. While it might be early to declare the start of an enhanced and broader agenda for organised labour in this sector, these agreements, as argued by KU Leuven’s Valerio De Stefano  ‘debunk many myths about platform work’.

Lastly, the short-term, task-based, and on-demand nature of platform work does not necessarily place gig workers in direct competition with each other: under certain conditions, solidarity is indeed feasible.

First, the agreements represent a step forward in the slow process of normalisation of legal discourses surrounding platform work. Contrary to rhetoric that innovation is incompatible with individual and collective employment protection legislation, the agreements corroborate the idea that social institutions are flexible enough to accommodate even innovative organisational formats.

Secondly, they dismiss the paternalistic account around the ‘unsustainability’ of a business model based on direct employment in hyper-volatile sectors of the labour market. In particular, the agreements show that employment status is not at odds with flexible schedules in an on-demand company providing just-in-time services.

Lastly, the short-term, task-based, and on-demand nature of platform work does not necessarily place gig workers in direct competition with each other: under certain conditions, solidarity is indeed feasible.

 

Shared collective interests

Importantly, these episodes tell a promising story of amalgamation between long-established unions and self-organised or grassroots movements for ‘reconstructing solidarity’, notwithstanding the initial (sometimes persistent) mutual distrust. Successful examples of bargaining in the context of non-standard work, which emerged decades ago in the temporary work agency sector and in sectors where non-standard work is widespread, such as the cultural, creative and media industries, confirm that ‘systems are able to adjust to cover different and new forms of work, as explained by OECD in its recent Employment Outlook 2019. Since collective interests, structurally opposed to those of management, remain unchanged despite major ongoing transformations, hard times can stimulate new thinking and hence provide new opportunities for collective negotiation.

Relatedly, the research I am conducting at the EUI aims to generate insights into a representative portion of the growing range of initiatives aimed at mobilising non-standard workers and developing novel tactics to ensure these workers enjoy adequate collective rights. These actions rely on both old-style formats and inventive strategies, including en masse log-outs, hashtag hijackings, social media and crowdfunding campaigns.

Finding a collective voice

Non-standard, and particularly platform-mediated workers, face serious obstacles in effectively exercising their collective voice. There are three main kinds of impediments, which are tightly entwined.

From a legal standpoint, digitally-supplied workers who are hired as self-employed workers are discouraged from bargaining collectively since the resulting agreement may be found in breach of competition law; nor can they access formal structures of representation that, in several jurisdictions, are restricted only to workers in an employment relationship, as defined by national laws and practices. Despite that, these workers are in a subordinate position to their client, which may resemble an employment relationship in terms of the level of monopsony power and bargaining asymmetry.

From a socio-economic point of view, these workers lack bargaining power. This is exacerbated by the fact that the short-lived nature of assignments and consequent fear of retaliation may make them reluctant to organise.

Lastly, from a more practical perspective, non-standard workers are often dispersed across space and  time, they may face language barriers, and they could have conflicting agendas or opposite needs. This makes building effective alliances over common demands nearly undoable.

 

New forms of redress

There are legal and practical remedies to these categories of obstacles. For instance, collective bargaining by workers who are falsely classified as self-employed could be exempted from cartel prohibition restrictions thanks to a purposive judicial intervention by the Court of Justice of the European Union. Up to now competition law has been concerned primarily with defending consumers from anti-competitive practices by sellers, but this is not the case of platform workers negotiating better fees and working conditions with the companies.

In addition, technological tools facilitate information-sharing and interaction, thus mitigating the fact that workers often execute their tasks independently, in a highly mobile way, over large geographical areas, and in direct competition with one another.

What is more, the fragmentation along different lines within the workforce, such as ethnic identity, self-perception, political views and even motivational aspects, may become a source of strength for structured antagonism, if appropriately combined with issue-based and cross-cutting campaign methods.

 

A place for collective action in the platform economy

Negotiating the digital transformation of work is a crucial objective of social dialogue to organise employers and workers, especially in the platform economy. Collective agreements can introduce flexible measures to offset imbalances resulting from this transformation in a way that is faster and more accurate than through legislative reforms and individual litigation. This undertaking, now in motion, is a testament to the longevity of collective autonomy in the digital era.

This article was written and published by EUIdeas

 

Antonio Aloisi is an Assistant Professor of European and Comparative Labour Law. Prior to joining IE University, he was a Max Weber Postdoctoral Fellow at the European University Institute (EUI), Florence. His research focuses on forms of work in the so-called ‘platform economy’, the effect of digital technologies such as artificial intelligence and algorithms on labour regulation, and new processes of collective action among non-standard workers.

The author provides a more comprehensive discussion of this topic in the EUI MWP Working Paper 2019/03 ‘Negotiating the digital transformation of work: non-standard workers’ voice, collective rights and mobilisation practices in the platform economy’.