Collective bargaining and the gig economy : a traditional tool for new business models

This open access book investigates the role of collective bargaining in the gig economy. Despite the variety of situations covered by the term ‘gig economy’, collective agreements for employees and non-employees are being concluded in various countries, either at company or at branch level. Offline workers such as riders, food deliverers, drivers or providers of cleaning services are slowly gaining access to the series of negotiated rights that, in the past, were only available to employees. Embedded in the EU legal framework, including the EU Commission’s proposal for a Directive on improving working conditions in platform work and its Draft Guidelines on the application of EU competition law, both from December 2021, the chapters analyse recent high-profile decisions including Uber in France’s Cour de Cassation, Glovo in the Tribunal Supremo, and Uber in the UK Supreme Court. They evaluate the bargaining agents in different Member States of the EU, to determine whether established actors are participating in the dynamics of the gig economy or if they are being substituted, totally or partially, by new agents. Interesting best practices are drawn from the comparison, also as regards the contents of collective bargaining, raising awareness in those countries that are being left behind in the dynamics of the gig economy. The book collects the results of the COGENS (VS/2019/0084) research project, funded by the European Union, that gathered scholars and stakeholders from 17 countries. It will be an invaluable resource for scholars, trade unionists, employers’ representatives and policy makers. This book pertains to the results of the project ‘COGENS: Collective Bargaining and the Gig Economy – New Perspectives’ (VS/2019/0084), financed by the European Union. The opinions reflected in the text are those of the authors and not backed by the European Commission. Preface 8 Contents 12 List of Contributors 14 Introduction 18 1. Collective Bargaining and the Gig Economy: Reality and Possibilities 20 I. A Variety of Situations 20 II. A Variety of Sources, between Hard Law and Soft Law 23 III. (Old) Trade Unions and New Agents 26 IV. Branch or Company-Level Agreements? 29 V. The Contents of Collective Bargaining in the Gig Economy 32 VI. A Short Conclusion 34 PART I: THE SOURCES OF A POSSIBLE REGULATION 36 2. The Boundaries between Collective Agreements and Statutory Legislation in the Gig Economy 38 I. The Regulatory Dilemma in Digital Platform Work: Statutory Legislation, Collective Agreements or Case Law? 38 II. The Aphasia of Legislators in Regulating Digital Platform Work 41 III. Can We Still Speak about Auxiliary Legislation? 43 IV. Is New Legislation Needed? Different Approaches of Statutory Legislation on Digital Platform Work 46 V. Should Residual Law-Making Power be Left to Collective Bargaining? 50 3. A Long Road Towards the Regulation of Platform Work in the EU 56 I. Introduction 56 II. Three Ages of the Study of Platform Work: Time to Regulate? 57 III. Partial Responses from EU Initiatives 58 IV. A Preliminary Assessment of the Current EU Commission"s Roadmap to Regulate Platform Work 62 V. The Collective Self-Regulation of Platform Work: EU Social Partners Lagging Behind 70 VI. Conclusion: sectari rivulos? 72 4. Collective Bargaining for Platform Workers and the European Social Charter 78 I. Introduction 78 II. The European Social Charter 80 III. Platform Work 81 IV. The Right to Collective Bargaining as a Human Right 84 V. ICTU v Ireland 86 VI. The Right to Collective Bargaining in the Platform Economy: Obligation to Recognise, Respect and Promote 89 VII. Conclusion 90 5. The Role of National Courts in Protecting Platform Workers: A Comparative Analysis 92 I. Introduction 92 II. National Contexts 93 III. The Rulings 97 IV. Reverberations 108 V. Concluding Reflections 113 6. Why Collective Bargaining is a 'Must' for Platform Workers and How to Achieve it 116 I. Introduction 116 II. The Merits of Collective Bargaining 117 III. Relationship between Collective Agreements and the Other Labour Law Sources 120 IV. The Example of Working Time: A Popular Topic of Bargaining 122 V. Objectives and Obstacles in EU Law 127 VI. Impediments at National Level: The Hungarian Experience 129 VII. Conclusions: Objectives and Obstacles 132 7. Voluntary Commitments as Alternative Instruments for Standard-Setting? The Example of the German "Code of Conduct - Paid Crowdsourcing for the Better" 134 I. Introduction 134 II. The Code of Conduct in the View of Initiatives on Crowdwork in Germany 135 III. The Code of Conduct: A Brief Presentation 139 IV. Legal Analysis 143 V. Conclusions and Perspectives 148 PART II: ACTORS AND CONTENTS 150 8. The 'Smart' Trade Union: New Strategies for a Digitalised Labour Market 152 I. Introduction 152 II. Overview of the Obstacles to the Collective Representation of Platform Workers 154 III. "Smart" Trade Unions and "Smart" Strategies 161 IV. Conclusion: From "Smart" Strategies to "Smart" Content of Collective Agreements 168 9. Algorithms, Discrimination and Collective Bargaining 170 I. Introduction 170 II. Algorithmic Discrimination 173 III. Algorithmic Discrimination and Collective Bargaining 180 IV. Conclusion 183 10. Protection of Gig Workers against Contract Termination: Not for Everyone? 184 I. Introduction 184 II. Termination of Employment in European Law 185 III. Findings from the Area of Gig Economy 186 IV. Fairness and Transparency Promoted by a New Regulation? 188 V. Applicability of the Regulation 191 VI. Conclusions: Is Collective Bargaining the Answer? 193 11. The Personal Dimension of Collective Bargaining in the Gig Economy: The Spanish Perspective 196 I. Introduction: The Gig Economy and Platform Work in Spain 196 II. The Personal Scope of Collective Bargaining in the Platform Economy: Bargaining for and by Whom 198 III. Actors Involved in Collective Bargaining in the Platform Economy Context 208 IV. Conclusions: The Following Steps 210 12. The Shortcomings of the North American Collective Bargaining Model with Regard to Platform Workers: The Turkish Perspective 214 I. Introduction 214 II. Heterogeneity of Platforms and Collective Representation Models 217 III. Designation of Bargaining Unit and Platform Workers 221 IV. Conclusions 225 13. Extending the Personal Scope of Collective Bargaining as a Chance for Gig Workers? The Polish Case 228 I. Opening Remarks 228 II. The Development of the Gig Economy in Poland 229 III. Abuse of the Non-Employee Status and the Crisis of Collective Bargaining 231 IV. Legal Status of Gig Workers 232 V. Collective Status of Gig Workers 235 VI. Collective Procedures 239 VII. The Reality of Collective Bargaining for Gig Workers 240 VIII. Conclusions 242 14. (A Fundamental Right to) Collective Bargaining for Economically Dependent, Employee-Like Workers 244 I. Introduction 244 II. The Legal Situation at EU Level 245 III. Collective Bargaining Rights for Non-Employees at National Level 254 IV. Action at EU Level (Required) 261 V. Résumé 269 Index 270 Introduction / José María Miranda Boto and Elisabeth Brameshuber -- Collective bargaining and the gig economy : reality and possibilities / José María Miranda Boto -- The boundaries between collective agreements and statutory legislation in the gig economy / Piera Loi -- A long road towards the regulation of platform work in the EU / Luca Ratti -- Collective bargaining for platform workers and the European Social Charter / Barbara Kresal -- The role of national courts in protecting platform workers : a comparative analysis / Jeremias Adams-Prassl, Sylvaine Laulom and Yolanda Maneiro Vázquez -- Why collective bargaining is a 'must' for platform workers and how to achieve it / Tamás Gyulavári and Gábor Kártyás -- Voluntary commitments as alternative instruments for standard-setting? The example of the German 'code of conduct - paid crowdsourcing for the better' / Judith Brockmann -- The 'smart' Trade Union : new strategies for a digitalised labour market / Felicia Roşioru -- Algorithms, discrimination and collective bargaining / Teresa Coelho Moreira -- Protection of gig workers against contract termination : not for everyone? / Jakub Tomšej -- The personal dimension of collective bargaining in the gig economy : the Spanish perspective / Daniel Pérez del Prado -- The shortcomings of the North American collective bargaining model with regard to platform workers : the Turkish perspective / Kübra Doğan Yenisey -- Extending the personal scope of collective bargaining as a chance for gig workers? The Polish Case / Marta Kozak-Maśnicka and Łukasz Pisarczyk -- (A fundamental right to) collective bargaining for economically dependent, employee-like workers / Elisabeth Brameshuber. "This open access book investigates the role of collective bargaining in the gig economy. Despite the variety of situations covered by the term "gig economy", collective agreements for employees and non-employees are being concluded in various countries, either at company or at branch level. Offline workers such as riders, food deliverers, drivers or providers of cleaning services are slowly gaining access to the series of negotiated rights that, in the past, were only available to employees. The chapters analyse recent high-profile decisions including Uber in France's Court de Cassation, Glovo in the Spanish Supreme Court, and Uber in the UK Supreme Court. They evaluate the bargaining agents in different Member States of the EU, to determine whether established actors are participating in the dynamics of the gig economy or if they are being substituted, totally or partially, by new agents. Interesting best practices are drawn from the comparison, also as regards the contents of collective bargaining, raising awareness in those countries that are being left behind in the dynamics of the gig economy. The book collects the results of the COGENS (VS/2019/0084) research project, funded by the European Union, that gathered scholars and stakeholders from 17 countries. It will be an invaluable resource for scholars, trade unionists and policy makers. The open access edition of this book is available under a CC BY-NC-ND 4.0 licence on www.bloomsburycollections.com."-- Provided by publisher "This open access book investigates the role of collective bargaining in the gig economy. Despite the variety of situations covered by the term "gig economy", collective agreements for employees and non-employees are being concluded in various countries, either at company or at branch level. Offline workers such as riders, food deliverers, drivers or providers of cleaning services are slowly gaining access to the series of negotiated rights that, in the past, were only available to employees. The chapters analyse recent high-profile decisions including Uber in France's Court de Cassation, Glovo in the Spanish Supreme Court, and Uber in the UK Supreme Court. They evaluate the bargaining agents in different Member States of the EU, to determine whether established actors are participating in the dynamics of the gig economy or if they are being substituted, totally or partially, by new agents. Interesting best practices are drawn from the comparison, also as regards the contents of collective bargaining, raising awareness in those countries that are being left behind in the dynamics of the gig economy. The book collects the results of the COGENS (VS/2019/0084) research project, funded by the European Union, that gathered scholars and stakeholders from 17 countries. It will be an invaluable resource for scholars, trade unionists and policy makers. The open access edition of this book is available under a CC BY-NC-ND 4.0 licence on www.bloomsburycollections.com. "-- Site de l'éditeur