More than Formal Recognition?
Collective Labour Rights in the Platform Work Directive
The Commission’s proposal for a Platform Work Directive contains a number of provisions recognising collective labour rights for platform workers, mostly revolving around information and consultation rights for workers’ representatives. This suggests that, at least in principle, extending workplace representation and industrial relation practices to the platform economy is part of the Commission’s policy agenda.
This impression is further reinforced when the Directive proposal is read in conjunction with other Commission’s initiatives, such as the Guidelines on collective bargaining for solo self-employed and the proposal for a Council recommendation on strengthening social dialogue in the European Union. Indeed, both policy instruments contain specific references to the importance of fostering collective bargaining practices in the context of platform work.
However, this essay argues that even if certain collective labour rights are formally recognised, the proposed directive does not offer adequate basis for their effective exercise. Trade union organising, collective bargaining and workplace democracy do not find sufficient support in the directive, thus limiting their development within the platform economy.
What are the collective labour rights established in the proposed Directive?
The proposed directive makes several references to workers’ representatives and their right to information and consultation in relation to the use of algorithmic management.
Already in the preamble, the proposed Directive refers to Article 27 of the Charter of Fundamental Rights of the European Union (CFREU) protecting the workers’ right to information and consultation within the undertaking (Recital 2). Then, Article 9 (and Recital 39), in addition to a general reference to Directive 2002/14/EC establishing a general framework for informing and consulting employees, introduces an obligation for Member States to ensure that platform workers and their representatives are informed of ‘decisions likely to lead to the introduction of or substantial changes in the use of automated monitoring and decision-making systems’. The proposal also states that the platform workers’ representatives may be assisted by an expert of their choice and that if the digital labour platform has more than 500 workers in a Member State, the costs of the expert shall be borne by the platform, provided that they are proportionate.
These provisions only apply to those classified as ‘workers’ (employees), thus excluding self-employed individuals (see Silberman). However, some other rights are available to all those working through a digital labour platform, regardless of their employment classification. Article 12 includes ‘representatives of persons performing platform work’ among those who, together with labour and social protection authorities, can require digital labour platforms to disclose information on the number of persons working for them and on their contractual relations, and can request additional clarifications and details on the data provided. Finally, Article 15 stipulates that digital labour platforms shall establish communication channels through which ‘person performing platform work [can] contact and communicate with each other, and to be contacted by representatives’. It is specified that the platforms should refrain from accessing or monitoring these contacts and communications. This provision is quite interesting and novel, as it may enable the creation of a safe digital environment where the workers and their representatives can organise and plant the seed of unionisation.
Certainly, the proposed directive goes in a positive direction by recognising that the implications of algorithmic management should be subject to information and consultation practices. However, significant concerns remain about the actual effectiveness of these provisions in promoting the exercise of collective labour rights and the establishment of industrial relations practices in the platform economy.
The problem is twofold. First, the scope of information and consultation rights is defined too narrowly (section 2). Second, the proposed directive lacks a definition of the basic space or unit for collective representation, which is crucial for electing workers’ representatives (section 3).
Too narrow scope of information and consultation rights
The scope of the information and consultation rights set out in the Commission’s proposal is too narrow under two aspects: personal and material. As regards the personal scope, the directive excludes platform workers who are genuinely self-employed from exercising the rights established in Article 9. Apart from depriving vulnerable platform workers of access to collective labour rights, this policy choice seems to clash with the Guidelines on collective bargaining for solo self-employed workers, an instrument that was proposed as a twin initiative to the platform work directive (both were proposed on 9 December 2021). In terms of material scope, the proposed directive fails to identify and address the links between information and consultation rights in relation to algorithmic management and other key EU labour law instruments beyond Directive 2002/14/EC.
Personal scope of application: contradiction with the Commission’s Guidelines on collective bargaining
With the Guidelines on collective bargaining for solo self-employed, the Commission sought to remove the legal uncertainty that had governed the relationship between EU competition law and collective bargaining practices involving self-employed workers. According to a strict interpretation of Article 101 TFEU, the collective negotiation of wages and other working conditions by self-employed constituted an anti-competitive practice affecting trade and competition within the internal market, comparable to any other agreement between undertakings.
In addressing the matter, the Guidelines identify a number of circumstances in which the Commission considers collective bargaining practices involving solo self-employed as falling outside the scope of competition law or its enforcement. One of these situations is that of self-employed individuals working through digital labour platforms. With this policy initiative, the Commission has therefore recognised that genuinely self-employed platform workers can engage in collective bargaining and exercise the right to negotiate collective agreements.
This openness towards collective rights for solo self-employed platform workers is, however, not reflected in the proposed directive; on the contrary, it appears to be jeopardised by its failure to recognise information and consultation rights for self-employed platform workers. Information and consultation practices in fact are a crucial preliminary step in view of exercising the right to collective bargaining. In particular, information on automated monitoring and decision-making systems is an essential condition for the effectiveness of collective negotiations on the working conditions, since they are intrinsically affected by the use of algorithmic technology (see Bronowicka). The strong correlation between information and consultation practices and collective bargaining is also clearly recognised in Article 9(3) and 9(4) of Directive 2002/14/EC, to which the proposed Platform Work Directive explicitly refers, and which states that information should be given at such time and fashion to enable workers’ representatives to prepare for the consultation and that, in turn, consultation should take place with a view to reaching an agreement.
The distinction in the proposed Platform Work Directive between ‘workers’, having access to information and consultation rights, and ‘persons performing platform work not having an employment relationship’, deprived of those rights, therefore seems artificial and difficult to justify. Not even the European Parliament’s amendments to the Commission’s proposal, which in general have the merit of substantially strengthening the collective labour rights dimension of the directive, intervene in the scope of Article 9.
Material scope: Why only Directive 2002/14/EC?
The scope of application of the information and consultation rights set out in the proposed Directive is too limited also in that it fails to acknowledge the significance of algorithmic management in relation to EU (collective) labour law instruments other than Directive 2002/14/EC.
The most striking omission concerns Directive 2009/38/EC regulating European Works Councils (EWC). Especially in consideration of the cross-border dimension that frequently characterises the activity and business model of digital labour platforms, the lack of reference to this instrument weakens the effectiveness of information and consultation rights of platform workers. The EWC Directive, in fact, establishes that once a European Works Council has been set up, its members have the right to be informed and consulted on matters of transnational relevance, and in particular on trends relating to employment, investment, changes in organisation, and the introduction of new working methods and production processes (Annex I, 1(a)).
As the deployment of automated monitoring and decision-making systems has a concrete impact on these aspects, the Platform Work Directive should clarify that European Works Councils have competences in relation to the use and functioning of algorithmic management. Interestingly, a reference to Directive 2009/38/EC was included in the European Parliament’s amendments, but not in the Council’s proposal.
Similar considerations could be made in relation to Directive 98/59/EC on information and consultation rights in case of collective redundancies. Whether the redundancies are the result of the deactivation of the accounts or termination of the employment contracts by means of an algorithm, or is the result of a strategic choice by the platform to reduce its presence in a given area or market, these terminations should be lawful only provided that the information and consultation procedure outlined in Directive 98/59/EC is respected. And for this procedure to be effective, workers’ representatives should have access to information about the algorithm and/or the platform’s labour market strategy.
Missing definition of the space for collective representation
Another element that the proposed Platform Work directive does not take into account is that the exercise of information and consultation rights may be far less straightforward than it appears at first sight. Indeed, information and consultation rights are primarily assigned to workers’ representatives. As a consequence, the proper implementation of information and consultation practices requires the identification of the ‘locus’, or unit, from which workers’ representatives are elected and derive their representative legitimacy by obtaining their mandate to negotiate. To define this space, EU directives rely on the legal concepts of ‘establishment’ and ‘undertaking’. These representative units may be quite difficult to identify in relation to platform work.
The legal concepts of ‘establishment’ and ‘undertaking’ were conceived in a pre-digital context and imply a workplace with identifiable spatial and organisational characteristics. These are, however, partially absent when work is provided through the digital infrastructure of an app. Moreover, they refer to a world where the workplace has not yet been so dramatically affected by fragmentation and outsourcing, and where most of those working in the same physical space and contributing to the same production process have the same employer. Platform economy instead is the archetype of the dismantling of the traditional company structure, gig-work and subcontracting. Simply put, platform work further severs the link between physical presence of the worker and work itself. Tying unionization and workers’ representation to physical presence is therefore anachronistic.
The space for the exercise of information and consultation practices needs to be reinterpreted in consideration of the characteristics of the platform economy. This may be relatively easy for on-location platforms (food delivery, care, postal services) where, even in the absence of directly identifiable premises, the execution of the work takes place in a tangible spatial and topographical dimension. However, identifying the unit of representation is much more complex for platform work that is carried out entirely online, as in the case of crowdwork platforms. Here, the element of territoriality in the execution of the work completely loses its relevance. One way to overcome the lack of a tangible working environment could be to link the exercise of information and consultation rights to (digital) spaces identified within the (digital) architecture of the platform. In this respect, the practical implementation of Article 15 of the proposed Directive – which requires the creation of communication channels – could offer interesting solutions and insights.
Beyond that, however, neither the Commission’s nor the Council’s proposal provide guidance for a purposive redefinition of the space of collective representation. The European Parliament’s position seems more constructive, with the introduction of a Chapter IIIa on the promotion of collective bargaining. A strong legislative emphasis on collective rights may indeed be a promising strategy to stimulate the modernisation of industrial relations practices and the redefinition of the representative units.
The way forward
The adoption of a legislative instrument regulating working conditions in the context of the platform economy and algorithmic management practices could have been a valuable opportunity for EU law-makers to realign the scope of existing collective labour rights with the vulnerabilities associated with the digital transformation of the labour market. Clearly, the preparatory legislative material produced so far by the EU institutions suggests that this opportunity has not been seized.
What lies ahead? In the absence of adequate provisions enabling effective information, consultation and negotiation rights in the Platform Work Directive, these protective gaps could still be addressed through specific amendments to the existing EU directives on collective labour rights. Alternatively, the Court of Justice will have to play its role through judicial interpretation. What is certain, however, is that the necessary evolution of the normative framework will now proceed at a slower pace, while the disruptive impact of the platform economy and algorithmic management continues to accelerate.
Acknowledgements
Many thanks to Eva Kocher for coordinating this timely symposium and to Eva, the team at Verfassungsblog, and Antonio Aloisi for the feedback on this contribution. Thanks also to M. Six Silberman for the rich discussion on the Platform Work Directive.