DIGITAL PLATFORMS ARE WRONG: WE DON'T HAVE TO CHOOSE BETWEEN WORKERS' RIGHTS AND FLEXIBILITY

Flexibility doesn’t have to be achieved through workers’ precarity. But it does require compliance with the international law and standards on workers’ rights that companies are required to respect

By Barbora Černušáková and Marco Perolini, Amnesty International’s lead researchers focusing on worker’s rights

An earlier version of this OpEd was published by La Repubblica on 10 March 2021.

COVID-19 has exposed with great clarity the absurdity of the proposition that zero sick pay is an acceptable trade-off for being able to pick your working hours. Despite this, many digital platforms continue to put forward a false choice between flexibility and workers' rights. 

On 16 March, Uber announced that its drivers will be treated as workers, guaranteed a minimum wage and paid holidays. This  followed a judgment by the UK Supreme Court, which ruled that Uber's drivers count as workers under existing legislation. This means they should be eligible for the minimum wage, annual leave, and other employment rights. 

Uber's recent commitment is a welcome step, but it is not enough. In its judgment, the Supreme Court stated that “all time spent by a driver working under a worker’s contract with Uber London, including time spent “on duty” logged onto the Uber app in London available to accept a trip request, is “working time”.” This means that Uber should guarantee to pay the minimum wage the whole time the drivers have the app on while waiting for customers. But Uber's new commitment defines working time as the period between when a driver accepts a trip request and when the trip is completed.

This means that gig workers' fight for their rights will continue.

The Supreme Court ruling was a landmark victory for gig workers. Courts in France, the Netherlands, Spain and Italy have reached similar conclusions regarding food delivery riders working for other digital companies such as Glovo and Deliveroo; they are workers, and not independent contractors or self-employed.

The argument made by many digital platforms that drivers and riders are independent contractors undermines the protection of workers’ rights. 

Although Uber and other platform companies which rely on technology are a 21^st century phenomenon, the gig economy isn’t new. It has existed in various forms since the beginning of the 20^th century, when jazz musicians received piecemeal payments for each of their shows.  Today's gig workers are often migrant and BAME workers, or people who have lost their jobs in other sectors.

Luca, a 57-year old Italian man who lives in Milan, works as a food delivery courier with several digital platforms. He explained to us that he had decided to work as a rider because he was attracted by the idea of flexible working hours and patterns. Formerly employed as a butcher in a commercial centre, he had had to work long hours including during weekends. However, his new job has not proved to bring the benefits he had hoped for.

“I liked the idea of flexibility but I soon realized that working with digital platforms was not an El Dorado. I work very long hours to make ends meet and I manage just because I am able to share the rent with my partner. I hope I won’t fall sick, otherwise you don’t get anything. I have seen riders working while having a temperature. For me this is not a student job but a full-time job that just keeps me afloat”. 

It would be myopic not to see the link between workers’ precarity and the business model of digital platform companies. The issue at hand for the vast majority of gig workers is not flexibility versus workers’ rights, but precarity versus workers’ rights.

Thanks to workers’ mobilization and their successes in courts in the UK, Spain, Italy, France and the Netherlands, governments and EU institutions alike are becoming more willing to recognize the need to strengthen the protection of workers. They must bridge the legal loopholes that allow digital platform companies to rely on “independent contractors” without employment and social security rights. Some encouraging legislative steps have been taken in that direction, in Spain and in the Swiss Canton of Geneva.

In launching a consultation on the gig economy on 24 February 2021, the European Commission points to the fact that certain types of platform work are associated with precarious working conditions, and that contractual arrangements lack transparency and predictability. The consultation also noted health and safety challenges, and insufficient access to social protection for platform workers.

The International Labour Organization noted in its latest report that in the absence of an adequate legal framework, protection of workers’ rights in the gig economy could be partially achieved through court judgments. But those workers who seek protection of their rights through the courts, like the claimants in the UK Uber case, know very well that this strategy requires a lot of time and resources. The Uber case began in 2016 with the drivers taking the company to an employment tribunal.

At the same time Uber is pushing back. In early February this year, it published a white paper entitled "A Better Deal". The question is - a better deal for whom? The white paper aims to lobby the European Commission and the message of the document is a "win-win" regulatory reform proposal. The company recognizes that workers need “standardised benefits and protections without compromising the status of independent work”.

However, the status of independent work does prevent drivers from enjoying a crucial set of employment rights. Also importantly, when it comes to collective organizing of workers, the White Paper prefers “direct channels that better respond to individual needs”. This is a proxy often used by tech companies to mask their anti-union stand – Amazon has said the same.

Of course workers need flexibility and many have fought for this right in sectors other than the gig economy without compromising on their other basic employment rights. Women in Northern European countries successfully fought for flexible working arrangements whilst preserving their rights to sick pay, holiday pay and other entitlements. These models may mean some costs for employers. But courts in Germany and the Netherlands have established that extra costs are the price companies should pay in recognition that flexibility is a social and economic necessity.

Flexibility doesn’t have to be achieved through workers’ precarity. But it does require compliance with the international law and standards on workers’ rights that companies are required to respect.