“At the table, not on the menu”

Non-standard workers and collective bargaining in the platform economy

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 various strategies for the representation of workers involved in the most recent waves of restructuring that are the result of the introduction of advanced digital technology and new organisational patterns.

In May 2018, a local collective agreement was signed in Bologna by institutional trade unions, workers’ autonomous collectives and the management of the food-delivery company “Sgnam-MyMenu” (later joined by “Domino’s Pizza Italia”). 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.

By considering a narrow timeframe, 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. Whether these preliminary results will mark the start of an enhanced and broader agenda for organised labour, leading to winning demands, remains to be seen. In any event, these agreements “debunk many myths about platform work”, as argued by De Stefano. Generally speaking, they represent a step forward in the slow process of “normalisation” of legal discourses surrounding platform work. Contrary to the widespread 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 also 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.

More 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. On closer inspection, successful examples of bargaining in the context of non-standard work, which emerged decades ago in the temporary work agency sector, or in sectors where non-standard work is widespread, such as the cultural, creative and media industries, have confirmed 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 the major ongoing transformations, hard times can stimulate new thinking and hence provide new opportunities for collective negotiation. In light of the above, 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.

Non-standard, and particularly platform-mediated, workers face serious obstacles to the effective exercise of collective voice. These impediments pertain to three major classes, which are strictly entwined. From a legal standpoint, as digitally-supplied workers, hired as self-employed workers, they are discouraged from bargaining collectively since the resulting agreement may be found in breach of competition law (about which more here); 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, which is in turn exacerbated by the fact that the short-lived nature of assignments and the consequent fear of retaliation represent serious hindrances to their organisation. Lastly, from a more practical perspective, non-standard workers are barely in physical, temporal and linguistic proximity and may have conflicting agendas as well as opposite needs, thus making the building of effective alliances over common demands hardly practicable.

The categories of obstacles have a corresponding set of legal and practical responses aimed at facing misclassification, improving pay and conditions, making shift allocation more transparent and predictable, contesting unjustified rejections or capricious account deactivation. For instance, collective bargaining by workers who are falsely classified as self-employed could be exempted from the cartel prohibition restrictions thanks to a purposive judicial intervention by the Court of Justice of the European Union, since 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. At the same time, 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, can be mitigated thanks to the use of technological tools facilitating information, interaction and the sharing of bad experiences and best practices. 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 aptly combined with issue-based and cross-cutting campaign methods.

I am extremely grateful to Claire Kilpatrick, who organised and chaired a workshop on this topic at the EUI, and to Nastazja Potocka-Sionek, Valerio De Stefano and Jeremias Prassl for great discussion and feedback.

Photo credit: Deliverance Project + AZ.