II Seminario Internacional Sobre “Nuevos Modelos De Trabajo Y Consumo: Economía Colaborativa Y Trabajo En Plataforma” Seville, Spain. University of Seville. November 8 – 9, 2018

1. Labour Law for the
Changing World of Work
ANTONIO ALOISI
Fellow in Law
@_aloisi

2. 2
Labour Law
for the Future of Work?

3. 3
Labour Law
for the End of Work?

4. – deindustrialisation + tertiarisation of the economy,
– flexibilisation + casualisation of work,
– spread of ubiquitous devices + porous workplaces + user-friendly tech,
– shifts in lifestyle and generational preferences
z Labour law as the “frontier area” in which transformational new
realities have revealed their fiercest impact
z New arrangements call into question the suitability and
effectiveness of the current employment legislation
z There is the need for a balance between safeguarding social rights
and unleashing authentic societal improvements
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Digital transformation of work
and its key drivers
Automation Algorithms + AI Platforms

5. A definition of platform work
Eurofound’s understading
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“an employment form that uses an online platform to enable
organisations or individuals (workers) to access other organisations or
individuals (clients) to solve specific problems or to provide specific
services in exchange for payment”
The main features of platform work are:
z Paid work organised through online platforms
z Three parties: online platform, client, worker
z Aim is to conduct specific tasks
z Form of outsourcing/contracting out
z Break-down of ‘jobs’ into ‘tasks’
z On-demand services

6. A definition of platform work
definitions matter
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z platform economy
z sharing economy
z on-demand economy
z gig-economy
z collaborative economy
…
à channel of distribution
à over-hyped enthusiasm
à workers on tap
à a sense of denial
à the EU’s version
…

7. Today’s agenda
‘Facing the challenges of
platform-mediated labour.
The employment relationship
in times of non-standard work
and digital transformation’
‘Workers without workplaces,
and unions without unity.
Non-standard forms of
employment and collective
rights’
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[b] Current project[a] Doctoral dissertation

8. Doctoral dissertation
Research questions
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[a] the gig-economy
Does platformisation redefine the institutional
notion of the firm?
What are the key legal determinants of an
employment relationship?
How should we regulate platform-mediated
labour in its infancy (and other NSFE)?
1
2
3

9. [1] Coase (+ Williamson + Powell + Malone) offered an
explanation which remains a valid basis to elucidate the
interrelations between economic actors and their choices
[a] the vertically (dis)integrated firm (TCE) and
[b] it is just a shift from a bureaucratic control to a more
sophisticated (technocratic), invisible and pervasive one
[!] now: strong prerogatives, liquid responsibilities
Doctoral dissertation
1. the Cerberus firm
(1) Firms
command-&-control
prerogatives,
authoritative
mechanisms enforced
by vertical relational
contracts
(2) Markets
treating workers as
independent
contractors avoiding
production costs
(thanks to commercial
contracts)
(3) Networks
immaterial
infrastructure
(“intermediaries”)
allocating services
in a multi-sided
market
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+ +

10. [1] a broader class of non-standard forms of work
emerging from digitalisation
[2] the SER is a resilient tool, capable of adapting to the
incessantly changing nature of production systems
[3] managerial prerogatives (organisation, control,
discipline) = legal determinant of an employment
relationship, whatever the means, direct or algorithmic
[a] crucial gateway to protections for workers
[b] supporting employers, who can rely on a stable
workforce, retain and benefit from workers’ expertise
[c] an effective tool to deliver training and develop
specific skills
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Doctoral dissertation
2. the end of the standard?

11. [4] largely shared narrative on the identity crisis of the
standard employment relationship (SER): simplistic
[a] quantitative argument: data shows that the regular
employment contract is still dominant across Europe
[b] theoretical standpoint: the controversial narrative
might be also seen as a political manifesto aimed at
reducing workers’ rights (Bavaro; Montuschi)
[5] the elasticity of the notion of employee and its
hermeneutical resilience, coupled with the flexible indexes
developed by the domestic and European case law, offer
viable guarantees of ensuring the effectiveness of labour
law
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Doctoral dissertation
3. innovation facilitator

12. Doctoral dissertation
4. an attempted taxonomy
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system of payment
content
location
execution
dimension
key features: Platform-mediated
labour
Global
Online:
professional
crowd-work
Remotely
(at the provider’s
premises)
Creative
Output-
related
Repetitive
(piecework)
Local
Offline:
work on-demand
via platform
On-demand
Household
Services
Passenger
Transport Services
Manual
Hourly or
“per-drop”

13. Doctoral dissertation
5. at the tap of an app
[1] exploring working conditions and understanding the
existing legal framework in 3 subsectors and 5 dimensions:
z access to the platform and registration
z selection process and hiring
z performance execution
z rating and ranking
z payment rewards for completed tasks
[2] analysing the EU legal framework:
(i) the EC’s Communication 356/2016
(ii) the European Pillar of Social Rights
(iii) the ruling on Uber by the ECJ

14. [1] much of the competitive advantage of the new
players derives from their failure to comply with labour or
social security regulations
[2] platforms acting as brokers for precarious work,
rather than creating new opportunities
[3] the goal is not “to make all work standard, but rather
to make all work decent”
[a] strategies to integrate new work into existing
contractual arrangements and social protection systems
[b] business models should selected in line with
available legal patterns, without stifling innovation,
reducing competitiveness or thwarting job creation
Doctoral dissertation
6. negotiating platformisation
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15. [b] collective rights for NSFE
Does the existing legal framework (competition
regulation) provide adequate responses?
Can preliminary efforts lead to the emergence of
sectorial collective agreements?
How can unions & employer organisations be
relevant in the new world of work?
Current project
Research questions
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1
2
3

16. [1] places of work (remote versus face-to-face) and
relationships with clients (telemediated versus direct)
create different patterns of work, and different risks
Current project
1. a “collective” challenge
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the “summa divisio” and its implications for power resources
micro vs macro tasks public vs private spaces

17. [1] public debate on the “future of work” is insufficiently
focused on how tech is altering power relationships
[a] the relationship between innovation and jobs is
necessarily mediated by how labour is negotiated
[2] organisations of all kinds are experimenting with new
decentralised formats somehow inconsistent with the
“topos” of the industrial model (time, space, action)
[a] atypical forms take a larger numbers of workers
outside the scope of the competition law exemptions(?)
letting collective agreements outside antitrust restrictions
[b] platform resistance, dispersed workforce, new and
variety of workers’ demands
Current project
2. adapting industrial relations
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18. Current project
3. the European binary divide
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19. Current project
4. the European binary divide
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C-413/13
FNV
Kunsten
C-67/96
Albany
C-434/15
Uber
Spain
limited immunity from
antitrust restrictions (general rule)
“not only competition law,
but also social policy goals”
- nature “the outcome of collective negotiations between
organisations representing employers & workers”
- purpose “it contributes directly to improving one of
their working conditions, namely their remuneration”
(same logic) collective rights for
“false self-employed workers”
“service providers in a situation comparable to
that of those workers, a collective labour
agreement, [...], which sets minimum fees for those
self-employed service providers, does not fall within
the scope of Article 101(1) TFEU”
drivers “auxiliary within
the principal’s undertaking”
“Uber determines the maximum fare by means of the app,
receives that amount from the client before paying the driver,
and it exercises control over the quality of the vehicles,
the drivers and their conduct”

20. [1] only self-employed individuals who do not provide
‘labour’, but provide services (by means of an
independent business organisation), and whose relevance
in the provision of the service in terms of capital and work
of other persons is considerably superior to the relevance of
the individual’s personal work, could be restricted in their
right to bargain collectively (De Stefano and Aloisi, 2019)
[a] the persistent (and ambiguous) overlap between
independent contractors and (“micro” or “auto”)
undertaking must be challenged when taking into
account the case of platform workers whose autonomy
is merely “virtual” (notional)
Current project
5. a functional interpretation
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21. [1] achieving effective representation and negotiation for
NSFE in order to alleviate the risks and improve the T&C,
in an attempt to rebalance the power asymmetries
[a] more transparent and fair management by
algorithms, ratings and surveillance
[2] adapting & reinventing the way social actors operate:
[a] classical sources of organisation (representation,
strikes, bargaining), carried out by institutional unions
[b] soft tools (social groups, manifestos and rating
widgets), by informal and self-organised groups
[?] what about skills, social protection, taxation, social
dialogue and future challenges/opportunities/solutions…?
Current project
6. the way forward
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22. Current project
7. organising the unorganisable
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Italy Italy, the new collective agreement for the logistics sector includes provisions for the “rider” job position
(Casadei, 2017). Riders have the opportunity to negotiate their working conditions
Germany In 2016, IG Metall changed its statutes to allow self-employed to become members. In 2017, self-employed
may receive insurance for legal costs up to EUR 100,000 in cases of legal disputes with clients
In 2016, IG Metall launched Fair Crowd Work: a type of watchdog organisation run in collaboration with
Austrian and Swedish trade unions. It collects information about crowd employment platforms and
produces a rating system based on the platforms’ terms and conditions and worker reviews
Ver.di took a more active role in facilitating dialogue between workers and platforms. Ver.di has focused on
physical platform employment. These workers are a pressing concern as physical platform work is much
more likely to be done frequently, and much more likely to constitute a considerable portion of an
individual’s income
Denmark Hilfr.dk, a Danish platform for cleaning services in private homes as signed a collective bargaining
agreement with one of Denmark’s biggest unions, 3F: sick pay, holiday and pension contributions and
minimum wage
Sweden Unionen has developed a plan to certify platforms for fair and socially sustainable working conditions.
Unionen, Sweden’s largest union, has been a collaborator on the FairCrowd.work project and brings a
unique perspective to worker agency, representation, and voice among non-standard workers
The
Netherlands
Social partners attempt to mitigate some of the effects resulting from the rise of this in-between category of
workers through adopting minimum fees for self-employed persons in collective bargaining agreements

23. [1] platform workers do not necessarily need new
regulations, but instead more effective enforcement and
an unambiguous legal framework
[2] instead of a one-size-fits-all approach, “surgical”
regulatory interventions could help the collaborative
economy companies to improve their business model
[a] only a few European States have adopted specific
regulations: the model is mercurial in nature and a hefty
intervention may provoke its premature asphyxiation
[3] the current European attitude is perceived as a fair
balance, but considerable efforts need to be made in order
to ensure a stable and sustainable future
Final remarks
a few key points
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24. thank you :)
antonio.aloisi@eui.eu
https://sites.google.com/view/antonioaloisi/
Digital innovation can evolve and “disrupt”
in a direction compliant with sustainable objectives.
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