– “Enterprise, employment and unemployment in the digital economy” International Conference | University of Brescia, 12-13 October 2017 – Labour 2030, Rethinking the Future of Work International Conference | Porto, 13-14 July 2017

1. The role of the EU institutions
in promoting decent work
in the collaborative economy
– Antonio Aloisi
Università Commerciale Bocconi, Milano
Labour 2030, Rethinking the Future of Work
Porto, 13 - 14 July 2017

2. Understanding the
European approach
to regulating the
“gig-economy”
1. An umbrella definition for
work in the “collaborative
economy”
2. The main models:
crowdsourcing and work on
demand via platform
3. From deregulation to
innovation? From litigation
to regulation?
4. Towards “social
responsibility by design”

3. An emblematic
prototype of
broader trends that
are reshaping the
world of work:
● Casualisation and
flexibilisation,
● Global competition,
● Tertirisation at the expenses
of the manufacturing sector,
● Rise of precariousness,
● Discontinuity and
dynamicity of careers,
● Fissuring of the workplace.

4. A preliminary disclaimer
● Emphasis on the “professionalised” segment of the CE, bearing in mind that
the original scheme “has progressed from a community practice into a profitable
business model”.
● It is hard to retrace a homogenous model among collaborative platforms
classified under this comprehensive label, but an autonomous archetype can
be described.
● Borrowing the European Commission’s definition which brings platforms at
the core of the debate on the future of work: “business models where activities
are facilitated by collaborative platforms that create an open marketplace for the
temporary usage of goods and services often provided by private individuals”.

5. 1. that work as digital marketplaces for non-standard and contingent work;
2. where services of various nature are produced using preponderantly the labour
factor (as opposed to selling goods or renting property or a car);
3. where labour (i.e. the produced services) is exchanged for money;
4. where the matching is digitally mediated and administered although performance
and delivery of labour can be electronically transmitted or be physical;
5. where the allocation of labour and money is determined by a collection of buyers
and sellers operating within a price system.
Joint Research Centre’s definition of platforms:

7. crowd-sourcing or
crowd-employment
work on demand
via piattaform
“focus separately […] on online and offline workers, because their places of work
(remote versus face-to-face) and relationships with clients (telemediated versus direct)
create different patterns of work, exposing them to different risks” (U. Huws)

8. ● Crowdwork (or “crowdsourcing”) includes services delivered remotely (i.e.
over the Internet), encompassing very different varieties of activities, routine
(so-called “click work” or “micro work”) as well as creative and cognitive ones,
such as conceiving marketing campaigns or editing long-form journalistic or
academic articles.
● The list of dominant performances, also labelled as “human intelligence tasks”,
is rather long, ranging “from data entry and admin work over graphic design and
coding to legal and business consulting” (OCSE).
● The model consists in breaking down a work into its smallest constituent parts
and offering each of them to an always available, globally dispersed labour
force.
Summa divisio: crowdsourcing

9. ● Services delivered materially (mostly performed on a local basis, at the
household’s premises), such as accommodation, transportation, delivery,
maintenance, handyman, cleaning or personal services.
● “Traditional” tasks are channelled through virtual networks that benefit from
digital penetration (effective geo-location systems, ubiquitous connections,
online payments).
● Under the veil of enhanced flexibility, stress and unpaid waiting time are the
rule. For instance, cycle couriers have to wear a commercial uniform, use their
own vehicle, show up in a hotspot, then log in the app from their smartphone,
and deliver meals as quickly as possible. They are paid on a piecework or, more
rarely, hourly basis.
Summa divisio: work on demand via app

10. how many?
The participation in the collaborative economy is “relatively small – but growing”:
only 5% of European consumers have participated in this framework,
making no more than €1,000 (the median of earning stands at around €300).
There are around 100,000 active workers in the EU,
the 0.05% of the total workforce
(more than 6 out of 100 shall be accounted for as Uber drivers).

11. Analysis of the
Agenda for the
Collaborative
Economy
● “Regulatory grey zones are exploited
to circumvent rules designed to
preserve the public interest”
● Five key issues:
○ market access requirements
and the underlying services;
○ liability regimes;
○ protection of users;
○ labour law and worker
classification;
○ taxation.
The European Commission’s
Communication COM(2016) 356

12. ● The offer of the “underlying service” as a way to understand which regulative
corpus should be applied to platform.
● According to the document, if the platform ends up in providing the “real
world” service (i.e. transport, delivery, cleaning, short term rentals), in
addition to the information society service, it could be subject to “relevant
sector-specific regulation, including business authorization and licensing
requirements generally applied to service providers”.
● Regulators are constantly asked to distinguish between professionals and
individuals who recur to the collaborative economy platforms on an
occasional basis, when services are provided for free or at a price that barely
covers costs.
The multilayers analysis by the Commission

13. ● Considering three key concurring elements:
(i) the determination of the price;
(ii) the definition of principal contractual terms, other than price;
(iii) the ownership of assets used to offer the underlying service.
● The criteria are not stringent (merely assisting the very provider or arranging
a rating system does not “constitute proof of influence and control”).
● Orchestrating or participating in the underlying service means acting as a
service provider employing peers (rectius: workers) to perform the offered
services and requires a compliance with the sector specific regulation in force
at a European and national level.
A concrete assessment

14. ● Three criteria to detect the existence of an employment relationship:
(i) the existence of subordination;
(ii) the performance of effective duties;
(iii) the presence of remuneration.
● The link of subordination can be described as the exercise of the power of
direction by the platform, which determines the content of the activity, how
the performance is accomplished and the form and quantity of the
remuneration.
● Management and control on a continuous basis is not decisive + limited
working hours or low rate of productivity are not enough to exclude an
employment relationship.
Labour law and worker classification

15. ● One may connect this analysis with the previous one on the provision of the
underlying service.
● If so, the existence of an employment relationship would be sufficient to
“reclassify” the platform as a provider of the “real world” service, thus
resulting in the subject to sector specific requirements, in circular way.
● In the light of this scrutiny, “Uber is the one most likely to qualify as being based
on an employment relationship” [Hatzopoulos V. and Roma S. (2017)]
● As a consequence, its conduct potentially infringes both competition and
employment legislations.
On a closer inspection

16. The role of the
European
Parliament
The document calls on an update
of existing labour and social
standards, demanding a proposal
for “a framework directive on
decent working conditions in
all forms of employments,
extending existing minimum
standards to new kinds of
employment relationship”.
1. The European Pillar of Social
Rights
2. The Parliamentary Resolution on
Collaborative Economy

17. ● […] Decent working conditions in all forms of employment, extending existing
minimum standards to new kinds of employment relationships, based on a
thorough impact assessment;
● By complementing existing EU law and ensuring for every worker a core set of
enforceable rights, regardless of the type of contract or employment
relationship, including equal treatment, health and safety protection,
protection during maternity leave, provisions on working time and rest time,
work-life balance, access to training, in-work support for people with
disabilities, adequate information, consultation and participation rights,
freedom of association and representation, collective bargaining and collective
action.
The European Pillar of Social Rights, 2017

18. ● For work intermediated by digital platforms and other instances of dependent
self-employment, a clear distinction – for the purpose of EU law and without
prejudice to national law – between those genuinely self-employed and those
in an employment relationship, taking into account ILO Recommendation 198;
● Those employed as well as those genuinely self-employed who are engaged
through online platforms should have analogous rights as in the rest of the
economy and be protected through participation in social security and health
insurance schemes;
● Member States should ensure proper surveillance of the terms and conditions
of the employment relationship or service contract, preventing abuses of
dominant positions by the platforms;
The European Pillar of Social Rights

19. ● Recognises that many rules from EU acquis are already applicable to the CE;
● [Underlines] the paramount importance of safeguarding workers' rights in the
collaborative services – first and foremost the right of workers to organise,
the right of collective bargaining and action, in line with national law and
practice;
● Recalls that all workers in the collaborative economy are either employed or
self-employed based on the primacy of facts and must be classified
accordingly; calls on the Member States and the Commission, in their
respective areas of competence, to ensure fair working conditions and
adequate legal and social protection for all workers in the collaborative
economy, regardless of their status;
The E.P. Resolution on Collaborative Economy, 2017

20. ● Calls on the Commission to publish guidelines on how Union law applies to the
various types of platform business models in order, where necessary, to fill
regulatory gaps in the area of employment and social security;
● Believes that the high transparency potential of the platform economy permits
good traceability, in line with the aim of enforcing existing legislation;
● Calls on the Member States to carry out sufficient labour inspections with
regard to online platforms and to impose sanctions where rules have been
breached;
● Calls on the Commission and the Member States to pay special attention to
undeclared work and bogus self-employment in this sector.
The E.P. Resolution on Collaborative Economy

21. Preliminary ruling
referred by the
Commercial Court
No3 of the city of
Barcelona.
● Associación Profesional Élite filed a
lawsuit against Uber Spain alleging
unfair competition practices.
● Why Uber supplies its services
without authorization in the
transport sector from the Spanish
authorities?
● Should Uber be protected by the
freedom of movement of services
laid down by EU laws?
● The repercussions of this question
are far-reaching.
Final judgment likely to be rendered
by the end of 2017.

22. ● Uber maintains to be a mere matchmaker, providing a technological
intermediation.
● The service should be covered by law provisions designed to ensure the free
movement of services in the EU (E-commerce Directive, lex specialis in
relation to the Service Directive). In this case, pursuant Article 4, no prior
authorisations or similar requirements are due and “internal market clause”
applies (Art. 3(2)).
● Can Uber claim to be under the scope of art. 49 (freedom of establishment)
and art. 56 (freedom of movement for services)? Presumably, if so, the service
shall be subject to no prior authorisation in the provider's’ home State, and
other Member states shall be prevented from raising any obstacles.
Preliminary ruling

23. The opinion of the
Advocate General
Szupunar
To be classified as falling within the
concept of “information and society
service” two requirements:
● the “material” activity has to be
economically independent of the
service rendered by electronic
means (airline tickets or hotel
reservations),
● the provider has to supply the
service as a whole or to exert a
significant influence over the
conditions of the electronic service
(the prevailing part).
Uber offers a “composite service” made
of two main components:
- the one provided by electronic
means,
- the other part essentially
consisting in urban transport.

24. ● The issue (mis)classification issue is extraneous to the subject of the
opinion, many of the arguments used could be read in the sense of
considering them as employees rather than contractors.
● The final proposal of the Advocate, generally respected by the CJEU, is that
“the service offered by the Uber platform must be classified as a ‘service in the
field of transport’”. As a consequence, it does not fall under the scope of the
principle of the freedom to provide services in the context of the
information society services.
● Uber creates added value providing rides and exerting significant
(in)direct control over how drivers perform their jobs.
“An organiser and operator of urban transport”

25. ● “Drivers on the Uber platform offer passengers a transport service to a destination
selected by the passenger and, accordingly, are paid an amount which far exceeds the
mere reimbursement of expenses incurred. It is therefore a traditional transport
service.
● [It] exerts control over all the relevant aspects of an urban transport service: over the
price, obviously, but also over the minimum safety conditions by means of prior
requirements concerning drivers and vehicles, over the accessibility of the transport
supply by encouraging drivers to work when and where demand is high, over the
conduct of drivers by means of the ratings system and, lastly, over possible exclusion
from the platform.
● Uber controls the economically significant aspects of the transport service offered.”
“An organiser and operator of urban transport”

26. ● “Uber controls the economically significant aspects of the transport service offered.
● While this control is not exercised in the context of a traditional
employer-employee relationship, one should not be fooled by appearances.
● Indirect control such as that exercised by Uber, based on financial incentives and
decentralised passenger-led ratings, with a scale effect, makes it possible to manage
in a way that is just as — if not more — effective than management based on formal
orders given by an employer to his employees and direct control over the carrying out
of such orders.”
“An organiser and operator of urban transport”

27. ● Many scholars suggest a similar interpretation, according to which platforms
like Uber “are directly involved in the provision of the transportation service and
are unlikely to qualify as mere providers of online services” since their conditions
on cars, facilities, prices and should thereby considered a supplier of
transportation services.
● Accordingly, if the platform under scrutiny should offer a tangible service,
demonstrating the intense command power could be even easier. As a
consequence, its conduct potentially infringes both competition and
employment legislations.
● If this trend continues, and if this reasoning should be applied in a strict sense,
there might be a “knock-on effect” in Europe.
Broader implications

28. Towards
“social responsibility
by design”
A manifesto to reform gig-economy
with Valerio De Stefano & Six Silberman | pagina99

29. ● The promise of new opportunities may turn into a “(social) race to the
bottom”.
● Claiming that these models need to be supported or incentivised merely
because of their allegedly innovative nature and their increased contribution
to the participation of young workers in the labour market is groundless.
● The chance to externalise costs associated with direct employment is a
powerful driver for the proliferation of arrangements as such.
● A mere “wait-and-see” approach is costly since each Member State is tackling
the issues arising from this economic segment with different, contradictory,
tactics.
To sum up

30. ● A “one-size-fits-all” intervention is unlikely to achieve its goals effectively.
● Having extensive chances to design and shape the concrete functioning of
their platform, operators must be sensitive to the needs and demands of
workers and users, by implementing new features and renovate their
embryonic business model.
● Legislative headlong rushes may crystallise the present state of the art,
hindering “peripheral” entrepreneurial initiatives and locking innovation.
● We need a reliable enforcement of existing laws in order to cover situations
that seem unregulated or disguised today, i when managerial prerogatives
are actually exercised. No: cheap alternative to employment relationships.
“Surgical” regulatory interventions

31. 1. Employment contracts for
“regulars”
The more mature platforms should offer regular
employment contracts for the contingent of workers
who perform most of the work.
2. A Code of Conduct
A Code of Conduct should be set up and enforced in
order to discipline the minimum levels of payment by
the platforms, increase the transparency of criteria
applied in the operation of rating systems, and ensure
the legitimacy of content exchanged online.
3. Payment Rules
Clear rules on payments and the consequences of the
refusal of completed tasks by the client should be
established.
4. Out of the Grey Area
Platforms should “normalize” themselves and give up
the claim that they are operating in a grey area of law.
The next and most important step, however, is to
implement existing rules that safeguard workers’ rights
in the context of digitally-mediated work relationships.
A manifesto to reform gig-economy

32. 5. Working standards for all —
professionals and amateurs
The reasons behind the choice of working for a platform
or app should not have any impact on workers’
treatment or on their working conditions.
6. Self-employed workers
For those who turn to digital platforms because of the
potential organizational flexibility, personalized shifts
or complex projects without tight deadlines should be
guaranteed and managerial prerogatives of the
platforms should be limited
7. A portable rating
The rating accrued on a platform, as well as the working
history that led to that rating (the clients served, the
tasks completed) represents a personal portfolio of
credibility and professionalism: it must be “portable”
and indeed should be the property of the worker.
8. Union renewal and “new” unions
Platform workers, whether employed or self-employed,
have collective rights to exercise. For this reason,
representative bodies for these workers should be set
up.
A manifesto to reform gig-economy

33. thank you!
Antonio Aloisi
Ph.D. Candidate in Labour Law
Università Commerciale Luigi Bocconi, Milano
mail: antonio.aloisi@unibocconi.it
paper: ssrn.com/author
twitter: @_Aloisi