Solving the ‘Gig-saw’? Regulating for Decent Work Prof Michael Doherty Dr Valentina Franca Ms Emma Guyatt 8th Annual NERI Labour Market Conference Webinar Thursday 17th & Friday 18th September 2020 Maynooth University Department of Law, New House, South Campus www.maynoothuniversity.ie/law @profmdoherty @maynoothlaw 1
Outline • Hugely complex economic, political, social, and cultural implications of ‘platform work’ • There are (some) ‘gig workers’, whose working conditions are precarious • How can/should they be protected? 2
Outline • The personal scope of employment law • Employment Law vs Competition Law • Regulating for decent work www.maynoothuniversity.ie/law 3
1. The Binary Divide • In most legal systems the employment relations are distinguished into two categories: • Employees (subordinated labour) • Self-employed (autonomous work relations) www.maynoothuniversity.ie/law 4
1. Who is an employee? Enter the Eurovision • There is no unified EU definition of employee: “The essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.” (C-66/85 Lawrie Blum ) www.maynoothuniversity.ie/law 5
2 Third Way? An intermediate category • Some labour rights but…. • Low awareness and low motivation amongst workers in SI (lower taxes…) • ‘Downgrades’ certain classes of worker (Uber drivers in UK?) • More complexity? maynoothuniversity.ie
3. Employment Law v Competition Law • EU Court developed an ‘antitrust immunity’- but confined to employment relationships • self – employed workers (undertakings) cannot conclude collective agreements • The “false self-employed”, namely “service providers [who are] in a situation comparable to that of employees ” can be covered by collective agreements) 7
3. The Self-employed and Collective Bargaining • Competition (Amendment) Act 2017- sets out a formal process to enable trade unions to apply to the Minister to bargain collectively on behalf of groups of – false self-employed – Fully dependent self-employed workers 8
3. The Self-employed and Collective Bargaining • So, vests rights to protect groups of workers in trade unions (not an individual right) • New law, so we await outcomes…. • BUT principle: collective representation should not be automatically denied to those who cannot satisfy traditional tests of employee status 9
4. Regulating for decent work • Individual employment rights difficult for vulnerable/ precarious workers to vindicate • Regulatory role for trade unions important 10
4. Regulating for decent work • ‘litigation is time-consuming and expensive, and individual cases are an imperfect vehicle for addressing broader considerations of distribution and social equality…legislatures should strongly consider socializing employment- related benefits and imposing employment duties on an industry specific basis’ (Rogers) www.maynoothuniversity.ie/law 11
4. Regulating for decent work • Traditional employers generally silent in the debate • Unfair competition? • Platforms do not consider themselves employers 12
Conclusions • Broader conception of employment relationship welcome (NB social security rights) 13
Conclusions • Need for a regulatory collective bargaining model on a sectoral basis • Employers (both ‘traditional’ and ‘disruptive’) should play a role beyond political lobbying 14
Thank you for listening @profmdoherty @MaynoothLaw 15
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