The chapter will consider both the current legislative situation and PLUS proposals in relation to platform labour regulation. While in the first part of the article we will frame the legal status of platform labour around Europe and the ongoing regulatory initiatives, in the second part we will present the PLUS Charter for Platform Workers as a useful starting point for building a fairer gig economy. In conclusion, we will evaluate this proposal in relation to the current debate, highlighting its limits and opportunities for further legislative initiatives.

1 The Need for the Protection of Labour Through Digital Platforms

Digital platforms have introduced a peculiar economic model in which anyone can make available, through specific spaces on the web, underutilized assets or activities performed by him or herself (Ness, 2023; Drahokoupil & Vandaele, 2021; De Stefano, 2016). At the same time, anyone interested (“natural persons” or companies) can access these goods or services. In response to this massive change, the European Commission's first document in 2016 addressing the topic (A European agenda for the collaborative economy, COM (2016) 356) highlights the risks to the traditional markets caused by the deregulated platform economy, especially for what concerns the rules for market access, consumer protection as well as fiscal discipline and also labour relations.

After some initial hesitations, it became evident that “peer-to-peer” exchanges driven by altruistic purposes or aimed at promoting solidarity or environmental protection rarely occur on digital platforms. In most cases, these IT infrastructures host business operations involving the sale or rental of goods or the provision of services through the performance of work activities. When digital platforms gather organizations or individuals interested in offering or receiving services for a fee, the activity carried out through physical or intellectual energies for the benefit of another party (the platform, a service user, or a customer) must be seen as “work” worthy of consideration and protection by the legal system.

Sometimes a platform became a simple enabler of matching labour demand and offer. Even in these cases, platforms are never passive entities, because the actions of the workers depend, at least in part, on the contractual terms set by the digital enterprise. The intensity of the platform's control or interference varies widely; sometimes it is minimal and in fact leads to the simple provision of  matching demand and supply tools; on other occasions, the general terms and conditions assign to the ultimate user (client) the possibility of defining certain conditions for the performance of the work.

Other types of platforms are being used to outsource some (or all) stages of the production process of a good or service, assigning micro-units of it to workers involved in “non-standard,” often casual, forms of employment, formally recognized as self-employed (on the different types of platforms, Prassl & Risak, 2016). The conclusion of work contracts on the digital platform reduces to zero the so-called transaction costs, i.e., the cost of finding and choosing workers. As a result, the assignment of tasks to available workers from time to time becomes the most convenient choice.Footnote 1 This model ensures maximum adaptability of the workforce to market demands, but at the same time excludes the possibility of access to standard labour protections. Access to protections becomes even more complex when the platform primarily only organizes the sale or rental of goods but complements this type of commercial exchange with the performance of other services (promotion, maintenance, reception, …) carried out by workers.Footnote 2

In both cases, these are socio-technical infrastructures in which the work activity organized by the platform corresponds  with the specific service offered in the market, or is collateral to another main asset that is the object of the business activity. In both circumstances, the existence of work that is legally relevant and requires protection cannot be denied. The recognition of rights for these forms of work has followed different paths that have sometimes led to overlaps and coordination problems. The goal of adequate access to labour protections for plaftorm workers can hardly be said to be concluded.

2 Legal Status of Platform Worker: General Terms and Conditions Versus Statutory Regulation

The rules governing the relationship between platform, on the one hand, and  workers and users, on the other, (regarding access to the platform, performance of activities, payment systems, and limits to users’ freedom of expression) are defined through standard contractual forms or general terms and conditions that define the type of contract and the mutual obligations.

Instead of individual agreements, digital platforms prefer contractual standardization, which, as a whole, composes an autonomous regulation with a claim to self-sufficiency from state regulations. The platform's determination to avoid the application of statutory protective legislation, together with the delay of public decision-makers in catching the innovative elements of these production processes, encouraged the emergence of an autonomous system of contractual regulation. Such regulatory systems aspire to fully replace the legal system and, in particular, mandatory labour regulations (as well as consumer protection regulations), and according to some authors, transform the digital platform into a different typology of social system. Through a process of auto-constitutionalism, the regulatory systems of digital platforms place themselves outside the jurisdictions of the countries in which they offer their services (Sheffi, 2020; Smorto, 2015).

A system that claims to regulate labour independently of the legislative framework must come to terms with a fundamental principle underlying labour law. Where the actual performance of the labour relationship, even in conflict to the contractual provisions, presents the features of employment, the discipline specifically provided for employee shall be applied to those workers. The parties are free to choose the type of contract, opting for subordination or autonomy, within the limits allowed by the above-mentioned principle: the application of labour law may not be excluded if the relationship has the distinctive elements of subordination.

The general terms and conditions established by the platform cannot therefore in all circumstances regulate the employment relationship. If the relationship between the platform and the employee does not correspond to the type of contract (self-employment contract) chosen by the parties, the regulation of the relationship must reflect the elements resulting from the facts relating to the actual performance of work and not that resulting from the nomen iuris. In the absence of intervention by inspection bodies or court rulings that allow the effectiveness of public protective legislation, however, the contract entered into between the parties constitutes the basis for the actual conduct of the relationship. This happens because the contract defines the mutual obligations and, if not opposed in court, the parties are obliged to comply with its content.

There is an increasing trend at the institutional level to bring platforms back within the rules of labour law. To increase the level of effectiveness of employment protection also for platform workers, national and European legislative interventions have focused on labour regulation, restricting the space for autonomous contractual regulation of platforms.

3 Platform Labour Protection in Member States Labour Law

Despite the delay in legislative action by European institutions, several Member states, also as a result of actions brought by the social partners, have adopted specific regulations for digital platform workers. In addition, domestic courts have been involved in many litigations on the legal qualification of self employed contracts between workers and platforms. Traditional legal categories (subordination, power of control, and disciplinary power) have been interpreted by courts based on the specific characteristics of platform work. As a result of both policymakers’ action and case-law, two different approaches can be traced: according to the first path, platform workers were considered subordinate or otherwise entitled to receive the protections provided for employment relationships. A different approach has been directed towards the construction of specific guarantees for platform workers with the aim of compensating for the conditions of economic and contractual dependence that can also be found in self-employment.

3.1 Extension of Traditional Protections Centred on the Employment Relationship

Most case-law decisions at the international level lean towards subordination, or tend to give platform workers the same protection as those normally assigned to employment relationships (Pacella, 2017).  

About the first solution, several European Higher Courts recognized the subordination of platform workers. In Spain Tribunal supremo español, 25 september 2020, rec. 4746/2020 (Fernandez Avilés & Peres Dìaz, 2021; Todolì Signes, 2020), in France Cour de cassation, Chambre sociale, 28 November 2018, n° 1,720,079 (Garbuio, 2019) and in Germany Bundesarbeitgericht, 1° December 2020, 9 AZR 102/20 (Gramano & Stolzenberg, 2021). In Italy, Tribunale di Palermo 24 november 2020, n. 3570 (Nuzzo, 2020), recognized the existence of a subordinate employment relationship between a platform and a rider, due to the disciplinary and managerial powers exercised by the platform. In particular, those powers were exercised through setting up an «orderly set of activities» that the worker was required to perform and through the application of atypical sanctions in case of violation of the rules (Bavaro, 2020; De Simone, 2019; Razzolini, 2020).

Many Italian courts, as well as the Supreme Court, have excluded the existence of an employment relationship but have held that platform workers are hetero-organized collaborators. Therefore, the discipline provided for subordinate employment contracts applies to them according to art. 2, d. lgs. n. 81/2015 (about this type of collaborations, see Zoppoli, 2016).

In Italy Corte di Cassazione 24 january 2020, n. 1663 (Ichino, 2020) has found in the relationship between the platform and the rider the requisites demanded from art. 2, co. 1, d.lgs. n. 81/2015 for the application of the discipline of the employment relationship. It is also worth mentioning, despite the UK’s intervening exit from the EU, that the English Supreme Court has similarly regarded Uber drivers as “workers”—an intermediate category between employee and self-employed worker (see Pietrogiovanni, 2019). The Court found the conditions required by 230(3)(b) Employment Rights Act to consider drivers as workers: the existence of a contractual commitment to perform work or service for Uber, the performance of the work activity in a personal manner, and the impossibility of considering Uber a mere customer of the drivers.

The Spanish legal system has followed the path of equating, by legal presumption, platform workers with employees. By Spanish Real Decreto Ley no. 9/2021, it was established that when the work activity consists of the delivery or distribution of goods and is organized and controlled directly, indirectly, or through algorithmic management, it falls within the scope of the Estatuto de los Trabajadores (Baylos, 2021). The presumption operates regardless of any investigation on the intensity of the powers exercised by the platform. In a partially similar intervention, in Portugal, Law No. 45/2018 explicitly extended the presumption of subordination, already provided for in the Codigo do Trabalho, to the relationship between the driver of a private vehicle and the TVDE operator, i.e., the licenced company that performs the passenger transport service and is the only entity authorized to enter into an employment contract. In this model, however, a third party -the transport operator- who stands between the platforms and the drivers becomes the employer, removing any responsibility related to drivers’ labour relations from the platforms.

The mentioned decisions answer in the affirmative to the question of the adaptability of the work protection system based on subordination in the face of innovative modes of performance. The solution of the automatic extension or by the legal presumption of the statute of the employee applies guarantees and protections according to the abstract logic of the legal type of employee work. However, the risk is to leave a large number of workers on digital platforms unprotected.

3.2 Protection in the Wake of Self-Employment

Equating platform workers with employees is not the only path followed. Other legislative  measures have followed the goal to offer protections to self-employed platform workers (Aloisi, 2022; Biasi, 2023). In this group, we can consider Loi Travail n. 2016-1088 and Loi d'orientation de Mobilités 2019-1428 in France and d.l. n. 101/2019, conv. in l. n. 128/2019 in Italy (Donini, 2020; Gomes, 2020). They both share the intent to provide a set of minimum rights for platform workers regardless of the legal nature of their contract, designed in relation to the features of platforms’ productive organizations and according to the specific protection needs of those who work on them. Both regulations refer to the transport or delivery sector, but only in cases where the action of the digital operator in the definition of working conditions has a certain intensity. It is precisely the peculiarity of work qualified as autonomous but in fact subject to the control of the platform that makes it difficult to identify a field of application for these bodies of legislation.

According to the France legislation, digital platforms are entitled to adopt “social charter” with the aim to guaranteeing themselves from the risk of different contractual qualification; but Constitutional Court stated that the attribution of rights through social charters can never avoid the qualification of workers as employees, if they present the corresponding characteristics.

Finally, it can be pointed out that both Spanish and English legal systems already provided intermediate categories between employment and autonomy. Some platform workers could fall into these categories, as long as the bond that binds them to the enterprise is not so intense as to integrate a case of subordination. We refer to the so-called TRADE, economically dependent self-employed worker (Ley 20/2007), in Spain and to the figure of the “worker” in English law (Employment Rights Act 1996, s 230(3): workers who fall under these categories are accorded certain basic rights although not the full corpus provided for subordination.

4 Platform Labour Protection in EU Labour Law

As we have seen, the business model of digital platforms allows the use of self-employment contracts even in cases where the existing employment relationship lacks the autonomy and independence that should distinguish self-employment. As a result, platform workers cannot enjoy the rights and protections usually accorded to employees.

This widespread “misclassification” of the labour relationship pushed the European Institutions to take steps to guarantee platform workers protections and rights corresponding to the actual conditions under which their work is performed (Allamprese et al., 2022; Eurofound, 2021; Eurofound & ILO, 2017; Forde et al., 2017).

The main steps taken by the European institutions fall within the framework of the European Pillar of Social Rights (Deinert, 2022; Ratti, 2021). The Pillar proposes a different approach than previous European legislation, promoting the achievement of adequate social protection for all forms of employment. In the past, the labour protection offered by the main social directives was usually guaranteed to those who were defined as “workers” in the different national legislations. Over time, the goal of not undermining the effective implementation of the directives led the Court of Justice to develop a European notion of “worker” (which is used, for example, in Directive 2019/1152/EU). Instead, the principles expressed in the Pillar, set within the purpose of ensuring effective implementation of social rights, propose actions aimed at extending social protections to all workers. Along these lines, workers should be guaranteed fair and equal working conditions, access to social protection and training, irrespective of the type and duration of the relationship (see article 5, article 12, article 15).

The purpose of ensuring adequate forms of protection for all forms of employment was pursued with the Proposal for a directive presented by the Commission in December 2021, COM(2021)762 finally addressed to the protection of platform workers. The proposal “on improving working conditions in platform work” is one of the most significant legislative initiatives in the current European social law. The legislative approval path has not yet been completed, and the text currently is still under discussion among the EU institutions. In June 2023, the Council reached a new agreement on which interinstitutional negotiations will continue.

This proposal for a directive is primarily aimed at improving working conditions and granting minimum rights to those who perform platform work. The measures proposed seek to tackle the consequences of the opacity and obscurity of the algorithmic systems used by the digital platforms and also to overcome the information asymmetry between workers and platforms. Particularly in court proceedings, these circumstances significantly hamper the chances of correctly classifying employment contracts. The draft directive has therefore introduced a rebuttable presumption of subordination, which would make it possible to uncover cases of bogus self-employment and guarantee these workers the protections provided for employees by European and national legislation and established by collective agreements. Accordingly, labour platforms «shall comply with the corresponding employers’ obligations» (art. 3).

The introduction of a presumption of subordination is a significant innovation in European social legislation. The proposed presumption can be seen as an alternative method to the introduction of a legislative definition of “worker”—long opposed by social partners, and especially by those representing employers (Barbieri, 2021; De Stefano, 2022).

This definition was first formulated in the leading case Lawrie-Blum (CJEU, 3 July 1986, C-66/85, see Freedland & Kountouris, 2017) and it is now quite settled but still has some fluctuations. In general, the interpretation of “worker” given by the CJEU involves someone that, for a certain period, performs services for and under the direction of another person, in return for which he receives remuneration. But recently in the Yodel case (22 April 2020, order, C-692/19) the Court said that a worker cannot be classified as a “worker” within the context of the Time Directive (2003/88/CE) when he can use subcontractors or substitutes to perform the service, when he can accept or not accept the tasks offered by his putative employer and when he can fix his hours of work to suit his convenience rather than solely the interest of the putative employer. These specifications may narrow the scope of application, and they do not consider the fact that the actual conditions of work performance may be significantly different from what is written in the general terms and conditions (Prassl et al., 2020; Hießl, 2022).

Compared to this notion, the presumption is a considerable innovation because it thus no longer requires that the worker meet the three elements identified by the Court of Justice to have access to social protections (undertaking genuine and effective work, receiving a wage, being under the direction of someone else). Likewise, any margin of freedom in setting one’s own time and manner of performing work would no longer be sufficient to exclude the worker from access to rights.

The proposal on which institutional negotiations are now taking place states that a relationship between a «digital work platform» and a «person performing work through a digital platform», as defined in Article 2 of the proposal, is considered an employment relationship. This formula seems to have translated into legal terms an empirically derivable reality after a decade of growth of digital platforms. The ordinary business practices chosen by platforms lead to the existence of employment relationships. Work is carried out under conditions of dependency because platforms normally exercise supervision and control over work and, as stated in Recital 24, “direction and control, or subordination, are an essential element in the definition of an employment relationship in the Member States and in the case law of the Court of Justice”. The presumption is rebuttable, and the platform will be able to prove the self-employed nature of the employment relationship by proving a group of indices, i.e., concrete circumstances that are deemed compatible with a self-employment relationship.

This approach pursues a universalistic protection but still graduated, according to the specific features of work relations: while the presumption allows workers to have access to all the rights usually recognized only to employees, other provisions are directed to persons performing platform work who do not have an employment relationship. All those who “perform work through digital platforms, regardless of the contractual designation of the relationship between that individual and the digital labour platform” will have access only to a set of measures for the case of recourse to algorithmic management (art. 6, 7, and 8). These measures are built on the model of the individual rights recognized to the citizen-worker in line of continuity with the GDPR.

Finally, the proposed directive requires platforms to inform and consult workers’ representatives about the adoption of automated monitoring and decision-making systems and their operating characteristics.

5 Charter for Platform Workers

5.1 An Enduring Dilemma: Employee Centred or Transtypical Protection?

The goal of identifying and suggesting pathways for the construction of appropriate protections for platform workers can only be pursued after resolving a fundamental question. We need to figure out whether, in the current context, the qualification of work as employment has to be considered a prerequisite for access to protection, or if, on the contrary, protection beyond the existence of an employment contract could be more appropriate, effective and, definitely, in line with the challenges posed by the new digital context. The problem arises because, while much of the national jurisprudence and systems propose solutions that lean towards subordination (see 4.1. and see also Barbieri, 2019), there is a pressing demand for protection beyond the contractual type. The contractual classification approach does not seem able to follow the rapid pace of technological evolution and for these reason a substantive transtypical approach may be preferred (see for instance the “remedial approach”, Treu, 2017; for a recent synthesis Bellomo, 2022).

The transtypical protection, that is the alternative to the approach polarized on the subordination, consists in a «transtypical extension of the protections to circumstances not identifiable with the type of the subordinate job» (Perulli, 2017, translated by the A.; see also the innovative proposal of Freedland & Kountouris, 2011). It means establishing legal instruments of protection which are capable of adapting to changing social and economic conditions without reducing their effectiveness and without being conditioned by the recurrent doubts relating to the continuing viability of the division between autonomy and subordination and the evoked crisis of the subordination.

The Charter on Digital Workers Rights, elaborated in the context of the PLUS project, adopts this substantial (and non-formal) approach, more in line with the protection needs expressed by workers and social partners. To avoid unreasonable differentiations based on the type of contract, it is necessary to focus on the protection needs of the “person who works on a platform” and assign indiscriminately certain fundamental rights anytime there are certain characteristics of economic activity that can be verified in concrete terms (irrespective of the legal qualification of employment relations). Other rights should instead be reserved, appropriately graduated according to the intensity of the bond, to those who work in conditions of dependence and subject to the power of the employer (Martelloni, 2020; Treu, 2017; Tullini, 2020).

Following this approach, a modular system of job protection can be set up. This kind of system places on the first step protective measures independent of the verification of the legal qualification of the relationship and provides access to stronger guarantees when the work is organized or directed by an employer. In this way, the Charter identifies an essential minimum content that must be recognized and guaranteed in the contracts of platform workers: these rights go beyond the choice of a specific contractual form. In the light of the foregoing considerations, it can be said that the Charter offers a transtypical protection.

The main point is that the entitlement of rights should not depend on the distinction between employment and self-employment, because a minimum level of protection should apply to all people working through platforms irrespective of their employment status.

From this perspective, it is not useful to set up a new contractual form. If, from one point of view, it could also clarify the legal situation of platform workers and reduce uncertainties in case of litigation, on the other hand, it will cause an extra complexity connected and might increase the risk of misclassification. This risk clarifies the reason why there is no intention to create a “third” employment status nor a new contractual form at the EU level.

5.2 A Charter for the Protection of Platform Labour Through Individual Rights

The Charter aims to provide a transtypical, extensive, and modular protection. With regard to the transtypical character of the protection, it has already been said that it consists in offering protection regardless of the type of employment. The extent of protection refers to the application field of the Charter, which is applicable beyond work in the legal notion. The modulable character refers to the structure of the Charter and it expresses the possibility of modulating the protection according to the different ways in which work is organized by the different platforms and also depending on the different intensity of the bond between the worker and the platform. Since the first element (the transtypical protection) has already been dealt with, it is now necessary to dwell on the other two, namely the scope of the Charter and its structure.

With regard to the application field and the broad nature of the protection, it should be stressed that most of the activities carried out by the platform workers can be considered labour activities also from a legal point of view.Footnote 3 But it can’t be said for all of them.Footnote 4 In view of this fact, which may leave a large number of workers on the platforms unprotected, the Charter refers, with different extent, both to those who carries out a labour activity, irrespective of the possibility to consider these activities such as work, and to those who performance work activities. More specifically, the first category includes anyone who carries out labour activity for a digital platform, directly but also indirectly or in a collateral way, or in an episodic manner.

About the structure, the choice made by the Charter is linked to the consideration that digital platforms have different characteristics as regards the organizational modalities of work and the intensity of the constraints that they impose on work activities. For this reason, the Charter enhances the link between the variety of labour activities and the variety of rights, selecting the rules and guarantees to be applied in relation to the actual needs of the working person. It does not mean taking a case-law and remedial approach, but it means trying to develop a digital labour rights statute that is applicable to the different contexts of different platforms, in line with current reality.

In this light, the Charter does not identify a single set of rights for all platform workers, but identifies a corpus to be modular in order to achieve the protection of these forms of work, through the provision of two different sets of rights. Then the Charter proposes a graduated assignment of rights, distinguishing between those to be assigned to “platform workers” and those to be assigned to “person performing platform work”, allocating rights, differently graduated, according to the factual circumstances. The aim is to offer a model for regulating labour through digital platforms that can protect workers by being tailored to the specific characteristics of this business model and to the different ways in which labour is carried out. This combines a universalistic basis of safeguards and a selective approach to social protection that considers the different organizational modalities and the different links between platform and worker.

According to the different features of the labour carried out through platforms, the Charter proposes a set of rights organized in concentric circles. The first larger circle comprehends several fundamental human rights connected to the fact that someone carries out a labour activity, irrespective of the fact that this is the subject of a work contract, whether in the form of self-employment or employment. The narrower circle comprehends other rights linked to the performance of work activities, regardless of the contractual type.

These two sets are not completely separated but, on the contrary, are intertwined and they can be used by the policymakers at each level to build a framework linked to the business model that they wish to regulate. Following the same logic, a digital platform may also decide to combine them, with different balances, into a specific framework to protect workers’ rights according to the organization of the business at a specific moment.

We can list the first group of rights and specify what is the need for protection that each right tries to fulfil:

  1. 1.

    the right to proportionate personal data processing: platform workers (in the broad sense) are particularly exposed to the risk of abuse in the processing of personal data, since their relationship with the platform begins, continues, and ends with the collection and processing of data that are essential for the organization of the business activity;

  2. 2.

    the right to information on contractual conditions (see ILO, Issa and OECD, 2023; ILO, 2022): it comes from the lack of transparency and predictability regarding contractual conditions, often linked to the lack of a contract;

  3. 3.

    the right to transparent use of algorithms (see Galière, 2020): the algorithm, that is the main gear of the digital platforms, governs the labour relationship and job performance like an “invisible hand” based on mathematical calculation often unintelligible;

  4. 4.

    the right to non-discrimination: the use of algorithm management could increase the risk of discrimination, because the parameters used by the algorithms may comprehend bias and prejudices;

  5. 5.

    the right to a transparent and fair reputational rating system: the worker is subjected to a constant and capillary reputational control and the reputational profile has considerable importance as a high reputation is the key to obtain more or better work opportunities;

  6. 6.

    the right to move to another digital platform: the platform owns the “digital reputation” of the workers, increasing workers’ dependence from a specific platform;

  7. 7.

    training rights: the lack of acquisition, training, development, increase and portability of expertise prevents the acquisition of a professional qualification;

  8. 8.

    the right to health and safety protection (see EU-OSHA, 2017): platforms workers are particularly exposed to physical and psychosocial risks (moreover, the health and safety issue shows its relevance during the Covid-19 Pandemic);

  9. 9.

    the right to fair termination: an unjustified dismissal without notice does not allow workers to organize their working and personal life, also making it impossible to react to the withdrawal;

  10. 10.

    the right to disconnect: due to the specificities of the platform world, the risk of an uncontrolled expansion of the time spent on work is really high, and it can also cause interference between private and professional life such as becoming a potential cause of mental stress.

We can also list the second group of rights, additional to those of the first group, applicable only to “digital platform workers” in a stricter sense, who are regularly embedded in the platform’s production process, regardless of whether they are employed or self-employed:

  1. 1.

    the right to a maximum and a minimum number of working hours: it is linked to the need to find a balance between flexibility and safety and predictability requirements, also considering that the working time is strictly related to wages and health issues;

  2. 2.

    the right to fair and decent remuneration: there is a high risk of low or undetermined wages, that are usually related to the single uncertain performance;

  3. 3.

    collective rights: the development of local aggregations and the actions they undertake make clear the existence of homogeneous interests and the need for collective action in the field of platform work, despite the fading of places and working time.

The measures proposed in the Charter help to avoid mere marketing or “social washing” operations and, on the contrary, provide balanced and effective models of rules.

It is important to specify that, following the system of European legal sources, the Charter on Digital Workers Rights would follow a “principle of non-regression”. In this light, the Charter applies without prejudice to any other rights conferred on workers by legal acts of the Union, of the Member States whose legislation applies, and of collective agreements. Nothing in the Charter shall be intended as a valid ground for reducing the level of protection already afforded to workers by the applicable legislation. Any more favourable conditions laid down by the national legislation of the Member States or by collective bargaining shall in any case remain applicable.

6 Limits and Opportunities: The Future of Platform Labour

Working on digital platforms can benefit workers, businesses, and society at large. However, working on digital platforms raises many challenges in terms of job continuity and income, decent working conditions, social protection, use of skills, freedom of association, and the right to collective bargaining.

To ensure that the opportunities for work and income generated by platforms can be fully exploited, the important transformation that has affected work, breaking down barriers of time, space, and place, must be accompanied by a change in the structure of safeguards. The protection must necessarily be incorporated into a substantial dimension to ensure effective protection for platform workers.

In this context, a more effective and coherent approach is needed: this will only be possible through policy coordination and dialogue at the EU level. A great step forward has been made with the EU Proposal for a Directive that has addressed the issue in an innovative way in its complexity. With this intervention, it seems that the theme of “freedom to work” of art. 15 of the Charter of Nice, that is to be able to choose loads, times, and modes of activity (today more accessible in the light of technological innovations), without being deprived of the fundamental safeguards, has finally entered the supranational agenda.

The Charter constitutes an elaboration of some of the main results of the project, but it is also a policy document, useful for the construction of a corpus of protections better suited to the real needs expressed by the platform workers. For this reason it is a regulatory model, irrespective of the level of protective measures that have been or will be introduced in the Member States as well as in the EU, that can be a useful “starting point” for trade union claims and collective bargaining actions: both at company level and sectoral level, Unions and workers’ representatives could take this list of rights into consideration when preparing specific claims. Alongside a universalistic extension of some fundamental rights (first group of the Charter), other protections (second group of the Charter) are recognized to platform workers who are regularly embedded in the platform’s production process, independently from being employee or self-employed. This gradation between universality and selectivity of protections may offer an appropriate model for claims and experimentation.

The entitlement of the right to collective bargaining by self-employed workers has always been hampered by the fact that according to the Court of justice self-employed workers are, in principle, undertakings. From this assimilation follows the application of article 101 TFEU and the prohibition of agreements between undertakings restricting competition within the internal market (e.g., if they directly or indirectly fix selling prices or any other trading conditions). This aspect is currently evolving. Indeed, the European Commission has presented the guidelines “on the application of Union competition law to collective agreements regarding the working conditions of solo self-employed persons” (C(2022)6846 final). These Guidelines expressly exclude from the application of Article 101 TFEU the collective agreements of platform workers when they constitute the result of collective negotiations and when they regulate the working conditions.

Then, finally, the Charter could play the role of a good practice to be implemented by platforms. The voluntary adoption of a virtuous model of worker protection based on the Charter of Digital Workers Rights can bring advantages for both workers and platforms, contributing to establishing protections for platform workers comparable to those guaranteed for standard workers, and preventing mechanisms of downward competition to the detriment of the quality of the service offered.