European Parliament Resolution offers promise in avoiding pitfalls in the Spanish Riders’ Law
On 16th September 2021, the European Parliament voted overwhelmingly (with 524 votes to 39, with 124 abstentions) to adopt Resolution 2019/2186(INI) on ‘fair working conditions, rights and social protection for platform workers – new forms of employment linked to digital development’, the Resolution made a series of petitions to the European Council ahead of its upcoming legislative proposal on improving labour and social rights for platform workers, due on 8th December.
Perhaps unsurprisingly given the growing tide of court and labour authority rulings, collective agreements and legislative action in Europe in favour regulating of platform labour (see our updated news tracker for an overview), the Resolution delivered a clear message: gig workers must enjoy full and legally enshrined labour and social rights and protections, including rights to minimum wages, collective bargaining, health and safety protection and welfare. The mechanism for securing such rights favoured by the Resolution was via the establishment of a rebuttable presumption of employment for gig workers, as in the path-breaking Spanish Riders’ Law. In favouring this mechanism, the Resolution has made an important statement against the platform lobby’s reluctant support for a third, no doubt less protected category falling between employee and self-employed.
Yet while the question of worker classification is certainly crucial in determining social security access, for us here at GIGWELL something else in the Resolution caught our attention. We were pleased to see that, in the view of the Parliament, securing such access should not depend solely on employee status. Rather, the Resolution makes a clear statement that ‘formal and effective coverage, adequacy and transparency of social protection systems should apply to all [gig] workers including the self-employed;’ that is, regardless of employee status.
Such a principle of parity between employed and self-employed gig workers is important from the perspective of social protection. This principle would not only protect gig workers that remain self-employed under any new European regulatory framework. It would also strengthen the agenda, articulated in European Council Recommendation 2019/C387/01, for improving social security access for non-standard and self-employed workers across economic sectors, in recognition that gig work only exaggerates the protection gaps often experienced by such workers. As such, this principle may provide recourse against platforms’ efforts to manoeuvre around and push back against increased regulation.
The case of the Spanish Riders’ Law illustrates the importance of such recourse. As the first legislative measure in Europe to tackle the mis-classification of platform labour, using the same rebuttable presumption of employment proposed in the European Parliament’s Resolution, the Riders’ Law has been hailed as a possible model for reform efforts elsewhere. However, since the Law’s enactment in August 2021, the platforms have moved fast to circumvent the legislation. Glovo, for example, adjusted some of the conditions formerly placed on riders. It also introduced – then pulled – a controversial algorithm allowing workers to bid on gig rates. Both moves were designed to reverse the relationship of subordination between riders and platforms that had led courts to declare an employment relationship, thus justifying its continued use of self-employed contractors alongside a small pool of employed riders. Uber Eats, for its part, has replaced self-employed contractors with outsourced and agency workers. Crucially for our purposes, such workers often have fewer social rights than employees.
Platforms’ circumvention of the Spanish Riders’ Law therefore demonstrates all too clearly that, in employment markets experiencing increased job insecurity, underemployment and low pay, re-classifying gig workers is far from a panacea on its own. Instead, reforms must target labour and social protection in tandem. Doing so will mean designing comprehensive reforms to address social protection gaps for non-standard workers across the board, beyond the specific problems of gig work. If harmonised with wider efforts, the Resolution 2019/2186(INI) may prove a promising first step towards this goal.
Another promising aspect of the Resolution with regards to social protection is its call for workers’ data to be portable between platforms. Though primarily aimed at redressing the power of algorithmic management over workers, this proposal may dovetail well with the portability of social security contributions.
Here at GIGWELL, we hope that the potential in Resolution 2019/2186(INI) to not only tackle social protection gaps for gig workers, but also pave the way for social security reforms for non-standard workers in general will be realised in the Commission’s legislative proposal, due on 8th December. Alongside others in the social policy community, we’ll be watching closely for the detail of the proposal. Watch this space for further analysis.