BOCCONI LEGAL STUDIES RESEARCH PAPER SERIES

Number 1
February 2018

FUNDAMENTAL LABOUR
RIGHTS, PLATFORM WORK
AND HUMAN-RIGHTS
PROTECTION OF NON-
STANDARD WORKERS
Valerio De Stefano
Antonio Aloisi
 Fundamental Labour Rights, Platform Work
and Human-Rights Protection of Non-Standard Workers*1
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VALERIO DE STEFANO
BOFZAP Professor of Labour Law, KU Leuven – [email protected]

ANTONIO ALOISI
Ph.D. Candidate, Bocconi University, Milan – [email protected]

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ABSTRACT

The spread of non-standard forms of employment in industrialised and developing countries over
the last decades has prompted an extensive debate on how to reshape labour regulation to
accommodate these new formats. However, limited attention has been devoted to the access of non-
standard workers to fundamental labour rights. This chapter aims at reorienting the debate towards
these neglected dimensions of labour regulation. In particular, it focuses on the risks affecting work in
the so-called ‘gig’ or ‘platform’ economy, since the relative novelty of these forms of work may obscure
the difficulties these workers face in enjoying fundamental labour rights. Platform workers, together
with casual workers and some self-employed workers not only are more exposed to violations of
fundamental rights but also are also often excluded from the legal scope of application of these rights,
which are sometimes reserved to workers in an employment relationship. This is particularly true for
collective labour rights, as self-employed workers, including sham self-employed persons and
platform workers, who are often deprived of full access to the rights of freedom of association and
collective bargaining. This happens, for instance, when their collective activities are found to be in
breach of antitrust regulation. This chapter maintains that preventing self-employed workers who do
not own a genuine and significant business organisation from bargaining collectively is at odds with
the recognition of the right to collective bargaining as a human and a fundamental right.
Consequently, it argues that only self-employed individuals who do not provide ‘labour’ but instead
provide services using an independent, genuine and significant business organisation that they own
and manage can have their right to bargain collectively restricted.

*
This is a draft chapter. The final version will be available in Labour, Business and Human Rights Law,
edited by JANICE R. BELLACE and BERYL TER HAAR, forthcoming 2019, Edward Elgar Publishing Ltd. The
material cannot be used for any other purpose without further permission of the publisher, and is for
private use only.

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 1. INTRODUCTION

The spread of non-standard forms of employment in industrialised and developing countries over
the last three decades has prompted an extensive debate on how to reshape labour regulation (see
references in Adams and Deakin, 2014a; ILO, 2016a; Berg et al., 2018). This debate, however, has
arguably concentrated on how to adjust regulation of individual aspects of employment law to
address the spread of non-standard work, such as the working conditions and equal treatment of
some non-standard workers or the very possibility of making recourse to non-standard work
arrangements. Less attention has been given, instead, to the questions that non-standard work poses
to the regulation of fundamental labour rights, including the right to freely associate in trade unions
and to bargain collectively.

This chapter aims at reorienting the debate towards these neglected dimensions of labour
regulation, by shedding light on the risks that accompany non-standard work with regard to
fundamental labour rights. It concentrates, in particular, on the risks that affect work in the so-called
‘gig’ or ‘platform’ economy, since the relative novelty of these forms of work may obscure the
difficulties these workers face in enjoying fundamental labour rights. Naturally, nonetheless, these
problems go much beyond platform work and extend to a far vaster area of work that does not fall in
the realm of the standard, open-ended, full-time employment relationship (SER). This is particularly
true for collective labour rights, whose legal restrictions often disproportionately affect non-standard
workers and prevent them from enjoying these rights fully (De Stefano, 2017a). This chapter argues
that some of these restrictions are at odds with the increasing international recognition of labour
rights, and particularly of some collective rights, as human rights. It focuses in particular on the limits
that current antitrust standards pose to the right to organise and to collective bargaining of some
non-standard workers and advances a proposal for the review of these restrictions.

2. REGULATION AND THE (IR)RESISTIBLE GROWTH OF NON-STANDARD WORK

According to the International Labour Office, non-standard employment includes ‘temporary

employment, part-time work, temporary agency work and other multi-party employment
relationships, disguised employment relationships and dependent self-employment’ (ILO, 2016). It is
arguably an open description, since the list of the possible work arrangements indicated as ‘non-
standard’ is a non-exhaustive one.

Reference to ‘non-standard work’ is theoretically preferable to other terms that are often used to
refer to similar phenomena. ‘Precarious work’, for instance, arguably extends much beyond the
borders of non-standard work. Workers may experience precariousness also when they are in an SER
(Kountouris, 2013). This may happen, for instance, when regulation against unfair dismissal is so
scarce that they are not effectively protected against arbitrary acts of the employer or when an
extended length of service is necessary to qualify for labour protections such as maternity leave,
redundancy pay or action against unfair dismissal. In addition, not every non-standard worker is
precarious, as there could be non-standard work contracts that nonetheless afford sufficient stability
of employment and income, such as some form of fixed-term or part-time contracts.

3
 The expression ‘atypical work’, instead, presents non-negligible legal flaws. In some civil law
traditions, the terms ‘contratto atipico’, ‘contrato atípico’ or ‘atypischer Vertrag’ technically refer to
contracts that are not specifically regulated – this is not true for a vast number of non-standard
contracts. On the contrary, fixed-term work, temporary agency work, dependent self-employment and
part-time work are explicitly regulated in a vast number of legal systems, at the international, regional
and national level.

Reference to ‘non-standard employment’ could also be criticised as implying the adoption of an

obsolete SER-centric vision of labour markets, which fails to recognise the growing relevance of other
work arrangements alternative to the inevitably receding SER. This picture, however, is hardly
accurate. According to the ILO (2015), ‘despite the growth of non-standard work in many regions of
the world the (SER) remains the dominant form of employment in industrialized countries, accounting
for 70 per cent of jobs in Europe and the United States. In emerging economies, such as Brazil and
Argentina, most jobs created in the 2000s were formal jobs with indefinite contracts’. On the one
hand, thus, the SER is far from being vanishing in numerical terms and the mainstream accounts of an
alleged replacement of the employment relationship with various forms of self-employment
(McKinsey, 2016) can be called into question also by thoroughly investigating how much the rise of
self-employment corresponds to truly ‘new’ and ‘liberating’ business models rather than to a rebrand
of casualized forms of work and of misclassification practices (De Stefano, 2016a). On the other hand,
the SER still constitutes the backbone of labour regulation in most jurisdictions of the world (ILO,
2016a; Davidov et al., 2015), while the growth of non-standard employment should also be seen as a
voluntary or involuntary outcome of regulation (Meardi, 2014; Adams and Deakin, 2014a). Needless
to say, the spread of non-standard employment is not only attributable to regulation; the impact of
global trade, the decline of the manufacturing sector and the enormous expansion of the service
sector in industrialised countries as well as technological innovation all hugely contributed to this
spread (ILO, 2016); nonetheless, regulatory practices also played a significant role that should not be
underestimated (Berg, 2017; Weil, 2014).

A prominent example is the development of the doctrine of mutuality of obligation and its impact
on the spread of casual employment, particularly in the form of zero hour arrangements, in the
United Kingdom (De Stefano, 2016b). Regulation can also remove restrictions to the lawful recourse to
non-standard work, by, for example, allowing the conclusion of fixed-term contracts for non-
temporary reasons (Aleksynska and Berg, 2016), and can promote non-standard work as a cheap
alternative to the SER. This is arguably the case of some existing social security and unemployment
benefit regulation in some European countries such as ‘mini-jobs’ in Germany and ‘zero hour’
contracts in the United Kingdom (Adams and Deakin, 2014b). In Italy, instead, the spread of
‘parasubordinate’ work was also arguably an unintended effect of civil procedural rules and social
2
security regulation.

2
See De Stefano, 2009, arguing that the first time Italian law meaningfully regulated parasubordinate
relationships or ‘collaborazioni’, ‘only procedural rules were extended to them’. However, ‘the mere fact that the
legislator mentioned them as self-employment relationships on a continuous and coordinated basis, distinct from
traditional relationships of that kind, was interpreted by firms as the legislator’s consent to firm-integrated
working activities not covered by the legal and collective protections of the employment relationship. In 1973, the
first elements and practices of Post-Fordism were already starting to gain ground. This resulted in the ever-
increasing use of ‘collaborazioni’ as a cheaper alternative to permanent employment relationships […] When, in

4
 In some cases, also administrative and enforcement practices can play an endogenous role in the
erosion of the SER. For instance, in 2015 the US Department of Labour had issued an administrative
interpretation showing how many workers currently misclassified as independent contractors in the
United States would be covered by the Fair Labour Standards Act, in light of the wording of the law
and established case law (US DoL, 2015). Following the change of Administration, the Department of
Labour decided to withdraw the interpretation, indicating a change in the determination of enforcing
current labour standards. Rather than a structural shift in business models and an acknowledgement
of increased entrepreneurship and genuine self-employment, therefore, the withdrawal of the brief
signals merely to businesses that misclassification practices will more likely be tolerated than under
the previous administration. Future increases in the number of US self-employed workers must also
be weighted against this purely administrative policy.

Erosion of collective bargaining driven by deregulation and re-regulation in the field of industrial
relations have also contributed to the spread of casual labour in developed economies (ILO, 2016a).

Finally, exclusions of non-standard workers from fundamental labour rights as well as limitations in
the exercise of collective rights that disproportionately affect non-standard workers can be another
prominent example of regulation providing undue incentives to recur to non-standard work (De
Stefano, 2017a). Calling for the revision of these restrictions, with a view to ensure that all non-
standard work is made decent, does neither suggest that all non-standard work arrangements should
be brought under the SER nor implies that the SER itself is an outmoded and irrelevant phenomenon,
unsuited for advanced labour markets.

A further objection can be that there is no need to adopt a generic ‘umbrella’ term to group the
distinct forms of work contract deviating from the SER and that it is instead opportune to analyse and
refer to any such form one by one. Despite being aware of the potential shortcomings of adopting any
generic term to group different legal phenomena, it can, however, be useful to have a general
framework to refer to, when dealing with non-standard work. This is the case, for instance, when
addressing situations in which two or more ‘non-standard’ dimension sum up: a worker may very well
be hired on a fixed-term contract by a temporary work agency and work part-time at the same time.
The distinction between casual work arrangements and self-employment is also sometimes blurred
(De Stefano, 2017b). Forms of non-standard work are often associated and should not be regarded
only on a discrete basis. Also, referring to a more general class can prove worthwhile, when it is
necessary to examine some common problems that affect non-standard workers. One of such issues
is undoubtedly the general difficulty to adequately access fundamental labour rights (ILO, 2016a).

Examining in detail all these difficulties goes beyond the scope of this article. The next section will
attempt to shed light on the particular hardship faced by a growing part of the non-standard
workforce: platform workers. Despite ‘platform work’ being a vastly heterogeneous phenomenon, we
argued in the past that the so-called ‘platform’ or ‘gig’ economy, should not be considered in isolation,
as a sort of separate dimension of labour markets. Instead, it should be understood as a part of a
broader phenomenon, namely the spread of work arrangements alternative to the SER. We also

1995, modest social security contributions and employment tax were extended to ‘collaborazioni’, this, far from
constituting a disincentive, fostered the idea that they were a low-cost substitute for employment, in
consequence of which they became more popular than ever’.

5
pointed out the many dimensions platform work shares with all the non-standard forms of work
identified by the ILO and recalled above (De Stefano, 2016a; Aloisi, 2018). The following section
highlights the risks platform workers face about the ILO Fundamental Principles and Rights at work. In
doing so, it also draws parallels between the situation of platform workers and the challenges that
other forms of non-standard work present to the universal enjoyment of those fundamental
principles and rights.

3. PLATFORM WORK AND FUNDAMENTAL RIGHTS

‘Platform’, or ‘gig’, work is usually understood to include chiefly two forms of work: ‘crowdwork’ and
‘work on-demand via apps’ (De Stefano 2016a; Prassl, 2018).

Crowdwork is work that is executed through online platforms that put in contact an indefinite
number of organisations, businesses and individuals through the Internet, potentially allowing
connecting clients and workers on a global basis. The nature of the tasks performed on crowdwork
platforms may vary considerably (Berg, 2016; Silberman and Irani, 2016). In ‘work on-demand via
apps’, working activities such as transport, cleaning and running errands, but also forms of clerical
work, are offered and assigned through IT platforms or apps like Uber, Deliveroo or Taskrabbit. The
businesses running these apps typically intervene in setting minimum quality standards of service and
in the selection and management of the workforce (Prassl and Risak, 2016).

As already mentioned, platform workers may face unsurmountable difficulties in exercising

internationally recognised fundamental labour rights. The ILO identifies four categories of
Fundamental Principles and Rights at Work: freedom of association and the effective recognition of
the right to collective bargaining, elimination of all forms of forced or compulsory labour, effective
abolition of child labour, elimination of discrimination in respect of employment and occupation.
These principles and rights are regarded to be universal and to apply to all workers and are enshrined
in the eight fundamental Conventions of the Organisation. The 1998 ILO Declaration on Fundamental
Principles and Rights at Work calls all the Member States of the ILO to respect, promote and realize
these principles and rights, whether or not they have ratified the relevant Conventions. Platform
workers, nonetheless, may often find impossible to enjoy these rights.

As to freedom of association, for instance, the practical possibility of associating is reduced in

particular for crowdworkers, also given their dispersion on the Internet, even if some initiatives aimed
at organising workers online also emerged (Silberman and Irani, 2016; Johnston and Land-Kazlauskas,
2018). Actions through these platforms, however, tend to suffer from some of the typical problems of
online activism (Beyer, 2014; Salehi et al., 2015). Given the considerable competition existing on
crowdwork, platforms workers may also be unwilling to cooperate. Moreover, in forms of work where
reputation and ratings play a significant role in securing continuation of employment with a particular
platform or access to better-paid jobs (De Stefano, 2016a), workers may feel particularly reluctant to
exercise any collective right as it could adversely impact on their reputation (Dagnino, 2015). This is
not only true for crowdwork but also for work on-demand via apps and for the actors that attempt to
organise these workers. Also, the possibility of being easily terminated via a simple deactivation or
exclusion from a platform or app may magnify the fear of retaliation that – as argued below – can be
associated to some forms of non-standard work. The constant IT connection to platforms and apps

6
also increases the businesses’ possibilities to monitor and discourage forms of activism (Murphy,
2015).

Moreover, the fact that some forms of online work can be executed from anywhere in the world
also implies serious risks related to forced and child labour. In some developing and emerging
countries, factories exist where people are employed in ‘gold-farming’, a particular kind of online work
whereby ‘workers are paid to harvest virtual treasures for online gamers in the developed world’ who
‘want to advance quickly within their online role-playing games of choice’ and avoid the repetitive
tasks required ‘to build a high-level’ character (Cherry, 2010, 471). Some gold farmers may work up to
12 hours per day (Barboza, 2005); in some cases, detainees in labour camps in China have been
reported to be employed in gold-farming (Vincent, 2011).

These practices should prompt reflections about a crucial issue: online work is not necessarily
dispersed in people’s homes and in cafés, as we normally give for granted. It can very well take place
in sweatshops. The risk of people in forced labour being employed in some forms of crowdwork is a
serious and non-negligible one. Moreover, as practices like these would open an unexpected
dimension of compulsory work, the real danger is that they would be undetected through existing
measures against forced labour (Cherry, 2011). For instance, codes of conduct and monitoring
mechanisms regarding supply chains do not focus on this potential expression of forced labour yet,
something that should be urgently addressed.

The very same problems affect child labour. Also in this case, the possibilities of circumventing
traditional instruments against the unlawful employment of children are enhanced by the spread of
crowdwork. Indeed, the risk of child labour is even more pervasive as it may concern a higher number
of countries relative to forced labour. Children with access to the Internet may be lured to execute
working activities online that are remunerated with money or also credits to be spent for online
games or on platforms (Cherry, 2011). In doing so, they may also be exposed to contents that are
inappropriate for them. Monitoring mechanisms against the improper access of children to work
online may be very difficult to implement, and existing instruments against child labour may very well
fall short of these new possible forms of children exploitation.

The gig-economy also prompts grave concerns about discrimination. Online work can indeed have
positive effects on this issue. For instance, avoiding ‘real’ personal contact and anonymity on the net
can contribute reducing risks of discrimination. Besides, the possibility to work online from anywhere
provides access to work opportunities also to persons that are home-bound due to health issues or
disabilities. Online work, however, is not a cure-all solution against discrimination (for a discussion of
both opportunities and risks in this regard, see Cherry, 2011). Crowdwork platforms, for instance,
allow providers to restrict the geographical areas from where workers can undertake tasks online
(Kinglsey et. al., 2014). This possibility may allow cutting out entire countries, regions or communities
from access to work, without any guarantee that the limit is only imposed on objective grounds such
as language. Discriminating practices can therefore surely occur also in virtual work. Similar
considerations hold true also for offline platform work. While some arguments exist that this kind of
work may contribute to combat discrimination, both explicit and implicit bias of customers may play a
significant role in deciding whether to accept a worker for a particular job and, above all, when
reviewing its performance (Rogers, 2016; Knight 2016). Since customers’ reviews may be essential in
preserving the possibility to accede to the app and to future jobs, a biased review could entail a major

7
detrimental effect for workers’ employment opportunities (FEPS, 2017). Once, again, given that these
working practices are still relatively novel, these risks may evade existing mechanisms and policies
and call for urgent action in ensuring that platform workers are protected against discrimination.

In addition to these risks, as mentioned above, platform workers may face some problems with
reference to Fundamental Principles and Rights at Work that affect non-standard workers in general.
Particular difficulties and gaps have been reported in this respect, about all forms of non-standard
work (see ILO, 2016a). Some of these hardships are however particularly significant for workers in the
gig-economy, namely those associated with casual work, self-employment and misclassification of
employment status.

In various occasions, the ILO supervisory bodies expressed their concern on the fact that when
casual workers and self-employed persons are typically excluded from the general application of
employment and labour laws, they might find themselves also excluded from regulation protecting
fundamental principles and rights at work (Berg et. al., 2018). The International Labour Office has
recently reported (2016) on the vast number of observations and direct requests issued by the ILO
Committee of Experts on the Applications of Conventions and Recommendations (CEACR) dealing with
national legislation that failed to protect categories of workers such as those in casual arrangements
but also self-employed workers against child labour practices and non-discrimination policies.

These exclusions, in fact, are more widespread than what one may imagine and they are by no
means confined to developing countries. In the United States, for instance, Chapter VII of the Civil
Rights Act, which constitutes the backbone of the national antidiscrimination policy regarding
employment and occupation, does not apply to self-employed persons. Even under EU Law the
application of the full range of anti-discriminatory measures with regard to employment and
occupation to self-employed persons is not a reality (Barnard, 2011) and the implementation of EU
Law by national authorities and courts has also fallen short of providing a universal protection of self-
3
employed persons against discrimination in employment and occupation.

The platform economy, and the vast debate it has ignited among labour scholars and
policymakers, therefore, offers the opportunity to re-discuss some of the structural shortcomings that
affect a binary construction of labour regulation whereby self-employed persons are, often by default,
excluded from the scope of protection even when it comes to fundamental rights (Bellace, 2018).
These exclusions also persist if these rights are proclaimed to be universal, sometimes by the very
same wording of the relevant instruments. Leaving momentarily aside the possibility of generally
challenging this binary distinction or its boundaries (Freedland and Countouris, 2011; Davidov, 2016),
something that goes beyond the purpose of this paper, the exclusion of casual and self-employed
workers from basic human-right policies such as non-discrimination and the abolition of child labour
must be urgently called into question. The spread of new forms of casual work, dependent self-
employment and disguised employment relationships that is often concealed under the buzzwords
‘platform’ or ‘gig’ economy (De Stefano, 2017b; Fredland and Prassl, 2017) must prompt a
reconsideration of the scope of application of fundamental rights, coherently with the spirit of the ILO
1998 Declaration on Fundamental Principles and Rights at Work. It is urgent to ensure that workers in
need of vital aspects of protection, independently from their employment status, are not left behind

3
Jivraj v Hashwani [2011] UKSC 40. See Freedland and Kountouris, 2012.

8
when it comes to the application of fundamental labour rights (Bellace, 2018). The emergence of the
‘gig’ economy has, as a matter of fact, prompted a vast debate on the scope of application of labour
regulation (Aloisi, 2018). Nonetheless, this debate, and the mushrooming litigation on misclassification
practices in this section of the labour market has mostly been concerned with rights such as the
minimum wage, holiday pay and other economic benefits. A comprehensive reflection on how these
forms of work challenge the protection of fundamental rights has, instead, lagged behind.

Hopefully, the ‘Future of Work’ discussions to be held at the 2019 International Labour Conference
will contribute shedding light on these vital aspects of labour protection and on the many regulatory
shortcomings that affect non-standard work much beyond the blurred boundaries of platform work.
In this regard, specific attention needs to be given to collective rights such as freedom of association,
the effective right to collective bargaining and the right to industrial action. The next sections will deal
with these aspects, firstly by concentrating on the recognition of fundamental labour rights, including
collective rights, as human rights and then focusing on some major obstacles that prevent some non-
standard workers, both in the ‘platform’ economy and beyond, from adequately enjoying collective
rights, and, in particular, the right to bargain collectively.

4. HUMAN RIGHTS, LABOUR RIGHTS AND NON-STANDARD WORK

The recognition of collective rights as human rights forms part of a more general debate on the
construction of labour rights as human rights (Arthurs, 2006; Fenwick and Novitz eds., 2010;
Mantouvalou, 2012; Hepple et al., eds., 2015) that was recently spurred by numerous judgments of
4
international and national supreme courts. Recognising collective rights as human rights is strongly
interrelated with securing adequate access of non-standard workers to these rights.

Recognising collective rights as human rights, in fact, must prompt a reflection on the legal
restrictions posed to these rights. It goes without saying that collective rights can be lawfully subject to
restrictions even if they are recognised as human rights. All the international treaties that recognise
freedom of association, the right to collective bargaining or the right to strike, indeed, allow for
exclusion from, or limitations, to the exercise of those rights. A prominent example is the exclusion of
the armed forces or the police from the application of these rights or the possibility of limiting the
right to industrial action in essential services. Nonetheless, considering collective rights as human
rights – as it is possible to infer not only from the text of the international instruments but also from
the opinions of the bodies called to supervise their application (Politakis, ed. 2007; Bellace, 2018) –
calls for these restrictions to be limited only to those strictly necessary in securing the exercise of
other human rights. Allowing broader restrictions would, in fact, risk diluting the entire human rights
discourse.

4
European Court of Human Rights (ECtHR), Demir and Baykara v Turkey (2008) ECHR 1345; ECtHR, Enerji Yapi-Yol
Sen v Turkey (2009) ECHR; ECtHR, RMT v United Kingdom (2014) ECHR 366; Constitutional Court of South Africa,
Bader Pop (pty) Ltd v NUNMSA [2002] Industrial Law Journal (South Africa) 104 (LAC); Supreme Court of Canada,
Dunmore v Ontario (AG), [2001] 3 S.C.R. 1016, 2001 SCC 94; Supreme Court of Canada, Health Service and Support –
Facilities Subsector Bargaining Assn. v British Columbia, [2007] SCC 27; Supreme Court of Canada, Ontario (AG) v.
Fraser, [2011] SCC 20.

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 Reviewing current restrictions, as already mentioned, is also essential to ensure that the possibility
of meaningfully exercising collective labour rights is granted to all workers, as existing limits to these
rights may exclude growing parts of the workforce, and many non-standard workers in particular,
from this possibility.

The categorisation of labour rights as human rights can be particularly beneficial for workers in
non-standard arrangements. An important, and yet often neglected, reason to approach labour rights
from the human-rights standpoint is the existence of managerial prerogatives and their impact on
workers (De Stefano, 2017a). The employment relationship is by definition based on the social and
legal power of one contractual party vis-à-vis the other. Contract law and employment regulation,
customs and practices grant employers with extensive rights on workers. Employers have the power
to give detailed directions and instructions on how the work is to be performed; they can also closely
monitor how these instructions are complied with and are also entitled to discipline recalcitrant
workers. Managerial prerogatives are therefore not only a result of economic phenomenon such as
the inequality of bargaining power. They are also enshrined in regulation that vests employers with an
authority over their workers that goes beyond social norms and is also recognised from the legal
standpoint (Dockes, 2004; Supiot, 1994). These prerogatives and this authority may affect the workers’
dignity as human beings and, therefore, their limitation and rationalisation – which is one of the core
rationales of labour law – is also relevant from the human rights’ perspective (De Schutter, 2013;
Bisom-Rapp, 2018). As also argued in the past, non-standard workers are often exposed to some
mechanisms that may magnify employers’ managerial prerogatives (De Stefano, 2017a).

In particular, workers in temporary contracts – regardless of their employment status – are often
exposed to what De Stefano (2009; 2017a) labelled the ‘implicit threat’ mechanism, namely the fear
and reluctance to exercise their contractual and labour rights afraid that their temporary contract may
not be renewed or prolonged, should they do so. This is also particularly true for workers in casual
work arrangements that are on the rise in industrialised countries, such as zero-hour contracts and
on-call jobs, in which the employer is not bound to offer working hours in the future (De Stefano,
2016b). In situations like these, the possibility of the workers renouncing to exercise basic rights and
to react to malpractices from the other party is a serious one and materially strengthens the
managerial powers of this latter party.

The ‘implicit threat’ mechanism can also be particularly strong in platform work, where the
platform can automatically discontinue the relationship with workers, by denying them access to the
platform or by preventing them from acceding to certain or to all jobs from the platform. In many
cases, these decisions may be taken on the basis of the ratings that workers receive from the
platform’s customers, with the result that platform workers often report living in fear of a bad rating
or of being excluded or penalised by the platform, at the platform’s whim (FEPS, 2017).

In a situation like this, but also in circumstances in which the worker is employed in traditional
temporary, short-term and casual work arrangements, the necessity to preserve the workers’ ability to
exert their fundamental labour rights and, therefore, their very same human dignity at the workplace
is particularly pressing. Reinforcing instruments to limit and restrict potentially abusive business
practices is, thus, all the more essential.

In this respect, collective labour rights may play a crucial role. Freedom of association, and the right
to collective bargaining and collective action, acting as ‘enabling rights’ can make labour rights

10
effective for non-standard workers without the need to recur to burdensome and intimidating
individual protection and enforcement mechanisms such as grievance procedures or judicial claims.
They can also be pivotal in making business practices such as ‘management by algorithms’, and
managerial decisions based on customers’ rating, but also the allocation of work shifts to casual
workers, more transparent and fair (Aloisi et al., 2017). International union organisations are, in fact,
starting to advance specific demands in this direction (UNI Global Union, 2017). The involvement in,
and control of, management of non-standard work by collective actors can indeed be most beneficial
for the relevant workers.

Nonetheless, for workers in non-standard employment, collective labour rights, and the very same
freedom of association, may be particularly affected by the ‘implicit threat’ of losing one’s job. The ILO
Supervisory Bodies highlighted how recourse to non-standard forms of work can have a detrimental
impact on union rights and collective bargaining. For instance, the CEACR reported (ILO, 2012, 386)
that:

‘one of the main concerns indicated by trade union organizations is the negative impact of
precarious forms of employment on trade union rights and labour protection, notably short-
term temporary contracts repeatedly renewed; subcontracting, even by certain governments
in their own public service to fulfil statutory permanent tasks; and the non-renewal of
contracts for anti-union reasons. Some of these modalities often deprive workers’ access to
freedom of association and collective bargaining rights, particularly when they hide a real and
permanent employment relationship. Some forms of precariousness can dissuade workers
from trade union membership’.

It is, therefore, particularly urgent to reinforce the collective protection of non-standard workers,
to strengthen their position in a situation in which they may bear the brunt of particularly invasive
business practices and may not feel comfortable with individually exerting their rights, lest they lose
their job.

Since the increasing casualisation of labour markets and the spread of platform work and practices
that are materially blurring the distinction between the managerial prerogatives exerted on
employees and the contractual powers exerted on some self-employed workers (De Stefano, 2017b;
Prassl and Freedland, 2017), it also indispensable to ensure that the traditional distinction between
employment and self-employment does not act as a boundary for the enjoyment of collective rights.

Automatically excluding self-employed workers from these rights would not be compatible with the
recognition of collective rights as human rights and their consequent universal character. Nor the
rationale of restraining the powers exerted on workers can be limited to people in formal
employment relationships. This is not only because the widespread practices of full disguisement of
these relationships would risk depriving workers of the possibility of collectively acting to challenge
misclassifications without having to resort to potentially lengthy and costly litigation. It is also because
the spread of forms of genuine self-employment which is nonetheless dependent on a single or
limited number of clients (ILO, 2016), and therefore also theoretically in need of a collective answer to
the powers exerted by those clients, is also a pressing reality of modern labour markets.

Both traditional and non-traditional unions have begun to act in view of this reality, by starting to
organise non-standard workers regardless of their employment status, and in particular platform

11
workers, sometimes also building upon grassroots initiatives undertaken from these workers, also
with a view to bargain collectively on the relevant working conditions (Johnston and Land-Kazlauskas,
2018). In doing so, however, they risk meeting material hurdles posed by antitrust restrictions that are
failing to catch up with the new realities of industrialised labour markets. The next section examines
this issue specifically.

5. ANTITRUST REGULATION AND COLLECTIVE BARGAINING OF SELF-EMPLOYED WORKERS:

SHOULD THE TRADITIONAL APPROACH BE UPENDED?

In recent years, the question of antitrust limits to collective bargaining has continuously
accompanied the collective initiatives aimed at bettering the conditions of non-standard workers, and
in particular self-employed and platform workers (Rubiano, 2013; McCrystal, 2015; De Stefano, 2017b).

In the EU, a key judgment was issued by the CJEU in late 2014 (Novitz, 2015; De Stefano, 2017a;
5
Kountouris, 2017). The Dutch union FNV had negotiated a collective agreement in favour of both
employed and self-employed substitute orchestra players, also regarding their compensation. The
Dutch antitrust authority had issued an opinion under which a collective bargaining agreement
negotiated in favour of self-employed workers would not be excluded from antitrust law. The
collective agreement of the orchestra player was then terminated, and the relevant employers’
association refused to negotiate a new agreement. FNV started judicial proceedings to claim the
legitimacy of such collective agreements, which led to a referral to the CJEU.

The Court of Justice held that collective bargaining agreements in favour of self-employed persons
could not be conceded immunity from competition law such as the one granted to collective
6
bargaining in favour of employees under its 1999 Albany judgment. It also ruled, nonetheless, that
both employees and the ‘false-employed’ are allowed to bargain collectively over their compensation
under EU law.

Reference to ‘false self-employed’ workers in this context, however, needs clarification. The CJEU
refers to the ‘false self-employed’ as those ‘service providers in a situation comparable to that of
employees’. The judgment also states that that ‘the term ‘employee’ for the purpose of EU law must
itself be defined according to objective criteria that characterise the employment relationship’ and
recalls that under the CJEU’s jurisprudence, ‘the essential feature of that relationship is that for a
certain period of time one person performs services for and under the direction of another person in
return for which he receives remuneration’ (for an analysis of this jurisprudence, see Kountouris,
2017).

This paragraph of the judgment, with its reference to the ‘direction’ criterion, may be misread as
limiting the right to bargain collectively only to workers in an employment relationship defined under
a strict test of control and subordination. If the notion of ‘false self-employment’ were to be construed
accordingly, the exemption would apply only to blatant cases of employment misclassification, leaving
outside the protection of collective labour rights multitudes of workers defined as self-employed

5
Case 413/13 FNV Kunsten Informatie en Media (2014) ECLI:EU:C:2014:2411.
6
C-67/96 Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie (1999) ECLI:EU:C:1999:430

12
workers under national legislations, including in countries like Germany, Italy and Spain where the law
has long allowed some categories of self-employed persons to bargain collectively.

To avoid this detrimental scenario, it is firstly important to remind that the test of ‘direction’, in the
7
CJEU’s jurisprudence, may also refer to tenuous elements of control and subordination. It is also
essential to concentrate on other paragraphs of FNK Kunsten (Contouris, 2017) and, in particular, on
the one in which the CJEU considers that, under its jurisprudence on antitrust cases, a subject cannot
be considered as an undertaking

‘if he does not determine independently his own conduct on the market, but is entirely
dependent on his principal, because he does not bear any of the financial or commercial risks
arising out of the latter’s activity and operates as an auxiliary within the principal’s
undertaking’.

This notion is based on independence on the market rather than on the employment tests of
control and subordination and is indeed suited to encompass workers that are dependent on their
principals even if they do not meet those tests in full under national laws. The need to look beyond
these strict criteria is confirmed by a subsequent paragraph in which the Court states:

‘the status of ‘worker’ within the meaning of EU law is not affected by the fact that a person
has been hired as a self-employed person under national law, for tax, administrative or
organisational reasons, as long as that person acts under the direction of his employer as
regards, in particular, his freedom to choose the time, place and content of his work, does not
share in the employer’s commercial risks, and, for the duration of that relationship, forms an
integral part of that employer’s undertaking, so forming an economic unit with that
undertaking’.

Arguably, these two paragraphs refer not only the situation of workers formally classified as
‘employees’ according to the law of the respective Member States, but also of many workers that
national laws may consider as self-employed. This is particularly relevant for many platform workers.
8
In this regard, in fact, the decision of the CJEU in its Uber case is crucial. The Court found that Uber
acts as a transportation service provider rather than a mere technological intermediary between
customers and independent service providers. To reach this conclusion, the Court observed:

‘Uber determines at least the maximum fare by means of the eponymous application, that
the company receives that amount from the client before paying part of it to the non-
professional driver of the vehicle, and that it exercises a certain control over the quality of the
vehicles, the drivers and their conduct, which can, in some circumstances, result in their
exclusion’.

In a situation like this, it is clear that Uber drivers – as many platform workers do – only operate ‘as
an auxiliary within the principal’s undertaking’ and therefore, in FNV Kunsten’ terms, do not ‘determine
independently (their) own conduct on the market, but (are) entirely dependent on (their) principal’.
They can, therefore, be regarded as being ‘an integral part of (the) employer’s undertaking, so forming
an economic unit with that undertaking’. As such, they fall into the definition of ‘worker’ sanctioned by

7
Court of Justice of the European Union, Dita Danosa v LKB Līzings SIA, 11 November 2010, C-232/09
8
C-434/15 Asociación Profesional Elite Taxi v Uber Systems Spain (2017) ECLI:EU:C:2017:981

13
FNV Kunsten and should, among other things, be allowed to bargain collectively under EU competition
law.

The term ‘false self-employed’ used by the CJEU, therefore, must be read broadly, and as extending
beyond the national definitions of ‘employee’. The exemption from antitrust law does not only cover
cases of employment misclassification. Arguably, instead, it encompasses many workers that are
dependent on their principals, even if they do not fully meet the tests of employment status under the
relevant national legislations. It is the same CJEU that recalls that ‘the classification of a ‘self-employed
person’ under national law does not prevent that person being classified as an employee within the
meaning of EU law if his independence is merely notional’. Nor it can be neglected that the Court
defines ‘false self-employed’ workers as persons in a situation ‘comparable’ – and therefore not
‘identical’ – to employees.

In this respect, it is significant that when introducing an amendment to the national antitrust
regulation with the purpose of allowing collective bargaining beyond the scope of ‘employment’ sensu
stricto, Ireland, also considering the reasoning in FNV Kunsten, did not only refer to ‘false self-
employed’ persons, i.e. persons merely misclassified as employees. It also referred to ‘fully dependent
self-employed workers’, namely individuals who ‘perform services for another person’ and ‘whose
9
income in respect of the performance of such services (…) is derived from not more than 2 persons’.
To benefit from this exemption, the union must prove that a collective bargaining agreement in favour
of these workers ‘will have no or minimal economic effect on the market’ in which the workers operate
and that the requirement of competition law and EU law are not contravened (Doherty, 2018).

Despite this opening to collective bargaining of self-employed persons, however, the Irish Act is
hardly satisfactory. The reference to an income derived from not more than 2 persons is problematic
when it comes to the ‘platform economy’, where workers often work for more than 2 platforms,
clients or employers at the same time, since the earning derived from each single platform are often
insufficient to make ends meet (FEPS, 2017), and it is sometimes difficult to establish who is actually
paying the compensation between the platform and the customers (Prassl and Risak, 2016). It also
introduces a potentially insurmountable burden of proof on the side that wants to negotiate and
conclude a collective bargaining agreement.

As such, this provision seems to be at odds with international standards on collective rights and, in
particular, with ILO standards. Commenting on the Irish restrictions to collective bargaining in 2015,
the CEACR had recalled that ‘the right to collective bargaining should also cover organizations
representing the self-employed’ and had invited the Government and the social partners to identify
‘the particularities of self-employed workers that have a bearing on collective bargaining, so as to
10
develop specific collective bargaining mechanisms relevant to them’. The Committee had later
11
welcomed the introduction of a bill in Parliament in this field; nonetheless, the final legislation
adopted in the country still poses very high obstacles to collective bargaining and risk to impair the
very essence of this right, therefore, falling short of compliance with ILO standards on freedom of
association and collective bargaining. The ILO supervisory bodies have consistently observed that

9
Competition (Amendment) Act 2017
10
CEACR – Ireland, observation, C.98, published 2016.
11
CEACR – Ireland, observation, C.98, published 2017.

14
these standards apply to all workers with the sole possible exception of those explicitly excluded by
the text of Convention no. 87 and no. 98 (ILO, 2012; ILO, 2006). Self-employed workers are not among
those excluded and, therefore, the Conventions are deemed as fully applicable to them (Creighton
and McCrystal, 2016).

When the Irish case was discussed in 2016 before the tripartite Committee on Application on
Standards, some of the employers’ members raised doubts on the application of Convention no. 98 to
self-employed persons, since article 4 of the Convention, in laying down the right to collective
12
bargaining, only refers to ‘conditions of employment’. Arguably, however, the term ‘employment’ in
this context must be interpreted as a synonymous of ‘occupation’. Article 1 of the Convention, for
instance, prohibits to ‘make the employment of a worker subject to the condition that he shall not join
a union (…)’. A restrictive interpretation of ‘employment’ in this context would therefore directly
impinge not only on the right to collective bargaining but also on the right to organise, opening the
door to unacceptable discrimination of union members. Moreover, it would have disastrous
consequences on the possibility of the most vulnerable workers, for instance, informal workers who
may find impossible to claim the existence of a formal employment relationship, to fully accede to
collective rights. The Committee on Application of Standards, in fact, concluded in agreement with the
invitation of the CEACR to identify the self-employed persons relevant for collective bargaining (ILO,
2016b).

A restrictive interpretation, besides going against the long-standing position of the ILO supervisory
bodies, would also be incompatible with foundational ILO principles and, in particular with the
principle that ‘labour is not a commodity’, enshrined in the Declaration of Philadelphia. The origins of
this principle are well known and so is its direct relation with the Clayton Antitrust Act of 1914 that
firstly provided that: ‘the labor of a human being is not a commodity or article of commerce’ with the
13
explicit purpose of excluding trade unions and collective bargaining from antitrust law. If labour is
not a commodity, unions and collective agreements are not cartels or acts of restraint of trade, is the
direct implication of this provision. Reference to the ‘labour of a human being’ is vital in this context.
As it was recently noted, nothing in the Clayton Act restricts the scope of this principle to the sole
labour of ‘employees’. A distinction in collective rights based on employment status was not
introduced in the legislation of the United States until the 1940s, with the revision of the National
Labour Relations Act passed by Congress with the purpose of countering a judicial precedent of the
US Supreme Court that had liberally interpreted the scope of application of the NRLA. This, however, it
is convincingly claimed, should bear no consequence on the application of the statutory exemption
provided in the Clayton Act, which can be still applied beyond the scope of the federal definition of
‘employees’ found in the NRLA and based on the control test. The consequence, it is argued, is that
drivers of platform-based businesses can be allowed to bargain collectively and that a city ordinance
passed to provide them with this right is not in conflict with federal antitrust legislation (Estreicher,
2017).

Arguably, the same expansive interpretation should be given to the Declaration of Philadelphia,
and ILO standards on collective rights read in coherence with the Declaration. ‘Labour’ cannot concern

12
Emphasis added. See ILO, 2016b.
13
Clayton Antitrust Act 1914 15 US Code § 17

15
only the work of ‘employees’. Instead, also in light of the categorisation of collective rights as human
rights, ‘labour’ should be granted an ‘universal’ meaning and deemed to cover all human work
activities where the personal character of the work is not dwarfed by the existence of a material
business organisation that an individual independently manages to provide a service. It goes without
saying that platform workers and dependent self-employed persons do not fall outside this notion of
labour, read in coherence with the universal character of the human rights to freedom of association
and collective bargaining.

Going back to the CJEU rulings, despite the opening to allow collective bargaining beyond a strict
definition of ‘employee’, the Court’s approach still falls short of a real valorisation of freedom of
association and collective bargaining as human rights. It is clear that the CJEU is still anchored to its
1999 Albany decision. This judgement treated the recognition of collective bargaining of employees as
an exception to the general antitrust principles, an approach arguably followed also by FNV Kunsten.
Albany, however, was decided when collective bargaining was not yet recognised as a fundamental
right under article 28 of the EU Charter of Fundamental Rights, and a decade before the same Charter
acquired the same legal values of the Treaties in 2009. Importantly, given the relevance that the
Treaty of Lisbon also assigns to the European Convention on Human Rights, the Albany ‘exception-to-
rule’ approach does not seem compatible with the jurisprudence of the Court of Strasbourg that
treats the right to collective bargaining as an essential element of freedom of association under article
11 of the ECHR and the importance assigned by this latter Court to the opinions of the ILO supervisory
bodies when the Court determines the scope of the ECHR protection of collective rights (Dorssemont,
2011). This is all the more relevant since the Court of Strasbourg also recognises the freedom of
association of self-employed as protected under the Convention (Kountouris, 2017).

These elements should not be ignored in treating future potential clashes between antitrust
regulation and collective rights. Given the unequivocal recognition of these rights as fundamental and
human rights – at least in European law and under ILO sources – these rights should be restricted only
when they conflict with other human rights or, in ECHR terms, when a restriction is ‘necessary in a
democratic society in the interests of national security or public safety, for the prevention of disorder
or crime, for the protection of health or morals or for the protection of the rights and freedoms of
others’. The burden of proof should, therefore, be placed accordingly.

In light of what has been argued above, only self-employed individuals who do not provide ‘labour’,
but provide services by means of an independent business organisation that they actually own and
manage, 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. The burden of proof on the presence of these elements and the
material impact of collective bargaining of these independent self-employed providers on the relevant
market should be borne by those who propose the restriction, be it antitrust authorities or other
parties. Admittedly, this approach would upend the traditional functioning of antitrust regulation, but
it seems inevitable if the recognition of collective rights as fundamental and human rights must be
given significance and the spread of non-independent workers who do not meet entirely traditional
strict control and subordination tests accompanied by a consequent expansion of collective
protection of those workers.

16
 6. CONCLUSIONS

This chapter aimed at shedding light on some shortcomings of the current regulation of
fundamental labour rights. It argued that coverage of these rights is often still based on a binary
divide that leaves self-employed workers outside the scope of labour protection. It also argued that,
as the boundaries between disguised employment relationship, casual work and self-employment are
currently strained by spreading business practices, and in particular by the emergence of the so-called
‘platform’ or ‘gig’ economy, there is a high need to rethink the scope of application of fundamental
labour rights.

It also pointed out some specific risks that ‘platform workers’ face in the exercise of fundamental
principles and rights at work, and remarked that many of these risks are magnified by the fact that
platform work is often nominally at the border between employment and self-employment, namely
an ‘area’ of the labour market in which the meaningful coverage of fundamental rights tends to
become murky and uncertain, since, in far too many cases, self-employed work are excluded from the
protection of these rights, also in industrialised countries.

This chapter also argued that this exclusion is not compatible with the recognition of fundamental
labour rights as human rights and with the consequent universal character of these rights. It observed
that limits to the full exercise of freedom of association and the right to collective bargaining are
particularly vexatious for some non-standard workers, and particularly casual workers, platform
workers and dependent self-employed worker (all forms of work with particularly blurred boundaries
among themselves). This is because these workers are often subject to particularly invasive exercises
of managerial prerogatives and contractual powers; a limitation of the vital role that collective rights,
as ‘enabling rights’, may play in countering abusive managerial practices, therefore, is particularly
detrimental. It was also pointed out that current antitrust standards can have important negative
implications on the collective rights of these workers and especially on the right to bargain collectively.
It was finally proposed to give meaningful consequence to the recognition of collective rights as
human rights and their universal nature, by reversing the current antitrust approach to the collective
bargaining of self-employed persons and shifting the burden of proof on the need to restrict collective
bargaining on those who propose this restriction.

17
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