Niebler, Valentin

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Tilting at Windmills?Valentin Niebler 2023-07-18T08:59:35The proposals for an EU Directive on platform work have been subject to muchdebate, and will continue to do so during the now announced trilogue negotiations inBrussels. What often remains blurry in this debate are the subjects of the legislation:Who is working on platforms? Are we talking about leisurely side arrangements,freelance entrepreneurs, or wrongly employed full-time earners? The answer to thisquestion is complicated already by what we understand as a platform, an issue theCouncil has not clarified in an encompassing way (see the upcoming blog posts bySilberman and Kocher). Empirically, we find a very broad spectrum of digital labourplatforms, from online crowdworking platforms to the organisation of offline worksuch as care, repair or cleaning. However, the cases that have been most discussedin debates about platform work, including the policy debates around an EU Directive,are location-based platform workers such as delivery riders and ride-hailing drivers.The difficulties these workers face every day can give us insights into what a robustlegislation for platform workers would need to look at.A good opportunity to learn more about these workers is a summer evening inBerlin’s Friedrichshain district. Friedrichshain is one of the city’s buzzing touristhotspots and streetfood destinations. Its streets are not just packed with tourists andresidents, but also with young or middle-aged delivery riders from Pakistan, Indiaor Syria who deliver for companies such as Wolt, Lieferando or Uber Eats. Manyof them have arrived in the city some years ago, and many have been educatedfor office jobs in their home countries. Most of them work under conditions thataccording to German employment law are not legal. Platform-mediated cleaners,who sometimes are hired to clean the many Airbnb apartments that mushroomedacross Friedrichshain in the last years, often share a similarly precarious situation:they roam through the city for cleaning jobs, unsure if the platform offers enoughshifts to make ends meet. Many of them have recently arrived from Argentina andChile and have heard through online forums about this form of work.In the last decade, work through platforms has become an engine for the“multiplication of labour” in contemporary capitalism, the integration of a multiplicityof workers in intensified conditions through a variety of contractual arrangements.Algorithmic management systems and remote control technologies allow for the“tightly controlled and standardized cooperation of a huge number of […] workershow can come from different backgrounds, experiences, and locations and who aredistributed throughout (urban) space”. Not surprisingly, the vast majority of platformworkers in Europe are migrants or part of racialized minorities. Such groups haveoften been specifically advertised for by platform companies. Whether workersthemselves like the job or not, whether they come from inside or outside of the EU,one thing is common in most of the research on the issue: platform work, especiallyits location-based variant, is systemically geared towards the exploitation ofvulnerable workforces through breaches of labour law and technologically mediatedmanagement. Will the platform directive change this situation?- 1 -Germany is an interesting country to assess this question in, since most workerson delivery platforms officially work on an employment contract. This means that,in theory, they receive social security benefits, paid sick leave, paid vacation daysand have the right to form a Works Council. To some extent, this is a victory ofplatform worker struggles, which have mounted public pressure onto companies andtriggered steps that led companies to anticipate potential reclamation claims by theGerman pension fund. However, a proper employment relationship is not the realityfor many of the riders at Wolt or Uber Eats: many of them have neither contracts norany kind of security – they are dependent on subcontractors who offer the servicesof their ‘fleets’ to the platform companies. While some are paid by the hour andreceive a monthly wage, many earn based on the number of orders they receive perday. Some receive their income in cash through envelopes at the end of the week,others have never even seen money so far and complain about wage theft. Somehave paid 500 EUR in cash to a middle man in order to even start working with anaccount. How can this be?Cases like this one show how illegal, precarious and dangerous the labor of workerson the ground remains despite the high-aspiring messaging of platform companies.The company Wolt, which many workers mentioned above work for, describesitself as “deeply rooted in the Scandinavian welfare state” and claims that “allour couriers are employed on a permanent basis, have health insurance and arediscernibly paid above minimum wage”. Although platform companies formally insiston working through employment contracts, they make use of an array of loopholes(such as subcontracting) that have been in use in the low-wage service sectorsince years, for instance in parcel delivery or the meat processing industry. A rolemodel for this in Germany’s platform economy is the ride-hailing giant Uber, whohas practiced subcontracting since around 2016 after regulative pressure on basisof the Passenger Transportation Act. In effect, what can be observed in Germany’splatform economy (as well as in other countries such as Portugal or Croatia) is amovement from ‘bogus self-employment’ to ‘bogus employment’, where employmentclassification is granted but its guarantees are denied towards workers.The text of the Council’s proposal now discussed actually demands memberstates to “ensure that the use of intermediaries does not lead to a reduction in theprotection” (Council of the EU 2023). While it is helpful that the proposal mentionsthe issue at all (the Commission’s proposal did not), its formulation is weak andnon-binding. If it remains this way, it appears unlikely that the directive will erasethe various loopholes and tools that labour market liberalization and subcontractingpossibilities have opened for platform companies. The business model of platformcompanies is inherently tied to avoid social security payments for workers. Withoutfinding such loopholes, whether by classifications as self-employed or employed,none of the business models would survive.For subcontracted workers at Wolt in Berlin, and all over Europe, it remains unclearwhether the Directive will change their circumstances. In fact, more and moreplatform in Europe experiment with subcontracting arrangement since the proposalof the EU Directive in 2021. It is not far-fetched to expect more and more strategiesof ”creative compliance” tied to formal employment in the upcoming years. Plus,- 2 -even the existing law (such as social security payment obligations and minimumwage law) are very rarely enforced by authorities or the state. This is why after a newaccount of wage theft (several 100.000 EUR of wages were not paid), workers haveorganized concrete protests in spring and summer this year to mount public pressureonto their employers. They have also filed lawsuits against Wolt in the labour court.However, the resources and capacities for such protests and lawsuits are immenseand only the tip of the iceberg when it comes to the problems of workers in theplatform economy.The proposal for the Directive, in particular the presumption of employment areclearly a step forward for workers in the platform economy. Even if companies do notcomply with its standards, the possibility of holding them accountable through law islikely to raise labour standards. However, especially for migrant workers (especially ifundocumented), employment classifications are not guarantees of safety – they canin fact be the opposite. What should be strived for is ultimately what the ILO GlobalCommission on the Future of Work proposes, namely that “[a]ll workers, regardlessof their contractual arrangement or employment status should enjoy fundamentalworkers’ rights”. However, universal rights for workers would demand severe reformsof migration and social security legislation. As this is unlikely to happen soon, theDirective can act as a powerful tool in the upcoming years, if its implementationprocess rules out the various loopholes that have been laid out here.AcknowledgmentsThanks to Eva Kocher, Moritz Altenried and Franziska Baum for the valuablefeedback and discussions on this text and the EU Directive in general.- 3 -

Tilting at Windmills?

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