Digital transition: an opportunity to advance labor law?
On December 9, 2021, the European Commission presented a proposal for legislative initiative on the working conditions of platform workers. On the same day, he also offered a series of Guidelines this would redefine the scope of European competition law in order to allow collective bargaining between self-employed workers. In the meantime, the Artificial Intelligence (AI) Act has also been making its way through the legislative pipeline for nearly a year.
These initiatives came after years of intense discussions between experts and policymakers on the disruptive impact of digital platforms and AI on the world of work, both in terms of working conditions and labor market transformation.
However, with these proposals, it is conceivable that the digital transition will also prove to be an opportunity to launch broader constructive reflection on how to ensure the future resilience of labor rights. And, just as significantly, the Commission seems to have realized the importance of approaching this reflection from a multidimensional perspective. The direction taken is certainly promising. But how far is the wind of change blowing?
Platform work and AI regulation
The first dimension through which the Commission approaches digitization is the regulation of platform economy. The draft directive intervenes in the rich debate on the correct classification of platform workers as “employees” or “self-employed” and aims to clarify this issue. The proposed legislation introduces, where specific criteria are met, a presumption of employment status that would help to correct the platforms’ evasive strategies regarding the application of national employment and social protection systems.
This initiative would undoubtedly grant more dignity to platform workers and, at the same time, hold platforms accountable for their social responsibility.
However, it could have gone even further. The directive risks covering only these platforms this to organise work carried out by individuals (Article 2), thus potentially excluding certain crowdworkers. Furthermore, more needs to be done to decouple workers’ access to labor rights from the “subordination vs. autonomy” dichotomy.
This could be done, for example, by extending the recognition of labor rights to all cases of algorithmic management. The proposal already establishes that in the presence of automated decision-making, a series of rights must be conferred on all workers on the platform regardless of their status (a right to transparency on the system deployed; a right to information and consultation of worker representatives; a right to monitoring of automated mechanisms by human rights; measures to prevent health and safety risks; and data protection rights). Nevertheless, a paradigm shift has not yet been achieved since the rights to employment and social protection remain linked to the existence of an employment relationship.
This brings us to the Commission’s approach AI and automated decision making: the second dimension through which the EU approaches the digital transition in the world of work. The Commission seems to have realized the potentially harmful effect of AI applications on workers’ rights. According to the proposed AI law, AI systems used in a work-related context are considered “high risk” and therefore must undergo a specific ex ante compliance assessment. And, as mentioned, the draft directive on platform workers reinforces these guarantees by assigning a series of rights in the case of algorithmic management.
However, both the proposed AI law and the draft directive do not provide strong enough safeguards. In one case (the AI law), the standards are not strict enough because they are mainly based on self-assessment procedures; and, in the other (the proposal for a directive), the scope is still too narrow since it only concerns platform workers.
There is therefore a need to open an institutional debate in order to address in a more comprehensive way the risks that AI applications pose to all workers and to do so in a way that better integrates labor rights with labor law. of data protection, with existing non-discrimination instruments and with ad hoc and stricter rules on product liability and product standardization in mind.
Monopsonist firms and political will
The Commission has also demonstrated its awareness of the need to intervene in a third dimension, namely the emergence of companies with extraordinarily strong entrepreneurial power.
The digital transition enables monopsonies in the labor market, created when few companies (or only one) “buy labour”. These monopsonist employers, of which Amazon is a prime example, are therefore able to drive down labor costs and cause a general deterioration in working conditions across entire industries and production sectors.
By recognizing the right of the self-employed to collectively bargain their working conditions, the Commission is taking a positive step to limit the excessive bargaining powerof these “super companies”.
The scope of the guidelines is quite broad, since it covers all self-employed persons who are first of all in a “situation comparable to that of workers”, i.e. those who draw at least 50 cent of their total annual income related to the work of a single entity, those who work “side by side” with workers and those who work via digital work platforms. It also covers those who are in a “weak negotiating position vis-à-vis their counterparts and [who] may therefore be unable to significantly influence their working conditions”. This covers those who provide services to entrepreneurs of a certain economic strength who represent an entire sector or industry, or who have a cumulative annual turnover of more than 2 million euros or a workforce of more than 10 workers ( individually or jointly). It also covers all self-employed self-employed persons authorized to bargain collectively under national or EU law.
However, the scope of this initiative could be much wider. It should also be noted that the single self-employed workers described above are simply considered to fall outside the Commission’s enforcement priorities, while remaining firmly within the scope of Article 101 TFEU (unlike self-employed who are in a “situation comparable to workers”, who are designated as outside its scope).
The Draft Guidelines therefore appear to indulge in a classic and undesirable (timid) regulatory fallacy, whereby greater personal scope tends to be correlated with diminishing returns in terms of substantive rights and protections afforded. Hardly a paradigm shift and a movement towards universalism, as also noted by the European Trade Union Confederation.
Moreover, Recital 16 of the Guidelines is quite problematic, as the Commission considers de facto that the exercise of the right to strike by the self-employed “may raise competition concerns” and, therefore, should be subject to a test of proportionality. A memory of Regulation Monti IIdifficult to reconcile with International Labor Organization Convention 87.
The digital transition has accelerated the labor law crisis but, at the same time, it offers the opportunity to open a debate on the reorientation, or even progress, of labor law. EU policymakers have approached a crossroads. The Commission’s proposals have the great merit of creating momentum, previous the initiatives of many national legislators. At the same time, these initiatives could take workers’ rights even more into account.
The policy-making process has just started: the directive on platform workers will have to be discussed, amended and only then finally adopted, after discussion in the European Parliament and by national governments in the Council, while the guidelines on competition law are at the advisory stage. The direction that will be taken will reveal the real political will of the EU institutions and whether it is strong enough to prevent workers’ rights from being (once again) sacrificed on the altar of market forces and powerful actors. companies.