Solving the Gig-saw? Regulating for Decent Work Prof Michael Doherty - - PowerPoint PPT Presentation

Solving the ‘Gig-saw’? Regulating for Decent Work

Prof Michael Doherty Dr Valentina Franca Ms Emma Guyatt

8th Annual NERI Labour Market Conference Webinar Thursday 17th & Friday 18th September 2020

Maynooth University Department of Law, New House, South Campus www.maynoothuniversity.ie/law @profmdoherty @maynoothlaw

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• Hugely complex economic, political, social, and

cultural implications of ‘platform work’

• There are (some) ‘gig workers’, whose working

conditions are precarious

• How can/should they be protected?

Outline

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• The personal scope of employment law
• Employment Law vs Competition Law
• Regulating for decent work

Outline

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• In most legal systems the employment

relations are distinguished into two categories:

• Employees (subordinated labour)
• Self-employed (autonomous work relations)
• 1. The Binary Divide

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• There is no unified EU definition of employee:

“The essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.” (C-66/85 Lawrie Blum)

• 1. Who is an employee? Enter the Eurovision

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maynoothuniversity.ie

2 Third Way? An intermediate category

• Some labour rights but….
• Low awareness and low motivation amongst

workers in SI (lower taxes…)

• ‘Downgrades’ certain classes of worker (Uber

drivers in UK?)

• More complexity?

• EU Court developed an ‘antitrust immunity’- but

confined to employment relationships

• self – employed workers (undertakings) cannot

conclude collective agreements

• The “false self-employed”, namely “service

providers [who are] in a situation comparable to that of employees ” can be covered by collective agreements)

• 3. Employment Law v Competition Law

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• Competition (Amendment) Act 2017- sets out a

formal process to enable trade unions to apply to the Minister to bargain collectively on behalf of groups of – false self-employed – Fully dependent self-employed workers

• 3. The Self-employed and Collective Bargaining

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• So, vests rights to protect groups of workers in trade

unions (not an individual right)

• New law, so we await outcomes….
• BUT principle: collective representation should not be

automatically denied to those who cannot satisfy traditional tests of employee status

• 3. The Self-employed and Collective Bargaining

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• Individual employment rights difficult for vulnerable/

precarious workers to vindicate

• Regulatory role for trade unions important
• 4. Regulating for decent work

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• ‘litigation is time-consuming and expensive, and

individual cases are an imperfect vehicle for addressing broader considerations of distribution and social equality…legislatures should strongly consider socializing employment- related benefits and imposing employment duties on an industry specific basis’ (Rogers)

• 4. Regulating for decent work

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• Traditional employers generally silent in the

debate

• Unfair competition?
• Platforms do not consider themselves employers
• 4. Regulating for decent work

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• Broader conception of employment relationship welcome

(NB social security rights)

Conclusions

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• Need for a regulatory collective bargaining model on a

sectoral basis

• Employers (both ‘traditional’ and ‘disruptive’) should play

a role beyond political lobbying

Conclusions

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Thank you for listening

@profmdoherty @MaynoothLaw

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