Conference Agenda

Turkish Labour Code numbered 4857 has a traditional approach towards the basic concepts of labour law, such as the definition of an employee. In legal terms, an employee is a person who performs a work due to an employment contract under the subordination of the employer. All legal instruments regarding labour law is still based on subordination principle. Turkish jurisdiction is also considering “subordination” as a definitive factor for classification of a person as an employee or a self-employed.

This approach was the traditional and valid one whereas the workforce and production methods were traditional as well. The world of work has been changing rapidly due to outsourcing, technological and organizational factors as well as AI. For over a couple of years, labour law is facing a struggle regarding whom to protect. The new concepts like solo self-employed, dependant self-employed, free-lance workers, platform workers are forcing labour law to change. As an example, a growing sector due to Covid-19 pandemic is delivery and courier services. During the shut-down due to pandemic, many workers lost the majority of their income. Although social security system grants unemployment benefits to workers whose employment contracts were suspended they need to work in order to maintain their living costs. Platform work was one of the solutions for these people. Majority of the people involve in these activities as couriers. They are registered as self-employed to Social Security Institution in Turkey. So, they are excluded from labour law and fundamental labour rights. On the condition that, their demand to enjoy the fundamental rights for employees by stating their economic dependence to web-based or location-based platforms a consideration has to be made. Platform workers are organising via social media against infringements regarding health and safety issues as well as benefiting collective rights.

The main axis of the discussions is the criterion for classification of a worker which will clarify the scope of labour law. Hence labour law is aiming to protect the most vulnerable ones, it is needed to specify the modern vulnerable workers. Subordination is not enough for inclusion of the dependent self-employed or platform workers by labour law. Instead of this, economic dependence, vulnerability, imbalance of power between worker and employer are suggested criterions for clarifying who will be covered and protected by labour law.

This paper, aims to focus on idea of work and the changes about that in legal perspective.

The impact of digitalisation on the world of work is leading to a series of transformative changes that challenge the sustainability of existing labour protection and industrial relation systems. Digital workers often no longer resemble the prototype found in classical labour law provisions, consenting de-facto employers to elude basic labour standards (wage, working time, dismissal protection). But it is not only a question of determining the personal scope of labour norms. How, for instance, shall the notions of asset, establishment or undertaking be defined in the context of digitally mediated and remote work and fissured workplaces? And thus, how can labour norms whose scope is determined by these notions (such as the EU directives on collective dismissals or transfers of undertakings, for instance) be properly applied?

This paper engages with the unresolved labour law challenges exacerbated by the digital economy by proposing a conceptual paradigm for expanding the scope of labour rights (individual and collective). The reflection outlined in this contribution is grounded on an emancipatory approach to labour law. The underlying principle is in fact that the rationale of workers’ rights is to compensate for the compression of workers’ ability to negotiate or influence the terms and conditions under which their work is provided to their contractor. Accordingly, workers should be recognized as entitled to labour rights and protection in all situations where they provide labour under contractual terms and conditions that they have little or no opportunity to define. At the same time, labour norms should be refocused to better capture the economic reality in which labour is performed, in view of more effectively allocating employers’ obligations.

In developing this paradigm, the paper provides a cartography of relevant case law and collective bargaining initiatives where national (European) courts and social partners have decoupled the recognition of labour rights from the existence of a (subordinated) employment contract. Consideration is also given to the European Union framework, where interesting developments suggest that a paradigm shift in the approach to labour rights might in fact already be underway (i.e. Commission’s Guidelines of competition law and collective bargaining; the recent TP case of the CJEU, recognising non-discrimination rights to a genuinely self-employed Youtuber).

Finally, the chapter takes a constructive approach, as it explores potentially effective regulatory avenues that, in the context of the current EU legal framework could bring labour rights closer to expressing the proposed normative model.

The varied responses of municipalities to the disruption of ride hailing and food delivery platforms has drawn our attention to both the potential, and limitations, of cities as regulatory spaces. Indeed ‘the Uber question’ goes beyond just employment status and reflects a city’s fundamental right to self-govern across a number of domains including taxation, data protection, consumer safety and labour rights (Adler, 2021; Collier et al., 2018; Wolf, 2022).

In this paper we explore the contested ‘regulatory politics’ around platform work in diverse contexts. By contrasting exploratory case studies of Buenos Aires and Manchester with the vanguard case of New York we seek to understand both the willingness and capacity of embedded actors to engage with and push back against platform capitalism. Our findings suggest few cities have ‘banned’ platform companies nor have they closed the grey zone of ‘independent contractor’ status (including New York). This is due to a combination of the public demand for platform services, the complexities of changing employment law at the local level, and a degree of ambivalence among platform workers towards being re-categorised as ‘employees’ (which could limit their flexibility and earning power).

This, however, is not clear evidence of ‘regulatory capture’ (Adler, 2021) as cities have sought to maintain decent minimum standards across platform operations while also allowing competition in the market. In the case of ride hailing, cities have extended existing regulations developed for taxis such as permits and licensing (Manchester) and to have sought to tighten local traffic rules (Buenos Aires). Nevertheless, there remain problems of non-compliance and these rules cannot prevent platforms ‘flooding’ the market with riders and drivers at peak times which pushes down pay.

In contrast, the response to food delivery platforms has been more uneven. While New York has developed a specific regulatory framework to deal with pay, tips, delivery distances and safety issues, Manchester has largely relied on soft norms of ‘decent work’ and ‘responsible business’ that extend beyond platform companies. In Buenos Aires municipal actors have so far struggled to articulate and enact local rules for food and grocery delivery platforms and have largely allowed market forces to ‘regulate’ the complex transactions between clients, riders and customers. While drivers and riders have sporadically sought to build collective power from the bottom up, the lack of institutional power at the local level is a significant barrier to negotiating directly with platform companies and state actors.

Platform work has been among the most researched themes in labour law for nearly a decade. With the growing number of court cases concerning the employment classification of platform workers, as well as the regulatory and policy initiatives targeting digital labour platforms (DLPs), the judicial and regulatory debate on platform work is unabated. My presentation offers a comprehensive, quantitative analysis of case law and the regulatory/policy initiatives addressing platform work in Europe, until the end of 2022.

The first part of my analysis draws on the database of administrative and judicial decisions created by Professor Hiessl. I first provide a chronological, year-by-year deconstruction of case law showing its evolution and main patterns. Secondly, I examine the distribution of case law per country and sector. I find inter alia that two-thirds of decisions concerned platforms operating in the delivery sector, and almost one-quarter of decisions were issued on platforms in the transport sector. Moreover, while case law on platform work exists in 15 countries in Europe, around 70% of decisions stem from only two countries: France and Spain. Moreover, I compare the reclassification rates across all sectors (transport services, delivery services, household services and on-location microwork). Finally, I identify the criteria that were most commonly referred to when deciding about the employment status of platform workers in all sectors.

The second part is based on my original database comprising platform-specific regulations in the field of labour law, as well as transport and tax law instruments establishing the legal framework for DLPs. Besides the enacted statutory regulation, I also include legislative proposals (both the currently pending and already rejected ones), as well as broader policy documents directly relevant to platform work. Collective agreements and non-binding measures dedicated to platform work are also covered. The goal of this analysis is to show the level of policy activism across countries and the heterogeneity of approaches towards platform work. After providing a general overview of all platform-specific responses in Europe, I examine their personal and substantive scope.

Overall, although significant steps have been made to embed DLPs in the existing legal framework, case law and the dominant approaches towards the regulation of platform work suffer from several salient limitations, which this presentation seeks to uncover.