10.6092/issn.1561-8048/10762
The advent of platform work has led to deepened debate about the role of trade unions in our contemporary, segmented labour market. One of the crucial questions unions face is how to approach the protection, and organisation, of platform (“gig”) workers. The dilemma about whether to extend employment protection to more of those who work outside of the classical employment relationship can be solved in at least two ways: by changing labour legislation, and/or by extending the scope of collective agreements. This paper analyses two different approaches, from a common law and civil law perspective within the EU, and evaluates their efficacy. The common law perspective is analysed by looking at the case of Ireland, while from the civil law perspective the case of Slovenia is presented. In both countries, trade unions have been struggling to define strategies to approach the issue of the diversification of work relations. On the one hand, unions are wary of eroding the benefits of “employee” status, but on the other, in the context of membership decline, demonstrating relevance to increasing numbers of “non-standard” workers (including “gig workers”) is more important than ever. The paper assesses the union movements’ response in both countries to the “Uberisation” of work. 
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Valentina Franca
Italian Labour Law e-Journal
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The (non/)response of trade unions to the “gig” challenge
Text.Serial.Journal
https://illej.unibo.it/
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Miscellaneous
2020-07-20
2020-04-09
2020-07-20
2020-09-15
125-140
ILLeJ
Valentina Franca
2020/07/20
10.6092/issn.1561-8048/10762
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University of Ljubljana
1561-8048
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The (non/)response of trade unions to the “gig” challenge
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The (non/) response of trade unions to the “gig” challenge                           Italian Labour Law e-Journal
Michael Doherty                                                                             Issue 1, Vol. 13 (2020)
Valentina Franca                                                                                  ISSN 1561-8048
michael.b.doherty@mu.ie                                            https://doi.org/10.6092/issn.1561-8048/10762
valentina.franca@fu.uni-lj.si




                       The (non/) response of trade unions
                              to the “gig” challenge
                                Michael Doherty, Valentina Franca


 1. Introduction. 2. The EU Law. a. The Directive on transparent and predictable working
 conditions. b. Competition Law. c. Making and Enforcing Employment Rights. 3.
 Representational perspective. 3.1. Ireland. 3.2. Slovenia. 4. Regulatory perspective. 4.1
 Ireland. 4.2. Slovenia. 5. Governmental/Public Administration perspective. 5.1. Ireland. 5.2.
 Slovenia. 6. Conclusions. 6.1. The representational question. 6.2. The regulatory question.
 6.3. The governmental/ public administration question.




                                                        Abstract

     The advent of platform work has led to deepened debate about the role of trade unions in our
     contemporary, segmented labour market. One of the crucial questions unions face is how to
     approach the protection, and organisation, of platform (“gig”) workers. The dilemma about
     whether to extend employment protection to more of those who work outside of the classical
     employment relationship can be solved in at least two ways: by changing labour legislation,
     and/or by extending the scope of collective agreements. This paper analyses two different
     approaches, from a common law and civil law perspective within the EU, and evaluates their
     efficacy. The common law perspective is analysed by looking at the case of Ireland, while from
     the civil law perspective the case of Slovenia is presented. In both countries, trade unions have
     been struggling to define strategies to approach the issue of the diversification of work relations.
     On the one hand, unions are wary of eroding the benefits of “employee” status, but on the
     other, in the context of membership decline, demonstrating relevance to increasing numbers of
     “non-standard” workers (including “gig workers”) is more important than ever. The paper
     assesses the union movements’ response in both countries to the “Uberisation” of work.

     Keyword: Platform workers; Trade unions; Collective agreements; Ireland; Slovenia.




 1. Introduction.

   The increasingly differentiated nature of employment relations, including the
 “Uberisation” of work, has significantly influenced both the individual and collective

 
   Michael Doherty, Full Professor of Law, Department of Law, Maynooth University, Co. Kildare, Ireland;
 Valentina Franca, Assistant Professor of Labour Law, Faculty of Public Administration, University of Ljubljana,
 Slovenia. This article has been submitted to a double-blind peer review process.
Michael Doherty, Valentina Franca                                                   Italian Labour Law e-Journal
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                                                                                           Section: Miscellaneous


dimension of employment relations. There is an increase in the prevalence of non-standard
forms of work, and “new” working relationships, with the consequence that more and more
workers cannot neatly be classified in terms of the traditional binary divide as either
“employees” or as “self-employed”1. Trade unions are not just challenged by the concern
that “new” forms of work might lower employment and social standards, but also by the
question of how to represent the increasing diversity of interests amongst workers, in order
to retain existing members and attract new ones.
   One of the crucial questions facing trade unions is how to approach the protection, and
organisation, of platform (or “gig”) workers. Trade unions traditionally thrive where there
exist large workforces, with identifiable common interests and employers, and which are
physically and geographically bounded. The characteristics of much platform work are that
workers are often isolated (and, often, of course, are designated as “self-employed”), the
question of who bears the traditional “employer” function in relation to specific employment
obligations is often unclear, and there is usually no physical workplace, as the work can be
done via apps from anywhere, and for end-users who may be located in any part of the globe.
The obstacles to organisation, and mobilisation, therefore, are considerable. Nonetheless,
trade unions are beginning to come to terms with these challenges and strategies are
beginning to be developed2. This paper analyses two different approaches, from trade unions
located in a common law (Ireland) and civil law (Slovenia) tradition within the EU. In both
countries, trade unions have been struggling to define strategies to approach the issue of the
diversification of work relations. On the one hand, unions are wary of eroding the benefits
of “employee” status, but on the other, in the context of membership decline, demonstrating
relevance to increasing numbers of “non-standard” workers (including platform workers) is
more important than ever. The paper assesses the union movements’ response in both
countries to the “Uberisation” of work. The two countries have different legal systems (civil
law and common law), and different legal and policy traditions in the area of labour relations.
However, we assess the legal responses of the two countries in this sphere, within the overall
framework of legal and policy developments at EU level. The paper also uses qualitative data,
garnered from interviews to assess how legal changes are impacting on the collective
representation of platform workers in practice. We conducted interviews in both countries
in 2018-2019 with the labour inspectorates, “platform” employers, “traditional” employer
organisations, and trade unions. The focus of the interviews was to gain an in-depth
understanding of the implications of platform work for labour relations, in general, and
collective labour relations, in particular.
   In a seminal work, Ewing has drawn the distinction between the “representational” and
“regulatory” functions of trade unions3. A representational perspective sees collective
bargaining as a private market activity conducted by unions, usually at the level of the
enterprise, as agents of a tightly circumscribed bargaining unit. A regulatory model, however,
sees collective bargaining take on an explicitly public role, as labour standards are set, and
applied, not only for employers that recognise trade unions and union members, but for

1 Davidov G., Freedland M., Kountouris N., The Subjects of Labour Law: “Employees” and Other Workers, in Finkin
M., Mundlak G. (eds), Research Handbook in Comparative Labour Law, Edward Elgar, Cheltenham, 2015.
2 See, for example, Vandaele K., Will Trade Unions Survive in the Platform Economy? Emerging Patterns of Platform

Workers’ Collective Voice and Representation in Europe, in Transfer: European Review of Labour and Research, 2018.
3 Ewing K. D., The Function of Trade Unions, in Industrial Law Journal, 34, 1, 2005.



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enterprises which do not engage in collective bargaining. This can happen through multi-
employer collective bargaining, such as where joint industrial councils set standards for an
industry or sector, or where legal mechanisms permit the extension of collective agreements
to all employers in a sector, and such standards may be mandatory even for employers not
affiliated to sectoral or industry-level employer associations4. Additionally, Ewing points to
the “governmental and public administration” functions of trade unions, whereby unions
need to engage with government, first, in order to secure legislative change, which will enable
them to fulfil their functions, and, secondly, to ensure involvement in the development,
implementation, and delivery of government policies5. We use Ewing’s framework in order
to illustrate how trade unions in these Member States have responded to the “gig challenge”.


2. The EU Influence.

   As EU Member States, Ireland and Slovenia must, of course, ensure any actions taken in
relation to addressing the challenges of platform work confirm to the requirements of EU
law. There are three key aspects of EU law of relevance to our argument6:


a. The Directive on transparent and predictable working conditions.

   In launching the European Pillar of Social Rights (EPSR), the Commission noted that it
“flanks” the EPSR with a number of concrete legislative and non-legislative initiatives. In
terms of platform work, the legislative changes set out in the Directive on Predictable and
Transparent Working Conditions could be significant7. The Directive sets out minimum
rights for workers who have “an employment contract or employment relationship as
defined by the law, collective agreements or practice in force in each Member State, with
consideration of the case law of the Court of Justice” (Art 1). These include rights to
information (to be given to the worker within seven days of work commencing), including
where the work pattern is entirely or mostly unpredictable (Arts 4-5). Article 10 sets out some
minimum rights for workers where the work pattern is entirely or mostly unpredictable,
including that employers must provide reference hours and days within which the worker
may be required to work, and a minimum notice period to which the worker is entitled before
beginning a work assignment. Article 11 refers specifically to on-demand contracts. Member
States must take action to prevent abusive practices as regards these arrangements, by limiting
the use and duration of on-demand contracts, or by introducing a rebuttable presumption of
the existence of an employment contract with a minimum amount of paid hours based on
the average hours worked during a given period; or by some other measure. Article 16

4 Doherty M., When You Ain’t Got Nothin’, You Got Nothin’to Lose... Union Recognition Laws, Voluntarism and the
Anglo Model, in Industrial Law Journal 42, 4, 2013, 369-397.
5 Ewing K. D., n. (3).
6 For fuller discussion of the issues, see Bednarowicz B., Delivering on the European Pillar of Social Rights: The New

Directive on Transparent and Predictable Working Conditions in the European Union, in Industrial Law Journal 48, 4, 2019,
604-623; and Doherty M., Franca V., Solving the “Gig-saw”? Collective Rights and Platform Work, in Industrial Law
Journal, 2019.
7 Directive 2019/1152/EU on transparent and predictable working conditions in the European Union.



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provides that Member States must ensure an effective means of redress for those whose
rights under the Directive have been breached.


b. Competition Law.

   A key problem lies in the intersection between a key labour right - the right to bargain
collectively - and competition/anti-trust law. Article 101 of the Treaty on the Functioning of
the European Union (TFEU) prohibits:

       “all agreements between undertakings, decisions by associations of undertakings
       and concerted practices which may affect trade between Member States and
       which have as their object or effect the prevention, restriction or distortion of
       competition within the internal market, and in particular those which…(a)
       directly or indirectly fix purchase or selling prices or any other trading
       conditions…”.

    Member States must not introduce or maintain in force measures, even of a legislative or
regulatory nature, which may render ineffective the competition rules applicable to
undertakings8. Collective bargaining processes, however, are based precisely on combining
employees to fix wages (prices) in order to alleviate the pressure to undercut the price of
each other’s labour, sometimes in bargaining with single employers, and sometimes in
bargaining with associations of employers. Therefore, competition rules which, at their core,
prohibit cartels, or agreements between undertakings which distort competition, clearly
conflict with the right to conclude binding collective agreements (often referred to as “wage
cartels”), the purpose of which is to set prices (wages). This conflict is one with which courts,
and legislatures, must grapple. In Albany, the Court held that collective agreements do not
fall within the scope of Article 101 TFEU when two cumulative conditions are met:

       “(i) they are entered into in the framework of collective bargaining between
       employers and employees and;
       (ii) they contribute directly to improving the employment and working
       conditions of workers”9.

    As the Court’s case law refers explicitly to “employees”, collective agreements involving
the self-employed fall outside of the “Albany exception”. In FNV Kunsten10, the Court
reiterated this stance, but also identified a category of workers which it called the “false self-
employed”, namely “service providers [who are] in a situation comparable to that of
employees” who, subject to certain conditions, can benefit from an Albany-type exemption11.


8 CJEU - Case C-96/94 Centro Serviczi Spediporto, ECLI:EU:C:1998:454 E.C.R I-2883, paras 20.
9 CJEU - Case C-67/96 Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie, EU:C:1999:28 E.C.R
I-5751.
10 CJEU - Case C-413/13 FNV Kunsten Informatie en Media v Staat der Nederlanden, ECLI:EU:C:2014:2215.
11 Ibidem paras 27-28.



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c. Making and Enforcing Employment Rights.

   A key role is explicitly afforded in the Treaties to social dialogue (Articles 152, 154 and
155 TFEU); the model of law-making evinced by these articles is: “a model which allows for
parallel law-making by social institutions, including collective bargaining and social dialogue
as the highest expression of what is in effect a process of collective bargaining between the
social partners”12.
   The EPSR expresses “principles and rights essential for fair and well-functioning labour
markets and welfare systems in 21st century Europe” (Recital 14). Section 8 focuses on social
dialogue and the need to both encourage the autonomy of the social partners in terms of
negotiating and concluding agreements, and encourage their capacity to promote social
dialogue.
   Doherty and Franca argue that extending the scope of protection for individuals is
insufficient to adequately regulate work in the platform economy, but that it is a responsibility
of governments (and social partners) to ensure that adequate dispute resolution mechanisms
exist for those engaged in platform work, and indeed, consumers of platform-based
services13. Adams-Prassl has recently argued, in a paper on the effective enforcement of EU
labour, that Article 47 of the Charter of Fundamental Rights, may come to play a central role
in developing alternatives to the individual enforcement of employment rights “whether
through collective redress mechanisms, the empowerment of social partners, or domestic
labour inspectorates”14.
   It is in this context that we move on to present data from the two countries, utilising
Ewing’s framework (the representational, regulatory, and governmental/public
administration functions of trade unions) before presenting some conclusions.


3. Representational perspective.

3.1. Ireland.

     The Irish trade union representatives stressed that while platform work is “sexy” right
now in terms of media discourse, the focus for them is more on “traditional sectors” where,
increasingly, services are being provided by those whose employment status is somewhat
uncertain (terms like “bogus self-employed” are often used). Examples, in particular, include
work in contract cleaning and domestic care. While these are traditional sectors, there are
platforms emerging in this space (and these are a feature in many other European countries).
It was also noted that there have been very few approaches from platform workers to the
union; “maybe we are not seen as the appropriate union for these types of workers”. The
labour inspectorate representative considered the issue of platform work to be “probably a
little exaggerated…the most pressing issue with platform work is the internationalisation of

12 Ewing K., Hendy J., New Perspectives on Collective Labour Law: Trade Union Recognition and Collective Bargaining, in
Industrial Law Journal, 46, 1, 2017, 23-51, 32.
13 Doherty M., Franca V., n. (6).
14 Adams-Prassl J., Article 47 CFR and the Effective Enforcement of EU Labour Law: Teeth for Paper Tigers?, in

European Labour Law Journal, 2020, 1.

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jobs (e.g. Taskrabbit, etc), which tends not to come to the WRC”15. The representative also
noted that issues of precarious work in “traditional” sectors remain of most concern. The
platform representative confirmed that on-demand work is still relatively new in Ireland and
that the number of those working within the sector is still low in terms of the overall
workforce in Ireland. However, the representative noted that the platform receives hundreds
of applications each week at certain times, and that that the “demand for this new way of
working will continue to grow, particularly as companies offer additional benefits and
security”. The representative noted that the platform does not engage with unions in Ireland,
“our experience has been that we have always had a good relationship directly” with the
service providers.
    The Irish trade union (one of the largest in the State) is working with other civil society
organisations (notably a migrant’s rights organisation), particularly around publicity campaigns
in sectors with high numbers of precarious workers (and sectors with high numbers of
migrant workers, and female workers, such as cleaning and domestic care). This type of
“coalition building”, has been noted by Eurofound, which documents “new formats of
institutionally organised collective voice” for platform workers (co-operatives, advice
bureaux, online fora and groups), and instances of collective action by platform workers
(boycotts, flash-mobs, protests, etc), some of which are explicitly, or implicitly, supported by
trade unions (albeit often newer, independent unions like the IWU in the UK) 16. The union
representative noted that many of the UK “platform” cases are taken by a small number of
London legal firms; this type of “coalition building” (with lawyers) would be something very
new for the Irish unions. The representative noted that there is some debate in the Irish trade
union movement about the advantage of “new pop up” unions (like IWU in UK). Some see
the benefits, but others worry about the sustainability of such unions, and would be “wary”
of offering material support to such organisations.
    The use of technology, however, in organising is a priority. The union has developed an app
for workers in the care sector, to keep in contact with workers (who, by definition, are
fragmented, and do not have one physical workplace). A recent dispute involving healthcare
workers, for example, was conducted by “combining apps with “old style” organising”. A
big focus for the union also is on “freelancers”, especially musicians, journalists, and actors
(these may not be “gig workers”, but similar issues in terms of employment status and
accompanying labour rights arise). Again, the union is trying to coordinate action with civil
society groups in this space: “we are trying to support these groups, even though they may
not be union members”. In this respect providing servicing functions (especially around
insurance, debt collection, and legal advice; e.g. on contracts) is important.




15 The Workplace Relations Commission is the State Body responsible for monitoring and enforcing
employment rights, and promoting good employment relations. The WRC provides adjudication, dispute
resolution, and advisory services, and houses the State Labour Inspectorate service.
16-Eurofound, Employment and Working Conditions of Selected Types of Platform Work, 2018:

https://www.eurofound.europa.eu/publications/report/2018/employment-and-working-conditions-of-
selected-types-of-platform-work.

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3.2. Slovenia.

    Slovenian trade unions, to date, have not developed very concrete strategies on how to
tackle the diversification of labour relations, and have struggled to address the needs of a
variety of non-standard workers, including, but not limited to, platform workers. In Slovenia
anyone can become a union member, without restrictions17, including platform workers.
However, recent research18 has showed low levels of engagement by precarious workers with
trade unions, as well as low levels of awareness about collective rights. For instance, just 10%
of agency workers, only 7 % of the self-employed, and none of the platform workers
researched were trade union members. The majority of respondents attributed their low
union involvement to their perception that the unions would not be effective in promoting
their interests. Partially this is understandable as collective rights are related to the existence
of an employment relationship, and the conclusion of an employment contract. As
mentioned above, a key issue in relation to platform work is that the contractual status of
those doing the work is ill-defined19; most of those involved in the research considered
themselves as self-employed, students20, working on the basis of civil (not employment)
contracts, or as undertaking undeclared work.
    Thus, is it unsurprising that platform workers tend not to be trade union members.
However, platform workers are also clearly not joining the Trade Union of Precarious
Workers, which was established in 2016 as a response to the rise of atypical forms of work.
It seems this union has mostly attracted quite highly educated “freelance” workers (e.g.
translators, architects, and designers) and formally “self-employed” workers, many of whom
appear to be, in reality, in a “regular” employment relationship.
    All interviewees admit that social partners in general have not adequately adapted
themselves to the “new reality” in the labour market, and the need to adapt traditional
approaches to better serve the needs of precarious worker in general, and platform workers,
in particular. As in Ireland, the Trade Union of Precarious Workers has been seeking to build
coalitions in efforts to represent platform workers, in particular with cooperatives. Equally, as
in Ireland, the Trade Union of Precarious Workers has acknowledged the need to provide
particular services to specific groups. In terms of the workers they attract, they seek to provide
services such as legal advice (especially on contracts), accounting services, insight into the
solvency of the “employer”, and so on. As the trade union interviewee put it: “this is our
only future”. Although the employer organisation recognised the rise of platform work, it
has not focused overmuch on the issue of to date, certainly in terms of negotiations with
trade unions. The CEO of the Slovenian platform we interviewed (operating in the cleaning
sector) was critical of the trade unions, as not being alive to the diverse nature of platform
work; “they just see Uber and its exploitation of workers”. A prerequisite of the platform is

17 As for example Rakovec J., Franca V., Sindikalno organiziranje prekarnih delavcev, in Pravna praksa 36, 5, 2017, II-
VII.
18 Domadenik P. et al., Empirična analiza prekarnosti na trgu dela v Sloveniji, in Strban G. et al. (eds.), Prekarno delo,

2020.
19 As the Eurofound report notes, however, many platform workers are “unsure of the employment status

deriving from their platform work and what it entailed” (Eurofound, n. (17), 19).
20 Under Slovenian law, student work is a regulated form of work, which can be used just under certain

conditions and limited to those who regularly study; more in Franca V., Tveganja za prekarnost pri študentskem delu,
in Delavci in delodajalci, 19, 4, 2019, 299-318.

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that workers have a regulated legal status. Thus, the cleaners are mostly self-employed, one-
person limited liability companies, or perform the work as students or pensioners21. Although
they could be classified as “non-standard” workers, they are not wholly excluded from the
social security system, as it is the case with many platform workers. Some of them are
professionals, with cleaning as their only occupation, while others clean as a way to make
some extra money. Many of the workers lost their jobs in the last economic crisis, so it is no
surprise that their “partners” (as the platform addresses them) are often highly educated and
skilled workers (architects, photographers, etc).


4. Regulatory perspective.

4.1. Ireland

   The Industrial Relations (Amendment) Acts 1946-2012, allow “joint labour committees” (on
which representatives of employers and workers sit) to set binding terms and conditions,
with erga omnes effect, in certain sectors. The union has successfully been involved in
concluding agreements in the cleaning sector, in particular. The Industrial Relations
(Amendment) Act 2015 allows for representative unions (alone or jointly with representative
employers) to apply for “sectoral employment orders”, which, again set binding terms and
conditions, with erga omnes effect, in the sector in question (e.g. construction). In both cases,
the terms and conditions proposed must be approved by the Labour Court22, and confirmed
by the Minister. Thus, the Irish trade unions have been quite active in recognising, and
promoting the value of sectoral standard-setting, which is binding on all employers and workers
in the sector in question. The employer representative also pointed to benefits of sectoral
wage-setting, via negotiation, as being preferable to “all these laws coming” (the Employment
(Miscellaneous Provisions) Act 2018 being a case in point; see below).
   The Competition (Amendment) Act 2017 provides that section 4 of the Competition Act 2002
(prohibiting cartel action; this Act enacts in domestic law the principles set out in Article 101
TFEU) shall not apply to collective bargaining and agreements in respect of certain categories
of workers. There are three such categories. First, the Act specifically applies to voice-over
actors, session musicians, and freelance journalists. Secondly, the Act introduces the concept
of the “false self-employed” worker; this is defined, in section 15(D), as an individual who:

       “(a) performs for another person, under a contract (whether express or implied
       and if express, whether orally or in writing), the same activity or service as an
       employee of the other person,
       (b) has a relationship of subordination in relation to the other person for the
       duration of the contractual relationship,
       (c) is required to follow the instructions of the other person regarding the time,
       place and content of his or her work,
       (d) does not share in the other person’s commercial risk,

21 Similar to student work, the Labour Market Regulation Act regulates work by pensioners, which can be
undertaken with certain limitation (maximum monthly working hours, for example).
22 Despite its moniker, the Irish Labour Court is not part of the regular court system, but is a statutory industrial

tribunal, comprised of representatives of unions and employers, and chaired by a government nominee.

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       (e) has no independence as regards the determination of the time schedule, place
       and manner of performing the tasks assigned to him or her, and
       (f) for the duration of the contractual relationship, forms an integral part of the
       other person’s undertaking”.

   Thirdly, the Act introduces the concept of the “fully dependent self-employed worker”,
defined, in section 15(D), as an individual:

       “(a) who performs services for another person (whether or not the person for
       whom the service is being performed is also an employer of employees) under a
       contract (whether express or implied, and if express, whether orally or in
       writing), and
       (b) whose main income in respect of the performance of such services under
       contract is derived from not more than 2 persons”.

    In both of these last cases, a trade union which represents a class of false self-employed,
or fully dependent self-employed, worker may apply to the Minister to include the class of
worker in question as falling within the scope of the Act, in order to allow the union to
bargain collectively, and conclude collective agreements, on behalf of the workers. The union
must provide evidence under section 15(F) that the workers who are the subject of the
application do fall within the relevant definitions.
    The legislation represents an attempt to extend collective bargaining rights to vulnerable
workers, who do not fit within the classic “employee definition” and sets out in law the
principle that collective representation should not be automatically denied to those who
cannot satisfy traditional tests of employee status. We interviewed one of the legislators who
had a large role in drafting and passing the Act. It was noted that a letter had been sent from
the Commission to the Irish Government, while the Bill was going through the legislative
process, which suggested that “the Bill was a disproportionate response [to the inability of
certain self-employed workers to engage in collective bargaining], and that it was not
proportionate to seek an exemption from competition law altogether”23. The legislator feels
the law will be a “slow burn”; i.e. it directly affects those classes of workers named (actors,
etc), but it will take time for more groups of workers to be included. However, it was noted
that it could be a potential recruiting tool for trade unions. The unions thus far have only
focused on negotiating for the classes of workers named in the Act. It seems that the union
is going to be careful in selecting a first “test” case for other groups of workers.
    The employer representative was very worried about the introduction of the 2017 Act.
The main fear expressed was that the new definitions (false/ dependent self-employed)
would not be confined to collective bargaining under the Act itself, but would “leak into”
other laws not related to collective bargaining. The representative was also concerned about
insufficient consultation with employers on this law (a point raised by Irish employers at the
ILO); “a big fear is that laws are being introduced without getting the employer bodies to
buy into them”. Interestingly, the platform representative also made this point in relation to
another Bill (which ultimately was not enacted); the Protection of Employment (Measures to Counter

23 Note the recent decision of the European Committee of Social Rights in Irish Congress of Trade Unions (ICTU)
v Ireland (No 123/2016; published 12 December 2018), where the Committee found that the position in Ireland
prior to the 2017 amendment was in breach of Article 6 of the European Charter of Social Rights, in that the
“categories of persons included in the notion of “undertaking” were over-inclusive” (para 98).

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False Self-Employment) Bill. The platform representative noted that “it would be good for
industry to have some input as the concern would be that measures or definitions included
in the Bill, could (unintentionally) impact sectors that are genuine about working well with
contractors, such as ourselves”.
   The labour inspectorate representative felt that the idea and ambition behind the Act was
good, as “competition law should not be focused on small players (musicians, etc) but on
large-scale price-fixing”. However, the representative noted that this is really an issue for EU-
level action; “this is an intergovernmental issue across the EU and requires action at that
level”.


4.2. Slovenia.

   Both trade union and employers’ organisations interviewed believed that “non-standard”
workers, including platform workers, should be covered by collective agreements at sectoral
level. Both trade unions and employers’ organisations in Slovenia have been having problems
in attracting new members, and both voiced some concern about the role of Uber (in
particular; see below) and other platforms. The trade unions are concerned about low
payment, poor working conditions and the exclusion of platform workers from the social
security system, while members of the employers’ organisation, mostly “traditional
employers”, believe that platforms may distort competition in the market. However, despite
some commonality of interest, there have been no developments in negotiating sectoral
agreements. A key factor, undoubtedly, is the low levels of trust that exist between the
Slovenian social partners (at national, sectoral, and local levels), exemplified by the failure of
recent attempts at social dialogue24. Given this “trust deficit”, it is perhaps unsurprising that
unions and employers, while they both acknowledge possible adverse consequences of not
regulating platform work, have been unable to develop a coherent shared strategy to tackle
the issue.


5. Governmental/ Public Administration perspective.

5.1. Ireland.

    As noted above, the unions have lobbied (successfully) for legislative change in relation to
sectoral measures. In addition, the unions have also lobbied strongly for the introduction of
news laws providing strengthened rights to information on terms of employment, to prohibit
“zero-hours contracts”, and to provide more rights to workers with unpredictable working
hours (e.g. a right to a minimum payment for low-paid, vulnerable workers who may be
called in to work for a period, but not actually provided with that work; workers on “low
hour contracts” (not defined) who consistently work more hours each week than provided
for in their contracts of employment, are entitled to be placed in a band of hours that reflects
the reality of the hours they have worked over an extended period). The Employment
(Miscellaneous Provisions) Act 2018, mirrors, to some extent, the Directive on Predictable and

24For more see Franca V., Doherty, M., Careless whispers: confidentiality and board-level worker-representatives, in
Employee Relations, 2020, 42, 3, 681-697.

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Transparent Working Conditions25, but goes beyond some of the proposals in the Directive.
This was criticised by the employer representative, who stressed that some of the changes in
the law had been introduced in several large retail companies via (local) collective bargaining;
“a more appropriate manner”.
    The Act, however, only applies to “employees”. In terms of legal status, the union
representative noted that some Irish legislation (e.g. minimum wage laws) does extend
beyond “employees” (as long as the service is provided “personally” by the worker). Very
few, if any, cases though, have been taken, either by workers themselves, or the union. The
union representative put this down to a lack of awareness on behalf of workers of their rights;
“many believe they are self-employed, even if they might come under the minimum wage
legislation”.
    The union is of the view that while definitions of “employee” under Irish law are a little
bit fragmented, the representative was not convinced that a “third category” (like the UK’s
“worker” category) would be very useful; “it might lead to unintended consequences, and
reduced rights for some that would now be employees… We would also need to revise tax
and social security codes, as well as employment law…” for this to be effective. Equally, the
union representative did not see a great practical advantage in having a “presumption of employee
status” introduced into Irish law, as the problems of individual workers accessing the
employment tribunals in the first place would remain (particularly: fear of reprisal, lack of
awareness, cost, and time).
    Perhaps counter-intuitively, the employer representative was not, in principle, opposed to
the creation of a third category (dependent self-employed, etc), but more concerned about
the rights to which such a category would be entitled. The representative was worried that
these would be difficult to “contain”; there might be few rights to start with (e.g. to social
protection payments), but these would probably expand over time. The representative agreed
with the union respondents that there was no need to introduce a “presumption of employee
status”; which would likely just lead to more legal argument and complexity before the
tribunals. The employer representative stressed that, were traditional “employee” rights (in
terms of social security, in particular) to be extended, this would have to funded by the State,
rather than increased employer contributions.
    The labour inspectorate representative noted that while the “binary model does have the
advantage of simplicity (as opposed to introducing a third category), the “multi-employer”
relationship is probably becoming more common (not just in relation to platforms)”. The
representative stressed that a good model for now might to focus “on four or five key issues
(e.g. pay, working time, health and safety, dismissal) and specify who is the “employer” for
these only” (leaving the rest of the employment relationship based on traditional tests/
contract); i.e. “pick out key underlying areas of most exploitation potential (and, especially,
issues facing migrant workers)”.
    From the employer representative’s point of view, the importance of maintaining
flexibility was stressed: “the narrative is that all will be well if everyone has a contract of
employment/ regular hours/a suite of employment rights - but this is not the case for
everyone! The false self-employed is not a huge cohort, and is not homogenous - it’s a
complex issue, but the public discourse suggests it’s easy to solve with employee status”.
    It was noted that “the cumulative effect of over-regulating the employment contract”
could affect Ireland’s ability to attract foreign direct investment (especially from the USA).


25   Directive 2019/1152/EU on transparent and predictable working conditions in the European Union.

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    At the last minute, a section of the Bill (on “bogus self-employment”) was dropped from the
final legislation. This would have made it a criminal offence for an employer to incorrectly
designate an employee as self-employed. The employer representative we spoke to was very
concerned about this provision (at the time of the interview the proposal was still in the draft
legislation), as it would “lead to a situation where it will be very difficult for people to
genuinely operate as self-employed” and be a huge negative for Ireland’s “flexible labour
market”. The representative also noted that two queries had already been brought to the
employers’ group as to what would happen “if the worker refuses to be classified as an
employee, when the employer feels they should be!”. This raises the difficult questions of
collusion and/or incentives; if workers and/or employers benefit (for example in terms of
taxation) from a “non-employment” status, there will be situations where one or both sides
wish to persist in the “fraud”. This issue was also noted by the labour inspectorate
representative.
    The platform representative noted that the definitions of both employee and self-
employed are restrictive “in what we can offer to the [service-providers] by way of additional
benefits. We currently provide free insurance that covers things like sick pay… we would
like to offer more but under the rules this would risk reclassification, putting at risk the
flexibility our [service providers] say is the main reason they enjoy working with us”.
    In terms of enforcement, a power to allow labour inspectors to enforce employment
status - as in Slovenia - was not seen by the inspectorate representative as being difficult to
implement, as “it happens informally”; however, it was stressed that labour inspectors focus
on compliance, rather than prosecution, (they are the “moral conscience of the WRC”) and
this can often better be done through “informal engagement with employers”.


5.2. Slovenia.

    The most publicised debate in Slovenia on platform work specifically, has centred on
Uber, and whether or not to change the legislation to allow the entrance of Uber onto the
market.26 After fierce opposition from the trade unions and some employers’ organisations
no legislative steps have been taken. This debate represents the only occasion on which the
topic of platform has come onto the social partners’ agenda. On the other hand, there have
been several debates about atypical workers, in general, and especially how to prevent false
self-employment. As in Ireland, there are instances of “collusion” where workers and
platforms/ employers prefer to benefit from certain aspects of the self-employment status
(notably in terms of tax). The CEO of the Slovenian platform, operating in the cleaning
industry, explained that the main motive for the establishment of the platform was that
around 95 % of household cleaning work in Slovenia operated as undeclared work (i.e. in
the “black economy”). The platform noted that its business model at least sets certain
standards for cleaners (how long they need to work for a certain amount) and for clients
(how much they have to pay for having their property cleaned), in a more formal way. From
the platform’s perspective, this contribution was clearly positive, in spite of the generally
negative discourse around platform work in Slovenia.


26This resistance was also noticed by Eurofound n. (17) in its latest report on platform work. The “Uber
question” has also been an issue of debate in Ireland, where Uber effectively cannot operate its core business
model; see Doherty M. and Franca V. n. (6).

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   Both the labour inspectorate, and trade union, representatives suggests the need to amend
tax legislation in order to bring the taxation of non-standard forms of work closer to the
employment contract; the unions favour significant taxation changes to make direct
employment a more attractive option for both traditional employing organisations and
platforms.
   In Slovenia, a third category of worker was introduced in the amended Employment
Relationship Act in 2013; the “economically dependent person”:

       “An economic dependant is a self-employed person who on the basis of a civil
       law contract performs work in person, independently and for remuneration for
       a longer period of time in circumstances of economic dependency and does not
       employ workers.
       Economic dependency means that a person obtains at least 80% of his or her
       annual income from the same contracting authority”.

   Such workers are entitled to “limited labour protection” under the legislation. However,
the Slovenian experience has not been a success. The introduction of a third category has
seemed to generate even greater confusion in labour relations. No cases have been brought
to the courts by workers claiming rights under this category, largely, it appears, for fear of
losing work, and due to uncertainty amongst such workers as to their actual employment
status. This was the consensus view of all of the respondents, with the labour inspectorate
representative, in particular, confirming that, while instances of misclassification have been
identified (of those who would fall under the definition of “economically dependent
persons”), such workers, as noted above, often prefer to retain the tax advantages associated
with self-employment.
   Labour scholars27 suggest amending the Employment Relationship Act in order to guarantee
more employment and social security rights to platform workers. However, doubts exist
about the capacity of the labour inspectorate to adequately enforce such rights. Unions are
quite critical of the labour inspectorate, claiming that the inspectors have insufficient
knowledge of how to approach the issues that arise in terms of “non-standard” work, in
general, and platform work in particular; according to the union representative, “it mostly
doesn’t understand the concept [of platform work]”. Indeed, the union representative opined
that disclosure of labour exploitation to the media is often “more efficient than [disclosing
to] the labour inspectorate or sending a lawyer to the company”.
   A recent attempt to combat “false self-employment” was the amendment of the Labour
Inspection Act in 2017. It gave labour inspectors the right to order the conclusion of an
employment contract (i.e. to enforce employment status), if there are, in reality, elements of
an employment relationship in the dealings between the parties. The worker, however, retains
the right to bring a claim to court in these cases. Again, though, the law seems to have been
ineffective in practice. According to the interviewees it is very difficult for labour inspectors
to evaluate the actual relationship between a “false employee” and an employer due to the
lack of information and documents. This is a role better suited to the Labour Court, which
has much greater powers in relation to compelling evidence to be produced.



27Franca V., Delovnopravno varstvo v okolju spletne platforme, in Repas, M. (ed.), Digitalno gospodarstvo, 2018; Kresal
B., Delo prek spletnih platform in Strban, G. et al. (eds), Prekarno delo, 2020.

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6. Conclusion.

6.1. The representational question.

   Trade unions are struggling to adapt to the challenges of platform work (and, indeed, non-
standard work more generally). They continue to focus on precarious work in “traditional”
sectors (which emphasises that a lot of the challenges are not “new”, but that technology
enables more “blurring of boundaries” when it comes to employment relationships). Some
questions include: whether traditional unions can “modernise” (Ireland); whether new forms
of unionism are required (Slovenia); and whether can new “coalitions” be built with other
actors (cooperatives? NGOs? Even law firms?). Unions in both countries have been focusing
on providing more services to gig workers (e.g. advice on contracts, etc.), reopening a well-
rehearsed debate on the “organising” vs “servicing” approaches to trade union strategy.28


6.2. The regulatory question.

    The unions (and, to some extent, employers) in Ireland and Slovenia see the value of
sectoral standards in some areas. However, crucial is the question of coverage (i.e. to the
“self-employed”); what rights should be encompassed; and how far would they extend? In
Ireland, there have been significant recent attempts to strengthen sectoral bargaining, and
erga omnes coverage. We await initial results.
    “Traditional” employers have been relatively quiet on the issue of gig work, certainly in
terms of putting in place sectoral standards (the employers opposed the 2017 Act in Ireland,
and have made no attempts to engage on this issue in Slovenia). However, employers (and
the labour inspectorate in Ireland), do have some concerns about the ability of platforms to
compete unfairly and benefit from competition law rules, which, arguably, have as their aims
large scale price-fixing, rather than collective bargaining by groups of self-employed workers
in low-pay sectors. This is an issue that will likely require movement at the level of the EU.


6.3. The governmental/ public administration question.

    The personal scope of employment protection coverage remains an issue. No actors, in
either study, see value in an “intermediate category” between “employee” and “self-
employed” (in Ireland, it is seen as too complicated; in Slovenia it has been impossible to
enforce in practice). The definition of “worker” in Directive 2019/1152 is somewhat vague,
and seems to leave much to national interpretation. Equally, in the light of the Directive, it
is instructive that actors feel that introducing a “presumption of employee status” in the
event of a dispute is either of little prospective value (Ireland) or difficult to enforce in
practice (Slovenia).
    There is a big question about awareness of rights, and, therefore enforcement of rights,
amongst precarious workers. There is evidence that workers do not know to what it is they
are entitled, or, at best, are unsure (possibly in response to the types of civil contracts that
platforms use). Disturbingly, in Slovenia, there is some suggestion of a lack of proper

28Carter B., Adoption of the Organising Model in British Trade Unions: Some Evidence From Manufacturing, Science and
Finance, in Work, Employment and Society, 14, 1, 2000, 117-136.

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awareness of the issues amongst labour inspectors; in Ireland, the suggestion is that “gig
workers” rarely present to the authorities. In both countries, issues of how to approach
instances of “collusion” arise. It is important here to note the decision in King v Sash
Windows.29 The Court held that workers wrongly categorised by their employers as self-
employed were entitled to bring, on termination of their engagement, a claim for the holiday
pay they were incorrectly denied. The Court stated that “even if it were proved, the fact that
Sash WW considered, wrongly, that Mr King was not entitled to paid annual leave is
irrelevant. Indeed, it is for the employer to seek all information regarding his obligations in
that regard” (para 61). Thus, there are considerable implications if workers are mis-classified;
in such instances it behoves the State, and the social partners to take proactive measures to
avoid this. We noted in section 2 that some recent literature on the EPSR and the CFR has
suggested the need for more, and better, mechanisms for the enforcement of labour
standards, and, particularly, the need to develop alternatives to the individual enforcement
of employment rights “whether through collective redress mechanisms, the empowerment
of social partners, or domestic labour inspectorates”30.
    Platforms in both countries suggest legal change to allow the provision of more benefits
to their “partners”, but which would not result “employee status”. The platforms seem to
lobby for legislative change, but not to engage as traditional “social partners”. They are
willing to provide some benefits (insurance, etc), but not if that risks the business model (i.e.
where it could result in workers being “re-classified” as employees). Should we be concerned
that platforms (note Uber) engage in sustained political lobbying, without any taking on any
further role in public regulation? Doherty and Franca argue that we should and that where
employers (both “traditional” and “disruptive”) “refuse or abstain, the law, and the regulatory
power of the State, should be utilised in full to ensure sectoral standard setting in any case”31.
    Lastly, it is clear the issues here go far beyond questions of labour law. The intersection
with tax and social security structures, and how any changes in these are to be funded, is
crucial.




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Copyright © 2020 Micheal Doherty, Valentina Franca. This article is released under a
Creative Commons Attribution 4.0 International License.




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