10.6092/issn.1561-8048/15216
application/pdf
1561-8048
15216
1
en
Emanuele Menegatti
https://creativecommons.org/licenses/by/4.0
Italian Labour Law e-Journal
Editorial
Text.Serial.Journal
https://illej.unibo.it/
15
Editorial
2022-07-28
2022-07-15
2022-07-21
2022-07-28
I-II
ILLeJ
Emanuele Menegatti
2022/07/28
10.6092/issn.1561-8048/15216
I
Università di Bologna
1561-8048
1
en
II
Editorial
https://illej.unibo.it/article/download/15216/14527
15
Editorial                                                                      Italian Labour Law e-Journal
Emanuele Menegatti                                                                    Issue 1, Vol. 15 (2022)
                                                                                            ISSN 1561-8048
                                                             https://doi.org/10.6092/issn.1561-8048/15216




                                           Editorial
                                    Emanuele Menegatti*



     The platform economy does not need any introduction. Suffice it to recall the fact it
 involves the performance of labour-intensive services in a triangular relationship, in which
 workers, classified as independent contractors, and customers are matched by online
 platforms in a (relatively) new work paradigm.
     It is a potentially very profitable business model. Mainly because of its ability to combine
 a reduction of labour costs to a good quality of the services provided, so benefitting the
 consumers. In this regard, digital platforms are able to move past the traditional exchange
 between control and security offered by the employment contract. More precisely, the
 classification of workers as independent contractors enables platforms to avoid the typical
 employer’s obligations dealing with social security (i.e. unemployment benefits, mandatory
 pension schemes), employment protections (i.e. paid holidays, minimum wages, restriction
 on dismissals), collective representation, including collective bargaining. At the same time,
 they retain a good amount of control over workers, very similar to that of a traditional
 employer. They organise work performances by dictating routes, quality standards, timing,
 equipment specifications; they supervise the workers performances by taking advantage of
 the electronic means (primarily, rating systems); they go sometimes as far as imposing
 sanctions on workers (i.e. suspension or deactivation of accounts). As a result, even though
 platforms are really keen on excluding they are employers, they enjoy an organisational
 flexibility which is very similar to that permitted by the employment contract, without bearing
 the costs (financial and organizational) attached to employment and social security rights.
     Workers, especially those whose main income comes from platforms, face many issues,
 primarily stemming from the independent contractor’s status. They are in many ways similar
 to employees, since they are economically dependent from one main principal (the platform),
 towards whom they have little or no bargaining power. Nonetheless, they do not get access
 to most of labour and social protections available to employees. They are excluded from
 minimum wage legislations. Transparency and predictability of working conditions is very
 low. Unionisation turned out to be very difficult, mainly because they are dispersed in a
 virtual workplace, which makes it difficult to build solidarity ties between them. Antitrust law
 can make it difficult for them to resort to collective bargaining. Last but not least, algorithmic
 management involves a strong surveillance over workers, whose personal data and
 behaviours are constantly screened. Decisions on tasks allocation and sanctions (i.e. accounts
 suspension and deactivation), based on internal metrics and ratings, are often taken without
 transparency and may involve discriminations.

 * Professor of Labour Law, University of Bologna-Alma Mater Studiorum. The Issue has been developed in
 the context of the Jean Monnet Module "EULA - EU Law for Algorithm" (ERASMUS-JMO2021-HEI-TCH-
 RSCH): https://site.unibo.it/eula/it.
Emanuele Menegatti                                                    Italian Labour Law e-Journal
                                                                             Issue 1, Vol. 15 (2022)
                                                                                            Editorial


    Judiciaries in many member states are addressing these challenges by reclassifying
platform workers as employees, so granting them access to employment and social
protections. However, platforms are learning from Courts’ decision and therefore constantly
adapting their terms and conditions in view of excluding the employment status. Thus, the
dispute is not even close to over. Moreover, the legislative response of Member States to the
issues affecting platform workers has been rather uneven. Some Member States have passed
legislations to protect platform workers, other prefer not to address the issues, more
interested in attracting platforms. This implies a possible unfair competition among Member
States, especially in cross-border situations, and between platforms and traditional service
providers.
    In the light of this, a common EU minimum floor of protection for gig workers seems
very timely and appropriate. Thus, the European Commission proposal for a directive on
platform work presented in December 2021 should be welcomed.
    Its general aim is that of “improving the working conditions of persons performing
platform work”. It is translated in article 1.1 into three main actions: (1) ensuring correct
determination of their employment status; (2) promoting transparency, fairness and
accountability in algorithmic management in platform work; (3) improving transparency in
platform work, including in cross-border situations.
    The essays included in this issue provide a critical analysis of the Commission proposal.
The introductory contribution by Valerio De Stefano presents a general overview of the draft
directive, pointing out its main shortcomings and suggesting some solutions to make it more
effective. Christina Hießl deals with the classification of platform workers, offering a
comprehensive review of national case law on which are based the subsequent considerations
on the solution proposed by the Commission. Antonio Aloisi and Nastazja Potocka-Sionek
consider the directive provisions regulating algorithmic management. They highlight the
strengths and, above all, the weaknesses of the proposal, only partially addressing the
shortcoming of existing legal frameworks dedicated to workplace monitoring and automated
decision-making systems. The same provisions are investigated also by Marta Otto essay,
offering a focus on the interconnections between the provisions included in the draft
Directive and the GDPR.
    The final three articles investigate the regulative framework of the draft directive from a
national perspective. Maria Giovannone and Maurizio Falsone consider it in the light of the
current peculiarities of the Italian legal system. Giovannone focuses on the rules on
transparency and enforcement, considering the potentiality of the already existing Italian
procedure dedicated to the certification of employment contracts. Falsone concentrates his
attention on the relevant impact that the rebuttable legal presumption of employment
included in the Commission proposal could have on the employment tests currently used by
Italian courts. The legal presumption is also considered by Marco Biasi e William B. Gould
IV, in a comparison with the (only) apparently similar solution offered by the ABC-Test in
the US.




Copyright © 2022 Emanuele Menegatti. This article is released under a Creative Commons
Attribution 4.0 International License.

https://doi.org/10.6092/issn.1561-8048/15216                                                            II
