Le piattaforme digitali di lavoro: una visione critica
10.6092/issn.2421-2695/13110
Questo articolo affronta criticamente i cambiamenti apportati dall'economia digitale e dalle sue piattaforme digitali al diritto del lavoro. Esamina il concetto di piattaforme di lavoro e le sue tipologie e modelli, compresa la critica delle categorie di lavoro online e offline e offre altre soluzioni alternative.&nbsp; Si confronta con il ruolo del diritto del lavoro, considerando le prospettive di regolamentazione del lavoro salariato in queste piattaforme, e riflette sulla relazione tra precarietà, tecnologia e i suoi feticci.
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2421-2695
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Sayonara  Grillo
https://creativecommons.org/licenses/by/3.0
Labour & Law Issues
types of contract
Le piattaforme digitali di lavoro: una visione critica
Text.Serial.Journal
https://labourlaw.unibo.it/
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Comparative & International Overview
2021-06-29
2021-06-21
2021-06-29
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C.28-C.53
LLI
Sayonara  Grillo
2021/06/29
10.6092/issn.2421-2695/13110
C.28
Federal University of Rio de Janeiro
2421-2695
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types of contract
en
C.53
Trillo F., Economia digitalizada y rellaciones de trabajo, in Revista de derecho social, 2016, 5, 59-82.
Concept and criticism of digital labour platforms
https://labourlaw.unibo.it/article/download/13110/12692
7
    Concept and criticism
  of digital labour platforms

  RODRIGO DE LACERDA CARELLI
  Federal University of Rio de Janeiro
MURILO CARVALHO SAMPAIO OLIVEIRA
     Federal University of Bahia
          SAYONARA GRILLO
  Federal University of Rio de Janeiro




          vol. 7, no. 1, 2021
            ISSN: 2421-2695
                   Concept and criticism
                 of digital labour platforms

                                          RODRIGO DE LACERDA CARELLI
                                           Federal University of Rio de Janeiro
                                                                     Professor
                                                    rodrigolcarelli@gmail.com

                                 MURILO CARVALHO SAMPAIO OLIVEIRA
                                                   Federal University of Bahia
                                                                    Professor
                                                  murilocsoliveira@gmail.com

                                                         SAYONARA GRILLO
                                           Federal University of Rio de Janeiro
                                                                     Professor
                                                    sayonara.ufrj@gmail.com


                                 ABSTRACT

        This paper critically addresses the changes brought by the digital
economy and its digital platforms to Labour Law.
        It examines the concept of labour platforms and its typologies and
models, including the critique of the online and offline work categories and
offers other alternative solutions. It confronts the role of Labour Law,
considering the perspectives of wage labour regulation in theses platforms, and
reflects on the relation between precariousness, technology and its fetishes.


Keywords: digital platforms; platform labour; labour regulation; precariousness,
types of contract.
                              https://doi.org/ 10.6092/issn.2421-2695/13110
     R. CARELLI - M. OLIVEIRA - S. GRILLO, Concept and criticism of digital labour platforms



                             Concept and criticism
                          of digital labour platforms

SUMMARY: 1. Introduction. – 2. Labour Law: context and purpose. – 3. The firm and the
     platform: relation and concept. – 4. Technological fetish and the concealment of the
     capitalism pattern in platforms. – 5. Classifying digital labour platforms. – 6. Outlining
     a critical concept and the models of action of the platforms. – 7. Innovations and
     continuity of work via digital platforms. – 8. Labour Law responses to digital
     platforms.



        1.      Introduction (1)

         In the beginning of the third millennium, technology is presented as the
great protagonist of society’s ongoing transformations, which includes the ways
of working, relating, making friendships and loving. Artificial intelligence,
platforms, algorithms, among others technological instruments, undermine the
old business organizations and their methods of work management, which, for
many, configures a disruption in the sense of a creative destruction of past
models.
         Apart from its disruptive context, as mentioned above, in this paper we
intend to address the innovations on the ways of working in the digital economy,
as well as to identify continuing characteristics of work in the perspective of
economic-social capitalist structure. In this contrast between changes and
permanence, we discuss which are the proposed answers in terms of regulation
of work on digital platforms by Labour Law, however, not before critically
presenting concepts, elements, classifications on the platforms and their ways
of operation.
         For this purpose, we adopted a dialectical epistemological understanding
and resorted to an exploratory method to elaborate on this legal-projective
paper as of a bibliographical review. With these methodological elements and
aware of the horizons and experiences of various authors, we have developed a
critical text on regulation of work in digital platforms.

        2.      Labour Law: context and purpose



(1) This work, with minor changes, was first published in Portuguese in Revista Direito e
Praxis, v. 11, n. 4 (2020). English translation by Ana Julia Sampaio Oliveira.




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         In contemporary times, neoliberalism expands itself by producing
subjectivities based on individualism and market competition, in addition to
government policies and legislatives innovations that constitute an increasingly
authoritarian model. In this sense, political and economic measures to stimulate
business activities instead of fundamental rights result in the reduction of labour
protection and in an increase of its precariousness. By combining technological
transformations and economic efficiency, yet repeating such neoliberal logic,
digital platforms emerge and are in the process of consolidating themselves as a
model of success in the digital economy, which is understood as a substantial
change in productive activity that shifts its risks to the workers (2). Digital
platforms present themselves as synthesis of economic efficiency combined
with ideas of technological innovations, but they uncover a productive
arrangement that is supported on the precariousness of a work structured under
the ideology of a man being his own self-entrepreneur (3).
         In the context of digital economy, in order to better understand the
relation between the way of working promoted by digital platforms and Labour
Law, it is necessary to rescue, in history and ontology, the ambiguous roles and
purposes of this legal branch in capitalism.
         In a synthetic conception and with a certain level of generalization, we
can affirm that the role of Labour Law is to legally regulate expropriated work,
that is, it was constituted as a normative system disciplining remunerated work
in the capitalist social-economic organization.
         Both the assumption and the justification for a unique regulation of this
relationship between Capital and Labour is the perception of the deep
imbalance between its parties – that is, the employer and the employee, which
is the result of structured economic and social inequality in the labour market.
Against the factual asymmetry and market illusions of a merchant self-regulation
between its formally equal parties, Labour Law was constituted as a legal system
aiming market regulation and as an immediate protection for people living off
work, the non-owners, and in a mediated way, structuring the purchase and sale
of workforce in capitalism.
         The indissolubility between workforce and the worker as a person, the
structural asymmetries caused by the impossibility of controlling the general job
offer in the market, the necessity of immediate sale of working time to human

         (2) F. Trillo, Economia digitalizada y rellaciones de trabajo, Revista de derecho social, 2016, 5,
59-82.
         (3) P. Dardot - C. Laval, A nova razão do mundo, Boitempo, 2016.



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survival, altogether, make the economic conception of supply and demand
biased. Hence, understanding the historicity of law, we emphasize that social
and union struggles forge their own law, potentializing a more collective and
resistant dimension. Such normativity, based not only on the principle of labour
protection, but especially on the prominence of collective subjects, has
instituted limits to the exhaustive labour conditions driven by technical
innovations resulting from industrial revolutions and consequences of
continuous phases of capital accumulation.
        However, critical reading forces us to remember the limits of such labour
protection, in view of political functions carried out by an institutional design
based on the individual work regulation that remains subordinate and
dependent. Coutinho describes the protectionist dimension as a myth: “[..] It is
stating that it protects, when it does not always provide effective protection.
After all, Labour Law is capitalist labour law.” (4) Therefore, a classic conception
of Labour law, structured on the basis of individual regulation may perform a
legal legitimation function of capitalist wage-earning system, maintaining it
without questioning the structure that creates and reproduces the inequality of
employment relations.
        Neoliberalism and the present technological revolution drive forward a
process of precariousness of social rights of such magnitude that the aggravation
of the precarious condition of those who live off their work requires that we
recover the functions and meanings of labour regulation, particularly its
counter-facto dimension. After all, as in its origins, Labour Law also exercises a
function of control over technology and the economic power that supports and
nourishes it.

        3.       The firm and the platform: relation and concept

       Once the historical role of Labour Law is situated, we now begin to
examine the notion of platform, its elements, and its relation with firm and work
in the digital economy. In view of the myriad meanings, uses, confusions and
misconceptions and deviations on what is meant by the term “digital platform”,
we present a few guiding concepts of its notion and applications.
       The idea of a platform surpasses the digital realm and comes from a non-
recent form of entrepreneurial organization, but currently is presented as a
model for all types of companies, that is, a business model. A platform would


        (4) A. Coutinho, O princípio da proteção revistado, Revista Bonijuris, 2001, 452, 5 ss.



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be seen as the infrastructure or the environment that enables the interaction
between two or more groups. A classic example is a marketplace (such as a trade
fair), that is, the space, time, organization and structures over which the
merchants rely on to conduct business. The most complete current model of
this format is a shopping mall. In this sense, the mall’s administrator rents its
stores and maintains all of its infrastructure (cleaning, security, energy,
advertising, parking, access, organization etc.) so that the merchants can meet
with potential customers in order to enable any kind of dealing that could arise
between them.
        This business model expands in influence and use to the point of
integrating the general concept of a company, according to its conceptualization
as nexus of contracts, (5) or as a network of relational contracts. As of this
innovation, there is a reintroduction of market logic within the firm.
        The company, as it happens with a market, would be characterized as a
network of contractual relations between subjects that can be reproduced in all
of the company’s sectors, from the ones connecting the vertex of the firm and
its creditors, to its shareholders and those relations between management and
workers. (6) Thus, the corporation would then be the responsible for the
governance of such network or the flow of contractual relations. As a
consequence, it results in a corporation that not only is dematerialized (the
physical structures and its purposes can be passed on to third parties, remaining
to the firm the management of the contractual entailment), but also de-
hierarchized (the relations start to be considered as civil contracts, between
equals, and not hierarchized as pyramidal organizations of a classic company
that would involve levels of subordination between its structures and corporate
management) that should be governed by the rules freely negotiated by the
parties. (7)
        This notion brings out important consequences in the field of forms of
employment contract, in the ways subordination and dependence, perhaps, in
the own configuration of Labour Law. As of there, we can understand the new
models of departments stores, and ever supermarkets, to the extreme of some
beauty salons, where the establishment’s spaces are offered to other companies



         (5) O. Hart, An economist’s perspective on the theory of the firm, in Columbia law Review, 1989,
89, 7, 1757 - 1774.
         (6) A. Perulli, Constanti e varianti in tema di subordinazione e autonomia, LD, 2015, 2, 259-
283.
         (7) A. Perulli, Constanti e varianti in tema di subordinazione e autonomia, op. cit., 267-269.



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(or individuals) to meet clients. The modern ideal-type of company coincides in
a certain extent with the concept of platform.
        Such idea is transposed to the virtual dimension to identify what digital
platforms are: digital infrastructures that allow the interaction between two or
more groups (8). The evolution of the informational technology allows the
model of e-commerce stores, each competing dispersed on its own website, to
be replaced, or dominated, by centralized platforms in the form of a market that
can control the entirety of its system. This technological evolution includes the
use of the worldwide web via electronic devices with increasing accessibility,
that also are agile, easy to use and with considerable portability, as well as the
design of progressively more accurate algorithms and due to the construction
of the infrastructure of huge data servers that we commonly (and misleadingly)
call cloud.
        The centralization of platforms expresses a process of capital
concentration. The 2008 economic crisis demonstrated the weaknesses of
financialization and of an economy founded on credit without poor guarantees.
In the first moment after the crisis, the process of capitalist accumulation
involved the adoption of austerity policies, with labour and social security
reforms. At the same time, new ways of accumulation are established with the
growth of “digital economy” or “capitalism of platforms”. The business
concentration on large platforms is developed on a global scale, since it requires
large financial injections, broadening the experiences of innovative business
models (startups). The transformation of companies into platforms and from
platforms into large corporations is an ongoing process.

      4.      Technological fetish and the concealment of the capitalist
pattern in platforms

       After these conceptual inputs, we present a critical intake on the
technological fetish and the concealment that these innovations and speeches
undertake. To this end, firstly, it is necessary to clarify that the digital
environment did not imply a rupture with the capitalist productive structure.
Economic and social relations transposed to an economy of digital platforms
continue in the capitalist mode of creation, appropriation and reproduction of
inequality.



        (8) N. Snircek, Platform Capitalism, Polity Press, 2017, 25.



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        The discursive approximation to an “economy of sharing” soon proved
to be mere propaganda in the field of digital labour platforms(9), which are
organized by companies with typical capitalistic dynamics. In this sense,
analyzing labour platforms is, in general, analyzing a model of work
management that is organized by capitalist corporations, which explains the idea
of a “platform capitalism”. (10)
        These companies and their technological and organization network –
website, mobile phone application, artificial intelligence systems and their
algorithms – actually present themselves as innovative or disruptive
organizations only when compared with the typical fordist firm organization.
That is, when the analysis is guided by a more macro reading, in historical terms,
we shall notice that these new business management arrangements are
characterized by a recurrent productive restructuration with the externalization
of the workers and, consequently, the imposition of precariousness. Hence, the
4.0 industry contains many continuities with the toyotist management through
its expedients of externalization and high-tech employment.
        The most significant and innovative feature these so-called “4.0
companies” have is a lean company organization, guided by maximum
economic efficiency. These companies build an imaginary in which they have
no factories, inputs, raw materials, means of production, workers and, therefore,
no stock of produced goods or stores to sell their productions. Thus, it
advertises an empty company, a “cloud company” (11).
        Likewise, there is a hazy discourse directed at workers in so-called “cloud
companies”. The economic and commercial relationship with the workers is
naturalized as if it were a concession or a gift for vulnerable people. That is, it
is sought to legitimize these new forms of precarious work, transforming in
common sense the idea that such types of work are an “income opportunity” in
the context of an economic crisis and immense unemployment. In this sense,
the “cloud company” expresses a myth of help and assistance.
        Behind the marketing ads and appearances, we realize that there is a
significant physical structure, goods and human labour involved in these
companies, however, there is an attempt to hide these productive factors due to
their externalized position.


          (9) T. Slee. Uberização: A Nova Onda do Trabalho Precarizado, Elefante, 2017, 23.
          (10) R. Kalil. Capitalismo de plataforma e Direito do Trabalho: crowdwork e trabalho sob demanda
por meio de aplicativos. PhD Thesis. Universidade de São Paulo, 2019.
          (11) A. Leme. Da máquina à nuvem: caminhos para o acesso à justiça pela via de direitos dos
motoristas da Uber, LTr Editora, 2019.



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        The use of technology is not a new expedient in the models of company
management. However, technological innovations that contextualize these
platforms are quite considerable, because technology takes over a role of an
organization and not just a tool or technique accessory. The algorithm –
understood as a set of procedures and instructions – enables management and
operation based on millions of information and data, something impossible for
human management. The storage of these millions of data about their users,
workers, prices and demands allows a much deeper understanding of the
economic activity and its market, also enabling artificial intelligence to present
ideas, plans and changes in the business.
        We have noticed that there is a lot of diversity and constant variation
(upgrades) in the performance of theses platforms. Therefore, a classificatory
effort is necessary, in the classic sense of assorting the platforms by their
common traits, attempting to systematize the knowledge through typologies.

        5.       Classifying digital labour platforms

         We can find an interesting classification of digital labour platforms in
Codagnone, Biagi and Abadie. (12)From two variables the authors form four
types of platforms (quadrants represented by letter Q) and a hybridization zone
(the square in the middle). The horizontal variable would be on one side of the
line if the platforms connect person and company, identified by P2B (peer-to-
business) and on the other side if the connection is made between person and
person (peer-to-peer). The vertical variable stands for the prevalence of
utilization of capital on the platform (at the extreme, money or real estate),
identified by the letter K or, if labour is the one that predominates, marked by
letter L (if on the end, mere non-qualified labour).The quadrants then would be
Q1, where the interaction person to person and capital utilization prevail, such
as platforms for loans between individuals, real estate (e.g., Airbnb) and cars
rental and exchanges of second-hand goods (such as Ebay and the Brazilian
Mercado Livre).




         (12) C. Codagnone - C. Biagi - F. Abadie, The passions and the interests: unpacking the
`Sharing Economy`, Publication Office of the European Union, 2016.
         .



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        Table 1




        Source: C. Codagnone - C. Biagi - F. Abadie. The passions and the interests: unpacking
the `Sharing Economy`, Publication Office of the European Union, 2016.


        In Q2 quadrant, there are the platforms in which the provision of
unskilled work from person to person prevails, such as TaskRabitt (which, in
Brazil, would be equivalent to Parafuzo). The Q3 Quadrant shows the low
skilled work for companies, such as Amazon and Mechanical Turk and, in
quadrant Q4, platforms for lending money from individuals to companies. In
the internal chart, the authors indicate the existence of a hybrid zone, where
there are platforms that provide skilled work to companies, and some that focus
on sales of goods to individuals from individuals. In this hybrid zone, too,



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platforms for transporting people such as Uber would be included, as they add
an asset, even if of low value, to low-skilled manual labour.
        Platforms such as the Brazilian “GetNinjas” could be situated in the
hybrid zone, as those function as a marketplace for workers with both high and
low qualification. (13) According to this classification, delivery platforms could
be placed both in the quadrant 3 or in hybridization zone, in case some worker’s
goods were used in the provision of the service, such as a motorcycle or a
bicycle. Although recognizing the value of this classification, it does not seem
correct to place Uber, alongside with other “transportation of people or goods”
companies, in a hybrid zone due to the low value of the goods brought in by
the service provider or even the fact that in an increasing percentage no capital
is added to the provision of services by the worker, since is well known that a
large part of the services provided by platforms drivers is currently carried out
with rented vehicles and that delivery of goods is frequently carried out on foot
or by bicycles from low-cost public rental services available in large cities. The
prevalence, in these cases, is in reality of the intensive labour done by the
workers, even when using their own vehicles, which is simply a work tool. The
authors acknowledge that the intensive use of labour is an important element in
the classification of platforms.
        Aloisi and De Stefano (14) propose another division (table 3). Initially,
labour platforms and platforms that facilitate the access to goods, property and
capital are separated. The latter includes Airbnb, Blablacar (a service that allows
the provision of actual rides), financial services through platforms and diverse
marketplaces for selling goods. As for labour platforms, the authors, who focus
on the most common types of labour platforms (crowdworking, on-demand
domestic services and passenger transport), apply the classification of the table
below. The authors, however, warn that it is very difficult to reach a rigid
taxonomy, since we are still in an embryonic stage and there is a significant
heterogeneity.




          (13) R. Carelli - A. Bittencourt. Ninjas fazem bico: Um estudo de plataforma de crowdsourcing
no Brasil, Revista Estudio Institucionais, 2020, 3, 1309.
          (14) A. Aloisi - V. De Stefano. European legal framework for “digital labour platforms”,
Publications Office of the European Union, 2018, 9.



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         Table 2




        Source: A. Aloisi - V. De Stefano, European legal framework for “digital Labour platforms”,
Publications Office of the European Union, 2018, 10.

        This division offered by the authors has the advantages of being easily
visualized and being based on platforms that are more likely to bring problems
(or challenges) to work regulation. However, it lacks the inclusion of workers
on goods and fast food delivery platforms, but that certainly would be included
in the typology for passenger service platforms.
        Nonetheless, it must be pondered that the classification of online and
offline work, which is also found in other authors(15), has its advantages, such
as warning the possibility of conflict of laws concerning territory and
jurisdiction, especially because it highlights the characteristic absence of
territoriality of the said online work. However, this division is reinforced as a
way to hide human labour, since it strengthens a mistake that we have seen
raging in recent years: the belief that there are digital workers.
        Now, there is no online work. The workers are always flesh and blood
humans, with needs, desires and wills, and perform their functions in the real


           (15) A. Todoli. O mercado de trabalho no século XXI: on-demand economy, crowdsourcing e outras
formas de descentralização produtiva que atomizam o mercado de trabalho in A. Leme et al., Tecnologias
disruptivas e a exploração do trabalho humano. A intermediação de mão de obra a partir de plataformas
eletrônicas e seus efeitos jurídicos e sociais, LTr Editora, 2017.



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world, being simply camouflaged by the notion of “digital work”, that gives the
impression that it is performed by a virtual being in the cyberspace. That is,
cyberspace does not exist: it is a fiction built not only to enable or justify an
escape from legislation (16), but also to expand the market and to enable more
competition among workers with consequent wage reduction.
        Work is always physically located, even if online: what may be dislocated
in an almost instantly is the product of the labour. Precisely because it is
performed by a worker from one place and its result can be immediately
received in another also locatable part of the planet is that the work on platforms
may bring interesting and important challenges, even if they are not
unprecedented (see conflicts regarding work on ships, for example). We believe
that the difference between global and local would be enough to highlight such
characteristic.
        Back to Codagnone, Biagi and Abadie (17), who classify digital labour
platforms as digital labour platforms as those that:
        (1) work as digital marketplaces for atypical and casual work/ (2) where
services of various kinds are produced preponderantly using labour as a factor
(as opposed to selling products or renting properties or a car); (3) where work
(e.g., provided services) is exchanged for money (4) where the combination is
digitally mediated and administered, although the execution and delivery of the
work may be electronically transmitted or physical/ (5) where the allocation of
work and money is determined by a group of buyers and sellers operating with
a price system.
        This classification would exclude platforms like LinkedIn (due to the lack
of the first element) and Airbnb (that lacks the second one).
        Notwithstanding its extent, this classification fails by leaving out the
element of the control on the final service, which would disfigure the
marketplace condition of some platforms. This would be misguided, unless
these platforms, such as Uber, were not classified as labour platforms. As seen
above, platforms must be seen as a modern business form, not as a specific
sector of the economy. The digital form and the platform model is only one of
the possibilities, which should soon be predominant, for conducting business.
        Bogliacino et al. stress the issue of control exercised by certain platforms,
which would generate a hybrid between the market and hierarchy. They also

         (16) J. P. Barlow, A Declaration of the Independence of Cyberspace, 1996,
https://www.eff.org/cyberspace-independence.
         (17) C. Codagnone - C. Biagi - F. A badie. The passions and the interests; unpacking the
‘Sharing Economy’, op. cit.



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state that in platforms like Uber, one side of the platform (those called “self-
employed workers” or “independent contractors” loses control over pricing,
delivery, marketing, quality and terms and conditions of goods or services
offered, which would violate the direct interaction between the parties
connected by the platform. Nonetheless, they leave this aside, as if it were just
a detail, that these parties often lose their control not to the other party, but to
platform itself.
         The Eurofound Report (18) proposes another classification as of five
variables: 1) place where the service is delivered (if on-location or online); 2)
selection process (platform, client or worker); 3) level of the service’s
qualification (low, medium or high); 4) task scale (micro tasks or projects); and
5) the way supply and demand are connected (by offer or contest).
         We should also note that Codagnone et al. bring two other dimensions
of digital labour platforms that must be taken into consideration for this
classification: a) whether the transactions are completely online or if there is a
physical delivery and b) which types of tasks are negotiated and which skills are
required to perform them. From the intersection of these two dimensions the
authors classify four types of digital labour platforms:
         1. Online Labour Markets – OLMs, those that potentially have global
reach which, in turn, would be subdivided between 1a) microtasks platforms
(fulfillment of partial and repetitive tasks with low complexity) and 1b) tasks or
projects platforms (complete actions that require some important degree of
qualification) and
         2.     Mobile Labour Markets – MLMs, that would be intrinsically
located, subdividing into 1a) manual work or 2b) services requiring high
qualification.
          Thus, we conclude that Codagnone et al. are more accurate that Aloisi
and De Stefano, demonstrating that what is called an online labour platform has
as defining characteristics that the work is delivered through the internet, and
not that its execution is performed online, which, as seen, does not correspond
to reality.




        (18) Eurofound, Employment and working conditions of selected types of platform work,
Publications Office of theEuropean Union, 2018.



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       6.       Outlining a critical concept and the models of action of the
platforms

        Alongside the above presented classifications, we may try to formulate a
coherent definition of digital labour platform and a possible classification.
Digital labour platforms would be business models based on digital
infrastructures that allow the interaction of two or more groups whose main
object is intensive labour, always considering platform not as the nature of the
service provided by the company, but as the method, exclusive or conjugated,
for the accomplishment of the company business.
        As seen, platforms, both digitals and those that are not digital yet, are
simply a business organizational model that soon will be hegemonic (are we
there yet?) and widespread, hence, should not be treated as an autonomous
economic activity. A digital platform in the transportation sector has more
similarities and occupies the same competition space as other company models
that provide transportation services than with the other platforms. A platform
like Airbnb competes with hotels and not with a delivery platform and brings
regulatory problems for housing and tourism, and not to digital technology. A
delivery platform brings specific problems to society that are the same ones as
those of “physical” delivery companies. That is, for legal purposes, considering
platforms as a specific sector is a serious mistake that brings real problems into
regulating competition, labour, security and other legal assets.
        Thus, at first one can propose to divide platforms between pure and
mixed/hybrid. The pure digital labour platforms would be those in which the
modus operandi would be of a real marketplace, without relevant controlling
over the interaction between the trading parties, as the Brazilian GetNinjas
exemplifies. The mixed or hybrid digital labour platforms would be those in
which there is a mix between market and hierarchy, such as Uber. In pure
platforms, the object of the business confuses itself with the business form at
some point: maintaining the infrastructure needed to the interaction of the
parties negotiating.
        In mixed or hybrid platforms, on the opposite, the business model of a
platform serves the final provision of a service that is confused with the service
itself. While GetNinjas’ business is an intermediation between people who want
professional services and others who make themselves available to provide such
services, that is, functions as an employment agency, Uber’s business object is
people transportation, allowing, mostly through linking offer and demand, that




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      R. CARELLI - M. OLIVEIRA - S. GRILLO, Concept and criticism of digital labour platforms



is, by the connection of those two groups, which is completed by a series of
activities that make it possible to provide the intended service.
        In the case of mixed or hybrid platforms, it is noticeable that the groups
that interact do not negotiate with each other: the business is done between each
one of them and the platform. The price, conditions and way the service is
provided are designed entirely or almost entirely by the platform.
        Platforms may also be defined in regard to the branches or sectors of
service provision, which can vary from transportation of people, goods and
food, provision of domestic or digital services, or as a generic or specific
intermediation between self-employed workers. This classification is not
exhaustive, because it depends on the final service offered by the platform,
which may virtually include the entire economy.
        It is interesting to divide these platforms according to the place of
delivery of the service result, which can be online or on-site, the first category
being potentially global and the second necessarily local.

         7.       Innovations and continuity of work via digital platforms

        By emphasizing this technological profile and its “lean” facet, digital
platforms usually define themselves as technology companies that allow the
implementation of connections in the labour market. They then propagate the
idea that they are totally innovative or disruptive, so as to reject their legal
framework in pre-existing legislation. Hence, they forge for themselves the
inapplicability of traditional regulatory frameworks, such as civil, tax and labour,
on the grounds that their activity is not regulated and that their innovations are
strong and do not allow analogical application with similar actions of old
companies. The speech based on lack of regulation is symptomatic in digital
platforms, even with attempts to promote a type of self-regulation through
classification systems or in the form of “social charters”, a kind of soft law by
which companies, unilaterally, would choose which rights would be granted to
the workers, such as currently stipulated by french law in the case of platforms
for transporting people. (19)
        The largest individual transportation company presents itself as a simple
connector of customers and drivers, however, it coordinates and manages the



           (19) R. Carelli - D. Kesselman, La régulation du ravail des chauffeus de VTC:: disrption et
résistance par la voie du droit, in Chronique internationale de l’Ires, 2019, 4, 29 ss.



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     R. CARELLI - M. OLIVEIRA - S. GRILLO, Concept and criticism of digital labour platforms



largest fleet of vehicles and respective drivers in the world, maintaining an
almost universal standard in its way of service provision.
        Assimilating to the maximum the idea of economic efficiency, on-
demand labour platforms prove to be “lean”, since they artificially remove from
their ownership a considerable part of productive factors and labour
responsibility in regards to their employees, although many of them continue to
establish direction and control in order to maintain a standard of work, using
communication technologies, algorithms and artificial intelligence.
        Notwithstandig the diversity of labour platforms and their multiple
classifications, we have found two more subtypes of performance and
operation. The first subtype exercised by these is simply enabling the connection
between self-employed workers and clients, which we classified as “pure
platforms” in the previous section. They are situated in the function of virtual
space for connecting workers with people who demand their services. The idea
of connection here is well expressed by the actuation as a virtual means of
communication for buying and selling services. In this first role, the
communicative facet of a typical “marketplace” prevails.
        A second role - more directive and controller - is exercised by on-
demand labour platforms as they elect a standardized and specific service to be
sold. That is precisely why we classify these platforms, then, as those "hybrids",
in the sense that they organize, model, and price the interaction between two
groups: the customers who demand private trips vs. the drivers who sell them.
        Far beyond connecting workers and consumers, setting a standard in a
service requires direction, control, and supervision that can manifest itself in
various methods such as: mandatory instructions; classification by reputation;
punitive power; enforcement expedients; and economic managerialism in the
work of others.
        However, the manifestation of this management of services is subtler
and less explicit at first sight. This is because these on-demand labour platforms
of a hybrid nature exclude from their organisational model the classical method
of functional hierarchy and include a range of freedom for the worker with
regard to activation and deactivation. Such disruption in relation to the fordist
business model would make it difficult to visualize legal subordination, since
there is no hierarchically superior person issuing orders to the worker and
because the workers are the one who decide which are their working days and
hours and rest periods.
        On the other hand, these digital platforms do not innovate in other
methods of direction and control of economic activity. By critically breaking



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       R. CARELLI - M. OLIVEIRA - S. GRILLO, Concept and criticism of digital labour platforms



down superficialities and advertisements, it is noticeable that some hybrid
labour platforms clearly manifest a directive power. In the case of transportation
platforms, such as Uber, there are clear instructions on how to work and how
to act under certain circumstances, evaluation of performance by third parties,
aside from total electronic surveillance via GPS. (20) De Stefano (21) emphasizes
that, although there is no mandatory attendance from the platform driver, once
they activate it, they follow instructions and, thus, remain under the company’s
control.
        A standard of work is imposed through rewarding and punishing,
resorting to gamification techniques: prizes for those who reproduce the
standard of work and punishment for those who do not act in accordance with
the instructions. In the end, the exclusion of workers who do not achieve the
minimum score represents the manifestation of punitive power, something very
typical and characteristic of the figure of the employer, whether fordist, toyotist
or uberist model of management.
        Another aspect in which hybrid labour platforms may reveal their
directing and controlling characteristic is through the method of economic
dirigisme. In this method, the pricing of the work of others, that is, the
authoritarian and unilateral imposition of the worker’s remuneration. If it were
really independent labour, the service fare would be set by the workers, an
expression of the autonomy and ownership of their own activity. Even more
serious, in Uber’s case, is the unilateral modification of rides fares, which, by
changing the conditions initially set by the platform itself, it may, according to
arguments of supply and demand that are impossible to audit, increase the “fee”
they charge from their “partners”, which constitutes flagrant asymmetry with
such hyper economic dirigisme.
        Therefore, these hybrid platforms, taking as an example the Uber
standard, establish a factual economic and technological relation of profound
inequality with their working “partners”. That is, these companies are typically
capitalist enterprises that use workers for maximum efficiency at the lowest
possible cost, disguised as an innovative technology advertised as incompatible
with existing regulations.



            (20) A. Aloisi, Il lavoro “a chiamata” e le piattaforme online della collaborative economy: nozioni e
tipi legali in cerca di tutele, LLI, 2016, 2, 19-56.
            (21)V. De Stefano, The Rise of the "Just-in-Time Workforce": On-Demand Work, Crowdwork,
and Labor Protection in the "Gig Economy”, Condition of work and employment series, n. 71, ILO,
2016.



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      R. CARELLI - M. OLIVEIRA - S. GRILLO, Concept and criticism of digital labour platforms



         In Uber’s case, empirical research dispels the common sense that it
consists in casual, well-paid work. In the research conducted by Federal
University of Bahia (UFBA) on uberization, (22)it was detected a mediu profile
of a driver who works, mostly, with exclusivity to the platform for more than
eight hours a day and more than 44 weekly hours, in exchange of a gross
remuneration that is, in general, inferior to 2 minimum wages. In Federal
University of Rio de Janeiro’s (UFRJ) survey, it was verified that 70% of the
workers surpass 44 weekly hours and more than a third (35%) work more than
60 hours a week, receiving the gross value of R$ 19,12 an hour. In addition to
that, it must be taken into consideration that most (almost all) drivers do not
have a notion of their expenses and do not count costs such as the depreciation
of the vehicle or expenses in its maintenance. (23)
         Such empirical basis reinforces the perception that platform workers live
as typical wage earners and with low liquid remuneration. On the other hand,
the critical analysis identifies that platforms act as service managers, through
methods of control by performance and economic dependence. Thus, in the
third millennium, there is a repetition of the social issue of the 19th century, in
which the labour – even the one in excess – does not guarantee the economic
progress of those who work, but the opposite, it ends up being a mechanism
for the reproduction of poverty and social degradation.

         8.        Labour Law responses to digital platforms

        The labour law responses for digital platforms can be reduced to four.
        The first one is proposing there is no incidence of labour regulation on
the situation, prevailing the private and mercantile characters of the relation. As
the lack of personal hierarchy and the working freedom are emphasized, this
response accentuates the disruptive nature of this technological arrangement to
enable independent work in the new and broad virtual market, as the platforms
function as a simple mediator of these relations, especially with its clever
classification system that makes strangers hire strangers.



          (22) M. Oliveira - A. Assis - J. Costa, Relatório da pesquisa Pibic 2018-2019 Uberização do
trabalho: análise crítica das relações de trabalho prestadas por aplicativos, Universidade Federal da Bahia,
2019.
          (23) R. Carelli, O Caso Uber e o controle por programação: de carona para o Século XIX, in Leme
C. - Rodrigues B. - Chaves Jr. J.(eds.), Tecnologias disruptivas e a exploração do trabalho humano, Ltr
Editora, 2017, 130 ss.



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      R. CARELLI - M. OLIVEIRA - S. GRILLO, Concept and criticism of digital labour platforms



        In the opposite plan, the other options affirm a need for labour
regulation for the digital platforms. In this sense, they differ regarding how and
to what extent Labour Law will affect these situations.
        The second answer considers that, as it is an entirely new system, there
is a need for a new legislation, understanding the infeasibility of a labour
regulation made for factories to a non-factory digital company, in which
remuneration is no longer a direct result of the hierarchically controlled time in
which worker is available to work for his/her employer, but calculated by the
effective time or the results of the service provision. This second answer always
advocates a regulation with intermediary protection that guarantees some rights,
taking as paradigms the figures of “para-subordinate” in Italy or of the
“dependent autonomous work” in Spain, as examples of a labour figure with
intermediate protection to be created by law.
        In the field of intermediate regulation, Renan Kalil (24) proposes the
creation of a new category that would be the “dependent” work, a figure that is
different from independent and subordinated work. Intending to guarantee
some kind of protection to on-demand and crowdwork platform workers, but
without economically impairing these business models, Kalil (25) defends the
application of some labour rights, such as those rights present in the (Brazilian)
constitutional text, however, excluding the concept of time at the employer’s
disposal (Consolidation of Labour Laws, CLT, art. 4).
        The third answer consists in recognizing that it is a new and specific
labour relation, however, all labour rights should be extended to cover it. This
solution, similar to the one created in Brazil to independent seaport workers,
was recently adopted in Italy for platform workers who are organized by the
company (hetero-organized workers, according to terms of law). (26)
        The fourth answer is the most traditional one: to apply the current labour
legislation when the platform, of hybrid nature, manifests direction or control
of the services, exactly as disposed in art, 2 of CLT. Consequently, this answer
highlights that Brazilian legislation chose an open concept – “under
dependence” as in art. 3 of CLT - and that it is already updated to a “telematic”
subordination as seen, since 2011, in sole paragraph of its art. 6. However, that

          (24) R. Kalil, O Direito do Trabalho e o Capitalismo de Plataforma. A Regulação do Trabalho via
Plataformas Digitais, Blucher, 2020, 294.
          (25) R. Kalil, O Direito do Trabalho e o Capitalismo de Plataforma cit.
          (26) A. Aloisi - V. De Stefano, Delivering employment rights to platform workers,
rivistailmulino.it, 2020; M. Novella, Il rider non è lavoratore subordinato, ma è tutelato come se lo fosse,
LLI, 2019, 1, 82 ss.




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presumes the recognition that Labour Law does not only focus on work in the
typical fordist model, which necessarily depended on “subordination by
hierarchy”, regulating different ways of human labour appropriation.
        We immediately reject the proposal of exclusion from labour protection.
Considering these workers as entrepreneurs that submit themselves to a
commercial logic is contrary to constitutional and human rights aims of labour
protection and is only built from a biased view of labour relations. In addition,
the process of concentrating platform-companies and the intensification of new
ways of direction and control of the worker as an embodied person,
appropriated through digital platforms, suggest a renovation of the ways of wage
earning and labour exploitation in capitalism, and not their overcoming.
        We agree that in some specific cases of pure digital platforms work, the
possible answer in Brazil’s current constitutional system may be the framing in
the figure of the independent worker, with the extension of all labour rights,
where applicable to the situation. The plurality of recipients of the services,
intermediated by a third party, does not lead to the exclusion of Labour Law,
since it can be included in the legal concept of on-demand workers
(“trabalhador avulso”), with constitutional labour rights protection, in the broad
sense or by analogy. (27) A translator or a digital designer regimented by a pure
labour platform for casual work to a multitude of distinguished clients does not
have all the elements of an employment relationship characterized, although still
is not an independent worker in the strict sense. The inclusion of these workers
in the labour law protection, which previously was practically impossible, gains
viability with the intermediation carried out by digital platforms, to which they
can be attributed as a center of enforcement of rights, such as “Seaports Labour
Management Boards” (“Órgão Gestor de Mão de Obra”).
        On the opposite, we believe that creating a third figure to withdraw
labour rights is not justified. There is no principle of justice that could justify
the creation of a subcategory of workers who, in terms of rights, would be worth
less than others. The work in hybrid labour platforms does not create
specificities enough to justify the withdrawal of rights, mainly in regards to the
basis of labour law, which is regulating working hours based on the period of
time the worker is available to the employer. This would not only prevent the
regulation of workers’ working hours, i.e. the time of the workers’ life in which
there is availability to company activities, but also would make it impossible to

         (27) R. Carelli - B. Carelli, A zona cinzenta de trabalho e emprego, trabalhadores sob demanda
em plataformas digitais e trabalhadores portuários avulsos: direitos trabalhistas além da relação de emprego,
Contracampo, 2020, 2, 28 - 41.



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protect on-demand workers’ salaries. The worker, even when waiting for
assignments, is serving the company, which only functions due to the presence
of workers there available (on duty) to immediately answer any customer’s
orders. This would maintain the exploratory system where the burdens of the
economic activity fall on the workers and they have to stay active for long hours
to earn a minimum remuneration.
        However, regarding to hybrid labour platforms, we believe that the
Brazilian legal framework in force is enough to regulate labour relationships that
derive from them.
        The frequent doctrinaire reduction of Labour Law to the fordist standard
and, logically, to a “fordist” subordination does not have historic and conceptual
grounds. Labour Law precedes and goes beyond the period of Fordist
hegemony. Even before the success of Henry Ford’s company and after the
emergency of toyotist’s way of working, the appropriation of the worker’s
labour, renovated by continuous technical and technological revolutions, in
itself denotes workforce subordination and demands regulation and legal
protection. As above enlightened, it is Labour Rights’ role to regulate salaried
labour under capitalism, including that in platforms companies.
        In addition to this historical and ontological perspective, we consider that
defending the application of Labour law in force in the case of “controller”,
“directive” or “mixed” labour platforms reveals itself as a political issue that is
also symptomatic of the current correlation of forces in the ongoing conflict of
capital versus work. Daniela Muñoz summarizes this political issue: (28) «we are
not facing a sophisticated legal problem that compromises traditional labour
categories, on the opposite (and in the case of uber it is sophisticated only in its
“artificial” sense), but rather a lack of capacity from States in imposing limits to
companies and making them effective, and in which the communicative skills
of the doctrine can solely defend that Labour Law is applied to those workers,
which also opens possibilities to them – that turn uncertain ones when it comes
to taking their cases to courts. This inability is not so much due to the difficulty
of creating legal instruments, but rather of accumulating the strength to create
political will».
        Finaly, recognising that platform workers may be considered as
“dependents” or “telematic” subordinated is understanding that the small
amount of freedom of turning on or off the application does not change the

         (28) D. Muñoz, Observaciones sobre el caso Uber: un museo de grandes novedades, in Polido F. -
Moura N. - M. Barbato (eds.), Trabalho, tecnologias e os desafios globais dos direitos humanos, Lumen
Juris, 2019, 97 -106.



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platform’s economic and technologically directed system of work. Particularly,
the choice of day and working time is very much in line with the concept of
intermittent or “zero hours” work (CLT, art. 452-A), as its non-activation or
even deactivation does not invalidate the idea of legal subordination (art. 452-
A, §3º). Likewise, the lack of personal hierarchy does not prevent the
characterization of dependency, whether by algorithm subordination or by
economic dependency.
         Faced with the renewed asymmetry of the contemporary world, we argue
that it is necessary to recover labour regulation for wage earners on these
platforms, so that labour, in legal terms, does not continue to be treated as a
mere commodity, now invisible and shrouded in technological fetishism. Not
by chance, the most basic guidelines of labour law - minimum wage, maximum
hours, a period of rest, and social security protection against labour risks - are
the demands of workers on hybrid platforms.
         In this critical paper, we face the changes brought by the digital economy
with their business model (that is, digital platforms) and the existing responses
to the application of Labour Law to workers of this new “digital” standard.
         First, we demonstrated that the idea of a labour platform is a form of
business organization based on technology and with an artificially lean nature,
that is, an economic organization, as much as companies that function by fordist
or toyotist models. It does not seem suitable to consider certain platforms just
as a technological net that exclusively operates in the informative virtual world.
         Second, the critical dimension enables us to unveil a range of fetishes
and concealments that are fed by an unrestricted and deterministic adherence
to technology, as if it were something autonomous and detached from the
typically capitalist actions of companies behind the platforms. It is a
technological fetish that attempts to naturalize political and economic decisions
that construct arrangements of invisibilization of the worker, such as the idea
of an autonomous platform in relation to the founding company, a notion of
digital labour as a concealer of real labour, and a discourse of cyberspace as a
mechanism to move away from labour regulations historically territorialized in
nations.
         Third, it is precisely the critical outlook that has urged us not to generalise
and establish definitive and a priori analyses on labour platforms. According to
classifications here discussed, there is a great variation between platforms and
its modes of action, which demands more thorough examinations on the factual
circumstances. Particularly, we argue that those platforms denominated as
hybrid platforms act as business organizations that drive economic activity.



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        Fourth, hybrid labour platforms, by constituting, organizing and
maintaining a pattern of wage labour, take on the typical facet of the employer
in the exercise of managerial power and thus attract the incidence of labour law.
The innovation of this business model takes place in the subtlest expedients for
the manifestation of control. The fordist strategy of hierarchy and time vigilance
is abandoned in order to make use of algorithmic control, a system of
reputation, punitive power and economic dirigisme. New technological and
business management methods for typical wage-earning work, including the
generation of a new social question through the resumption of absolute added
value: long hours; low pay; costs and production risks attributed to the worker.
        By undoing these fetishes, propaganda and innovations in
superficialities, we are witnessing a recurrent social process of job insecurity and
permanent productive restructuring. While technology has allowed more
efficiency, productivity and even certain freedoms at work, we are faced with
more active working time, more social inequality and greater control over life in
its entirety. The study of digital platforms from a critical perspective allows us
to reveal not only technological fetishes and precariousness, but also to reflect
on the functions of regulation and the meanings of Labour Law. For lawyers
committed to the constitutional promises of dignity, the social valorisation of
labour and the eradication of inequality, the application of (capitalist) Labour
Law for leading platforms is more than a strong social-political option, it is a
duty to make the constitutional and international human rights effective.




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