CONCLUSION

In its application to labour law in general and to platform work in particular, the institutional approach does not seek to radically depart from existing accounts, but to complement them in important ways.

It may, then, be asked: what is the precise contribution of the institu­tional approach, and why is it needed? This chapter has attempted to provide three answers to that question. First, the institutional approach is a theory of horizontal constitutional rights. To the extent that the ‘inequality of power’ justification of labour law is accurate, the institutional approach provides a reason for substantive and procedural employment rights to be constitution­alised. This is relevant in two sets of situations. Primarily, as we have seen, the institutional approach facilitates productive engagement between statutory labour law regimes and constitutional rights. It is also important, however, that the constitutionalisation of labour rights places them beyond the power of legislative majorities to alter (although, as we have seen, the details of imple­mentation must still be worked out through legislation). This becomes relevant in situations such as platform work, where the failure of legislation to ‘catch up’ to the realities of the work form could lead to a situation where workers are either unprotected or must depend upon an inadequate (and possibly inac­curate) legal framework to enforce their rights.

Secondly, the institutional approach does not address all forms of power imbalance (a common critique against this account of labour law), but a specific kind of imbalance that is grounded within the existence and operation of institutional power. It follows from this that the institutional approach is not tied to the employment/contractor binary, which, as we have seen, has been particularly unsuitable in addressing evolving forms of work, such as platform work. The indicators to determine the existence of an employment (or worker) relationship (which, in turn, serves as a gateway towards labour rights eligibil­ity) are tied to a particular vision of what work looks like, and are not always able to respond to different realities. This chapter has attempted to demonstrate that the institutional approach - at the constitutional level, and at the level of guaranteeing threshold rights - is able to respond to those realities. It has done so by specifically examining the application of the institutional approach to platform work.

Thirdly, in some respects, the institutional approach goes beyond the limits of existing labour law frameworks. To take two specific examples: the institu­tional approach provides a firmer theoretical foundation to arguments seeking a greater extent of worker ‘voice’ in managerial decisions by grounding those arguments within a right to political participation, as extended to the domain of employment. And secondly, given that the ‘app’ is the locus of the institu­tional difference in power between the worker and the platform, the institutional approach justifies arguments in favour of algorithmic transparency - ie throw­ing open the functioning and algorithmic decision-making processes of the ‘app’ for scrutiny, and especially scrutiny by the affected parties (the workers).

Needless to say, it is not the argument of this chapter that the institu­tional approach can create, replace or constitutionalise labour codes in their entirety, or that, given the plurality and heterogeneity of the platform work, the application of the institutional approach will always be straightforward or non-controversial. Rather, the task of this chapter has been to show that the utility of the institutional approach does not end with its intellectual plausibil­ity (the argument of the previous five chapters). In addition, the institutional approach can be profitably applied to existing, real-world situations, especially those where existing legal frameworks have, or appear to be, non-existent or fall short.

Finally, while the arguments in this chapter have been focused on labour law - and the labour market as the relevant institution - the logic can be extended to other economic domains. It is easy to see, for example, how the arguments in the chapter can be applied to the housing market and to the relationships between landlords and tenants. Indeed, Harry Arthurs has proposed reconcep­tualising labour law as one element of a broader law of ‘economic subordination and private resistance’, which is concerned with ‘the experience of many groups under capitalism, all of which should have the basic right to be protected from the arbitrary exercise of private economic power’.^[618] This language is close to the language of the institutional approach; its extension to other domains, however, is a task for a future day.