INTRODUCTION

This chapter will study the application of the institutional approach to one specific domain: the legal regulation of platform work. Platform work is of different types, and takes different forms.^[498] For the purposes of this chapter, I adopt Fredman and Du Toit’s definition: platform work is ‘work which is digitally mediated, in that work and worker are brought together through the platform or digital base’.^[499] For the most part, platforms serve ‘a flexible workforce that cycles through a variety of part-time or precarious and temporary jobs to make ends meet’.^[500] For this, as Prassl points out, platforms depend upon a ‘near instant recourse to a large pool of on-demand workers’^[501] - a characteristic feature of the platform economy (and, indeed, of the labour market in general^[502]).

In section II of this chapter, I will lay out the reasons why platform work has been selected as a case study for the institutional model. The legal regulation of platform work ostensibly constitutes a branch of labour law (although this is denied by some platforms, which portray themselves as technology companies). However, across jurisdictions, legal frameworks to address issues around plat­form work are at different stages of development. In some jurisdictions, courts have articulated relatively sophisticated arguments, grounded in existing legisla­tive arrangements that have, to an extent (but not fully), captured the reality of platform work.^[503] Courts have also played an incremental role in extending these arrangements to sectors that might have been left out.^[504] In other jurisdictions, however, legal frameworks are either missing or, as courts have pointed out, have large gaps and are unequipped to account for the specific features of the platform economy. The case of platform work provides us with an example, therefore, of a situation in which the application of the institutional approach can be observed over the range of contexts identified at the end of the last chap­ter: absence of legislation, inadequate legislation, and the interaction between legislation and the constitutional framework.

In section III, I will engage with existing arguments for constitutionalis­ing labour and employment rights in general, as advanced by both courts and scholars. I will show that different aspects of the institutional approach - that is, a focus on institutional power differences, and the use of the vocabulary of rights to mitigate them - have been articulated by scholars such as Virginia Mantouvalou, Alan Bogg and Alex Gourevitch. I will use these arguments - and the idea of ‘workplace constitutionalism’, which envisages that the governance of the workplace be informed by constitutional principles - to segue into the institutional approach, and examine how it applies to the domain of labour law and the labour market.

In section IV, drawing upon and taking forward the insights of the PUDR judgment in chapter five, I will argue that: (i) the labour market is an ‘institu­tion’, as it is comprehensive (exercising a pervasive influence over an individual’s everyday life), and does not allow for an effective exit; and (ii) the ownership of capital (and the means of production) creates an institutionally mediated difference in power between employers and workers. This power difference is masked by the legal form of the contract, but enables the former to violate the rights of the latter. It therefore justifies the application of the institutional approach.

In section V, I will apply these arguments to the specific issues that arise out of platform work. The existing approach asks whether workers are ‘employ­ees’, ‘independent contractors’ or, in some jurisdictions, ‘workers’. Employment or worker status serves as a legal gateway to access a range of labour rights. Traditional tests of employment, however, ask questions such as whether a worker is bound to work only for a single party (thus replicating the flawed ‘monopoly’ framework discussed above), whether the worker has their own equipment, and so on. It is here that the institutional approach is useful. I shall argue that the institutional approach correctly disentangles the question of an exit option from that of a specific monopoly.

Finally, in section VI, I will turn to which specific rights are applicable through the institutional approach. These will include rights at the point of entry (that is, entry into the relationship between the platform and the worker) and rights during the relationship. They will include both collective rights (such as the right to collective bargaining, drawn from the freedom of association) and individual rights (such as the right to a minimum wage, drawn from the right against forced labour), as well as rights against discrimination and rights to safe working conditions. It is in this manner that the application of the institutional approach, in concrete form, will be demonstrated.

It is important, however, to qualify the claims made on behalf of the insti­tutional approach. It is not my case that the institutional approach requires the articulation of a detailed constitutional charter, which will set out a comprehensive labour code for dealing with platform work in the form of constitutional rights; nor do I advocate for ‘a judicially created labour code’^[505] based on direct application of a bill of rights. Legislation is, and will continue to be, the primary vehicle for addressing labour rights, including in the context of platform work. Indeed, the granular adjustment of rights and obligations in the context of labour law, as well as the fact that the specific contours of labour rights are subject to reasonable disagreement,^[506] would make constitutional reso­lution of all labour law questions an undesirable outcome.

The significance of the institutional approach, however, lies in the forms of its engagement with existing labour law frameworks. These could include, for instance, declaratory judgments in cases of legislative vacuum. For example, as we saw in the last chapter, a court may declare the existence of a horizontally enforceable constitutional right to a minimum wage. Needless to say, the details of implementing the minimum wage must necessarily be laid out in legislation, with the state subsequently being found in breach of its obligations by the courts if it fails to comply. These could also include (as section VI shall show) provid­ing a rationale for extending existing labour rights to platform work in cases of dispute, as well as providing a stronger, doctrinal basis for courts to bring platform workers within the ambit of labour rights. Here, courts can use the constitution, along with directly applicable horizontal constitutional rights, to fill in gaps within legislation (dealing with situations where, in Langille’s words, a set of people have been ‘excluded from the statutory regime that instantiates a fundamental freedom open to others’^[507]). They can also use it to interpret legis­lation (following the procedures of indirect horizontality, as discussed in the previous chapter) so that it conforms with the constitution (indeed, as this chap­ter considers case law from the UK, this will be its primary focus).

The Conclusion will bring together the different strands of this chapter. In sum: questions of institutional power. and the rebalancing of power differ­entials have always been central to the idiom of labour law. However, this rebalancing has (primarily) taken legislative form, and been limited to the contract of employment. The utility of the institutional approach lies, first, in locating labour rights within the constitution (thus making them applica­ble in the absence of legislation, or leading to generative engagement with legislation that might be partial, inadequate or require further buttressing) and applying them horizontally; and secondly, in mitigating the overriding salience of the contractual configuration that determines the relationship of the parties.

For the sake of completeness, a final caveat is necessary before I start. Workers’ rights involve specific forms of state intervention in the labour market. Consequently, economic theory invariably constitutes the background within which discussions around workers’ rights take place. Neoclassical economics, for example, advocates for minimal interference with the labour contract. Labour rights theories, thus, are often at odds with the claims of neoclassical economics. While that debate is important, and has been addressed elsewhere,^[508] I intend to bracket it in this chapter. This is because the institutional approach helps to determine which horizontal rights will be applicable to a particular private relationship and when. In the context of this chapter, ques­tions of economic theory may come in at a prior point (for example, in law reform and social policy debates over which rights should exist in the constitu­tion, or in legislation, in the first place). Alternatively, they may come at a later point, in arguments around the overriding of certain labour rights on the basis of economic reasoning. The concern of this chapter, however, is to justify the application of existing constitutional rights horizontally to the labour market, by using the institutional approach.

Additionally, in most of the examples that I shall consider in this chapter, labour codes already exist: the institutional approach thus does not bear the burden of articulating a first-principles defence of the existence of labour law itself. Rather, the controversies are about who should be included, and how hori- zontality will inform the interpretation of those labour codes, where there are gaps or ambiguities.

II.