WHY PLATFORM WORK?

Through the late nineteenth and twentieth centuries, it became clear to legisla­tors and courts across jurisdictions that pure contract law was insufficient to govern the relationship between capital and labour, or to regulate the labour market.¹² Broadly, responses to this insight took two forms: labour legislation that granted employment rights on the basis of an ‘employment relationship' and collective laissez faire.

While scholars have cautioned against viewing the platform economy as an entirely novel form of work that has no roots in previous, atypical working relationships,¹⁴ it is also true that platform work presents a fresh set of chal­lenges to existing labour law frameworks. Predominantly, labour legislation framework is based upon the concept of ‘employment', which, in turn, is drawn

constitutions (and constitutional rights) should abstain from wealth distribution and redistribution — an argument addressed in ch 3 of this book — see J Jowell, ‘Is Equality a Constitutional Principle?' (1994) 47(2) Current Legal Problems 1; for a response on this point, see B Hepple, ‘Four Approaches to the Modernisation of Individual Employment Rights' in R Blanpain and M Weiss (eds), Changing Industrial Relations and Modernisation of Labour Law: Liber Amicorum in Honour of Professor Marco Biagi (Kluwer Law International, 2003) 181, 184.

¹² See, eg K Klare, ‘Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness 1937—1941' [1977—78] Minnesota Law Review 265.

¹³For a brief history of the trajectory of labour law in the UK, see, eg Davies, Perspectives on Labour Law (n 11) ch 1.

¹⁴ J Prassl and M Risak, ‘Uber, TaskRabbit, and Co: Platforms as Employers? Rethinking the Legal Analysis of Crowdwork' (2015—16) 37 Comparative Labor Law & Policy Journal 619; V de Stefano, ‘The Rise of the “Just-in-Time Workforce”: On-Demand Work, Crowdwork, and Labor Protection in the “Gig Economy”' (2016) 37 Comparative Labor Law & Policy Journal 471.

Thus, platform workers neither fall cleanly within the category of employees nor appear to be ‘independent contractors’, who are placed outside the labour legislation framework. This is reflected in judicial decisions across jurisdic­tions: different courts have come to different conclusions in ‘misclassification’ lawsuits (where platform workers approach the court arguing that they have been wrongly classified as independent contractors, and ask the court to hold that they are employees^[511]). However, what unites these decisions is the often explicit acknowledgement that the court is being forced to pick between ‘two square pegs’ for a round hole.^[512] Unsurprisingly, these decisions often end with exhortations to the legislature to create a statutory framework that will take into account the specific features of platform work.^[513] In some cases, there exist

‘wider’ statutory frameworks - such as the concept of a ‘worker’ in EU law or that of a ‘limb B employee’ in the UK - with a limited set of rights. However, there as well, as shall be seen in section VI, the interface between labour law and platform work remains controversial, and the subject of litigation.

Secondly, labour law has devised different methods to protect the interests of (less powerful) workers against (more powerful) employers. As mentioned above, one dominant method, popularised under the term ‘collective laissez faire’ by scholars such as Kahn-Freund, has been to strengthen the bargain­ing power of bodies such as trade unions, so that the interaction between employers and trade unions can take place in a more genuinely ‘horizontal’ domain, where two equal contracting partners work out the terms of their relationship.^[514] Collective laissez-faire was particularly characteristic of labour law in the UK in the mid-twentieth century, and was based upon a regime of immunities: that is, the process of collective bargaining (including strikes and picketing), conducted through trade unions, was immunised from common law claims that employers might make (such as the tort of inducement to breach of contract), and which could therefore legally cripple the association rights of workers (‘negative law’).^[515] The underlying vision, therefore, was that of an autonomous norm-making framework that was buttressed by law (through the regime of immunities), but not governed by it. Rather, the primary role was to be played by the balance of collective forces that, in an ideally working system, would place employers and workers in a roughly equal position when bargaining.

However, collective laissez-faire as a stand-alone norm-generating regime, which could adequately protect the rights and interests of workers, has come under strain in recent years, with the worldwide decline of trade unions. More specifically, as scholars have pointed out, the segmented and transnational char­acter of platform work makes this a particularly difficult solution. As Alex Wood et al argue, for example, the

organisational form experienced by remote gig workers is a product of the confluence of technology that facilitates the detachment of work from place (labour platforms and their platform-based rating and ranking systems) and the power relations, espe­cially individual marketplace bargaining power in the form of skills and reputation.

While collective organisation remains important and efforts to that end within the platform economy have been documented,^[517] there is a case to be made that the alternative method - a substantive rights-based model that goes beyond protecting the bargaining process^[518] - may be necessary, at the very least, to supplement the results of collective bargaining. This, it is important to stress, does not mean the removal of protection for collective bargaining, whether through immunities or otherwise. Rather, as sections V and VI will show, the institutional approach requires effective constitutional protection of collective bargaining as a horizontally applicable instantiation of the right to free association.

For these reasons, the rest of this chapter will focus on the constitutionalising of labour rights via the institutional approach, its application to the specific case of platform work and its engagement with the labour law framework.

III.