Outsmarting the gig-economy through collective bargaining – EU competition law as a barrier to smart cities?

ABSTRACT

In August 2016, drivers delivering meals in London after being booked via the platforms ‘deliveroo’ and ‘UberEATS’ made headlines by challenging working practices in the gig-economy through collective industrial action. Dissatisfaction resulted from extremely low levels of pay as well as a new payment calculation system being introduced without consultation. This indicates that the ‘gig-economy’, though arguably contributing to ‘smart cities’, may not always constitute the smartest solution for those serving within it. However, it also highlights that collective industrial action is far from structurally impossible for workers in the ‘gig-economy’, even though management of labour relies on anonymous and automated micro-management through internet platforms and apps. Indeed, collective organisation may seem the smartest solution for upgrading the gig-economy for its workers. This article develops an original contribution to the interface of smart technology in the gig-economy, collective labour rights, and EU competition law. We identify that EU competition law as interpreted by the Court of Justice would hinder collective organisation of those serving the gig-economy and develop a comprehensive re interpretation which allows adaptation of EU competition law to smart employment markets.

KEYWORDS:

• Gig-economy
• self-employed workers
• collective labour rights
• collective bargaining
• EU competition law

Acknowledgements

A more encompassing version of this paper has been presented at the 3rd Labour Law Research Network Conference (Toronto 2017, where Andrea Gideon's participation was enabled by the LLRN travel fund) and the 24th Conference of Europeanists ‘Sustainability and Transformation’ (Glasgow 2017). We are grateful for written feedback on the conference paper by Albert Sanchez-Graells and Luca Ratti, to Joanna Unterschütz for convening the panel on ‘Collective bargaining transformation for sustainability’ for the CES, for informal feedback by many of the discussants for both conferences, including Eva Brameshuber, Stein Evju, Julia Lopéz Lopéz and Tonia Novitz, and for suggestions by this issues' editor and the anonymous referees. The usual disclaimer applies.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1. We use the term ‘gig-economy’ in line with the recently agreed ILO report on non-standard work (ILO 2016) instead of terms such as ‘sharing economy’ and ‘collaborative economy’, which may suggest a solidarity-based operation of business per se (on the fallacy of the terms see also Kenney and Zysman [2016, 62]).

2. See, for example, Almirall et al. (2016), who discuss the ‘sharing economy’ as a potential basis for smart city developments.

3. In lieu of even attempting to provide full coverage of the digital economy, here is a subjective choice Aloisi 2016; Degryse 2016; Sundararajan 2016; Valenduc and Vandrame 2016; de Stefano 2016; Hatzopolous and Roma 2017; Ratti 2017; a useful literature review is provided in Schmid-Drüner (2016).

4. Finkin (2016) highlights historical parallels to early capitalism, while Eurofund (2015) locate the phenomenon in the wider context of casualisation. Sadowski and Pasquale (2015) criticise the ‘resurrection of early capitalist piecework in the guise of the gig economy’.

5. Sadowski and Pasquale (2015) demand a new dimension of the right to the city, while Cardulllo and Kitchin (2017) adopt Arnstein’s ladder of citizen participation to the world of new technology, developing the requirements for empowering citizens to become collective co-decision makers by utilizing the emancipatory potential of technology.

6. See, for example, Forde et al. (2017) with numerous references.

7. See, for example, the British Combination Act of 1799 as cited in Aspinall and Smith (1959, 749).

8. For a more extensive analysis of different models of app work, see Cherry (2016), Aloisi (2016).

9. See Berg (2016), Aloisi (2016), see also Finkin (2016), for a selective comparison, see Waas et al. (2017).

10. Their webpage explicitly acknowledges that some of the providers may be employees (Huws, Spencer, and Joyce 2016).

11. Aslam and Farrar v Uber B.V, Uber London Ltd, Uber Britannia Ltd, 28 October 2016 Case No 2202550/2015, appeal dismissed by the EAT on 10 November 2017 (UKEAT/0056/17/DA). Uber unsuccessfully sought to have its action joined with the Pimlico Plumbers case, which is heard before the Supreme Court at the time of writing (see Jane Croft, Financial Times, 19 February 2018). In a hearing before ACA, Deliveroo drivers accepted that they do not enjoy worker status for the purposes of collective bargaining (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/663126/Acceptance_Decision.pdf).

12. Dewhurst v Citysprint UK Ltd, 17 January 2017, Case No 2202512/2016, the appeal was not pursued by the employer, who only changed conditions for the claimant in response to the ruling (see https://www.guardian.com/business/2017/nov/15/citisprint-employment-rights-courier-minimum-wage-holiday-pay).

13. Christopher Otey, et al. v. CrowdFlower, Inc., et al., Case No. 12-5524 which ended in a settlement. See for a summary Lexis Legal News, ‘California federal judge approves modified settlement in “crowdsourcing” wage suit’ Lexis Legal News (10 August 2015). https://www.lexislegalnews.com/articles/1555/california-federal-judge-approves-modified-settlement-in-crowdsourcing-wage-suit accessed 6th November 2017.

14. For a similar result, see Ratti (2017).

15. For more detail on this, see Schiek et al. (2015), 71–72; Schiek and Ulber (2016).

16. Four years earlier, the Van Schijndel case (judgment of 14 December 1995, -430-1/93 EU:C:1995:441) touched upon the competition law compatibility of a social security scheme for physiotherapists similar to that at stake in the Albany case discussed below. However, for procedural reasons the Court did not discuss the substance of this problem.

17. Judgment of 16 September 1999, Becu, C-22/98, EU:C:1999:419.

18. Albany, C-67/96, EU:C:1999:430.

19. Brentjens, C-115-117/97, EU:C:1999:434, Drijvende Bokken, C-219/97, EU:C:1999:437.

20. For example, Bruun and Helsten (2001), more sources in Schiek and Ulber (2016), on specific application to the ‘gig-economy’, see Lougher and Kalmanowicz (2016).

21. Paragraph 59.

22. Paragraphs 55, 56.

23. Paragraph 62.

24. Paragraph 59.

25. van der Woude, C-222/98, EU:C:2000:475.

26. E-8/00 Norwegian Federation of Trade Unions, para 53.

27. E-8/00 Norwegian Federation of Trade Unions, para 55.

28. AG2R Prévoyance, C-437/09, EU:C:2011:112.

29. FNCBV, T-271, 245/03, EU:T:1006:391.

30. The EFTA Court (see above note 28) had not assessed this.

31. Pavlov, C-18-184/98, EU:C:2000:428.

32. Pavlov, C-18-184/98, EU:C:2000:428.

33. FNCBV, above note 29, para 100.

34. Paragraph 58.

35. Paragraph 48–50.

36. Paragraph 100.

37. FNV Kunsten Informatie en Media, C-413/13 EU:C:2014:2411.

38. Paragraph 76–78 of his opinion.

39. N, C-46/12, EU:C:2013:97, para 40 and the case-law cited.

40. Allonby C-256/01, EU:C:2004:18, para 71.

41. A more optimistic assessment is provided by Klebe and Heuschmid (2016, 182) and hinted at by de Stefano (2016).

42. See on this (Davidov, Freedland, and Kountouris (2015); Waas and van Voss (2017), 44–52.

43. See on the connection above, text surrounding footnotes 1 to 11.

44. This is also raised as a critique of smart cities, due to their reliance on gig-work (see, for example, Sadowski and Pasquale 2015).

45. See with some empirical evidence from the UK, the Netherlands, Germany, Austria and Sweden (Huws, Spencer, and Joyce 2016).

46. On this distinction see above footnotes 12–14.

47. The platform http://faircrowd.work/, by the German IG Metall and the Swedish Unionen, with input by the UK Independent Workers Union, the Austrian Trade Union Congress and an US American trade union for gig-workers is a first step towards this (see, Klebe and Heuschmid, 2016; Körfer and Röthig 2017).

48. On the general relevance of the service function of trade unions, see, for example, Ewing (2005).

49. See Balaran, Warden, and Wallace-Stephens (2017, 57, 67), promoting coregulation and government-funded cooperative platforms supporting workers, and Taylor et al. (2017, 75–77), culminating in unspecified Workertech solutions.

50. Consiglio nazionale dei geologi and Autorità garante della concorrenza e del mercato, C-136/12, EU:C:2013:489.

51. See discussion above Section 3.

52. That is the view of the Taylor report.

53. See for such a conclusion, from a comparative law perspective (Waas and van Voss 2017).

54. Elite Taxi, C-434/15.

55. Opinion of 11 May 2017 EU:C:2017:364, para 44. While the case did not concern competition law, AG Spzunar did indicate that if Uber would merely facilitate matching, it would probably infringe EU competition law (para 62).

56. Grand Chamber judgment of 20 December 2017, EU:C:2017:891, para 39.

57. See above Section 2.

58. The Court referred to the judgment in Agegate, C-3/87, EU:C:1989:650 for this line of argument.

59. For an overview, see Odudu and Bailey (2014).

60. Suike Unie, 40–48, 54,56,111,113–4/73, EU:C:1975:174.

61. Brasserie de Haecht, 23/67, EU:C:1967:54.

62. See Section 3.3.

63. Métropole, T-112/99, EU:T:2001:215.

64. For an overview, see Jones and Sufrin (2016, 271 seq).

65. See similar with regards to environmental protection and suggesting that the net competitive effects of an agreement could be considered at the Article 101 (1) TFEU stage, while then other benefits could be considered at the Article 101 (3) TFEU stage (Monti and Mulder 2017, 644 seq).

66. Wouters, C-309/99, EU::2002:98, para 97, confirmed in Meca-Medina, C-519/04P, EU:C:2006:492, para 45.

67. See, for a similar argument, Kovacs (2017, 101–102) in relation to telework.

68. However, the case law on appreciable effects (de minimis) has suffered in relevance from the Expedia ruling of 2012 (Expedia, C-226/11 – EU:C:2012:795), since the Court no longer recognises agreements which have the object of limiting competition. Whether this threatens collective bargaining agreements, depends on whether any potential hindrance of competition would be regarded as object restriction or effect restriction which may go back to whether one focuses more on the human rights or more on the market related justifications of collective bargaining.