Written by Ruwan Subasinghe, ITF legal director
It is hard to disagree with the ILO Global Commission on the Future of Work’s view that an unregulated platform economy ‘could recreate nineteenth-century working practices and future generations of digital day labourers’.
It is already happening.
Digital platform-based work is a labour market trend almost entirely reliant on non-standard forms of work, including disguised employment. This sort of employment status misclassification not only impacts on workers’ incomes, but it also deprives them of essential workplace protections and social security benefits. Crucially, their ability to join trade unions and bargain collectively is also heavily curtailed.
Although the size of the platform economy is still relatively small, it is evident that digital labour practices are undermining hard-fought worker protections and reshaping entire sectors, including transportation. While the need for robust regulation is clear, how to do so effectively is less obvious.
For example, wouldn’t singling out the platform economy disregard the fact that platform workers share many similarities with those in other non-standard forms of employment? Also, how can sector-specific laws reconcile the differences between crowd work, eg TaskRabbit, and on-demand work, eg Uber?
The Global Commission offers an exciting solution in the shape of an ‘international governance mechanism for digital labour platforms that sets and requires platforms (and their clients) to respect certain minimum rights and protections’. While the term ‘digital labour platform’ is defined as a ‘crowdworking’ platform, it is evident from the report that a wide interpretation is encouraged.
Crucial to the potential effectiveness of such a framework is the Global Commission’s not so tacit indication that it should take the form of an ILO instrument inspired by the Maritime Labour Convention (MLC).
So, why would the MLC, the global labour code for seafarers, be a source of inspiration for regulating digital labour?
The MLC is a laboratory of innovation designed to implement the concept of decent work for cross-border workers and employers. In addition to fundamental principles and rights at work, the MLC covers a vast range of employment issues, including recruitment, licensing, hours of work and rest, training, holidays, accommodation, and health and social security protection. The MLC’s wide reach in a truly global sector effectively removes incentives for a regulatory race to the bottom in the shipping industry by guaranteeing a level playing field for all.
Although ratifying states are the primary targets of compliance, the MLC’s enforcement mechanisms are intended to influence non-state actors such as shipowners. There are several ways to address problems of non-compliance. If the problem is with the state of vessel registration (flag state), the issue can be raised directly with the ILO through official channels. However, if the problem is with a shipowner, the matter can be raised with the flag state or with the port state via the on-board and shore-based complaints procedures.
There is also a mechanism for flag state inspectors and another for port state control officers. Easily recognisable Maritime Labour Certificates and Declarations of Maritime Labour Compliance (DMLC) form the basis of the inspection regime. Therefore, effective compliance is secured through a comprehensive enforcement framework that involves the industry’s key players: flag states, port states, labour-supplying states, and shipowners.
An ILO convention on digital labour platforms should be as ambitious in scope as the MLC. As a minimum, the convention should cover:
- fundamental principles and rights at work, including the rights to freedom of association, collective bargaining, and protection against discrimination
- protection of employment rights through a presumption in favour of employment status (facts-based test in line with ILO Recommendation 198)
- regular payment for work in line with clear rules set out in the convention
- grievance mechanism and complaints procedure for non-payment, ratings (appraisals) and deactivations, among other things
- portable entitlement to social protection
- occupational safety and health, including management of stressful and psychologically traumatic tasks (ILO Convention 177 on homeworking can be a source of inspiration)
- information and consultation of workers
- access to data rights held by the platform
- system of inspection
- platform liability
- compliance with applicable national laws
As in the MLC, compliance and enforcement mechanisms should involve all the primary actors in the platform economy: the state in which the company or platform is registered, the labour inspectorates of the states in which the workers operate, the platforms, and majority and minority clients of the platforms, among others.
The equivalent of a DMLC could be issued to platforms that comply with the convention by the state in which the company has its principal place of business. This declaration of compliance can form the basis of a comprehensive cross-border inspection regime. Just as with the MLC, these inspections could result in significant indirect financial implications for the platforms if deficiencies are found.
Regulating platforms through an MLC-type convention might be the most effective, if not the only way of securing decent work for platform workers. Such a harmonised international framework has the potential to kick-start a race to the top by avoiding legal arbitrage and jurisdiction shopping. It is hard to think of a more appropriate standard setting exercise going in to the ILO’s 100th year.
Let’s get behind this initiative.