Collective bargaining and collective action in the platform economy: A 2024 update of developments in legislation, case law and collective agreements

Forsyth, Anthony; McCrystal, Shae Working Paper Collective bargaining and collective action in the platform economy: A 2024 update of developments in legislation, case law and collective agreements ILO Working Paper, No. 143 Provided in Cooperation with: International Labour Organization (ILO), Geneva Suggested Citation: Forsyth, Anthony; McCrystal, Shae (2025) : Collective bargaining and collective action in the platform economy: A 2024 update of developments in legislation, case law and collective agreements, ILO Working Paper, No. 143, ISBN 978-92-2-041988-5, International Labour Organization (ILO), Geneva, https://doi.org/10.54394/EMDS2473 This Version is available at: https://hdl.handle.net/10419/324261 Standard-Nutzungsbedingungen: Die Dokumente auf EconStor dürfen zu eigenen wissenschaftlichen Zwecken und zum Privatgebrauch gespeichert und kopiert werden. Sie dürfen die Dokumente nicht für öffentliche oder kommerzielle Zwecke vervielfältigen, öffentlich ausstellen, öffentlich zugänglich machen, vertreiben oder anderweitig nutzen. Sofern die Verfasser die Dokumente unter Open-Content-Lizenzen (insbesondere CC-Lizenzen) zur Verfügung gestellt haben sollten, gelten abweichend von diesen Nutzungsbedingungen die in der dort genannten Lizenz gewährten Nutzungsrechte. Terms of use: Documents in EconStor may be saved and copied for your personal and scholarly purposes. You are not to copy documents for public or commercial purposes, to exhibit the documents publicly, to make them publicly available on the internet, or to distribute or otherwise use the documents in public. If the documents have been made available under an Open Content Licence (especially Creative Commons Licences), you may exercise further usage rights as specified in the indicated licence. https://creativecommons.org/licenses/by/4.0/ XCollective bargaining and collective action in the platform economy: A 2024 update of developments in legislation, case law and collective agreements Authors / Anthony Forsyth, Shae McCrystal July / 2025 ILO Working Paper 143 © International Labour Organization 2025 Attribution 4.0 International (CC BY 4.0) This work is licensed under the Creative Commons Attribution 4.0 International. See: https:// creativecommons.org/licenses/by/4.0/. The user is allowed to reuse, share (copy and redistribute), adapt (remix, transform and build upon the original work) as detailed in the licence. The user must clearly credit the ILO as the source of the material and indicate if changes were made to the original content. Use of the emblem, name and logo of the ILO is not permitted in connection with translations, adaptations or other derivative works. Attribution – The user must indicate if changes were made and must cite the work as follows: Forsyth, A., McCrystal, S. Collective bargaining and collective action in the platform economy:: A 2024 update of developments in legislation, case law and collective agreements. ILO Working Paper 143. Geneva: International Labour Office, 2025.© ILO. Translations – In case of a translation of this work, the following disclaimer must be added along with the attribution: This is a translation of a copyrighted work of the International Labour Organization (ILO). This translation has not been prepared, reviewed or endorsed by the ILO and should not be considered an official ILO translation. The ILO disclaims all responsibility for its content and accuracy. Responsibility rests solely with the author(s) of the translation. Adaptations – In case of an adaptation of this work, the following disclaimer must be added along with the attribution: This is an adaptation of a copyrighted work of the International Labour Organization (ILO). This adaptation has not been prepared, reviewed or endorsed by the ILO and should not be considered an official ILO adaptation. The ILO disclaims all responsibility for its content and accuracy. Responsibility rests solely with the author(s) of the adaptation. Third-party materials – This Creative Commons licence does not apply to non-ILO copyright materials included in this publication. If the material is attributed to a third party, the user of such material is solely responsible for clearing the rights with the rights holder and for any claims of infringement. Any dispute arising under this licence that cannot be settled amicably shall be referred to arbitration in accordance with the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL). The parties shall be bound by any arbitration award rendered as a result of such arbitration as the final adjudication of such a dispute. For details on rights and licensing, contact: [email protected]. For details on ILO publications and digital products, visit: www.ilo.org/publns. ISBN 9789220419878 (print), ISBN 9789220419885 (web PDF), ISBN 9789220419892 (epub), ISBN 9789220419908 (html). ISSN 2708-3438 (print), ISSN 2708-3446 (digital) https://doi.org/10.54394/EMDS2473 The designations employed in ILO publications, which are in conformity with United Nations practice, and the presentation of material therein do not imply the expression of any opinion whatsoever on the part of the ILO concerning the legal status of any country, area or territory or of its authorities, or concerning the delimitation of its frontiers or boundaries. See: www.ilo. org/disclaimer. The opinions and views expressed in this publication are those of the author(s) and do not necessarily reflect the opinions, views or policies of the ILO. Reference to names of firms and commercial products and processes does not imply their endorsement by the ILO, and any failure to mention a particular firm, commercial product or process is not a sign of disapproval. Information on ILO publications and digital products can be found at: www.ilo.org/researchand-publications ILO Working Papers summarize the results of ILO research in progress, and seek to stimulate discussion of a range of issues related to the world of work. Comments on this ILO Working Paper are welcome and can be sent to [email protected]. Authorization for publication: Philippe Marcadent, Chief ILO Working Papers can be found at: www.ilo.org/global/publications/working-papers Suggested citation: Forsyth, A., McCrystal, S. 2025. Collective bargaining and collective action in the platform economy:: A 2024 update of developments in legislation, case law and collective agreements, ILO Working Paper 143 (Geneva, ILO). https://doi.org/10.54394/EMDS2473 01 ILO Working Paper 143 Abstract This working paper was prepared in 2024 and reviews developments internationally since 2021 relating to the exercise of the right to bargain collectively and the existence of collective agreements among workers in the platform economy. The paper builds upon ILO Working Paper 80, “Realizing the Opportunities of the Platform Economy through Freedom of Association and Collective Bargaining” by Felix Hadwiger published in September 2022. It provides a descriptive overview of research and developments since 2021 in the effective recognition of the right of platform workers to bargain collectively and assesses the extent of developments in law and practice relating to collective bargaining internationally since that time. The paper cites recent collective agreements and other outcomes of collective negotiations covering platform workers. It also explores developments concerning case law, effective recognition of collective bargaining for self-employed workers as well as some recent developments in competition regulation. Overall, while there have been developments in some jurisdictions relating to collective action or the effective recognition of collective bargaining for platform workers, it has not been geographically widespread and remains concentrated in the delivery/food delivery sectors. Furthermore, despite some advancements, it remains that case that most platform economy workers globally do not enjoy effective recognition of the right to collective bargaining. About the authors Anthony Forsyth in his capacity as a Distinguished Professor in the School of Law, RMIT University, Melbourne, Australia. His main areas of research include collective bargaining, trade unions, labour hire and gig work. He is President of the Australian Labour Law Association and author of The Future of Unions and Worker Representation: The Digital Picket Line (Hart, 2022). Shae McCrystal is Professor of Labour Law at the University of Sydney Law School, Sydney, Australia. Her research focuses on the regulation of collective bargaining and industrial action, including the impact of competition laws on the rights of workers to act collectively. Shae is co-author of Strike Ballots, Democracy and Law (Oxford University Press, 2020) and co-editor of The Cambridge Handbook of Labor in Competition Law (Cambridge University Press, 2022). Shae is Vice-President of the Australian Labour Law Association, and an editor of the Australian Journal of Labour Law. 02 ILO Working Paper 143 Abstract 01 About the authors 01 Acronyms 04 XIntroduction 05 X1 Novel research on areas that impact the development of collective bargaining and collective action 06 Empirical research into platform economy collective organizing and action 06 Research on worker classification and the intersection of labour law and competition regulation 07 Research on organizing approaches and strategies within the platform economy 08 X2 Legislative developments relating to effective recognition of the right to collective bargaining for platform workers 10 Australia 10 Chile 13 China 13 European Union 14 France 16 Singapore 17 New Zealand 18 X3 Collective agreements and other outcomes of collective negotiation for platform workers 20 Comprehensive collective agreements 21 Italy 21 Spain 22 Switzerland 24 Agreements dealing with limited aspects of the platform-worker relationship 26 Austria 26 Colombia 26 Cyprus 27 France 27 Kyrgyzstan 28 Norway 28 Sweden 28 Table of contents 03 ILO Working Paper 143 Voluntary union recognition agreements 29 United Kingdom 29 Overarching accords outlining principles of agreement 30 Australia 30 Belgium 30 X4 Developments impacting the intersection between labour law and competition law in relation to self-employed platform workers 31 Australia 31 European Union 33 X5 Litigation on the personal scope of labour laws and effective recognition of the right to collective bargaining for platform workers 36 XConclusion 37 Summary of higher level court decisions 38 United Kingdom 38 Netherlands 39 New Zealand 39 Republic of Korea 41 References 42 04 ILO Working Paper 143 Acronyms ACCC Australian Competition and Consumer Commission ARPE Autorité des relations sociales des plateformes d'emploi (Authority for Social Relations of Labour Platforms) (France) CAC Central Arbitration Committee (United Kingdom) ECHR European Convention on Human Rights ER Act Employment Relations Act 2000 (New Zealand) EU European Union FWC Fair Work Commission (Australia) IWGB Independent Workers Union of Great Britain MOU memorandum of understanding MSO minimum standards order SIW Act Screen Industry Workers Act 2022 (New Zealand) VTC voiture de transport avec chauffeur 05 ILO Working Paper 143 XIntroduction At its 349th Session (October–November 2023), the ILO’s Governing Body endorsed the ILO integrated strategy for the promotion and implementation of the right to collective bargaining (ILO 2023). This strategy followed the development four years earlier of a Revised plan of action on social dialogue and tripartism for the period 2019–23 giving effect to the 2018 conclusions adopted by the International Labour Conference (ILO 2019). This working paper provides an overview of developments internationally in this area since 2021. It builds upon ILO Working Paper No. 80 – “Realizing the Opportunities of the Platform Economy through Freedom of Association and Collective Bargaining” – published in September 2022 (Hadwiger 2022). The purpose of this working paper is to provide a descriptive overview of research and developments since 2021 in the effective recognition of the right to bargain collectively and other collective action of platform workers and to assess the extent to which law and practice have developed since then. The focus of this paper is on legislative changes and case law developments relating to access to the ability to bargain collectively and other collective action for platform workers, drawn from countries, including Australia, Chile, China, New Zealand, Singapore and several European jurisdictions. Examples of the conclusion of collective agreements covering platform workers are also highlighted in the briefing paper. It will be seen that in some jurisdictions there has been an expansion in access to collective bargaining for platform workers, and in other jurisdictions platform workers can access processes of negotiation which do not fall within “collective bargaining” as understood in ILO terms. However, the existence of collective agreements is not geographically widespread and is concentrated mainly in the delivery/food delivery sectors. 12 ILO Working Paper 143 A negotiating entity for a collective agreement may apply to the FWC in relation to a dispute about the making of the agreement, with the other party’s consent. The FWC must deal with the dispute through conciliation, mediation or other methods – but not arbitration.14 If at least 30 days have passed since the last consultation notice was given to an employee-like worker about the proposed agreement, a negotiating entity can request the other party to sign the agreement.15 The agreement is made when both negotiating entities sign it.16 Either negotiating entity can then apply to the FWC (with the other party’s consent) to register the agreement.17 An agreement can only take effect if it is registered.18 The FWC must register the collective agreement if the requirements of Fair Work Act sections 536MR–536MS are satisfied,19 including the public interest test:20 the FWC must be satisfied that the agreement is not contrary to the public interest, taking into account the objective stated in section 536MJ (to provide a simple, flexible and fair framework for agreements to be made by consent for employee-like workers). For these purposes, the concept of “public interest” is broader than the interests of the negotiating parties. Relevant factors the FWC can consider include whether the agreement would establish fair terms and conditions for people in emerging forms of work, or (instead) would adversely affect competition in a particular market or industry, or result in entities engaging in conduct substantially lessening competition.21 Collective agreements (and MSOs) have the same legal effect as awards and enterprise agreements under the Fair Work Act (i.e. they are enforceable under the legislation’s civil remedy provisions).22 Collective bargaining conduct or agreement-making that is engaged in pursuant to the provisions is specifically authorised for the purposes of exemptions from the anti-competitive conduct and cartel prohibitions in the Competition and Consumer Act 2010 (Cth) by section 539JT of the Fair Work Act.23 As a result, provided that the conduct falls within the scope of regulated conduct within the Fair Work Act and does not include a boycott (that is, strike action), the conduct will not be in breach of competition prohibitions. The 2024 amending legislation also established a body known as the Digital Labour Platform Consultative Committee (DLPCC) as a committee of the National Workplace Relations Consultative Council. The DLPCC is to provide a regular and organized means in the public interest for representatives of the Federal Government, digital labour platform operators, workers performing digital platform work and other parties to consult with each other on matters affecting this form of work.24 14 Fair Work Act, section 536MP. The FWC can dismiss an application to deal with a bargaining dispute if satisfied there are no reasonable prospects of the negotiating entities reaching agreement. 15 Fair Work Act, section 536MQ(1)–(2), effectively imposing a minimum 30-day negotiating period for these collective agreements. 16 Fair Work Act, section 536MQ(3). 17 Fair Work Act, section 536MR, which also details the information that must be provided to the FWC in support of the application (such as, how employee-like workers were informed of the terms of the agreement and their effect; confirmation that no party or worker was subject to any form of duress in making the agreement; and so on). 18 Fair Work Act, section 536JN(1). 19 In addition to the above (see Fair Work Act, section 536MR), these include that the agreement has a dispute settlement term and a term specifying its period of operation (section 536MS(2)–(3)). Agreements cease operating at the end of that period, unless terminated earlier under section 536MW (see section 536JN(2)–(3)). 20 Fair Work Act, section 536MS(3A). 21 Supplementary Explanatory Memorandum to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023, para. 59. 22 Fair Work Act, section 536JJ (see also section 536JB). Note also the provisions relating to varying and terminating collective agreements (sections 536MT–536MW). 23 The Competition and Consumer Act 2010 (Cth), section 51(1), requires any anything specified in, or specifically authorized by, an Act of Parliament to be disregarded in determining whether a person has contravened the relevant anti-competitive conduct and cartel prohibitions under the Act. 24 National Workplace Relations Consultative Council Act 2002, sections 12A–12B. Similarly, in Brazil, Decree No. 11.513 of 1 May 2023 established a tripartite working group to formulate proposals for “the regulation of the activities of provision of services, transport of goods, transport of people and other activities carried out through technological platforms” (article 1). 13 ILO Working Paper 143 Chile The Chilean Labour Code was amended in 2022 to provide rights for platform workers (as defined in the law), including those who are self-employed, to form trade unions and to engage in collective bargaining (amendment by Law No. 21.431 of 8 March 2022). The new law took effect on 1 September 2022.25 It introduced two types of contracts: (i) those for “dependent platform workers” with almost complete labour protections; and (ii) those for “independent platform workers”, who remain independent contractors but with some basic protections. The test for distinguishing between the two categories is whether the key elements of an employment relationship are present: subordination and dependency. The protections applicable to both groups of workers include those relating to working hours, remuneration, non-discrimination, data portability (although not algorithmic management) and collective labour rights. Both groups of workers can join trade unions and engage in collective bargaining (a novelty for independent platform workers) – although only by utilizing an unregulated collective bargaining procedure under article 314 of the Labour Code,26 with no protections for workers from dismissal or other forms of retaliation against collective action and no right to strike. China The Trade Union Law of China was amended in 2021 to provide workers in “new forms of employment” (including platform work) the ability to participate in and organize trade unions (within the framework of acceptance as an affiliate of the All-China Federation of Trade Unions). The amendment clarified that platform workers, even without the status of employee, can establish and join trade unions and exercise collective rights, including collective bargaining (Xie 2022). In November 2023, the General Office of the Ministry of Human Resources and Social Security issued new Guidelines for the Protection of Rights and Interests of Workers in New Forms of Employment.27 They are intended to assist Human Resources and Social Security Departments in all provinces, municipalities and regions to publicize, interpret and “guide enterprises to lawfully regulate employment, and protect the rights of workers in new forms of employment in accordance with law, and truly protect the basic rights and interests of workers in new forms of employment”.28 The Guidelines are in three parts: 1. Rest and Remuneration Guidelines, providing guidance on working hours, rest and remuneration;29 2. Labour Rules Guidelines, dealing with other “labour rules”;30 and 25 The following summary is drawn from Fairwork (2022, 17–18). Further details on the minimum working conditions for platform workers under the Chilean law are set out in ILO (2024) at pages 58, 66, 69–72, 74, 76, 80 and 91. 26 Article 314 provides as follows: “any time and without restrictions of any … nature, voluntary, direct negotiations without subjection to procedural rules may be initiated between one or more employers and one or more [trade] union organizations, to agree on common working conditions and remuneration, for a certain period of time”. 27 Ministry of Human Resources and Social Security implementing guidance on “Safeguarding the Labour Rights and Interests of Workers in New Forms of Employment”, 8 November 2023. 28 Circular of the General Office of the Ministry of Human Resources and Social Security of 8 November 2023, preamble. 29 The full formal name is the Guidelines on the Protection of Rights and Interests of Workers in New Employment Forms of Rest and Labour Remuneration. These include measures to: assess the workload and labour intensity of workers; ensure online time required by the platform is included in working hours; determine the maximum number of consecutive orders a worker can receive; require breaks/stopping of orders where necessary; and apply relevant hourly minimum wage and holiday pay standards. 30 The full formal name is the Guidelines for the Publication of Labour Rules for Workers in New Employment Forms. These provide guidance on the rules, regulations, contract clauses and algorithmic rules developed by platform enterprises, based on principles of legality, fairness, justice, transparency and so on, including the disclosure to workers of how those various sources of rules operate and impact on workers’ rights (for example, in relation to order allocation, remuneration, payment, working hours, rest, safety and service specifications). 14 ILO Working Paper 143 3. Labor Disputes Guidelines, relating to the resolution of labour disputes, trade union rights and (to a limited extent) collective bargaining.31 For purposes of the Guidelines, “workers in new forms of employment” include “workers who accept tasks such as delivery, travel, transportation, and housekeeping services published by internet platforms online, provide platform online appointment services in accordance with the platform’s requirements, and obtain labour remuneration through labour”, and “enterprises” are “platform enterprises and platform employment cooperative enterprises”.32 The Labor Disputes Guidelines are intended to provide “clear channels for rights protection, to resolve labour disputes involving new forms of employment in a timely, convenient and high-quality manner … and to promote the sustained and healthy development of the platform economy”.33 Various labour dispute prevention and resolution mechanisms within enterprises are encouraged, including: regular communication channels; internal complaint and appeal processes (for example, relating to calculation of remuneration, deductions of service fees); joint negotiation with trade union representatives; and internal labour dispute mediation committees.34 The rights of workers in new forms of employment to join trade unions and to request trade union support in resolving work difficulties are expressly recognized,35 including the right to seek trade union assistance in resolving labour rights violations through arbitration or court action.36 Trade unions should “supervise the performance of employment responsibilities by platform enterprises” and provide opinions on behalf of workers in respect of any violations of laws, regulations and policies, with enterprises encouraged to “study and respond to the opinions put forward”.37 Finally, in relation to collective negotiations, article 13 of the Labour Disputes Guidelines provides as follows (emphasis added):  Trade union organizations should promote the establishment of regular communication and consultation mechanisms by platform enterprises, representing or organizing workers in new forms of employment to communicate and negotiate with platform enterprises on matters involving the vital interests of workers, and to conclude collective contracts or agreements. Workers in new forms of employment have the right to participate in earnest meetings, collective bargaining, and other activities organized by trade unions and enterprises, and platform enterprises and platform employment cooperative enterprises shall provide facilitation conditions. European Union On 24 April 2024, the European Parliament passed the Directive on Improving Working Conditions in Platform Work (P9 TA(2024)0330) (hereafter “the Directive”). The Directive was approved by the European Council on 14 October 2024, and will take effect upon publication in the Official Journal of the European Union.38 EU Member States will have two years from the date of entry into force of the Directive to ensure domestic compliance with the Directive (article 29). 31 The full formal name is the Guidelines for Protecting the Rights and Interests of Workers in New Forms of Employment. 32 Rest and Remuneration Guidelines, article 2. 33 Labour Disputes Guidelines, article 1. 34 Labour Disputes Guidelines, articles 4–9. 35 Labour Disputes Guidelines, articles 10–11. 36 Labour Disputes Guidelines, articles 14–15. More detailed dispute resolution procedures and mechanisms are provided for in articles 16–21. These Guidelines do not apply to commercial disputes involving new forms of employment (article 22). 37 Labour Disputes Guidelines, article 12. 38 As the Directive had not been formally published at the time of writing, the text referred to here is the unofficial text of the Directive as passed by the European Parliament. 15 ILO Working Paper 143 Workers under the Directive are classified as either persons “performing platform work”, which includes all persons engaged under a contract to perform platform work, or under the narrower category of “platform workers”, who are persons performing platform work with a contract of employment or who are deemed to have a contract of employment. Article 4(1) requires EU Member States to establish appropriate and effective procedures to verify and ensure the correct determination of the employment status of persons performing platform work, including through a presumption of an employment relationship. Furthermore, article 4(2) provides that any determination of the existence of an employment relationship should consider facts guided by the actual performance of work, irrespective of how that relationship has been classified within a contractual arrangement between the parties. Article 5(1) requires that the contractual relationship between a digital labour platform39 and a person performing work through that platform “shall be legally presumed to be an employment relationship when facts indicating control and direction, according to national law, collective agreements, or practice in force in the Member States and with consideration to the case-law of the Court of Justice” are found. The presumption would be rebuttable by a digital labour platform, which would bear the onus of establishing that the contractual relationship in question is not an employment relationship. Prior to the passage of the Directive, at least three EU Member States had introduced rebuttable presumptions of employment within their domestic laws based on specific criteria being met. This includes Croatia (amendments to the Croatia Labour Act (Law NN 151/22 of 20 December 2022, article 221m(2) and 221n)); Portugal (Portugal Labour Code (Law No. 13/2023 of 3 April 2023, article 12); and Belgium (the “Labour Deal” Act of 3 October 2022 on various labour provisions). In those countries, the provisions have meant that workers who meet specific criteria outlined in the respective legislation obtain the benefit of the presumption and are covered by the domestic labour laws of the Member State (including provisions for collective bargaining). In respect of collective bargaining and self-employed workers in the platform economy, the preamble to the Directive acknowledges that platform work is heterogenous with different types of platforms, sectors and activities covered, and covers a wide range of workers (clause 5). The presumption of employment leaves genuine self-employment in platform work intact, and the Directive seeks to ensure minimum rights promoting “transparency, fairness and accountability” (preamble, clause 14) for persons performing platform work. This encompasses “protecting workers and improving working conditions … including the exercise of collective bargaining” to improve legal certainty and to level the playing field between digital labour platforms and offline providers of services (preamble, clause 14). For this purpose, article 25 of the Directive states:  Member States shall, without prejudice to the autonomy of the social partners and taking into account the diversity of national practices, take adequate measures to promote the role of the social partners and encourage the exercise of the right to collective bargaining in platform work, including measures to ascertain the correct employment 39 Under article 1, a “Digital Labour Platform” is any natural or legal person providing a service at least in part at a distance through electronic means, at the request of a recipient of the service, which involves the use of automated monitoring or decision-making systems, and involves “as a necessary and essential component, the organization of work performed by individuals in return for payment, irrespective of whether that work is performed online or in a certain location”. 16 ILO Working Paper 143 status of platform workers and to facilitate the exercise of their rights related to algorithmic management set out in Chapter III of this Directive. As platform work is defined in article 1 of the Directive to encompass any work organized through a digital labour platform and performed in the EU by an individual through a contractual relationship with the platform or an intermediary, article 25 that promotes the role of the social partners and encourages the exercise of the right to collective bargaining in platform work – encompasses both persons performing platform work (who may be self-employed) and platform workers (employed platform workers or those deemed to be employed). Article 25 provides that EU Member States “without prejudice to the autonomy of the social partners and taking into account the diversity of national practices, take adequate measures to promote the role of the social partners and encourage the exercise of the right to collective bargaining in platform work”, linking this in particular to facilitation of the exercise of platform workers’ rights related to algorithmic management. These latter rights are set out in Chapter III of the Directive and are applicable to persons performing platform work – the broader category of workers covered by the Directive. Furthermore, EU Member State encouragement of collective bargaining for self-employed platform workers is no longer potentially subject to European Commission enforcement action in respect of potential breaches of EU competition law under the EU Guidelines on competition law published in 2022 (see Section 4 below). France Under French labour law, “subordination” is the main criteria for a worker to be classified as an employee. If a worker is not “de jure or de facto” subordinate to their engager, they are treated as self-employed and as an undertaking (Driguez 2022, 262). The question of worker classification is ultimately one for the courts to determine. For platform workers who are self-employed, sector-level legislation has been passed by the French Parliament to promote collective organization, representation and bargaining. Article L 7342-6 of the Labour Code (introduced by the El Khomri Law No. 2-16-1088) provides self-employed digital platform workers the right to “form a trade union, join it and to assert their collective interests” (as cited by Driguez 2022, 263). Gillis, Lenaerts and Waeyaert (2022, 2) observe that “this is the first time that the right to strike has been granted to self-employed in France”.40 In respect of provisions for the collective organization of digital platform workers under the Labour Code, Ordinance No. 2021-484 (approved by Act No. 2022-139 on 7 February 2022) organizes the representation of platform workers through the Authority for Social Relations of Labour Platforms (ARPE). The ARPE is responsible for overseeing collective bargaining and representation for workers in digital labour platforms (ETUC 2022, 3), and the first election of organizations for the purposes of representing self-employed platform workers was run by the ARPE in May 2022. 41 Further regulation applies specifically to platform workers who work as drivers of passenger vehicles or who deliver goods using twoor three-wheel vehicles under Ordinance No/ 2022-492 of 6 April 2022. According to the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR), this Ordinance “organizes social dialogue and collective bargaining 40 In respect of the right to strike, Driguez (2022, 263) notes that article L7342-6 of the Labour Code echoes the protection of the right to strike found in article 7 of the preamble to the 1946 Constitution of France. 41 CEACR, “Observation – Right to Organise and Collective Bargaining Convention, 1949 (No. 98) – France”, 2023. 17 ILO Working Paper 143 at the sectoral level” for those specific sectors, including an obligation to engage in sectoral level bargaining every year over certain subjects. Valid collective agreements are those which have been signed by a minimum of one platform organization and workers’ organizations who represent over 30 per cent of the votes cast during a representation election. Further, the agreement cannot have been opposed by a worker organization representing 50 per cent or more of the votes cast. Once created, a sectoral agreement will apply to those platforms affiliated to the signatory organization and their workers and applies as a compulsory minimum standard.42 The first sectoral agreements created subject to these provisions are discussed in the collective agreements section below (see section 3.2). Finally, Driguez (2022, 264) observes that there are no specific exemptions in the competition laws of France for self-employed workers who would be classified as undertakings for that purpose, leaving an open question as to the relationship between the regulation of self-employed platform workers and competition law. Singapore The Platform Workers Act 2024 passed through the Singapore Parliament on 10 September 2024, and took effect on 1 January 2025. It provides certain rights and obligations for rideshare and delivery platform workers and operators (for example, in relation to work injury compensation and occupational safety and health). In addition, the Act establishes a system for the recognition, registration, regulation and governance of “platform work associations”, as well as regulating industrial relations between platform operators and their workers.43 A “platform operator” is defined in section 4 of the Act as a person who provides a platform service in Singapore by entering into an agreement with one or more service users, exercising management control over one or more platform workers in respect of the provision of that platform service, even if subcontracting parts of the service or the exercise of management control. Section 3 defines a “platform service” as a service specified in the law that is provided in Singapore via a digital platform or other platform by a platform operator exercising management control in respect of the provision of that service by one or more platform workers of the platform operator (the First Schedule to the Act restricts its application to delivery and ride-hail platform services). For these purposes, a “platform worker” is an individual who has an agreement (that is not included within the Employment Act) with a platform operator to provide a platform service in Singapore to service users; is subject to the management control of the platform operator receiving payment or benefits; and is in Singapore when providing the platform service (section 5, see also section 3(2)). Platform workers may form a “platform work association”, defined in section 19 as any association or combination of platform workers or platform operators, whether temporary or permanent, whose principal object is to regulate relations between platform workers and platform operators for any or all of the following purposes: ●to promote good industrial relations between platform workers and platform operators; ●to improve the working conditions of platform workers or enhance their economic and social status; ●to achieve the raising of productivity for the benefit of platform workers, platform operators and the economy of Singapore. 42 CEACR, “Observation – Convention No. 98 – France”, 2023. 43 Explanatory Statement, Platform Workers Bill 2024, pages 234–235. 18 ILO Working Paper 143 A platform work association is considered established on the first date on which any platform workers or platform operators agree to become or create an association or a combination for the furtherance of any one or more of the objects specified in the definition of a “platform work association” in section 19. Every platform work association must apply for registration within one month of establishment. Under the provisions of Part 3, Division 3 of the Act, registered associations and their members are protected from civil suits related to acts done in furtherance of a work dispute, even if those acts induce breaches of agreements or interfere with others’ business or employment. Registered associations are liable for contracts they enter into, except those that are void or unenforceable by law. However unregistered platform work associations do not enjoy the rights, immunities or privileges of registered associations. The rights of platform work associations include the right to engage in collective bargaining. Under section 40, the officers of a platform work association and any other persons duly appointed by the association to represent its members in negotiations with a view to a collective agreement, have the authority to bargain collectively for and to bind all the members of the platform work association by a collective agreement without the need for ratification by the members. In addition, the decisions of those officers or persons on any matter in such negotiations is the decision of all members of the platform work association. The collective bargaining process is not otherwise regulated by the Platform Workers Act. Industrial action may be engaged in by platform work associations, but only by following the requirements of section 36, which include that a registered platform work association must obtain majority consent via a secret ballot of its members who will be affected before initiating any industrial action. The forms of industrial action this would permit include strikes or work bans/ limitations by associations of platform workers, or lockouts (that is, preventing platform workers from obtaining or performing tasks) by associations of platform operators.44 New Zealand A narrower example is that of New Zealand. Since amendments passed in 2010, the definition of “employee” under the Employee Relations Act 2000 has excluded workers in the New Zealand film industry,45 unless those workers are engaged under a contract that specifically labels them as employees (see McCrystal 2014). This has the effect that all New Zealand film industry workers can be engaged as self-employed, and that classification is not subject to challenge. This applies to workers engaged in the film industry either in a conventional manner, or directly or indirectly through any labour platform. In 2022 the Screen Industry Workers Act (hereafter the “SIW Act”) was enacted to provide a “workplace relations framework” for film industry workers excluded from the application of the Employee Relations Act.46 Part 4 of the SIW Act provides access to regulated collective bargaining for self-employed film industry workers. Workers who meet the definitions in the Act that are engaged through platforms would also fall within the ambit of the law. Worker organizations may enter into “enterprise contracts” at enterprise level or “occupational contracts” that would 44 See the definitions of “industrial action”, “strike” and “lockout” – and note the related definition of “work dispute” – found in section 19 of the Platform Workers Act. 45 The amendments were effected by the Employment Relations (Film Production Work) Amendment 2010 (NZ). 46 The Screen Industry Workers Act 2022 took effect on 30 December 2022. 19 ILO Working Paper 143 apply to “every screen production worker who does the work of the occupational group specified in the coverage clause of the contract” and “every engager who engages a screen production worker to do that work”, along with worker and engager organizations that are signatories to the contract (SIW Act, section 50). Every engager for this purpose would include platform labour companies active in the screen industry. The power to require parties to commence bargaining for an occupational contract is vested in the New Zealand Employment Relations Authority, where it is satisfied that there is sufficient support from either the workers within the relevant occupation or among those who are hiring the workers (SIW Act, section 39). Where collective bargaining is undertaken in accordance with the SIW Act, sections 27 and 30 of the Commerce Act concerning anti-competitive behaviour do not apply to anything done by any person for that purpose, or to give effect to a collective contract entered into in accordance with the SIW Act (SIW Act, section 7). Where parties are unable to reach an agreement, the Employment Relations Authority has the power to finalize any outstanding terms that have not been agreed through a statutory form of final offer arbitration (SIW Act, Part 5). The workers do not have access to legally protected strike action in support of such negotiations.47 47 Concerning strike action by self-employed persons and the potential impact of the common law, see McCrystal 2016; Bogg 2022: 35–36 20 ILO Working Paper 143 X3 Collective agreements and other outcomes of collective negotiation for platform workers This section identifies various outcomes of collective action, namely, collective agreements (as conventionally understood) that comprehensively regulate working conditions and other forms of agreements in the platform economy. We examine these in the discussion that follows.48 The discussion in this section will outline the general intent of 15 collective agreements concluded since 2021 that impact platform workers across a range of different countries. Where it has been possible to locate the text of the agreements, their provisions are examined more closely. These collective agreements have started to move beyond earlier agreements negotiated for platform workers in terms of the working conditions they regulate. For example, Fernández’s 2022 analysis of seven gig economy collective agreements found that they mostly focused on guaranteeing minimum wage levels and maximum working hours, but did not address algorithmic decision-making or ratings of workers. Lamaniss’ 2023 report identified 52 platform economy collective agreements in Europe, finding that they generally addressed traditional work issues such as pay, working time, holidays, health and safety, and leave, with only some dealing with issues specifically arising from the nature of platform work (such as data portability, right to disconnect, algorithmic transparency and ranking systems). In contrast, three agreements examined for the purposes of this research – the Italian Assogrocery agreement, the Swiss Smood agreement and the Spanish Just Eat agreement – contain detailed regulation of working conditions of the kind that would generally be found in collective agreements covering employees in conventional labour markets. The Smood and Just Eat agreements also address aspects of the technological impact of platform operations upon workers. Concerning the issue of worker classification, while workers were treated as employees in all 11 collective agreements in Hadwiger’s 2022 study, a more mixed picture emerges from the present research. By country, workers covered included: ●employees in four agreements (Cyprus, Spain, Sweden, Switzerland); ●self-employed in five agreements (three Australian accords, France, the United Kingdom of Great Britain and Northern Ireland); and ●those falling within an intermediate category in one agreement (Italy). In another one of the examples, the agreement applies regardless of employment status (Belgium). In respect of four agreements, the classification of workers is unclear (Austria, Colombia, Kyrgyzstan, Norway). 48 In addition, it is noted that in Finland, collective bargaining negotiations commenced between the PAM trade union and food delivery platform Wolt in December 2023. The content of the proposed agreements is unclear, but there will likely be separate agreements for employed and self-employed couriers. Negotiations were continuing at the time of writing, see: https://www.pam.fi/en/ wolt-couriers-negotiations/. 21 ILO Working Paper 143 Comprehensive collective agreements Italy A National Collective Agreement was reached on 19 February 202449 between Assogrocery (a platform connecting clients with personal shoppers in supermarkets)50 and the temporary workers divisions of the three major Italian trade union confederations: NIdiL CGIL, FeLSA CISL and UILTemp. The Agreement reflects the parties’ shared view of “the need to regulate, on an experimental basis, the collaboration established by the platforms operating in the so-called e-grocery sector within the scope of Legislative Decree no. 81 of 15.6.2015, in order to guarantee adequate protection to [those] workers”, to provide adequate remuneration, and to address important issues including safety and trade union rights (preamble). The Agreement is to operate for three years, then lapse unless it is extended or renewed (article 6.1). National-level renewal negotiations can occur within six months prior to expiry (article 6.2). Shoppers are engaged on the basis of a “collaboration relationship” which is “autonomous and non-exclusive” with the ability to provide activities for third parties (article 15.1). They are engaged under a “cooperation contract” that must include, for example, the duration of the collaboration, the level of remuneration, modalities of termination, health and safety measures and social security protection (article 16.1). Shoppers perform their work “without obligation of continuity with the enterprise” (article 17.1) and can provide their availability for time slots on certain days of the week (which they can revoke) as well as their chosen area of territorial availability (articles 17.2–17.3; see also 17.4–17.5). Identification of available time slots by Shoppers is subject to the guarantee of an 11-hour rest time during the day (articles 18.1–18.2). Although carrying out activities using their own means, Shoppers may be asked to use company-owned kits, including cooler bags or company-branded clothing (article 17.6). The company can inform a Shopper of reasons that may lead to termination of their contract for just cause (article 29.2), following the procedure outlined in article 29.3. The process by which Shoppers access and complete customer orders through the platform is detailed in articles 19.1–19.4. Under article 19.5, each “assignment shall, conventionally, last one hour”, with the assignment proposal reaching the Shopper at least 20 minutes before the start of their availability time slot (article 19.5). Priority in proposals should be given to Shoppers who have not yet received assignment proposals (within a radius of three kilometres from the reference store) (article 19.6). Shoppers can refuse an assignment proposal on grounds including sickness, inability to access buildings or means of transport, and so on (article 32.3). Pay rates are set at a minimum fee per assignment of €12.50 until 31 December 2024; €13.00 from 1 January to 31 December 2025; and €13.50 from 1 January 2026 (article 30.1).51 The minimum fee is calculated by considering the average fee paid to a Shopper for each reference month, including all economic components (such as bonuses) but excluding factors such as fuel 49 The full text of the agreement (in Italian) is available at: https://www.bollettinoadapt.it/wp-content/uploads/2024/03/AccordoAssogrocery.pdf. 50 Article 1.1 clarifies that the Agreement regulates relationships between enterprises that perform an online shopping service through a digital platform and their collaborators who prepare the shopping cart, carry out the purchase and deliver to the customer’s home. The “Shopper” is defined as an “employee” who carries out these activities by accepting individual order proposals through the platform, using a four-wheeled vehicle (articles 1.2, 1.3). The Agreement does not apply to riders or drivers who carry out food deliveries in urban areas (article 2.3). Although the term “employee” is used in the Agreement, this does not accurately describe the basis of the engagement of the shoppers, as explained below. 51 Slightly lower pay rates apply to “junior Shoppers”, that is, those who have carried out fewer than 500 assignments over the duration of the cooperation relationship with the same principal (see article 34). 28 ILO Working Paper 143 location at their destination”. In addition, the system must permit drivers to match ride offers with the choice they have made and to access other available ride offers if they want to. Each platform can define its own methods for implementing these requirements, including how operators can change their preferences, and for enabling drivers to access rides that do not accord with their preferences. The agreement applies to relationships between the platforms mentioned in article L. 7342-1 of the French Labour Code (see Section 2 above) and the independent workers who use them in the sector of driving a transport vehicle with a chauffeur referred to in the same provision of the Code, and it applies to trips booked immediately (that is, it excludes advance bookings) (article 2). The operative date of the agreement was set to 1 January 2025 to enable platforms to make “the necessary adjustments to account for these new obligations”. The agreement will apply for an indefinite period, unless revised or terminated under the Labour Code (article 3). Kyrgyzstan The Kabylan trade union negotiated a collective agreement for app-based transportation drivers engaged by the Osh Taxi platform in September 2023. It provided for health and safety protections, and the prevention of gender-based violence, harassment, discrimination and unjust suspension from the app (Ruslanbekova 2023). Norway A collective agreement was reached in 2022 between Foodora and the United Federation of Trade Unions (Fellesforbundet) for delivery/courier workers, covering working time/hours, wages, work on public holidays and reimbursement of expenses (ILO 2024, 86). In June 2024, Fellesforbundet and Foodora finalized a renegotiation of the agreement.63 The main proposed changes concern wages, with the new rates as follows: ●Base salary rates for bicycle and driver couriers to be increased by 3.00 Norwegian kroner per hour; new rate of 137.39 kroner per hour. ●Payment per delivery: Weekdays – increased by 1.75 kroner; Saturdays – increased by 2.25 kroner; and Sundays – increased by 2.75 kroner. ●New peak time bonus (5.00 p.m. to 8.00 p.m.): 1.20 kroner from 1 July 2024. ●Total hourly wage: Weekdays – 156.85 kroner; Saturdays – 167.68 kroner; and Sundays – 178.52 kroner. Sweden The Swedish Transport Workers’ Union negotiated a new collective agreement with Foodora in May 2023, providing new terms and conditions for bicycle and moped couriers making food deliveries.64 Under the agreement, guaranteed salary (that is, pay regardless of delivery numbers) is to increase by 12.06 per cent on average and allowances and supplements are to rise by 7.4 63 Information about the 2024 agreement (in Norwegian) is available at: https://www.fellesforbundet.no/aktuelt/nyheter/2024/lonnsokningi-foodora/. 64 It appears to be a replacement of the first comprehensive agreement made between the parties in 2021, under which riders were engaged as employees (see Selberg 2023). 29 ILO Working Paper 143 per cent over the agreement period of 1 May 2023 to 30 April 2025. In addition, a “working group with representatives from both parties will also be set up to review the application of temporary employments” (Swedish Transport Workers’ Union 2023). Voluntary union recognition agreements United Kingdom The GMB Union negotiated a recognition agreement with Deliveroo in May 2022 (Jones 2022).65 This is a voluntary agreement in which Deliveroo recognizes GMB “as the sole independent trade union for Deliveroo Riders in the UK”.66 Under the agreement, the parties “accept that Riders for Deliveroo are self-employed and in business on their own account and Deliveroo is just one of many clients and customers with whom they may work”.67 The agreement has many statements by the parties of their shared commitments, for example, to “working together in a spirit of transparency, open communication and treating each other with dignity and respect”, but few substantive provisions. In relation to collective bargaining and consultation, the agreement provides that:  The Partners shall establish a Joint Partnership Council as the forum in which the Partners will engage in Collective Bargaining and Consultation.  The Partners shall engage in Collective Bargaining on matters including Deliveroo’s commitment to earnings security for Riders in the form of a guaranteed pay floor.  Consultation on matters including maintaining existing earnings support for illness, one-off lump sum new parent support, insurance, Riders’ health and safety and mental and physical well being.68 The “guaranteed pay floor” means that riders’ fees will be at least equivalent to the applicable UK National Living Wage, plus costs for orders undertaken on a “time work basis”. GMB is accorded rights to meet with and recruit riders so it can represent their interests, and Deliveroo will (as far as possible) protect riders from discrimination or victimization for being GMB members. The “dispute resolution” provision does not include any process for resolving disputes, stating simply that the parties “share a joint commitment to the success of the relationship between them that will be created by this Agreement, and to the good conduct of industrial relations”.69 65 The full text of agreement is available at: https://dpd-12774-s3.s3.eu-west-2.amazonaws.com/assets/4416/5234/2894/GMB_and_ Deliveroo_Voluntary_Partnership_Agreement.pdf. 66 Deliveroo–GMB Voluntary Partnership Agreement (2022). See McGurdy’s (2022) critique of the agreement (including its preservation of self-employed status for Deliveroo riders and its ousting of rival trade union IWGB, which had pursued a long-running litigation trying to establish statutory recognition rights for collective bargaining with Deliveroo). See also the case law section below on the UK Supreme Court decision rejecting IWGB’s appeal against earlier rulings precluding its application for statutory recognition. 67 Deliveroo–GMB Voluntary Partnership Agreement (2022). 68 Deliveroo–GMB Voluntary Partnership Agreement (2022). 69 Deliveroo–GMB Voluntary Partnership Agreement (2022). 30 ILO Working Paper 143 Overarching accords outlining principles of agreement Australia The TWU has negotiated several informal accords with rideshare and food delivery platforms, setting broad principles rather than minimum standards, outside the statutory system of collective bargaining. These accords were made prior to the commencement of the new collective bargaining framework for employee-like workers on digital labour platforms, and were very much shaped by the imminent prospect of regulation introducing minimum standards for gig economy workers (see Section 2 above). The TWU’s May 2022 accord with food delivery platform DoorDash recognized the trade union’s representative role on behalf of drivers, although with the qualification that given the “fragmented nature” of gig work, “a new and effective model of collective participation is needed in order to facilitate and ensure effective representation”.70 This formed one of “six core principles we agree should form a national framework for future reform of the on-demand transport industry including through government regulation”. Among the other principles was the need to “recognise the value that workers derive from this new, unique form of work, while creating a portable, proportional, and flexible framework that allows app-based workers to maintain their independence while accessing new protections and benefits”. Further principles included transparency for gig workers in respect of the monitoring, control and remuneration of their work, formal education and training of drivers, and access to independent dispute resolution. In June 2022, the TWU finalized an accord with Uber and Uber Eats, including agreed principles such as “respect” for the rights of platform workers to be represented by a trade union and to “have an effective collective voice”.71 The accord indicated the parties’ support for proposed reforms that would provide an independent body with the ability to “set minimum and transparent enforceable earnings” for gig workers, as long as these were “based on the principle of cost recovery, taking into account the nature of the work”. It also reflected the need for “a cost effective and efficient mechanism to resolve disputes”. Very similar commitments and principles were included in the TWU’s accord with Menulog, concluded in March 2023.72 Belgium The Belgian Union of Transport Workers (ABVV-BTB) and Uber reached an agreement in October 2022. The agreement provided for recognition of the trade union’s representative role on behalf of Uber drivers (irrespective of employment status) and for collaboration on improved working conditions, including in relation to health and safety (ABVV-BTB 2022). 70 TWU and DoorDash, Statement of Principles to Ensure Safety and Fairness for Workers in the On-Demand Economy, 9 May 2022. 71 Uber and TWU, Statement of Principles and Future Commitments for Workers in the On-Demand Economy, 28 June 2022. 72 TWU and Menulog, Charter of Principles and Ongoing Commitments to Ensure Safety and Fairness for On-Demand Delivery Couriers, March 2023. 31 ILO Working Paper 143 X4 Developments impacting the intersection between labour law and competition law in relation to self-employed platform workers Where platform workers are engaged through contractual arrangements that classify them as being self-employed, their capacity to engage in collective bargaining and create collective agreements may be restricted by the application of competition laws. This may occur because the platform worker is regulated by competition law as an “undertaking” and thus subject to the same competition regulation as the digital labour platform to which they are contracted, and/or because the platform worker does not fall within the scope of any “employee” exemption under competition laws. In jurisdictions where self-employed platform workers are subject to competition laws, workers can generally form collectives; however, any collective actions may be considered to be unlawful anti-competitive conduct impacting the market in which they sell their services. This may include collective bargaining and the finalization of any collective agreement where it is considered to be anti-competitive, such as price-fixing or collective boycott behaviour. This may be the case irrespective of the actual anti-competitive effect of the conduct in jurisdictions where “cartel” behaviour is deemed to be anti-competitive without the necessity of proving such purpose or effect. Furthermore, in some instances, competition regulation may prohibit some collective conduct like information sharing about contractual terms and conditions among members of the collective. For example, for self-employed platform workers in Australia, collective information sharing may be subject to the statutory prohibition of “concerted practices” in section 45(1) (c) of the Competition and Consumer Act 2010 (Cth), which has the effect of outlawing information sharing between competitors where this has the purpose, or effect, of lessening competition (see further Davies and Wainscot 2017). The discussion that follows outlines recent developments in competition regulation that relate to the capacity of self-employed workers to engage in collective bargaining and create collective agreements, without these actions facing potential liability under competition regulation. Australia As outlined in Section 2 above, in 2024 Australia introduced a distinct regulatory regime within the Fair Work Act 2009 (Cth) for certain “employee-like” self-employed workers that facilitates voluntary negotiation and creation of collective agreements with digital labour platforms. Negotiations under this regime are protected from competition regulation by an express statutory exemption (see above). For self-employed platform workers in Australia whose engagements fall outside of the scope of the “employee-like” jurisdiction, the possibility of negotiating and creating collective agreements is not closed off by the Competition and Consumer Act 2010 (Cth). A 2015 review of Australian competition laws recommended the creation of a “safe harbour” for collective bargaining conduct 32 ILO Working Paper 143 by small businesses (Harper 2015, 404), and legislation to facilitate this was passed in 2017.73 The amending bill’s Explanatory Memorandum stated: “By negotiating as a collective, small business may be able to negotiate with bargaining power equal to a larger firm, and achieve a more efficient and pro-competitive outcome.”74 The amendments gave the Australian Competition and Consumer Commission (ACCC) the power to create a class exemption through determination. After a lengthy period of consultation, the ACCC made such a determination, and in June 2021, the small business class exemption took effect (as to this history, see Hardy and McCrystal 2020).75 Under the class exemption, any small business, including self-employed platform workers, with an aggregated annual turnover of less than A$10 million76 can form a collective with businesses that also meet the thresholds, engage in collective bargaining and create collective agreements with bargaining counterparties over the supply or acquisition of goods or services, including the terms and conditions under which a self-employed person is engaged to work (see generally Smith and Healy 2023). To be covered by the exemption, the parties seeking to engage in collective bargaining must have:77 ●at least a reasonable expectation that the parties will make a contract with the target of bargaining over the supply or acquisition of good or services; ●complied with the obligation to notify the ACCC and the target of bargaining of their intention to engage in bargaining (along with identifying either the members of the bargaining group or the characteristics of the membership); and ●the membership group must not engage, or propose to engage, in any collective refusal to contract with the target of the bargaining (that is, action akin to strike action or a “collective boycott”). Once the exemption applies, collective bargaining conduct that does not include strike action can proceed without being subject to enforcement action under competition laws. Members of the collective are permitted to share information, but only where the information is shared for the purposes of bargaining and the party sharing the information believes that it is reasonably necessary to share that information to facilitate bargaining. 78 Neither the Competition and Consumer Act nor the class exemption provide any institutional support for collective bargaining undertaken pursuant to the exemption; those hiring self-employed workers are not required to recognize or bargain with the collective; and there is no statutory regime to create enforceable collective agreement outcomes (beyond the law of contract) (see further McCrystal and Hardy 2021). To date there is no empirical evidence of the extent to which collective bargaining covered by the class exemption is leading to collective agreements. The ACCC maintains a register of class exemption notices that identifies those small businesses that are seeking to make collective agreements pursuant to the exemption,79 but there is no register or record of agreements reached. The notices lodged with the ACCC identify that some trade unions that organize self-employed workers and other more informal collectives have lodged notifications under the provisions, most commonly in relation to self-employed medical professionals and owner-driver couriers 73 Competition and Consumer Amendment (Competition Policy Review) Act 2017 (Cth). 74 Explanatory Memorandum, Competition and Consumer Amendment (Competition Policy Review) Bill 2017 (Cth) [9.11]. 75 ACCC, Competition and Consumer (Class Exemption – Collective Bargaining) Determination 2021 created pursuant to Competition and Consumer Act 2010 section 95AA. 76 The threshold is set higher for some small businesses, but as these higher thresholds are not relevant for platform economy self-employed workers, they are not considered further here. 77 ACCC, Competition and Consumer (Class Exemption – Collective Bargaining) Determination 2021, clauses 8–11. 78 ACCC, Competition and Consumer (Class Exemption – Collective Bargaining) Determination 2021, clause 13. 79 Available here: https://www.accc.gov.au/public-registers/class-exemptions-register/collective-bargaining-class-exemption-0 (accessed 16 August 2024). 33 ILO Working Paper 143 or concrete transporters. However, to date, there have been no notices lodged with the ACCC by groups of self-employed persons seeking to negotiate with digital labour platforms. European Union As determined by the Court of Justice of the EU in Albany International BV v. Stichting Bedriffspensioenfonds Textielindustrie,80 EU competition law exempts collective agreements between worker associations and employers that have been created within a framework of bargaining between employers and employees, where they contribute to improving the working conditions of those employees. However, as clarified in FNV Kunsten,81 this exemption does not apply to agreements created by an association on behalf of genuinely self-employed workers. Such an association, in negotiating a collective agreement, would be acting as an association of undertakings rather than association of workers, unless they were “false self-employed” workers in a position comparable to employees. For a trade union acting on behalf of platform workers who are neither employees nor false self-employed, the above has the effect that any collective actions by the trade union could be found to be contrary to EU competition law. This approach leaves worker classification to be determined on a case-by-case basis, with concomitant uncertainty for the trade union, the workers and those with whom they seek to bargain about the legality of the actions. It also has the effect that, in the EU, self-employed platform workers may be subject to EU enforcement action where they engage in collective bargaining and make collective agreements. In September 2022 the European Commission issued “Guidelines on the application of [European] Union competition law to collective agreements regarding the working conditions of solo self-employed persons” (OJ 2022/C 374/02). For this purpose, the “solo self-employed” are those without an employment contract, or who are not within an employment relationship, and who rely primarily on their own personal labour for the provision of the services concerned (clause 2(a)). The Guidelines observe that some self-employed persons “face difficulties in influencing their working conditions”, particularly those that work on their own and “primarily rely on their own labour to make a living” (clause 7). Furthermore, they note that such workers may lack independence or sufficient bargaining power, a situation that has been contributed to by “the trend towards subcontracting and outsourcing business and personal services, as well as the digitalization of production processes and the rise of the online platform economy” (clause 8). As such “[c]ollective negotiations may provide an important means to improve the working conditions of these solo self-employed persons” (clause 8). The solution set out within the Guidelines is that collective agreements created by self-employed persons in a situation comparable to that of workers fall outside the scope of article 101 of the Treaty on the Functioning of the European Union (TFEU), and that the European Commission will not take enforcement action against self-employed persons experiencing an imbalance of bargaining power with a bargaining target. 80 Case C-67/96, [1999] ECR 1-5751. 81 Case C-413/13, FNV Kunsten Informatie en Media ECLI :EU :C :2014 :2411. 34 ILO Working Paper 143 The Guidelines (clause 2.2) identify three categories of self-employed persons who the European Commission will consider as comparable to workers, such that their collective agreements will be considered to fall outside the scope of article 101 of the TFEU: 1. Economically dependent solo self-employed persons (those providing services exclusively or predominantly to one counterparty and identified as those who earn, on average, at least 50 per cent of total work-related income from a single counterparty over a period of one to two years); 2. Solo self-employed persons working “side-by-side” with workers (those performing the same or similar tasks “side-by-side” with workers for the same counterparty); and 3. Solo self-employed persons working through digital labour platforms.82 The third category – solo self-employed persons working through digital labour platforms – is of most relevance here. The inclusion of this group within the concept of “comparable workers” is justified within the Guidelines by reference to the fact that self-employed persons may be “dependent on digital platforms, especially for the purposes of reaching customers, and may often face ‘take it or leave it’ work offers, with little or no scope to negotiate their working conditions” (clause 28). For the purposes of the Guidelines, a “digital labour platform” is defined at clause 2(d) as any natural or legal person providing a commercial service that: 1. is provided, at least in part, at a distance through electronic means; 2. is provided at the request of a recipient of the service; and 3. involves, as a necessary and essential component, the organization of work performed by individuals, irrespective of whether it is performed online or at a specific location. Furthermore, any collective agreement (or proposed collective agreement) between self-employed persons and a digital labour platform must be one which “concerns the working conditions” of the self-employed persons (clause 2(c)). These are defined to include matters such as remuneration, working time, leave, health and safety, working space, insurances and termination of engagement (clause 15). but would not extend to agreements that control the cost of services offered by digital labour platforms to consumers, which limit digital labour platforms decisions around hiring, or which amount to market sharing between self-employed workers (clause 17).83 Where the collective agreement (or proposed agreement) only concerns working conditions, the associated coordination between the parties on each side of the negotiations (that is, agreement or information exchange) is also covered by the Guidelines, provided that the coordination is necessary and proportionate to the negotiation or conclusion of the collective agreement (clause 16). 82 The Guidelines also identify two further groups of self-employed persons who, while not in a position comparable to workers, would not be subject to EU Commission enforcement action where they create collective agreements. These are agreements made by solo self-employed persons where the counterparty has a level of economic strength such an imbalance is to be presumed where the counterparties to the agreement represent the whole of a sector or industry, or if the counterparties have economic turnovers of more than €2 million or a staff headcount of 10 or more (clause 34). Second, agreements concluded by self-employed persons pursuant to national or EU legislation where the legislation was enacted in pursuit of social objectives to address imbalances in bargaining power (clause 36). 83 It should also be noted that the Guidelines apply to vertical agreements between solo self-employed persons and undertakings, but do not extend to horizontal agreements between target undertakings, such as, for example, an agreement between digital labour platforms as to the price they will agree to pay for services or which prevents one digital labour platform from “poaching” workers from another platform. For more on recent developments in competition law in respect of non-poaching and wage fixing agreements between undertakings, see Rodrigues, Rocha and Moura (2024). 35 ILO Working Paper 143 The Guidelines are not binding law. They clarify when the European Commission will consider self-employed persons to be “comparable” to workers for the purposes of the Albany exception. They are binding on the European Commission itself, and guide EU Member States and their competition enforcement agencies in respect of the level of toleration that will be provided to domestic competition law legislation and collective action by self-employed persons within Member States. However, the Guidelines do not create new rights or regulatory categories, nor do they prevent private parties from bringing enforcement actions in circumstances other than those covered by the Guidelines (Heissl 2024, 137; Perulli 2024, 200; Daskalova 2022). Looking ahead, the Guidelines can be relied upon by EU Member States to provide exemptions from domestic competition laws or collective bargaining rights to platform workers within the scope of the Guidelines. Research carried out by Eurofound (2022, 27) set out the legal position for self-employed collective bargaining in EU Member States (as at January 2022) (see also Waas and Heissl 2021): ●Poland allows collective bargaining by self-employed persons without restriction. ● Four Member States (Bulgaria, Hungary, Romania and Slovakia) have restrictions on collective bargaining for the self-employed within domestic labour law regulation. ●Five Member States (Czechia, Denmark, Estonia, Finland and Latvia) have restrictions on collective bargaining for the self-employed within competition law regulation. ●Nine Member States (Austria, France, Germany, Greece, Ireland, the Netherlands, Portugal, Spain and Sweden) allow self-employed collective bargaining in exceptional cases. ●Eight Member States (Belgium, Croatia, Cyprus, Italy, Lithuania, Luxembourg, Malta and Slovenia) do not regulate the collective bargaining rights of the self-employed. At the time of writing, it appears that there have been no developments in competition regulation in EU Member States that would have the effect of changing the legal position as it applied in January 2022 resulting from the greater latitude afforded by the Guidelines. However, parallel development in the EU in the form of the Platform Work Directive was noted in Section 2 above. 36 ILO Working Paper 143 X5 Litigation on the personal scope of labour laws and effective recognition of the right to collective bargaining for platform workers In the period since 2021, litigation has continued in various tribunals and courts around the world in respect of the personal scope of labour laws and whether platform workers are covered by domestic legal definitions of “employee”, “worker” or related terms to gain access to various labour law rights and protections (see, for example, Hiessl 2021; ILAW 2022; and the Gigpedia overview of court cases impacting gig workers84). This has included litigation on the question of recognition for the purposes of collective bargaining. It is not possible here to provide a comprehensive overview of all relevant litigation. However, it is clear that there is no common outcome or unanimity in the cases, with some litigation being resolved with a finding that particular platform workers are self-employed and other litigation resulting in platform workers being classified as dependent workers or employees. This finding resonates with the conclusions of earlier studies that also found a lack of unanimity in the outcomes of such litigation (Heissl 2021; Hadwiger 2022, 42). Many lower-level court and tribunal cases determined since 2021 remain subject to appeal and, therefore, final resolution of the issues involved remains outstanding. There have also been determinations as to the classification of platform workers from higher level courts in some countries, with Annex 1 below outlining such cases from the Netherlands, New Zealand, Republic of Korea and the United Kingdom. The discussion in Annex 1 is not comprehensive, but serves to illustrate the various approaches to questions of classification. 84 Gigpedia, “Court Cases”. 37 ILO Working Paper 143 XConclusion This working paper has explored developments related to the platform workers’ engagement in collective bargaining and other collective action over the last three years. These legal developments are modest in nature and linked to a combination of legislative reforms in a range of countries, along with (to a lesser extent) judicial decisions that have indicated that there is no common outcome or unanimity in cases related to the employment status of platform workers. Collective agreements, voluntary recognition agreements and accords between trade unions and digital platforms also continue to be negotiated, although these are concentrated in European countries (apart from examples in Central Asia, Oceania and South America) and are mostly to be found in the delivery and rideshare sectors. In most countries there has been no change in regulatory settings on collective bargaining. The relationship between labour law and competition law has enabled greater provision for collective bargaining in some instances by self-employed platform workers to take place without offending traditional constraints imposed by competition regulation. 44 ILO Working Paper 143 Jones, Alan. 2022. “Union Hails ‘Historic’ Recognition Deal with Food Delivery Giant Deliveroo”. The Independent, 12 May 2022. Lamannis, Mariagrazia. 2023. Collective Bargaining in the Platform Economy: A Mapping Exercise of Existing Initiatives. European Trade Union Institute. McCrystal, Shae. 2014. “Organising Middle Earth? Collective Bargaining and Film Production Workers in New Zealand”. New Zealand Universities Law Review 26 (1): 104–131. ———. 2016. “Independent Contractors and Strike Action in New Zealand”. New Zealand Universities Law Review 27 (1): 162–184. McCrystal, Shae, and Tess Hardy. 2021. “Filling the Void? A Critical Analysis of Competition Regulation of Collective Bargaining Amongst Non-Employees”. The International Journal of Comparative Labour Law and Industrial Relations 37 (4): 355–384. McGurdy, Ciaran. 2022. “Deliveroo–GMB Deal: A Closer Look”. The Social Review, 7 August 2022. Pape, Marketa. 2024. “Improving the Working Conditions of Platform Workers”, EPRS EU Legislation in Progress Briefing No. PE 698.923. Paul, Sanjukta. 2022. “Labor in Competition Law: Introduction”. In The Cambridge Handbook of Labor in Competition Law, edited by Sanjukta Paul, Shae McCrystal and Ewan McGaughey, 1–10. Cambridge: Cambridge University Press. ———. 2023. “Methodological and Normative Elements of the New Anti-Trust”. Journal of Antitrust Enforcement 11 (2): 253–258. Paul, Sanjukta, Shae McCrystal and Ewan McGaughey (eds). 2022. The Cambridge Handbook of Labor in Competition Law. Cambridge: Cambridge University Press. Perulli, Adalberto. 2024. “A New Category within European Union Law: Personal Work”. European Labour Law Journal 15 (1): 184–210. Rodrigues, Ana Sofia, Marta Roche and Sonia Moura. 2024. “Anticompetitive Agreements in Labour Markets: A Survey of the Most Recent Developments in EU Competition Law”. Journal of European Competition Law & Practice 15 (2): 141–149. Ruslanbekova, Aizhan. 2023. “Kyrgyz App-based Drivers Win First Agreement with Employers”. Solidarity Center Blog (blog). 3 October 2023. https://www.solidaritycenter.org/kyrgyz-app-baseddrivers-win-first-agreement-with-employer/. Schmalz, Stegan, Victoria Basualdo, Melisa Serrano, Kurt Vandaele and Edward Webster. 2023. “Varieties of Platform Unionism: A View from the Global South on Workers’ Power in the Digital Economy”. Work in the Global Economy 3 (2): 201–224. Schmidt, Verena, Edward Webster, Siviwe Mhlana and Kally Forrest. 2023. “Negotiations by Workers in the Informal Economy”, ILO Working Paper No. 86. Selberg, Niklas. 2023. “Autonomous Regulation of Work in the Gig Economy: The First Collective Bargaining Agreement for Riders in Sweden”. European Labour Law Journal 14 (4): 609–627. 45 ILO Working Paper 143 Smith, Rhonda, and Deborah Healey. 2023. “Attacking Concentration: Market Power in the Digital Space”. European Competition Journal 20 (2): 295–314. Stewart, Andrew, and Jim Stanford. 2022. “Giving Platform Workers a Say: Regulating for Voice in the Gig Economy”. In Worker Voice and Social Dialogue in the Platform Economy, edited by Adrian Wilkinson, Tony Dundon, Paula K. Mowbray and Sarah Brooks, 48–70. Cheltenham: Edward Elgar. Swedish Transport Workers’ Union. 2023. “Press Release on Avtal klart för Foodora cykeloch mopedbud”, 2 June 2023. TWU (Transport Workers Union). 2024. “New Transport Laws: TWU Applications”, factsheet. WageIndicator.org. 2022. “Switzerland – A New Collective Agreement Signed for Smood Couriers”. June 2022. Sigmalive. 2024. “Κατοχυρώθηκαν «και με τη βούλα» τα εργασιακά δικαιώματα των ντελιβεράδων”. 25 July 2024. Vandaele, Kurt, Agnieszka Piasna and Wouter Zwysen. 2024. “Are Platform Workers Willing to Unionize? Exploring Survey Evidence from 14 European Countries”, ILO Working Paper No. 106, February 2024. Williams, Penny, Andrew Stewart, Paula MacDonald, Robyn Mayes, Trish Obst, Catherine Kennon, Alicia Feldman and Phoung Anh Tran. 2023. Digital Platform Work in Australia: Findings from a 2023 National Survey. QUT Centre for Decent Work and Industry. Waas, Bernd, and Christina Hiessl (eds). 2021. Collective Bargaining for Self-Employed Workers in Europe: Approaches to Reconcile Competition Law and Labour Rights. Alphen aan den Rijn: Kluwer Law International. Waked, Dina I. 2016. “Adoption of Antitrust Laws in Developing Countries: Reasons and Challenges”. Journal of Law, Economics & Policy 12 (2): 193–230. Xie, Zengyi. 2022. “Labour Protection of Platform Workers in China: Legal Innovations and Emerging Trends”. Industrial Law Journal 51 (4): 831–854. Conditions of Work and Equality Department (WORKQUALITY) Inclusive Labour Markets, Wages and Working Conditions Branch (INWORK) International Labour Organization Route des Morillons 4 1211 Geneva 22 Switzerland T +41 22 799 6754 XAdvancing social justice, promoting decent work The International Labour Organization is the United Nations agency for the world of work. We bring together governments, employers and workers to improve the working lives of all people, driving a human-centred approach to the future of work through employment creation, rights at work, social protection and social dialogue. I S B N 9789220419878 9HSTCMA*ebjihi+ 9 789220 419878 Contact details