Does Eu Police Pull Protect Gig Economic Scheme Workers? Tensions Inwards The Cjeu’S Instance Law

Dr Maria Tzanakopoulou, Teaching Fellow, King's College London in addition to University College London

BACKGROUND

The gig economic scheme is on the ascent precipitating much word nearly working weather –from working fourth dimension to remuneration in addition to from motherhood in addition to paternity protection to the all of import classification of individuals working inward the gig economic scheme puddle (see, eg, here in addition to here). The illustration of King marks the debut of CJEU judgments related to the regulation of work organisation deport in addition to worker’s rights inward the gig economy. Here, the CJEU upholds the correct of a self-employed worker to indeterminately ship over entitlements deriving from unexercised paid leave, spell it protects Mr King’s correct to an effective remedy earlier the courts. The even out continues alongside the Court’s much debated Uber determination (discussed here), which reportedly blows inward the facial expression upwards of businesses in addition to becomes a stepping rock to to a greater extent than comprehensive protection of the gig economic scheme worker (here). Perhaps somewhat surprisingly for those familiar alongside the Court’s frequently dismissive approach to labour rights (see, eg, here). The Court could accept decided much the same without the Charter’s assistance. That said, the determination is a harsh message to businesses engaging freelancers or to a greater extent than frequently than non workers that lack employee status.

Nevertheless, the significance of King for gig economic scheme worker rights at large should non hold upwards overestimated. The grand scheme of things suggests that, whereas workers inward the gig economic scheme tin laissez passer on notice win the small-scale private battles earlier the Court, the CJEU is unwilling to opened upwards up the agency to wide-ranging protection.

To commence with, Mr King’s worker status was non nether dispute, thus disburdening the CJEU of exam of the personal range of the correct to paid leave. In other words, the Court did non utter over applicability of that correct to gig economic scheme workers every bit such. As the AG notes inward his Opinion, the illustration was effectively concerned alongside the essence, rather than the existence, of the correct [para 30]. In lite of this, it could hold upwards argued that the Court’s primary concern was to translate the correct in addition to alone at a secondary grade to protect the gig economic scheme worker. Certainly, the specificities of the case, in addition to of Mr King’s situation, homecoming this a consequential determination for many workers inward the gig economy. Nevertheless, the extent to which the relevant legislation volition comprehend a gig economic scheme worker remains contingent upon each private worker’s exact utilization status.

What is maybe to a greater extent than of import is that, i time King is compared to the Court’s approach to collective labour rights inward the gig economy, the pic becomes fifty-fifty less promising.

Indeed, the social dimension of utilization rights emphasised inward King appears to hold upwards neglected inward cases dealing alongside collective labour rights of the gig economic scheme worker. It is straightaway established illustration constabulary of the Court that collective bodies representing self-employed workers pursue an economical activity in addition to are thence caught yesteryear the restrictive framework of contest constabulary rules (see Pavlov). This is so, the Court has aegued, despite these bodies’ pursuit of a social objective [Pavlov, para 118]. The importance of Pavlov is seat downwards non to the specific facts of the illustration but to the Court’s refusal to invest a torso representing self-employed workers alongside equal protection as, eg, collective bargaining agreements betwixt employers in addition to employees (see, eg, Albany).

On the contrary, the Court has noted that ‘the Treaty contains no provisions (…) encouraging the members of the liberal professions to conclude collective agreements alongside a sentiment to improving their damage of utilization in addition to working weather (…)’ [para 69]. Worse even, inward the to a greater extent than recent FNW Kunsten, the Court declared inward unequivocal damage that ‘in so far every bit an organisation representing workers carries out negotiations acting inward the name, in addition to on behalf, of those self-employed persons who are its members, it does non human activity every bit a merchandise matrimony association in addition to thence every bit a social partner, but, inward reality, acts every bit an association of undertakings’ [para 28] in addition to thence falls inside the range of contest constabulary rules.

All things considered, the Court appears to hold upwards adopting double standards. It is receive to recognise the social significance of the correct to paid leave of absence of an private freelancer, yet it stops brusk of shielding the correct of the self-employed worker to collective bargaining.

One agency forward, then, would hold upwards for the Court to recognise private rights piecemeal, every bit inward King. Another agency would hold upwards for individuals to rely on the courts, European or domestic, for an inclusive approach to self-employed workers, every bit inward Aslam. Here, the worker status of Uber drivers, recognised yesteryear the Employment Tribunal in addition to upheld yesteryear the EAT, placed these individuals inside the protective ambit of the National Minimum Wage Act in addition to the Working Time Regulations. Like Mr King, the status of Uber drivers every bit workers for the purposes of these pieces of legislation is straightaway beyond dispute. It is, however, doubtful whether whatsoever of the to a higher house would hold upwards able to negotiate their salary or pension through collective bargaining gratis from the burden of European Union contest constabulary rules. Influenza A virus subtype H5N1 3rd agency frontwards would maybe hold upwards for the CJEU to recognise the social significance of bargaining rights in addition to to guarantee them for gig economic scheme workers. Only then, I think, volition it hold upwards justified to tell that the state of war was won.

King wins a battle but the state of war is ongoing: when an utilization correct tin laissez passer on notice hold upwards defended individually earlier the court, but non collectively inward the plain –even where that correct is upheld– I shall stay hesitant to outcry victory bell for gig economic scheme workers.

Barnard & Peers: chapter 20

Photo credit: euractiv.com

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