OIT - Collective bargaining and collective action in the platform economy

X Collective 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

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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/EMDS247301 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

ering 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 X Introduction 05 X 1 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 X 2 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

lation 07 Research on organizing approaches and strategies within the platform economy 08 X 2 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 X 3 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 contents03 ILO Working Paper 143 Voluntary union recognition agreements 29 United Kingdom 29 Overarching accords outlining principles of agreement 30 Australia 30 Belgium 30 X 4 Developments impacting the intersection between labour law and competition law in relation to self-employed platform workers 31 Australia 31 European Union 33 X 5 Litigation on the personal scope of labour laws and effective recognition of the right to collective bargaining for platform workers 36 X Conclusion 37 Summary of higher level court decisions 38 United Kingdom 38 Netherlands 39 New Zealand 39 Republic of Korea 41 References 4204 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 chauffeur05 ILO Working Paper 143

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 chauffeur05 ILO Working Paper 143 X Introduction 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.06 ILO Working Paper 143 X 1 Novel research on areas that impact the

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.06 ILO Working Paper 143 X 1 Novel research on areas that impact the development of collective bargaining and collective action

Recent research on areas that impact the development of collective bargaining and collective action generally falls into three main categories, although these categories are not mutually exclusive or comprehensive: 1. empirical research into platform economy collective organizing and action; 2. research on worker classification and the intersection of labour law and competition regulation; and 3. research on organizing approaches and strategies within the platform economy. Each of these categories of research are examined in the subsections that follow. Empirical research into platform economy collective organizing and action A range of research considers the extent of protest action, organizing, self-organization, unionization and bargaining by platform workers. This research shows that there is grassroots protest action within the platform economy, in both the Global North and South. Drawing upon the Leeds Index of Worker Protests, Bessa et al. (2022) collated 1,271 instances of worker protest action by primarily location-based platform workers. Drawing on this data, they concluded that pay is the main driver of labour unrest among platform workers, and that in the Global South, protests are largely led by informal worker groupings, with a similar story in the Global North but with greater evidence of the involvement of trade unions (Bessa et al. 2022, 32). This has included both traditional trade unions with platform worker members (particularly where those workers are legally classified as employees) and newer trade unions formed by platform workers (Bessa et al. 2022, 10–11). Further, protest action directed at multiple platform targets is a distinctive feature of platform protest. Similarly, Schmalz et al. (2023) found that protests by platform workers in the Global South had increased and were generally ad hoc or informal in nature, organized around specific grievances and focused on pay or legal classification of work. Research

tive feature of platform protest. Similarly, Schmalz et al. (2023) found that protests by platform workers in the Global South had increased and were generally ad hoc or informal in nature, organized around specific grievances and focused on pay or legal classification of work. Research findings suggest that the impact of grassroots protest and worker activism in practice is varied (Lamannis 2023; Forsyth 2022, Chapter 9). In respect of levels of unionization in the platform economy, Vandaele, Piasna and Zwysen (2024) analysed survey data from 36,124 platform worker respondents in 14 European countries to understand the extent to which platform workers are willing to unionize. The survey revealed generally pro-union attitudes among the platform workers surveyed (around 69.2 per cent), but noted that a much higher proportion of workers hold positive attitudes than would be willing to unionize (25 per cent) (Vandaele, Piasna and Zwysen 2024, 33–34). It was also noted that, because of the preponderance of platform workers who rely on the platform economy as a supplementary source of income, rates of trade union membership among European platform workers largely mirrored unionization rates in the conventional economy – reflecting trade union membership related to the primary professions of many platform workers. Similarly, survey responses from 3,590 platform workers in Australia (Williams et al. 2024, 13) revealed trade union membership07 ILO Working Paper 143 of around 15 per cent, while trade union density in the conventional labour market in Australia is around 12.5 per cent (ABS 2022). In a similar vein, Hadwiger (2022), in the aforementioned ILO Working Paper No. 80, surveyed collective bargaining in the gig economy, examining both the “location-based” and “online webbased” platform economies. Hadwiger concluded that progress in the platform economy towards collective bargaining outcomes and informal collective organizing was more prominent in the location-based platform economy, where there had been a first group of collective bargaining

collective bargaining in the gig economy, examining both the “location-based” and “online webbased” platform economies. Hadwiger concluded that progress in the platform economy towards collective bargaining outcomes and informal collective organizing was more prominent in the location-based platform economy, where there had been a first group of collective bargaining agreements created. However, it was noted that these had primarily emerged in Europe in the context of in situ workers engaged as employees, despite most platform companies classifying their workers as self-employed. Reviewing collective negotiations by workers in the informal economy and noting the parallels with platform economy work, Schmidt et al. (2023) (ILO Working Paper No. 86) identified barriers to collective organization arising from the isolated nature of the work, the absence of clear counterparties for negotiation, the more diverse nature of worker interests beyond traditional employment concerns and the legal limitations on unionization and representation outside of employment relationships. Research on worker classification and the intersection of labour law and competition regulation This body of literature considers worker classification for the purposes of access to conventional labour law regulatory structures, including the right to organize and engage in collective bargaining. Connected to this is the impact of competition law and policy on the ability of self-employed platform workers to engage in collective bargaining. As is well understood, the issue of worker classification in the context of platform work has been central to questions over the ability of platform workers to engage in collective bargaining. Labour law regulatory models conventionally delimit the coverage of protective regulation to those workers engaged under contractual arrangements characterized by subordination and control. The subordination of workers to employers has been the primary regulatory justification for provisions like minimum work standards, protections against unfair termination and access to collective bargaining regimes. However, where the contractual arrangements between platform economy businesses and workers providing services fall outside of the scope of conventional labour law, workers may be unable to organize and engage in collective bargaining. This may be because of a lack of regulatory support for collective activities outside of mainstream labour law, or because they are impacted by commercial regulation of the activities of business enterprises, including competition law prohibitions on “anti-competitive” behaviours.

tional labour law, workers may be unable to organize and engage in collective bargaining. This may be because of a lack of regulatory support for collective activities outside of mainstream labour law, or because they are impacted by commercial regulation of the activities of business enterprises, including competition law prohibitions on “anti-competitive” behaviours. The use by platform economy businesses of models of labour engagement that characterize workers as self-employed has resulted in significant litigation across different jurisdictions, with workers challenging this classification within courts and tribunals. The International Lawyers Assisting Workers Network (2022) summarizes litigation internationally concerning worker classification that was in progress as at December 2022, along with legislative developments over the personal scope of labour law regulation within different countries. Similarly, Hiessl (2021) explores worker classification cases across European jurisdictions to draw out common themes and approaches within the developing jurisprudence. In the context of the development of the European Union Directive on Platform Work, Aloisi, Rainone and Countouris (2023, 17) examine the use of legal presumptions of employment when seeking to regulate platform work.08 ILO Working Paper 143 Discussion of the personal scope of labour law regulation generally acknowledges three distinct categories of workers: 1. those who are dependent workers in the conventional sense (commonly referred to as “employees”); 2. workers who are nominally independent but subordinate or dependent in some manner on a labour engager for the provision of work or income (commonly identified as “dependent contractors”); and 3. workers who are genuinely self-employed and working on their own account. Speaking generally (and acknowledging the limitations of oversimplification), in domestic labour law systems, employees are accorded rights in respect of access to and facilitation of collective bargaining, dependent contractors may be accorded such rights, and self-employed workers have not been accorded such rights. For self-employed workers and some dependent contractors, exclusion from mainstream labour law regulation may combine with competition law to effectively prohibit collective bargaining with platform businesses, where these workers are treated as “enterprises” or “undertakings” within

have not been accorded such rights. For self-employed workers and some dependent contractors, exclusion from mainstream labour law regulation may combine with competition law to effectively prohibit collective bargaining with platform businesses, where these workers are treated as “enterprises” or “undertakings” within competition regulation. This is because combination by these workers may constitute activities considered to be anti-competitive between sellers of services in the same market – namely, information sharing and price fixing. The use of self-employment by labour platform businesses has highlighted this intersection of work and competition regulation. The contributions in Waas and Hiessl (2021) outline the intersection of labour regulation and competition law within the European Union; while a 2021 special issue of the Comparative Labor Law and Policy Journal (Vol. 42, Issue 2) explored the application of competition law to workers within a range of jurisdictions internationally. The contributions in Paul, McCrystal and McGaughey (2022) also explore the treatment of workers under competition regulation in a range of nations internationally, highlighting that these tensions appear to be more prominent in Global North countries. This may be attributed to the underdevelopment of competition regulation within Global South countries (see Waked 2016) or to the greater focus in some Global South nations on the enforcement of labour law protections for conventional employees (Arellano Ortiz 2022). While much of this research explores the tension in the labour/ competition law divide between the promotion of economic coordination through collective action (labour law) and its prohibition (competition law), Paul (2022; 2023) shows that both areas of regulation are concerned with economic coordination, constituting the result of regulatory choices over who can act collectively and in what circumstances. The discussion below outlines instances where competition law enables certain self-employed workers to bargain collectively under the EU Commission “Guidelines on the application of [European] Union competition law to collective agreements regarding the working conditions of solo self-employed persons” as well as under the 2021 class exemption for small business collective bargaining in Australia. Research on organizing approaches and strategies within the platform economy

ly under the EU Commission “Guidelines on the application of [European] Union competition law to collective agreements regarding the working conditions of solo self-employed persons” as well as under the 2021 class exemption for small business collective bargaining in Australia. Research on organizing approaches and strategies within the platform economy The third area of research considers the “fit” between conventional collective bargaining models and the nature of engagements and work within the platform economy. As illustrated by Adams (2023), one mobilization and organizing strategy adopted by established and new trade unions in the platform economy is a legal one, bringing tribunal and court actions challenging the contractual classification of workers as self-employed. In such cases, workers may be found to be09 ILO Working Paper 143 engaged as employees, or in jurisdictions with intermediate category protections, dependent contractors, and gain access to conventional collective bargaining regulatory structures. However, as explored by Bogg (2021; 2022) in the context of UK regulation which focuses on single enterprise voluntary collective bargaining, these structures may not be well suited to the more fragmented nature of platform economy work or to the inclusion of bargaining subject matter that is outside of the scope of employment (see also Forsyth, Hardy and McCrystal 2023; Aloisi, Rainone and Countouris 2023; Stewart and Stanford 2022). Similarly, where exemptions are developed for collective bargaining for self-employed workers without those workers falling under mainstream labour law bargaining systems, research by McCrystal and Hardy refer to the difficulty for those workers in organising and engaging in collective bargaining where structural supports for bargaining are not provided, particularly given the absence of bargaining experience within these groups (McCrystal and Hardy 2021).10 ILO Working Paper 143 X 2 Legislative developments relating to effective recognition of the right to collective bargaining for platform workers

The introduction of new laws specifically relating to the rights of platform workers with respect to collective bargaining has been on the legislative agendas of some countries and the European Union (EU) since 2021. The EU Parliament’s Directive on Improving Working Conditions in Platform

recognition of the right to collective bargaining for platform workers

The introduction of new laws specifically relating to the rights of platform workers with respect to collective bargaining has been on the legislative agendas of some countries and the European Union (EU) since 2021. The EU Parliament’s Directive on Improving Working Conditions in Platform Work (2021) has created a requirement for EU Member States to implement a rebuttable presumption of employment for platform workers and encourages the recognition of collective bargaining rights for all platform workers, including the self-employed. Elsewhere, Australia, Chile, China, France, New Zealand and Singapore have also regulated to facilitate collective bargaining for some categories of self-employed platform workers. These vary from forms of light touch regulation recognizing the right of workers to bargain and setting out basic collective negotiation provisions without any compulsion to bargain, through to formal collective bargaining regimes that require collective bargaining and recognize the right of solo self-employed platform workers to take strike action. Notably, the regimes introduced in Australia, France and Singapore create distinctive regulation applicable primarily (but not solely in the case of Australia) to some platform economy workers in delivery or transport work. An overview of these various approaches is set out below. Australia In Australia, the Government implemented significant reforms through the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, which took effect on 26 August 2024. The amending law inserted provisions in the Fair Work Act 2009, including a new Chapter 3A, providing for three forms of regulation: ● the negotiation and registration of collective agreements made by consent between trade unions and “digital labour platform” operators, setting terms and conditions for the performance of work by “employee-like workers” (Part 3A-4); ● enabling the Fair Work Commission (FWC) to set minimum wages and a confined range of working conditions for these workers in a “minimum standards order” (MSO), an instrument with legal effect in the same way that “modern awards” set minimum wages and more comprehensive conditions for Australian employees on a sectoral basis (Part 3A-2);

working conditions for these workers in a “minimum standards order” (MSO), an instrument with legal effect in the same way that “modern awards” set minimum wages and more comprehensive conditions for Australian employees on a sectoral basis (Part 3A-2); ● allowing employee-like workers to bring claims for remedies following “unfair deactivation” by a digital labour platform (Part 3A-3).1 For these purposes, a “digital labour platform” is:2 ● an online enabled application, website or system; ● operated to allocate, arrange or facilitate the provision of labour services; 1 The unfair deactivation provisions are not examined here. The provisions for MSOs are considered briefly, given their interaction with the new scheme for collective bargaining. 2 Fair Work Act, section 15L.11 ILO Working Paper 143 ● where the operator engages ind