Until the 1980s, the world of labour law was relatively simple. Work in the mainstream of the global economy was mainly performed by employees, regulated by employment and labour law, with a periphery of independent contractors providing incidental services. Since then, as we know, a sea change has taken place.
The Great Wall between “employment” and “independent contracting” has been breached in more and more ways, with “employment” streaming out through the gaps to be replaced by various new (or not so new) forms of work from the uncharted territory beyond the citadel of labour law. What to do about it has been a dominant theme of labour law discourse for a generation, with many interesting answers being given, but with limited practical solutions.
More recently, the spotlight has fallen on what is termed “geographically-tethered digital work” (such as the delivery of goods, taxi services or domestic services in specific localities by workers who are classified as “independent contractors” and are controlled via a digital application or “platform” rather than line managers). This focus is explained partly by the numerous court cases in different countries where platform workers have claimed employment rights (such as leave pay), which in turn is explained by the relatively close resemblance between such forms of platform work and “employment” in a legal sense.
The outcomes, however, have been mixed. In some cases judges found that the relationship in question was one of disguised employment, whereas in others sufficient distinguishing features were found for courts to conclude that the workers were true independent contractors. As a result they enjoy no form of employment protection and, since they seldom have alternative work opportunities, they must submit to work conditions imposed at the discretion of these platforms.
These issues have been the focus of research and advocacy by the Fairwork project, with which Centrow is associated. The project has worked out norms of fairness based on the principles of fair pay, fair conditions, fair contracts, fair management and fair representation, and has rated platforms in a number of countries (including South Africa) as a means of mobilising reputational pressure for improvement. It has been recognised, however, that not all platforms will think it necessary to make voluntary changes and that, as a last resort (just as with employment in the 19th century), legal regulation will be needed to set the baselines of decent work.
Fairwork’s research has highlighted that simply classifying platform workers as “employees" would only be a partial solution. Yes, it would give workers the right to minimum wages, paid leave, maximum working hours and the like. But the rights to organise and bargain collectively as enshrined in the Labour Relations Act were designed for workers in (large) conventional workplaces - workers who can readily be unionised, and often are.
Experience also teaches that employment rights may be a dead letter in the absence of union organisation to monitor compliance. Individual workers lack the bargaining power or resources to stand up to employers who violate their rights, as can be seen in largely unorganised sectors such as farming and domestic work. How much more disempowered would individual workers be in the face of transnational platforms such as Uber?
While certain employment rights could be adapted and extended to platform workers (as with part-time or temporary work) to the extent that platform work resembles employment, new rules and institutions may be needed to protect those rights in less employment-like environments. In particular, new institutions will be needed to enable workers to exercise collective voice and negotiating power in regulating their own conditions of work.
This, after all, is what the law of contract is about: creating a bargain freely entered into and representing a meeting of minds. The challenge is to create conditions to make that possible in the context of platform work, just as collective bargaining set out to do in the world of factories, offices, shops and mines.
In other words, it may be necessary to reconstruct the wheel of labour law in such a way that it becomes geared to the realities of the platform economy.
But platform work is just the tip of the iceberg of constantly mutating new variants of work. In particular, platform work that is not geographically-tethered – such as “cloudwork”, which may be done by workers located in different parts of the world and different jurisdictions – will be even more complex to regulate. Again it would be a case of starting from the minimum conditions of decent work in terms of hours, rights to paid leave (including maternity leave) and safe working conditions.
Creating an institutional framework for ensuring compliance, therefore, may call for reinvention of the legislative wheel rather than mere reconstruction.
There may be lessons to be learned from the time when labour law was first invented, when workers found ways to organise where none had existed before, new institutions called trade unions were first recognised, and labour laws were formulated through a process of contestation, innovation, trial and error.
These, too, are questions which Centrow is targeting for ongoing research.
For more about Prof Du Toit, read here.