Collective bargaining and collective action in the platform economy:

A 2024 update of developments in legislation, case law and collective agreements

Anthony Forsyth

Shae McCrystal

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.

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.

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:

empirical research into platform economy collective organizing and action;
research on worker classification and the intersection of labour law and competition regulation; and
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 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 membership 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 web-based” 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.

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.

Discussion of the personal scope of labour law regulation generally acknowledges three distinct categories of workers:

those who are dependent workers in the conventional sense (commonly referred to as “employees”);
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
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 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

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 be 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).

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 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);
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;
where the operator engages independent contractors directly or indirectly, or acts as an intermediary on behalf of others who interact with those contractors; and
the operator processes aggregated payments referable to the work performed by the contractors (or contracts another entity to process such payments).

An “employee-like worker” is defined3 as an individual who is a party to a services contract under which they perform work for a digital labour platform (that is, not an employee) and at least two of the following conditions apply:

the worker has low bargaining power in negotiations relating to the contract;
the worker receives pay lower than that of an employee doing similar work;
the worker has a low degree of authority over work performance.

The FWC can make an MSO on its own initiative or on application to the FWC by employee-like workers engaged by digital labour platforms or their representatives (for example, a trade union).4 An MSO can set terms and conditions for the engagement of employee-like workers relating to matters including payment, working time, insurance, consultation, representation and cost recovery.5 Matters such as pay loadings for working on weekends, holidays and so on; payments for waiting time before and between accepting gigs; and minimum engagement periods can only be included in an MSO where they are appropriate for the particular type of work.6 MSOs cannot include terms relating to overtime pay rates, rostering, work health and safety, or terms incompatible with the nature of independent contracting.7

The consent-based collective bargaining scheme provides for the making of a collective agreement between a digital labour platform operator and a trade union representing the industrial interests of employee-like workers (the “negotiating entities”), setting the terms and conditions on which these workers perform digital platform work under services contracts,8 although without any right to engage in strikes or other collective action to advance bargaining claims. Each term of such an agreement must be more beneficial to the employee-like workers than the relevant term of any MSO that already applies to the workers.9 The agreement cannot deal with matters primarily of a commercial nature that do not affect terms and conditions of engagement.10 The process of making an agreement begins with a trade union notifying a platform (or vice versa) of a consultation period for the agreement, including its proposed terms,11 and providing the consultation notice to the FWC.12 The consultation notice must also be given to all of the employee-like workers who will be covered by the agreement.13

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

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:

Rest and Remuneration Guidelines, providing guidance on working hours, rest and remuneration;29
Labour Rules Guidelines, dealing with other “labour rules”;30 and
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).

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 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 two- or 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 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.

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 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

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).

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 costs, customer tips and parking expenses (articles 30.2–30.3). Surcharges are applied to assignments undertaken on Sundays (€0.65) and public holidays (€2.58) (articles 31.1–31.2). Various allowances are provided for in article 32 (for example, fuel cost contributions per assignment), with an availability allowance payable under article 33 for Shoppers who have achieved certain minimum availability measures. A bonus of €300 will be paid when a Shopper has completed 1,000 assignments (article 23).

Shoppers can temporarily suspend their accounts for a maximum of 30 calendar days per year, after giving ten days’ notice (article 22.1). Accounts can also be suspended in the event of a Shopper’s illness, communicated to the company with a medical certificate within 48 hours of onset of the illness (article 25.1). Shoppers may also suspend their accounts for maternity with a consequent extension of the contract for up to nine months, or seven months in the case of adoption (articles 26.1, 26.3). A maternity allowance of €1,500 will be paid for Shoppers who have carried out at least 500 assignments (article 26.4; see also article 26.5 regarding paternity benefits).

Trade union representatives can be appointed based on a scale ranging from 3 representatives in companies with 16–70 Shoppers, to 15 representatives in companies with 1,101–1,500 Shoppers, and an additional 3 representatives for each 1,000 Shoppers above 1,500 (articles 9.1–9.2). Trade union representatives will receive a financial contribution for carrying out trade union activities on work time (article 9.7). Trade unions and their representatives can post information on trade union matters in the digital platform (article 10.1). Shoppers can meet in trade union assemblies on paid time for up to ten hours per year (article 11.1). Under article 5, Shoppers and their trade union representatives are to be provided with information about the use of automated decision-making or monitoring systems, and an opportunity to seek clarification about any issues which the company must respond to.

Shoppers are to undergo a medical examination within the first six months of enrolment on the platform “to establish the absence of contraindications” to the work that will be performed, paid for by the company (article 27.1(a); see also article 27.1(b)). Employee safety representatives may be appointed from among the trade union representatives, based on the ratio of one representative for companies with up to 200 Shoppers, three for those with 201–1,000 Shoppers, and six for those with over 1,000. These representatives will have access to risk assessments and information on safety measures and will be able to represent “employees” so as to promote a culture of safety (article 27.1(e–f)). When an accident occurs, a Shopper is entitled to suspension of the contract and its extension for the duration of the temporary incapacity (article 28.1). The company undertakes to insure Shoppers with INAIL (the national institute for insurance against work injuries) or a private insurance provider, and to supplement INAIL payments to an injured Shopper in the first four days after an accident with a 60 per cent indemnity (articles 28.3–28.4).

Spain

A memorandum of understanding (MOU) between Takeaway Express Spain S.L. (Just Eat) and the trade unions FSC-CCOO and FeSMC-UGT52 was entered into on 17 December 2021 with the assistance of a third-party mediator. The preamble to the MOU acknowledges the influence of various legislative developments including Law 12/2021 of 28 September known as the Spanish “Rider Law”, and the desirability of a collective agreement at the company level, but also the inability of the parties to meet the requirements of the Workers’ Statute to conclude such an agreement. Instead, the parties “formalize[d] this agreement on working conditions ... with the aim of providing workers with an adequate framework of protection during this transitional period”, and without prejudice to the parties’ commitment to reach a statutory collective agreement.

The Just Eat agreement applies to all persons working for Just Eat under an employment contract, undertaking delivery service of processed or prepared meals and drinks via digital platforms (articles 2–3).53 The MOU is to operate until a statutory agreement is made by the parties, or until 31 December 2023 (article 5).54

Priority is given to employment of workers on indefinite contracts in order to reduce temporary employment and inequality (article 21). Delivery workers can be engaged on part-time contracts, such as for weekend work, with a minimum engagement of 12 hours per week (articles 23, 25(1)). They are subject to a probationary period of up to one month, during which employment can be terminated without notice (article 28). No other provision is made for grounds of dismissal; staff must simply be notified of the settlement amounts they are owed on termination of employment (article 29). Employees must give 15 calendar days’ notice before leaving the company (article 31).

Delivery staff work under a variable schedule in accordance with a set distribution of hours and within availability bands written into their contracts, leaving non-availability times enabling them to work other jobs, study and so on (article 24). Working hours and the distribution of working time according to daily time slots are regulated in detail in article 35.55 A maximum effective annual working time is set at 1,792 hours per year, with a maximum nine-hour working day (eight hours for workers under 18 years of age) (article 32).

Delivery workers are entitled to a weekly rest period of two uninterrupted days, and a daily rest period of 15 minutes after six hours’ work (article 36, providing additional rest/break rights for under-18s). Staff are also entitled to 30 calendar days of leave for each year worked, to be taken during the year of accrual, 15 days of which must be taken during the quiet June–August period and none of which can be taken between 1 October and 31 January (article 38).

Remuneration is the subject of detailed provision in articles 53–65, including basic salary levels, bonuses, wage supplements, allowances and overtime payments. For delivery workers, the basic wage is fixed based on units of time, that is, €8.50 gross per hour including paid annual leave and extraordinary bonuses (paid in 12 monthly instalments of €1,269.33 for a full-time delivery worker) (articles 58–59; Annex I). Workers can receive tips where this is enabled in the digital platform (article 61). Increases to basic wage levels during the term of the agreement are to be in line with inflation levels (article 65). Delivery personnel are provided with a corporate uniform, a backpack/box, a mobile phone, and (by agreement) a company vehicle or compensation for providing their own vehicle to make deliveries (articles 51–52).

Workers’ personal data and digital rights are protected in articles 67–68, including:

the right to disconnect outside working hours;
the right to privacy (except in respect of data on company-provided digital devices);
information-provision and proportionality in the use of company video surveillance and sound recording systems;
adherence to legal rules on the use of geolocation systems; and
establishment of an Algorithm Committee made up of two representatives appointed by the employer’s side and two by the employees’ side, to oversee the operation of AI/algorithmic decision-making that impacts on working conditions or employment (with non-discrimination and human supervision of such decisions to be ensured by the company).

Further, workers must be informed if they are conversing about work issues with a chatbot or a person; all such conversations must be kept for up to three months; and no chatbot conversations can be used to punish a worker.

Occupational safety and health (OSH) has “absolute priority” for delivery staff (article 43), including through collaboration with employees, restaurants and local authorities; and through a health and safety committee (article 49). Personal protective equipment (PPE) is provided by the company to employees for the performance of their duties (article 44). OSH training is provided to all staff, covering, for example, road safety and first aid (articles 45–46). The company agrees to take out a collective accident insurance policy to cover employees in the event of death or permanent and total incapacity due to a work-related accident (article 50).56

The collective representation and participation rights of workers under the Spanish Constitution, the Workers’ Statute and the Organic Law on Trade Union Freedom are recognized in article 69. Trade unions and their delegates are recognized by the company in articles 70–71.

Switzerland

The Swiss Media and Communication Union (Syndicom) finalized a collective labour agreement with the food delivery platform Smood in May 2022 covering around 1,200 couriers, following a five-week strike by couriers in 11 cities (WageIndicator.org 2022).57 The agreement operates from 1 October 2022 to 31 December 2024, with renegotiation to commence within six months of expiry (article 4). It applies to delivery personnel (“employees”) and Smood SA “within the framework of an individual employment contract within the meaning of art.319 ff CO [Federal Act of 30 March 1911 on the Amendment of the Swiss Civil Code]” (article 1.1). Employees are engaged under employment contracts that include basic provisions (such as salary, job title) with reference to the more detailed provisions of the collective agreement (article 2.1). Employees have a probationary or trial period of three months (article 2.2) and are engaged permanently unless the contract provides for a fixed term (article 2.3).

Working hours are the subject of detailed regulation in articles 2.5 and 2.6, including:

normal average weekly working hours of 42 for full-time employees (2,192 hours yearly), with normal hours designated as between 7.00 a.m. and midnight (article 2.5.1);
breaks of between 15 and 60 minutes after more than five/more than nine hours’ work (article 2.5.3);
overtime compensated either with leisure time or a pay premium of 25 per cent (article 2.5.4);
a minimum assignment duration of two hours, and at least four hours of work per week guaranteed (article 2.6).

Additional payments and other rules apply in relation to work on Sundays, public holidays and at night (midnight to 7.00 a.m.) (article 2.7). Annual leave of 25 days per year is provided for employees up to 20 years of age, while 20 days of annual leave is provided for those 20 and above (with holiday payments) (article 2.9.1). The agreement includes provisions for various other forms of leave including maternity and paternity leave (article 2.11.1), paid absences for various other reasons, such as the death of or caring for family members (article 2.11.2), and unpaid leave (article 2.11.3).

The minimum basic salary for employees from 1 October 2022 is CHF20.56 (gross) per hour, plus holiday allowances (for those paid on an hourly basis) and company bonuses (article 2.14.2). Certain expenses are to be reimbursed to employees under article 2.4, including private vehicle expenses (for cars, calculation provisions are detailed in the Annex to the agreement).

Any party to the agreement can request negotiations on adjustment of salaries and allowances by 30 September (with effect from 1 January the following year), with the criteria to be taken into account including “the limits of the employer’s economic possibilities, productivity, market prospects” and changes in living costs (article 3.6).

Article 2.15 deals extensively with incapacity to work, including the employee’s obligation to provide medical evidence if unable to work due to illness or accident for more than two days (article 2.15.1) and the continuation of salary – supplemented by insurance benefits – in the event of illness (article 2.15.2). The employer commits generally to protecting employees’ health and to preventing occupational accidents and diseases (article 2.18).

Employees are subject to several obligations under the agreement, including to refrain from working for a competitor during working hours and to maintain the confidentiality of company information during the employment and after its termination (article 2.17.1). Employees must provide the employer with all personal data necessary for the employment relationship, and the employer guarantees the protection of such data, although the employer may use electronic systems for safety and security monitoring (article 2.19).

Employment can be terminated by either party giving the specified period of written notice, which varies depending on length of service and the reasons for termination (articles 2.20.2, 2.20.3).

The parties to the agreement “are committed to labour peace and, to this end, waive any conflict measures” (that is, industrial action) in relation to any matters whether or not regulated by the agreement (article 3).58 Trade union representatives have varying rights of participation in company decisions under articles 3.2 and 3.3. A Joint Committee is established under article 3.4, with two employee and two management representatives. The Joint Committee is to meet at least three times per year, and has functions including the interpretation and application of the agreement.

Agreements dealing with limited aspects of the platform-worker relationship

Austria

The Vida trade union concluded a collective agreement with the Professional Association of the Freight Transport Industry for bicycle delivery riders in January 2023. This agreement regulates the number of weekly working hours, the distribution of hours and the breaks to be taken during and between working days. In addition, the agreement provides for the determination of the minimum hourly, weekly and monthly wages (ILO 2024, 86).59

Specifically, the agreement provides:

standard working time (40 hours per week on 5 days per week), maximum working time (48 hours per week) and normal daily working time (maximum of 10 hours);
compensation for night work (a 100 per cent surcharge is due which must be paid in cash unless otherwise agreed);
overtime pay;
Sunday work (a supplement of 50 per cent of the normal hourly wage);
use of own bicycle and smartphone;
protections in case of illness, accident or pregnancy;
rest periods (after the end of daily working hours, all employees must be granted an uninterrupted rest period of 11 hours and the worker is entitled to an uninterrupted rest period of 36 hours in each calendar week); and paid holidays an hourly wage (€10.00), a weekly wage (€400) and a monthly wage (€1,730) and provides for a Christmas bonus.

Colombia

An agreement was reached in September 2023 between the Union of Digital Platform Workers (UNIDAPP) and Rappi S.A.S., applying to over 150,000 couriers registered in the “Soy Rappi” app to deliver food and consumer goods.60 The agreement was negotiated over a six-month period with mediation assistance from the Ministry of Labour. It provides benefits such as a reduction in the maximum number of order notifications to couriers to improve their safety, a review of the systems used to deactivate couriers’ accounts, and monthly meetings between the trade union and a body described as the Courier’s Ombudsman.61

Cyprus

The trade unions PEYO, SEK and DEOK had been seeking a sectoral collective agreement to cover workers engaged by food and beverage delivery platforms, prompting negotiations facilitated by the Ministry of Labour from early 2023. In May 2024, a proposed collective agreement reflecting the outcomes of mediation by the Ministry was provided to the trade unions and to fleet management companies in relationships with food delivery platforms. It included provisions for the engagement of delivery workers under employment contracts, including wages above the level of national minimums, employee welfare funds and overtime regulation (Adamou 2024). The collective agreement was signed on 25 July 2024. According to SEK, inter alia, the agreement provides for:

the regulation of salaries and allowances;
working hours of 40 hours per week, distributed over six days;
ATA (cost of living allowance) with the indexation allowance (11.17 per cent) incorporated in wages and salary adjustment from 1 January 2025; and
provision to employees of equipment (helmet, jacket, summer jerseys, transport box, box mounting base) (Sigmalive 2024).

France

The ARPE, established by the Ordinance No 2021-484 (see Section 2 above), has assisted workers’ representatives and platforms in the negotiation and conclusion of several collective agreements in the VTC sector (ridesharing/chauffeured transport and delivery vehicles):

Minimum payments per trip (18 January 2023).
Method and means of negotiation (18 January 2023).
Transparency of platform operations and conditions for suspension or deactivation of services (19 September 2023), including information rights about deactivation decisions and a right to compensation for drivers whose accounts have been unfairly suspended.
Improvement of incomes of independent VTC drivers (19 December 2023).
Strengthening freedom of choice of rides for VTC drivers (19 December 2023).

The last of the above agreements was entered into between the employer body Association des plateformes d’indépendants (Api) and the Association des VTC de France (AVF)/Confédération Française des travailleurs chrétiens (CFTC) trade unions on 19 December 2023.62 It recognizes the freedom of VTC drivers to use a ride-hailing platform to organize their activities and the desirability of greater predictability of income, through “an approach aimed at improving workers’ rights, particularly by giving them more control over how they use ride-hailing platforms” (preamble). Article 1 of the agreement is the main substantive provision, requiring platforms to “implement a system that allows each operator to choose a minimum income per kilometre of a ride, from which they wish to receive preferred ride proposals through the platform”. These preferences shall “apply, for each ride, to the income divided by the distance previously estimated by the platform … between the client’s pick-up location by the driver and the client’s drop-off 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 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

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).

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 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 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.

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:

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);
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
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:

is provided, at least in part, at a distance through electronic means;
is provided at the request of a recipient of the service; and
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).

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.

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.

Conclusion

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.

Summary of higher level court decisions

United Kingdom

The UK Supreme Court case Independent Workers of Great Britain v. Central Arbitration Committee & another85 originated as an application by the Independent Workers Union of Great Britain (IWGB) to the Central Arbitration Committee (CAC) for an order requiring Deliveroo to recognize the trade union and engage in collective bargaining with respect to Deliveroo Rider members of the trade union. Trade union recognition and collective bargaining in the United Kingdom is regulated by the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA). Under the TULCRA, trade unions can apply for recognition orders from the CAC where the relevant members on whose behalf the trade union is seeking to bargain are “workers” within the meaning of section 296 of the Act. For this purpose, a “worker” is an individual who works or normally works or seeks to work under a contract of employment (limb a), or who is “under any contract whereby he undertakes to do or perform personally any work or services for another party to the contract who is not a professional client of his” (limb b). The IWGB argued before the CAC that the Deliveroo workers were limb b “workers” who undertook to personally perform delivery work. The CAC held that the Deliveroo riders were not workers under the TULCRA, finding that an unfettered contractual right of the workers to use a substitute to perform the delivery work meant that those workers had not undertaken to perform the work personally.86 A further argument by the IWGB that the right of the workers to form a trade union and engage in collective bargaining was protected by article 11 of the European Convention on Human Rights (ECHR) was also rejected by the CAC.87

The IWGB sought judicial review of the CAC decision, which was granted, but only in respect of the argument that the CAC conclusion with respect to the scope of article 11 of the ECHR was incorrect.88 The appeal only proceeded on this basis and did not consider whether the CAC decision on the scope of section 296 of the TULCRA was correct. The appeal was dismissed at first instance by the High Court,89 and by the Court of Appeal.90 Finally, it was heard by the Supreme Court, who delivered their judgment on 21 November 2023, dismissing the appeal.91

Upon its review of the facts, the case law of the European Court of Human Rights and analogous case law, the UK Supreme Court derived the following principles in respect of the coverage of article 11 of the ECHR. First, that the benefit of the right to form and join a trade union under article 11 is conferred on persons in the context of an employment relationship. Second, that the concept of an employment relationship within article 11 “is an autonomous concept that must apply across all members of the Council of Europe and does not depend on the definitions of workers or employees used in domestic law”.92 Third, that in determining the existence of an employment relationship within article 11 the court should consider the factors set out in the ILO Employment Relationship Recommendation, 2006 (No 198).93 Fourth, that the correct approach to reach a determination on this issue requires the application of a multifactorial test that focuses on the practicalities of the relationship and how it operates in reality.

In respect of the Deliveroo riders in this case, the Supreme Court considered that the unfettered power of the riders to use substitutes to perform the work was “totally inconsistent with the existence of an obligation to provide personal service which is essential to the existence of an employment relationship within article 11”.94 Therefore, the Deliveroo riders were not relevantly in an employment relationship for the purposes of securing the right to form and join trade unions under article 11. The Court further concluded that, even had the Deliveroo riders relevantly been in an employment relationship under article 11, in its view article 11 did not confer a right to compulsory collective bargaining. As such, in the Supreme Court’s view, even if the workers concerned had been “workers” within the meaning of the Act, their exclusion from a compulsory bargaining scheme would not be inconsistent with the rights guaranteed under article 11 of the ECHR.

Netherlands

In 2018, the Netherlands trade union Federatie Nederlandse Vakbewging (FNV) sought a declaration in the Subdistrict Court of Amsterdam that delivery drivers engaged by Deliveroo Netherlands BV were engaged as employees under article 7:610(1) of the Dutch Civil Code.95 Article 7:610 relevantly defined an employment contract “as the agreement whereby one party, the employee, undertakes to perform work in the service of the other party, the employer, for a certain period of time in return for remuneration”. The case was brought after Deliveroo Netherlands changed the model on which it engaged workers from fixed-term employment to contracts described as being for services.

On 15 January 2019, the Subdistrict Court of Amsterdam granted the declaration as sought by FNV (case 7044576 CV ECPK 18-14763), and this decision was affirmed by the Amsterdam Court of Appeal on 16 February 2022 (case 200.261.051/01). Deliveroo subsequently lodged an appeal to the Supreme Court of the Netherlands, but also ceased trading within the Netherlands at the end of 2022. The decision of the Supreme Court was published on 24 March 2023, and affirmed that the Deliveroo workers had been employees of Deliveroo.

In respect of the definition of employment, the Supreme Court observed that the freedom to accept or reject work assignments through the Deliveroo app did not of itself preclude the existence of an employment contract, nor did the ability of workers to use substitutes to undertake delivery work where such substitution was impractical.96 The Supreme Court could find no error in the decision of the Court of Appeal, or in respect of its conclusion that the manner in which Deliveroo controlled the work performed by the workers indicated the existence of a relationship of authority.

New Zealand

In 2022, the New Zealand trade union E tū brought an action in the New Zealand Employment Court seeking a declaration that four drivers working for the platform company Uber were employees under section 6 of the Employment Relations Act 2000. Under the Employment Relations ActAn employee for the purposes of the ER Act is a person “employed by an employer to do any work for hire or reward under a contract of service”. In determining whether a person is hired under a contract of service, a court is directed to determine “the real nature of the relationship”, considering all relevant matters including any matters which indicate the intentions of the persons, but the labels used in the agreement as to the status of the persons are not decisive. The Employment Court held that the drivers were employees of Uber when carrying out driving work for the company.97 On appeal by Uber, on 26 August 2024, the Court of Appeal agreed that the four workers were employees of Uber at the times that they were logged on to the Uber driver App.98

The Court of Appeal noted (at para. 9) that section 6 of the Employment Relations Act requires an assessment of the realities of the parties’ mutual rights and obligations, as found in all written and oral contractual terms, and how those terms diverge from the way in which the relationship operates in practice.99 The real nature of the relationship must then be assessed by reference to the indicia of a contract of service (employment), which include the extent of the principal’s control of the worker, the degree to which the worker is integrated into the business of the hirer, and the “fundamental test” of whether the worker is carrying on their own independent business. The Appeal Court was satisfied that on the proper application of the test, the four drivers were employees of Uber. This was because the real nature of the relationship did not match the contractual rights and obligations contained within the standard form Uber contract used in New Zealand, which referred to drivers as independent providers of “peer to peer passenger transportation services” and expressly stated that the drivers were neither employees nor independent contractors. Instead, the Court referred to many of the provisions in the contract as “window dressing” designed to point away from employee status, and that

do not reflect the realities of the relationship. … Uber has structured the overall relationship, and reserved to itself powers of unilateral control over the various documents with contractual force and over the day-to-day operation of the relationship, in a manner and to an extent that render ineffective many of the rights that appear to be reserved to drivers on the face of the agreement.100

The Court then considered the factors of control, business integration and own-account business by reference to the realities of the relationship between Uber and the drivers. The Court considered that while drivers retain a high level of control over when they log onto the Uber App, Uber exercises a high degree of control while they are logged on, which is consistent with an employment relationship. In respect to business integration, while the drivers did not wear livery or signage and provide their own vehicles, the drivers are “the public face of the Uber brand”.101 Finally, the Court found that it was “tolerably clear that drivers are not in business on their own account, making the types of decisions that an independent business operator would normally make, and bearing the risks and enjoying the returns of those choices”.102

Republic of Korea

TADA is a ride sharing labour platform that operates in the Republic of Korea.103 Workers are engaged through intermediaries, but the allocation of work to each driver is controlled by the TADA app, which is owned and operated by the company SOCAR. In July 2024, the company moved to reduce the number of workers engaged through the platform, with some drivers being given notices of termination from their roles as “freelance” drivers. One driver challenged his termination in the Seoul Regional Labour Relations Commission as an unfair dismissal under the Labor Standards Act 2012. After conflicting decisions by the Seoul Regional Labour Relations Commission, the National Labor Relations Commission, the Seoul Administration Court (ILAWN 2022) and the Seoul High Court,104 the matter was heard by the Supreme Court of Korea, which, in a judgment delivered on 25 July 2024, found the driver to be an employee of SOCAR and to have been dismissed in breach of the Labor Standards Act.105

The decision centred on the tests for employment status developed by the Supreme Court of Korea in 2006, which require a court to look beyond the express terms of the contractual relationship to the actual circumstances of the engagement. In doing so, factors are considered such as who decides the work to be done, who has the right to designate times and places of work, the extent of supervision and direction, ownership of material and tools, along with exclusivity of work and the continuous nature of the work (Bae and Lee 2024). In applying these factors, the Supreme Court found that engagement of the worker through an intermediary did not rule out the existence of a contract between the worker and SOCAR. Instead, in this case, SOCAR had delegated part of its right to supervise the workers to the intermediary (Bae and Lee 2024). In respect of control, the court considered that the worker was subject to SOCAR-dictated rules that imposed a degree of control that was comparable with an employee.

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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.

Fair Work Act, section 15L.

Fair Work Act, section 15P.

Fair Work Act, sections 536JY–536JZ. See sections 536KAA–536KAE on the consultation process the FWC must undertake before making an MSO, and see the minimum standards objective in section 536JX, which guides the FWC in the exercise of its powers in relation to MSOs.

Fair Work Act, section 536KL. Terms requiring human review of automated decisions by a platform could be included in an MSO, provided they are not excluded by section 536M (as per the Explanatory Memorandum to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023, para. 1232).

Fair Work Act, section 536KMA.

Fair Work Act, section 536KM.

Fair Work Act, section 536MK(2). Only one platform can be party to a collective agreement (there can be no multi-platform agreements) (as per the Explanatory Memorandum to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023, para. 1382).

Fair Work Act, section 536MR(3)(e). See also section 536JN(4) (term of collective agreement has no effect to the extent it is detrimental to an employee-like worker when compared to an MSO or other laws).

Fair Work Act, section 536MX.

Fair Work Act, section 536ML.

Fair Work Act, section 536MM. This enables the FWC “to maintain broad oversight of the [negotiation] process if required” (as per Explanatory Memorandum to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023, para. 1392).

That is, all workers performing work under services contracts for the digital labour platform in the 28-day period before the giving of the notice (Fair Work Act, section 536MN).

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.

Fair Work Act, section 536MQ(1)–(2), effectively imposing a minimum 30-day negotiating period for these collective agreements.

Fair Work Act, section 536MQ(3).

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).

Fair Work Act, section 536JN(1).

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)).

Fair Work Act, section 536MS(3A).

Supplementary Explanatory Memorandum to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023, para. 59.

Fair Work Act, section 536JJ (see also section 536JB). Note also the provisions relating to varying and terminating collective agreements (sections 536MT–536MW).

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.

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).

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.

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”.

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.

Circular of the General Office of the Ministry of Human Resources and Social Security of 8 November 2023, preamble.

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.

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).

The full formal name is the Guidelines for Protecting the Rights and Interests of Workers in New Forms of Employment.

Rest and Remuneration Guidelines, article 2.

Labour Disputes Guidelines, article 1.

Labour Disputes Guidelines, articles 4–9.

Labour Disputes Guidelines, articles 10–11.

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).

Labour Disputes Guidelines, article 12.

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.

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”.

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.

CEACR, “Observation – Right to Organise and Collective Bargaining Convention, 1949 (No. 98) – France”, 2023.

CEACR, “Observation – Convention No. 98 – France”, 2023.

Explanatory Statement, Platform Workers Bill 2024, pages 234–235.

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.

The amendments were effected by the Employment Relations (Film Production Work) Amendment 2010 (NZ).

The Screen Industry Workers Act 2022 took effect on 30 December 2022.

Concerning strike action by self-employed persons and the potential impact of the common law, see McCrystal 2016; Bogg 2022: 35–36

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/.

The full text of the agreement (in Italian) is available at: https://www.bollettinoadapt.it/wp-content/uploads/2024/03/Accordo-Assogrocery.pdf.

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.

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).

Information about the agreement (in Spanish) is available at: https://www.ccoo-servicios.es/archivos/Acuerdo%20Sindicatos%20JUST%20EAT(1).pdf and https://www.ccoo-servicios.es/html/53652.html.

The MOU also covers the company’s administrative and structural personnel (see, for example, articles 17–18); those aspects of the MOU are not considered here.

However, the MOU can be denounced by either party giving the other party one month’s notice, in which case it remains in force until replaced by a new agreement.

In addition, articles 26 and 27 provide for agreement to be reached for performance of compulsory and/or voluntary additional hours of work by delivery personnel.

Article 73 provides for a temporary incapacity allowance to be paid by the company, supplementing social security payments for workers affected by work accidents or occupational diseases.

The full text of the agreement is available at: https://syndicom.ch/fileadmin/user_upload/Web/Website/Landingpage/Dokumente/220517_Smood_GAV__e.pdf.

The parties also undertake in article 3 to ensure collaboration between employees and management, including to resolve individual problems, and to engage in good faith dialogue without delay to resolve conflicts.

The full text of the agreement (in German) is available at: https://www.wko.at/kollektivvertrag/kollektivvertrag-fahrradboten-2023#heading_i.

All information about the agreement is derived from an English translation of a Colombian Labor Ministry’s press release (Colombia, Ministry of Labour 2023).

The Courier’s Ombudsman (or Defonsoría al Repartidor) established by Rappi has since been criticized by couriers, on the basis that it lacks autonomy from the company and therefore cannot act effectively as a neutral mediator in disputes relating to the matters within its jurisdiction (gender issues, support for migrants, general well-being and resolving problems with the app) (Foggin and Martins 2024).

Based on an English translation of the Agreement of 19 December 2023 on “Strengthening freedom of choice of their rides by VTC drivers using a ride-hailing platform”. The full text of the Agreement (in French) is available at: https://www.arpe.gouv.fr/wp-content/uploads/2024/02/Accord-choix-des-courses-19-Decembre-2023.pdf.

Information about the 2024 agreement (in Norwegian) is available at: https://www.fellesforbundet.no/aktuelt/nyheter/2024/lonnsokning-i-foodora/.

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).

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.

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.

Deliveroo–GMB Voluntary Partnership Agreement (2022).

TWU and DoorDash, Statement of Principles to Ensure Safety and Fairness for Workers in the On-Demand Economy, 9 May 2022.

Uber and TWU, Statement of Principles and Future Commitments for Workers in the On-Demand Economy, 28 June 2022.

TWU and Menulog, Charter of Principles and Ongoing Commitments to Ensure Safety and Fairness for On-Demand Delivery Couriers, March 2023.

Competition and Consumer Amendment (Competition Policy Review) Act 2017 (Cth).

Explanatory Memorandum, Competition and Consumer Amendment (Competition Policy Review) Bill 2017 (Cth) [9.11].

ACCC, Competition and Consumer (Class Exemption – Collective Bargaining) Determination 2021 created pursuant to Competition and Consumer Act 2010 section 95AA.

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.

ACCC, Competition and Consumer (Class Exemption – Collective Bargaining) Determination 2021, clauses 8–11.

ACCC, Competition and Consumer (Class Exemption – Collective Bargaining) Determination 2021, clause 13.

Available here: https://www.accc.gov.au/public-registers/class-exemptions-register/collective-bargaining-class-exemption-0 (accessed 16 August 2024).

Case C-67/96, [1999] ECR 1-5751.

Case C-413/13, FNV Kunsten Informatie en Media ECLI :EU :C :2014 :2411.

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).

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).

Gigpedia, “Court Cases”.

Case no. [2023] UKSC 43.

Independent Workers Union of Great Britain v. RooFoods Limited T/A Deliveroo (2017) TUR1/985(2016), 14 November 2017, paras 98–102.

Independent Workers Union of Great Britain v. RooFoods Limited T/A Deliveroo (2017) TUR1/985(2016), 14 November 2017, para. 104. The text of the European Convention of Human Rights is given domestic effect in the United Kingdom through Schedule 1 to the Human Rights Act 1998.

Independent Workers Union of Great Britain v. Central Arbitration Committee [2018] EWHC 1939 (Admin).

Independent Workers Union of Great Britain v. Central Arbitration Committee and RooFoods Limited T/A Deliveroo [2018] EWHC 3342 (Admin).

Independent Workers Union of Great Britain v. Central Arbitration Committee and RooFoods Limited T/A Deliveroo [2021] EWCA Civ 952.

Independent Workers of Great Britain v. Central Arbitration Committee & another [2023] UKSC 43

Independent Workers of Great Britain v. Central Arbitration Committee & another [2023] UKSC 43, para. 61.

On this point, the Court referred to the adoption of these factors in Sindicatul “Pastorul Cel Bun” v. Romania [2014] IRLR 49.

Independent Workers of Great Britain v. Central Arbitration Committee & another [2023] UKSC 43, para. 69.

The facts of the case are taken from Deliveroo Netherlands BV v. Federatie Nederlandse Vakbewing [2023] 21/02090, Supreme Court of the Netherlands, March 24.

Deliveroo Netherlands BV v. Federatie Nederlandse Vakbewing [2023] 21/02090, paras 3.3.4–3.3.5.

E Tū Incorporation and First Union Incorporated v. Rasier Operations BV and Ors [2022] NZEmpC 192.

Rasier Operations BV and Ors v. E Tū Incorporation and First Union Incorporated [2024] NZCA 403.

Rasier Operations BV and Ors v. E Tū Incorporation and First Union Incorporated [2024] NZCA 403, para. 9.

100

Rasier Operations BV and Ors v. E Tū Incorporation and First Union Incorporated [2024] NZCA 403, para. 204.

101

Rasier Operations BV and Ors v. E Tū Incorporation and First Union Incorporated [2024] NZCA 403, para. 225.

102

Rasier Operations BV and Ors v. E Tū Incorporation and First Union Incorporated [2024] NZCA 403, para. 229.

103

The facts, background and findings of this dispute are taken from Bae and Lee (2024).

104

Seoul High Court 21/12/2023, (2022 Nu 56601) (in Korean).

105

Supreme Court of Republic of Korea, Case No 2024DU32973 (in Korean).

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