Collective rights of platform workers: The role of EU law
| Date | 01 August 2020 |
| Author | Tamás Gyulavári |
| Published date | 01 August 2020 |
| DOI | 10.1177/1023263X20932070 |
| Subject Matter | Articles |
Article
Collective rights of platform
workers: The role of EU law
Tam´
as Gyulav´
ari*
Abstract
Platform work is a new umbrella concept which covers a heterogeneous group of economic
activities performed through digital platforms. Effective collective rights and bargaining would be
essential for platform workers due to their vulnerable employment status. Yet collective organi-
zation of platform workers is troublesome, so trade unions face difficulties. The protection of the
labour law directives is limited by their personal scope, which may be gradually expanded by the
broad ECJ interpretation of the ‘worker’ concept. The effective right to collective bargaining would
be particularly important, but it is restricted by EU antitrust rules with an exemption only for
employees. In the last decade, the European Court has moved towards a wider personal scope of
collective bargaining by interpreting the concept of ‘worker’. The recent FNV Kunsten decision used
the notion of ‘false self-employed’ to go beyond the national concept of ‘employee’, but the wide
interpretation of ‘worker’ shall be based on the need and necessity of employment protection
deriving from economic dependency. As an alternative, the Gebhard formula may be invoked to
grant the right to collective bargaining for platform workers.
Keywords
Platform work, collective bar gaining, EU antitrust law, noti on of worker, false self-emplo yed,
Gebhard formula
Platform work is a relatively new umbrella concept covering a heterogeneous group of economic
activities carried out through digital platforms and applications (apps). Collective rights are par-
ticularly important in this area due to the extremely vulnerable employment position and status of
platform workers. Therefore, this article seeks to evaluate EU law and particularly ECJ case law
regarding collective rights of platform workers. Since the role of EU law will be in focus, thus, the
* Professor and Chair of Labour Law, P´
azm´
any P´
eter Catholic University, Budapest, Hungary
Corresponding author:
Tam´
as Gyulav´
ari, Professor and Chair of Labour Law, P´
azm´
any P´
eter Catholic University, Budapest, Szentkir´
alyi u. 28, 1088
Hungary.
E-mail: gyulavari.tamas@jak.ppke.hu
Maastricht Journal of European and
Comparative Law
2020, Vol. 27(4) 406–424
ªThe Author(s) 2020
Article reuse guidelines:
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DOI: 10.1177/1023263X20932070
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MJ
limited authority provided by Article 153 of TFEU (ex 137 EC) narrows the potential range of
rights to information and consultation through employee representations and the right to collective
bargaining.
The first section will analyse the current limitations and obstacles regarding collective
organization of platform workers and their implications on the right to information and
consultation. Platform work is a complex form of work, where workers and trade unions face
serious hurdles, deriving from the special nature of platform work organization and the
traditional model of the trade union movement. Information and consultation rights are in
principle guaranteed by some of the labour law directives, but their personal scope was
designed for those working in an employment relationship. Since EU labour law is slowly
moving towards a wider personal scope of labour standards in the directives, therefore , the
EuropeanCourthasbeenworkingonabroadinterpretation of the notion of ‘worker’ going
beyond the national concept of ‘employee’. Despite these difficulties, some positive examples
and techniques will be mentioned, which may promote effective organization and information
rights of platform workers.
In the field of collective rights, collective bargaining has particular relevance, as collective
agreements are the suitable means of improving working conditions, diminishing structural
inequalities, balancing competition in the labour market and filling legislative gaps. Thus, the
second section describes the EU law limitations of the personal scope of the right to collective
bargaining. The mismatch between EU antitrust law and EU labour law results in the exclu-
sion of all self-employed workers, including most platform worke rs, from the right to col-
lective bargaining. This legal problem may be solved by the broad interpretation of the notion
of ‘worker’, which has partly been the case in the recent FNV Kunsten decision
1
of the
European Court. The possible interpretations and also the prospects of E CJ case law will
be analysed in this regard.
At the same time, there is another way that the right to collective bargaining is ensured to
platform workers: as a lawful derogation to Article 101 TFEU. As an alternative solution, the
Gebhard formula may be used by the ECJ to scrutinize the legitimacy of national measures liable
to hinder the exercise of collective bargaining as a fundamental freedom guaranteed by the
Treaties. As for the formula, collective bargaining shall pursue a legitimate objective justified
by overriding reasons of public interest, should be suitable for securing the attainment of the
objective which they pursue, and shall not go beyond what is necessary in order to attain it
(principle of proportionality). The Gebhard formula would free this legal issue from all the
disadvantages that inevitably adhere to the case-by-case development of a wide concept of
‘worker’.
As a whole, this article seeks to explore the ways in which EU law and specifically ECJ case law
can improve the access of platform workers to collective rights and particularly to the right to
collective bargaining. The underlying question is whether expanding the existing conceptual
framework of EU labour law to platform work may make a real difference regarding their collec-
tive rights, and, if so, how this judicial process could be developed.
Gyulav´
ari 407
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