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Anna Ginès, ESADE professor: “We must seek a legal ‘fit’ for workers using digital platforms”

Miguel Rodríguez-Piñero, Full Professor of Labour and Social Security Law at Universidad de Sevilla: “The present proliferation of digital ‘free-riders’ is not the result of technology but rather the expression of labour market trends”

“The digital platform-based economy outsources the services of self-employed professionals, in most cases eluding the protection normally afforded by Labour Law”, said Anna Ginès — Professor of Law and Director of ESADE’s Institute of Labour Studies (IEL) — at a Round Table held this morning. This is the setting in which ‘free riders’ operate, whereby self-employed workers meet demand made for their services by various digital platforms. In Ginès’ view, “We need to find a legal framework that determines whether these workers are employees or are self-employed so that we can regulate their working conditions, protection, and basic rights”. This was also the main conclusion of the Round Table, which Ginès moderated. It was titled Work in Digital Platforms: Challenges and Opportunities. The Round Table brought together various experts at ESADE Madrid. The participants explained, among other things, how “some of these digital companies have become far removed from the nature of the collaborative economy (contact, free provision of services) to create fully-fledged business models”.

Between Labour Law and market forces

Henar Álvarez, Professor of Labour and Social Security Law at Universidad de León, backed up this statement with figures: “In Spain alone, over two million people have provided services to these companies and for over 700,000 of these workers, it is their main job”. “We find ourselves in a grey area when it comes to the nature of employment”. She then went on to analyse the cases of Deliveroo and Glovo (both companies have been the object of several sentences based upon varying interpretations of what does or does not constitute self-employment). “Similar cases will crop up in the future”, forecast Álvarez. “This is because on the one hand, such firms are very quick on their feet — they can easily change their modus operandi to escape the clutches of labour legislation. On the other, it is because there are many business models that have yet to gain traction but will shortly do so — for example, platforms for small digital jobs or those fostering voluntary work”, she added.

Miguel Rodríguez-Piñero, Full Professor of Labour and Social Security Law at Universidad de Sevilla stressed that “The debate on the employment situation of these workers is conditioned by the present context, which is not really the product of technology (or only so in part) but is rather the expression of labour market trends”. Rodríguez-Piñero, added that “The digital platform-based economy has put the spotlight on small sectors that were largely ignored hitherto. I therefore wonder whether we are ready to regulate them all”. “Furthermore, the solution not only lies in finding the right kind of contractual arrangement, one also has to ensure that this kind of employment makes market and career development sense, regardless of whether one is speaking of permanent jobs, temporary jobs, or freelancing”, he stressed.

Misericordia Borràs, Partner in the Labour Law field, Garrigues [business law firm], noted that “One of the priorities is to ensure that technological advances and the paradigm shift do not harm individuals’ standard of living and working conditions”. “One should bear in mind that there is often a confluence between workers and businessmen and that Spain’s Statute of Self-Employed Workers does not fit those working in the so-called ‘Gig Economy’ [freelancing in today’s digital world]”. Borràs considered that, “Traditional structures do not meet new market needs”. This meant building new frameworks “which would be a halfway house between employee status and being self-employed”. She added “The role of trade unions should be reviewed in this context”. Borràs concluded, “The proposals must take the special employment relationship into account in this new digital setting. They must tackle issues from the perspectives of part-time employment, a flat Social Security contribution rate, and trade contracts”.