Legal amendments will not only recognise ‘riders’ as employees but require algorithm transparency from platforms generally.
After arduous negotiations, the Spanish government and the social partners reached an agreement on the labour rights of people working for digital platforms on March 9th.
The agreement aims to establish the employment status of those engaged in the delivery or distribution of any consumer product or merchandise via a digital platform. It does so on two basic premises: a presumption of employment and algorithm transparency.
The former comes as no surprise, as it simply implements what has already been recognised by several national courts and the Spanish Supreme Court itself: ‘riders’ ought to be considered workers. This presumption of employment for platform-mediated delivery workers will be implemented through amendments to the current Workers’ Statute incorporating an additional provision (23), recognising ‘riders’ as workers and thereby entitling them to full workers’ rights—including access to the social protection they currently lack.
Ground-breaking
Whereas recognition of employment status for ‘riders’ was a given after last September’s Supreme Court ruling, the second premise—algorithm transparency—is ground-breaking. This requires a modification of article 64 of the Workers’ Statute, on the right of workers to information, making it mandatory for platforms to inform workers’ legal representatives about the mathematical or algorithmic formula determining their working conditions.
Accordingly, digital platforms will have to make available to trade unions an algorithm, or any artificial intelligence of sorts, which may have an impact on such conditions—including individuals’ access to, and maintenance of, employment and their profiling. This right to information is granted to everyone working through a platform—not only ‘riders’—and thus the transparency requirement applies to all digital platforms equally.
The minister for employment and the social economy, Yolanda Díaz—now third vice-president of the government after the departure of the Podemos leader, Pablo Iglesias, while retaining her portfolio—stressed that this transparency would enable the neutralisation of algorithmic punishments, penalties for performance and bias.
The amendments will be presented in a royal decree and will give the platforms three months to regularise their workers—not to recognise the employment relationship but rather providing ‘time for adaptation and deployment of the operating systems, also in access to information algorithms, due to this change in the regulation’, as the minister put it.
Shortcomings
For all its strengths, the envisaged ‘rider’ law however comes with shortcomings. For one, the presumption of employment, derived from the Supreme Court ruling, applies only to riders—a small fraction of platform workers. Many performing on-demand services thus remain excluded from the social protections attached to the status of worker.
In addition, platform companies are reluctant to implement these changes and have for weeks been looking into alternatives to avoid having their own fleet of riders. In this vein, while the amendments will put an end to the practice of commercial contracts between the rider and the platform, they still allow the use of subcontracting companies and temporary contracts in the event of demand ‘peaks’. This is, for example, how Just Eat currently operates, though this practice forbids the digital platform from organising and managing the work of the riders.
Without real willingness from the platforms’ side to stop precariousness, court battles will continue—whether so other platform workers eventually gain the status of worker or to tackle the precarity linked to the atypical contracts which are being considered as an alternative.
Win for tripartism
But it has been a win for tripartism and indeed the eighth social-dialogue agreement in Spain in the last 15 months. Backed by the European Trade Union Confederation, which urges the European Union to follow in the country’s footsteps, the two main Spanish trade union confederations, the UGT and CCOO, consider these changes the first step in protecting labour rights in the informal economy. The employers’ association (CEOE)—after some internal disputes—and that for small and medium enterprises (CEPYME) also agreed to the amendments.
CEOE’s support for the agreement has been poorly received by the Association of On-Demand Service Platforms, which brings together platforms such as Deliveroo, Stuart, Glovo and Uber Eats. The association is strongly opposed to the legislative initiative and considers it an attack on basic principles of freedom of enterprise and intellectual property.
Other national courts (as in the UK and the Netherlands) have recently joined the plea to give riders the status of workers but Spain’s legislation is pioneering in giving trade unions access to the platforms’ algorithms. It has, in fact, been submitted to the European Commission as part of one of the structural reforms envisaged in the context of the Recovery and Resilience Plan.
Amid the first-stage social partners’ consultation on improving the working conditions of platform work, for a legislative proposal by the commission expected later this year, the forthcoming ‘rider’ law will put Spain in the regulatory spotlight. The legislative initiative could follow that lead and, based on the Charter of Fundamental Rights of the European Union, include a similar transparency clause opening up algorithms to trade unions with the goal of fighting discrimination (article 21), live up to the right of information for workers (article 27) and improve working conditions (article 31) in platform work.
Ane Aranguiz is a post-doctoral researcher at Tilburg Law School and at the Faculty of Law of the University of Antwerp. She is a lecturer in European labour law at TLS and is currently working on two Horizon 2020 projects: WorkingYP and EuSocialCit.