Labour law

Updates

14 Jul 2017

The Commission for Conciliation, Mediation and Arbitration in South Africa (an independent arbitration body) ruled that Uber drivers are subject to Uber’s control, and, as such, employees. The decision came in favour of a group of drivers who were fired by Uber by deactivating them from the Uber application without reason. According to the Commission, although drivers can choose their working hours, and decide whether to accept, decline, or ignore a request for a ride, Uber controls the manner in which they work, by setting ‘clear standards and performance requirements’. Uber announced it would challenge the decision in the Labour Court.

13 Jun 2017

An administrative law judge for New York State Labor Department has ruled that three former Uber drivers and ‘others similarly situated’ were eligible for unemployment benefits. Although Uber considers its drivers to be self-employed, the judge has reasoned that ‘Uber exercised sufficient supervision, direction, and control over key aspects of the services rendered by claimants such that an employer-employee relationship was created’. One issues that remains unclear in the ruling is the meaning of the term ‘similarly situated’.

11 May 2017

The Advocate General of the Court of Justice of the European Union (CJEU), Maciej Szpunar, has issued a non binding opinion on the case in which the CJEU is asked whether Uber is an information society services provider or a transportation company. Szpunar is of the view that the service offered by Uber cannot be cannot be classified as an information society service, as the service amounts to the organisation and management of a comprehensive system for on-demand urban transport. He therefore recommends that the Court’s answer to the question at hand should be that the service offered by Uber must be classified as a service in the field of transport. Spuzar concludes that Uber is subject to the conditions under which non-resident carriers may operate transport services within EU member states.

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It is frequently mentioned that the Internet is changing the way in which we work. ICTs have blurred the traditional routine of work, free time, and sleep (8+8+8 hours), especially in multinational corporation working environment. It is increasingly difficult to distinguish where work starts and where it ends. These changes in working patterns may require new labour legislation, addressing such issues as working hours, the protection of labour interests, and remuneration.

While this phenomenon requires broader elaboration, the following aspects are of direct relevance to Internet governance:

  • The Internet introduced a high level of temporary and short-term workers. The term ‘permatemp’ was coined for employees who are kept for long periods on regularly reviewed short-term contracts. This introduces a lower level of social protection of the workforce.
  • Teleworking is becoming increasingly relevant with the further development of telecommunications, especially with broadband access to the Internet.
  • Outsourcing to other countries in the ICT service sector, such as call centres and data processing units, is on the rise. A considerable number of these activities have already been transferred to low-cost countries, mainly in Asia and Latin America.

In the field of labour law, one important issue is the question of privacy in the workplace. Is an employer allowed to monitor employees’ use of the Internet (such as the content of e-mail messages or website access)? Jurisprudence is gradually developing in this field, with a variety of new solutions on offer.

In France, Portugal, and Great Britain, legal guidelines and a few cases have tended to restrict the surveillance of employee e-mail. The employer must provide prior notice of any monitoring activities. In Denmark, courts considered a case involving an employee’s dismissal for sending private e-mails and accessing a sexually oriented chat website. The court ruled that dismissal was not lawful since the employer did not have an Internet use policy in place banning the unofficial use of the Internet. Another rationale applied by the Danish court was the fact that the employee’s use of the Internet did not affect his working performance.

An additional point of concern arising with the ever-growing use of social networking is the delimitation between private and working life. Recent cases showed that employees behaviour and comments on social networking sites may address various topics, from workplace and co-workers to employer’s strategies and products, deemed as personal (and private) opinions, but which may considerably affect the image and reputation of companies and colleagues.

Labour law has traditionally been a national issue. However, globalisation in general and the Internet in particular have led to the internationalisation of labour issues. With an increasing number of individuals working for foreign entities and interacting with work teams on a global basis, an increasing need arises for appropriate international regulatory mechanisms. This aspect was recognised in the WSIS declaration, which, in paragraph 47, calls for the respect of all relevant international norms in the field of the ICT labour market.

Events

Instruments

Judgements

Case of Barbulescu v Romania - European Court of Human Rights (2016)

Other Instruments

Resources

Publications

Internet Governance Acronym Glossary (2015)
An Introduction to Internet Governance (2014)

GIP event reports

How the Digital Revolution Changes Our Work Life (2017)
Work and Society (2017)
Decent Jobs for All (2017)
The Organization of Work and Production (2017)
The Governance of Work (2017)
How Youth of Today See the Future of Work and How They Will Contribute to Ensuring the Future We Want (2017)
ICANN58: Joint Meeting ICANN Board & Customer Standing Committee (2017)

Processes

IGF 2016 Report

 

Labour law gained higher prominence at IGF 2016, mainly through discussion of the impact of the digital economy (including the sharing economy) on labour rights (Digital Economy and the Future of Work - WS34). It was underlined that new economic models create new jobs, but at the same time this creates a challenge for the labour market to keep up with the needs of the industry. 

IGF 2015 Report

 

Developments in the digital economy also have consequences on employment. Digital Economy, Jobs and Multistakeholder Practices (WS 29) discussed the short-term phenomenon of job losses due to automation, which is believed will be offset by the job-creating impact of innovation in the long term.

 

 

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