Labour law

Updates

New York city officials passed the first US minimum pay rate for drivers who work for ride-hailing apps, including Uber, Lyft, Juno, Via and any other similar business model. Drivers are low paid, and the issue is related to the fact that they are independent contractors and not employees. Transportation sharing economies do not need to make sure that drivers earn the minimum wage. Having that in mind, the city council decided that drivers are entitled to make the equivalent of $17,22 an hour after expenses. The measure aims at increasing the quality of their lives. In New York, most drivers work full-time for ride-hailing apps and 18 percent of drivers have so low earnings that they qualify for food stamps. The new regulation attacks the core of transportation sharing economies, which relies on a large number of drivers to be available at any given time, meaning competition for rides is high and drivers must work long hours. The same regulation provides that out of town trips must include payment for returning; higher pay for drivers of wheelchair accessible vehicles and prohibition on underpaying drivers on certain trips as part of incentive schemes

G20 leaders recognised that transformative technologies are expected to bring new and better jobs. Policy options for the future of work will draw on ‘harness technology to strengthen growth and productivity’; ‘support people during transitions and address distributional challenges’ and ‘secure tax systems’. The leaders remained committed to build an inclusive, fair and sustainable future of work by reskilling workers and recognising the importance of social dialogue in the area, including work delivered through digital platforms, aiming at labour formalisation and making social protection systems strong and portable. Access to education to enhance digital skills was underlined as a strategic policy area for the development of more inclusive, prosperous, and peaceful societies. To expand the benefits of digitalization, G20 nations will promote measures to boost micro, small and medium enterprises, bridge the divide and further digital inclusion. They will also improve digital government, digital infrastructure and measurement of the digital economy.

The sharing economy Take Eat Easy used an online platform to connect restaurants, users who wanted to order meals and riders to deliver food to the users of the platform. Since the beginning of Take Eat Easy operations, the riders developed their activity under the status of independent contractors. In 2016, a rider required to the conseil de prud’hommes to have its employment status recognised. His requirement was denied and he appealed to the Cour de Cassation, which overruled the decision by holding that (1) the system of geolocation allowing the real-time monitoring of the position of the rider (2) the control of the total number of kilometers rode by the riders and (3) the sanctions applied to the riders in some particular cases demonstrated that Take Eat Easy had powers of direction and control over its contractors. Direction and control are typical aspects of an employment relationship. The decision sets a precedent to all similar sharing economies in France.

Representatives of ASEAN member States in charge of labour, education and industry, employers’ associations, ASEAN Trade Union Council and ASEAN Services Trade Union Council participated in the last Regional Conference on Reducing Youth Unemployment held in Jakarta. They shared their strategies to address the future of work including (a) Indonesia’s roadmap towards Industry Revolution 4.0; (b) Singapore’s Skills Future initiative to foster future oriented skills; (c) Philippines’ promotion of Technical and Vocational Education and Training. The future reduction of youth unemployment was related to the promotion of up-skilling and re-skilling opportunities; the implementation of functional labour market information systems and technical and vocational education and training in partnerships with industries.

 

 

The sharing economy food delivery company Foodora Australia was charged with misclassifying a rider as an independent contractor and deny him an employment status. The Australian Fair Work Commission ruled that the rider was not carrying on a trade or business of his own, or on his own behalf. Instead, the rider was working for Foodora, his work was integrated into the sharing economy business and was not an independent operation. Despite the attempt to create the existence of an independent contractor arrangement, the rider was engaged as a rider for Foodora and, therefore, was an employee. The company has admitted that their riders were more likely to be employees than independent contractors, and therefore are entitled to more than $5 million in unpaid wages. This precedent can impact the workforce classification in other gig economies around the world, including Uber Eats and Deliveroo. 

The British government’s proposition encompasses (a) new regulations to provide workers in the gig economy the right to have a fixed-hours contract after 12 months of uninterrupted services; (b) reduction of extreme flexibility with the provision of notice periods and compensation for cancelled shifts; (c) extension of employment rights to self-employed gig economy workers; (d) paid time off to venerable workers. These proposed modifications were based on the recommendations for modern working practices published last year by the UK government. Currently, there are about 1.1 million workers in Britain’s gig economy.   

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

Actors

(ILO)

The International Labour Organization carries out activities dedicated to addressing social and labour issues

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The International Labour Organization carries out activities dedicated to addressing social and labour issues in specific economic sectors, at national and international levels. One of these sectors is postal and telecommunication services (including the Internet), where the ILO works on assisting governments, employers, and workers to develop policies and programmes aimed at enhancing economic opportunities and improving working conditions. It pays particular attention to major trends in this sector (deregulation, privatisation, etc.) and how they affect the labour force. The organisation also explores aspects related to the opportunities and challenges that the fourth industrial revolution is bringing to the world of work.

(ECHR)

The European Court of Human Rights deals with privacy through the prism of Article 8 of the

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The European Court of Human Rights deals with privacy through the prism of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. It adjudicates on cases brought on against Council of Europe member states accused of being in violation of one or more articles of the Convention. The ECHR has a broad view of what it deems to be protected as ‘personal data’ as any information related to a person (identified or identifiable), which falls under the ‘private life’ part of Article 8. Its most recent high-profile case on the issue found the Hungarian government in breach of Article 8, due to its broad surveillance law.

(CJEU)

In recent years, the CJUE has adopted important rulings on Internet intermediary liabilities.

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In recent years, the CJUE has adopted important rulings on Internet intermediary liabilities. In particular, CJUE’s case law focused for instance on the liability of a service provider in an online marketplace (McFadden v Sony Music Entertainment Germany, 2016), the liability of operators of internet marketplaces (L'Oréal v eBay, 2011), the liability of search engine operators (Google Spain case, 2014) and on the tension between data protection and online enforcement (Promusicae v Telefonica, 2008).

(EU)

In establishing its digital single market, the EU has progressively developed a dense 

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In establishing its digital single market, the EU has progressively developed a dense copyright legislation corresponding to a set of ten directives, which harmonise essential rights of authors, performers, producers and broadcasters. To ensure EU copyright rules are fit for the digital age, the European Commission has recently presented legislative proposals to modernise the EU legal framework, in order to allow more cross-border access to content online and wider opportunities to use copyrighted materials in education, research and cultural heritage; and have a better functioning copyright marketplace.

(OECD)

Convergence is one of the digital policy issues that the OECD is paying attention to, especially in relation t

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Convergence is one of the digital policy issues that the OECD is paying attention to, especially in relation to the challenges this phenomenon brings on traditional markets, and the need for adequate policy and regulatory frameworks to address them. In 2008, the organisation issued a set of policy guidelines for regulators to take into account when addressing challenges posed by convergence. In 2016, a report issued in preparation for the OECD Ministerial Meeting on the Digital Economy included new recommendations for policy-makers. Digital convergence issues have been on the agenda of OECD Ministerial meetings since 2008, and are also tackled in the regular OECD Digital Economy Outlook report.

(WEF)

Within the framework of its Digital Economy and Society initiative, WEF has launched the

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Within the framework of its Digital Economy and Society initiative, WEF has launched the Internet for All project, aimed at bringing online tens of millions of Internet users by the end of 2019, initially through programmes targeted at the Northern Corridor in Africa, Argentina, and India. In addition to this project, WEF also undertakes research on Internet-access-related issues. One notable example is the annual Global Information Technology Report and the related Networked Readiness Index, which measures, among others, the rates of Internet deployment worldwide. Internet access and the digital divide are also addressed in the framework of various WEF initiatives such as its annual meetings and regional 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

A workers' agenda for e-commerce (2018)
Artificial Intelligence, Ethics, and the Future of Work (2018)
Remedy against the Machine (2017)
Are Emerging Technology Innovations Driving Better Access to Remedy in Global Supply Chains? (2017)
The Future of Work (2017)
Launch of the Information Economy Report 2017 (2017)
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

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13th IGF 2018

UNCTAD 2018

WSIS Forum 2018

12th IGF 2017

WTO Public Forum 2017

WSIS Forum 2017

IGF 2016

WTO Public Forum 2016

IGF 2015

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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