Labour law

Updates

The National Labor Relations Board (NLRB), a federal independent agency with responsibilities for enforcing US labor law, concluded that Uber drivers are independent contractors and not employees. The classification as independent contractors means that drivers have no right to form a union, bargain collectively, minimum wage, overtime pay among other traditional rights related to employment status. The NLRB’s decision serves as a recommendation for ruling in future cases in the US. The NLRB’s general counsel’s office based its decision on the fact that drivers are not subordinate to the ride-hailing platform and have “control of their cars, work schedules, and log-in locations, together with their freedom to work for competitors of Uber”. The NLRB released the advisory document on 21 May, a month after it was originally issued.​​

Uber drivers protested against the ride-hailing working conditions and pay practices in several cities around the world. The strike happened one day before the company’s initial public offering (IPO). Drivers in Britain, San Francisco, New York, Sao Paulo, Melbourne, and Chicago, alleged that despite the success of the company, they are treated unfairly and poorly paid. The drivers believe that they greatly contributed to the company’s growth by investing in comfortable cars for the clients and fuel but have little in return. They claim that even with their independent contractor status, they have little control over the wages because Uber set the fares and take a percentage of the fees they earn from the rides. In Australia, drivers held sings ‘on demand workers demand a living wage’. In the UK, they chanted ‘Uber sell off: billions to bosses, poverty pay for drivers’, and in New York ‘driver power! Union power’. The strikes were one of the major coordinated efforts by drivers to demonstrate their discontentment with the company. Uber plans to award a cash bonus to drivers in the United States.

ILO releases the report ‘Safety and Health at the Heart of the Future of Work: Building on 100 Years of Experience’. The report summarises the ILO’s work on health and safety in the workplace in the past 100 years and provides an overview of challenges and opportunities for workers in the fourth industrial revolution with regards to digitalisation, ICT, automation, robotics, and nanotechnology. Regarding ICT and digitalisation, one key impact on safety and health at work is that technology has been able to replace workers on dangerous jobs. Another impact of ICT is the virtualisation of work that has led to increased flexibility of work organisation and work time arrangements. Technology developments have also blurred the line between work and the rest of individuals’ life. The increasing proliferation of practices such as telework and ICT based mobile work can reduce commuting time and associated stress, but increases psychosocial risks related to lone-working and the possible erosion of barriers between work and personal life. The use of drones is reported to improve workplace safety and health outcomes. It has been already used by the Occupational Safety and Health Administration, in the US, to perform inspections when it is unsafe for inspectors to enter, such as a risk of building collapse. Regarding automation and robotics, the report stresses that they can benefit workers by removing them from hazardous environments and by improving automated prevention measures. The challenges encompass increased ergonomic risks from new forms of human-machine interaction, exposure to accidents as a result of a loss of understating or overconfidence in AI infallibility where humans and robots interact closely.

The conference “The Future of Work: Today. Tomorrow. For all” hosted by the European Commission brought together the President Jean-Claude Junker, Vice-President Valdis Dombroviskis, Commissioner Marianne Thyssen, Ministers, representatives from EU institutions, national governments, social partners, civil society, and academia to explore how the developments in the world of work could benefit workers, businesses and the economy similarly. The EU proclaimed the European Pillar of Social Rights to face the rapid transformations enabled by technological and digital developments. Among the discussions, the following highlight aspects emerged from the meeting: a. the EU wants the European social model to be preserved and enhanced despite any technological transformation in the means of work. This will only be possible if the EU set out a roadmap with concrete actions; b. the digital economy needs to be inclusive and workers facing job loss or transitions need support; c. supporting labour market transitions requires adequate investment; and d.  strengthening a global level playing field by intensifying cooperation with other organisations and partner is crucial to promote decent work. ​

Los Angeles ride-hail drivers working for Uber and Lyft turned off their apps for 25 hours in protest of low wages. The organising group Rideshare Drivers United said the strike was triggered by Uber’s decision to reduce per-mile pay. Drivers have complained that their working experience in these companies has become worse over the time. In many cities, drivers have organised informal groups to defend their rights within public authorities. In 2018, New York City passed a minimum wage of $17,22 per hour after drivers’ protests.

The new report “The future of work: litigating labour relationships in the gig economy”, released by Business & Human Rights Resource Centre, indicates that “the gig economy is the frontline in the battle for the future of labour rights”. It states that the new technology has enabled start-ups like Uber and Deliveroo to become international corporations with only a few employees and with the majority of its workforce misclassified as self-employed. This business model is based on not paying for workers’ social protection and seriously jeopardise labour rights. The report includes facts and figures on the development of the gig economy across the world, recent case law defying the self-employment status of workers in the sector, and stakeholder responses. The report calls on online intermediary companies to classify their workers as employees with full labour rights and protections, to eliminate forced arbitrations clauses from their contracts, and to “introduce human rights policies with proper remediation to live up to their responsibilities under the United Nations Guiding Principles on Human Rights”. The report also argued that legislative reforms are necessary to incentivize sharing economy companies to classify their workers as employees. Deliveroo responded by saying that flexible work enabled by sharing economy platforms is the new way of working and “is here to stay”.

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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WSIS Forum 2019

WBDS 2019

OECD Summit 2019

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.

 

 

The GIP Digital Watch observatory is provided by

 

 

and members of the GIP Steering Committee



 

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