Digital Platforms Workers: The particularity of a new reality

On 19 February, Uber was hit hard, the United Kingdom Supreme Court in the Uber v. case. Aslam determined that the company should classify its drivers as "workers ", thus losing a fight that began there in 2016. On 23 February this year, the International Labour Organization (ILO) published the report "Social and Employment Perspectives in the World 2021," which analyses the role of digital platforms in the transformation of the world of work.

Where is Chile in this context?

Uber & UK.

Although the judgment of the United Kingdom Supreme Court in Uber v. Aslam[1] is only applicable to the small number of former drivers who sued the company, the reality is that Uber, in the UK, lost the fight. The Supreme Court established that the drivers of this company are workers. When reviewing the arguments that the court held for this ruling, it is identified that the focus was on the analysis of the level of control that Uber exercises over its drivers, expressing that they are in a position of subordination to the company. It is important to note that in the United Kingdom, at least, they are recognized, three categories of service delivery, employees (employees), self-employed and contractor (independent); and workers (workers), the latter category, which was granted to Uber drivers, who will therefore be entitled to a minimum wage, paid leave, among other labour rights. In other words, in the Court's view, the company holds some of the powers of an employer, which would provide that in this case we are faced with a working relationship.

Is it approved for Chile? No, on the one hand, it is not only a judgment that was handed down in another country, therefore, in principle, it has no effect in Chile; we are also facing different legal systems or traditions (common law vs civil law), hence the distinction described above in Chile does not exist. Having said that, the arguments contained in this ruling could serve as a precedent for the discussion that is also already in place in our country. Moreover, for that professor of labour law who may be reading these lines, the principles of protection, the primacy of reality and non-renunciation could also be applicable.

ILO & Digital Platforms.

The report prepared by ILO highlights the importance that Digital Platforms are having today in the world of work, stressing that "the ability of these platforms to connect businesses and customers with workers is transforming work processes, which will have a major impact on the future of work."^[2] The ILO states that digital online working platforms can be classified in web-based platforms and location-based platforms. In the first, tasks or orders are carried out in line or at a distance, in the second, they are carried out in a personalized manner in physical and specific places, the latter being the case of drivers and suppliers. In turn, it is aware of the risks associated with this new way of working, where it is stressed that "the consequences of the COVID- 19 pandemic are showing the risks and inequalities to which workers are exposed, especially those occupied on location-based digital platforms." The report concludes by calling for a social dialogue among all stakeholders, including the governments of each country, arguing that this will be the only way these platforms will continue to grow, but in an appropriate and responsible manner, thus holding that "the process of policy dialogue and coordination should focus on ensuring that national laws that enshrine fundamental principles and rights at work, as well as other key provisions such as those relating to safety and health at work and social protection, assist all workers, including those of digital platforms."

The report is quite interesting, and I recommend its reading, especially because it is based on surveys of 12,000 workers from 100 countries working on these platforms, and interviews with representatives of 70 companies (16 platform companies and 14 platform workers' associations from around the world in multiple sectors.

Gig economies & Gig workers.

The ruling in the Uber v. case. Aslam must not only concern this company, but everyone who develops its business as a gig economy; term born in the United States and referring to works that are carried out as freelance or independent, where flexibility, temporality and technology use are key. Examples, several, of the best known... Uber and Airbnb.

McKinsey, who already reported in 2016 that about 30% of the workforce in the United States and Europe, was involved in some way in gig economy[3]and, according to the results of the report "Freelancing in America" of 2019, 57 million Americans (35% of the country's labour force), were gig workers[4].

Judgements like this, which begin to put aside the ambiguity of this type of business, will necessarily lead these companies and their investors to review changes in their domestic policies and, definitely, their business models, where, for example, paid holidays and minimum wages, among others, are considered.

And... how are we doing at home?

In Chile, it is not yet possible to speak of the case law of the courts of justice or administrative authority, and it is noted that there are only a couple of judgments in this area. On the one hand, in 2015, in Thompson with Uber [RIT O-1388-2015], the court considered that it was not possible to prove the existence of a working relationship, but then in October 2020, in Arredondo con Pedidos Ya [RIT M-724-2020] the existence of a working relationship is declared, stressing that... "the applicant provided services under the link of subordination and dependence of the defendant." For its part, the Directorate of Labour has established that this is a matter whose knowledge must be handed over to the courts of justice.

The reality is that, according to the ILO report, the number of web and location-based online platforms increased from 142 in 2010 to more than 777 in 2020, so digital platforms came to stay and transform the way of work; if there was any doubt, the pandemic ended these.

The Uber v. Aslam, who motivated this article, although it has no direct effect in Chile, does serve as a precedent for the discussion that already reached Congress, where there are today three legislative initiatives in this regard [Bulletin No. 12.618-13 / Bulletin No. 12.475-13 / Bulletin No. 13.496-13]. Now, which one of these will see the light? And, more importantly, under what conditions? The right protection of these "workers" must be sought, but recognizing the particular characteristics of the work they carry out, therefore perhaps the ruling of the United Kingdom Supreme Court and the categories of service delivery that that that country has been developing, may be giving us a lead, where labour law is able to face the new challenges of our times, but without losing sight of its protection role.

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[1] https://www.supremecourt.uk/cases/uksc-2019-0029.html

[2] https://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_771927/lang–es/index.htm

[3] https://www.mckinsey.com/featured-insights/employment-and-growth/independent-work-choice-necessity-and-the-gig-economy#

[4] https://www.businesswire.com/news/home/20191003005032/en/Sixth-annual-%E2%80%9CFreelancing-America%E2%80%9D-study-finds-people