The case of the "Riders" as a new work model and its adaptation to the labor law.

[Vivanco]

University of Burgos​

Law School​

Final Degree Project​

Degree in law.​

The case of the Riders as a new work model and its adaptation to the labor law.​

Author: Pedro Ramon Vivanco Mata

Tutor: Diego Megino Fernandez


Academic Year 2021 – 2022​

 

[Vivanco]

INDEX​

1. Introduction.

2. Conceptual aspects around the economy of digital platforms.

3. The case of legality in Spain.
3.1. Legality prior to STS 805/2020, of September 25th
3.2 Supreme Court ruling 805/2020. The end of the doctrinal conflict.
3.3. The world after the "GLOVO" Judgment. The Law "Rider"

4. The European Union, France and Italy
4.1. European Law
4.2. The European environment at a comparative level
4.2.1. France
4.2.2. Italy

5. Conclusions

 

[Vivanco]

INTRODUCTION

The objective of this end-of-degree project is to closely investigate a very topical case to the point that at the time of writing there are still reforms and debates from an academic lens, and to be able to discover an important part of the law, which It is not only the legal analysis, but also its direct effectiveness and the consequences, since the law is not only reflected in the laws, but also has direct and palpable consequences in reality.

To be more specific about the objective of the work, it consists of the analysis of the conflict of workers by electronic delivery platforms, such as Glovo, Deliveroo , Uber Eats or Just Eat to name the most notable but not the only ones, where the The company defended that the model was not an employment contract, but to provide a platform in which freelancers would carry out their work activity. This led to a stir not only in society but also in the delivery men themselves, since some of them considered that it was not only a platform on which to develop their economic activities, but that they were actually workers of the brand.

We will analyze the roots of this conflict and its judicial resolution later on, since it is not something that has happened exceptionally in Spain, in addition to observing the greatest deficiencies and labor vicissitudes of the situation of these workers.

The methodology of the work consists of the investigation of laws, documents and analyzes referring to the subject, taking into consideration the concepts and reflections of both parties to the conflict, its evolution and its subsequent resolution at the state level and at the community level, still in process, as well as of a comparative study of two neighboring countries; France and Italy.

 

[Vivanco]

2. Conceptual aspects around the economy of digital platforms​

In recent years, the influence of technology in the daily life of the Spanish population has increased considerably. Such is the case that, for example, 86% of people have a mobile device with an Internet connection, which, among other issues, has led to greater use of delivery platforms, which has reached a value of 30% of Total number of potential users [1].

They are referring to companies such as Glovo, Just Eat , Uber Eats and Deliveroo (until the latter left the national market in 2021 [2]), the four most representative of the food sector delivery . In fact, Just Eat and Glovo alone carry out around 70% of the operations in this market [3].

The growing intensity of the digitization phenomenon has ended up giving rise to the so-called "platform economy" [4], characterized by the fact that productive activity is carried out through digital environments or instruments, such as sales and purchase applications. social networks [5].

In parallel, this social and consumer evolution has led to the appearance of new work models [6], with a marked role for the gig economy , that is, provision of services that "have a short duration and in which the contractor is responsible for a specific task within a project " [7]. All this with the addition that work through platforms admits two main variants, that of crowdwork (where that is done exclusively on the platforms, without any type of physical or face-to-face support) and work -on- demand via apps , the one that is most interesting for the purposes of this study, since in it "the platform requires that the service provider perform it in person" [8].

Moreover, given the outstanding differences that exist, a brief clarification of terminology is deemed necessary in order to clearly distinguish between the two following figures:

• That of the collaborative economy, defined by the European Commission [9]as that business that facilitates activities between individuals without any profit motive (its main pillar),
• That of the Uber economy , which implies “that the companies that manage the digital platforms do not operate as mere intermediaries, simply facilitating the exchange of goods and services between individuals, but rather, they themselves offer certain services to the market, and for this they use self-employed start-up workers” [10].

Precisely, and as it will be explained throughout this final degree project (TFG), a series of important conflicts within the framework of Law derive from the particular position adopted in the last case by the management companies or those responsible for the corresponding platforms. labor, since those are usually defined as entities devoid of means of production and mere creators of connection mechanisms.

Especially noting that, within a deregulated context, moving from an initially non-profit economic model to another with a clear intention of obtaining profits accentuated the traditional business practices of seeking the greatest possible competitiveness, which usually goes hand in hand with a notable reduction or omission of labor rights and guarantees of workers .

---

[1]FERNÁNDEZ AVILÉS, JA and PERES DÍAZ, D.: “The legal classification of the provision of services on digital platforms. An analysis in the light of recent Spanish judicial doctrine.” In Labor Law Review, 2020, 1, p. 232
[2] Deliveroo left Spain at the beginning of 2021. VILLAÉCIJA, R.: The 100 days of the Rider Law: Deliveroo leaves Spain while Glovo, Just Eat and Uber start "a big fight for their customers" [online] [Date consulted: 13 -05-2022] [https://www.elmundo.es/economia/ahorro-y-consumo/2021/11/29/619d14f5e4d4d844128b45ec.html]
[3]EUROPAPRESS: Glovo and Just Eat represent more than 70% of the food market delivery ' in Spain [online] [Date accessed: 05-12-2022] [https://www.europapress.es/economia/noticia-glovo-just-eat-representan-mas-70-mercado-food- delivery-spain-20200813141903.html]
[4]POQUET CATALA, Raquel: “Reflection on the legal framework of digital platform delivery people.” In Labor Relations Magazine Lan Harremanak , 2021 (45), p. 1
[5]LEVIN, JD 2011. The Economics of Internet Markets. In : NBER; National Bureau of Economic Research , Working Paper 16852, 2011, p. 1.
[6]BLÁSQUEZ AGUDO, Eva María: “The legal-labour protection of ' riders '. Work on platforms at the crossroads of employment”. In Social Law and Business Magazine, 2021 (15), p. 4
[7]BBVA: What is gig economy ? [online] (available at: https://www.bbva.com/es/que-es-la-gig-economy/ ; date of consultation: 5/17/2022).
[8]RUZ LÓPEZ, JMª: “Judicial analysis of the legal nature of the contractual relationship at work in urban distribution platforms”. In Ibero-American Journal of Labor Relations , 2020 (38), p. 157
[9]European Commission, A European Agenda for the collaborative economy, Brussels, June 2, 2016
[COM/2016/356 final], p. 5.
[10]Colloquial name inspired by the company of the same name as it is the pioneer company in this field of work.

 

[Vivanco]

The case of legality in SPAIN.​

The legality prior to STS 805/2020, of September 25 .

From the moment in which we deal with Labor Law, we must first look at the basic law of the system; The Spanish Constitution of 1978. In its article 35, we find the following:

• “All Spaniards have the duty to work and the right to work, to free choice of profession or trade, to promotion through work and to sufficient remuneration to satisfy their needs and those of their family, without in any case discrimination may be made on the basis of sex.
• "The law will regulate a workers' statute."

This second section is of greater importance to us as it is the one who directs us to our second law to take into consideration: The Workers' Statute, in this case being Royal Legislative Decree 2/2015, of October 23. We will refer at first to the modification published on September 23, 2020, the last one prior to the publication of the judgment of interest.

It is in this law that, at first, the figure of the worker is specified and defined because this statute is exclusively applicable to them, and this is important because the main conflict derives from the definition of people engaged in transportation in delivery applications.

Workers are defined as those who "voluntarily provide their paid services as an employee and within the scope of organization and management of another person, natural or legal, called employer or entrepreneur."

Likewise, employers consist of “all persons, individuals or legal entities, or joint ventures that receive the provision of services from the persons referred to in the previous section, as well as persons contracted to be transferred to user companies by employment companies. temporary legally constituted.”

If we take the definition of worker for delivery people, we will be compulsorily imposing the company (GLOVO, Just Eat , etc …) as the figure of employer.

We also find the Autonomous Work Statute, a regulation law for self-employed workers. The first article defines them as “individuals who habitually, personally, directly, on their own account and outside the sphere of management and organization of another person, carry out an economic or professional activity for profit.”

Regarding the self-employed, the most common contract between delivery men and home delivery companies, considering the former as self-employed, refers to the services of an Economically Dependent Self-Employed Worker[1]

Until the time of the Supreme Court ruling, there was no unit of interpretation for these cases, whether they are self-employed or not.

Regarding this dichotomy, we first find a ruling from the Social Court, number 39 of Madrid, dated September 3, 2018, in which it was determined that between the delivery men and the GLOVO company there would be no type of employment relationship, being the first some self-employed workers.

This resolution is curious compared to the fact that, in July of the same year, the Labor and Social Security Inspection of Zaragoza determined that the workers provided salaried services even when they were formally self-employed, fining the company GLOVO with the amount of 379,963 .09 euros.[2]

In the Madrid ruling, they confirmed that the existing contracts between the distributors and the GLOVO company were TRADE, being this type of employment contract between autonomous entities in which one of the self-employed obtains more than 75% of their income from the other party.

In the sixth proven fact of the sentence, he justifies that he is self-employed as follows:

“The worker decided the start and end time of his shift, as well as the activity he carried out during it, selecting the orders he wanted to make and rejecting the ones he didn't want. He had no obligation to carry out a certain number of orders, nor to be active a minimum of hours per day or week, nor did the Company indicate the errands to be carried out or when he had to start or end his day. If it was not placed in the 'auto-assign' position, no orders were received. He could reject an order mid-fill without penalty. In fact, the plaintiff rejected requests previously accepted on eight occasions during the period between the months of July and October 2017 (document number 66 of the defendant's evidence branch, and expert report provided by said party as document number 78) without suffer any unfavorable consequences and without having their score lowered for this reason. (Comparison of the dates of reassignment of orders with the scores obtained during the following days)”

Regarding this sentence, Ignasi Beltrán de Heredia Ruiz, professor at the UOC, commented that "the delivery person's absolute lack of influence over the tariff policy with the client could also be a determining element that has not been taken into account (or the remuneration for the waiting time). Or, the fact that purchases of products for the user have to be made with a credit card provided by the company (and the influence that this has on the description of the real risks assumed by the delivery men)”.

The value that the distributor theoretically freely chooses the orders to take is also included, without the existence of reprisals or obligations from the company, but the sentence mentions the existence of penalties in relation to the distributor's score, either for rejecting or for not adapt to the schedules that he would have freely accepted.

This point system was considered by the Madrid court, it did not constitute any model or instrument of control or sanction by the company when speaking of order preference.

Another important point that will arise later is the alienation, to determine the existence or not of the employment relationship. This ruling denies its existence in the following sentence, since the delivery person "responses for the risk and venture of each order and is responsible for it to the customer" . In addition, it denotes that the company only denotes subscriptions, the tool being the application. This will be discussed in the next point of the Supreme Court ruling.

It also talks about the non-existence of exclusivity, by allowing the worker to work in other services or jobs, being able to be economically dependent under the TRADE condition. This sentence, therefore, ruled in favor of the companies by considering the employment relationship to be non-existent.

After this sentence, we look at one of the Superior Court of Justice of Madrid on November 27, 2019, considered as "an important judicial milestone" [3]when considering the traditional criteria of labor law insufficient for a correct answer, highlighting the fact that The qualification of the contract is not freely available to the parties, but this qualification arises from the actual content and benefits of this [4][5].

It is from this clarification that the court proceeds to analyze the figures of subordination (or dependency [6]) and alienation.

This court pointed out that the distributors are linked to the direction, organization and control of the application due to different facts, such as the fact that the prices of the errands are set by the application, or that it gives the instructions and requires that it be carried out. delivery in less than 60 minutes.

Likewise, the court also explains the existence of control through geolocation, a fact that we will review later when analyzing the final sentence of the Supreme Court.

This sentence, unlike the hearing before, effectively ruled in favor of the delivery men, explaining the effective existence of the same work. These two antagonistic sentences are an example of the existing conflict between the courts regarding this issue, and they are by no means the only ones dealing with the subject.[7]

However, this would be in relation to the jurisprudential debates. The judicial bodies have not been the only ones involved in the regularization and stabilization of a canon for this type of situation, being another of the great figures as we have seen before the Labor and Social Security Inspection.[8]

In recent years, this figure has been laying the foundations that will later be used in the Supreme Court ruling that we will revisit later. It justifies the existence of labor relations due to the following points:

• The dealer does not intervene in the content of the contract.
• The dealer is easily replaced.
• The delivery man submits to the instructions of the company.
• The company is the one who sets the prices and the final salary.
• It is the platform that designates the possible distributions of the distributors.
• The company exercises a disciplinary power.

The measures imposed by the Labor and Social Security Inspectorate are a direct consequence of what we explained in the previous point, against the fraudulent use of the figure of the self-employed worker that causes a reduction in the worker's remuneration due to a generation of a deregulation of the employment relationship for the reduction of labor costs as explained above.[9]

---

[1]TRADE, contained in article 11 of the Self-Employed Workers Statute-

[2]ROJO TORRECILLA, E.: “Yes, the Glovo saga (and the glovers) deserve a case study. Notes to the judgment of the TS of September 25, 2020, which declares employment, and reminder of the judgments of JS no. 39 of Madrid of September 3, 2018 and of the TSJ of Madrid of September 19, 2019(I)”. In The new and changing world of work. An open and critical look at the new labor realities.
[3]FERNÁNDEZ AVILÉS, JA “The legal classification of the provision of services on digital platforms. An analysis in the light of recent Spanish judicial doctrine.” In Labor Law Review, 2020, (1), p. 245.

[4]FERNÁNDEZ AVILÉS, JA “The legal classification of the provision of services on digital platforms. An analysis in the light of recent Spanish judicial doctrine.” In Labor Law Review, 2020, (1), p. 246.

[5]“The nature of the contracts is not determined by the name given by the parties, but by the reality of the functions that take place by virtue thereof, therefore, if these functions fall within the provisions of article 1.1. of the Workers' Statute, the contract will have a labor nature whatever the name that the contracting parties give it”. STS of January 25, 2000.

[6]“This note of dependency [must be] understood as that integration “in the sphere of organization and management of the employer”. STS of February 19, 2014

[7]Another judgment of interest would be the Judgment of the Superior Court of Justice of Madrid of January 17, 2020, referring to Deliveroo , which also endorses the theory of employment by speaking of control through an "online reputation".

[8]FERNÁNDEZ AVILÉS, JA “The legal classification of the provision of services on digital platforms. An analysis in the light of recent Spanish judicial doctrine.” In Labor Law Review, 2020, (1), p. 243.

[9]FERNÁNDEZ AVILÉS, JA “The legal classification of the provision of services on digital platforms. An analysis in the light of recent Spanish judicial doctrine.” In Labor Law Review, 2020, (1), p. 244.

 

[Vivanco]

3.2 Supreme Court ruling 805/2020. The end of the doctrinal conflict.

In its capacity as a unifier of the doctrine, on September 25, 2020, the Supreme Court published a ruling in which it unified the doctrine in relation to the distributors of companies such as those seen above and these, and their relationship.

It should be clarified that, after recalling the Court in a first instance of the basic legislation referred to in the Workers' Statute, it also cites and highlights both doctrine and jurisprudence of European origin, as is the case of case C-692/19 and the Directive 2003/88/CE.[1]

This sentence is based on the parameters and values that dictate and indicate the existence (or non-existence) of the employment relationship, being alienation and subordination.

Regarding subordination, we return to the conflict to which we have referred with the first Madrid sentence; Can drivers choose their own hours? Can you refuse orders freely?

There is a false sense of freedom, not real freedom, as there are elements within the relationship between the company and the dealer that conditions the choice. From a purely theoretical point of view, could the dealer reject the orders? Yes. However, there is a form of penalty in the form of the delivery person's rating system, which also influences the allocation of orders.

In other words, if the delivery person rejects an order, this action (in theory without consequences) will lower his score, which will result in a reduction in the allocation of orders, which will constitute a reduction in compensation. By working with fewer orders, at the end of the month you will charge less.

This refers to orders, but the issue of schedules is also defended, where again in the wonderful world of theory, the worker has absolute freedom in choosing their schedules.

But here the trap returns; You can work whenever you want, but if you work outside of the established hours, as well as if you reject orders, it will affect your evaluation system.

Therefore, although there is formal freedom, they are not completely free, as there are a series of negative economic consequences.[2]

Regarding this subordination, we must also look at the existence (or non-existence) of a follow-up by the company to the workers. In this case, the company does establish measures to control not only the result but also the activity itself, in the form of satellite geolocation, or GPS. This sentence declares it so when claiming this as a "relevant indication of dependency" in its legal basis 19.

This consideration of GPS as a control mechanism is absorbed by the Superior Court of Justice of Asturias, in its judgment 1818/2019, of July 25, once again emphasizing the unifying character of the doctrine.

And it would not be worth investigating the disciplinary power of the company. As there are no clear and concise punishment measures on the part of the company, there are rulings that due to this absence the labor nature of the contractual relationship would not exist, as is the case of SJS nº 24 of Barcelona 205/2019 of May 29 and the SJS nº17 of Madrid 12/2019 of January 11.

In reference to this, the Supreme Court affirms that some causes of termination of the contract are a "literal transcript" of the Workers' Statute, settling the debate on this principle.

With regard to alienation, we must take into account what this principle refers to. According to this, he will be considered a worker if he is alien to the possession of the means of production necessary for the activity.

Here we would enter the debate about what would be considered as the means of production in this topic. There are sentences that base that these elements are constituted through the mobile phone and the method of transport, referring then to the fact that the delivery men have full control and possession of the means of production and for which there is not enough alienation to declare the employment.[3]

In this case, then, we find a clear debate and conflict. What are the means of production in this case? Professor Eduardo Rojo explains that, in this very specific case, the mobile phone and the bicycle would not constitute a means of production, but rather tools, the means of production being the same application.[4]

The Supreme Court agrees with that preliminary analysis that I have exposed by Professor Eduardo Rojo, taking into account that it is an argument endorsed by part of the labor jurisprudence.

It is explained that, qualitatively, the fundamental medium does not consist of the bicycle or mobile phone of the delivery man, but the computer application and the brand.[5]

This refers to the fact that, although the delivery person has what is necessary to carry out this, they are goods of reduced cost and economic value compared to the digital platform, this being the true essentiality.[6]

This refers to the alienation related to the media, but it is not the only alienation that we must take into account. The market must also be studied, and it is evident, since the distributor does not have any kind of relationship between the user, the establishments and GLOVO, he is oblivious to the existing triangular relationship, and he does not have any kind of decision-making power when determining the considerations are predefined by the GLOVO company.

Exactly, the court concluded “the delivery people are not party to the existing legal business with the restaurants and with the recipients of food”, and that both consumers and establishments are clients of GLOVO, not the delivery person.[7]

In the alienation of the fruits, it is clear that the fruits of the service come from a union between the amount paid by the establishments and the price of the clients, making the company its own the result. Likewise, the distributor does not intervene in relation to the price or the payment conditions.[8]

Likewise, the delivery man would not respond to the client in any case, or that he would assume damages or losses, giving the magistrate the necessary determination to establish that when the salary is obtained per unit of work, not charging the amount of a service not performed there is no risk and fortune of the worker.[9]

In relation then to the alienation of the risks, although in lower courts it constituted a great cause for debate [10], needing to know what consequences exist for the delivery person the possible complications in the service, being aware that obtaining the salary is only done with the correct provision from service. Without the existence of the distribution, there is no salary, being able to fit perfectly in article 26 of the Workers' Statute when rewarding effective work.

The brand is also important, explaining that the success of the application is not based solely on the existence of the application itself, but also on a brand owned by the company.[11]

The idea of special risk-profit also arises [12]in which the Supreme Court affirms that this binomial typical of self-employment cannot be considered to exist.

It is due to these notes of alienation and subordination that the Supreme Court, in the end, demonstrates the labor nature of the relationship. "Not only does it confirm that the contractual relationship between the delivery person and the company, but also, by updating the signs of employment, it shows that our current labor framework is capable of responding to the demands arising from new forms of work."[13]

The signs of employment highlighted by the Supreme Court, as Josep Moreno Gené schematically indicates [14], are the following:

• The existence of the valuation system.
• GPS geolocation.
• Giving instructions on how to place the order and checking that these instructions are followed.
• The provision of a company credit card for the delivery person to obtain the user's order.
• The provision of an advance of €100 to the delivery person by Glovo to start the work activity.
• Financial compensation for waiting for the delivery person at the pick-up location.
• Establishing up to 13 causes of termination of the contract for non-compliance by the worker identical to the disciplinary dismissal of the Workers' Statute.
• GLOVO's exclusive knowledge of the business system information.

In consequence of all the above, the court rules in a final way:

“Glovo is not a mere intermediary in the contracting of services between businesses and delivery people. It is not limited to providing an electronic intermediation service consisting of putting consumers (customers) and authentic self-employed workers in contact, but rather it carries out a task of coordinating and organizing the productive service.”

Here I want to highlight the fact that we have observed in our first point, about what the companies defended; being mere intermediaries. This fact and neuralgic point of the argument, for the Supreme Court, has been completely annulled, and from this first link, in the rest of the sentence and the ruling, a domino effect is observed that ends with the ruling, at this point, obviously : The distributors, or riders are employed by others.

---

[1]MORENO GENÉ, J. “The labor nature of the provision of delivery services through the GLOVO digital platform: The Supreme Court settles the debate”. In IUSLabor , 3/2020 p. 42
[2]RUZ LÓPEZ, JMª: “Judicial analysis of the legal nature of the contractual relationship at work in urban distribution platforms”. In Ibero-American Journal of Labor Relations , 2020 (38), p. 159

[3]RUZ LÓPEZ, JMª: “Judicial analysis of the legal nature of the contractual relationship at work in urban distribution platforms”. In Ibero-American Journal of Labor Relations , 2020 (38), p. 160

[4]ROJO TORRECILLA, E.: “Yes, the Glovo saga (and the glovers) deserve a case study. Notes to the judgment of the TS of September 25, 2020, which declares employment, and reminder of the judgments of JS no. 39 of Madrid of September 3, 2018 and of the TSJ of Madrid of September 19, 2019(I)”. In The new and changing world of work. An open and critical look at the new labor realities. [online] (available at: http://www.eduardorojotorrecilla.es/2020/10/pues-si-la-saga-glovo-y-los-glovers.html ; access date: 6/11/2022 ).

[5]RUZ LÓPEZ, JMª: “Judicial analysis of the legal nature of the contractual relationship at work in urban distribution platforms”. In Ibero-American Journal of Labor Relations , 2020 (38), p. 160

[6]MORENO GENÉ, J.: "The labor nature of the provision of delivery services through the GLOVO digital platform: The Supreme Court settles the debate." In IUSLabor 3/2020, p. 36

[7]RUZ LÓPEZ, JMª: “Judicial analysis of the legal nature of the contractual relationship at work in urban distribution platforms”. In Ibero-American Journal of Labor Relations , 2020 (38), p. 162

[8]RUZ LÓPEZ, JMª: “Judicial analysis of the legal nature of the contractual relationship at work in urban distribution platforms”. In Ibero-American Journal of Labor Relations , 2020 (38), p. 161

[9]MORENO GENÉ, J.: "The labor nature of the provision of delivery services through the GLOVO digital platform: The Supreme Court settles the debate." In IUSLabor 3/2020, p. 37

[10]RUZ LÓPEZ, JMª: “Judicial analysis of the legal nature of the contractual relationship at work in urban distribution platforms”. In Ibero-American Journal of Labor Relations , 2020 (38), p. 160

[11]RUZ LÓPEZ, JMª: “Judicial analysis of the legal nature of the contractual relationship at work in urban distribution platforms”. In Ibero-American Journal of Labor Relations , 2020 (38), p. 160

[12]RUZ LÓPEZ, JMª: “Judicial analysis of the legal nature of the contractual relationship at work in urban distribution platforms”. In Ibero-American Journal of Labor Relations , 2020 (38), p. 161

[13]RUZ LÓPEZ, JMª: “Judicial analysis of the legal nature of the contractual relationship at work in urban distribution platforms”. In Ibero-American Journal of Labor Relations , 2020 (38), p. 164

[14]MORENO GENÉ, J.: "The labor nature of the provision of delivery services through the GLOVO digital platform: The Supreme Court settles the debate." In IUSLabor 3/2020, p. 47

 

[Vivanco]

The world after the “GLOVO” sentence; The "Rider's Law".

On May 11, 2021, the so-called "Rider Law" arises in our internal legal system, as a direct consequence of the sentence seen above.

What this Royal Decree-Law 9/2021 does is a modification of the Workers' Statute to introduce a new letter in article 64.4 and the introduction of an additional provision to introduce in the internal legal system the presumption of employment in the digital platforms of distribution.

There is a doctrinal part that looks suspiciously at this legislative movement, fearing that it could well increase legal certainty, it would also reduce the versatility and adaptability of the courts, with the fear of a petrification of the judicial system [1]or that, even if it is a successful law, not brave enough to face the real challenges [2].

We also have a doctrinal part that explains that the legislator now has an arduous task of stabilization and regularization, although with fear of potential ad hoc regulation [3].

While the first point does not seem to be of great importance, it frames the effects of algorithms and artificial intelligence on jobs, which potentially in the future, as their use is more and more common, will be of importance to us. But for the case in mind, the second edition, the twenty-third additional provision, is of paramount importance to us.

“By application of the provisions of article 8.1, it is presumed included in the scope of this law the activity of persons who provide paid services consisting of the distribution or distribution of any consumer product or merchandise, by employers who exercise the business powers of organization, direction and control directly, indirectly or implicitly, through the algorithmic management of the service or working conditions, through a digital platform.

This presumption does not affect the provisions of article 1.3 of this regulation”

This provision by imposing a presumption of employment of this type of economic activities could be considered as a presumption iuris tantum[4] because the precept of article 8.1 that refers to the new additional provision contains one of this type [5], a presumption that means that it will be considered true unless there is proof to the contrary automatically.

Likewise, there is no conceptual modification, nor material effect, only a burden of proof is provided to the employer, considered as a "reminder"[6]

Like any piece of legislation, there are voices both in support and criticism for this movement, as we have seen. In a positive light, what this law causes is to guarantee equal treatment of those companies that carry out their activity in a traditional way, such as those that use algorithmic data, as well as the formalization in an effective and direct way that the rights of a typical worker are the same as those of a Rider , with the same prerogatives seeking equal rights.[7]

This could be defined according to the positive lens, which is an incisive way to unilaterally eliminate the figure of the false self-employed. [8]But neither is it a general regulation for platform jobs, or delivery, or against labor recruitment fraud (false self-employed)[9]

In the words of Professor Miguel Rodríguez-Piñero Royo, “the regulation ends a legal debate that was already over, no matter how hard some platforms tried to keep it alive.[10]

Around the dissenting voices with this legislative activity, we find the connotation of uselessness of this presumption. This refers to the fact that, by the same ruling of the Supreme Court, a presumption of employment is already included in the legislation through article 8.1 of the Workers' Statute [11].

I define this fact as a legislative redundancy , since the only use that this new additional provision has had is to repeat something that already exists, not only by jurisdiction but also in the same legal body that it modifies.

There are also those who point out that the law falls short, to put it mildly, by leaving out of protection those who work on other platforms on demand, such as cleaning, or care, or online micro-task platforms.[12]

---

[1]RUZ LÓPEZ, JMª: “Judicial analysis of the legal nature of the contractual relationship at work in urban distribution platforms”. In Ibero-American Journal of Labor Relations , 2020 (38), p. 163

[2]GINÈS FABRELLAS, A. “The right to know the algorithm: A missed opportunity of the “Rider Law”. In IusLabor , nº2, 2021. p. 5

[3]MORENO GENÉ, J.: "The labor nature of the provision of delivery services through the GLOVO digital platform: The Supreme Court settles the debate." In IUSLabor 3/2020, p. 67
[4]BÁEZ LAGUNA, E. “The return of labor law. Regarding the Rider Law.” In Journal of Legal and Criminological Studies , No. 4, 2021, p.253

[5]RODRÍGUEZ-PIÑERO ROYO, E. “Finally, The Rider Law”. In Work, Person, Law and Market. New challenges of the labor market: Poverty at work, collaborative economy and aging”. [online] (available at http://grupo.us.es/iwpr/2021/05/13/por-fin-la-ley-rider/ ; consultation date: 01/06/2022).

[6]TODOLÍ SIGNES, A. “Regulatory changes in the Digitization of Work: Commentary on the “Rider Law” and the rights to information on algorithms”. In IusLabor , No. 2, 2021. p. 35.

[7]BÁEZ LAGUNA, E. “The return of labor law. Regarding the Rider Law.” In Journal of Legal and Criminological Studies , No. 4, 2021, p.253

[8]BÁEZ LAGUNA, E. “The return of labor law. Regarding the Rider Law.” In Journal of Legal and Criminological Studies , No. 4, 2021, p.253

[9]RODRÍGUEZ-PIÑERO ROYO, E. “Finally, The Rider Law”. In Work, Person, Law and Market. New challenges of the labor market: Poverty at work, collaborative economy and aging”. [online] (available at http://grupo.us.es/iwpr/2021/05/13/por-fin-la-ley-rider/ ; consultation date: 01/06/2022).

[10]RODRÍGUEZ-PIÑERO ROYO, E. “Finally, The Rider Law”. In Work, Person, Law and Market. New challenges of the labor market: Poverty at work, collaborative economy and aging”. [online] (available at http://grupo.us.es/iwpr/2021/05/13/por-fin-la-ley-rider/ ; consultation date: 01/06/2022).

[11]TODOLÍ SIGNES, A. "Regulatory changes in the Digitization of Work: Commentary on the "Rider Law" and the rights to information on algorithms" In IusLabor , nº2, 2021. p. 33

[12]GINÉS FABRELLAS, A. “The right to know the algorithm: A missed opportunity of the “Rider Law”. In IusLabor , nº2, 2021, p. two

 

[Vivanco]

4. THE EUROPEAN UNION, FRANCE AND ITALY; WHEN YOU SEE YOUR NEIGHBOR'S BEARDS PEELING...

4.1. European Law

After analyzing the situation of the internal legal system, to now analyze regularization beyond what is community law, it would not be unreasonable to look back at the conceptual environment.

Why wouldn't that be crazy? We would only have to look at the 2018-2020 Strategic Plan of the Labor and Social Security Inspectorate, by which they asked not only to define the operating procedure for companies that operate through digital platforms, but also asked the European Commission for guidelines on how to apply community law to the models of these platforms in order to cover the gaps, the previously defined, flight from labor law.[1]

From here we can refer to direct publications of the European Commission, such as the COLLEEM survey on workers on digital platforms in Europe and its report [2]that shows the need to adapt the different internal regulations of the community to the new developments in the labor market.

The biggest pillar of this matter, from a strictly judicial and non-legislative lens, is the judgment of the Court of Justice of the European Union for case C-434/15, on Uber. It is not in the workplace, but why is it important?

It has it because of the main question that we have been repeating since the beginning of this work. Are the platforms mere intermediaries or do they provide an underlying service?

In the same way that in Spain this question has been answered in such a way that these platforms are not intermediaries, here the Court of Justice of the European Union reached the same resolution[3] [4].

This sentence is not the only action taken by the supranational organization. On December 9, 2021, the European Commission published a proposal for a directive that deals with this same issue, the employment relationship of jobs on digital platforms.

Before proceeding with the analysis of the proposal, I will clarify what a directive is in Community law and what it would mean if it were put into force. The European Union itself defines them as “legislative acts in which objectives are established that all EU countries must meet. However, it is up to each country to make its own laws on how to achieve those goals.”[5]

Therefore, and to ensure an understanding of the concept: It consists of a legal publication applicable throughout the European territory, but not directly applicable as is the case with regulations. In this case, what would happen would be that, after the publication and acceptance of the directive, there would be a period in which the member countries would have to adapt their own internal regulations so that the principles and objectives imposed in the directive are fulfilled.

With this in mind, we can proceed to the analysis of the proposal of the European Commission.

In a first instance we find a solution that will be at this stage of family work: A presumption of employment. This step is the same one that the " Rider law" has taken in its twenty-third additional provision, but only in concept.

This directive goes beyond what the Spanish executive has established, as it does not exclusively affect Riders , but would also cover other sectors such as care for the elderly, architecture and others.[6]

This fact is remarkable because, let us remember, one of the biggest criticisms of the Rider law was, neither more nor less, the scarcity of its scope of application. This directive would alleviate this defect, as it is a presumption of “all platform workers in all productive sectors ”.[7]

Being a mere proposal, its content may be subject to change, and it is not currently in force. However, due to its importance and relevance to the topic that we deal with in this Final Degree Project, we will analyze it in depth as if it were current legislation, because tomorrow there is the possibility that it will be in force and we can have access to a preliminary analysis of what your competition would be.

We would find this presumption in article 4 of the proposal, imposing that this not only has to be adapted in the laws as could be the case of the Workers' Statute, but also to the figures of control and protection so that they can act in a correctly and effectively, as would be the Labor and Social Security Inspectorate in this case.[8]

This directive sets out a list of elements by which, if two of them are fulfilled, it would be understood that there is an employment relationship. These elements are the following [9]:

• The determination by the platform / company of the remuneration of the participants of the platform.
• The requirement to monitor conditions or internal rules of both appearance and conduct and performance
• The supervision of the performance of the work or its evaluation by any means, including electronic ones.
• The restriction, punishment or sanction of the freedom to carry out acts.
• The restriction or similar of the capacity of the user or worker to create a client base or to impose work exclusivity.

If we look carefully, many, if not the vast majority, of these points were previously reviewed when analyzing the Supreme Court ruling.

Regarding this presumption, Adrián Todoli Signes defines this movement as something "very harmful" due to the fact that given the existence of a closed list there could be ways to avoid its application, and that the list itself has shortcomings.

Namely; the ghost of the lack of scope crackles again, indicating Todoli Signes, for example, the absence of the indication of working under the brand [10], or of the provision of services typical of the main activity of the contracting party [11].

In my opinion, and taking into account the concerns expressed by Adrián Todoli Signes, but also mindful of the argumentative thread of not only the directive but also of the Glovo ruling of the Supreme Court itself and the patent methodology in labor legislation, I consider correct the introduction of a list of specific cases in which there is a presumption of employment, thus making the legislation more accessible and effective in relevant cases.

However, the concerns pointed out are not without foundation, and that is why, including this list, a “flexible” section should be included, meaning this is a blank check for the jurisprudence that can be moved in those necessary cases.

This would be the possible regularization of the proposed directive, but in force we observe Directive 2000/31/CE, which in Spain was translated as Law 34/2002, on services of the information society and electronic commerce.[12]

With this in mind, it is clear to take into account that both after the Uber case and the proposal of the new European directive we find ourselves in a moment of development, progress and regulatory modernization necessary for community law, [13]but as always, the movements are usually considered insufficient, always existing ways on the part of the employer to avoid the right as well as constantly appearing new paradigms and methods of definition and presumption of employment that are difficult to encapsulate in a single norm.

From a philosophical point of view, due to the constantly changing state of European society, not to say global, the requirement of a perfect law would be like asking for pears from the elm tree. Said thing, by simple logic of the nature of society is impossible, but what we can do, as is being done in European law, is to adapt gradually and, as characterizes the law, reactively.

---

[1]MARTÍN RODRIGUEZ, O. “Work on digital platforms: pronouncements and divergent opinions regarding its legal qualification”. In International Journal of Information Systems and Software Engineering for Big Companies , 6(2), 2019, p. 92

[2]JOINT RESEARCH CENTER. “Platform Workers in Europe Evidence from the COLLEEM Survey”. in Europe Commission , JRC Publications Repository [ online ] (available at https://publications.jrc.ec.europa.eu/repository/handle/JRC112157 ; date of consultation, 06/11/2022)

[3]RUZ LÓPEZ, JM “Judicial analysis of the legal nature of the contractual relationship at work in urban distribution platforms. Regarding the judgment of the Supreme Court of September 25, 2020 ( number 805/2020 ; rec 2746/2019). In Ibero-American Journal of Labor Relations , Vol 38 (2020), p. 157

[4]Judgment of the Court of Justice of the European Union, of December 20, 2017, case C-434/15, Elite Taxi Professional Association v. Uber Systems Spain , SL

[5]EUROPEAN UNION; “Regulations, directives and other legislative acts” [online] (available at https://european-union.europa.eu/institutions-law-budget/law/types-legislation_es , access date 04/04/2022)
[6]TODOLÍ SIGNES, A. “Proposal for a European Directive on work on digital platforms. Brief comment.” In Arguments in Labor Law. [online] (available at https://adriantodoli.com/2021/12/09/propuesta-de-directiva-europea-sobre-el-trabajo-en-plataformas-digitales-comentario-breve/ , consultation date 14 /12/2021)

[7]TODOLÍ SIGNES, A. “Proposal for a European Directive on work on digital platforms. Brief comment.” In Arguments in Labor Law. [online] (available at https://adriantodoli.com/2021/12/09/propuesta-de-directiva-europea-sobre-el-trabajo-en-plataformas-digitales-comentario-breve/ , consultation date 14 /12/2021)

[8]EUROPEAN COMISSION. “Proposal for a Directive of the European Parliament and of the Council on improving working conditions in platform work”, 20211/0414 (Cod), p. 16

[9]TODOLÍ SIGNES, A. “Proposal for a European Directive on work on digital platforms. Brief comment.” In Arguments in Labor Law. [online] (available at https://adriantodoli.com/2021/12/09/propuesta-de-directiva-europea-sobre-el-trabajo-en-plataformas-digitales-comentario-breve/ , consultation date 14 /12/2021)
[10]TODOLI SIGNES, A. "New indications of labor: the alienation in the brand". In Arguments in Labor Law [online] (available at https://adriantodoli.com/2017/10/26/nuevos-indicas-de-laboralidad-la-ajenidad-en-la-marca/ , access date 14/ 12/2021)

[11]TODOLI SIGNES, A. "California's law against false self-employment: Article published in the magazine of Labor and Law" in Arguments in Labor Law [online] (Available at https://adriantodoli.com/2020/06/16 /the-law-of-california-against-the-false-self-employed-article-published-in-the-review-work-and-law/ , access date 12/19/2021)
[12]TORRES RIVERA, RL “The legal transformation in a digital economy; the Uber case. In Iuris Dictio , no. 24, 2019, p. 3. 4

[13]TORRES RIVERA, RL “The legal transformation in a digital economy; the Uber case. In Iuris Dictio , no. 24, 2019, p. 40

 

[Vivanco]

4.2. The European environment at a comparative level; The cases of France and Italy.

4.2.1. France.

France has been, if not the first, one of the pioneering countries in this new wave of adaptation to the new labor realities, creating in 2008 the figure of the self-entrepreneur , what we know here in Spain as the self-employed worker [1].

Unlike Spain, this figure of the self-employed worker is not regulated in a special regulation as in Spain with the Statute of the Self-Employed.

In the Gallic country, the basic regulation of labor relations is constituted in the Labor Code ( Code du Travail ), which in a comparative way would be what in Spain is the Workers' Statute; a standard of legal rank that compiles and regulates the different labor relations and everything that surrounds them, such as the rights and obligations of both employers and workers.

As we have seen on many occasions in our work, delivery companies defend a model in which the delivery people are outside the main company, which is only an intermediary, this being the case in France as well.

This changed on August 8, 2016, when France introduced Law 2016-1088, in which article L.7342-1 of the Labor Code was modified. This change was that “when the platform determines the characteristics of the service provided or the good sold and sets its price, it has, with respect to the affected workers, a social responsibility that is exercised under the conditions provided in this chapter .”[2]

We find here in its wording something that was courageous at the time, specifying an original presumption of employment in cases in which the worker's employment condition is met, a principle similar to what we have seen in both Spain and the European Union in later years.

Subsequently, Law 2019-1428 arises, on the orientation of mobilities, which is important when defining in this law the introduction of a so-called Social Charter in which the existing obligations between the platforms and their distributors are outlined, with the intention of reaching to an agreement between the parties without it becoming a legal risk for the platforms, and without yet reliably declaring the employment status.[3]

This declaration would finally arrive, almost in a parallel story to the Spanish case, with a judgment of the Court of Cassation [4], in a process similar to that of Spain with the Supreme Court and the GLOVO Judgment (remember, it was a judgment of cassation, of unification of the jurisprudence) in which the existence of an employment relationship between the delivery people and the digital platforms was declared.[5]

4.2.2. Italy

In the Italian system, just like the French system and the Spanish system, we find the binomial of the employed worker and the self-employed worker, being in Italy the lavoratore subordinato and the autonomous lavoratore .[6]

The employee is regulated in Italy not in a specific rule for labor relations, as is the case in France and Spain, but in the Italian Civil Code, more specifically in its article 2094, defined as that person "committed to collaborate in the company by providing their work under the direction of the employer” [7].

In the same way, differing once again from France and Spain, the figure of the self-employed worker is not found in a special law, as is the case in Spain, nor in a joint labor relations law, as is the case in France, but rather, once again, it is found in the compendium of the Italian Civil Code, within the service contract in its article 2222 as one that "performs a job in exchange for remuneration for its own effort and in the absence of a subordinate relationship."[8]

Then the "hunt for labor fraud" would arise in 2015, with Legislative Decree 81/2015 in which labor protection is extended to those self-employed workers who carry out continuous and coordinated work, to avoid their lack of protection.

Subsequently, Law 128/2019 for digital platforms was introduced into the Italian legal system, which does not make a precise distinction or clarification on employment or not, but rather includes a double qualification, allowing both self-employed and salaried people to exist for platforms.[9]

And to finish the Italian case, there is currently no unifying sentence of the different existing positions.

---

[1]POQUET CATALA, R. "Reflection on the legal framework of delivery people on digital platforms" In Lan Harremanak - Journal of Labor Relations , No. 45, p. twenty
[2]POQUET CATALA, R. "Reflection on the legal framework of delivery people on digital platforms" In Lan Harremanak - Journal of Labor Relations , No. 45, p. twenty

[3]POQUET CATALA, R. "Reflection on the legal framework of delivery people on digital platforms" In Lan Harremanak - Journal of Labor Relations , No. 45, p. twenty-one

[4]Judgment of November 28, 2018, Take Matter EatEasy .

[5]POQUET CATALA, R. "Reflection on the legal framework of delivery people on digital platforms" In Lan Harremanak - Journal of Labor Relations , No. 45, p. 22
[6]POQUET CATALA, R. "Reflection on the legal framework of delivery people on digital platforms" In Lan Harremanak - Journal of Labor Relations , No. 45, p. 17

[7]POQUET CATALA, R. "Reflection on the legal framework of delivery people on digital platforms" In Lan Harremanak - Journal of Labor Relations , No. 45, p. 18

[8]POQUET CATALA, R. "Reflection on the legal framework of delivery people on digital platforms" In Lan Harremanak - Journal of Labor Relations , No. 45, p. 18

[9]POQUET CATALA, R. "Reflection on the legal framework of delivery people on digital platforms" In Lan Harremanak - Journal of Labor Relations , No. 45, p. 18

 

[Vivanco]

5. Conclusions.

Throughout the work we have taken into account not only the legislation, but we have also analyzed how we have reached this situation. From a beginning of basic conceptual understanding to an international comparative study.

I would like to use this section of conclusions as a reflection of one of the factors that is usually forgotten in law, but which is of great importance: The Legal Reality.

On many occasions, the law fails to remain in the world of theory, and to forget that while a law can appear perfect, simply because of the existence of methods of claim, imposition and judicial interpretation, we must bear in mind that no matter how complete as the law is, it will never be able to accurately reflect social reality.

Along the legislative and judicial path that we have witnessed, no matter how satisfactory the final resolution of the Supreme Court with the GLOVO Judgment or the clasp of the Rider Law has been, it is necessary to know everything that is behind it.

Only GLOVO, at the end of 2020, had a fleet of 2,657 delivery men [1], of which, let us remember, all of them were required to register as Self-Employed Workers, leaving them oblivious to the labor rights to which they should have access, as was finally declared in the judgment of the Supreme Court that same year.

GLOVO began its economic activity in 2014, so we have a range of 6 years in which people who should not only have had the benefits and security inherent to the condition of worker, but who have been denied in many sentences said condition.

And, even so, we cannot think that with the Rider Law and the sentence is the end of the road, there is nothing further from reality. Even after the sentence, Glovo has not fully complied with it, as one person could imagine taking into account the seriousness of the matter.

Convicting sentences are still coming out against Glovo as the maximum exponent (but not the only one that carries out these practices) in which it continues to defend that its workers are self-employed, the last and most recent of these sentences being that of the High Court of Justice of the Basque Country on Last June 2 of this year (2 years after the Supreme Court ruling), which declared that 53 workers had been falsely considered self-employed [2].

Although the law has advanced, although the sentences have ruled in its favor, we must not ignore the legal reality, the social reality, because as the saying goes, "until May 40, do not take off your coat."

There is much to regulate, much to analyze, much to sentence, but it is impossible to ever deny that we are worse off than when it started. The labor legislation process is a slow process, but it is necessary, and more so in cases of need and uncertainty, as has been the case with delivery people for digital platforms.

Finally, a reflection on the labor law to which I have arrived after writing and researching this work. We all go to work, whatever it may be, in one way or another. And that is why labor law is, in my opinion, one of the fundamental rights in today's society, as a universal right of the utmost importance.

---

[1]MORENO, MA: Glovo doubled its turnover in the midst of the pandemic to reach 360 million in 2020 and reduced its losses by 80%” In Business Insider [online] [Date consulted: 06-19-2022] [https://www. businessinsider.es/glovo-double-billing-full-pandemic-360-millions-935757]
[2]GÓMEZ CAMACHO, Z. The Basque Superior confirms that the Glovo distributors are false self-employed. In the Basque Chronicle [online] [Date accessed: 06-19-2022] (available at https://www.cronicavasca.com/economia/superior-vasco-confirma-repartidas-glovo-son-falsos-autonomos_681458_102.html )