8 | International Union Rights | 25/3 FOCUS | INDUSTRY 4.0 Two Perspectives on Platform Work Recognition comes from members, not courts SEBASTIEN FLAIS The common trend across the so-called ‘gig economy’ is a denial of rights, even when court judgements deem the practices unlawful. In the space of a few years, the Independent Workers Union of Great Britain (IWGB) has managed to achieve results with our Couriers and Logistics branch through a member-led combination of strategic litigation and campaigns. When we first formed the Branch, workers told us stories about a sector where companies were constantly taking advantage of their workers. This exploitation was not limited to apps. We have taken on some app-based employers, such as Deliveroo, but most courier companies operate in a more traditional fashion, using radios to allocate orders. These companies claimed they were running their own businesses and classed their couriers as independent contractors. They argued this was necessary to provide couriers with flexibility, which the workers valued. But the couriers did not get to set their own rates of pay, had to wear uniforms and were fearful of not accepting jobs. They appreciated the flexibility, but they were definitely a part of someone else’s business. We took out four cases against CitySprint, Excel, Ecourier and Addison Lee to the Employment Tribunal. We argued their couriers were ‘limb (b) workers’, or ‘workers’ for short1. ‘Workers’ sit between employees, who have full employment rights, and independent contractors, who have no employment rights; they are self-employed but are also entitled to some rights, including minimum wage, holiday pay, trade union rights and protections against discrimination. The UK Supreme Court has drawn a distinction between the selfemployed running their own business and the selfemployed working for someone else’s2. The Court has also declared that in determining the nature of the employment relationship, judges must consider the incredible asymmetric bargaining power that the company has over workers. Simply looking at the contract is not enough, otherwise ‘armies of lawyers will simply place substitution clauses, or clauses denying any obligation to accept or provide work in employment contracts, as a matter of form, even where such terms do not begin to reflect the real relationship’3. In 2017, employment tribunals declared that the companies were unlawfully denying couriers rights in three of the cases, with Ecourier admitting liability as part of a settlement. Earlier this year, we also secured our first trade union recognition agreement in the ‘gig economy’ with couriers for The Doctor’s Laboratory (TDL). In our case against Deliveroo, however, things went differently. IWGB argued before the CAC that Deliveroo workers were entitled to a bargaining unit in Camden and Kentish Town (London), which would entail ‘worker’ status. Deliveroo’s lawyers successfully argued that their workers were independent contractors because of the workers’ ‘right to substitute’. In other words, the worker may be signed in to their Deliveroo account and accept an order, but someone else could perform the delivery. The CAC nevertheless wondered, ‘why would the question of substitution ever arise?’ Deliveroo’s contract offered large amount of flexibility, such as being able to stop an order during the delivery. To us, the answer is clear: employers are placing bogus clauses in contracts so they don’t have to provide basic employment rights. They are in a disproportionate position of power and thus well placed to deceive their workforce when it comes to employment status. As it stands, the High Court has given the IWGB permission to appeal the decision, based on Article 11 of the European Convention on Human Rights. Clearly unions cannot only rely on the courts because there is no victory guarantee. But a lack of recognition is not the end for unions operating in the gig economy – it is a call to creativity. We began organising Deliveroo workers in Brighton when they protested a lack of orders and demanded a recruitment freeze. Within a week, Deliveroo enacted a recruitment freeze. Indeed, before we had won a single case for the couriers, we secured a 25 percent pay rise across four of the biggest courier companies in the UK with a living wage campaign. We cycled with...
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Jan 1, 2020
Thomas D Aaron Wazlavek 
Open Access