Representation, Voice, Organizing On-Demand and Collective Bargaining in the Gig Economy

* Report: Organizing on-demand: Representation,voice, and collective bargaining in the gig economy. By Hannah Johnston and Chris Land-Kazlauskas. ILO, Conditions of Work and Employment Series No. 94, 2018

URL = http://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---travail/documents/publication/wcms_624286.pdf

Description

"We begin with an overview of gig and platform work and the structural and institutional challenges that gig- and platform-based workers in building collective, group agency. This is followed by a review gigworker organizing strategies based on the institutions or organizations that workers have formed or joined for the purpose of building agency. We stress the importance of workers’ organizations – broadly defined – as a site to agglomerate the economic, political, and cultural resources necessary to provoke change.

The tenure of organizations allows workers to experiment with various tools and strategies to improve conditions and adopt those that are effective (Dias Abey, 2017). The four organizational structures we explore (union renewal strategies and new organizing initiatives, worker forums, worker centres, and cooperatives) represent a comprehensive list of organizations that are actively organizing and supporting gig economy workers. Given the rapid turnover of the on-demand workforce, we view the tenacity and adaptive strategies of workers’ organizations as vital to developing a sustainable and dynamic labour movement. Each initiative examined has its own section delineated by a heading and a summary of the principle strategies used. We then turn to efforts by employers’ organizations to support their members in adapting to, and influencing these new realities.

The paper ends with a discussion of barriers that self-employed platform workers face to effectively achieve collective bargaining and efforts to achieve effective representation and collective bargaining for workers in the gig economy. In this section we discuss important steps that could be taken to ensure the right to freedom of association and the effective recognition of the right to collective bargaining among independent contractors, who often find their these rights curtailed by anti-trust legislation.

This section also highlights a number of recent efforts at collective regulation undertaken by workers and platforms in the gig economy.

Whereas digital labour platforms are often regarded as innovative and cutting edge “disruptors”, antiquated notions of collective bargaining pervade the discourse surrounding the gig economy. In light of the institutional flexibility and adaptability of collective bargaining, we examine the successes and challenges that gig workers have experienced in their early expressions of collective agency. Reflecting on the varied expressions of agency, and with careful consideration for the enforceability of collective gains, we offer recommendations that promote a role for collective bargaining as an important institution that can contribute to tailored, fair, and decent regulation in the gig economy. We maintain that technological innovation (including through the 4th industrial revolution) and collective bargaining are not mutually exclusive; an inability to conceive of their coexistence is nothing more than a failure of the imagination.

This paper is the result of extensive research conducted from October 2016 through December 2017. Industry trends and general themes were assessed through secondary sources including academic, industry, trade union, employers’ organizations and governmental publications. News stories provide context-specific information on targeted initiatives and case-specific developments. This background information is complimented by over twenty interviews with key informants working on issues relating to the gig economy and platform based employment. The strategies that appear under each section should neither be conceptualized as unique nor exclusive to the framework within which they are classified. Instead, this categorization helps to explore the central mechanism through which worker agency originates and evolves.

As has been the case throughout modern history, collective bargaining holds promise for responsive regulation balancing the needs of platforms, requestors, and those performing work through them. However, to be sustainable, improvements achieved through bargaining must be enforceable; a challenge we regularly observed. While some promising examples have been identified, the full development of collective bargaining is a challenging prospect for a host of reasons; regulatory lacunae – including unresolved allegations of worker misclassification – raise fundamental questions over the rights of gig workers.

In presenting these findings, and notwithstanding the challenges surrounding employment classification, we hold that labour performed under the banner of apps and platforms should be recognized as work, and that the people performing on-demand labour must be recognized as workers. This premise has important implications for freedom of association and effective recognition of the right to collective bargaining for gig and platform workers and NSE more generally, and must be acknowledged given the applicability of international labour standards in this context. The realization of these protections requires a review of existing, and where appropriate the development of new, regulations to ensure a level playing field. It may also require an adaptation of machinery used for regulating terms and conditions of work, including through collective bargaining, for bona fide independent contractors. Appropriate workplace protections must be afforded and fundamental principles and rights at work promoted, respected and realized no matter how work is structured."

Contents

INTRODUCTION

• 1. GIG AND PLATFORM WORK: AN OVERVIEW

• 2. TRADE UNION APPROACHES

1. LEGAL STRATEGIES
2. UNION-AFFILIATED GUILDS
3. NEW LEGISLATION #THE ORGANIZING TURN: NSE AND GIG WORKER OUTREACH IN EUROPE AND THE US
4. NEW UNIONS AND WORKER ORGANIZING

• 3. ONLINE FORUMS

• 4. WORKER CENTRES

• 5. WORKER COOPERATIVES

1. PLATFORM COOPERATIVES
2. SHARING RESOURCES AND IMPROVING ACCESS TO SOCIAL WELFARE PROGRAMMES THROUGH COOPERATIVES

• 6. EMPLOYER INITIATIVES

1. A LEVEL PLAYING FIELD #EMPLOYER-UNION COLLABORATION

• 7. TOWARD COLLECTIVE BARGAINING

1. ANTI-TRUST AND COLLECTIVE BARGAINING IN EUROPE
2. COLLECTIVE BARGAINING LEGISLATION – AND ANTI-TRUST LITIGATION – IN NORTH AMERICA
3. WORKS COUNCILS
4. COLLECTIVE AGREEMENTS?

CONCLUSION

Excerpt

Union-Affiliated Guilds

Hannah Johnston and Chris Land-Kazlauskas:

"The Independent Drivers Guild (IDG, or ‘the Guild’) is an affiliate of the International Association of Machinists and Aerospace Workers (IAM). IDG asserts that it represents 50,000 New York City Taxi and Limousine Commission-Licensed Uber drivers (Independent Drivers Guild, 2017). The Machinists’ Union has decades of experience organizing and representing the mostly immigrant workforce of black car drivers in New York City (Ness, 2010). While the IAM registered some isolated wins, including collective bargaining agreements with a number of black car companies, the industry’s structure and regulatory framework, paired with Uber’s disruptive market entry resulted in significant challenges to solving problems “base by base”. Thus, IDG was formed to help achieve wide-reaching industry reforms and create opportunities for dialogue between Uber drivers and the corporation. The five major issues the IDG has sought to influence include: a mandated tipping option; a minimum per minute / per mile rate (which would result minimum earnings of about $250 for an eight-hour day); a cap on the number of TLC licenses (linked to number of trips, as a measure to limit competition in the labour market), and the right for a driver to appeal if the company undercharges or takes away money (for example, following a passenger complaint).

According to Ryan Price, Executive Director of the IDG, “while it could be done company-by-company, given the precariousness of the industry, company-by-company organizing would make it difficult to focus on the "big" issues. The Machinists realised an industry-wide association may be more effective, so we started bargaining with Uber to make the Guild happen.” What resulted was a five-year neutrality and recognition agreement between IAM and Uber, giving rise to a number of benefits, including a regular dialogue with local management.10 “We are building a union – without collective bargaining – but we function like an organizing union,” explains Price, “Our goal is to get them organized, and to get us to start thinking in a perspective of, ‘how do we change the fundamental rules of the industry?’ without worrying about the employee-independent contractor thing for now – just putting that on the backburner.”

As offered by Kelly Ross, one of the benefits of the guild model is that it represents an avenue for unions to form relationships with gig and platform-based workers that positions them, should conditions change and formal union recognition become an option, to mobilize members into a formal organizing drive.

This view was shared by IDG’s Price, “The thing is, in our agreement [with Uber], as soon as [Uber drivers] have the right to collective bargaining, we can, and we will organize for collective bargaining.”

While the Guild’s direct engagement with Uber has not gone without criticism12 it has provided what it views as an important comparative advantage: access. This includes access to the pool of Uber drivers, and access to the company itself – through a works council13 – where the drivers represented by the Guild can raise issues with a view to their resolution. While the latter will be addressed under the section entitled “Toward Collective Bargaining”, access to drivers is seen by the Guild as an important factor influencing their strategy.

Finding and developing relationships with a dispersed workforce can be a major obstacle to organizing in the gig economy. The agreement with Uber provides IDG with driver contact information, a factor that has been incredibly important in shaping strategy. As Price points out, “Our organizing model is based on the fact that we have that list [of Uber drivers], because we can e-mail them all the time. [W]e can turn that contact into actual relationships through the stewardship programme. So, essentially, the staff– become just a hub that connects workers [with] other workers.”

Developing contacts into active representatives has been a major focus on the Guild. Price states,

- 'Their goal is [to] help [drivers] through the industry; they help them with the Taxi and Limousine Commission, they help them communicate with companies, they help them with the N.Y.P.D. if they have to, they help them translate things. So our goal is, with our stewards, to build an actual union to build the feeling of community, the relationships that really are the brick and mortar, like the cement between the bricks of union'." (http://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---travail/documents/publication/wcms_624286.pdf)

From the conclusion

"A variety of different organizational structures are helping workers to foster opportunities for agency, voice, representation, and power in the gig and platform economy. Unionization, worker centres, cooperatives, and online forums represent a host of initiatives aimed at encouraging communication and contact between workers, engaging with employers, increasing workers’ political and legal consciousness, and improving workplace standards. In an effort to foster collective action and increase representation opportunities for workers, each of these draws on a number of different strategies to provide workers with a voice in the workplace, with a view to defending rights and advancing interests. Organizing frameworks with high levels of worker-led participation reveal the efficiency of a grass roots, rank-and-file approach. While this has led to strong campaigns, worker centres and small minority and independent unions face significant obstacles related to sustainability. Unpredictable funding renders these organizing models susceptible to external forces that can make long-term strategic planning, and member accountability difficult. Nevertheless, the cases reviewed point to the fact that workers can make substantive gains with respect to employment conditions at either the industry or enterprise level, holding promise for geographically localized on-demand work. Many well-established trade unions have recognized the need to create affiliation opportunities for gig and platform based workers, in line with broader outreach strategies. While engaging in the employee – independent contractor debate through litigation and regulation, structures that permit affiliation by individual workers prior to the establishment of formal union recognition agreements are being, and will continue to be, an important part of a comprehensive strategy.

Servicing independent contractors and self-employed workers has been fairly straightforward for unions and provides an opportunity to increase membership. Unions have had more difficulty bridging the gap from servicing to collective organizing and worker mobilization. In order to overcome these obstacles unions can foster opportunities for all members, regardless of employment classification, to help steer the political and internal trajectory of the union. Esther Lynch of the ETUC acknowledges the merits of organizing by industry but observes also that, “the problems that [gig and platform] workers face are so severe and harsh, and the fact that they are isolated from each other very often, though not always, there is a benefit in a union structure having a particular branch for workers of a [particular industrial] category who are working for an employer that is based online”. Resources directed to the unique challenges of gig and platform based work would allow established organizations to better serve these members and provide both internal and external representation opportunities.

The online and fragmented nature of gig work, both in service provision and also crowdwork, create unique challenges to building collective voice. Online forums have emerged as an important resource for geographically dispersed workers, however they are loosely structured and face challenges fostering collective activity. Nonetheless, the ability for forums and online spaces to attract workers has led unions, worker centres, and other collective representation models to experiment with online forums and apps as part of a broader set of tools to assist in outreach and engagement.

Cooperatives represent a distinct approach for workers to achieve control in the workplace. Platform cooperatives emulate commercial labour platforms while offering an alternate ownership and decision making structure. They are being developed to provide services to gig workers and even, in the case of Belgian cooperative SMart, the protections afforded by an employment relationship.

In all of the initiatives reviewed, it is important to differentiate between advocacy and organizing strategies. Many of the strategies adopted seek to realize policy changes, without necessarily involving, or implying any intention to develop collective bargaining. This can be attributed to any of a number of reasons discussed at length above. Both approaches have value. However they are qualitatively different ends, requiring different strategies to achieve them. Policy change can be won with advocacy power alone, through lobbying, campaigning and influencing; while worker engagement can help build effective campaigns, it is not necessarily a prerequisite to their success. Collective bargaining, on the other hand, while harder to achieve, represents a process of self-regulation which allows for much greater democratic influence from workers, employers and their organizations.

From the cases analyzed, it would appear that gig workers must face a number of hurdles in achieving bargaining, to include:

1) promoting common interests – and overcoming competition – among workers;

2) determining a site (or multiple sites) of agglomeration – virtual, or preferably real – so as to overcome isolation;

3) identifying the bargaining counterpart, and

4) targeting a source of power to make a collective claim.

With regard to the first and second hurdles listed above, Christina Colclough. Senior Advisor at UNI Global Union notes, as commerce and work structures increasingly move online, labour organizations may be well positioned to fulfill some of the social function that workplaces used to. She asks, “Can the trade union movement be the community where people get to meet and they are not competitors? If we think about a future where we are all competing in online jobs, we may need a safe haven where we can come learn, hang out, take a course, which is competition-free. Is that the future? We just don’t know yet.

All options are equally valid; what is most important is that unions are exploring these options.”60 Across all structures and initiatives, workplace gains must be accompanied by some mechanism for enforceability. Some organizations - in particular trade unions - have sought to bring platforms under existing employment legislation, seeking recognition of gig workers’ status as – and the accompanying protection afforded to - employees. To this end, court systems become an important site for interpreting rules and upholding rights, particularly in clear-cut cases of evasion. However, As Cherry (2016) notes, there seems to be little consensus across jurisdictions whether gig workers are employees, as “the tests that would be applied historically are malleable.” This is further elaborated by Rogers (2016) who finds [in relation to Uber and Lyft drivers] that, “the various factors developed in case law to determine employment status point in different and confusing directions” (496). He goes on to suggest that tests be re-oriented toward concepts of ‘unequal bargaining power’ and ‘economic dependence’ which would more effectively demonstrate where workers were at risk of domination; the concept of anti-domination, further justifying the increased recognition of freedom of association and the effective recognition of the right to collective bargaining amongst the panoply of human rights.

Difficulties posed by employment relationship litigation have led to calls for legal and policy reforms from various corners. In addition to proposals to review the criteria used to establish an employment relationship, others are advocating for fundamental changes to how we conceptualize employment by suggesting a third, intermediate category of “independent worker”61 (Harris and Krueger, 2015), a broadened definition of employment (Forbath and Rogers, 2017) or employer (Prassl, 2015), or a complete re-conceptualization moving away from the employment relationship toward “personal work relations” (Freedland and Kountouris, 2011).

Beyond classification issues, and as demonstrated in the early 19th and 20th century anti-trust cases that challenged the legality of the mere existence of trade unions, history has shown litigation to be an imperfect solution to defend collective rights. Legislation (or legislative reform) must be considered as an avenue to ensure that collective labour rights, as fundamental human rights, exist in concert with market efficiency. Ultimately, whether a ‘collection of tasks’ or a series of ‘gigs’ constitutes a fully-fledged employment relationship, work carried out through these platforms is work, the people performing said work are workers, and as workers, the terms of both Convention 87 and Convention 98 apply. Efforts to achieve this balance are already taking place through legal and regulatory reforms, evidenced by the aforementioned cases of Seattle and Ireland.

Given the nature of gig and platform-based work (isolated, highly dispersed across geographically expansive areas, workers entering and exiting, or moving across platforms in search of tasks), and key workforce characteristics (often lacking basic protections of labour law, classified as independent contractors), we find that the gig economy may be particularly well suited for regulation through sectorial bargaining and extension mechanisms. For this reason we are unsurprised that the most advanced examples of collective bargaining in the gig economy come from places like Sweden and Austria, which boast solid legal and regulatory frameworks, strong social partners, and a prevalence of industry-wide collective agreements.

The surest thing about gig and platform work is that it will continue to evolve. Current players dominating markets (and headlines) may not be permanent fixtures in the gig and platform economy, but the trends and technological innovations that they have introduced are shaping, and will continue to shape the future of work. Workplace models that encourage crowdwork, are competition based, rely on on-demand and other just-in-time services are impacting workers now and we should expect these trends to continue.

As the ILO Director-General recently pointed out, “It is fundamentally important that we confront these challenges from the conviction that the future of work is not decided for us in advance. It is a future that we must make according to the values and the preferences that we choose as societies and through the policies that we design and implement” (ILO, 2017).

Worker organizing, the development of agency, voice and representation, and its expression through collective bargaining, are the surest and most democratic way of achieving the future of work we want. When gains are realized through collective bargaining between trade unions and employers or their organizations, and through tripartite dialogue between employers and their organizations, trade unions and the government, we can be sure that achievements are lasting and that the interests of all parties are represented. In the gig economy, just as in Philadelphia in 1944, “freedom of expression and of association are essential to sustained progress.”