A new report, published today by the International Bar Association Global Employment Institute (IBA GEI), joins the debate on the On-Demand Economy and gives an overview of how different countries are coping with this relatively new phenomenon.
Together with George Waggott (Canada), VOW partner Chris Van Olmen has coordinated the report. Chris is board member and secretary of the IBA's Global Employment Institute. The new report also features contributions form 16 jurisdictions. VOW partner Nicolas Simon is the author of the Belgian chapter.
Feel free to download the full report below.
The On Demand Economy (ODE) continues to be the subject of an important legal debate tied to the future of work and how employment law can or should deal with new and hybrid forms of work. Famous ODE examples, each operating in a highly disruptive context, include Deliveroo, Uber and Amazon Mechanical Turk. These companies and others platforms and services have become prominent based on turning traditional markets, structures and forms of work upside down. In their operations, these ODE organisations usually do not see a place for the traditional restrictions or mandatory requirements of employment law, usually because they refuse to qualify themselves as employers and their workers as their employees. By claiming that they only make it possible for independent service providers and customers to connect with each other on their online platforms, ODE organisations often try to escape or minimize any legal responsibility. However, this approach does not perfectly fit in the legal systems of many countries.
Chris Van Olmen, Board Member of the IBA Global Employment Institute and co-coordinator of the report, states: “The ODE is advantageous to many. It has opened a wide range of opportunities for entrepreneurs who strive after innovation. This has led to an explosion of the ODE in recent years. While there may be advantages for ODE workers, such as a great flexibility in allowing them to work whenever they are available, there are also potentially serious disadvantages for workers. In addition, the ODE model may possibly create actual or perceived unfair competition for traditional companies. The Report will hopefully be helpful to a wide range of readers since it provides a clear overview of these issues in different parts of the world.”
A particular area of emphasis in the report is how ‘gig’ or ODE workers are treated under the current approach in various legal systems in 16 countries across five continents. It includes contributions from national legal experts in Argentina, Australia, Belgium, Brazil, Canada, China, France, Germany, India, Ireland, Italy, Mexico, the Netherlands, Spain, the United Kingdom and the United States. Combined, these countries account for more than half of the global population.
The report looks at the situation of the ODE in these countries from different perspectives of employment law, including the following:
- How does a jurisdiction classify or characterise the relationship between the ODE organisation/company and the ODE worker?
- What is the most important applicable legislation and case law on the issue of ODE workers?
- Are ODE workers protected against discrimination?
- What happens if the relationship or contract between the ODE company and the ODE worker is terminated by the ODE company?
- Is health and safety legislation applicable to ODE workers?
- How should ODE companies deal with the protection of intellectual property and confidentiality?
- Should ODE companies pay social security contributions and taxes on the services of the ODE workers?
- What are the market trends and emerging issues in relation with ODE?
George Waggott, co-coordinator of the report, says: “Thanks to the expertise of the contributors from the selected jurisdictions, we were able to review the current landscape across key economies. From there, we then have noted the most important gaps in existing national employment laws and we have also identified alternatives for possible ways to fill these gaps. The Report therefore concludes with several recommendations and outcomes.”
Legal uncertainty facing ODE organisations and workers causes inefficiencies in the labour market and may prove counterproductive to innovation. Many ODE workers are confronted with a lack of legal protection or insecurity about their rights and obligations, which might lead to potential exploitation of ODE workers by the ODE companies. To keep up with the ongoing and increasing presence of the ODE model and the appetite of many organisations to engage ODE workers, the report states that virtually all jurisdictions, including those that have already made some legislative changes, will need to contemplate a review of their workplace laws and tax rules. The report should therefore be a helpful starting point for legal and HR practitioners who can expect that they will, by necessity, became increasingly engaged on these issues.