Italian Labour Law e-Journal https://illej.unibo.it/ <strong>Italian Labour Law e-Journal (ILLeJ) – ISSN 1561-8048</strong> is an open-access peer-reviewed Journal aiming at the advancement of comparative studies on current labour law topics. en-US <p>The copyrights of all the texts on this journal belong to the respective authors without restrictions. Authors grant to the journal a non-exclusive right to publish their work.</p><div><a href="http://creativecommons.org/licenses/by/4.0/" rel="license"><img src="https://licensebuttons.net/l/by/4.0/88x31.png" alt="Creative Commons License" /></a></div><p>This journal is licensed under a <a href="http://creativecommons.org/licenses/by/4.0/" rel="license">Creative Commons Attribution 4.0 International License</a> (<a href="http://creativecommons.org/licenses/by/4.0/legalcode">full legal code</a>). <br /> See also our <a href="/about/editorialPolicies#openAccessPolicy">Open Access Policy</a>.</p> illej@unibo.it (Emanuele Menegatti) ojs@unibo.it (OJS Support) Thu, 21 Jul 2022 00:00:00 +0200 OJS 3.2.1.4 http://blogs.law.harvard.edu/tech/rss 60 Editorial https://illej.unibo.it/article/view/15216 Emanuele Menegatti Copyright (c) 2022 Emanuele Menegatti https://creativecommons.org/licenses/by/4.0 https://illej.unibo.it/article/view/15216 Thu, 28 Jul 2022 00:00:00 +0200 The EU Commission’s proposal for a Directive on Platform Work: an overview https://illej.unibo.it/article/view/15233 <p>This article discusses the proposal for the EU Directive on Platform Work. While welcoming the proposal advanced by the Commission, it highlights some of its shortcomings and suggests more robust protection both for the draft Chapter on the presumption of employment, which risks being vastly ineffective, and the Chapter on algorithmic management, whose protection needs a full extension to the self-employed, more substantial collective rights for workers, and broadening the scope to the entire EU workforce.</p> Valerio De Stefano Copyright (c) 2022 Valerio De Stefano https://creativecommons.org/licenses/by/4.0 https://illej.unibo.it/article/view/15233 Thu, 21 Jul 2022 00:00:00 +0200 The legal status of platform workers: regulatory approaches and prospects of a European solution https://illej.unibo.it/article/view/15210 <p>The categorisation of platform workers as employees, self-employed or a tertium genus is arguably the single most decisive element determining their legal position across countries. The contribution provides an insight into the status quo in European jurisdictions, based on a comprehensive review of national case law on the classification of various types of platform workers. On this basis, it offers some considerations on the viability of an approach as proposed by the European Commission (which focuses on a legal presumption of employee status) as well as the more general question of realistic legislative strategies to ensure platform workers the protection they need.</p> Christina Hießl Copyright (c) 2022 Christina Hießl https://creativecommons.org/licenses/by/4.0 https://illej.unibo.it/article/view/15210 Thu, 21 Jul 2022 00:00:00 +0200 De-gigging the labour market? An analysis of the ‘algorithmic management’ provisions in the proposed Platform Work Directive https://illej.unibo.it/article/view/15027 <p>Workers are increasingly being managed by technologies. Before spreading to larger segments of the labour market, algorithmic management systems were a signature feature of platform work. The exercise of power through digital labour platforms is one cause of the precarious working conditions in this area, an issue that could soon concern a wider group of workers in traditional economic sectors.<br />This article elucidates the provisions regulating algorithmic management in the proposed EU Directive on improving working conditions in platform work, which tackles automated surveillance and automated decision-making practices. The proposed Directive mandates the disclosure of their adoption and sets out information and explanation rights regarding the categories of actions monitored and the parameters considered. Unlike rules concerning the presumption of employment status, the provisions on algorithmic management apply to all platform workers, including genuinely self-employed persons.<br />Before offering a reasoned overview of the legal measures envisaged in the proposed text, this article grapples with the process leading to the proposed Directive in order to reveal the background and alternatives to the current formulation. It addresses the interplay between the text and other instruments regulating the deployment of technologies for managing workers. The steps intended to hold platforms to account are remarkable, but the regulatory technique could result in partially overlapping models, thereby increasing legal uncertainty and arbitrage.</p> Antonio Aloisi, Nastazja Potocka-Sionek Copyright (c) 2022 Antonio Aloisi, Nastazja Potocka-Sionek https://creativecommons.org/licenses/by/4.0 https://illej.unibo.it/article/view/15027 Thu, 21 Jul 2022 00:00:00 +0200 A step towards digital self- & co-determination in the context of algorithmic management systems https://illej.unibo.it/article/view/15220 <p>Developing a legal framework for algorithmic decision-making and monitoring represents one of the main challenges of modern societies, deeply rooted in the technical complexity and the resultant inability to cognitively capture the inner workings of the relevant technology. In the employment context, the additional challenge boils down to ensuring a regulatory balance between the managerial prerogatives of the employer without compromising any human rights of the workers. Algorithmic management for years remained thus, apart from EU general data protection rules, largely unregulated phenomenon.</p> <p>The contribution focuses on providing a preliminary assessment of the algorithmic management provisions of chapter III of the proposal for a Directive on improving the working conditions in platform work, and outlining recommendations for strengthening the platform workers’ rights to digital self- and co-determination, that seems to be fundamental for mitigating the profound asymmetries of knowledge and power observed in the platform economy.</p> Marta Otto Copyright (c) 2022 Marta Otto https://creativecommons.org/licenses/by/4.0 https://illej.unibo.it/article/view/15220 Thu, 21 Jul 2022 00:00:00 +0200 Proposal for a directive on platform workers: enforcement mechanisms and the potential of the (Italian) certification procedure for self-employment https://illej.unibo.it/article/view/15224 <p>In the frame of the draft directive enforcement measures, the essay investigates the advisability of adopting the certification procedure for employment contracts in order to ensure the correct use of genuine self-employment in the digital platform economy. This is a hypothesis evaluated (and discarded) by the European Commission during the consultations for the adoption of the proposal for a directive on platform work.<br />Starting from the implementation criticalities related to the legal presumption and the indices of subordination (Chapter II, proposal for a directive) in national legal systems, the centrality of enforcement mechanisms for verifying the correct contractual qualification is highlighted. However, in addition to the “ex post” enforcement tools, it may be necessary to build “ex ante” verification systems, with a deflationary nature, to be activated at the time of signing the employment contract, especially in the area of self-employment. These considerations are advanced by taking as an example the Italian model of the “Certification Commissions”, in which the European Commission had shown interest.</p> Maria Giovannone Copyright (c) 2022 Maria Giovannone https://creativecommons.org/licenses/by/4.0 https://illej.unibo.it/article/view/15224 Thu, 21 Jul 2022 00:00:00 +0200 The Rebuttable Presumption of Employment Subordination in the US ABC-Test and in the EU Platform Work Directive Proposal: A Comparative Overview https://illej.unibo.it/article/view/15221 <p>The contribution provides a comparison between the regulatory solutions of the ABC-Test in the US and of the EU Directive Proposal on platform work. The Authors underline the significant differences between the two models at stake, despite the common recourse to the rebuttable presumption of employment subordination technique.</p> William B. Gould IV, Marco Biasi Copyright (c) 2022 William B. Gould IV, Marco Biasi https://creativecommons.org/licenses/by/4.0 https://illej.unibo.it/article/view/15221 Thu, 21 Jul 2022 00:00:00 +0200 What Impact Will the Proposed EU Directive on Platform Work Have on the Italian System? https://illej.unibo.it/article/view/15213 <p>The European Commission’s proposal for a Directive on improving working conditions for platform work is probably the most discussed and scrutinized draft of a potential European Union legislative act ever. Here, the Directive is analysed from the perspective of the Italian system. We assess the concrete impact at the national level and determine whether Italian lawmakers need to issue new statutes to comply with the Directive and, if so, how the Directive should be implemented properly at the national level. Possible impacts on the law’s interpretations by judges/authorities are considered.<br />The analysis evaluates the Directive from the perspective of its effectiveness in reaching its main goal of “improving working conditions in platform work” in general and considering the Italian legal context in particular. This contribution focuses on Chapter II of the Directive on employment status.<br />Overall, the Directive could alter the traditional classification of working relationships and reinforce the EU embracement of a dichotomic approach, splitting the working relationships into employment and autonomous work. Thus, Italian legal interpreters should commit to connecting their interpretations to those of the Court of Justice of the European Union in all litigations concerning the correct classifications of working relationships. Moreover, lawmakers should avoid a situation in which some platform workers are classified as self-employed within the Italian system when they fall under the Directive’s employment presumption.</p> Maurizio Falsone Copyright (c) 2022 Maurizio Falsone https://creativecommons.org/licenses/by/4.0 https://illej.unibo.it/article/view/15213 Thu, 21 Jul 2022 00:00:00 +0200 Collective voice in fixing minimum wages: social partners’ participation from the ILO and EU perspectives https://illej.unibo.it/article/view/14899 <p>This paper examines the involvement of social partners in the mechanisms of fixing minimum wages in the light of the pertinent ILO Convention No. 131 and the proposal for a Directive on adequate minimum wages in the European Union. The author draws attention to the differences between the said Convention and the draft Directive with regard to the types of wage-fixing mechanisms as well as the form, scope and significance of involvement of social partners and other entities in their operation. The paper further analyses the influence of ILO Convention No. 131 on the draft EU directive and the significance of the latter for the dissemination of standards applicable to minimum wage fixing mechanisms in the EU Member States. These issues are examined against the backdrop of their growing importance—as observed in recent years— in the international legal and EU discourse concerned with adequate working conditions to ensure more sustainable and inclusive social-economic development.</p> Katarzyna Bomba Copyright (c) 2022 Katarzyna Bomba https://creativecommons.org/licenses/by/4.0 https://illej.unibo.it/article/view/14899 Thu, 21 Jul 2022 00:00:00 +0200 Social Europe in times of crises: what lessons can be gleaned from the past? https://illej.unibo.it/article/view/15222 <p>This paper aims to ask whether the social dimension of the European Union still exists in a period of two crises (the pandemic and the war in Ukraine), which have strongly been hitting the economies and societies all over the world. To understand the EU’s reaction to both the emergencies it is necessary to trace the path of EU labour law from the beginning: the story of the European Union in the social field is a story of progressive enforcement of its competencies but also of continuous stops and goes form the political point of view.</p> Massimiliano Delfino Copyright (c) 2022 Massimiliano Delfino https://creativecommons.org/licenses/by/4.0 https://illej.unibo.it/article/view/15222 Thu, 21 Jul 2022 00:00:00 +0200 The French platform workers: a thwarted path to the third status https://illej.unibo.it/article/view/14091 <p>In France, the issue of platform workers is the subject of a clear tension between the legislator and the civil judges. A tension that the European Commission, but also the Criminal Court of Paris, participate to feed.</p> Barbara Gomes Copyright (c) 2022 Barbara Gomes https://creativecommons.org/licenses/by/4.0 https://illej.unibo.it/article/view/14091 Thu, 21 Jul 2022 00:00:00 +0200 The Polish Women’s Strike, abortion, and the right to strike https://illej.unibo.it/article/view/15020 <p>On 22 October 2020, the Constitutional Tribunal (Poland’s constitutional court) issued a ruling that effectively restricted the legality of abortion, which triggered massive protests (“women’s strike”). In this paper, I take a deeper look at the women’s strike in Poland in order to examine whether its central demand, i.e. the change of law on abortion, pertains to occupational or socio-economic interests of workers and thus meets the criteria for subject matter appropriate to a strike. I also discuss whether this demand may be raised by an actor, such as the “Polish Women’s Strike”, that is not a labour union. The model of the right to strike enshrined in the Polish Constitution and ILO standards (ILO case no 3111 against Poland) prompts a broad interpretation of the right to strike, which leads to the conclusion that politically motivated strikes are allowed under Polish law. I then review the potential interdependencies between abortion and workers’ rights and argue that changing the law on abortion meets the legal criteria for strike demands. Nevertheless, organizations that are not created to represent the collective interests of workers have no legally sanctioned powers to call a strike.</p> Piotr Grzebyk Copyright (c) 2022 Piotr Grzebyk https://creativecommons.org/licenses/by/4.0 https://illej.unibo.it/article/view/15020 Thu, 21 Jul 2022 00:00:00 +0200 The remote working model for Polish labour law https://illej.unibo.it/article/view/13841 <p>The concept of “remote work” in Poland appeared in connection with the introduction of the epidemic in March 2020. The provisions of the anti-covid-19 act in article 3 introduced remote work, which excluded the practical significance of telework, currently regulated in the Labor Code due to the pandemic. The new vision of remote working in Poland assumes the voluntary nature of remote work by the parties and its obligation in emergencies. This is the basic premise of the proposed regulations. The current provisions on teleworking ensure full freedom of the parties to the employment relationship in the field of remote or stationary work. However, the Polish legislator is looking for an alternative to telework based on labor law provisions, which, as this article will show, is a complicated procedure because the difference between remote work and teleworking is slight. The author analyzes and evaluates the current model of teleworking in the Labor Code and the model proposed by the legislator in the draft amendment. At the same time, the article aims to answer the remote working model in Polish labor law.</p> Łucja Kobroń-Gąsiorowska Copyright (c) 2022 Łucja Kobroń-Gąsiorowska https://creativecommons.org/licenses/by/4.0 https://illej.unibo.it/article/view/13841 Thu, 21 Jul 2022 00:00:00 +0200