Joint Civil Society comments on the draft Convention supplemented by a Recommendation on decent work in the platform economy (Brown report)

The undersigned civil society organisations, non-governmental organisations and unions encourage the ILO and its members to improve the current draft of the Convention supplemented by a Recommendation on decent work in the platform economy presented in the Brown Report so that it can more fully meet the challenges presented by current and emerging practices.

While we welcome the decision of Members of the Committee to adopt a Convention and a Recommendation, we note that important challenges brought about by the platform economy are currently not sufficiently addressed to ensure that workers can enjoy adequate rights and protections. This would risk consolidating an economy that weakens workers’ labour standards, endangers them, submits them to disproportionate surveillance and denies them transparency and accountability in the workplace. It would also embolden employers and intermediaries that wish to deploy similarly harmful practices more widely.

This joint briefing outlines our headline recommendations for changes to key provisions. It reflects our collective views and positions, and links to more detailed versions of these recommendations.

To develop instruments that strongly protect digital platform workers we encourage the ILO and its Members to implement the following measures:

Scope

• Article 1(a) of the Convention: We suggest retaining the definition of “digital labour platform” in a form that covers both platforms that “organise” work as well as platforms that “facilitate” work. This would ensure coverage of a wide diversity of (present and future) platform models, regardless of the way such models influence work arrangements and conditions. More specifically, the inclusion of platforms that “facilitate” work would retain room for the definition to cover a broad range of ‘platformising’ work arrangements, where work is organised by another entity (possibly another intermediary), but facilitated through digital technologies using automated decision-making systems. For the same reason, we suggest the removal of the phrase “upon the request of a recipient or requestor”, since it threatens to limit the definition to include only marketplace platform-models, which connect workers with consumers seeking their service. This risks excluding a wide array of platform-mediated work-arrangements, including those in which platforms’ relationship with workers is intermediated by subcontractors or other third-parties. Further, we suggest that the language “remuneration and payment” be retained to ensure that all workers, regardless of classification, are guaranteed adequate and timely income.
• Article 2 of the Convention: We suggest the removal of the exception provided by Article 2(2) and the following Articles 2(3), 2(4) and 2(5) as to encourage signatories to address the challenges of the platform economy in its full diversity and to aim to protect all platform workers from the onset.

Fundamental principles and rights at work

• Article 3 of the Convention: We suggest retention of the Article 3(2) dedicated clause on freedom of association for platform workers. Further, we recommend the inclusion of “…and ensure adequate protection against any reprisal by digital labour platforms” to Article 3(2) to affirmatively protect workers from reprisal (or the threat thereof) from platforms if and when they attempt to exercise their rights to freedom of association and collective bargaining.
• We suggest including the right to an Adequate Standard of Living, according to the Universal Declaration of Human Rights (UDHR), and including mention that all workers have the internationally recognized right to benefit from just and favourable working conditions. 

Occupational health and safety and workplace violence

• Article 4: Consistent with the proposed alternative to Article 4 by the Office, we recommend a new Article containing two paragraphs: the first would reflect general principles, and the second would draw substantially on the approach used in Article 6 of Convention No. 155, which refers to the functions and responsibilities of each actor. Further, we recommend rejecting the Office suggestion to move Article 4(2) to the Recommendation. If Article 4 is replaced with the wording proposed in paragraph 48 of the Office commentary, Article 7 can be removed.  Ensuring a safe and healthy working environment is a recognised labour standard, clearly distilled responsibilities for public authorities, digital platforms, digital platform workers, and others are critical to responding to the extreme occupational health and safety risks facing workers in the digital platform economy. Precarity of work and pressure created by algorithms deployed by digital labour platforms can incentivise workers to take greater risks and put themselves in dangerous situations. For instance, data workers face extreme occupational safety and health risks, amounting to workplace violence – including industry conditions that inflict physical, psychological, and sexual harms. Digital platform-based food delivery riders also face occupational safety and health risks associated with riding long hours in traffic in unsafe road conditions, exacerbated by extreme weather conditions, including rising temperatures, and lack of access to medical leave and support.
• Article 5: We recommend retention of Article 5(a), especially in light of documented failure by digital platforms and their intermediaries to disclose and address occupational health and safety risks. However, these risks arise not only from lack of training, equipment, and personal protective equipment. Instead, occupational health and safety harms to workers are rooted in work processes including prolonged exposure to cues of violent content for data workers without mental health support and safeguards; and pressure to meet production targets at the expense of health in sectors ranging from data work to delivery riding.
• Article 6: We suggest removing Article 6(b) as it risks allowing employers to evade responsibility if a worker fails to comply with this duty, which may happen in the event of injury, including adverse psychological effects of armed robbery, assault, and other serious crime. This would strengthen the accountability mechanism being put in place.
• Article 8: We recommend retention of Article 8 in its current form.

Proper employment relationship

• Article 10: Despite being subject to algorithmic systems that control and direct their work, many platform workers are wrongly classified as independent contractors. This denies them the full rights and protections afforded to employees and is an issue that should be addressed effectively through this Convention. We support Article 10(1) and recommend an addition that recognizes the range of approaches to determine the employment relationship, including a legal presumption of employment. We suggest removing Article 10(2), as a proper classification would render the paragraph redundant.

Guarantee of fair and living wages

• Article 11: Remuneration or payment should reflect the full duration of working time, including wait times, so that income meets fair and living wage standards. Moreover, workers should be fully compensated for expenses or other costs incurred in the performance of their work, ensuring that earnings correspond to take-home pay. We suggest keeping the reference to “calculated on a piece-rate basis” and rejecting the inclusion of the proposed language in paragraph 66. We further suggest deleting 11(b), as it risks undermining fair pay.
• Article 12: We recommend keeping Article 12 in the Convention to ensure Member States regulate the conditions and extent of deductions, including with regards to the charging of fees.
• Article 13: We recommend rejecting the proposed consolidation with Article 21. To support the effort to increase transparency, we, however, recommend that Article 21 include a requirement for digital worker platforms to provide information on how remuneration and any deductions are calculated within the terms and conditions of their employment or engagement.
• Paragraph 14 of the Recommendation: We recommend rejecting the Office’s proposal to consolidate Paragraph 14 and 15(a). Compensation for waiting time is a critical question for platform workers and the wording of paragraph 15 would not provide the same degree of clarity as to the need to ensure predictable and fair compensation for waiting time.

Access to social security

• Article 14 rightly calls for measures to ensure that all platform workers are effectively covered by social security. We recommend that Article 14 clearly states that such coverage should include access to pensions, unemployment, sickness, disability, maternity leave and parental benefits, consistent with ILO Convention No. 102 and Recommendation No. 202.
• Paragraph 17 of the Recommendation: We recommend rejecting the Office’s proposal to add “and the classification of digital platform workers”, as this would limit the reach of the instrument and the protection it aims to confer to digital platform workers.

Transparency and explainability for algorithmic decisions

• Article 15: We recommend requiring platforms to maintain a public register of automated systems deployed and provide workers and their representatives with comprehensive information in accessible language about their purpose, design and functioning. Such information should be provided to workers before they are subject to an automated system and following any updates of the systems concerned.
• Article 17: We recommend requiring the written explanations provided to workers to be personalised and to include detailed information in accessible language, including the key parameters considered and their values, the logic of algorithms and the level of human oversight. Workers should also have access to review by a human being for any decision that impacts their working conditions or access to work.  Additionally, we recommend that the article require platforms to be subject to independent algorithmic audits by public or multistakeholder bodies, to prevent bias and ensure accountability.
• Paragraph 22 of the Recommendation: We recommend requiring member-states to encourage digital labour platforms to report the impact assessments and results of the monitoring and evaluation of their automated systems to relevant state authorities, representative workers’ organizations and where they exist, organizations representing digital platform workers. Such reports should clearly and accessibly highlight the potential risks and differential harms posed by such systems on fundamental principles and rights at work.
• Paragraph 23 of the Recommendation: We recommend further expanding the level of information provided to workers before and after a decision is taken. In addition to the information already described in the provision, it should include the categories of data and action monitored, supervised or evaluated by the automated systems and the categories of decisions taken or supported by such systems; the aim of the monitoring and how the system is used to carry out the monitoring; the categories of data that have an impact on working conditions (including but not limited to the assessment of an remuneration of work carried out); and the way in which the personal data or behaviour of the worker influences these decisions.
• Paragraph 32 of the Recommendation: The obligation on states to protect workers’ privacy while devising compliance mechanisms should be retained. We recommend that this provision be supplemented with additional language encouraging Member States to ensure access to complaints mechanisms through which workers can participate in decision-making in relation to the use of their personal data, for algorithmic management and for other secondary purposes, if any, and to the use of automated systems that impact their working conditions.

Protect workers’ data and privacy

• Article 18: We recommend ensuring the existence of safeguards to protect both workers’ privacy and personal data rather than only the latter according to international standards and human rights instruments. Digital Platform Workers are likely to use their personal device to perform work on platforms through apps and websites that can require access to sensitive sensors and data. This porous limit between workers’ private life and their work creates risks of interference and can affect workers’ autonomy, hence requiring strong safeguards to ensure workers’ right to privacy is protected. Additionally, we recommend the article mentions that, besides data minimization, platforms must guarantee workers data access, portability, and correction and erasure rights, and prohibit the commercial exploitation of their data.

Meaningful human intervention

• Article 15: We recommend providing workers with an explanation of how oversight of the automated system is provided, and in particular the role that human oversight plays in that process.
• Article 17: We recommend supporting the language proposed by the Office of “review conducted by a human being” and suggest requiring platforms to provide workers with access to review by a human being for any decision that impacts their working conditions or access to the right to work.

Appropriate mechanisms to challenge adverse decisions and ensure access to effective remedies

• Article 24: We recommend ensuring access to dispute resolution and remedies is made available within a reasonable time and without undue delay considering the speed and frequency with which decisions can be made by automated systems. Besides, remedy mechanisms should be consulted with workers to ensure they are adequate to their realities, necessities and living conditions, guaranteeing expedited pathways that allow workers to keep developing their tasks while the remedy process is ongoing.
• To this end, we recommend designating a neutral and independent authority to audit and monitor such decisions, taking into account the statements of both parties involved and ensuring effective, timely redress. The neutral authority shall periodically review algorithmic decision-making processes to prevent systemic biases, ensure transparency, and promote accountability in automated management systems.

Signatories:

TEDIC, Paraguay

Privacy International

Fairwork, Argentina

Médecins du Monde France                                                                               

Equidem

IT for Change

Human Rights Watch

Maison des Livreurs – Bordeaux

Coopcycle-Association :  Maison des Coursiers – Paris