Rethinking the allocation criteria of the labour law rights and protections: A risk-based approach

Abstract

The present paper investigates the ongoing validity of the notion of subordination as selection criteria to allocate the labour protections in the contemporary economic framework. The gig economy is deeply affecting the way of working, transforming the employee in a service provider. This phenomenon is partially due to the progressive shift from a firm-based production model towards a market transaction based one. Although its lawfulness is still unclear, it highlights that the way of working is changing in a way that struggles to fit into the classic legal categories. This is mainly due to the fact that the labour protections are usually bestowed moving from a notion of subordination highly focused on the organisational element. Thus, economic actors suffering from the same economic weakness of the employees, but organisationally independent, struggle to obtain the necessary protections.

Moving from those remarks the author suggests rethinking the allocation criteria of the labour protections, adopting economic weakness as the main criterion. This category should encompass all the individuals performing a working activity that are not able to significantly influence its financial outcome. The aim of such reform should be to extend the labour protections to all the subjects needing them.

The final part of the paper investigates the possible solutions under the current legal framework. The major finding is that under certain circumstances the gig workers can be qualified as temporary employees not of the platform, but of the contractor. In this scenario, the digital platforms should be deemed as job-placement service providers and, thus, they should comply with the relevant provisions. These include the eventual need of administrative authorisations and the free-of-charge principle, whose violations represent, in several jurisdictions, a criminal offence