PLATFORM WORK IN SPAIN: AN OVERVIEW OF THE MAIN POLICY AND TRADE UNION RESPONSES

Pablo Sanz de Miguel | Juan Arasanz Díaz

Within the European Union (EU), Spain has one of the highest shares of platform workers as a proportion of the total national workforce. According to the second COLLEEM survey developed by the European Joint Research Centre, in 2018 18%

of the working-age population of internet users in Spain had worked on digital platforms at least once (Brancati et al., 2020). This rate is well above the average for the 16 EU countries (11%) covered in the survey (Brancati et al., 2020). When comparing the first (2017) and second (2018) COLLEEM surveys, platform work increased from 12% to 18%. However, the COLLEEM survey results also show, in line with other studies, that platform work is a secondary or marginal source of income for most of the platform workers surveyed in Spain (CCOO Catalunya, 2018; Fernández Avilés, 2018; Huws et al., 2019). Indeed, only 3% of the Spanish working-age population relied on this form of employment as their main job in 2018 (Brancati et al., 2020).

Even though the workers who rely on platform work as their main job are a low proportion of the total national workforce, the role that labour platforms play in the labour market has become a central topic in policy and social partner debates. In a country where precarious employment is a source of great concern, platform work has largely been represented in public debates as a key driving force in the ongoing erosion of labour standards and social protection. Recent social dialogue and policy discussions have addressed two main risks and legal challenges. First, attention has been drawn to the problem of employment sta-tus misclassification. This problem has been discussed in relation to different food-delivery platforms that were classifying their workers as independent con-tractors rather than employees, despite these same platforms determining work organisation and unilaterally regulating working conditions for these workers

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in the manner of an employer. Second, increasing attention has been paid to the challenges brought by algorithmic management in terms of the detrimental effects on working conditions and, in particular, obstacles to the effective exer-cise of trade unions and work councils’ rights to information and consultation (Fernández Avilés, 2018; De Stefano and Taes, 2021).

At an academic level, the topic has also attracted much attention. The number of research projects and scientific publications (such as special issues and papers in national congresses) devoted to the topic has increased substan-tially since 2019. This body of work has three main features. First, the majority of academic literature has been produced from the perspective of labour law.

Research in this area has been particularly concerned with the (mis)classifica-tion of platform workers’ employment status (Todolí-Signes, 2015, 2019; Beltrán de Heredia, 2019; Mella Méndez, 2019); and, more recently, with collective rights and lawful subcontracting practices (Todolí-Signes, 2021). Second, socio-logical research has mainly analysed labour platform management practices (such as algorithmic control mechanisms) and their detrimental impact on workers’ conditions (Alvárez-Hernández and Pérez-Zapata, 2021; Revilla and Blásquez Martín, 2021), as well as recently defined topics including the role played by consumer demand (Alonso and Fernández Rodríguez, 2021). Third, industrial relations research has addressed worker and trade union collective actions and strategies for organising and mobilising platform workers (Martín Artiles et al., 2020).

This chapter aims to provide an overview of the main policies and trade union responses regarding platform work, which are contextualised within broader labour market trends and trade union strategies concerning non-standard or precarious workers. Following these introductory remarks, which highlight the apparent inconsistency between the low incidence of platform work and its high profile in public debate, the chapter is developed in three sections. The first section discusses the expansion of platform work within the highly precarious context of the Spanish labour market. The second sec-tion addresses the regulatory framework of platform work. The third secsec-tion compares recent trade union strategies regarding platform work with previous strategies and actions developed to protect different types of non-standard workers. The chapter finishes with some conclusions.

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Platform work under the Spanish labour market: Exacerbation of long-term trends

Labour platforms have expanded in Spain in a context of high unemployment, a highly segmented labour market and increased weakness in workers’ structural power. This context reflects the aftermath of the 2008 economic crisis and the (de)regulatory responses to that crisis (García Calavia and Rigby, 2016, 2019).

Although the standard employment relationship still represents the most common form of work in Spain, non-standard employment relationships have become more numerous and diverse in the last decade (Riesco-Sanz, 2020a).

Alongside temporary employment, which has accounted for more than 25% of the Spanish workforce since the 1990s, other atypical forms of employment such as internships, dependent self-employment or multi-service company work have expanded. Moreover, research has documented widespread fraudulent practices, which reveal an institutional crisis in enforcing labour standards (Sanz de Miguel, 2021). Fraud, such as bogus internships and self-employment, has become a major problem in the country (García de Madariaga and Arasanz Esteban, 2019; Sanz de Miguel, 2019; Lahera et al., 2020; Riesco-Sanz, 2020a, 2020b). The crisis of labour standards enforcement must be understood in the context of weaken-ing trade unions and a lack of resources in the Labour Inspectorate (Martínez Lucio, 2016; Sanz de Miguel, 2019). In addition, new employment statuses and categories have fragmented employment relationships, which in turn has also challenged enforcement policies and even served to legalise fraudulent practices (Rodríguez-Piñero Royo, 2019).

Considering the state of the labour market, we suggest that labour plat-form business models have tended to exacerbate existing trends towards the commodification and informalisation of employment relationships. Moreover, the detrimental impact of labour platform business models on employment and working conditions may have been aggravated in the specific context of Spain. This is because labour platforms have become present in services and occupations with pre-existing issues: for example, controversies about employ-ment status in the transport sector; and the widespread irregular employemploy-ment and undeclared work modalities experienced in home-care services (Nieto Rojas, 2019).

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Policy responses: Legislation stimulated by social dialogue and case law Up until 2021, there was no regulation specifically covering platform work.

However, in 2021, the left-wing coalition government enacted new legislation specifically targeting platform work (Real Decreto-ley, 2021). This legislation results from a social partner agreement reached in May 2021 between the most representative trade unions and employer organisations at the national and cross-sectoral levels. Legislation has also been stimulated by case law.

This new legislation has addressed two of the most critical elements of labour platform business models – the risk of misclassification of employment status and the challenges brought by algorithmic management to the effective exercise of information and consultation rights for trade unions and work councils. While the problem around employment misclassification has only been regulated for one specific sector (delivery platforms), the regulation of algorithmic manage-ment applies to all types of sectors.

Regarding the misclassification of employment in the field of delivery platforms, this new ‘Riders’ Law’ recognises the ‘presumption of employment’, whereby the responsibility for demonstrating that platform riders meet the criteria for being classified as self-employed lies with the platform company.

The regulation states that the requirement of legal dependence, which is key to understanding whether there is an employment relationship between the work provider and the company, will still be met if an algorithm exercises the employer’s rights of organisation, management and control. It also states that this exercise of managerial prerogatives may be ‘direct, indirect or implicit’.

Thus, whenever the algorithm determines service and working conditions, it shall be understood that the requirement of legal dependence is met. It is worth highlighting that several Court decisions have stimulated regula-tion in this field. In particular, it followed the Supreme Court’s decision of September 2020, which recognised the employment status of food-delivery platforms (Tribunal Supremo, 2020). Crucially, the Supreme Court decision acknowledged the need to adapt the notions of dependencia (dependence) and ajenidad (work for another person), which in Spain define an employment relationship, to technological innovation and the introduction of algorithmic management and control.

The second provision of the law is an amendment to Article 64 of the Workers Statute related to the right of workers’ legal representatives to infor-mation. The amendment introduced a requirement for companies to inform

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workers’ representatives about the parameters and rules on which algorithmic management is based, whenever those parameters and rules impact decision-making influencing working conditions and access to work.

Trade union strategies: Path-dependency and revitalisation

The Spanish trade union system has been described as one of the most powerful in terms of collective bargaining influence, despite having one of the lowest density rates in the EU (Hamann, 2012). Because of support from state mechanisms (such as mandatory extension mechanisms), collective bargaining coverage in Spain is much higher than the EU average. However, this influence cannot always be exercised by enforcing collective agreements because trade union membership is low (García Calavia and Rigby, 2016). Spanish trade unions have also had a significant influence on regulation and policymaking. However, this influence is largely determined by the ‘political opportunity structure’ due to the politicised character of social dialogue and its lack of autonomy (Martínez Lucio, 2016).

In this context, trade union strategies to protect different types of non-stand-ard workers (such as temporary workers, bogus self-employed and internships) have mainly focused on the political, legal and sectoral collective bargaining levels. In response to their weak bargaining position at company level, as well as their limited organisational and associative power resources, they have tended to act according to their specific power resources, which are mainly institutional (García Calavia and Rigby, 2016; Pulignano et al., 2016; Sanz de Miguel, 2019;

Riesco-Sanz, 2020b).

Platform workers have evident similarities with several types of non-standard workers in terms of socio-demographic characteristics (such as being younger than traditional workers or having a migrant background), trade union affilia-tion rate and working condiaffilia-tions. They are also exposed to fraudulent practices, particularly in relation to the misclassification of their employment status and illegal subcontracting.

As might be expected, trade union strategies to improve working conditions for platform workers have resembled those addressing other forms of non-stand-ard employment. They have promoted legislative changes through lobbying and social dialogue, supported labour inspectorates and litigated against fraudulent practices of labour platforms. These strategies have focused on the fight against the contractual misclassification of platform workers in the platform delivery

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sector, and more recently, on the fraudulent subcontracting strategies developed in the delivery and ride-hailing platform sectors. At the same time, the trade union movement in those two sectors (delivery platforms in particular) has also shown an unexpected vitality in labour militancy, mobilisation, and new forms of coali-tions between mainstream trade unions and emerging forms of grassroots unions.

In contrast, trade union initiatives among high-skilled professionals providing online services have been rather absent, despite evidence suggesting that this is the most prevalent form of platform work (Rodríguez-Piñero, 2019). Similarly, actions focused on platform workers by quasi-unions or organisations for the self-employed have been negligible. This lack of action could be explained by the relatively minor importance of platform work within self-employed professional associations. It could also be a reflection of the main motivations and demands expressed by highly qualified solo self-employed professionals to their profes-sional associations, which are mostly related to getting access to consultancy and advisory services, training opportunities and, eventually, promoting changes in the regulation of social protection (Martín Artiles et al., 2020).

Concluding remarks

This chapter has shown that the topic of labour platforms has become very prominent in both labour and broader social debates, despite the currently low incidence of this form of work in the labour market.

Compared to other EU countries, platform work has expanded in Spain within a very critical labour market context defined by high unemployment, an increase and diversification in non-standard forms of employment, and an increase in fraudulent practices. Considering this context, it has been argued that platform work can exacerbate ongoing trends towards the commodification and informalisation of employment relationships.

Policy responses to platform work have addressed two key problems with labour platform business models: their tendency to misclassify workers as self-employed (noting that policy has only focused on delivery platforms), and the obstacles posed by algorithmic management to maintaining the information and consultation rights of trade unions. Currently, the main issue at stake is how these platform delivery companies will adapt their staff numbers and business models to comply with the new regulation that came into force in August 2021.

Furthermore, it is important to analyse how new regulations will be enforced.

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Finally, the chapter has discussed the main trade union actions addressing platform work. Our main argument is that there is a high degree of continuity in trade unions’ main strategies and actions. Trade unions’ actions have been conditioned by the power resources they are able to mobilise in order to amplify workers’ collective voice and attain bargaining power, mainly operating on an institutional level within the Spanish labour market and industrial relations model. At the same time, some revitalisation can be observed in terms of worker militancy, mobilisation, and coalitions between new grassroots unions and main-stream unions – although this is mainly limited to the delivery platforms sector.