Abstract
This stimulating book edited by Claudia Schubert reflects the progressive obsolescence of the rigid dichotomy between employment and self-employed work which characterised the early stages of the development of labour law as an autonomous field of law and scholarship. Indeed, this wide-ranging study deserves to be seen as a short treatise rather than as a simple ‘handbook’ (as reported in the title) and is undoubtedly destined to be highly influential in current and future discussions on labour law.
The research essentially supports an extension of existing labour laws to grant adequate working conditions and decent social security standards to economically-dependent workers, such as platform workers in the context of the digital economy. These workers are personally independent (and thus not entitled to ‘employed’ status) and, at the same time, are in a position of vulnerability in the labour market (thus, under the labour law ‘radar’).
Part I of the book comprises 11 detailed country reports by well-known labour law scholars and an in-depth comparative analysis by Schubert. The comparative findings of this part illustrate how the EU Member States developed social protection for economically-dependent workers, sometimes as a specific legal category (this is the case in Austria, Germany, Slovenia and Spain) and more often by expanding labour law guarantees to beyond the realm of employment subordination (e.g. health and safety coverage).
However, the lack of a universal (i.e. common) definition of economically-dependent work renders an overall evaluation extremely challenging. It is not easy to compare the Italian ‘hetero-organised’ worker (i.e. a worker whose performance is organised by her client and to whom the whole set of employment protection measures is consequently extended, pursuant to Art. 2 of Legislative Decree No. 81/2015) with the Spanish ‘Trabajador Autónomo Económicamente Dependiente – TRADE’ (i.e. a worker whose income derives predominantly from one client and thus benefits from an ‘ad hoc’ protection status, pursuant to Art. 11 of Act No. 20/2007): the former is in a position of personal dependence vis-à-vis her client and not necessarily in a position of economic dependency, which, on the contrary, is the core feature of the Spanish model.
One might reply that the two legal categories both lie in the ‘twilight zone’ between employment and self-employment, but the different (subjective and objective) scope of application of the protection should not be underestimated.
Furthermore, as clearly shown in Schubert’s comparative analysis, not only the scope of application, but also the techniques used to protect these workers vary significantly in the different jurisdictions. In particular, national policy makers – either simultaneously or alternatively – opt for: i) extending the notion of employment; ii) introducing a new legal category of ‘economically-dependent worker’; iii) extending the scope of particular labour law statutes to workers other than employees; iv) introducing additional measures other than those granted by labour law (such as protection against unfair contractual terms and payment deadlines).
In brief, it is true that there is a common need for protection. However, the solutions differ considerably and the fact that neither international nor EU labour law provide a uniform definition or, most importantly, a legal description of an economically-dependent worker renders the latter, borrowing the brilliant metaphor used by Krause, similar to a unicorn that has still to be found and tamed.
Additionally, Part II of the book shows that supranational labour legislation purports to improve the working condition of employees and/or to expand the subjective scope of application of the relevant statutes beyond employment (as is particularly the case of the EU), rather than attempting to isolate a sub-category of economically-dependent work.
Nonetheless, the book's idea – to ascertain whether the current general context of labour rights is adequate to fulfil the needs of the workforce – seems fully consistent with the current transformation of labour law as a whole. In Schubert’s opinion, there is a trend towards equal treatment of persons who are economically dependent, with regard to social security (e.g. in relation to health insurance, pension schemes, maternity and parental benefits).
However, when it comes to economic protection (i.e. minimum wage/income), the level of protection remains low in almost all jurisdictions.
The explanation for this regulatory gap may originate in the doubtful positioning of economically-dependent workers, at the crossroads between labour law (protection from the market) and commercial law (protection in the market or, better, through the market), where the vast and varied realm of self-employment was originally encapsulated.
Not by chance, a major obstacle to improving the economic conditions of independent contractors in general (not only economically-dependent workers) is competition law, which tends to look at collectively agreed pay rates for self-employed workers as a – questionable, if not unlawful – concerted restriction on the free-market mechanism which determines the prices of services.
If economically-dependent workers are deemed to be vulnerable subjects who cannot defend themselves through the market and who need to be defended from the market, then Schubert and Krause’s stance in favour of the labour shield (i.e. of the immunity) from competition/antitrust law for such workers seems fully justified.
Still, the core question remains whether such a shield – and the same could be said for any other labour law protection – should be provided to economically-dependent workers and/or also to those who are not economically, but personally dependent on their clients, as other labour law scholars argue.
Given that the final emphasis in the book, embedded in Schubert’s last chapter, is to promote the holistic value of decent work, the choice of the scope of labour law coverage (and of the competition law shield) is just as important as the actual content of the guarantees.
Yet, there is no doubt that in fleshing out this policy choice, the – national and supranational – authorities will take into account the accurate and thoughtful contributions of this book, which surely achieves its proposed goal to serve as a solid and sound reference for any further debate on the matter.
