• Insights

UK trade unions call for right to represent digital platform workers

Written by
Lewis Silkin, widely recognised as the UK’s leading specialist employment law practice.
Authors
David Hopper
Partner - United Kingdom
Lewis Silkin
Kerry Salisbury
Associate - United Kingdom
Lewis Silkin
United Kingdom
11.01.22
5
The UK Trades Union Congress has called for trade unions to have a digital right of access to platform and gig economy workers and for the introduction of sectoral collective bargaining.

The Trades Union Congress (TUC) made its call following the Labour Party’s commitment that the next Labour government will give these rights and others to trade unions.

Background

Recent research suggests that individuals in the platform and gig economy now represent up to 15% of working people. High profile wins for the trade union movement in this space include success at the Supreme Court against Uber and the GMB trade union securing recognition by Uber in its aftermath.

A recent paper published by the TUC draws together and analyses the efforts of a range of actors focussed on individuals in the platform and gig economy. It also included proposals for future legal reforms.

Two of the TUC’s proposals are that trade unions should enjoy a digital right of access and a right to sectoral collective bargaining. As these proposals echo the Labour Party’s recent Green Paper for Employment Rights, this article analyses their potential implications for businesses if they were implemented by a future Labour government.

A digital right of access

The ability of trade unions to recruit members is central to them being able to effectively represent workers’ interests. However, they have long blamed businesses for frustrating their access to potential new members at their place of work. They suggest that businesses have been able to do this because, like all other third parties, trade unions have no general right of access to workplaces. This has forced them to adopt alternative and less effective approaches, such as handing out leaflets outside businesses’ premises and hosting information sessions at nearby venues.

The main exception to this general position is if a business has voluntarily agreed access arrangements. For example, a business might agree to schedule meetings between a trade union that it recognises and each new worker as part of their induction. The other and rarer exception is when the Central Arbitration Committee has ordered a business to afford access to a trade union in advance of a workforce ballot on whether the business should recognise it.

To address the challenges that they face, the TUC has called for trade unions to enjoy a new digital right of access. Although it would apply in respect of all workers, it would be particularly important in respect of workers in the platform and gig economy, where it is especially difficult for trade unions to organise because they often work away from each other and without any kind of central workplace. To enable trade unions to overcome these challenges, businesses would be required to:

  • forward trade unions’ electronic communications to their workforces; and
  • provide a digital notice board that can be accessed by all workers on which trade unions’ materials can be displayed.

 

The TUC suggests that this digital right should be accompanied by additional rights. These include trade unions’ officials enjoying a right to access workplaces (including what it describes as ‘atypical workplaces’) during working hours, to promote what they see as the benefits of trade union membership.

The effect of any such new legislation would depend on its exact terms. However, the TUC’s proposals immediately give rise to various concerns, which any legislation would need to address:

What, if any, limits would exist on the obligation to disseminate trade unions’ electronic communications? For example, how would businesses be protected if competing trade unions were seeking to require them repeatedly to pass on communications as part of a ‘turf war’ involving fighting for new members?

At what times would a business need to afford access to workers if the basis of their engagement does not include them having any regular working hours as they are free to choose whether and when they work, as is common in the platform and gig economy?

Would businesses be required to hire venues for trade unions to meet with workers if its business model means that there isn’t in fact a traditional workplace at which meetings can be held?

Perhaps most concerningly, and as the global union federation IndustriALL has called for, might workers be required to attend a fixed workplace on a regular basis because that is more convenient for trade unions, even if their preference is to work remotely?

Sectoral collective bargaining

Sector-wide collective agreements binding many or all private-sector businesses in a particular sector of the economy are rare in the UK. It is far more common for collective agreements to be agreed in respect of an individual business at one or more of its sites. This contrasts with the position in many other European counties.

The TUC believes that more widespread use of sector-wide collective agreements would improve the position of platform and gig economy workers, in particular by redressing the ‘imbalance of powers in the workplace’. This would in turn provide trade unions with an effective strategy to, as the TUC terms it, turn ‘platform work into decent work’.

The TUC goes on to put forward a positive case for legal reform to introduce widespread sectoral collective bargaining. The Labour Party’s position is that the purpose of sectoral collective bargaining is to reverse ‘the decades-long decline in collective bargaining coverage’.

However, trade unions are already able to secure recognition for the purpose of collectively bargaining workers’ pay, hours and holidays by way of an application to the Central Arbitration Committee if they enjoy sufficient workforce support. As noted above, they are also already afforded a special legal right to access workforces to put their case to workers in advance of them voting on the issue. The actions of trade unions such as the GMB, the Independent Workers’ Union of Great Britain and the App Drivers & Couriers Union in recent years also suggest that there is no shortage of trade union activism among individuals in the platform and gig economy despite the challenges that they have described.

There is a real question over whether any legal reform alone will materially strengthen trade unions’ bargaining power. The reforms that trade unions might actually most benefit from might well be internal reforms – to reverse the halving of their membership over the last 40 years and to make themselves more attractive to younger workers who are more likely to work in the platform and gig economy but less likely to join a trade union. Although these reforms might be harder, they might be more effective in giving trade unions legitimacy to push for and secure significant reforms to working conditions for platform workers.

Implications for businesses

There are no immediate implications for businesses from the TUC’s paper. Even though its proposals mirror those of the Labour Party, a general election does not appear imminent.

The TUC’s paper is nevertheless a useful reminder for businesses that the improvement of working conditions and rights for individuals working in the platform and gig economy remains a focus of trade unions and the Labour Party. Indeed, the Labour Party has even vowed to enact its proposals within 100 days of winning a general election.

It is also worthwhile remembering that the debate on how best to improve working conditions in the platform and gig economy is not taking place in the UK alone. The European Commission has just issued draft ‘platform worker’ legislation. The European Parliament has also recently endorsed a mandate for its representatives to negotiate a new directive on minimum wages and collective bargaining that would be stronger than recent proposals published by the European Commission. Such a directive would, among other things, guarantee trade unions’ access rights to workers in a similar way to that being proposed by the TUC. If and when legislation transposing these new directives comes into force across EU member states, businesses in countries with a similar industrial relations heritage to the UK, such as Ireland, are likely to develop best practices. These learnings are likely to be invaluable for UK businesses if they too are one day required to comply with similar legislation.