Economically-dependent Workers as Part of a Decent Economy
International, European and Comparative Perspective
Zusammenfassung
Traditionally, labour law focuses on employment contracts. The legal analysis of the working world is based on the distinction between employees and self-employed. However, in addition to this traditional dichotomy, a significant number of European countries provide specific legal protection for so-called economically-dependent workers acknowledging thereby that there are workers, who are personally independent but nonetheless require social protection. This development has begun long before the digitalisation started blurring the boundaries of typical employment relationships. Still, recent developments have resulted in demands for the extension of labour laws to platform workers putting the topic on the agenda whilst in the past economically-dependent workers have played only a minor role in labour law developments. Wrongly, because their protection plays a vital role in creating a differentiated economy with adequate working conditions and a decent standard of social security for its various players. This book contains eleven country reports that outline the legal bases for the protection of economically-dependent workers in labour and social security law. In addition, a comparative analysis explores the characteristics of such workers and the regulatory models for their legal protection as well as pointing out protection gaps. Further contributions evaluate the impact of international law and European law on the legal protection of economically dependent workers and highlight the need for future developments.
- I–XXVI Titelei/Inhaltsverzeichnis I–XXVI
- 1–9 Introduction 1–9
- 1–3 I. The aim and the background of the present research project 1–3
- 3–9 II. Current situation of economically-dependent workers 3–9
- 1. Legal comparison
- 2. International law
- 3. European law
- 9–223 Part I: Economically-dependent Workers in the EU Member States 9–223
- 9–24 A. Austria (Marhold) 9–24
- I. ‘Economically-dependent workers’ as a category of work
- II. The legal position of economically-dependent workers from a labour law perspective
- III. Social security for economically-dependent workers
- 1. Introduction – The development of and the basic principles of the Austrian social security system
- 2. The different categories of the insured persons
- 3. Values and interests in the early social security system
- 4. A shift in the approach
- 5. Reforms for the extension of the social security protection
- 24–44 B. France (Kessler/Big) 24–44
- I. Introduction
- II. The category of ‘self-employed person’
- 1. The fundamental binary distinction
- 2. A border, but a permeable one
- III. Social protection from a labour law perspective
- 1. Personal safety
- 2. Economic security
- IV. Social security for self-employed persons
- 1. The coverage of self-employed workers by the national social security system
- 2. The financing of the social security system
- 3. Complementary health insurance
- 4. ‘Unemployment benefits’ for the self-employed
- 5. New normative measures for some ‘gig workers’: private insurance and social charters
- 44–64 C. Germany (Schubert) 44–64
- I. Introduction
- II. ‘Economically-dependent workers’ as a category of work
- 1. The distinction between employees and economically-dependent workers
- 2. The distinction between self-employed persons and economically-dependent workers
- III. The legal position of economically-dependent workers from a labour law perspective
- 1. Overview of the legal position of economically-dependent workers from a labour law perspective
- 2. The social protection of the individual (life, health, physical integrity, and integrity of the person)
- 3. The social protection of workers as economic actors
- 4. Representation of workers
- 5. Access to labour courts
- 6. Conclusions
- IV. Social security for economically-dependent workers
- 1. The overview of the inclusion of employee-like persons in the statutory social security system
- 2. Health insurance
- 3. (Statutory) accident insurance
- 4. Pension insurance
- 5. Unemployment insurance
- 6. Conclusions
- V. Summary
- 64–77 D. Ireland (Doherty) 64–77
- I. Introduction
- II. ‘Economically-dependent workers’ as a category of work
- 1. The legislation
- 2. The courts
- 3. No ‘Third Way’
- III. The legal position of economically-dependent workers from a labour law perspective
- 1. Individual rights
- 2. Collective rights
- IV. Social security for economically-dependent workers
- V. Conclusion
- 77–91 E. Italy (Del Conte/Gramano) 77–91
- I. ‘Economically-dependent workers’ as a category of work
- 1. The coordinated continuous collaborations
- II. The legal position of economically-dependent workers from a labour law perspective
- 1. The specific regulation of coordinated and continuous collaborations
- 2. The general legal regulation of autonomous work (including coordinated and continuous collaborations)
- 3. The special discipline of platform workers
- 4. Autonomous workers’ and co.co.co-s’ collective rights
- III. Social security for economically-dependent workers
- 91–117 F. The Netherlands (Houwerzijl) 91–117
- I. Introduction
- II. The rise of solo self-employment in the Netherlands
- III. Inside or outside the Dutch fortress of labour law
- 1. Comprehensive protection for employees
- 2. Meagre protection for solo self-employed workers
- IV. Definitions of ‘employee’ and ‘solo self-employed worker’
- 1. Who is an ‘employee’?
- 2. Who is a ‘solo self-employed worker’?
- 3. The judicial practice of the Supreme Court: the holistic assessment
- V. Solo self-employed workers under Dutch social security law
- 1. A certain level of protection for solo self-employed workers under (certain) social security schemes
- 2. The notion of ‘economically-dependent self-employed workers’
- 3. The quest to provide legal certainty only for the independent solo self-employed
- VI. The (false) self-employed under Dutch collective labour law and competition law
- 1. Collective bargaining and (the representation of) the solo self-employed
- 2. The Dutch Competition Authority’s assessment of solo self-employed workers
- 3. Minimum fees for solo self-employed workers who cannot be deemed to be undertakings
- 4. Minimum standards for the solo self-employed workers who do qualify as undertakings?
- VII. Concluding remarks
- 117–135 G. Portugal (Abrantes) 117–135
- I. Introduction
- 1. Legal dependence
- 2. Employment contract and contract for services
- II. ‘Economically-dependent workers’ as a category of work
- 1. Economically-dependent work – a comparative overview
- 2. The Employment Contract Act of 1969
- 3. The approaches in professional literature regarding Article 2 of the Employment Contract Act of 1969
- 4. Law No. 101/2009
- III. The legal position of economically-dependent workers from a labour law perspective
- 1. General overview
- 2. Rights and obligations of the contracting parties
- 3. Health and safety at work
- 4. Professional qualification
- 5. Remuneration
- 6. Compensation in the case of the suspension or the reduction of the activity
- 7. Termination of the contract
- 8. Registration of homework
- 9. Inspection of homework
- IV. Social security for economically-dependent workers
- 1. General overview
- 2. Eventualities and contributions
- V. Conclusions
- 1. Economically-dependent workers under Portuguese law
- 2. Social protection from a labour law perspective
- 3. Social security for economically-dependent workers
- 135–142 H. Slovenia (Tičar) 135–142
- I. ‘Economically-dependent workers’ as a category of work
- II. The legal position of economically-dependent workers from a labour law perspective
- 1. The definition of ‘economically-dependent self-employed person’
- 2. The scope of labour law protection
- 3. The identification of economically-dependent persons
- III. Social security for economically-dependent workers
- 142–153 I. Spain (Todolí-Signes) 142–153
- I. Abstract
- II. ‘Economically-dependent workers’ as a category of work
- 1. A binary system: employees and self-employed persons
- 2. A subcategory of self-employed persons: TRADEs as economically-dependent selfemployed persons
- III. The legal position of economically-dependent self-employed persons from a labour law perspective
- 1. Individual rights
- 2. Collective rights
- IV. Social security for economically-dependent self-employed persons
- V. Health and safety regulations
- VI. Jurisdiction
- VII. Conclusion: the legislation applicable to economically-dependent self-employed persons is inadequate
- 153–169 J. Sweden (Westregård) 153–169
- I. Introduction
- II. Economically-dependent workers as a category of workers
- 1. The concept of employee in labour law
- 2. The concept of employee in social security legislation
- 3. ‘Dependent contractor’ as a subcategory of ‘self-employed’
- 4. Conclusion
- III. The legal position of economically-dependent workers from a labour law perspective
- 1. Statutory labour legislation
- 2. Collective agreements
- 3. Unions and the organisation of economically-dependent workers
- 4. The role of the courts
- 5. Conclusion
- IV. Social security for economically-dependent workers
- 1. Social security legislation
- 2. The financing of the social security system
- 3. Who is responsible for paying taxes and social contributions?
- 4. Conclusion
- V. Conclusions
- 169–188 K. Excursus: UK (Davies) 169–188
- I. Introduction
- II. Workers and economically-dependent workers in labour law
- 1. ‘False’ self-employment
- 2. ‘Worker’ in employment legislation
- 3. ‘Worker’ in equality law
- 4. ‘Worker’ in EU law
- 5. Economic dependence
- 6. Employment rights for workers
- 7. Conclusion
- III. Workers and economically-dependent workers in social security law
- 1. Contributory benefits
- 2. Non-contributory benefits
- 3. Statutory sick pay
- 4. Conclusion
- IV. Conclusion
- 188–223 L. Comparative Analysis (Schubert) 188–223
- I. Introduction
- II. ‘Economically-dependent worker’ as a legal notion
- 1. The definition of ‘employee’ or ‘employment contract’ as the point of departure regarding social protection
- 2. Extending the scope of labour law through a broad notion of ‘employment relationship’
- 3. ‘Economically-dependent worker’ as a legal category and its position in the legal systems examined
- 4. Criteria for the definition of ‘economically-dependent worker’
- 5. Conclusions
- III. Social protection for economically-dependent workers through labour law
- 1. Sui generis regulation or the selective extension of labour law
- 2. The categories of social protection through labour law
- 3. The satisfaction of economic needs and/or the removal of or the transfer of economic risks
- 4. The reconciliation of family life and working life
- 5. Health and safety at work
- 6. The protection of personal rights
- 7. Judicial and/or administrative safeguards
- 8. Collective bargaining and collective agreements as means of autonomous self-help
- 9. Conclusions
- IV. Social protection for economically-dependent workers through social security law
- 1. Economically-dependent workers in the national social security systems
- 2. Benefits from the social security scheme
- 3. Contributions to the social security schemes
- 4. Conclusions
- V. Final conclusions
- 223–255 Part II: Protection of Economically-dependent Workers under International Labour Law 223–255
- 223–242 A. Economically-dependent workers: The relevant International Labour Organization Standards (Trebilcock) 223–242
- I. Overview
- II. Constitutional and policy framework
- III. Standards on labour market governance and statistical measurement tools
- 1. Background
- 2. Instruments on home work
- 3. Attempts to regulate ‘contract labour’
- 4. The Employment Relationship Recommendation
- 5. Guidance on labour statistics
- 6. Recommendation No. 204 addressing the ‘informal economy’
- 7. The 2020 CEACR General Survey
- IV. Fundamental principles and rights at work
- 1. Freedom of association and collective bargaining
- 2. Prohibition of forced labour and elimination of child labour
- 3. Elimination of discrimination
- V. Standards on social protection
- VI. Standards applicable to particular categories of workers who may be economically dependent
- VII. Conclusion
- 242–255 B. The Self-employed Persons under the European Social Charter (Schlachter) 242–255
- I. The context of worker protection in the European Social Charter
- 1. The development of the Charter
- 2. The personal scope of the Charter and its Articles
- II. The means of the interpretation of the Charter
- III. The interpretation of specific provisions of the Charter
- 1. Article 3: The right to safe and healthy working conditions
- 2. Article 6 paragraph 2: The right to bargain collectively and to conclude collective agreements
- 3. Article 7 paragraph 1: The right of children and young persons to protection – setting the minimum age of admission to employment at 15 years
- 4. Article 8 paragraph 5: The right of employed women to protection of maternity – prohibition of work in underground mining and of all other work of dangerous, unhealthy or arduous nature
- 5. Article 18 paragraph 3: The right to engage in a gainful occupation in the territory of other Parties – the liberalisation of the regulations governing employment
- 6. Article 19 paragraph 10:The protection of self-employed migrant workers
- IV. Conclusions
- 255–277 Part III: The Recognition of Economically-dependent Workers within EU Law – In Search for a Unicorn? (Krause) 255–277
- 255–256 I. Introduction 255–256
- 256–268 II. Taking stock of EU law 256–268
- 1. Lack of a legal definition of ‘economically-dependent worker’
- 2. Freedom of movement for workers as a point of reference
- 3. Social protection for self-employed persons
- 4. Social protection under the ‘worker/employee-umbrella’
- a) Reference to national labour law
- b) Broad interpretation of EU law
- 268–272 III. Social protection for economically-dependent workers via new labour legislation 268–272
- 1. The legal bases for future labour law directives
- 2. The potential content of new labour law directives
- 272–274 IV. Collective bargaining and the role of competition law 272–274
- 274–277 V. Conclusions 274–277
- 277–287 Part IV: ‘Economically-dependent Workers’ as Part of a Decent Economy – Final Conclusions and Proposals for Further Development (Schubert) 277–287
- 277–278 I. Introduction 277–278
- 278–280 II. ‘Economically-dependent workers’ as a relevant part of a decent economy – the need for the category of ‘economically-dependent workers’ 278–280
- 1. Bogus self-employment or a separate group of self-employed persons in need of social protection
- 2. Alternative regulatory models
- 3. Protection against social dumping
- 280–286 III. Improvement of the protection against economic risks – balancing the economic risks 280–286
- 1. Economically-dependent workers and their underdeveloped protection
- 2. Collective bargaining for dependent self-employed persons
- a) A necessary step for the reconciliation of fundamental rights and competition law
- b) Restricting the notion of ‘undertaking’ in the context of Article 101 of the TFEU
- c) Extending the scope of the exemption provided for in Article 101 paragraph 3 of the TFEU
- d) Separate regulation on allowing collective agreements for economically-dependent workers
- 3. Minimum remuneration – legislative standards as a necessary measure
- 286–287 IV. Social protection for economically-dependent workers within a globalised economy 286–287
- 287–306 Bibliography 287–306
