WORKERS WIN VICTORIES: “SELF-EMPLOYED” AND AGENCY-CONTRACTED

Diarmuid Breatnach

(Reading time main text: 7 mins)

Across Europe, Deliveroo riders have been organising and protesting about their lack of employment rights and low pay. In April the riders struck and protested in Britain while in May, they won a number of victories against the company in the courts of the Spanish state. In February, a group of 25 drivers for Uber taxis won a UK Supreme Court decision that they are employees and not self-employed. Also, last month agency contract workers cleaning rooms for the second-largest hotel in Paris won a struggle too, with pay rise, reduced workloads, overtime pay and two sacked workers reinstated. These are important victories for the workers involved themselves but are also important in precedent and example for all workers in these kinds of precarious employment conditions and ultimately for all workers everywhere.

Victory celebration by Ibis housekeeping worker picketers on the street last month. (Source photo: Internet)

DELIVERY SERVICE WORKERS

In Britain, as the fast-food delivery company Deliveroo floated itself for public shares, its riders staged public protests and strikes demanding decent working conditions and pay. Speaking ahead of the planned campaign, organiser Alex Marshall of the Independent Workers’ Union of Great Britain stated: “They said it couldn’t be done but by getting organised and speaking out, riders have triggered a domino effect which already slashed £3bn from Deliveroo’s valuation and that should give pause to any corporation that thinks precarious workers can be endlessly exploited without consequence.” Subsequently strikes and demonstrations were held in cities across Britain.

Deliveroo workers in protest Barcelona 2017 before setting up the riders’ cooperative in 2018 (*Photo sourced: Internet*)

Deliveroo riders have been organising over recent years in a number of countries, holding public protests, strikes and calling one-day boycotts. In Barcelona, Deliveroo, Uber and Glovo Eats’ dissatisfied riders or sacked for organising set up their own cooperative in 2018. Last month the Spanish state’s state’s Supreme Court, having denied Deliveroo’s contention that their riders are self-employed, once again reiterated their position on 25^th May, which means that their riders are entitled to employment contracts with paid holidays, sick pay and pensions (see Publico.es article below).

Deliveroo Riders Protest at Place de la Republique, Paris August 2019 (*Photo credit: Jacques Demarthon AFP*)

Spanish Supreme Court reiterates that Deliveroo riders are company employees, not self-employed.

Alejandra De la Fuente in Publico.es (translation by D. Breatnach from Castillian)

MADRID 05/26/2021 16: 39EFE

The Supreme Court rejected the appeal filed by the fast food delivery company, Deliveroo against a January 2020 ruling – which classified more than 500 of its delivery riders in Madrid as “false self-employed” – and has confirmed its conclusions.

The ruling, to which Efe had access this Wednesday, recalls that the Supreme Court already unified its judgement in September 2020, when it ruled in a similar case — although then the defendant was Glovo — that the relationship between these platforms and their riders is actually of a labour nature.

Company sources recalled that the events judged took place between 2015 and 2017 — when it began to operate in Spain — and maintained that its relationship with the delivery riders has changed since then.

The Supreme Court’s decision not to admit Deliveroo’s appealto unify judgements endorses the position of the Superior Court of Justice (TSJ) of Madrid, which already in January of last year rejected an appeal from the company on this same case.

The Court rejected the company’s arguments, including a ruling in its favour obtained in the Cantabrian courts, and stressed that the current position is marked by the ruling of the Supreme Court in September against Glovo by “responding to the new reality that supposes the provision of services through digital platforms “. In their ruling, the judges recall that the Chamber then ruled “in favour of the labour nature of the relationship between the delivery person and the digital platform” after analysing the existing jurisprudence and the “indications of employment” found by the Labour Inspection.

The judgment of the Supreme Court in Madrid specified that one of the key points was that the freedom of the delivery worker not to work “is not as wide as some would like to make out, since if they decline orders (…) they receive a penalty”, which results in fewer services being granted from there and, therefore, their income drops.

It also cited as an argument that the delivery person could not carry out the activity if he only had his own bicycle or mobile phone, since the Deliveroo structure and its platform, which connects customers, restaurants and riders, is essential for the operation.

The delivery company, for its part, issued a statement in which it claims to “respect but not share” the Supreme Court’s decision to “not analyse” the case and insists that the events date back to the period 2015-2017, when it used “a different model of collaboration” with its riders. “This model does not reflect the way in which couriers collaborate with Deliveroo today. This ruling only affects contracts that stopped being used more than three years ago,” these same sources stated.

Home delivery platforms such as Deliveroo, Glovo or Ubereats will be forced to stop using self-employed workers as delivery riders if the so-called Rider Law goes ahead, agreed by the Ministry of Labour with employers and unions. The regulations oblige these companies to use salaried distributors – either with staff contracts, or subcontracting to third parties – and is scheduled to come into force in August.

end news report

Deliveroo riders’ protest Italy, possibly Florence (*Photo credit: Getty*)

Deliveroo motorcyle riders in East London protest (*Photo sourced: Internet*)

LABOUR SUPPLY AGENCIES

As much as delivery coordinating companies — the “gig economy” — lower workers’ rights, pay and conditions through false “self-employment”, labour-supplying agencies do so also and supply workers from industrial to healthcare to hospitality sectors, being used not only by private companies but by State departments and municipal authorities too. Workers employed by agencies rarely or even never meet many others employed by their agency, which makes it extremely difficult for them to organise to improve their employment conditions or pay. In addition a number of agencies may supply staff to the same site so that they don’t even have the same employer.

Hotels employ workers for different tasks: service management, finance, reception/ bookings, food/ drink preparation and service, portering, maintenance and housekeeping (room and common area cleaning). Every person who uses hotel accommodation enters a room prepared by staff who will then clean the room after they leave, changing bedding, remaking beds, checking for lost property, emptying bins, replacing towels and bathroom materials, wiping down surfaces, vacuuming etc.

A cold rainy day in Paris during the 2-years struggle of the Ibis housekeeping workers (*Photo sourced: Libcom*)

While some hotels employ the housekeeping staff directly many, including the large hotels and hotel chains, use staffing agencies to supply them. This arrangement relieves the hotel of responsibility for the employment conditions or pay of these staff while at the same time allowing them to dictate the working arrangements of those workers.

The 700-bed Ibis Batignolles Hotel, the second-largest in Paris uses the Accor and STN agencies to supply its housekeeping staff and in July 2019 twenty of those workers at the hotel began their agitation, complaining of a cleaning workload rate of 3.5 rooms per hour, or one room in 17 minutes, which was forcing them to work at great speed and even on unpaid overtime to complete their allocation. Ten workers who had occupational illnesses and were unable to keep to that workload were threatened with transfer to lower-paid jobs and this precipitated the resistance.

Last month these workers signed an agreement giving them a pay rise, reduced workloads, overtime pay and two sacked workers reinstated.

The Prestige and Budget hotels section of the General Confederation of Labour (CGT-HPE) supported the workers – mostly migrants from sub-Saharan Africa – throughout the struggle and also raised a solidarity fund to support the workers during the course of the strike, raising €240,000 on line. Claude Lévy, leader of the union, who claims more than thirty years of activism commented: “It is the longest strike that I have seen in my career”.

One of the workers, Rachel Keke, speaking to French media said: “We’re proud of what we’ve achieved because we fought through to the end, we never gave up. I kept saying to my colleagues we have to hang on, we’ll win in the end. And now we have this wonderful victory.”

The success of the striking workers directly benefits not just themselves but the working conditions of some sixty subcontractors employed by STN which will be raised now to the level of the workers directly employed by the hotel. The striking workers have also been paid compensation in undisclosed sums.

One unusual feature has been the installation of a card-clock to record the hours worked by each worker, demanded by the workers themselves. A union organiser commented that it was strange to see such clocks that were hated by workers in the past being sought by workers today.

The victory of these Paris Ibis housekeeping workers is indeed notable and will serve as example and encouragement to others in the sector, as one of the workers also said. However, they did not win direct employment and the whole contract labour issue remains to be addressed.

A statement issued by the CGT-HPE praised the struggle of the women but also criticised “collaborators in the union bureaucracy who work against sincere militants to destroy and silence them.”

OVERALL SUMMARY COMMENT

One cannot pass through any city centre in Ireland without seeing cyclists and sometimes motorcyclists of for example Deliveroo or Just Eat on the road. In addition, there are a large number of courier services at work delivering other items although not always so noticeable.

Delivery companies allocate delivery jobs to the workers on their register. Those workers have to supply their own bikes and mobile phones, get no sickness pay – whether from injury incurred in the course of their work or not – and no holiday pay or pension. Nor are they paid while waiting to be allocated a delivery job.

In Ireland these workers are often migrants who either find it difficult to get other work or for whom such work seems convenient as they don’t intend to stay long (quite often a fallacy, as Irish migrants to other countries can testify, myself included). An important pressure on especially migrant workers is the high cost of rented accommodation in Ireland and particularly in Dublin.

The Spanish Court left Deliveroo and other companies the option not to employ their drivers but instead to contract with a staffing agency to supply the required labour. Staffing agencies supply workers from industrial to healthcare to hospitality sectors, being used not only by private companies but also by State departments and municipal authorities. I’ve been supplied as a worker by agencies for cleaning and social/ health care and had to employ them myself as a manager for staffing cover in hostels for homeless people and drug and alcohol misusers.

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Deliveroo riders in Britain in protest March 2021 (*Photo sourced: Internet*)

As a directly-employed municipal worker and (unpaid) union organiser in London, when my union branch got ready to strike in defence of holiday and sick pay which the municipal authority was planning to cut for the mostly manual services (sanitation, road maintenance and park/ tree etc maintenance), we found this sector was nearly 50% staffed by agency workers. Even had the leaders of their unions been willing to strike, such a weakness in their numbers would have given them pause. Their unions did not join our strike and their workers lost, of course.

Workers in the hospitality industry (bars, hotels, restaurants/ cafés) are historically some of the worst paid with worst conditions and are often female and migrant. As a contract cleaner and kitchen porter on a number of occasions in my working life I can personally testify to this and any examination of available data will verify the facts.

Such workers tend to be in small workforces in individual work-places, even when each such site is part of a chain and for that reason and others are difficult to organise which in turn makes them easier to exploit.

WORKERS’ STRUGGLES AND THE LAW

Workers in the past fought for and in many cases gained “closed shop” agreements, meaning that every worker employed had to be a member of the union. This was often attacked by liberals as undemocratic but in fact proved necessary to prevent the employer using non-unionised workers to undermine union struggles. Of course, when unionised workers did win struggles, those gains went to the benefit of all workers in the company including the non-unionised and indeed often across wider society. Governments now tend to make “closed shops” illegal (along with another useful weapon, the “sympathy” or solidarity strike).

Just as in the past it has been necessary for workers to defy the laws that forbade organising of trade unions or of strikes, unions today will need to do so in order to remove these restrictions on their ability to effectively improve workers’ conditions and pay. The notion that to preserve the union structure and funds is more important than defending the purpose for which it was founded needs to be challenged.

Many union leaders and officials became complacent and allowed the creeping “agencisation” of workplaces and in doing so abrogated their responsibilities not only to workers employed by agencies but also, in the longer run, to their own directly-employed members. Wide-scale unionisation will need to address and reverse this trend as this sector continues do be a threat to workers’ rights and conditions and in fact even to trade union recruitment.

The Deliveroo decision In the Spanish Supreme Court presumably brings an end to a long legal battle about the status of the workers there which has seen a number of regional court decisions in favour of the the workers, e.g. in Madrid and in Catalonia but a reversal in another region, Cantabria. The Supreme Court has now ruled in the case of Deliveroo and also Glovo: the workers are not self-employed and therefore are entitled to contracts of employment, holiday and sick pay, etc.

The legal process in the UK however went against the workers and in favour of the Deliveroo company until the recent decision of the UK Supreme Court in favour of 25 of Uber’s drivers indicates that it is likely to end up the same with regards to Deliveroo, Just Eats etc (whereupon the Irish courts will probably follow suit).

In the case of the agency workers in Paris, they suffered an initial defeat in the French courts on the issue of in reality working for Ibis rather than the agency but won much of their demands through action at a time when the company wants to be able to take full advantage of the lifting of Covid19 restrictions and the busy tourist season months. The union official Lévy called off an appeal against the French court decision but indicated that the legal process is still one avenue open to them and that the issue needs to be resolved for many other workers.

Although legal cases have long been one avenue of workers’ progress one needs to remember that in a capitalist economic system the legal system favours the rich and also that most legal reforms benefiting workers have been won on the back of direct action, concessions often ultimately motivated by fear of revolution. The Deliveroo struggle was not won in the Spanish courts alone but was supported by a long campaign of demonstrations and even strikes; the Ibis Batignolles struggle was won by a two-year strike and publicity actions.

Victorious Ibis housekeeping workers pose for photo outside the Paris Ibis hotel on the day of their victory (*Photo via CGT/ HPE*)

A niche for smaller, left-wing unions?

Statistics suggest in Ireland, with a union membership of below 24% (in a country which once had around 40% membership even with much less employment opportunities), that a general union membership recruitment drive is needed now.

While some smaller sections of large unions have done effective work in fighting for the rights of workers in smaller workplaces, or in agencies or “self-employed” areas as in the two main examples cited above, these sectors are often neglected by union organisers who find large workplaces easier or more rewarding in terms of results.

This failure does provide a niche for smaller and possibly specifically left-wing unions which would allow them to grow as well as to make a significant contribution to the unionisation of workers and to improvements in workers’ rights, conditions and pay.Organising these workers will not be easy and may even require bike-riding organisers but the examples above show that success is possible and the Independent Workers’ Union of Great Britain may be showing the way.

End.