A significant victory for trade union FNV; the Amsterdam District Court has ruled that all Deliveroo couriers in fact have an employment contract with Deliveroo. They may claim this from Deliveroo based on this ruling, which appears to come at a crucial moment in the societal debate about the platformization of work and the “gig economy”. The sharp rise in self-employed people has for years been a political headache since this group has no social safety net, nor do they build up a pension. There are fears of a “race to the bottom” and this ultimately leads to a loss of prosperity for society as a whole.
The platform economy, in which labour is cut into pieces and distributed via a platform and algorithm, further erodes the legal position of the “worker”. The remarkable thing is that few Deliveroo couriers seem to be affected by this, they appreciate the freedom and flexibility. How they will obtain an income if they become disabled or old seems a “far from my bed” show. In addition, self-employed persons are less inclined to invest in their training, causing our economy to lose innovative capacity, according to Prof. Wilthagen in the FD. The Authority for Consumers and Markets (ACM) has meanwhile indicated in a draft guideline on rate agreements for self-employed persons” that self-employed persons who “work side by side with employees” are not an “undertaking” within the meaning of the Competition Act and (under certain conditions) may already apply the statutory minimum rate that will be introduced in 2021. See https://www.acm.nl/nl/publicaties/acm-zzpers-kunnen-afspraken-maken-over-minimuminkomen
The Amsterdam judge has keenly sensed this dynamic. The judge recognizes the desired flexibility by Deliveroo and some of the couriers. The protections of the employment contract and social security law, however, are mandatory and, in the judge’s view, cannot simply be contracted away.
Deliveroo started in the Netherlands in 2015 and initially offered the couriers an employment contract. In February 2018, however, Deliveroo did not continue these employment contracts and only offered its couriers a “partner agreement”. However, according to the court, converting these employment contracts into “partner agreements” did not fundamentally change the legal relationship. This standard contract was not negotiable while Deliveroo, as “employer”, of course already occupies the dominant position. In assessing the relationship of authority, the power position that Deliveroo holds via the platform in relation to the couriers played an important role. This system is in fact so coercive that the courier, if he wants to be eligible for the attractive time slots and jobs, must dance to the tune of the platform and the algorithm. For example, refusing an assignment is allowed, but it then leads to a reduced status for subsequent assignments and to earning bonuses. Of course, certain choices were made in the development of the algorithm, and Deliveroo is responsible for the way this algorithm functions. For the full judgment, click here: http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBAMS:2019:198
Collective Labour Agreement for Professional Freight Transport
Additionally – and this is also a financial setback for Deliveroo – the court, at FNV’s request, declared the CAO beroepsgoederenvervoer applicable. This is a collective agreement declared generally binding, which obliges Deliveroo to pay at least and to observe working conditions in accordance with the CAO. The court finds that Deliveroo delivers meals from external, affiliated restaurants. This falls within the scope of the CAO Beroepsgoederenvervoer, which is broadly formulated and therefore has a wide reach. Because of the broad scope, new initiatives can also fall under it, which did not yet exist at the time the CAO was concluded. Deliveroo’s position that the scope of the CAO relates to motorized transport is rejected. The court rules that “under “beroepsgoederenvervoer” in the sense of the cao employers who “wholly or partly carry out transport other than of persons, by road (…)” must also be understood.” If a meal is brought from a restaurant to the customer, then that meal is thereby transported by road.
Deliveroo is ordered to comply with the generally binding provisions of the Collective Labour Agreement for Professional Goods Transport over the period from 26 February 2015 to 31 December 2016 and August 2017-August 2019. For the full judgment, click here: http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBAMS:2019:210
The final word has not yet been spoken on this matter; Deliveroo has lodged an appeal.
Postscript: In the appeal, Deliveroo was again ruled against; according to the judgment of the Amsterdam Court of Appeal, the delivery personnel have an employment contract http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:GHAMS:2021:392
Turning necessity into a virtue
The British parcel delivery company Hermes (part of the Otto retail group) did things differently. After a similar defeat in the English court, where the couriers had been recognised as “workers” (as a separate category between employee and entrepreneur, with the right to a minimum wage and holiday pay), the Dutch CEO Marcel de Lange decided to start talking to the unions. This resulted in a new model, a “self-employed plus” in which the flexibility of entrepreneurship is retained, but rights and securities have been added, such as a guaranteed hourly wage and holiday entitlements. The increased personnel costs are to be financed from growth, according to Hermes.
Uber
In December 2018, Uber also suffered a major setback in the appeal against several (former) drivers. Uber argued that they were “independent contractors” and, moreover, only a Dutch private limited company that regulates intellectual property rights and payment transactions. The Employment Appeal Tribunal in London quickly put an end to this, finding it a denial of the facts, as Uber simply offers passenger transport on the London market, and this private limited company exercises full control over the drivers. Uber cannot set aside mandatory employment law. Because the contract with the drivers contains a “high degree of fiction”, the Tribunal considers the actual facts and circumstances to be of greater importance; including the fact that Uber (and not the driver) accepts or rejects a particular ride; Uber advises on the route and price; the fact that Uber handles any complaints (and therefore not the driver); Uber exercises a great deal of control and power over the drivers; in practice, the driver cannot refuse a ride or even log out for more than 10 minutes without negative consequences; which also means that the driver cannot simultaneously make himself available for a competing app or taxi company.
The Employment Appeal Tribunal dismissed the appeal, thereby reaffirming that the drivers are “workers”, and there is “working time” if they have registered on the app and are in the territory. This entitles them to a minimum wage and holiday days. For the full judgment, click here: https://www.judiciary.uk/wp-content/uploads/2018/12/uber-bv-ors-v-aslam-ors-judgment-19.12.18.pdf
Conclusion
We draw two lessons from these particularly important rulings:
- reality takes precedence over (contractual) appearance; an employment relationship (with the relationship of authority as an important element) cannot be contracted away; the mandatory provisions of employment law remain applicable;
- Always check the scope of the (Generally Binding Declared) Collective Labour Agreement for the relevant sector. If necessary, an exemption must be requested or a company-specific Collective Labour Agreement must be concluded.
