Grzegorz BLICHARZ: Platform Workers as ‘Freedmen’: Reflections on the EU Proposal
From a European perspective, the working conditions of digital platform workers are a matter of great concern. The crisis caused by the current pandemic has dramatically increased the number and value of services rendered via digital platforms, most notably the delivery of services and online services themselves. Currently, there are 24 million EU platform workers, and the estimated value of services delivered via digital platforms reaches €14 billion. After gathering comments and suggestions from the public based on a preliminary paper, by the end of 2021, the European Union proposed specific legal instruments that aim to improve the working conditions associated with platform work – EU directive of 9.12.2021, 2021/0414 (COD). In order to justify them, the European Parliament and the European Council appealed to the right of every worker to working conditions which respect their health, safety, and dignity (Art. 31 of the Charter of Fundamental Rights of the European Union). The EU legislator wants to presume an employment relationship whenever a digital labor platform "controls" the performance of work as defined in Article 4 paragraph 2 of the directive. A broad understanding of "controlled work" allows the application of certain worker standards of protection.
As J.M. Puyol Montero puts it clearly “[t]he first social laws were born out of a desire to protect the human dignity of workers, particularly of the most vulnerable workers, in the exercise of their work”. The appeal to human dignity revolutionized the fundamental rights foundations of labor relations in the 19th and 20th centuries which echoed the recognition of equality of every person. It urged the state to interfere with contracts for labor leading to a new branch of law – usually called labor law – aimed at balancing employee-employer relations and ensuring decent working conditions. A similar phenomenon of both recognizing a subjective element (worker's protection) in the performance of services and a multifaceted bundle of contracts allowing to use work and services rendered, however, has its roots in ancient Roman law, more specifically in locatio conductio (A contract for lease and work), and most broadly concerns the atypical and highly-regulated provision of services by ‘freedmen’ to patrons (operae libertorum). There is a certain structural similarity between the activities of the freedmen and platform workers. It has already been confirmed that protective regulations of freedmen functionally resemble social rights granted under labor law, and they often result from humanitarian reasons. Slave-work, freedmen services, and free men services played a major role in providing services in ancient Rome. It was the services of the freedmen that attracted Roman jurists particularly, which may indicate their social importance. A specific, long-term relationship - based on trust and friendship – between a freedman (subject to manumission) and his former owner existed at that time. For freedom and social protection, the person subject to manumission was to provide certain services free of charge on the basis of a contractual obligation, which were implemented by stipulatio or oath (iusiurandum liberti). The imposition of duties on freedmen gave the access to free and often good quality services provided by trusted persons and patrons were allowed to hire out (locatio conductio) such services of their freedmen to others. This was an extremely advantageous arrangement for the former owners, so much so that the praetors decided to issue an edict against the abuse of freedmen which often put them in de facto slave-like position. The Roman example shows that rendering services may require the institution of certain precautions and leveling of the parties concerned neither with having modern concept of labor law nor extending the idea of contract for labor, which may lead us to rethink other types of contracts which might serve this goal. Anthropological considerations – the recognition of what a human person is and what goods are considered to be essential for their life – constitute the universal framework for legislation and jurisprudence, present also in Roman law. Perhaps heading in a similar direction, the EU proposal on platform work at issue here offers a mere presumption of employment bond. Nevertheless, it may easily become a new test for the existence of an employment bond which could interfere too heavily with the freedom of contract and the current contractual scheme of private law. We must note that the same issues can be addressed by different nation-states in various ways, according to which side of the problem they find emphatic: they can side either with freedom of contract, invoking strong separation and difference between bona fide employment relationships and civil-code based service contracts which do not entitle to protection measures; or, on the other hand, with the general concept of protecting those who work under certain circumstances, and so including platform work within this realm and regulating it, as well as imposing specific protective duties on the suppliers of such work from the point of view of fundamental, human rights, such as dignity. Some states put more stress on functions of control and on soft measures such as audits or requiring skills certificates to operate in the market. At the EU level, there is fierce discussion over freedom of movement versus freedom of business (protection of competition) which boils down to whether platform workers indeed are workers employed by their suppliers or are rather self-employed individuals merely rendering services to their suppliers. As for now, the EU would seem to believe in finding a compromise between the two approaches, i.e., between the high-protection and no-duties approaches.
Today, a worker's right to protection of the goods listed in Article 31 CFR has its basis and source in human dignity (Article 1 CFR), and, as a result of this, dignity is mentioned twice. As one of the goods protected under Article 31, however, dignity is listed on an equal level with the other goods, not given prominence, whereas in Article 1 it is primordial. The subtle ambiguity of dignity as applied both in labor law and in constitutional law appears not only in this act but also in all legal orders, where human dignity shines as the overriding constitutional principle. In the Polish legal scholarship and jurisprudence, discussion is focused on the relation between the constitutional principle of human dignity and the dignity at work regulated in Art. 111 of the Polish Labor Code: “The employer is obliged to respect the dignity and other personal rights of the employee”. In German labour law, protection of dignity is expressed with regards to harassment in general and sexual harassment in particular under §3 of General Act on Equal Treatment of 14th August 2006. The doctrine of labor law explicitly states that the dignity mentioned in the famous triad of employee goods refers specifically to dignity at work. What this actually means is, however, debatable. On the one hand, Art. 36 "is silent as to what measures are necessary to comply with this right"; it simply reinforces the importance of human dignity simpliciter (Art. 1 CFR). More outspoken is the “twin” Article 26 of the European Social Charter (Revised, ESCR), which refers to dignity targeted to provide respect and honor towards the employee as a human being – towards his or her special position in the cosmos. This has a different meaning from the fundamental human dignity so widely celebrated nowadays, which in Art. 31 CFR is treated relationally and reduced in effect to protection against bullying and harassment. On the other hand, the reference to dignity in Art. 31 is considered as a safety valve, an open clause, which allows for the many ways in which workers can be protected to be extended freely, as well as the requirements of decent work to be applied also to other persons providing work, i.e. those not qualified as employed under an employment contract, as we see in the case of the discussed directive addressed to platform workers.
Today, the constitutional obligation to provide healthy, safe, and secure working conditions is implemented through labor-law regulations, and in the case of service contracts only in specific types this obligation is particularly required. In Poland, for example, the labor code (Article 304. § 1 of the Polish Labor Code) imposes such obligations in civil-code contracts under specific circumstances only;. Polish law imposes the obligation of the observance of health and safety rules in the case of service contracts when a person employed under a service contract works at a workplace designated or organized by the employer, even if an employment relationship does not bind them or if the employer is not an employer as defined by labor law—moreover, Article 304. § 3. of the Labor Code imposes this obligation accordingly also on entrepreneurs who are not employers (within the meaning of the Labor Code) and who organize work performed by natural persons on a basis other than employment relationships or by self-employed persons. In contrast, in English common law such protection must be provided only when a service contract is performed at the client’s site.
In Roman law, the obligation to protect a worker appears for the first time on the occasion of the mercennarius, and so concerning those who perform hired work as part of locatio conductio. It turns out that the rules of Cato had already contained indications that in the case of the mercennarius certain factors should be taken into consideration - time, age, illness, and work breaks. However, when we look at the main body of Roman law – Justinian’s Digest – solutions protecting workers are rarely mentioned under locatio conductio because the emphasis is on the services of freedmen. Together with the phenomenon of freedmen who provided operae for their patrons under the contract of stipulatio and also for third parties within locatio conductio, in Rome, there were various kinds of services previously rendered only within the noble commission contract (mandatum): medical services, teaching, etc. Both hired workers and freedmen were protected with similar measures due to the unifying concept of work (operae). Paul, a Roman jurist of 2nd c. AD, argued that the type of freedmen's services offered to the patron should be assessed in accordance with the age, status (dignitate), health, need way of life, and other such considerations of both parties (Justinian's Digest – D. 38,1,16, Paul, Edict, book 40). Neratius, a Roman jurist of 1st-2nd c. AD introduces a subjective element that the performance of services depends on the character of the person performing them (existimatio edentis), and explains that only those services are to be performed which befit his position (dignitati), abilities, habits, and occupation (D. 38,1,50, Neratius, Replies, book 1). In the case of operae libertorum, the services and labor provided were in addition to the normal activities of the freedmen, and the protection of freedmen expanded in the cases when freedmen were dedicated fully to the patron and had no time for carrying their own businesses. As for the services provided within the platform work, these are either an addition to normal work or become the main source of income. There are fears that, when they become the main source of income, they will lead to huge uncertainty – a most precarious form of work – “a new precariat class of workers who have no job security, are slaving away for poor pay”.
We may make a similar comparison to platform workers, but not with regard to all categories of platform workers. Just as the contract of locatio conductio served not only to provide work but also to provide specific services (especially those of a variety of craftsmen), so is the case with platform workers: we may distinguish between various services intermediated by the various platforms. Protection could be extended without requiring an employment relationship but merely based on a service contract and the unifying concept of work (already present in EU law). Protection could be extended only to specific types of work, e.g., with regard to the workplace and time organized by the platform or by the client; provided on the client’s site; provided upon the call/demand of the platform, etc., etc. (these provisions resemble the Roman patron’s allowing freedmen services to third parties). Protection need not necessarily be extended to all platform workers but rather only as it would seem reasonable according to the circumstances: online platform workers are more independent and flexible, while on-site platform workers require more protection. However, we note that the term ‘workplace’ needs to be understood broadly, i.e., include physical workspace and virtual workplaces.
To complement this safety valve, there are also plans to introduce a special category of "economically dependent self-employed" into the Polish Labor Code, which would serve to stabilize the situation of individual entrepreneurs who enter into quasi-employment relationships and thus to reduce the phenomenon of labor exploitation based on formally B2B relationships that nevertheless lead to an actual employment relationship. In this case, creating a "third" way of employment should be approached with caution. It has been used in some countries for a long time (Canada) or for some time (Italy), but due to the growing phenomenon of sharing economy and especially gig economy, the necessity of introducing a new "third" form of employment has been raised in many countries for some time. Meanwhile, recently, courts, legal doctrine and legislators in other countries are choosing to qualify even such a relationship as an employment relationship. In this regard, both national and international courts continue to resolve specific cases in a casuistic manner, once attributing to employment the nature of a contract of employment, while at other times maintaining its civil law status. The interpretation of the employment relationship covering relations that serve to "conceal" the employment of an employee will be conducive to greater regulatory clarity and will protect us from legislative inflation and problems with the application of new legal constructs.
Today, protection extends from employment contracts to service contracts, so the situation at the historical roots of protective provisions has been reversed. Whereas in the Antiquity, the protection of workers was developed historically within service contracts and was seen as inherent to them, today these origins have been forgotten. In fact, many of the protective laws were based on Roman law on respect for human nature, even if taken pragmatically (not based on the human dignity concept unknown to them) and sometimes solely on the basis of aequitas (equity) on natural law. To sum up, further investigations into Roman law’s way of accommodating different contractual schemes for using other's work and services can give us some interesting points to consider as regards how to set up the situation of people, who provide services in different contractual configurations today, which pose a problem for ensuring decent working conditions without expanding highly regulated employment bond and curtailing private law arrangements while at the same time realizing the violation of certain human rights.
 Controlling the performance of work within the meaning of paragraph 1 shall be understood as fulfilling at least two of the following: (a) effectively determining, or setting upper limits for the level of remuneration; (b) requiring the person performing platform work to respect specific binding rules with regard to appearance, conduct towards the recipient of the service or performance of the work; (c) supervising the performance of work or verifying the quality of the results of the work including by electronic means; (d) effectively restricting the freedom, including through sanctions, to organise one’s work, in particular the discretion to choose one’s working hours or periods of absence, to accept or to refuse tasks or to use subcontractors or substitutes; (e) effectively restricting the possibility to build a client base or to perform work for any third party.  Jose Maria PUYOL MONTERO, “Dignified Work and Dehumanization of Work. Some Reflections On The Prehistory of Labor Law”, in J.M. PUYOL MONTERO ed., Human dignity and law. Studies on the dignity of human life, Valencia, 2021, p. 130.  W. Waldstein, Operae libertorum. Untersuchungen zur Dienstpflicht freigelassener Sklaven, Stuttgart 1986, p. 400, 403.  G. Blicharz, Humans as a Service: Ethics in the Sharing Economy and the Ancient Model, in: Human Dignity and Law. Studies on the Dignity of Human Life, J.M. Puyol Montero (eds), Tirant lo Blanch 2021, p. 144–145.  Idem, p. 153–154.  Idem, p. 147–150.  Franciszek LONGCHAMPS DE BÉRIER, “Persona: Bearer of Rights and Anthropology for Law”, in J.M. PUYOL MONTERO ed., Human dignity and law. Studies on the dignity of human life, Valencia, 2021, p. 53.  Tobias LOCK, “Article 31 CFR”, in M. KELLERBAUER, M. KLAMERT and J. TOMKIN (eds), The EU Treaties and the Charter of Fundamental Rights, Oxford, 2019, p. 2189;  Article 26 – The right to dignity at work With a view to ensuring the effective exercise of the right of all workers to protection of their dignity at work, the Parties undertake, in consultation with employers' and workers' organisations: 1 to promote awareness, information and prevention of sexual harassment in the workplace or in relation to work and to take all appropriate measures to protect workers from such conduct; 2 to promote awareness, information and prevention of recurrent reprehensible or distinctly negative and offensive actions directed against individual workers in the workplace or in relation to work and to take all appropriate measures to protect workers from such conduct.  Tobias LOCK, “Article 31 CFR”; Ellen PINKOS COBB, Workplace Bullying and Harassment: New Developments in International Law, Abingdon-New York: Routledge, 2017, p. 6.  Brian BERCUSSON, European Labour Law, Cambridge, 2009, p. 380–381; Leszek MITRUS, "Godność jako podstawa aksjologiczna praw pracowniczych", in M. SKĄPSKI, K. ŚLEBZAK, Aksjologiczne podstawy prawa pracy i ubezpieczeń społecznych, Poznań, 2014, p. 140; 142.  Cfr. The whole argument on dignity, G. Blicharz, Ancient Origins of Dignity at Work: Freedmen's Social Protections and Digital Platform Workers, in Human Dignity, Vulnerability and Law. Studies on the Dignity of Human Life, J.M. Puyol Montero (eds), Tirant lo Blanch 2022 (forthcoming).  Thomas A.J. McGINN, "Hire-Lease in Roman Law and Beyond", AHB 27 (2013), p. 178.  Joep CORNELISSEN, Magdalena CHOLAKOVA, “Profits Uber everything? The gig economy and the morality of category work”, Strategic Organization (December 2019), p. 8.  G. Blicharz, Humans as a Service: Ethics in the Sharing Economy and the Ancient Model, in: Human Dignity and Law. Studies on the Dignity of Human Life, J.M. Puyol Montero (eds), Tirant lo Blanch 2021, p. 134–162 and G. Blicharz, Ancient Origins of Dignity at Work: Freedmen's Social Protections and Digital Platform Workers, , in: Human Dignity, Vulnerability and Law. Studies on the Dignity of Human Life , J.M. Puyol Montero (eds), Tirant lo Blanch 2022 (forthcoming).
 The paper has been made possible thanks to the National Science Centre (Poland) PhD holder Grant– Sonata 14 no. 2018/31/D/HS5/01951.
Grzegorz Blicharz, PhD is Assistant Professor at the Chair of Roman Law at the Faculty of Law and Administration, Jagiellonian University in Kraków, Poland, where his work focuses on Roman law, comparative law, European legal tradition, and governing the commons. He serves as co-editor of the Forum Prawnicze law journal and has held visiting appointments at the University of Oxford (2020) and Antonin Scalia Law School at George Mason University (2021).