The Code of Good Practice, presented at the South African Society for Labour Law (SASLAW) conference in Johannesburg on November 6th, aims to demonstrate how South African law can be interpreted and applied in order to give better protection to the rights of platform workers in accordance with Constitutional principles.
At the heart of the struggle faced by gig workers globally, is their lack of legal protection. The gig economy has grown rapidly around the world, and regulation has failed to keep up. The overwhelming majority of the world’s gig workers (who perform piece-rate tasks through platforms like Uber, Deliveroo, Helpling, and Upwork) are classified as independent contractors instead of employees. While this classification technically allows workers more flexibility, it also shuts them out of labour protection and social safety nets. When COVID-19 lockdowns hit, most gig workers had no access to sick leave or holiday leave, insurance, or social security. That meant they had no choice but to keep going to work, putting themselves at risk.
The Fairwork Foundation, through a collaboration between researchers and legal academics from the Universities of the Western Cape, Oxford, Cape Town, and Manchester, has developed a Code of Practice for applying existing law to the gig economy in South Africa. The Code is intended as a resource for platforms, workers, legal practitioners, decision-makers and policy-makers to better protect gig workers who are falling through the cracks of regulation. It draws on the existing legal framework, as well as highlighting areas where legal reform is needed.
The gig economy has grown significantly in recent years in South Africa. The country has a well-developed internet infrastructure, policy settings that encourage digital innovation, and a high level of unemployment. Apps play an important role in connecting more people to income opportunities. However, those income opportunities are often characterised by poor labour conditions, and contribute to creating a new class of precarious app-based worker. Minimum legal standards can and must be enforced for gig work, to avoid a race to the bottom.
While being an independent contractor holds advantages for many people, we see a lot of evidence that most gig workers aren’t actually as independent as platforms claim they are. They may not have set hours, or a dedicated manager, but are subject to new forms of control like algorithmic management, ratings systems, penalties, and the threat of losing access to the app (and their livelihood) arbitrarily – for instance if they get a bad rating. If workers feel they have been treated unfairly by platforms, they often have little or no option for legal redress, due to restrictive clauses in their contracts, lack of resources, or the fact that the platform company is in a different jurisdiction.
The Fairwork Foundation’s annual platform rankings are focused on producing impact at the platform level. We strive for change in platform practices, within the current regulatory vacuum. By highlighting the best and worst labour practices in the platform economy, we arm consumers and workers with the information they need to support and advocate for better labour standards. In turn, this puts pressure on the lowest performing platforms to improve conditions for their workers.
However, at the core of the precarity and inequity that we see in the platform economy, is the lack of legal protection for gig workers – something platforms around the world have taken advantage of in creating their business models. This is why the most lasting and fundamental change must happen through better application of existing law, as well as new legislation.
“It is encouraging to see some platforms responding positively to improve their ratings”, says Professor Darcy du Toit, of the University of the Western Cape, one of the Code’s main authors. “But others don’t, and all workers have the same rights. That’s where the law comes in.”
Professor Sandra Fredman from the Oxford University Faculty of Law, was also one of the Code’s main authors. “The problem of high unemployment in South Africa is not solved by jobs with high levels of exploitation,’ said Professor Fredman. ‘Such jobs not only undermine workers’ constitutional rights to dignity and fair labour practices. They also have a corrosive effect on working standards of workers in competing enterprises. Legal regulation is essential to ensure that platforms with better practices are not undermined by competition with those who force down terms and conditions”, she said.
The Code, and accompanying explanatory memorandum and executive summary, are based around the five principles of fair platform work, developed by the Fairwork Foundation’s international research network, in consultation with workers, platforms, third sector organisations, and the ILO. These comprise Fair Pay, Fair Conditions, Fair Contracts, Fair Management, and Fair Representation.
The Code was launched at the South African Society for Labour Law (SASLAW) conference in Johannesburg on November 6th