FW03 Principles 20.06

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This version of the Fairwork principles for gig work was released in June 2020. These principles were used in the upcoming 2021 ratings for South Africa (Year 3). A new version (21.01) of the principles came into effect on January 1st, 2021.

Principle 1: Fair Pay

1.1 - Pays at least the local minimum wage after costs (one point)

Platform workers often have substantial work-related costs to cover, such as transport between jobs, supplies, or fuel, insurance, and maintenance on a vehicle.^[1] Workers’ costs sometimes mean their take-home earnings may fall below the local minimum wage.^[2] Workers also absorb the costs of extra time commitment, when they spend time waiting or travelling between jobs, or other unpaid activities necessary for their work, which are also considered active hours.^[3] To achieve this point platforms must demonstrate that work-related costs do not push workers below local minimum wage.

The platform must satisfy the following:

Workers earn at least the local minimum wage, or the wage set by collective sectoral agreement (whichever is higher) in the place where they work, in their active hours, after costs.^[4]

1.2 - Pays at least a local living wage after costs (one additional point)

In some places, the minimum wage is not enough to allow workers to afford a basic but decent standard of living. To achieve this point platforms must ensure that workers earn a living wage.

The platform must satisfy the following:

Workers earn at least a local living wage, or the wage set by collective sectoral agreement (whichever is higher) in the place where they work, in their active hours, after costs.^[5],^[6]

Principle 2: Fair Conditions

2.1 - Mitigates task-specific risks (one point)

Platform workers may encounter a number of risks in the course of their work, including accidents and injuries, harmful materials, and crime and violence. To achieve this point platforms must show that they are aware of these risks, and take steps to mitigate them.^[7]

The platform must satisfy the following:

There are policies or practices in place that protect workers’ health and safety from task-specific risks.

2.2 - Actively improves working conditions (one additional point)

Beyond minimising risks that workers may face to their health and safety in the course of their work, platforms have the ability to proactively improve health and safety and working conditions. This may be through provision of training, wellbeing initiatives, health insurance, and other measures. To achieve this point platforms must demonstrate a proactive effort to improve workers’ experiences.

The platform must satisfy the following:

There is a documented policy (or policies) that promotes the health and safety of workers or improves working conditions, going beyond addressing task-specific risks.

Principle 3: Fair Contracts

3.1 - Provides clear and transparent terms and conditions (one point)

The terms and conditions governing platform work are not always clear and accessible to workers.^[8] To achieve this point the platform must demonstrate that workers are able to understand, agree to, and access the conditions of their work at all times, and that they have legal recourse if the platform breaches those conditions.

The platform must satisfy ALL of the following:

The party contracting with the worker must be identified in the contract, and subject to the law of the place in which the worker works.
The contract is communicated in clear and comprehensible language that workers could be expected to understand.
The contract is accessible to workers at all times.
Every worker is notified of proposed changes in a reasonable timeframe before changes come into effect; and the changes should not reverse existing accrued benefits and reasonable expectations on which workers have relied.

3.2 - Does not impose unfair contract terms (one additional point)

In some cases, especially under ‘independent contractor’ classifications, workers carry a disproportionate amount of risk for engaging in the contract. They may be liable for any damage arising in the course of their work, and they may be prevented by unfair clauses from seeking legal redress for grievances. To achieve this point, platforms must demonstrate that risks and liability of engaging in the work is shared between parties.

Regardless of how the platform classifies the contractual status of workers, the platform must satisfy BOTH of the following:

The contract does not include clauses which exclude liability for negligence nor unreasonably exempt the platform from liability for working conditions.
The contract does not include clauses which prevent workers from effectively seeking redress for grievances which arise from the working relationship.

Principle 4: Fair Management

4.1 - Provides due process for decisions affecting workers (one point)

Platform workers can be vulnerable to sudden termination (deactivation), and loss of income, often without due process. Workers may be subject to unfair penalties or disciplinary decisions and may lack the ability to contact the platform to challenge or appeal them. To achieve this point, platforms must demonstrate that workers can meaningfully appeal disciplinary actions.

The platform must satisfy ALL of the following:

The contract includes a documented channel for workers to communicate with a designated representative of the platform; and,
The contract includes a documented process for workers to appeal disciplinary decisions or deactivations; and,
The platform interface features a channel for workers to communicate with the platform; and,
The platform interface features a process for workers to appeal disciplinary decisions or deactivations; and,
In the case of deactivations, the appeals process must be available to workers who no longer have access to the platform.

4.2 - Prevents discrimination and promotes equity (one additional point)

The majority of platforms do not actively discriminate against particular groups of workers. However, they may inadvertently exacerbate already existing inequalities through their design and management. To achieve this point, platforms must show that they have policies to minimise risks of users discriminating against workers, and that workers are assured that they will not be disadvantaged through management processes. If a traditionally disadvantaged group is significantly underrepresented on their platform, steps are taken by the platform to identify and remove barriers to inclusion.

The platform must satisfy ALL of the following:

It has a policy which guarantees that the platform will not discriminate against persons on the grounds of race, gender, sex, sexual orientation, gender identity, disability, religion or belief, age or any other status which is protected against discrimination in local law; and,
Where persons from a disadvantaged group (such as women) are significantly under-represented among its workers, it has a plan to identify and remove barriers to access by persons from that group, resulting in improved representation; and
It takes practical measures to promote equality of opportunity for workers from disadvantaged groups, including reasonable accommodation for pregnancy, disability, and religion or belief; and
If algorithms are used to determine access to work or remuneration, these are transparent and do not result in inequitable outcomes for workers from historically or currently disadvantaged groups; and
It has mechanisms to reduce the risk of users discriminating against any group of workers in accessing and carrying out work.

Principle 5: Fair Representation

5.1 - Includes freedom of association and worker voice mechanisms (one point)

The right of workers to freely associate is enshrined in the constitution of the International Labour Organisation and the Universal Declaration of Human Rights.^[9] To achieve this point platforms must demonstrate that they observe this right, by ensuring that workers can collectively communicate their wishes and concerns to the platform. They must not hamper or prevent workers’ freedom of association, or penalise workers for associating or expressing demands.

The platform must satisfy the following:

There is a documented process for the expression of worker voice.

5.2 - Recognises collective body that can undertake collective representation and bargaining (one additional point)

For workers to meaningfully have a voice in determining their working conditions, they must be able to bargain with the platform through a collective or representative body. The platform must recognise this collective body, and make itself available for good faith negotiations. In most cases, such bodies do not yet exist in the platform economy. Where that is the case, the platform should publicly state its willingness to recognise a collective body if one is formed.

The platform must satisfy BOTH of the following:

Publicly recognise an independent, collective body of workers or trade union and not have refused to participate in collective representation or bargaining; If such a body does not exist, it must:
Sign a public statement of its willingness to recognise a collective body of workers or trade union.

PLATFORM: Here, the term ‘platform’ is used to refer to a ‘geographically-tethered digital labour platform’ (Woodcock and Graham 2020). There are two points of note here. First, a ‘digital labour platform’ is a company that uses digital resources to mediate value-creating interactions between consumers and individual service-providing workers, i.e. that digitally mediates transactions of labour. Digital platforms like Airbnb or eBay—where goods are exchanged—are not included within this definition. Second, among digital labour platforms, there are two broad types. In the first—’geographically-tethered’, ‘location-based’, or gig work platforms—the work is required to be done in a particular location (e.g. delivering food from a restaurant to an apartment or driving a person from one part of town to another). In contrast, in the second—’cloudwork’ or ‘online work’ platforms—the work can, in theory, be performed from anywhere via the internet (e.g. data categorisation or online freelancing). In these principles, the term ‘platform’ refers only to the first category of geographically-tethered digital labour platforms, a.k.a. gig work platforms.
WORKER: People who find work through platforms, regardless of their employment status (e.g. employees or independent contractors).
SUBCONTRACTING: Some platforms outsource parts of their operations to other enterprises. While some of these companies operate under the same name as the main company, or a slightly different version of it (e.g. Amazon and Amazon Flex), there might also be others that provide their services to the platform but also carry out their own operations (e.g. Amazon, DPD and myHermes). Where subcontracting relations are in place, the responsibility for ensuring fairness standards still rests on the main platform that outsources its operations.
CONTRACTS: All written agreements between parties about the terms of the work including terms and conditions. These may be signed in-person or electronically.

Footnotes

1. Work-related costs include direct costs the worker may incur in performing the job. This may include, for instance, transport in between jobs, supplies, vehicle repair and maintenance, fuel, road tolls and vehicle insurance. However, it does not include transport to and from the job (unless in-between tasks) nor taxes, social security contributions or health insurance.

2. The ILO defines minimum wage as the “minimum amount of remuneration that an employer is required to pay wage earners for the work performed during a given period, which cannot be reduced by collective agreement or an individual contract.” Minimum wage laws protect workers from unduly low pay and help them attain a minimum standard of living. The ILO’s Minimum Wage Fixing Convention, 1970 C135 sets the conditions and requirements of establishing minimum wages and calls upon all ratifying countries to act in accordance. Minimum wage laws exist in more than 90 per cent of the ILO member states.

3. In addition to direct working hours where workers are completing tasks, workers also spend time performing unpaid activities necessary for their work, such as waiting for delivery orders at restaurants and travelling between jobs. These indirect working hours are also considered part of active hours as workers are giving this time to the platform. Thus, ‘active hours’ are defined as including both direct and indirect working hours.

4. In order to evidence this, the platform must either: (a) have a documented policy that guarantees the workers receive at least the local minimum wage after costs in their active hours; or (b) provide summary statistics of transaction and cost data. In case of (b), the platform must submit:

An estimate for work-related costs, which are then checked by the Fairwork team through worker interviews; and,
A weekly earnings table for any three-month period over the previous twelve months, in the format shown below. This is a two-way relative frequency table, which should contain information on the percentages of workers whose average weekly take-home earnings and active hours are distributed as follows:

		WORKER EARNINGS AFTER COSTS (E)
		[1] e < M	[2] M ≤ e < 1.5M	[3] 1.5M ≤ e < 2M	[4] 2M ≤ e
ACTIVE HOURS (H)	h < 0.9F (part-time)	%	%	%	%
	0.9F ≤ h < 1.2F (full-time)	%	%	%	%
	1.2F ≤ h (full-time plus overtime)	%	%	%	%

Notes:
1. h = Average active hours worked by worker per week
2. e = Average weekly earnings of worker
3. F = the number of hours in a local standard working week.
4. M = the local weekly minimum wage, calculated at F hours per week. The table’s header row and column are filled out by the Fairwork team, before giving it to the platform for completion.
5. The rows represent workers who work part-time, full-time, and more than full-time. The percentages in each row should add up to 100%.
6. The table is to be filled with four columns of data: Column [2] with the percentages of part-time, full-time, and full-time with overtime workers who earn less than the minimum weekly wage (X), and so on until Column [5].

5. Where a living wage does not exist, Fairwork will use the Global Living Wage Coalition’s Anker Methodology to estimate one.

6. In order to evidence this, the platform must either: (a) have a documented policy that guarantees the workers receive at least the local living wage after costs in their active hours; or (b) provide summary statistics of transaction and cost data. In case of (b), the platform must submit: (1) An estimate for work-related costs, which are then checked by the Fairwork team through worker interviews; and, (2) a weekly earnings table for any three-month period over the previous twelve months, in the format shown above.

7. The starting point is the ILO’s Occupational Safety and Health Convention, 1981 (C155). This stipulates that employers shall be required “so far as is reasonably practicable, the workplaces, machinery, equipment and processes under their control are safe and without risk to health”, and that “where necessary, adequate protective clothing and protective equipment [should be provided] to prevent, so far as is reasonably practicable, risk of accidents or of adverse effects on health.”

8. The ILO’s Maritime Labour Convention, 2006 (MLC 2006), Reg. 2.1, and the Domestic Workers Convention, 2011 (C189), Articles 7 and 15, serve as helpful guiding examples of adequate provisions in workers’ terms and conditions, as well as worker access to those terms and conditions.

9. See the ILO’s Freedom of Association and Protection of the Right to Organise Convention, 1948 (C087), which stipulates that “workers and employers, without distinction, shall have the right to establish and join organisations of their own choosing without previous authorisation” (Article 2); “the public authorities shall refrain from any interference which would restrict the right or impede the lawful exercise thereof” (Article 3) and that “workers’ and employers’ organisations shall not be liable to be dissolved or suspended by administrative authority” (Article 4). Similarly the ILO’s Right to Organise and Collective Bargaining Convention, 1949 (C098) protects the workers against acts of anti-union discrimination in respect of their employment, explaining that not joining a union or relinquishing trade union membership cannot be made a condition of employment or cause for dismissal. Out of the 185 ILO member states, currently 155 ratified C087 and 167 ratified C098.