Categoria: Postcards from Abroad

Repartidores y no riders. Nota a la STS 25 septiembre 2020 que declara la relación del repartidor como laboral, aunque sin efecto “laboral” práctico alguno.

Twenty-first Legal Basis of the Labor Court Judgment of September 25, 2020, rec. 4746/2019: “In short, Glovo is not merely an intermediary in the contracting of services between businesses and delivery persons. It does not merely provide an electronic intermediation service consisting of putting consumers (customers) and genuine self-employed workers in contact with each other; rather, it performs a work of coordination and organization of the productive service. It is a company that provides delivery and courier services, fixing the price and payment conditions of the service, as well as the essential conditions for the provision of such service. And it owns the essential assets to carry out the activity. To do so, it uses couriers or delivery drivers who do not have their own autonomous business organization, who provide their service inserted in the employer’s work organization, subject to the management and organization of the platform, as evidenced by the fact that Glovo establishes all aspects relating to the form and price of the pickup and delivery service of such products. In other words, both the manner of provision of the service, as well as its price and method of payment are established by Glovo. The company has established instructions that allow it to control the production process. Glovo has established means of control that operate on the activity and not just on the result through algorithmic service management, distributor evaluations, and constant geolocation. The delivery person neither organizes the production activity on his own, nor does he negotiate prices or conditions with the owners of the establishments he serves, nor does he receive his remuneration from the end customers. The actor had no real capacity to organize his work, lacking the autonomy to do so. He was subject to the organizational guidelines set by the company. This reveals an exercise of corporate power in relation to the way the service is provided and a control of its execution in real time that evidences the concurrence of the dependency, requirement inherent to the employment relationship. In order to provide these services, Glovo uses a computer program that assigns services based on each courier’s evaluation, which decisively conditions the theoretical freedom to choose schedules and refuse orders. In addition, Glovo enjoys a power to sanction its delivery drivers for a plurality of different behaviors, which is a manifestation of the employer’s managerial power. Glovo performs real-time monitoring of the service delivery, with no way for the deliveryman to perform his task without being connected to this platform. Because of this, the delivery driver has a very limited autonomy that reaches only secondary issues: what means of transport he uses and what route he follows when making the delivery, so this Court must conclude that the characteristics that define the employment contract between the plaintiff and the defendant company provided by the art. 1.1 of the ET (Estatuto de los Trabajadores) concur in the relationship, accepting the first ground of the unifying appeal”.

Brazil: labor relations after the decision of the Supreme Federal Court for compulsory vaccination

The author addresses the issue of the constitutional limits to the determination of sanitary measures in case of eradication of infectious diseases, taking account of the ones taken to tackle Covid-19. Taking the view that balancing the conflict between public health and citizens’ autonomy cannot be done in absolute terms, the author analyses to this respect the decision taken by the Supreme Federal Court of Brazil on December 17, 2020 concerning the constitutionality of mandatory vaccination. She afterwards addresses the relationship between the employers’ will or duty to protect workers’ health and the consequences of workers refusing to be vaccinated.

New pandemic needs new rules: COVID in The Netherlands

Covid-19 confronts us with a risk that First World countries have not encountered since the Spanish Flu 100 years ago. A worldwide health crisis which leads to mandatory closure of busi-nesses, travelling restrictions and therefore affects employment and employment opportunities in a whole range of sectors. What does this do to an employment law that is already under pres-sure from various directions (think of challenges connected to the atomisation of work, gig-economiy, declining trade union membership, artificial intelligence and the like)? This article discusses the changes which the Dutch government introduced in the rules governing financial aid to employees and employers in case of extraordinary events where safeguarding (some) in-come for employees is as crucial as the survival of businesses themselves. The discussion focus-ses on regulations regarding regular employment and will therefore not touch upon the specific measures for flexible work (TOFA), for self-employed (TOZA) and compensation for hard-hit sec-tors (TOGS) (for a brief overview of these measures see e.g. H. Bennaars, B.H. ter Haar, The description starts with the general rules concerning payment of wages. It then briefly discusses the pre-Covid regulations. The third pa-ragraph deals with the Covid-specific measures in detail. Attention will be paid to their near constant fine-tuning. In the fourth paragraph, an alternative way to reduce costs and the reac-tion of judges in court will be discussed, while paragraph 5 contains the concluding remarks.

Working anytime, anywhere, all the time?– remote work regulations in Poland

The article addresses the recent raise of telework and remote work, considering its implications in terms of working conditions and employees’ rights. The blurred distinction between working time and personal life is one of the key problems of working by the means of modern communication technologies. The use of these latter has in most cases a negative impact on the right to rest, to privacy and to health and safety at work, especially in case workers find it difficult to disconnect from the working activity.

Quick notes on the Saudi Arabian Labour Law during the COVID-19 pandemic

Saudi Arabia labour law was devoid of preexistent tools suitable to face the COVID-19 emergency. The legislator promptly reacted to the crisis, issuing a Sr 120 billion (USD 35.2 billion) stimulus package, with Sr 70 billion reserved to the private sector.
The strategy moves on two fronts: provide liquidity to companies (and workers) and avoid mass dismissals. The legislator implements the former goal mainly via a postponement of taxes and fees. For the latter, it introduced a temporary layoff scheme, in some cases supported by a public allowance up to the 60% of the wage.
On top of this, the government implemented several social distancing rules and strongly promoted the smart working.