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Sean Cooney:Digital Labor Platform From The Perspective of Comparative Law

On November 24, 2020, Sean Cooney, Global Chair of Peking University Law School, Vice Dean of Law School of Melbourne University, Australia, gave an online lecture with the theme of "Digital Labor Platform from the Perspective of Comparative Law", which was presided over by Yan Tian, Assistant Professor of Peking University Law School. More than 100 students participated online through classroom live broadcast equipment. At the same time, nearly 100 teachers and students from inside and outside schools participated in lecture online through Tencent conference platform, which received enthusiastic response.



This paper presents the communication and dialogue among scholars in the form of written records.

Sean Cooney: Digital labor platforms have been widely used all over the world. Digital labor platforms such as Didi Chuxing, Meituan, Uber and Amazon Mechanical Turk are becoming more and more familiar to people. According to different service purposes and basic technologies used, the platforms can be divided into different types. The rise of digital labor platform has had a great impact on the current social development in many aspects. On the one hand, the platform provides many workers with new and flexible employment opportunities, and also benefits more consumers. On the other hand, the operation of these platforms has also caused a variety of social and economic problems-problems related to digital labor platform, such as algorithm management, dispute resolution, social security and job safety, salary payment, etc., have been widely concerned around the world. In addition, the digital labor platform also has a great impact on some traditional industries, a typical example is the impact of the network car platform on the traditional taxi industry.

From the perspective of labor law, it is an important issue to define the relationship between platform and workers. In practice, the platform and workers usually do not sign contracts under the name of labor contracts. From the point of view of protecting the interests of workers, it is worthy of recognition to determine whether there is a labor relationship by examining the relationship between the two parties in substance, regardless of the form of contract. However, it should be noted that in reality, there is no labor relationship between the digital labor platform and many workers, and they may have other relationships such as employment relationship, labor service relationship and contract relationship. Therefore, it is inappropriate to make a one-size-fits-all judgment on the relationship between the platform and workers. Of course, when we determine that there is no labor relationship between the platform and workers, it does not mean that the rights and interests of these workers are not worth protecting.

In the field of international labor law, people have established many standards for the protection of workers' rights and interests through conventions and recommendations. According to the conventions of the World Labor Organization, the four basic principles applicable to all workers are to allow free association and collective bargaining, to prohibit unequal discrimination, to prohibit forced labor, and to prohibit any form of child labor. Ensuring workers' occupational safety and social security are two important principles applicable to all workers. In addition, some non-traditional principles are being established, such as allowing workers to freely choose and switch between different platforms, and requiring data sharing and data privacy protection.

With regard to the platform's responsibility to workers, the popular view is that the platform should be responsible to workers within a reasonable and feasible range, and the platform's responsibility is based on its control over workers. In addition, some countries, including China, also recognize the shared responsibility of the platform and other relevant subjects.

It is difficult to regulate the relationship between the platform and workers, because there are great differences between different types of platforms and workers in different situations, and the business operation of the platform may involve multiple jurisdictions, which leads to the complexity and difficulty of law application. In addition, people may need to take into account conflicting policy objectives in the process of formulating rules, such as how to balance the two goals of promoting employment and social security.

Many countries have explored the relationship between the regulatory platform and workers in various aspects.

As far as collective bargaining is concerned, the difficulty of workers lies in the lack of channels for them to unite into a collective and negotiate with the platform. More importantly, the laws of many countries prohibit workers in non-labor relations from conducting collective bargaining. In this regard, Canada and Argentina appropriately relaxed the restrictions on the scope of collective bargaining subjects in terms of rules.

As far as work safety and health are concerned, the scope of responsible objects, the subject of responsibility and the limit of responsibility are three important issues.

As far as social security is concerned, the challenge brought by the COVID-19 epidemic is whether the platform has the obligation to adjust its management of workers in order to control the epidemic, and even bear certain security costs, such as providing workers with shutdown subsidies to prevent their rework and increase the risk of infection. Although some platforms have already made similar actions, it is necessary for the state to intervene in this issue. Countries such as Indonesia and Malaysia try to extract a small amount of taxes and fees from each transaction on the platform as social insurance funds to provide social security for workers affected by the epidemic.

As far as general data protection regulations and algorithm management are concerned, the European Union and China and other regions and countries have established some new rules to help platform users obtain their own personal data, and workers can use their own data on one platform to apply for jobs on another platform. However, the real problem is that there are data barriers between different platforms, and data cannot be smoothly circulated and transformed between platforms. In addition, the new rules also regulate the algorithm management, which does not allow the platform to make automatic decisions based on algorithms, but it is unrealistic for platforms such as network car platform that rely on algorithms for operation management.

Different countries have different positions in judging the relationship between the platform and workers. In France and Spain, the courts hold that the platform has control over the working system that workers rely on, so there is a labor relationship between the platform and workers, while the Australian courts hold the opposite position. In Britain, Italy and Canada, courts hold that the relationship between platform and workers lies between labor relations and non-labor relations. California's labor law originally put forward higher requirements for the platform to prove that there is no labor relationship, but this rule is now challenged by the platform collectively.

As far as dispute resolution is concerned, there are three important issues. First, can the platform and workers exclude the jurisdiction of the court in the contract and only resort to arbitration institutions to resolve disputes? Except the United States, most countries are not allowed to exclude court jurisdiction by contract. Second, is overseas arbitration allowed? The courts in Canada, Britain and Kenya hold that it is unreasonable to appoint the arbitration place in a third country that has no connection with the platform and workers. Third, is it allowed to apply foreign laws in domestic courts? China, EU and India refuse to apply foreign laws in their courts.

Yan Tian: Many labor law scholars and legislators do not have the knowledge background of algorithms and computers. How should these scholars and legislators study or regulate the relevant legal issues?

Sean Cooney: The traditional way is to study and regulate the results caused by algorithms and programs. It is difficult to ask the platform to disclose the algorithm and explain how it works, because even if the law allows us to do so, we probably still can't understand the operation of the algorithm, and it is much more difficult to prove that an algorithm is at fault than a person.

Yan Tian: In recent years, the research on digital labor platform and labor law is very popular. Most problems in this field have been discussed. Are there any directions and problems to be explored in this field?

Sean Cooney: Of course, for example, how to conduct collective bargaining through the Internet, how to ensure workers' work safety under the COVID-19 epidemic, and how to set the minimum salary standard for workers in non-labor relations.


Translated by: Shan Baowei

Edited by: Shan Baowei