Dutch court of appeal decides Deliveroo should honor collective labour agreement
rechtspraak.nl
rechtspraak.nl
It is a disgrace the labour union had to fight this, as it was the duty of the the Dutch government ( which should have worked to enforce its laws ).
While the government might not always have your best interest at heart unions certainly also have agenda's of their own. Forcing everyone in to pension funds that have:
* Not adjusted for inflation for ages; * Increased the age at which you get your pension with 5 -8 years; * Increased the amount you have to contribute to the pension fund;
So basically every year you get less, have to work longer and pay more.
Since the people who now get a pension don't want to make the necessary changes to the system (can't even say I blame them) I seriously doubt if in 30 - 40 years when I'm supposed to get a pension there is going to be anything left.
And that's not even taking in to account incidents like pension funds where the piggy bank gets plundered due to the incompetence of unions and participants [1]. When they fly the proverbial plane in to the ground you are forced to go down with them.
[1] https://www.rijnmond.nl/nieuws/130172/Hoe-de-haven-miljoenen...
That still leaves problems like not correcting for inflation and increasing the pension contributions unexplained.
The pension system in it's current form is not sustainble forever because you need a multitude of people working vs people who are retired. It's a pyramid.
The solution is rather obvious; People should save for their individual retirement. But since the people who are now retired (or going to in the next 10 years) don't want to change the system (can't say I blame them) the measures that need to be taken are never going to be taken. Because there will forver be "people who are going to retire in the next 10 years".
Pension funds a pyramid scheme, lol. Pension funds invest the money (not with high risk, but they can take some risks cause of the long tail) so you get more back than if you would save the money on bank. Even more so today than when banks still provided interest. They are also legally bound to have a minimum percentage of the funds, which is close to 100% (but not 100% which is OK since not whole population reaches retirement at same time).
Some people will claim they're better with investing and speculation. Great! Earn your bacon with it or make it your hobby for all I care. Some funny people will play the cryptocurrency game (no problem) and convince others to join the pyramid scheme (fuck that). Someone's always funding that as it is a zero sum game.
Amsterdam, 21 December 2021 The Amsterdam Court of Appeal has ruled in 2 judgments that Deliveroo is subject to the CAO and is considered a participant in the professional transport pension fund. Earlier this year, the Court of Appeal already ruled that the delivery drivers at Deliveroo work on the basis of an employment contract (ECLI:NL:GHAMS:2021:392). The 2 new rulings mean, among other things, that Deliveroo must apply the CAO with retroactive effect from 2015 to delivery drivers who worked for it and must pay pension premiums.
Collective Labour Agreement and Mandatory Pension Fund
The case revolves around the interpretation of the scope of the provisions of the CAO and the Decree Mandatory Pension Fund for Professional Transport, respectively. This interpretation is based on the standards developed by the Supreme Court.
Delivery/transport is core activity
According to the Court of Appeal, Deliveroo's core business is delivering meals. The fact that Deliveroo has far fewer office staff than deliverers, that a significant proportion of Deliveroo's operating costs are related to the delivery activity and that the agreements with the affiliated restaurants in most cases include a commission for delivering the meals play a role in this. The agreement with the delivery companies includes the fact that they are primarily engaged in the delivery - and therefore transportation - of meals. According to the Court of Appeal, it does not matter whether the transportation is done by car, scooter or bicycle. The conclusion is that Deliveroo is subject to the CAO for professional goods transport and is obliged to participate in the professional transport sector pension fund.
Rulings of the subdistrict court are confirmed
Earlier, in 2019, the Subdistrict Court in Amsterdam reached the same conclusion. Those rulings have now been upheld by the court of appeal.
Translated with www.DeepL.com/Translator (free version) + a few edits
I'm always surprised at the extent to which courts, legislators, regulators and such prefer to decide by analogy. Determining that that X is fundamentally like Y and therefore Y rules apply. This seemingly doesn't require decision making at all. Instead of deciding and making choices, there's a strong preference for determining & adjudicating.
I'm not implying this is inappropriate here. Seems pretty straightforward that if labour laws/agreements apply to deliveries, they apply to deliveroo. I wonder why it took this long, in fact.
That said... labour "uberization," online privacy issues, media monopolisation issues and any of many digital issues de jure are actually new scenarios. They're not just derivative of pre-digital issues. The effects of one decision or another can be totally unrelated to considerations taken into account whenever the original decision/law was made.
The best ruleset, decision or whatnot is not necessarily a derivative of some old one. Who cares if Google is like Bell or standard in some legalistically specific way? Who cares if uber is "really" just a taxis service, limo service or whatnot? Why is that relevant by default?
Is it really so impossible to create new labour laws, agreements or whatever we need that actually take into account the existence of app-based casual labour realities of our time?
What's the point of having labour laws if all that's needed to just discard them to reduce labour costs is a very thin veneer of an app? What's so fundamentally different about an app?
But, the scale, implications and context is not the same.
Labour law related to the kinds of labour that existed. Salaried, hourly, piecemeal, day labour, etc. Any one of those can be considered a "thin veneer" to any other, if you want to play thick. Yet, they did see fit to create laws that take their existence into account.
App-work exists. I agree that it doesn't come with enough labour protections. Create some.
Meanwhile, there are some notable social advantages to the existence of app-work just as there were to day-labour, piecemeal and other modes of the past. Low friction work can never be low friction enough. The ability to just sign up and work is valuable to some people some of the time.
I agree that it shouldn't be a workaround to paying pensions, for example. OTOH... it exists. What are the rules?
Well, indeed, day labouring and precarious work nothing new under the sun. And the past experience with those is why societies have laws that limits them to various extent. I mean, employers could've just called people on their phones and said it was necessary due to the spread of phones to abandon the now obsolete labour laws. But back then people (and a stronger labour movement) would've just laughed it off and businesses knew that they couldn't pull that trick off. But atm the times are more ripe for this.
> But, the scale, implications and context is not the same.
What implication and context? That suspiciously vague. Why is scaled-up day labouring suddenly not the same? If any thing it's even more obvious - and important - that it breaks the rules.
> if you want to play thick
A bit cocky for someone that seem to ignore history. You've said nothing to answer the question what's fundamentally different to justify the regression. The dread of day labouring what one of the very reasons for the existence of these laws in the first place! Now you come along with an app and say that day labouring is henceforth necessary? That makes no sense whatsoever.
> Create some.
They are already there? One of their very purposes is to protect against exactly this.
> App-work exists > it exists
What kind of an argument is that even? Still doesn't mean it's legal, just that corps feel the times are ripe enough to try to challenge them by just refusing to comply and spend vast resource on lobbying and taking it to court.
> I agree that it shouldn't be a workaround to paying pensions
To avoid paying proper benefits/pensions is the very reason of their existence.
And you can pick the options which are appropriate for you - you can treat them as part-time employees (and you need to fulfill the criteria), you can treat them as piecemeal/day-labor gigs (if you fulfill the criteria, most "gig work" companies don't), and if all the options are bad for you, then you either change your business model to fit them anyway or simply don't use the labor until labor law changes to permit you to do so under the desired structure.
The current rules are quite clear, and re-approved by this court - all the existing labor protections apply, those are your employees with full rights and app-work is not getting any special treatment unless and until law is changed to make it so - perhaps gig work should have a special regime because it is quite different from full time work, but it's not yet, at least in NL.
Somehow, this is a statement that is always said, despite clear evidence to the contrary.
If the rules are clear, why did it take six years for a court to act?
I agree the apply-by-analogy approach makes sense of laws cannot be revised. But my understanding is that most legislatures are permitted to revise or repeal laws to adapt to new circumstances.
At least, if the separation of powers is still intact.
1: https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.h...
Typically the arguments are just different arguments about which analogy is the closest to the facts at hand, which is usually referred to as "the theory of the case".
[0] https://www.frontiersin.org/articles/10.3389/fnhum.2014.0086...
Oude kruiken nieuwe zakken as we say in Dutch. Unfortunately the success of socialism made everyone think the world had moved on from such naked and unapologetic exploitation.
intellects vast and cool and unsympathetic, regarded this earth with envious eyes, and slowly and surely drew their plans against us. And early in the twenty first century came the great disillusionment.
I have to disagree though. Not that I think you're incorrect. It's neither correct not incorrect. It's a reduction, or essentialization perhaps. Even if it is a correct reduction, it isn't a helpful one. Labour for hire sure isn't new, neither is exploitation. However the "gig economy" is a new (or newly common) mode of labour, like hourly vs salaried vs piecemeal... modes that existed in the past.
There are two approaches:
(1) We can argue about what the rules are, ignoring all evidence that the rules are in fact unclear. This has given the gig economy a good decade to operate without labour laws.
(2) We can recognize that laws are a decision. We can make these decisions. make new laws that take into account the technology, norms and industries of our time.
But then taxis that bill to the minute are not new either, the only difference is how jobs are assigned, the work and compensation is identical .
The point is that once these existed, laws should have kept up.
Oude wijn in nieuwe zakken
It was apparently easier for preservation at scale than pots or jars were.
Actually, wine in bags in boxes is a thing since about 10 years. Works great.
The idea that a specific situation could be captured completely and entirely without ambiguities is the fundamental error in these misguided efforts to create contracts-on-code on the blockchain, and why they can't break out of their tiny box of things that have no meaning in the real world (i. e. NFTs)
Wouldn't such determination require decision making in itself?
IRL however, I think that official/administrative/political decisions are usually presented as non decisions. Maybe a decisions is cloaked "decisive evidence" that leaves no choice, prior decisions/rulemaking is determined to be applicable, or somesuch.
Naked "I have made decision X" is generally avoided.
In this case (I assume) Deliveroo argues that it is not a delivery company and so isn't part of the collective labour agreement, and complainants claimed that it was and that it is.
The judge decides that Deliveroo quacks and walks sufficiently like a duck to be considered one.
I don't see why "this seemingly doesn't require decision making at all". It was the entire thing the parties disagreed about.
https://press.uchicago.edu/ucp/books/book/chicago/C/bo363196...
As opposed to democrats? Feels like whoever's not in power hates it, eg. 2016 and trump
A judge is explicitly not tasked with what the law "should" be, as that is the role of the lawmaking parts of government. The place of a judge is to measure the facts against the law as fairly as possible. One of the founding principles of legal thinking is that equal acts should be judged equally, and one of the ways to maintain equal laws for equal citizens is through jurisdiction.
If you did some action XYZ and it is not immediately clear whether you violated the law or not, "but other citizen ABC did the same thing back in 1976 and then the judge ruled that it did not violate the law" should be valid reasoning for the defending lawyer.
Courts embrace whataboutism officially, as legal doctrine. Precedents, common law and such.
But beyond courts, I think the avoidance of naked decisions is also pretty prevalent. In fact, negating the existence of a choice at all is a pretty modern way of arguing. "Evidence based" policies, business practices and such is a part of this. It's the evidence that made the decision, or past decisions, or something.
Decision is retro-active to 2015 and Deliveroo should pay pensions back to 2015.
We seem to be focused more on getting the stock market and the price of assets up, up, up, and calling that progress and a sign of prosperity for our society.
The French and the Russian revolutions have shown society has a breaking point at wich the working class will revolt and behead the ruling class. However, that was over 100 years ago and today, the ruling class has much better surveillance technology and weapons than the peasants of today and can monitor and quench any uprising before it even manifests.
Plus, the ruling and asset owning classes don't live within striking distance of the angry mobs like they did 100 years ago, but can live safely in a remote place like some island around New Zeeland and run their affairs remotely through a shell enterprise registered at a post-box in Luxembourg for example.
The best-case result for they employer is that the can deduct the employees share of social security from the last three wage payments, but no further. And that best case requires that there is no fault of the employer, which is a rare case.
Given that European law is fairly well aligned when it comes to labor law, I’d be surprised if there’s an option to substantially dip into the cabbies past payments.
However it certainly is not just a risk for the employer, also for the employee.
If you should have been marked as an employee, but have been submitting your taxes as a company then you have also profited from tax benefits in accordance with that company status. It's pretty important to get this right.
[1] https://ondernemersplein.kvk.nl/schijnzelfstandigheid-voorko...
Is it? My impression is different. Do you have any links?
> The founders and CEOs of Delivery Hero, Bolt, Glovo, and Wolt have joined forces to work on a better model for regulating platform companies with the aim of providing specific commitments and recommendations to governments.
https://tech.eu/brief/delivery-hero-bolt-glovo-and-wolt-foun...