Implications of Cjeu Jurisprudence on the Delimitation of Working Time by Rest Time in the Collaborative Economy

• Author: Razvan Anghel
• Position: PhD Candidate, Faculty of Law, University of Bucharest, email: anghel.razvan@drept.unibuc.ro; judge, president of the First Civil Section, Constan?a Court of Appeal.
• Pages: 7-25

LESIJ NO. XXVI, VOL. 2/2019

IMPLICATIONS OF CJEU J URISPRUDENCE ON THE DELIMITATION OF

WORKING TIME BY REST TIME IN THE COLLABORATIVE ECONOMY

Rzvan ANGHEL

∗

Abstract

The specificity of the collaborative economy has raised a number of issues with regard to the

qualification of legal relationships between workers, final beneficiaries and the online platform that

mediates the provision of work, respectively whether b etween the platform and the worker there is an

employment relationship or there is a commercial relationship between the platform, self-employees

and consumers. In particular, the question arises whether, in the case of these workers, the working

time regulations apply and, if so, how they can be applied in concrete manner. The article contains an

analysis on how some principles derived from the CJEU case law can be used to determine whether

and under what conditions workers in the collaborative economy can benefit from protection by

limiting working time and how can work time be delimited by rest time in their case, given the specificity

of their work condition, in order to ensure an effective protection.∗∗

Keywords: working time, rest time, colla borative economy, workers, employees, self-employees.

1. Introduction

The development of information and

communication technology has led to the

emergence of new forms of work and

working time arrangements, and has made it

possible to increase the degree of labor

flexibility, driven by economic, but also

social and personal needs. The phenomenon

∗ PhD Candidate, Faculty of Law, University of Bucharest, email: anghel.razvan@drept.unibuc.ro; judge,

president of the First Civil Section, Constana Court of Appeal.

∗∗ This work is a result of the research conducted by the author during the doctoral program followed within the

Doctoral School of Law of the Faculty of Law of the Un iversity of Bucharest.

1 See for this evolution: Jon Messenger, Luty Gschwind – Three Generations of Telework, Conference paper –

17th ILERA World Congress, 7-11.09.2015, Cape Town, South Africa, available at

https://www.ilera2015.com/dynamic/full/IL156.pdf (accesed 13.03.2019).

2 See for details, for example: A. Donini, Il lavoro digitale su piattaforma, Labour & Law issues, no. 1/2015, pp. 50-

71; E. Dagnino, Il lavoro nella on-demand economy: esigenze di tutela e prospettive regu latorie, Labour & Law issues,

no. 2/2015, pp. 87-106; A. Aloisi, Il lavoro „a chiamata” e le piattafrme online della collaborative economy: nozioni e

tipi in cerca di tutele, Labour & Law issues, no. 2/2016, pp. 18-56; G. Friedman, Workers without employers: shadow

corporations and the rise of the gig economy, Review of Keynesian Economics 2.2/2014, pp. 171-188; A. Aloisi,

Commoditized workers: Case study research on labor law issues arising from a set of on-demand/gig economy

platforms, Comp. Lab. L. & Pol'y J. 37/2015, p. 653; J. Hamari, M. Sjöklint, A. Ukkonen, The sharing economy: Why

is not very new, appe aring in the early 1970s

in first forms and developing along with the

development of mobile communications and

information technology, especially in the

last 30 years, after the emergence and

development of the INTERNET1.

In present time work is also done in

what is called the “collaborative economy”

or “the gig economy” in which the worker is

essentially directly linked to the client via a

platform accessible on the INTERNET2,

8 Lex ET Scientia International Journal

LESIJ NO. XXVI, VOL. 2/2019

which rises in the first place the question of

whether such a worker has the status of

worker or employee and, consequently, the

question whether or not he/she enjoys the

protection guaranteed to employees, which

is still unclear in the European case-law.

It can be noticed a return to task-

oriented work, to a result that must be

achieved at a certain time, at least in certain

areas of activity, the classic concept of

working time remaining still largely

applicable in the industrial field3.

The use of information technology has

allowed work to be unspatialised, and the

physical space of its deployment has become

less relevant in this co ntext4.

The notion of collaborative economy

includes business mod els in which activities

are facilitated by online platforms that

generate an open market for the temporary

use of goods or services provided by

individuals5.

In the collaborative economy, work is

organized in two main forms: crowdwork -

the creation of micro-tasks for which a

people participate in collaborative consumption, Journal of the Association for Information Science and Technology

67.9/2016, pp. 2047-2059; J. Schor, Debating the Sharing Economy, Journal of Self-Governance & Management

Economics 4.3/2016; B. Cohen, J. Kietzmann, Ride on! Mobility business models for the sharing economy, Organization

& Environment 27.3/2014, pp. 279-296; H. Heinrichs, Sharing economy: a potential new pathway to sustainability,

GAIA-Ecological Perspectives for Science and Society 22.4/2013, pp. 228-231.

3 It has been shown that the limit between working time and rest time becomes more unclear as a result of t he

increasing variability of the work program on the one hand and th e increasing task orientated work which results in

a bigger pressure to work the hours required to perform the task – J. Rubery, Working time in the UK, Transfer:

European Review of Labour and Research 4.4/199 8, p. 672.

4 Rzvan Anghel – Noua reglementare privind telemunca. Probleme specific privind delimitarea timpului de

lucru de timpul de odihn în cazul telesalariailor, Curierul Judiciar, no. 4/2018, p. 211.

5 Communication from the Commission to the European Pa rliament, the Council, the European Economic and

Social Committee and the Committee of the Regions - A European agenda for the collaborative economy, Brussels,

2.6.2016 COM (2016) 356 final, available at: https://ec.europa.eu/transparency/regdoc/rep/1/2016/EN/1-2016-356-

EN-F1-1.PDF, p. 3, accessed on 13.03.2019.

6 Jon Messenger – Working time and the future of work, International Labour Organization, ILO Future of Work

Research Paper Series, 2018, p. 22; see for the evolution and the definition of c rowdwork: Janine Berg, Marianne

Furrer, Ellie Harmon, Uma Rani, M Six Silberman – Digital labour platforms and the future of work – Toward

decent work in the online world, International Labour Organization, 2018, p. 3.

7 Jon Messenger – Working time and the future of work, cited, p. 23.

8 A. Supiot, Temps de travail: pour une concordan ce des temps, Droit social, 1995, pp. 949-950.

9 J.-Y. Boulin, Working time in the new social and economic context, Transfer: European Review of Labour and

Research 7.2/2001, p. 204.

global offer is launched through an on-line

platform and can be done anywhere; on-

demand services - performing services in a

certain area, hired through an on-line

application6.

There is a difference in the

organization of working time between the

two forms of work arrange ments. In the case

of crowdwork, the worker has greater

autonomy and can work at any time in

principle, while in the case of on-demand

work, the on-line platforms exercise greater

control over the services provided by setting

quality standards and limiting providers'

freedom to choose tasks and customers7.

The delimitation of working time from

rest time and the limitation of the first when

working in the collaborative economy

presents numerous difficulties, the boundary

between working time and rest time being

very difficult to determine, porous8, in this

case, the rest time being affected by

interspersed periods of activity9, and the

carrying out of the activity may involve the