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
SUMMARY

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 between the platform and the worker there is an employment relationship or there is a commercial relationship between the platform, self-employees... (see full summary)

 
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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 taskJ. 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 workToward
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

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