Istanbul Law Review
An Evaluation of El Real Decreto Ley 9/2021 The Spanish Royal Decree Accepting Delivery Platform Couriers as EmployeesBurcu Ezer
Discussions on working via digital platforms and the legal status of those working on digital platforms have become two significant issues in recent years. The fact that these emerging new work relations differ from traditional dependent labor relations has led to the emergence of different views on the legal status of platform workers. For various sociocultural and economic reasons, platform work has gained widespread popularity in Spain in a short time compared to most European countries, with Spain ranking as the European country with the highest ratio of workers working on digital platforms out of the overall working age population in recent years. Of these digital platforms, delivery platforms are some of the most common. Through the effects of their prevalence, the legal status of delivery platform workers has become a significant issue in Spanish Law. In particular, resolving the issue of rulings that go in different directions regarding the legal status of delivery platform couriers has become necessary with the decision on the unification of conflicting judgments. In 2020, the Spanish Supreme Court ruled that delivery platform couriers have the status of employees under Spanish Law. Following this ruling, a disputable presumption was added to Workers Law No. 2/2015 by Spanish Royal Decree No. 9/2021. Furthermore, employers and platforms that use algorithms to regulate working conditions are obliged to inform workers’ representatives about which algorithms are used. With this change in law, Spain became the first European country to accept delivery platform couriers as employees through a legal regulation. This study will first cover the Spanish Supreme Court’s ruling to unify jurisprudence and then examine the regulations enacted by Spanish Royal Decree No. 9/2021.
Teslimat Platformu Kuryelerini İşçi Olarak Kabul Eden İspanyol Kraliyet Kararnamesi “El Real Decreto Ley 9/2021” Üzerine Bir İncelemeBurcu Ezer
Dijital platform çalışmaya ve bu platformlarda çalışanların hukuki statüsüne yönelik tartışmalar son yıllardaki en önemli konulardan biridir. Bu yeni çalışma ilişkilerinin geleneksel bağımlı çalışma ilişkilerinden farklılıklar içermesi, platform çalışanlarının hukuki statüsüne yönelik farklı görüşlerin ortaya çıkmasına neden olmuştur. Çeşitli sosyo-kültürel ve ekonomik sebeplerle platform çalışma, İspanya’da çoğu Avrupa ülkesine kıyasla kısa sürede oldukça büyük bir yaygınlık kazanmış; İspanya, son yıllarda dijital platformlarda çalışanların çalışan nüfusa oranı en yüksek Avrupa ülkesi konumuna ulaşmıştır. Bu dijital platformların en yaygın olanlarından biri ise teslimat platformları olmuştur. Bu yaygınlığın da etkisiyle teslimat platformu çalışanlarının hukuki statüsü, İspanyol Hukukundaki en önemli konulardan biri haline gelmiştir. Özellikle teslimat platformu çalışanı kuryelerin hukuki statüsüne yönelik farklı yönde yargı kararlarına hükmedilmesiyle birlikte, konunun içtihadı birleştirme kararıyla çözülmesi bir gereklilik halini almıştır. 2020 yılında İspanyol Yüksek Mahkemesi, vermiş olduğu kararla teslimat platformu kuryelerinin İspanyol Hukukuna göre işçi statüsünde olduklarına karar vermiştir. Bu kararın ardından 9/2021 sayılı İspanyol Kraliyet Kararnamesiyle 2/2015 sayılı İşçi Kanununa teslimat platformu çalışanı kuryelerin işçi kabul edilmesine ilişkin adi bir karine eklenmiştir. Devamla, çalışma koşullarını düzenlemek adına algoritmalar kullanan işverenlere ve platformlara, işçi temsilcilerini kullanılan algoritmalar hakkında bilgilendirme yükümlülüğü getirilmiştir. Bu kanun değişikliği ile birlikte İspanya, teslimat platformu kuryelerini kanuni bir düzenlemeyle işçi olarak kabul eden ilk Avrupa ülkesi olmuştur. Bu çalışmada öncelikle İspanyol Yüksek Mahkemesinin içtihadı birleştirme kararına yer verilecek, ardından 9/2021 sayılı İspanyol Kraliyet Kararnamesiyle getirilen düzenlemeler incelenecektir.
With the widespread use of digital platforms over a short time, the legal status of those working on digital platforms has become an important issue in recent years. The fact that these new labor relations differ from traditional dependent labor relations and are non-uniform has led to the emergence of different views on the legal status of digital platform workers.
Due to the experienced economic crisis, the effects of which are still ongoing, as well as various other socio-cultural reasons, platform work has become widespread in Spain in a short time compared to most European countries. Spain has created an important employment opportunity for its working age population, especially in terms of on-location platform work, and ranks as the European country with the highest ratio of digital platform workers out of the entire working age population in recent years. Some of the most common digital platforms in the country are delivery platforms. With the effect of their prevalence, the legal status of delivery platform workers has quickly become an important issue in Spanish Law. Disputes regarding the legal status of delivery couriers began being brought to the judiciary, with different rulings rapidly being made on the subject in various autonomous regions of the country. Resolving these various rulings regarding the legal status of couriers, working on delivery platforms have become necessary as per the decision to combine jurisprudence.
The Spanish Supreme Court decided with its ruling to consolidate its case-law on 9/25/2020 that delivery platform couriers have the status of employees in accordance with the Spanish Labour Law. The Supreme Court stated digital delivery platforms to not only be an intermediary but to also be a company that has the required organization and digital tools to carry out its activities. The court decided that the essential features of the employment contract form an employment relationship between the courier and the platform and that couriers are employees who provide labor only as part of this organization and operate alongside the delivery platform in accordance with the dependency relationship.
Following this ruling, a draft law was prepared with the meeting of social partners, and a disputable presumption was added to Workers Law No. 2/2015 by Spanish Royal Decree No. 9/2021 in parallel with the Supreme Court’s ruling. In addition, employers and platforms that use algorithms to regulate working conditions are obliged to inform workers’ committees about the algorithms that are used. With this change in law, Spain became the first European country to accept delivery platform couriers as employees in accordance with a legal regulation.
With the accepted disputable presumption, the activity of persons who provide paid services consisting of the delivery or distribution of any consumer product or merchandise by employers who exercise the business powers of organization, management, and control, whether directly, indirectly or implicitly and by means of algorithmic management of the service or working conditions through a digital platform, is presumed to be included within the scope of Workers Law No. 2/2015. With this regulation, the general presumption of employment as accepted in Article 8.1. of the Workers Law No. 2/2015 was also applied to delivery platform couriers.
According to this new regulation, delivery platform couriers working in Spain will henceforth be considered employees and be subject to Workers Law No. 2/2015, and the provisions of Workers Law No. 2/2015 will be applied to the employment relationship between couriers and digital platforms. Thus, couriers will be considered employees as of the date they start working on a digital platform and have the opportunity to claim their rights retroactively in terms of their labor.
Another adopted regulation provided worker committees in workplaces with the right to be informed by the company of the parameters, rules and instructions upon which algorithms or artificial intelligence systems are based that affect decision-making and that may impact working conditions as well as access to and maintenance of employment, including profiling, as these committees have the authority to represent workers collectively.
In line with these principles, this study first examines general information about the legal status of workers in Spain and platform workers, then evaluates the ruling of the Spanish Supreme Court to unify Case Law 9/25/2020. Lastly, the study examines the articles that were added to Workers Law No. 2/2015 by Spanish Royal Decree No. 9/2021, their criticisms, and the possible consequences of these regulations in practice.