4.1 Introduction
‘Remote work’ and ‘telework’, which used to be regarded as exceptional subcategories of labour engagement, became the norm for white-collar workers during the pandemic, and currently sit at the heart of modern work practices characterised by spatial fragmentation and supported by web-based technological tools. The experience of recent years, in other words, has been the increasing advent of hybrid labour arrangements, where work is directly or indirectly provided through apps or similar pieces of software and other technological innovations (‘information and communications technology’ or ICT)Footnote 1. The overarching work digitisation phenomenon is, inter alia, defined by increasing delocalisation and fragmentation of workplaces, and by the advent of algorithmic management that employs advanced software and AI driven tools of worker control. ‘Platform work’, for example, an emblematic example of this perceived paradigm shift of hybridisation, may itself become terminologically obsolete, as a variety of (broadly construed) digital ‘platforms’ define the work experience of more ‘typical’ non-gig workers, whether their services are provided at their employer’s premises or not. The same, arguably, applies to our established understanding of ‘telework’ (cf. Anderson et al., Reference Anderson, Brynin, Raban and Gershuny2007) as work performed outside the employer’s premises (Messenger Reference Messenger and Messenger2022: 2;Footnote 2 Eurofound and ILO 2017: 5–6). Even work typically performed on-site includes nowadays elements of delocalisation, from virtual meetings to the use of virtual workspaces, and from constant online communication as part of a worker’s daily activities to work that is actually performed online in its entirety.Footnote 3
This chapter attempts to examine the appropriateness of existing collective labour law institutions to address the needs and particular conditions of workers engaged in digitised hybrid work, given that such processes and institutional structures had been developed with different work models in mind. It considers that a solution may lie with the extension of the scope and focus of the rights to collective organisation and action, and with a re-evaluation of their substantive content. With regard to work and workplace fragmentation that come with work digitisation, it seeks solutions in worker empowerment through the redeployment of those collective labour rights and institutions. Within that context, the chapter will also briefly touch upon illustrative case studies that provide glimpses into possible avenues of traditional and alternative collective action tactics. Where appropriate, the relevant current EU framework will be used to contextualise the discussion, particularly given the transnational characteristics that often define digitalised workplaces.
4.1.1 From Telework to Digitised Hybrid Work
It is notable that, at European level, it was the social partners who had the foresight to more closely engage with the regulation of telework at a time when the expansion of internet-based work was in its relatively early stages. The Framework Agreement concluded on 16 July 2006Footnote 4 defined telework as ‘a form of organising and/or performing work, using information technology, in the context of an employment contract/relationship, where work, which could also be performed at the employer’s premises, is carried out away from those premises on a regular basis’. That definition encapsulates the traditional understanding of telework as a model identified with remote work, that is, work that is undertaken away from the employer’s premises (Niles Reference Nilles1975, Reference Nilles1988; Eurofound and ILO 2017: 5–6).
The more recent 2022 Framework Agreement on social security arrangementsFootnote 5 for habitual cross-border teleworkFootnote 6 offers a more nuanced take. Telework is now approached as any activity ‘which can be pursued from any location’, including such performed ‘at the employer’s premises or place of business’ (Art.1(c)), is not carried out at the employer’s premises or place of business (Art.1(c)(1)) and ‘is based on information technology to remain connected to the employer’s or business’s working environment as well as stakeholders/clients in order to fulfil the employee’s tasks assigned by the employer or clients, in case of self-employed persons’ (Art.1(c)(2)). It is this second element that can be crucial in an expanded reconceptualisation of the concept that would include work performed at the premises of the employer but primarily through technological tools that either require the worker to be constantly connected to the employer’s virtual workplace or environment or constitute the means by which her service is offered.
The Explanatory Memorandum attached to the 2022 Framework Agreement supports that reconceptualisation. It notes the ‘explosive accrual’ of (traditional) telework because of the COVID-19 pandemicFootnote 7 (cf. Sostero et al. Reference Sostero, Milasi, Hurley, Fernandez and Bisello2023; Bruurs Reference Bruurs2023; Nyberg et al. Reference Nyberg, Shaw and Zhu2021), but also that, even after that exceptional period, telework has carried on as ‘a permanent new way of work’. In defining telework as a concept, the Explanatory Memorandum highlights that genuine telework is ‘completely location-independent’Footnote 8 and emphasises its reliance on a constant ‘digital connection to the company’s infrastructure’ and its working environment. This digital connection, through which work is performed, is treated as an integral part of the modelFootnote 9. However, the Explanatory Memorandum adds that connection to the employer’s environment, though necessary and ‘normally and habitually present’, does not necessarily need to be required 100 per cent of the working time.Footnote 10 Hence, it appears to exclude manual activities undertaken beyond the employer’s premises from the concept of telework. At the same time, though, it also opens the door for a conceptual transition from telework to hybrid digital work (cf. Vartiainen and Vanharanta Reference Vartiainen and Vanharanta2024).
In other words, in circumstances of work digitisation, under which digital work and virtual/online working environments have been regularised and become the norm, it might be useful to reshape our concept of telework so that it does not necessarily equal remote work (regular or not; synchronous or asynchronous). Rather, the model of digitised work, clerical or other, performed in the physical world (e.g. delivery gig work) or wholly online, inherently entails elements of tele-performance or tele-control that fragment spatiality and shape workers’ commitment and experience. The constantly ‘logged on’ worker (‘logging on’ itself having become a form of digitally punching in to enter the virtual workspace) essentially operates beyond the physical confines of her cubicle, workstation, or office. She is connected with colleagues with whom she does not necessarily share the same premises – and they can all be subject to rigorous digital monitoring and management by their employer (see Iannuzzi and Campolongo Reference Iannuzzi and Campolongo2023; Eurofound and ILO 2017: 26–27)). The issues that had been identified by the 2006 Framework Agreement as particularly pertinent to teleworkers, with regard to data protection (Art.5), privacy (Art.6), the required equipment (Art.7), health and safety (particularly as regards ‘visual display units’, i.e. screens of any kind) (Art.8), training (Art.10), but also the risk of isolation (Art.9) and disconnection from their colleagues (Art.11), today apply to any worker operating within a wholly digital or hybrid environment. Therefore, it might be more useful to identify elements or levels of teleworking in each individual case lying within the spectrum that is digital and hybrid workFootnote 11, and adjust our established norms, rights, and institutions accordingly to address the various relevant challenges, rather than treat telework as a mode of work that is not only exceptional, but also supposedly wholly separate (Di Martino and Wirth Reference Di Martino and Wirth1990; Golden and Fromen Reference Golden and Fromen2011; Golden et al. Reference Golden, Veiga and Dino2008; Hill et al. Reference Hill, Hawkins, Ferris and Weitzman2001, Reference Hill, Ferris and Märtinson2003, Reference Hill, Erickson, Holmes and Ferris2010; Kurland and Bailey Reference Kurland and Bailey1999; cf. Anderson et al., Reference Anderson, Brynin, Raban and Gershuny2007) to a now almost obsolete ‘norm’.
The proposition that telework has changed over the years is not new. Messenger (Messenger Reference Messenger and Messenger2022) documents the three-stage evolution from the stationary ‘home office’ to the ‘mobile office’ (i.e. working not just from home, but from virtually anywhere), to, finally, the ‘virtual office’ (Messenger Reference Messenger and Messenger2022: 13–15; Messenger and Gschwind Reference Messenger and Gschwind2016; cf. Hill et al. Reference Hill, Ferris and Märtinson2003), with communication and information technology having merged to allow assets, data, and, ultimately work itself to exist primarily in a virtual space rather than the physical office. Messenger has rightly suggested that the emphasis should be placed on noting the evolution of ICT that led to this paradigmatic change, rather than on working from afar (‘tele’) in relation to the employer’s premises, or on the concept of flexibilityFootnote 12 in organising work. His identification of ‘intermediate spaces’Footnote 13 where work is performed (e.g. the elevator at or the sidewalk around the typical business workplace) that are still defined with reference to the employer’s premises stricto sensu (Messenger Reference Messenger and Messenger2022: 14) is important to help understand what the new digital working model entails.
However, it is suggested that what technological development and increased instantaneous connectivity demand reconsidered is our very concept of what lies afar (‘tele’) in telework as an element of hybrid digital work. Instead of focusing on where the worker is physically present in relation to the business premises, we ought to note what actually lies beyond that physical space: data and assets crucial to the performance of the work (which exist in the cloud and remote servers rather than cabinets or hard drives); clients and, often, colleagues (with emails and virtual meetings substituting for physical even within the employer’s premises); and, ultimately, work itself, which primarily consists of activities performed in the virtual space, on or through ICT devices and tools. Employers, particularly after the end of the heights of the COVID-19 pandemic, are eager to have their workers return to business premises, seeking to exert greater controlFootnote 14 over them (cf. Gschwind and Vargas Reference Gschwind, Vargas and Messenger2022: 40, 59) than what the already intrusive management and monitoring software would allow. That, however, does not change the hybrid nature of work to be performed under this new evolving paradigm.
4.1.2 Genuine Telework and Digitised Hybrid Work
The challenges, practicalities, and substance of collective labour engagement of hybrid digital workers have not been the subject of much attention; even under the more traditional understanding of telework, they have gone largely been unnoticed by literature and legislators. The 2002 Framework Agreement, under Art 11 (‘Collective Rights Issues’), did recognise the importance of teleworkers’ full inclusion in collective processes, stipulating that they have the same collective rights as workers at the employer’s premises, but offering little as to how that is to be achieved. The one notable exception is its demand that communication of teleworkers with worker representatives is unimpeded and relevant obstacles prohibited. This could be read, inter alia, as the social partners acknowledging perhaps the greatest hurdles full or partial teleworkers face in building a consciousness of shared experience and interest, and funnelling that into mechanisms of solidarity: isolation (Beauregard et al. Reference Beauregard, Basile and Canonico2013: 4, 28–34; Gschwind and Vargas Reference Gschwind, Vargas and Messenger2022: 54–56; Eurofound and ILO 2017: 37) and detachment (‘being cut-off)Footnote 15 (Beauregard et al. Reference Beauregard, Basile and Canonico2013:4; 28–34) from their colleagues and peers, which weakens the interpersonal bonds between them (Beauregard et al. Reference Beauregard, Basile and Canonico2013: 25–28)Footnote 16.
It is suggested that these hurdles apply to all engaged in digital work, regardless of the level of remoteness that characterises their duties, from fully remote teleworkers (be it ‘home office’ or ‘mobile office’ as such) to those that might be physically stationed at the employer’s premises but offer their services in its ‘virtual office’, engaged in work that does not actually allow physical proximity and interaction with their coworkers. Moreover, the technological advancements and ICT tools that define the digital work model fragment work spatially and substantially (furthering micro-specialisation, and artificial work fragmentation, including into what Graeber would have regarded as ‘bullshit jobs’) (Graeber Reference Graeber2018). De-spatialisation is crucial. Making the common physical workspace redundant in favour of the ‘mobile office’ or the virtual working environment that requires minimal (if any) physical face-to-face interaction deprives workers of the spatiality of workplace community as the place they meet and interactFootnote 17 to forge the commonality of their experience, their labour consciousness and, ultimately, to organise and act. Communication and interaction between coworkers is the minimum prerequisite for building the interpersonal bonds, the shared experience, and the sense of shared interests and problems that are required for substantive and formal solidarity to emerge, that is, for sentiments of solidarity and formal mechanisms through which common understanding, action and mutual aid can be funnelled.
The digital work model, which includes the established concept of telework and its proposed reconceptualisation, has been argued to be characterised by multifaceted fragmentation: legal; technological; organisational; spatial; social (Della Porta et al. Reference Della Porta, Chesta and Cini2022: 222–224). Although platform work encapsulates all, as perhaps the most emblematic example of this modern paradigm, teleworking does not escape these varieties of fragmentation. Delocalisation of work, to the detriment of commonality (cf. Moriset Reference Moriset2004), but also to the detriment of developing full bourgeois citizen consciousness, is, as we have remarked, the most common feature of teleworking. Further, though, attempting to contain telework into a separate category that only encompasses fully remote work (with the caveat of the 2006 Framework Agreement, as discussed above) reveals the risk of splitting digital work into separate categories, if not legal statuses and contractual modalities. The variety of ICTs and digital services upon which teleworking is based fuels technological fragmentation, creating respective varieties of working experience, automated management and surveillance, work standardisation and individualisation. Finally, the virtual workspace promotes organisational fragmentation, that is, compartmentalisation, but also integration, interaction and intra-employee competition beyond physical borders. It is useful, therefore, to keep in mind the digital paradigm context in which our contemporary understanding of teleworking is situated.
In that regard, we also need to recall that work digitisation, as applied in the modern work and workplaces, constitutes part of the most recent evolutionary stage of the variety of free market capitalism that has been dominant globally since the late 1980s (Srnicek Reference Srnicek2017: 11; 13–25) and its preference for ‘liberal’ (i.e., unregulated) labour markets. It ushers in a new emblematic paradigm of economic, market and business organisation (Srnicek Reference Srnicek2017: 27 ff.), promoting ever-increasing dematerialisation of capital production, financialisation and intangible ‘services products’ that often, in turn, define the new workplace paradigm (examples range from cloud computing and data processing, communication and work management platforms, to crowdwork and digital micro-work supplementing more ‘regular’ in-house digital work). Such services and platforms used by employers are not under their direct control but developed and offered by companies and providers increasingly conglomerated under the control of just a few corporate entities. In other words, zooming out from the microlevel of digital work as such, the systemic context reveals a movement away from the liberal free market ideal towards a stage of capitalist neofeudalism (Dean Reference Dean2020; Kuttner and Stone Reference Kuttner and Stone2020; Supiot Reference Supiot2013: 129–145, Reference Supiot and Brown2017: 214–225; cf. Morozov Reference Morozov2022) facilitated by, and clad in, technological advancement (Kobrin Reference Kobrin1998; Mazzucato Reference Mazzucato2019; Varoufakis Reference Varoufakis2023, Reference Varoufakis2021).
It is within this broader contemporary paradigm that we must situate any analysis of digital work, including a reconceptualisation of telework. And it is within this context that more comprehensive re-evaluation of the concepts of work and the workplace, and a respective reconsideration of traditional legal institutions might be due. Instead of piecemeal intervention through regulating supposedly distinct forms of work, taxonomised into convenient conceptual boxes (telework; platform work), we should perhaps start by considering whether the scope and substance of established (in this case, collective) labour rights, processes and mechanisms should be reshaped to fit the needs of the digital work paradigm.
4.2 Collective Labour Rights and Digital Work
Within this new digital market paradigm, and if established labour law concepts and norms are to be reconsidered accordingly, someone may wonder why any attention at all should be given to rethinking collective labour rights, beyond just ensuring that digital workers are covered by established regulations (cf. Eurofound and ILO 2017: 44–45, 48–49, 60). However, the mere tokenistic expansion of the scope of existing collective labour institutions to cover (full or hybrid teleworker) might be missing the importance digital collective autonomy might have in combating the multifragmented nature of digital work.
Collective labour law rights and processes do not simply aim to rebalance the inherently unequal employment relationship (indicatively, Vergis Reference Vergis, Blackham, Kullmann and Zbyszweska2019). The functions they perform promote both individualistic (e.g. economic freedom) and collective (e.g. solidaristic; class-related; systemic) objectives, as they serve all three uncommodifiable (Polanyi Reference Polanyi2001: 72–79) aspects of a worker’s identity: that of a person, that is, an autonomous individual whose personal freedom ought to be respected; that of a bourgeois citizen (i.e. member of a particular societal arrangement); and that of a political citizen, a member of a particular polity (Schmidt am Busch Reference Schmidt Am Busch, Smith and Deranty2012: 71). Workers’ associations, such as trade unions, embody and promote communal values, like cooperation, solidarity (Zimmer Reference Zimmer and Lopez-Lopez2022) and mutual aid (Van Den Abbeele Reference Van Den Abbeele2022), and, ultimately, the sense of human interdependence and commonality of interests, as opposed to the individualistic, selfish ethos, the ‘atomism ascendant’ (Kohler Reference Kohler1995: 291–296), of neoclassical economic perceptions (Levine Reference Levine2001: 559–560). They have the potential to re-embed the (never neutral) market in its specific social, societal, institutional and political context (see Polanyi Reference Polanyi2001; Veitch Reference Veitch2013; Wood et al. Reference Wood, Graham, Lehdonvirta and Hjorth2019).
Digital work and teleworking, defined by fragmentation, dehumanisation, depersonalisation and de-spacialisation of labour, epitomise work commodification and can decouple labour from its personal, and, hence, social, nature. Such commodification of labour amounts to perhaps the most grievous disembedding of the economy from its social context, a separation that inevitably leads to social reaction (Polanyi Reference Polanyi2001: 136–140, 156–157; Wood et al. Reference Wood, Graham, Lehdonvirta and Hjorth2019: 935–936). That paradigmatic shift, therefore, is what makes renewed emphasis on collective labour law imperative. Ensuring effective access to collective rights, institutions and processes in the digital workplace constitutes a democratic (and market-democratising)Footnote 18, re-embedding safety valve.
Further, in a digital market where technological resources and ownership of data and the ICT to access them exacerbate the power imbalance between capital and labour, collective autonomy remains the prime means of forcing access to the relevant information and redressing power inequality. It also holds the key to addressing the isolation inherent in digital teleworking and facilitate labour and social solidarity (Lester Reference Lester, Davidov and Langille2011; Zimmer Reference Zimmer and Lopez-Lopez2022) building and processes of mutual aid (cf. Van Den Abbeele Reference Van Den Abbeele2022).
4.2.1 Collective Bargaining: Legal Avenues and Transnational Potential
In the European context, as discussed, the 2006 Framework Agreement on Telework did recognise the need for teleworkers to have equal and full access to collective labour rights, but did not offer anything on how that could actually be achieved. Further, advancements in digital work made it easier, and more common, for such working arrangements and virtual working environments to transcend national borders. This transnational element of teleworking (see Bruurs Reference Bruurs2023) saw an explosion during the COVID-19 pandemic (cf. Nyberg et al. Reference Nyberg, Shaw and Zhu2021 on the relevant challenges), to the point of making imperative the adoption of the 2022 Framework Agreement to regulate the social security related challenges that arose. This cross-border character could necessitate the re-evaluation of transnational collective labour processes within the context of the EU common market. It is a question, however, whether that would be even possible, and, if so, what particular form regulatory intervention to facilitate collective labour engagement, transnational or not, could take.
4.2.1.1 Taking Inspiration from the Platform Work Directive
Even at the level of the narrowest of interventions, whereby the EU would introduce certain minimum requirements related to the substantive exercise of collective labour rights for teleworkers, the EU Platform Work DirectiveFootnote 19 (PWD) could serve as inspiration, even in its eventual, diluted version.
It is important that the Preamble to the finally proposed Directive, as eventually approved by employment and social affairs ministers at the Council meeting on 11 March 2024, explicitly acknowledges the risks inherent in increased work digitisation and the introduction of new technologies. The dangers it recognises, of furthering the inherent power imbalance between employers and workers, increased surveillance (and its effect on privacy), and lack of transparency of employer decision making, associated with digital work, and the potential adverse effects on working conditions, equal treatment, and health and safety at work (Point 4, PWD Preamble), are present regardless of the form digital work takes and are not specific to platform work. The same applies regarding algorithmic management and its depersonalised nature and opacity (Point 8, PWD Preamble), as well as the de facto cross-border nature of (online) digital work (Point 9, PWD Preamble). It should be noted that the PWD Preamble explicitly recognises the need for the exercise of collective bargaining rights to be protected against these dangers, and, particularly, those arising from automated management and the transnational nature of digital tools and platforms (Point 14, PWD Preamble).
The Directive is silent on collective labour rights per se. However, importantly, it introduces subject specific information and consultation rights (Articles 9 and 17 upd.PWD), requires the engagement of workers’ representatives on certain issues (Article 9(1) and (4) upd.PWD) and emphasises the need of transparency as regards the algorithms and, more generally, the digital tools employed by platforms. Those elements could form the basis of a comprehensive piece of legislative intervention that would cover digital work as a genus field. Transparency as regards the capabilities of ICT tools and other pieces of software and digital resources that define and affect teleworking, for example, is crucial for the effective protection of digital workers. The same applies as regards interventions that would counter their isolation and ensure the effective, unmediated, and unmonitored communication between them while logged into their virtual workspace and/or workplace.
The final version of the Platform Work Directive addresses general information rights of worker representatives as regards automated monitoring and decision-making systems under Article 9(1) upd.PWD. Further, though, it stipulates that such comprehensive and detailed information is always due prior to ‘the use of those systems or to the introduction of changes affecting working conditions, the organisation of work or monitoring work performance’. It is clear that this right to information is not self-standing but is to be considered as a necessary condition for effective consultation (Article 13 upd.PWD) and dialogue, including in the form of collective bargaining, as corroborated by the Directive’s Preamble (point 22, PWD Preamble). Guaranteeing effective access to information is crucial, given the opaque nature of technical algorithmic processes and the imbalance of resources (including technical expertise)Footnote 20 between the employer and digital workers.
It should be noted that the PWD does not limit information and consultation rights to trade unions. Its broad understanding of the concept of worker representatives, as members of an organised entity, but also its reference to representatives that do not fall within that organisational context (Art.15 upd.PWD), acknowledges impliedly the possibility of proto-unions or other grassroots structures or initiatives emerging (Aloisi and Potocks-Sionek Reference Aloisi and Potocks-Sionek2022: 41), including through the borderless channels of the digital, online working environment.
It is also important to note that Article 20 of the final version of the Directive introduces a right to private communication between workers and between them and their representatives. Such a right would be crucial to all digital workers, including teleworkers as currently conceived or under the broader concept proposed in this chapter. Under Article 20 upd.PWD, Member States are placed under the duty to ensure that digital labour platforms create and offer their workers the ability, through the platform’s own infrastructure or similarly effective means, ‘to contact and communicate privately and securely with each other, and to contact or be contacted by representatives of persons performing platform work’ (i.e. both unions and ad hoc representatives, as above).
The Directive’s Preamble explicitly acknowledges that the creation of secure digital communication channels is imperative to offset the spatial fragmentation of work, lacking a common workplaceFootnote 21 where workers can have the opportunity to ‘get to know’ and communicate with each other. Importantly, the Preamble adds that this opportunity should be guaranteed not simply to ensure social interaction, but also with a ‘view of (workers) defending their interests’. In that, the PWD effectively appears to recognise the need for collective labour organisation and action in digital work, since that is how workers’ interests can actually be defended. Any other interpretation would make the introduction of the communication and contact provision meaningless. In that, the communication right under Article 20 upd.PWD might prove crucial in the sharing of information and experiences, and the forging of familiarity and commonality that have been seen (Hertwig et al. Reference Hertwig, Holz and Lorig2024; Maffie Reference Maffie2020; cf. Sorian and Cabanes Reference Sorian and Cabanes2020) to be prerequisites of the development of a collective participation ethos among digital communities.
As EU competence formally does not extend to regulating labour associations, collective bargaining, and strikes (Article 153(5) TFEU), the PWD does not prescribe anything beyond information and consultation rights.
4.2.1.2 Exercise of Transnational Association Rights under EU Law?
Freedom of association is enshrined in Article 12(1) CFREU, which almost verbatim replicates Article 11 ECHR. The Community CharterFootnote 22 (CC) and the European Social Charter (ESC) are useful when attempting its interpretation, with the latter, in Article 5 ESC, establishing the potential for ‘international’ organisation and, hence, transnational collective labour processes. According to the European Committee of Social Rights, Article 5 ESC introduces a positive obligation (cf. Waldron Reference Waldron1993: 8 on the nature of collective labour rights) for states to legislate to protect the right to organise and its effective exercise, a duty that cannot compensated by reference to custom (Harris and Darcy Reference Harris and Darcy2001: 89). In that regard, a level of internal autonomy of worker organisations is to be safeguarded against legislative intervention or employers’ interference (Harris and Darcy Reference Harris and Darcy2001: 96, 98). The European Court of Human Rights concurs, reading into Article 11 ECHR a positive obligation of the state to establish and maintain legal mechanisms and institutions (particularly trade unionsFootnote 23) that will accommodate the effective enjoyment of the relevant freedomFootnote 24, with an eye to collective bargainingFootnote 25. Any restrictions should be construed narrowly, with states enjoying only a slim margin of appreciationFootnote 26; collective organisation as such cannot be prohibitedFootnote 27.
Similarly, a systematic reading of Article 12(1) CFREU, taking into account the ECHR and the ESC under the light of the fundamental normative values and objectives of the EU (particularly, Articles 2 TEU and 3(3) paras 1–3 TEU), and given the transnational potential of digital work, should lead to a positive obligation on the EU, when not precluded by territoriality and local elements, that would trigger the exclusive competence of Member States, to create the framework that facilitates and realises (transnational) worker organisation and engagement. Despite the apparent finality of its wording, therefore, it could be (perhaps controversially) suggested that Article 153(5) TFEU only prevents EU intervention where the relevant exclusive competence of Member States can indeed be exercised, that is, at the national level. Digital work wholly or partially provided online, in the virtual space, can escape national boundaries. The same applies for the ICTs, platforms, pieces of software and data that make digital work possible. Under the virtual workplace and market paradigm, territoriality and, hence, jurisdiction triggering the exclusive national competence should not necessarily be judged merely on the basis of where a worker happens to stand when engaging in digital work. The code that underpins algorithmic management and shapes the virtual working environment and the data that define and embody the service provided exist beyond national borders, as does the virtual space that shapes the experience of communicating and engaging with clients, coworkers, and assigned tasks. It might be, therefore, that what requires regulation is the transborder digital market itself. That leaves EU law as the only regulatory level that can ensure the enjoyment of relevant rights, in line with the fundamental principles and objectives of the Union, including as regards its pursuit of a social market economy (Article 3(3) TEU).
4.2.1.3 Transnational Collective Bargaining in the EU: Legal Bases?
Article 28 CFREUFootnote 28 on collective bargaining and collective action explicitly covers the European levelFootnote 29 exercise of both rights, and, as such, in principle also guarantees transnational collective bargaining and collective action. As such, it could be the springboard to elevate the Social Dialogue mechanism under Articles 152 and 154–155 TFEU to more than just a supplementary legislative process (see also Riesenhuber (Reference Riesenhuber2012): 71–87, 152–160) and into a vehicle for a transnational collective bargaining mechanism.
Interpretation of the Charter on collective bargaining should draw for inspiration from the Community Charter, the European Social Charter (ESC), the European Convention on Human Rights (ECHR), and relevant ILO Conventions (particularly, Conventions 87 and 98 (Dorssemont and Rocca Reference Dorssemont, Rocca, Dorssemont, Lörcher, Clauwaert and Schmitt2019: 471–476). The imperative of ensuring effective communication between digital workers, for example, should be read under the light of the duty of the ESC signatory parties to ‘promote’, without unnecessarily interfering (Dorssemont and Rocca Reference Dorssemont, Rocca, Dorssemont, Lörcher, Clauwaert and Schmitt2019: 473–474), ‘joint consultation’ (6(1) ESC) and ‘machinery for voluntary negotiations’ (6(2) ESC) between workers and employers. However, joint consultation and voluntary negotiations are impossible without the ability of workers to exchange information and coordinate before attempting communication and dialogue with the employer, processes which States are to promote refraining from any unnecessary intervention (Świątkowski Reference Świątkowski2007: §7.2.2, 213–214)Footnote 30.
The Social DialogueFootnote 31 provisions of Article 152 and Articles 154–155 TFEU can provide the legal vehicle for an EU transnational collective organisation and bargaining process. According to Article 154(1) TFEU, the fundamental objective of Social Dialogue is the promotion of the autonomous process of balanced dialogue between management and labour. A key aspect of Social Dialogue is its capacity to function as an autonomous regulatory mechanism through the option for the Social Partners to conclude an agreement under Article 155 TFEU. When such an agreement refers to matters under Article 153 TFEU and the social partners so request, it can also take the form of legislation on the decision of the Council, following the relevant proposal by the CommissionFootnote 32.
Criticisms as to a representativityFootnote 33 and legitimacy deficit (Barnard Reference Barnard2012: 79–85; Betten Reference Betten1998: 30–36; Riesenhuber Reference Riesenhuber2012: 155) of Social Dialogue as a legislative mechanismFootnote 34 subside if we consider Social Dialogue to be an instrument of collective autonomy (Bercusson Reference Bercusson1999; cf. Fredman Reference Fredman, Craig and Harlow1998: 408–409). In that sense, the process is to be approached as an extension of the relevant autonomous regulatory mechanism of private law and industrial relations (Bercusson Reference Bercusson1999). Within this context, Bercusson (Reference Bercusson1999) has suggested that the term ‘representation’ refers to the interests represented, rather than the individuals who are members of the interacting worker and employer parties. However, even under the view that Social Dialogue is a vehicle for transnational collective bargaining, there are structural deficits of the current framework that could have that collective process producing uneven results. Most notably, in the absence of a complementary transnational framework for collective action to rebalance the inherent inequality of negotiating power between workers and employers, employers and their interests could dominate the process (Fredman Reference Fredman, Craig and Harlow1998: 409–410).
That deficit notwithstanding, though, the procedure under Article 155(2) TFEU is to be understood as a form of erga omnes extension of collective agreements, a regulatory choice of giving effect to collective autonomy (Bercusson Reference Bercusson2009: 582; Ryan Reference Ryan, Hervey and Kenner2003: 88–89) and a transnational collective labour law enforcement mechanism. The substantive recognition of collective autonomy at EU level by Article 152 TFEU supports this view. A combined reading of Article 152 TFEU and Articles 154 and 155 TFEU, under the light of the express recognition of an EU fundamental right to collective bargaining (Article 28 CFREU), confirms that Social Dialogue is to be now primarily acknowledged as a sui generis manifestation of collective autonomyFootnote 35 at transnational level (Bercusson Reference Bercusson2009: 578; cf. Lo Faro Reference Lo Faro and Inston2000: 74–83).
Even at a bare minimum, though, the wording of Article 152 TFEU implies an obligation of the Union vis-à-vis collective labour institutions that is not necessarily related to the formal process of Social Dialogue as a sui generis mechanism and is not confined to it. Article 152 TFEU clearly stipulates that the Union ought to both ‘recognise’, but, perhaps more importantly, ‘promote’ the role of social partners ‘at its level’. That is not to be approached as an empty declaration. It forces the EU to recognise the role, function, and legal identity of worker and employer organisations and associations of national or transnational nature and actively support and accommodate them in the pursuit of their systemic function. Arguably, that encompasses accommodating the work and evolution of collectivities (e.g. virtual such; groupings that transcend national borders) that might not necessarily fit the formal, established understanding of social partners or workers’ representatives, but do perform a similar function for digital workers involved and pursue similar objectives (see above on Art.15 upd.PWD). At a minimum, it cements the duty to introduce norms guaranteeing effective communication between digital workers that would allow their self-organisation.
4.2.2 Collective Action: Case Studies and Potential
As regards collective action, given the limitations of the Charter (Article 51(2) CFREU) and the competences of the EU (Article 153(5) TFEU), the established reading of Article 28 CFREU suggests that it cannot be interpreted as giving rise to a (new) transnational right to strike that can exist separately and in addition to relevant national rights (Bercusson Reference Bercusson2009: 209–210, 243–244). Regardless, national-level cases of collective action undertaken by digital workers are useful in examining the relevant challenges and drawing lessons from potentially innovative practices that might illustrate what (even transnational) digital industrial action might evolve to encompass, within or beyond the confines of the law.
Examples of platform workers’ mobilisation are indicative of how, similarly to their out-of-the-box self-organisation strategies, collective action tactics of gig workers employed also fell outside the conventional toolbox of established trade unions (see Della Porta et al. Reference Della Porta, Chesta and Cini2022: 224–238; Tassinari and Maccarrone Reference Tassinari and Maccarrone2017: 354–355, Reference Tassinari and Maccarrone2020: 45–46). It is interesting that in some cases, the lack of experience in labour organising per se and the absence of support by ‘traditional’ trade unions proved to be a strength and a source of experimentation and tactical innovation. Workers turned to their non-labour mobilisation experiences, forged through prior participation in other social, political, and grassroots movements (such as the student movement; housing and urban collectives) (Della Porta et al. Reference Della Porta, Chesta and Cini2022: 225), aiming to engage consumers and the general public and disrupt the employer’s market image (e.g. calling for review bombing and boycotts). Cross-pollination of experiences and tactics (Forsyth Reference Forsyth2022: 116–131, 146–164) was vital in adopting unconventional modes of collective action not against production processes, as is typically the case, but aimed at marketing and the point of consumption.
Digital workers engaged in full or hybrid teleworking, on the other hand, seem to have adopted relatively more conventional forms of collective organisation, coordination, and action, as illustrated by the examples of Gizmodo and Onion (G/O Media) workers in the United States and Teleperformance workers in Greece.
The G/O Media group, formed in 2019 as a result of the merger of the two original employer companies, owns and operates a number of news websites and blogs (including specialised outlets that focus, inter alia, on social and political issues, technology, entertainment, sports, gaming, automotive news)Footnote 36. The peculiarity is that these are strictly digital media, operating under conditions of enhanced digitisation of work, with telework as the main model, particularly post-COVID. The trade union (GMG Union)Footnote 37, representing the Group’s workforce of writers and copywriters, journalists, artists, podcast and video producers, editors and social media managers of the various media, was the first in the United States to be set up in the digital media sector and the first to call for (‘digital’, as it called it) strike action of indefinite duration in June 2022. As the G/O workers had revealed, for two years during the pandemic (2020–2022) the company had applied a remote work model for the entirety of the workforce, with telework becoming the default, allocating work and shifts so as to cover the full extent of US time zones and continuous 24-hour operation of its outlets. Part of the dispute that arose with the employer company was its demand that workers ‘return to the office’, located in New York; for many, that would now involve having to relocate to the city, with all the cost and personal stress and difficulty that might come with. Interestingly, therefore, in this case, in addition to other demands (such as those related to wage, leave and working time, compensation in the event of termination of employment, various health benefits, and anti-discrimination issues), worker mobilisation and, ultimately, industrial action sought to preserve, rather than avoid, work digitisation. Specifically, it aimed to safeguard the (initially urgently) established conditions of teleworking and to prevent the imposition of a return to a more ‘traditional’ physical work regime.
In the case of ‘Teleperformance Greece’ workers, the employer, a national subsidiary of a French multinational, offers its services to companies or entities that are in need of customer communication and support, telemarketing, content moderation and debt collection, with Teleperformance workers being allocated to the relevant tasks. Its workers are engaged either at Teleperformance’s premises, whereby, however, work is provided wholly through ICTs (internet; phone), or outside of those as traditional fully remote teleworkers. Privatisation and liberalisation policies have triggered a boom in outsourcing of tasks and departments covered by Teleperformance, with a respective pressure upon its workers to engage in an increasingly diverse array of tasks, clients, and subjects, and increasing pressures as to wage, working hours, and working conditions, but, also, job security, all issues which workers soon brought to the fore.
In the dispute that arose, Teleperformance Greece workers, beyond demands on the above, also raised health and safety concerns (requesting, inter alia, regular breaks and a compensatory bonus for the mandatory constant use of earpiece/headphones) and noted the need for timely notification before reassignment to new tasks and clients and for relevant information about those. Moreover, though, and importantly as regards digital (tele)work, they alluded to the increasing legal, organisational, and social fragmentation that was brought about by the company’s model and subcontracting practices, explicitly noting the problem of isolation and dissociation this working model caused. In fact, in its inaugural announcement, SETEP, the company-level trade union teleworkers establishedFootnote 38, declared: ‘No employee of Teleperformance, will ever feel alone again, no one will ever feel easily replaceable and fear in the isolation of teleworking’Footnote 39. Lastly, Teleperformance workers demanded that the employer fully cover the cost of wholly remote telework (i.e. equipment, internet connection, energy and heating costs), and asked to be guaranteed full disconnection from all systems at the end of the daily working hours.
It is worth noting that neither Teleperformance nor G/O Media digital workers fully embraced radical tactics, with minor exceptions (particularly in the case of G/O). Teleperformance workers were the more ‘traditional’ of the two groups, manoeuvring within the confines of established trade union structures and institutions under Greek law. Their initial action was sanctioned, and thus legally ‘covered’, by a sectoral trade union, before they eventually formed a company level such in February 2024. Their strategy consisted of typical trade union organisation and a number of non-consecutive single day strikes, in the form of typical removal of labour. G/O workers, despite framing their action as ‘digital’, also largely employed conventional tactics and negotiation avenues. Through their company group-level trade union, they called for indefinite strike action, which was complemented by holding small picket lines at the employer’s offices.
However, it is worth noting two elements that do not necessarily appear in ‘common’, non-digital, action which were critical in the eventual success of the G/O action in particular. First, G/O workers set up robust digital networks of communication, which effectively, for a good deal of the mobilisation, nullified the delocalisation of their work. Second, they made good use of social media to engage the company’s target audience and call for a boycott of the Group’s websites and blogs. The layout of those webpages, which typically includes a comments section, allowed readers, that is, G/O’s audience, to flood them with comments and images that expressed support and solidarity towards the striking workforce, intensifying the visibility of the mobilisation and putting pressure on the company. Further, digital workers employed at other similar media showed their support by intensifying the online coverage and visibility of the G/O workers’ mobilisation. The result of digital Sustainable Development Goals and the careful mix of simple digital and conventional action was that an agreement with the employer was reached within only four days from the beginning of the strike.
It appears, therefore, that there is an understandable tendency to gravitate towards established vehicles and forms of action, in a form of ‘institutional replication’, since these are the only means guaranteed to fall within the protective scope of the current labour laws. However, cracks of innovation do appear, as digital workers attempt to adapt those traditional forms of struggle into the digital and de-spatialised circumstances of their work and working environments. It is interesting, in particular, how outreach, synergies with not just the employer’s customer base but the broader public and consequent forms of digital action that would harm the employer’s market reputation, rather than disrupt production as such (e.g. calls to boycott; digital campaigns; review bombing), appear to be more prominent in the digitally integrated market.
4.3 Conclusion
The ascending dominance of digitisation in most white-collar jobs, which involves multiple elements of (full or partial) remoteness, questions the established, narrower understanding of telework as defined by the worker’s location and construed as a supposedly separate category of work that poses equally distinct challenges. Digital work, including teleworking in all its forms, promotes isolation, fractures the commonality of the workplace and the working experience, and, ultimately, tests the limits of concepts and processes of collective organisation, solidarity, and action that developed out of radically different production paradigms. The elements of power imbalance and resource and information asymmetry that typically characterise the employment relationship as unequal and justify rebalancing mechanisms such as collective autonomy are certainly present, if not enhanced, in the modern digital workplace and the opacity of its underlying processes. Work, regardless of whether it is offered at the premises of the employer or beyond, depends upon a piece of technology possibly developed, but certainly owned by the employer, under the sole command of whom it is, serving that party’s business interests. That alone should be reason enough to warrant not just relevant information and consultation rights, but a full-fledged framework for collective organisation and action, as a counterbalancing mechanism. Further, though, collective labour rights are systemically necessary to prevent the complete commodification and de-humanisation of labour that risks disembedding work from its social context and stripping it of its interpersonal character.
Guaranteeing that teleworkers are caught by established collective rights and norms is necessary, but not sufficient. Regulators should carefully consider the intricacies of digital work and the opacity of the technological means through which it is organised and performed, and adjust the relevant rights accordingly. It might be that some unconventional thinking is required of legislators and judges alike to tackle the challenges of a working model that can escape physical and national boundaries, including as regards utilising the hidden options EU law and its purposive and systematic interpretation might provide.
In that respect, it might be that digital workers are ahead of the game. Through their mobilisation, they have highlighted the needs and demands that have arisen specifically with reference to digital work. Alternative tactics and novel synergies have already been developed, indicating routes of solidarity, mutual aid, organisation, and active promotion of worker interests that do not necessarily fall within pre-prescribed norms and institutional models. These forms of action take advantage of the features and strengths of the digital environment from which they sprung, attempting to traverse established legal options and gaps. However, ultimately, their success depends on the level of commitment and resilience of workers. In turn, that resilience will rely on the robustness of support and mutual aid networks, and the synergies that might be facilitated by digital means but, ultimately, will have to manifest in the physical realm that is the streets, where labour struggle always returns, and the fragments of solidarity are put back together.
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