Background

The preamble to the Convention recognises that the platform economy is “significantly transforming the world of work”, by creating opportunities for enterprises and business development, opening new pathways for the formalisation of work and generating work and income opportunities. At the same time, it identifies gaps in the legal and regulatory framework applicable to platform work and the need for specific standards to address the particular features of digital labour platform work.

The Convention also recognises the cross-border nature of platform work, noting that, where digital labour platforms operate across borders, clients, workers and platforms may be located in different countries. This illustrates why platform work does not always fit neatly into conventional labour law categories based on a single workplace, employer or national legal system.

What does the Convention cover?

The Convention applies to all digital labour platforms and digital platform workers, whether in the formal or informal economy.

A “digital labour platform” is defined as a legal or natural person that, through digital technologies and using automated decision-making systems organises and/or facilitates work performed by persons for remuneration or payment for the provision of services upon request, whether online or in a specific geographic location.

A “digital platform worker” is defined as a person employed or engaged to work for services organised or facilitated by a digital labour platform, for remuneration or payment, regardless of their classification of status in employment.

The Convention recognises the role of intermediaries in making platform workers’ services available through contractual or subcontracting arrangements. Where intermediaries are used, Member States must determine and allocate the respective responsibilities of digital labour platforms and intermediaries.

In addition, Member States may, after consultation, exclude limited categories of platforms or workers where special problems of a substantial nature arise, but must, where practicable, extend the Convention progressively to those categories.

Classification of platform workers

A key feature of the Convention is that it does not determine whether digital platform workers are employees. Instead, Article 9 requires each Member State to take appropriate measures to ensure the correct classification of digital platform workers in respect of the existence or non-existence of an employment relationship. This determination is to be guided primarily by, among other things, the facts relating to the performance of work and the remuneration or payment of the digital platform worker and having regard to the specificities of platform work. This is significant because the classification enquiry in platform work should be grounded in the factual reality of how the work is performed, rather than in the label adopted by the platform or the worker.

Key protections under the Convention

Member States must respect, promote and realise fundamental principles and rights at work in the platform economy, including freedom of association, collective bargaining, the elimination of forced labour and child labour, non-discrimination, and a safe and healthy working environment. It also calls for measures to promote decent work opportunities, career and skills development, and the formalisation of work via digital labour platforms.

The Convention addresses occupational health and safety, requiring prevention of occupational accidents, occupational diseases and any other injuries arising from platform work. It also extends protection against violence and harassment, including where this occurs online and by third parties such as clients and customers.

Payment to digital platform workers must be made in a timely manner, in full and by lawful means. For digital platform workers in an employment relationship, remuneration must be no lower than the applicable statutory or negotiated minimum wage, and workers must be compensated for expenses or other costs incurred in performing the work. Member States must also consider whether minimum wage protections should extend to digital platform workers who are not in an employment relationship.

Digital platform workers must have access to social security protection on terms no less favourable than those applicable to other workers with the same employment classification. They must also receive timely, verifiable and easily understandable information on their terms and conditions, which should preferably be governed by the laws of the country where the work is performed. The Convention also prohibits account suspension, deactivation or termination on discriminatory or unlawful grounds, and secures access to safe, fair and effective dispute resolution mechanisms and appropriate and effective remedies.

Algorithmic management and data protection

A notable feature of the Convention is its focus on automated systems. Digital labour platforms must inform digital platform workers, before their employment or engagement, about the use of automated systems to monitor, evaluate or make decisions about their work, and the impact of those systems on working conditions and access to work. Where automated systems generate decisions, digital platform workers must have access to written explanations for significant adverse decisions, as well as review mechanisms for non-payment, account suspension or deactivation, or termination. Member States must ensure also appropriate human involvement in these processes.

The Convention also contemplates “effective and appropriate safeguards” concerning digital platform workers’ personal data, together with the right to request “access to, and the rectification and erasure of” personal data processed by digital labour platforms, subject to applicable data retention laws.

Ratification and the South African position

Article 27 of the Convention provides that it will come into force 12 months after two Member States have registered their ratifications with the Director-General of the ILO, and thereafter for each additional Member State 12 months after its own ratification is registered.

Should South Africa ratify the Convention (which it has not yet done), it would have to implement the Convention through laws and regulations, collective agreements and court decisions (or a combination of these means), or another manner consistent with national practice in line with the prescripts of the Convention. South Africa would also have to consider how existing labour, social security, data protection and occupational health and safety laws can be infused with platform work regulation, and whether further legislative or regulatory measures are required.

Even before ratification, the Convention is relevant for employers and digital labour platforms operating in South Africa as an indication of the global direction in labour standards. It highlights the importance of assessing platform work arrangements against their factual substance, including automated decision-making, payment practices, account suspension and deactivation, data protection practices, and access to effective dispute resolution.

Key takeaways

• The Convention signals a clear global direction of regulation in the platform industry. Even before ratification, employers and digital labour platforms operating in South Africa should consider the Convention’s standards as an emerging compliance benchmark and begin assessing their exposure.
• The Convention leaves open the employee vs independent contractor debate, but requires that classification be determined by the factual reality of how work is performed. Our courts and labour forums already apply a substance-over-form test under various labour laws. Digital labour platforms should review their worker arrangements against these factual determinations before any ratification or legislative reform compels them to do so. In addition, ratification is not a pre-condition for risk where our courts, labour forums and sector-specific regulators have become increasingly alive to platform work disputes. Therefore, the Convention’s framework is likely to inform how those bodies interpret existing law. Employers and digital labour platforms should proactively review their contracting models, classification practices, automated decision-making processes and worker protections against the standards set out in the Convention, rather than waiting for domestic legislative reform.
• The Convention introduces protections across several areas that map directly onto internal compliance reviews that employers and digital labour platforms should be conducting. Specifically, consideration should be given to whether:
• remuneration practices meet applicable minimum wage requirements and cover work-related expenses;
• occupational health and safety obligations extend adequately to digital platform workers;
• policies on violence, harassment and online conduct apply to third-party interactions;
• digital platform workers have access to social security coverage commensurate with their classification;
• automated decision-making systems are disclosed to digital platform workers and subject to human oversight and review mechanisms;
• data collection, retention and erasure practices are compliant; and
• account suspension, deactivation and termination processes are non-discriminatory and supported by accessible dispute resolution.

We will continue to monitor developments in relation to the Convention, including the ratification process and any consequential legislative amendments in South Africa.