Friday, January 27, 2023

IN ANTICIPATION OF ADOPTION OF THE LAW ON FLEXIBLE FORMS OF EMPLOYMENT

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Participation in the Working Group for the Drafting of the Law on Flexible Forms of Employment will enable the representatives of two main trade union confederations – Confederation of Autonomous Trade Unions of Serbia – SSSS, Trade Union Confederation NEZAVISNOST – UGS NEZAVISNOST and Association of Internet Workers – URI to react if there are any harmful proposals, as is the case with the Law on Simplified Work Engagement on Seasonal Jobs in Certain Activities, but it cannot guarantee that it will prevent the adoption of the law even if it is obvious it is poor.
Unlike other parts of the world – where workers on mobile platforms for food delivery and passenger transport take to the streets – in Serbia, a large protest in 2021 was organized by freelancers who work on digital platforms. This might not seem strange, as there are between 70,000 and 100,000 workers working on digital platforms in Serbia, which pits our country at the first place in the world as well as Europe (per capita), while the legal employment status of many of them has not been resolved appropriately.
According to the latest available analysis (Public Policy Research Centre), about half of the digital workers in Serbia (54%) who participated in the survey have another (offline) job or are entrepreneurs and – on that basis – have access to a basic social protection plan. For the remaining 46% of digital workers who participated in the survey and who are in the grey area, access to the social protection system is much more fragmented and not clearly defined.
Anyway, the decision of the Tax Administration to collect taxes for five years retroactively took the heterogeneous community of workers to the streets in April this year. Fighting for their rights, they got in touch for the first time with two representative unions in Serbia and earned their support.
After the protest, which resulted in partial success – writing off part of the claim, freelancers represented by the URI, UGS NEZAVISNOST, and SSSS continued to cooperate, and now they are trying together to introduce solutions that will better protect the employment status of freelancers into the Law on Flexible Forms of Employment, whose draft is expected by the end of this year.
This tripartite dialogue shows what values and principles are common to SSSS, UGS NEZAVISNOST and URI, and how they see the advantages and disadvantages of resolving the employment status of freelancers through the Law on Flexible Forms of Employment.
Why and in how way do unions support workers on digital platforms in demands and negotiations with the Serbian government?
LJUBISAV ORBOVIĆ, President of SSSS: For about 80% of these workers, working on the internet is the only source of income to support their children and parents. However, their employment status is not regulated by any regulation of the Republic of Serbia. That is why the unions support that work and working conditions of these workers be regulated in a way that allows them access to all employment rights.
Their greatest problem at the moment is that they now belong mainly to the group of the self-employed and are not recognizable by laws, which is why there are problems with the collection of taxes that are not fairly determined in their case.
MIRAN POGAČAR, President of URI: It seems to us that the unions recognize that the world has been changing dramatically due to digitalization and that they need to be more involved in organizing and representing the interests of workers on digital platforms. Recognizing the growing number of people working on the internet and their disunity, the unions supported our organization and negotiations with the Serbian government because they recognized the possibility to define working conditions, tax treatment, and employment status more clearly through future legal solutions. Our support for the union’s struggle for the minimum wage is an act of solidarity because we are not directly concerned with the issue of the minimum wage, but it is clear that better living conditions and higher income mean a better life for all of us.
ZORAN STOJILJKOVIĆ, President of UGS NEZAVISNOST: Supporting workers on digital platforms, primarily through their involvement in the process of social dialogue, is, from the position of the trade unions, completely understandable. It is about the phenomenon of platforms and their impact on labour rights, the labour market, but also on the revision of existing international agreements and tax policy.
Apart from the fact that it is most often precarious per se, this type of work has the potential to affect negatively not only further liberalization of work and reduction of rights based on work (employment contract, working conditions, intensity, fixed salary, education and promotion, sick leave and social security, working hours and the right to a meal or rest breaks or annual leave, the right to organize and join a union) but also to the level of wages.
There are two key open questions before our organization that advocates for the protection of all workers’ rights, not only those with traditional employment contracts. First, are insecurity and precariousness inevitable destiny? And, where are the boundaries between the realms of „private“ and „business“ in the digital world – will contracts, salaries, and pensions as we know them disappear?
A new social charter for the digital economy and transnational representation on digital platforms have long been necessary.
What problems in the field of labour rights do unions see as key ones when it comes to workers on platforms?
LJ. ORBOVIĆ (SSSS): Freelancers usually do not sign any contracts, do not set the work tariff or negotiate about it. They do not have a secured or minimum wage and do not know how long their work engagement will last. There is no job security, so they are constantly afraid of financial insecurity. No one protects them from dismissal or mobbing; banks do not approve loans or give them cheques. For all these reasons, it is necessary to regulate their employment status by law and to enable them to be fairly taxed, to organize themselves in unions, and to be able to negotiate better working conditions and wages, which we hope will be made possible by the Law on Flexible Forms of Employment.
M. POGAČAR (URI): The work on the internet is completely undefined; there are only certain duties to the state that are defined through the payment of taxes and contributions, while the rights do not exist. We see that a key problem is the non-existence of rights from collective labour relations, such as the right to collective association and negotiation. Contrary to popular belief that workers on the Internet work exclusively for many clients, there are a large number of freelancers who are in some grey area employment, and the right to trade union association would be possible to exercise if the Labour Law applied to them.
Z. STOJILJKOVIĆ (UGS NEZAVISNOST): Quite often, workers on platforms and trade unions look at things from different perspectives. For example, undefined working hours, constant availability, and the number of working hours – working up to 80 hours a week for some workers on platforms is the way to have higher earnings when they need it, and for unions, it is a violation of hard-earned labour rights to eight-hour working hours. For many online workers, especially those who work through delivery platforms, the issue of safety and health at work is a great problem, especially because of their constant involvement in traffic, sometimes for 12 hours a day. Unfortunately, most of these workers do not even know that there is a law regulating the field of safety and health at work, nor that they should have any rights. Formally, they do not have the right to be part of a union because our Labour Law guarantees the right to join and organize into a union to employees only, not workers, although ILO Convention 87 and Convention 98, which refer to the freedom to associate and protection of the right to organize, use the word worker in a much broader sense.
Which social rights issues do unions and freelancers see as key ones when it comes to platform workers, respectively?
L J. ORBOVIĆ (SSSS): They do not have the right to pension and disability insurance, nor health insurance. They do not have the right to sick leave, maternity leave, paid vacation. This means that they remain legally unprotected and left to fend for themselves without any financial support and assistance from the employer in all the above mentioned situations.
M. POGAČAR (URI): Workers on the Internet cannot exercise any of the social rights from employment, for example, the right to limited working hours, the right to vacation, or the right to maternity leave and childcare leave, because these rights are guaranteed only to traditional employees.
Z. STOJILJKOVIĆ (UGS NEZAVISNOST): The greatest challenges concern the coverage by pension and disability insurance (PIO) and unemployment insurance. Internet workers who are registered as unemployed or inactive do not exercise these rights despite their digital work. Most workers on digital platforms from Serbia have been working for more than three years, but this length of service is no basis for insurance. Uninsured internet workers rarely seek security through investments in private health, pension, and life insurance, primarily because their real income is not as large as assumed. Those workers who already have basic social protection (through employment or based on being entrepreneurs) are more likely to have private insurance, whether pension, health or life insurance, than other internet workers registered as unemployed or in a grey area. This points to inequalities within the freelancer population itself and results in the creation of two classes – one that is socially secure on several bases and one that, due to the legal vacuum, is at greater risk of social exclusion and poverty.
What problems and in what way could the announced Law on Flexible Forms of Employment solve? Is there a fear that this law could deepen some already identified problems or contribute to the fragmentation of the corpus of work rights, as could be the case with, for example, the Law on Simplified Work Engagement on Seasonal Jobs in Certain Activities?
LJ. ORBOVIĆ (SSSS): There is a general trend of fragmentation of the existing Labour Law and narrowing of all existing employment rights, which is shown by the Draft Law on Employment due to the increased volume of work in certain activities, as the current name of this law is. This draft clearly shows the intention to regulate the employment status of such persons in an inefficient way. This is evidenced by the fact that there is no employment contract but a written notice the worker receives about basic working conditions.
The new Law on Flexible Forms of Employment could regulate the employment status of workers on digital platforms and other forms of flexible work in a better way than the current one because they are now in the so-called grey zone. However, there are also fears that it could offer solutions as in the mentioned Draft, where workers are left without basic employment rights.
The main idea of those behind this Draft Law and the rewriting of the Labour Law is to fundamentally change the employment relationship’s character fundamentally in the sense that employment becomes precarious and that the whole system is reduced to leaving the worker alone, face-to-face with the employer. The creators of this text send the message that the intention is to make it the dominant form of work engagement in Serbia. The consequence of this concept is an increase in the exploitation of employees.
M. POGAČAR (URI): It remains to be seen whether more laws will be changed or only one law will be passed. However, rights and duties must be clearly defined so that people can continue to live and work. As we have said before, duties must be in line with rights, and if the state cannot guarantee all the rights that traditional employees have, then it is clear that taxes and contributions must not be at the same or even higher level than in cases of traditional employees.
The solution to the status of workers on the internet can be carried out in two ways. First, there is the possibility of defining the rights and duties of workers on the internet by amending several laws, such as the Labour Law, the Law on Personal Income Tax, and the Law on Mandatory Social Security Insurance Contributions. This may be more complex, but it is certainly a better way to deal with this problem. Another approach would be through a separate Law on Flexible Forms of Employment, i.e., a lex specialis. This approach would be faster but would continue the negative practice of avoiding labour rights guaranteed to everyone. Of course, there is a fear that a separate law represents a secret reduction of rights based on work, but not before we have seen how the situation with the working group will develop – only then will we be able to say whether it goes into the right direction or not.
Z. STOJILJKOVIĆ (UGS NEZAVISNOST): For us at UGS NEZAVISNOST, there is an indisputable need to resolve the issue of freelancers, i.e. online workers, through the Labour Law, and not through a new law that would treat only these groups of workers. At the rallies we organized, there were fears expressed that the Law on Flexible Forms of Employment would bring only a partial solution for these workers (in the sense that they could have the possibility of exercising certain labour and social rights, e.g. to be fully registered as employees and, with a system of payment of contributions, to have their length of service accounted for) as could be the case with, say, the Law on Simplified Work Engagement on Seasonal Jobs in Certain Activities. Participation in the Working Group will allow representatives of trade union headquarters and URI to react if they notice similar intentions, but would not guarantee that it could prevent the adoption of the law, even if it is obvious that it is inadequate.

(Brief report)
STRATEGY:

Facing the changes, the union strategy consists of three complementary goals and accompanying activities, says Stojiljković:

  1. Towards fair digital work – ETUC (European Trade Union Confederation) resolution on digitalization which includes access to quality education. Permanent, lifelong learning that is not limited to new tools and skills training is the only viable answer.
  2. The directives on privacy, human dignity and personal data protection are also a must if we do not want to end up in Huxley’s dystopia of the “brave new world” and live in a zone of permanent surveillance and a state of superficial mind-numbing pleasure.
  3. Campaigns for union organization of (partially) employed, but also self-employed, and broader definition of the union and its potential clientele.

Reducing the “grey” economy and joint activities with the Association of Internet Workers (URI) are, therefore, some of the steps in the right direction.

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