[HN Gopher] Dutch court of appeal decides Deliveroo should honor...
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Dutch court of appeal decides Deliveroo should honor collective
labour agreement
Author : the-dude
Score : 83 points
Date : 2021-12-21 10:44 UTC (12 hours ago)
(HTM) web link (www.rechtspraak.nl)
(TXT) w3m dump (www.rechtspraak.nl)
| the-dude wrote:
| I've read a user comment on a Dutch new site that said this :
|
| _It is a disgrace the labour union had to fight this, as it was
| the duty of the the Dutch government ( which should have worked
| to enforce its laws )._
| jb1991 wrote:
| It's kind of hard to argue with that.
| tgv wrote:
| Thank God we still have unions. The (current) government is
| only focusing on shareholder value. Workers, unite!
| Barrin92 wrote:
| not a disgrace as much as completely expected and a lesson for
| people who still think that technocratic governance is going to
| deliver equitable outcomes rather than being simply captured.
| dirkf wrote:
| Meanwhile in Belgium:
| https://www.vrt.be/vrtnws/en/2021/12/08/couriers-fail-to-win...
| netcan wrote:
| Surprisingly concise and clear. Metapoint, but wtf...
|
| I'm always surprised at the extent to which courts, legislators,
| regulators and such prefer to decide by analogy. Determining that
| that X is fundamentally like Y and therefore Y rules apply. This
| seemingly doesn't require decision making at all. Instead of
| deciding and making choices, there's a strong preference for
| determining & adjudicating.
|
| I'm not implying this is inappropriate here. Seems pretty
| straightforward that if labour laws/agreements apply to
| deliveries, they apply to deliveroo. I wonder why it took this
| long, in fact.
|
| That said... labour "uberization," online privacy issues, media
| monopolisation issues and any of many digital issues de jure
| _are_ actually new scenarios. They 're not _just_ derivative of
| pre-digital issues. The effects of one decision or another can be
| totally unrelated to considerations taken into account whenever
| the original decision /law was made.
|
| The best ruleset, decision or whatnot is not necessarily a
| derivative of some old one. Who cares if Google is like Bell or
| standard in some legalistically specific way? Who cares if uber
| is "really" just a taxis service, limo service or whatnot? Why is
| that relevant by default?
|
| Is it really so impossible to create new labour laws, agreements
| or whatever we need that actually take into account the existence
| of app-based casual labour realities of our time?
| lokar wrote:
| In the US we tend to do this via the regulatory state. Congress
| delegates to an executive branch agency some broad rules to be
| applied and updated over time to deal with new situations.
| Republicans hate it.
| blendergeek wrote:
| In a lot of places we have two separate groups for interpreting
| law and making law. The courts, by their very nature, are asked
| only to interpret law.
| FooBarWidget wrote:
| Regarding analogy: one way to look at things is that courts
| embrace whataboutism. In Internet discussions, people tend to
| invoke whataboutism to dismiss comparisons with other
| situations, but the legal world actively compares with other
| situations in order to derive a judgement.
| netcan wrote:
| Well here's my insight of the day! Thanks Foo, this was the
| phrasing I was looking for.
|
| Courts embrace whataboutism officially, as legal doctrine.
| Precedents, common law and such.
|
| But beyond courts, I think the avoidance of naked decisions
| is also pretty prevalent. In fact, negating the existence of
| a choice at all is a pretty modern way of arguing. "Evidence
| based" policies, business practices and such is a part of
| this. It's the evidence that made the decision, or past
| decisions, or something.
| WJW wrote:
| I think it is important to note in this regard that in
| internet discussion, the parties involved are often debating
| not only facts but also morality. This is fine, because
| people on the internet are their own beings and not
| institutions of democratic government with a formal
| separation of power.
|
| A judge is explicitly not tasked with what the law "should"
| be, as that is the role of the lawmaking parts of government.
| The place of a judge is to measure the facts against the law
| as fairly as possible. One of the founding principles of
| legal thinking is that equal acts should be judged equally,
| and one of the ways to maintain equal laws for equal citizens
| is through jurisdiction.
|
| If you did some action XYZ and it is not immediately clear
| whether you violated the law or not, "but other citizen ABC
| did the same thing back in 1976 and then the judge ruled that
| it did not violate the law" _should_ be valid reasoning for
| the defending lawyer.
| lukeschlather wrote:
| In a legal context I think whataboutism would be bringing up
| an example of someone who committed a similar crime but was
| not charged as evidence that someone should be acquitted.
| There's nothing wrong with analogy, it's when you bring up
| someone who might be guilty of malfeasance to excuse another
| instance of seeming malfeasance that it's whataboutism. It's
| not whataboutism when you bring up someone who did the same
| thing and was demonstrated not to have done anything wrong,
| which is what courts do.
| FooBarWidget wrote:
| Correct. But that's not how whataboutism is often actually
| used in practice in Internet discussions. Many people often
| invoke whataboutism to reject _any_ kind of comparison.
| Especially in political discussions, whataboutism is often
| invoked to excuse double standards.
| MomoXenosaga wrote:
| Actually a lot of what the gig economy does isn't new. It's
| 19th century pre labour union stuff only now with an app.
|
| Oude kruiken nieuwe zakken as we say in Dutch. Unfortunately
| the success of socialism made everyone think the world had
| moved on from such naked and unapologetic exploitation.
|
| intellects vast and cool and unsympathetic, regarded this earth
| with envious eyes, and slowly and surely drew their plans
| against us. And early in the twenty first century came the
| great disillusionment.
| netcan wrote:
| There's a yiddish version of that, but I don't remember
| exactly. Alte smatesh, noy-something.
|
| I have to disagree though. Not that I think you're incorrect.
| It's neither correct not incorrect. It's a reduction, or
| essentialization perhaps. Even if it is a correct reduction,
| it isn't a helpful one. Labour for hire sure isn't new,
| neither is exploitation. However the "gig economy" is a new
| (or newly common) mode of labour, like hourly vs salaried vs
| piecemeal... modes that existed in the past.
|
| There are two approaches:
|
| (1) We can argue about what the rules _are_ , ignoring all
| evidence that the rules are in fact unclear. This has given
| the gig economy a good decade to operate without labour laws.
|
| (2) We can recognize that laws are a decision. We can make
| these decisions. make new laws that take into account the
| technology, norms and industries of our time.
| lukeschlather wrote:
| What is the distinction between the "gig economy" and
| piecemeal hourly work? I mean, it seems to me the only real
| difference is that they're billed to the minute which
| doesn't seem like a difference of kind to me.
|
| But then taxis that bill to the minute are not new either,
| the only difference is how jobs are assigned, the work and
| compensation is identical .
| netcan wrote:
| The distinction is whatever we decide it should be. Maybe
| they should be covered by the same category.
|
| The point is that once these existed, laws should have
| kept up.
| the-dude wrote:
| Wijn.
|
| _Oude wijn in nieuwe zakken_
| brnt wrote:
| Which leads to the question: why store wine in bags?
| mbg721 wrote:
| https://en.m.wikipedia.org/wiki/Wineskin
|
| It was apparently easier for preservation at scale than
| pots or jars were.
| the-dude wrote:
| So you can empty them without letting air in. It doesn't
| break.
|
| Actually, wine in bags in boxes is a thing since about 10
| years. Works great.
| jhgb wrote:
| > Determining that that X is fundamentally like Y and therefore
| Y rules apply. This seemingly doesn't require decision making
| at all.
|
| Wouldn't such determination require decision making in itself?
| netcan wrote:
| I suppose you could argue either way and its opposite in the
| abstract.
|
| IRL however, I think that official/administrative/political
| decisions are usually presented as non decisions. Maybe a
| decisions is cloaked "decisive evidence" that leaves no
| choice, prior decisions/rulemaking is determined to be
| applicable, or somesuch.
|
| Naked "I have made decision X" is generally avoided.
| Scarblac wrote:
| I mean, this is a judgment, from a judge. Isn't he making a
| decision by definition?
|
| In this case (I assume) Deliveroo argues that it is not a
| delivery company and so isn't part of the collective labour
| agreement, and complainants claimed that it was and that it
| is.
|
| The judge decides that Deliveroo quacks and walks
| sufficiently like a duck to be considered one.
|
| I don't see why "this seemingly doesn't require decision
| making at all". It was the entire thing the parties
| disagreed about.
| AndrewDucker wrote:
| When the analogy method produces a result that's not acceptable
| to politicians _then_ they 'll bring in new laws. But bringing
| in new laws when the existing ones are having the desired
| effect would be a waste if time.
| cloudfifty wrote:
| > Is it really so impossible to create new labour laws,
| agreements or whatever we need that actually take into account
| the existence of app-based casual labour realities of our time?
|
| What's the point of having labour laws if all that's needed to
| just discard them to reduce labour costs is a very thin veneer
| of an app? What's so fundamentally different about an app?
| netcan wrote:
| Because uber, deliveroo and such aren't a veneer. They're an
| actual mode of labour. You can find analogies in the past.
| Some might even be close.
|
| But, the scale, implications and context is not the same.
|
| Labour law related to the kinds of labour that existed.
| Salaried, hourly, piecemeal, day labour, etc. Any one of
| those can be considered a "thin veneer" to any other, if you
| want to play thick. Yet, they did see fit to create laws that
| take their existence into account.
|
| App-work exists. I agree that it doesn't come with enough
| labour protections. Create some.
|
| Meanwhile, there are some notable social _advantages_ to the
| existence of app-work just as there were to day-labour,
| piecemeal and other modes of the past. Low friction work can
| never be low friction enough. The ability to just sign up and
| work is valuable to some people some of the time.
|
| I agree that it shouldn't be a workaround to paying pensions,
| for example. OTOH... it exists. What are the rules?
| cloudfifty wrote:
| > They're an actual mode of labour. You can find analogies
| in the past.
|
| Well, indeed, day labouring and precarious work nothing new
| under the sun. And the past experience with those is why
| societies have laws that limits them to various extent. I
| mean, employers could've just called people on their phones
| and said it was necessary due to the spread of phones to
| abandon the now obsolete labour laws. But back then people
| (and a stronger labour movement) would've just laughed it
| off and businesses knew that they couldn't pull that trick
| off. But atm the times are more ripe for this.
|
| > But, the scale, implications and context is not the same.
|
| What implication and context? That suspiciously vague. Why
| is scaled-up day labouring suddenly not the same? If any
| thing it's even more obvious - and important - that it
| breaks the rules.
|
| > if you want to play thick
|
| A bit cocky for someone that seem to ignore history. You've
| said nothing to answer the question what's fundamentally
| different to justify the regression. The dread of day
| labouring what one of the very reasons for the existence of
| these laws in the first place! Now you come along with an
| app and say that day labouring is henceforth necessary?
| That makes no sense whatsoever.
|
| > Create some.
|
| They are already there? One of their very purposes is to
| protect against exactly this.
|
| > App-work exists > it exists
|
| What kind of an argument is that even? Still doesn't mean
| it's legal, just that corps feel the times are ripe enough
| to try to challenge them by just refusing to comply and
| spend vast resource on lobbying and taking it to court.
|
| > I agree that it shouldn't be a workaround to paying
| pensions
|
| To avoid paying proper benefits/pensions is the very reason
| of their existence.
| PeterisP wrote:
| Division of labor in different kinds is an arbitrary
| social/legal construct that's defined by labor law. You
| don't get to create a new separate category just as a part
| of your business - there is no right to just start "app-
| work" if labor law does not allow for it - you want do
| labor through apps, you can look in labor law and see what
| types of contracts are a legitimate option to employ
| workers in this country. You can do commerce only within
| the bounds of law, and you can only employ people within
| the bounds prescribed by labor law.
|
| And you can pick the options which are appropriate for you
| - you can treat them as part-time employees (and you need
| to fulfill the criteria), you can treat them as
| piecemeal/day-labor gigs (if you fulfill the criteria, most
| "gig work" companies don't), and if all the options are bad
| for you, then you either change your business model to fit
| them anyway or simply don't use the labor until labor law
| changes to permit you to do so under the desired structure.
|
| The current rules are quite clear, and re-approved by this
| court - all the existing labor protections apply, those are
| your employees with full rights and app-work is not getting
| any special treatment unless and until law is changed to
| make it so - perhaps gig work should have a special regime
| because it is quite different from full time work, but it's
| not yet, at least in NL.
| netcan wrote:
| >>The current rules are quite clear
|
| Somehow, this is a statement that is always said, despite
| clear evidence to the contrary.
|
| If the rules are clear, why did it take six years for a
| court to act?
| lucian1900 wrote:
| Piece work is not new either. That's all these apps do.
| contravariant wrote:
| You're asking a court to do something different than apply
| existing laws to a possibly new situation. That seems like a
| weird ask.
| CoastalCoder wrote:
| IANAL but isn't this the crux of the debate regarding strict
| construction?
|
| I agree the apply-by-analogy approach makes sense of laws
| cannot be revised. But my understanding is that most
| legislatures are permitted to revise or repeal laws to adapt
| to new circumstances.
| will4274 wrote:
| I'm not aware of any law that cannot be revised. Can you
| name such a country / law?
| wongarsu wrote:
| Some constitutions contain parts that can't be changed.
| The most famous example is probably Germany's basic law
| (technically not a constitution) where article 79(3)
| prevents changes to articles 1 or 20 of the basic law
| [1]. Wikipedia lists some other examples [2]. I'm not
| aware of anyone setting labor law in stone though, that
| would seem foolish.
|
| 1: https://www.gesetze-im-
| internet.de/englisch_gg/englisch_gg.h...
|
| 2: https://en.wikipedia.org/wiki/Entrenched_clause
| Nitrolo wrote:
| Probably not the kind of law you were thinking of, but
| articles 1 (protecting human dignity) and 20 (enshrining
| the principles of democracy and rule of law) of the
| German constitution can not be changed or repealed.
| dagw wrote:
| Revising and repealing laws is a slow process that take up
| a lot of legislative resources. Allowing the courts to work
| in parallel in this way speeds up everything. If the
| legislature is unhappy with the decisions the court comes
| to, then they can go in and make changes. If they agree
| then they don't have to do anything and can focus on other
| things.
| contravariant wrote:
| Well even if laws can be revised the courts aren't really
| in a position to do so.
|
| At least, if the separation of powers is still intact.
| KarlKemp wrote:
| Every real-world situation is slightly different than the law.
| Applying the ideas codified in law to the chaos that is the
| real world is, essentially, half of what makes up
| jurisprudence. The other half is then reasoning within the
| framework of the law.
|
| The idea that a specific situation could be captured completely
| and entirely without ambiguities is the fundamental error in
| these misguided efforts to create contracts-on-code on the
| blockchain, and why they can't break out of their tiny box of
| things that have no meaning in the real world (i. e. NFTs)
| AndyMcConachie wrote:
| If you're interested in how metaphor and law interact I
| recommend A Clearing in the Forest, by Steve Winter.
|
| https://press.uchicago.edu/ucp/books/book/chicago/C/bo363196...
| CPLX wrote:
| Decision by analogy is kind of the fundamental point of the
| legal system.
|
| Typically the arguments are just different arguments about
| which analogy is the closest to the facts at hand, which is
| usually referred to as "the theory of the case".
| avs733 wrote:
| not just law, analogies and analogical reasoning are pretty
| fundamental to human thought.
|
| [0] https://www.frontiersin.org/articles/10.3389/fnhum.2014.0
| 086...
|
| [1] https://pubmed.ncbi.nlm.nih.gov/18528776/
| mmarq wrote:
| Seeing how Deliveroo stocks are doing, one wonders if it is all
| just regulatory arbitrage.
| the-dude wrote:
| Dutch source only, sorry.
|
| Decision is retro-active to 2015 and Deliveroo should pay
| pensions back to 2015.
| lnxg33k1 wrote:
| Just when I thought the good news would stop, you make me even
| happier, to hell the corporate greed
| isaacfrond wrote:
| The court earlier decided that Uber drivers are employees.
| Problems is that Uber does not adhere to the decision and that
| the Tax office seems unwilling to enforce it. We'll have to see
| if Deliveroo will stick to the decision.
| lnxg33k1 wrote:
| If it's the dutch tax office, just tell them that Uber's
| owners are immigrants, they will for sure try to enforce
| anything on them
| lebuffon wrote:
| This seems to be a thing now. Overt rejection of the
| authority of laws. Makes me wonder how long a civilization
| can continue if that attitude is widespread.
| ChuckNorris89 wrote:
| _> Makes me wonder how long a civilization can continue if
| that attitude is widespread._
|
| We seem to be focused more on getting the stock market and
| the price of assets up, up, up, and calling that progress
| and a sign of prosperity for our society.
|
| The French and the Russian revolutions have shown society
| has a breaking point at wich the working class will revolt
| and behead the ruling class. However, that was over 100
| years ago and today, the ruling class has much better
| surveillance technology and weapons than the peasants of
| today and can monitor and quench any uprising before it
| even manifests.
|
| Plus, the ruling and asset owning classes don't live within
| striking distance of the angry mobs like they did 100 years
| ago, but can live safely in a remote place like some island
| around New Zeeland and run their affairs remotely through a
| shell enterprise registered at a post-box in Luxembourg for
| example.
| timwaagh wrote:
| The colleague who has to forcibly take all those back owed
| unemployment insurance premiums and no longer deductable
| business expenses from the affected cabbies has my deepest
| sympathies. Probably a few personal bankruptcies coming out
| of that.
| Xylakant wrote:
| I'm not sure how that works in the Netherlands, but in
| germany the risk of "Scheinselbstandigkeit" which is
| probably the closest common analog resides nearly
| completely with the employer. The legislature wants to
| strongly discourage this behavior on the employer side.
|
| The best-case result for they employer is that the can
| deduct the employees share of social security from the last
| three wage payments, but no further. And that best case
| requires that there is no fault of the employer, which is a
| rare case.
|
| Given that European law is fairly well aligned when it
| comes to labor law, I'd be surprised if there's an option
| to substantially dip into the cabbies past payments.
| wila wrote:
| In Dutch that is "schijnzelfstandigheid" and it exists
| here too [1].
|
| However it certainly is not just a risk for the employer,
| also for the employee.
|
| If you should have been marked as an employee, but have
| been submitting your taxes as a company then you have
| also profited from tax benefits in accordance with that
| company status. It's pretty important to get this right.
|
| [1]
| https://ondernemersplein.kvk.nl/schijnzelfstandigheid-
| voorko...
| the-dude wrote:
| > Given that European law is fairly well aligned when it
| comes to labor law,
|
| Is it? My impression is different. Do you have any links?
| ChuckNorris89 wrote:
| It's not well aligned. EU law sets some minimum bars
| every state has to clear, like 20 paid vacation days etc.
| but every state, can and does have it's own set of laws
| on top of the EU minimums. Before you get to EU courts,
| you have to clear the local ones first.
| isaacfrond wrote:
| Deliveroo is bound by the collective agreement (CAO) and must pay
| pension premiums for delivery workers
|
| Amsterdam, 21 December 2021 The Amsterdam Court of Appeal has
| ruled in 2 judgments that Deliveroo is subject to the CAO and is
| considered a participant in the professional transport pension
| fund. Earlier this year, the Court of Appeal already ruled that
| the delivery drivers at Deliveroo work on the basis of an
| employment contract (ECLI:NL:GHAMS:2021:392). The 2 new rulings
| mean, among other things, that Deliveroo must apply the CAO with
| retroactive effect from 2015 to delivery drivers who worked for
| it and must pay pension premiums.
|
| Collective Labour Agreement and Mandatory Pension Fund
|
| The case revolves around the interpretation of the scope of the
| provisions of the CAO and the Decree Mandatory Pension Fund for
| Professional Transport, respectively. This interpretation is
| based on the standards developed by the Supreme Court.
|
| Delivery/transport is core activity
|
| According to the Court of Appeal, Deliveroo's core business is
| delivering meals. The fact that Deliveroo has far fewer office
| staff than deliverers, that a significant proportion of
| Deliveroo's operating costs are related to the delivery activity
| and that the agreements with the affiliated restaurants in most
| cases include a commission for delivering the meals play a role
| in this. The agreement with the delivery companies includes the
| fact that they are primarily engaged in the delivery - and
| therefore transportation - of meals. According to the Court of
| Appeal, it does not matter whether the transportation is done by
| car, scooter or bicycle. The conclusion is that Deliveroo is
| subject to the CAO for professional goods transport and is
| obliged to participate in the professional transport sector
| pension fund.
|
| Rulings of the subdistrict court are confirmed
|
| Earlier, in 2019, the Subdistrict Court in Amsterdam reached the
| same conclusion. Those rulings have now been upheld by the court
| of appeal.
|
| Translated with www.DeepL.com/Translator (free version) + a few
| edits
| whazor wrote:
| This particular CAO, which stands for collective labour
| agreement, is available in English at
| https://www.fnv.nl/getmedia/75fcb1da-9177-47a3-9072-633aeee3...
| kakoni wrote:
| So I wonder how well is this lobbying group (European Purpose
| Project) doing?
|
| > The founders and CEOs of Delivery Hero, Bolt, Glovo, and Wolt
| have joined forces to work on a better model for regulating
| platform companies with the aim of providing specific commitments
| and recommendations to governments.
|
| https://tech.eu/brief/delivery-hero-bolt-glovo-and-wolt-foun...
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