An overview of categories of vulnerability among on-demand workers in the gig economy (Part 2)

Platform work in the gig economy has become a universal phenomenon, even more so in the socially distanced landscape of COVID-19. Characteristic of the Fourth Industrial Revolution,

hundreds of thousands of on-demand workers across the globe today earn a living by performing tasks assigned to them via digital platforms.The gig economy undoubtedly offers certain appealing benefits, including work flexibility and independence.As established in part 1 of this article, platform work holds vast potential to create muchneeded jobs, especially for the youth, who are facing a higher degree of job precarity than any generation before them.At the same time, though, the very structure of platform work -with a peculiar triangular contracting relationship between the parties involvedrenders on-demand workers vulnerable, having to carry most of the risk.
In part 2, we delve deeper into the various forms of vulnerability among on-demand workers in the gig economy, with a particular focus on developing countries such as South Africa.After a brief look at the extent to which the classification of labour could be regarded as a contributing factor to vulnerability, we draw on the International Labour Organisation (ILO) definition of vulnerability to categorise the types of vulnerability ondemand gig workers are exposed to.Four broad categories are identified, namely vulnerability relating to conditions of employment, individual and collective labour rights, dispute resolution structures, and social security protection.Each category is concretised by a brief discussion of the applicable South African statutory provisions as well as practical examples.This is followed by an overview of various international standards and recent steps taken by the ILO and the European Union to protect platform workers in the gig economy.
The article concludes with proposals on how to expand the traditional idea and categories of work in an effort to afford rights and protection -and so provide decent work -to new, future-oriented types of workers in South Africa.It is argued that South Africa needs to develop a uniquely South African approach to the future of work that has on-demand workers and their vulnerabilities at its centre.INTRODUCTION   The rise in technology has facilitated new forms of work, which continue to test the boundaries of the traditional employment relationship.In an increasingly digital world, technology-facilitated types of work, including on-demand platform work, are here to stay, and will continue to shape the future of work.
In part 1 of this article, we examined the significant growth in platform work against the backdrop of the Fourth Industrial Revolution (4IR).It was concluded that platform work emerged as a new form of work due to increased use and reliance on 4IR technologies.Consequently, people have taken up platform work as a means to supplement their income or as a means to earn a living.Considering South Africa's double-digit unemployment figures, the extreme job precarity facing our youth, and the ever-growing need for employment, there is no denying that we need the gig economy to provide access to jobs.However, for the gig economy to play its part in mitigating the unemployment crisis, it needs to provide decent work, in line with the ILO's goals. 1 Judging by the precarious triangular relationship underlying on-demand gig work, this is could raise concerns in respect of the parties' legal obligations.
In this second part of our research, we take a more in-depth look at the specific types of vulnerability experienced by on-demand workers in South Africa.To this end, we start off by briefly stating the problem associated with the classification of labour as it pertains to gig workers, as an essential departure point to understand the barriers to full labour and social protection that these workers face.Following a discussion of the meaning of vulnerability in general, the focus then shifts to on-demand workers' specific categories of vulnerability, with a particular focus on those vulnerabilities arising from a lack of provision for this type of work in South Africa's labour laws.Finally, alternative measures (other than the classification of labour) that might help alleviate platform workers' vulnerabilities are suggested against the backdrop of the perspectives and steps taken by the International Labour Organisation (ILO) and the European Union (EU).

THE CLASSIFICATION OF LABOUR
The classification of labour rests on businesses' responsibility to respect the human rights of those working for them. 2 Work is recognised as fundamental to a person's being, and provides status, esteem and meaning to those fortunate enough to engage in it. 3Nevertheless, not all types of work enjoy the same legal rights and protection.In South Africa, everyone has the right to fair labour practices. 4To give effect, the labour statutes prescribe definitions as to who is deemed an 'employee' or a 'worker'.However, platform workers fall outside of the scope of labour protections, mainly due to the statutory definitions that classify them as independent contractors.
The classification of on-demand workers, for instance, has been subject to rigorous judicial interpretation and legal debate in several jurisdictions across the world.And in the absence of a universal, well-defined model to regulate platform work in the modernday gig economy, it will continue to be a contentious question.Except for the United Kingdom, most jurisdictions remain in a state of uncertainty as the gig economy business model continues to be tested. 5Importantly also, each country has a unique and intricate statutory framework that regulates the employer-employee relationship, making a universal approach to classifying on-demand workers virtually impossible. 6lthough classification is not the main purpose of this article, we acknowledge that deliberations on why gig workers should not be classified as employees or other categories could contribute to the legal debate.It is acknowledged that much had been written on the classification of gig workers, our stance on the creation of a third category will be shared at a later stage. 7It must be kept in mind that the overview of categories of vulnerability as reflected in this article remains the main focus irrespective of classification.
The significant problem faced in the platform economy and its associated forms of work is that on-demand platform workers do not classify as "employees" of the gig businesses.8These classification "errors" are likely to persist, and courts across the globe continue to grapple with the problem of interpreting traditional labour laws in the context of the gig economy.9 Precisely because of the speed at which the world of work evolves, the legal classification of the employment relationship remains relevant and crucial as a gateway to the activation of prescribed statutory measures aimed at protecting both employer and employee.10Now, more than ever before, clarity on who would qualify as an employee is essential because of the different rights and duties that flow from the various types of modern-day work agreements and contracts. 11In the absence of such a clear classification, digital platforms' tendency to serve as active labour and product Aslam was an independent contractor or a worker of Uber BV.The UK Supreme Court dismissed an appeal brought by Uber and upheld the 2016 Employment Tribunal ruling to rule that Mr Aslam was indeed a "worker" of Uber BV. intermediaries, and to classify on-demand workers as independent contractors, legislatively places the gig worker outside the realm of any organisation 12 and, thus, outside the scope of current labour law protection.
In the meantime, whether those engaged in on-demand work are engaged in recognised classifications of work, and the extent to which labour protections can be afforded to this vulnerable group, remain subject to litigation in labour courts and tribunals in numerous jurisdictions, including South Africa. 13Labour law aims to regulate the relationship between those who hire others for their labour, and those who hire out their labour to others. 14Yet labour legislation is never immune to critical reflection and, if necessary, revision. 15Indeed, most studies to date have focused on a reworking of the classification of labour to extend existing rights to on-demand workers as well.As explained in Part 1, the position of platform workers remains uncertain and precarious in the absence of a judicial interpretation of their classification or a suitable solution proposed by the legislator.Keeping this in mind, the following section of the article aims to investigate the specific South African statutes and components of labour law that exclude on-demand workers and render them vulnerable, this paper too argues that the vulnerability of the gig worker is partly a problem of classification.

Defining employment vulnerability
The ILO 16 has described vulnerability, in the context of vulnerable work, as workers that: "… are less likely to have formal work arrangements, and are therefore more likely to lack decent working conditions, adequate social security and 'voice' through effective representation by trade unions and similar organizations.
Vulnerable employment is often characterized by inadequate earnings, low productivity and difficult conditions of work that undermine workers' fundamental rights." The ILO's approach to defining vulnerability brings into focus purely legal aspects associated with decent work considerations such as working conditions, social dialogue and a worker's earning capacity.However, from a broader perspective vulnerability encapsulates much more than just legal consideration.From a more philosophical point of view, vulnerability is seen as a situation where an exploiter uses the vulnerable conditions of the other party, such as the on-demand worker, who may have no other source of income, to get them to agree to arrangements that would benefit the exploiter, while violating fairness and other moral norms. 17Therefore, with reference to ondemand work, what seems to be a voluntary contractual agreement may not be that innocent.It would seem that the description of vulnerability tendered by Wolff 18 is the best fit for the context of on-demand workers, namely that a group of people, in this case on-demand workers in the gig economy, are considered vulnerable when they find themselves at a common structural disadvantage that renders them all exploitable.
While personal and social vulnerability due to class characteristics is not the focus of this article, we do acknowledge that vulnerability may exist in class structures. 19This could also be exacerbated by the law where lawmakers are aware of these vulnerabilities, 20 though calls for legal reform and accountability fall on deaf ears.
Vulnerability in the platform economy is real: In a study of 27 developing countries, it has been found that transparency in platform architecture, design and algorithms is urgently needed to protect platform workers from the vulnerabilities they are exposed to in performing digital work. 21Ultimately, companies' primary drive is to increase profits and keep labour costs low, 22 and the more precarious work becomes, the more irregular businesses' treatment of their labour appears to be.Businesses are using new models and employment structures, such as the platform economy, to perpetuate established practices that are exploitative and add to an already existing power imbalance. 23It comes as no surprise, therefore, that an increasing number of cases are ending up in our courts where gig workers challenge their "employers".
Vulnerability varies according to its legal, social or political context.From this point of reference, the following section adds to the discussion above by providing an overview of vulnerability in the South African employment context.

Employment vulnerability in South Africa
Different social structures place workers in varied positions of vulnerability. 24In South Africa in particular, specific groups are rendered vulnerable because of racial exclusions, gender inequality and socioeconomic disposition.The vulnerability associated with these factors has historically and systematically been exploited. 25so, vulnerability to exploitation can be either personal or structural. 26A personal reason would be when an employer exploits workers' vulnerability by violating their labour rights.Structural exploitation, on the other hand, relates more to the statutory structures that exclude certain groups of workers from enjoying the labour and social protection that labour law offers. 27It was in this context that South Africa's extensive framework of labour legislation was enacted to regulate the employment relationship and address the power imbalance between employer and worker, 28 which puts employed individuals at risk of ongoing poverty and injustice. 29As will be demonstrated below, the discussion considers the structural vulnerabilities of on-demand workers.It, therefore, seeks to provide an overview of the categories of vulnerability created by labour legislation as opposed to personal reasons.The succeeding discussion aims to categorise the different vulnerabilities of irrespective of the current classification of ondemand workers.In doing so, we take cognisance of and draw from existing South African literature proposing possible solutions, such as the incorporation of principles of good practices in the platform's terms and conditions 30 , or extending social protection rights to independent workers 31 .
While the South African courts may seem the obvious choice to resolve the current dilemma by simply having on-demand workers reclassified as employees, a bottom-up reworking of the labour law regime may, in the long run, be a more effective solution to remedy the unique vulnerabilities faced by gig workers.To this end, the following paragraphs outline on-demand workers' vulnerabilities as created by current South African statutory provisions that exclude them from social and labour protection.

CATEGORIES OF VULNERABILITY AMONG ON-DEMAND WORKERS IN SOUTH AFRICA
The traditional function of labour law is to ensure labour and social protection to those in an employment relationship. 32The various legislative interventions in the employment sphere serve as a portal to both minimum conditions of employment and an established framework to engage in collective bargaining. 33Ironically, however, to on-demand workers in the South African context, most aspects contributing to their vulnerability can be linked to the very laws designed to regulate work relationships, creating a common structural disadvantage that renders all gig workers exploitable. 34

Vulnerability in respect of basic conditions of employment and minimum wage
The principal statute that gives effect to statutory minimum terms and conditions of employment is the Basic Conditions of Employment Act (BCEA). 35The act aims to advance economic development and social justice by fulfilling its primary objective of giving effect to and regulating the right to fair labour practices as enshrined in section 23 of the Constitution of the Republic of South Africa, 1996. 36Grogan (2020) at 6. 38 Grogan (2020) at 6. include provisions regulating working time,39 statutory paid leave,40 the payment of remuneration,41 and the periods applicable to the termination of employment. 42The BCEA is supplemented by the National Minimum Wage Act (NMWA), 43 which entitles South African authorities to prescribe a national minimum wage, and also regulates it.
On-demand workers are bound by the terms and conditions of the contract they enter into.Therefore, their work relationship is contractual and does not rely on labour law for its regulation. 44In the gig economy, workers typically lack the minimum safety nets afforded to traditional employees and carry the sole responsibility for their own economic survival.While, as independent contractors, they enjoy considerable flexibility in choosing their working hours and maintaining a work/life balance, this flexibility does come at a cost: Their "business relationship" with the gig business is neatly designed so as to limit the business's responsibilities in various ways. 45The parties agree that their relationship is solely that of a principal and independent contractor, excluding the platform business from the rights and duties of an employer under the restrictions of various labour laws. 46orkers who are managed by platforms often have little understanding of how these platforms operate, such as that the very design of platforms may exclude workers from certain countries and groups from performing jobs through pre-screening, with very little recourse. 47Workers also often work seven days a week, without taking breaks, for fear of decreasing their earnings.And because it is so difficult to establish "what counts as work", 48 they easily fall into the trap of excessive working hours, on average working much longer hours than those in formal employment relationships. 49w remuneration and non-payment could also be seen as a form of exploitation associated with platform work. 50The voting system often deployed by these platforms means that tasks deemed unsatisfactory may simply be rejected, without supplying any reasons, resulting in the non-payment of jobs completed. 51Further contributing to the vulnerability seen in on-demand work are platform glitches. 52In addition, workers are sometimes paid in vouchers that they cannot access, which raises serious ethical concerns 53 not typically found in the traditional employer-employee model.
Due to the race for good ratings and the acquisition of enough tasks to earn a proper living, 42% of on-demand workers work on several platforms simultaneously. 54It has been found that 91% of platform workers would like more tasks and spend long hours, up to 17 minutes for every hour worked, searching for additional work. 55Altogether 44% of workers work seven days a week, and 56% also at night. 56In the ride-sharing and delivery industries, working hours are particularly long -the average ride-sharing worker in a developing country works approximately 65 hours per week -and work intensity is high. 57-demand businesses also implement gamification techniques to incentivise long working hours.In this way, workers are in effect forced to increase their working hours 47 Rani & Furrer (2020) at 5-6.It should also be noted that many of the gig platforms utilise a sophisticated algorithmic control system to manage on-demand workers.In addition, the ILO's Home Work Recommendation 184 of 1996 must be kept in mind.Paragraph 5 of the recommendation provides that a homeworker should be kept informed of his/her conditions of employment in "an appropriate, verifiable and easily understandable manner".This principle could be applied to a gig contractual relationship. 48Rani & Furrer (2020) at 6. 49 Balliester T & Elsheikhi A The Future of Work: A Literature Review.Working Paper 29 (2018) at 20.
to be eligible for more earning opportunities or bonuses. 58In some instances, the platform algorithm even controls on-demand workers' break times to such an extent that the worker can be penalised for staying offline for too long. 59ne of the above would be tolerable or acceptable by law in a traditional employeeemployer relationship.

Individual labour rights and protection
The Labour Relations Act (LRA) 60 serves as the primary labour statute in South Africa.
It prescribes the various individual and collective labour rights afforded to "employees" engaged in traditional employment relationships as well as several other, non-standard forms of employment. 61The LRA has been amended a number of times in the past two decades to keep up with the growing demands of South Africa's dynamic labour market. 62The 2014 amendments in particular were aimed at broadening the scope of non-standard forms of employment and have drastically changed the status and protection afforded to employees not engaged in permanent employment relationships. 63Yet only "employees" can be regarded as victims of unfair labour practices 64 and be dismissed in terms of the LRA's definitions. 65 they are not regarded as employees, on-demand workers fall outside the scope of the LRA's provisions on unfair labour practice and dismissal.As their version of "dismissal provisions", on-demand workers are at risk of their services being deactivated should they commit any of a vast array of contraventions of the gig business's service agreement and community guidelines. 66Moreover, gig businesses such as Uber use a customer satisfaction feedback system to rate their drivers.This has been said to be among the leading factors why drivers and partner drivers refuse to contest any changes to their terms of service, for fear of attracting bad ratings and being excluded from the platform. 67A major concern is that a platform can immediately terminate the agreed terms, amend terms or add a supplemental term to the agreement at any stage of the business relationship. 68

Collective labour rights and protection
The rules of collective labour law recognise that both employees and employers constitute distinct and opposing interest groups in modern industrial society, who each seek to promote and protect their respective interests. 69From an international perspective, we note that the Freedom of Association and Protection of the Right to Organise Convention 70 applies to on-demand workers, seeing that the convention refers to workers, inclusive of self-employed. 71The LRA provides extensive protection and rights associated with freedom of association, 72 which is also regarded as the cornerstone of collective bargaining. 73In exercising these rights, an employee is entitled to form or join a trade union and participate in union activities.This is vital, considering trade unions' crucial role in safeguarding employees' rights in South Africa: 74 In addition to representing employees in labour disputes, unions also have an oversight and monitoring function to ensure that employers comply with the labour rights granted in terms of the Constitution and labour laws. 75This said, the peculiar working conditions of on-demand workers in the gig economy in itself poses challenges for organising. 67Aloisi A "Commoditized workers: case study research on labor law issues arising from a set of 'ondemand/gig economy' platforms" (2016) 37(3) Comparative Labor Law & Policy Journal at 676. 68 As stated in clause 1 of the Uber service agreement.Uber (2021). 69Grogan (2020) at 321. 70  Yet Du Toit correctly notes that the LRA does little to protect platform workers.Although the Constitution afford every "worker" the right to form and join a trade union, the LRA restricts trade union membership to "employees". 76In addition, only registered "trade unions" are eligible to participate in collective bargaining. 77This is troubling, since social dialogue could and, indeed, should be implemented to address many of the vulnerabilities that on-demand workers face. 78In most countries, including South Africa, dependent contractors 79 may not access the bargaining rights and processes afforded to employees, 80 a problem merely exacerbated by the cross-border dimension 81 of on-demand work.This is in stark contrast to countries such as Australia, Canada and Japan, where the self-employed enjoy collective bargaining rights. 82rk performed in the on-demand economy weakens the worker's bargaining position, 83 as many of the collective bargaining structures cater for traditional forms of employment only.It is acknowledged that statutory restrictions alone are not the main contributor in this regard and that organisational circumstances also play a role.For example, the weakened bargaining position is also mostly due to on-demand workers' inability to organise for lack of a fixed, physical workplace. 84It is further argued that the platform's extension of labour market intermediation restricts workers' agency potential, which isolates workers from one another, reduces the workability of trade unions, and creates a disconnect between the gig worker and the platform. 85e sheer size and scope of the global market in which gig workers operate 86  82 ILO (2021) "World employment" at 249.The ILO flagship report on the role of digital labour platforms in transforming the world of work suggests that social dialogue could resolve various issues relating to the terms of engagement on platforms, ratings and deactivation, pricing, data use, and the evaluation system. 83Balliester & Elsheikhi (2018) at 19. 84 Balliester & Elsheikhi (2018) at 19. 85 Barratt, Goods & Veen (2020) at 7. employment relationships. 87It is, after all, difficult to fathom how employees in the new digital economy could form unions and engage in labour action against a multinational online platform. 88erefore, with no access to collective bargaining, being the conventional way to improve terms and conditions of employment, platform workers are yet again left exposed and vulnerable.As a result, efforts to address this vulnerability vary from one jurisdiction to the next, and include anything from calls for legal reform, to the reconsideration of union strategies in light of the altered work landscape, and lawmakers exploring legislative bills, executive orders and task forces.

Protection against unfair discrimination
The primary statute safeguarding employees against discrimination in the South African workplace is the Employment Equity Act (EEA), 89 which ensures that the country's international obligations and the provisions of the Constitution are adhered to. 90The EEA aims to correct the country's demographic imbalance in the workforce by advancing members from the designated groups 91 through affirmative action measures. 92The act applies to all "employees", as well as applicants for employment. 93n addition to the EEA, the Promotion of Equality and the Prevention of Unfair Discrimination Act (PEPUDA) 94 extends equivalent protection to all persons not covered by the EEA. 95 with the other South African labour laws, on-demand workers sadly do not fall within the scope of the EEA either, even though a considerable proportion in both the ride-sharing and delivery sectors have experienced discrimination or harassment while providing their services, mostly from clients. 96This has resulted in a suggestion that gig 87 Stewart & Stanford (2017) at 431. 88 Bellace JR "The changing face of capital: the withering of the employment relationship in the information age" in Hendrickx F & De Stefano V Game changers in labour law.Shaping the future of work (2018) at 11-26.
91 Section 1 of the EEA.Members from the designated groups refer to Africans, coloureds and Indians, women, and persons with disabilities. 92Grogan (2020) at 75. businesses should protect their on-demand workers' anonymity; if not, discrimination may worsen due to a lack of regulation and policy enforcement. 97reover, the algorithmic management 98 central to the gig economy model 99 is associated with an inherent vagueness and a lack of disclosure of data sources and algorithmic outcomes. 100In effect, therefore, platform workers are subject to algorithmic control by the platform, resulting in algorithmic discrimination. 101

Vulnerability in respect of dispute resolution structures
In South Africa, only persons defined as "employees" in terms of current labour laws enjoy the complete labour protection and remedies prescribed by law, which include having recourse to the dispute resolution structures established in terms of the LRA. 102nce established that workers are indeed "employees", they have access to the Commission for Conciliation, Mediation and Arbitration (CCMA) to enforce their rights. 103If not, workers have to rely on the civil law and the dispute resolution clauses agreed to by the disputing parties.Much like any contractual dispute, and in the absence of a specialised process to resolve labour disputes, this process can be time-consuming, stressful and costly -all undesirable features for gig workers. 10497 Lane M "Regulating platform work in the digital age.Going Digital Toolkit Policy Note, No. 1" (2020) available at https://goingdigital.oecd.org/toolkitnotes/regulating-platform-work-in-the-digital-age.pdf(accessed 20 March 2021). 98The ILO defines algorithmic management as "giving the responsibility of assigning tasks and making decisions to an algorithmic system of control, with limited human involvement.The algorithmic management system improves through self-learning algorithms based on data."ILO "World employment" (2021) at 33. 99 Vallas S & Shor JB "What do platforms do?Understanding the gig economy" (2020) 46 Annual Review of Sociology at 78.
101 ILO (2021) "World employment" at 179.In a recent ILO study, 37% of ride-sharing workers and 48% of on-demand workers in the delivery sector indicated that they could not decline or cancel tasks, as doing so would negatively affect their ratings.Declining or cancelling tasks via the platform could also result in a reduction of work opportunities, financial penalties or, in severe cases, deactivation by the platform.The control and monitoring are done by the algorithm also play a significant role when ondemand workers are rated.Algorithms are mainly used to match workers and clients.The deactivation of workers if they are rated below a specific threshold is also algorithmically managed. 102Grogan (2019) at 17.
103 Du Toit, Fredman & Graham (2020) at 1517. 104Lane (2020) 11.Also see ILO (2021) "World employment" at 182.The majority of the complaints referred to gig businesses related to payment issues, conflict with customers, technical issues with the use of the application, and cancelled tasks.A substantial number of the complaints also concerned the deactivation of on-demand workers' accounts.The reasons stated in the report include low ratings, non-acceptance of work or tasks, taking leave, and ratings from customers.It is especially important to note that the deactivation of on-demand workers' profiles lasted an average of seven days before the dispute was resolved, during which time the on-demand worker was unable to generate an income.
Dispute resolution mechanisms in the gig business relationship are prescribed and agreed to in the business's terms-of-service agreement. 105These provisions are typically written in legal jargon, which on-demand workers often either misunderstand or fail to understand at all.In fact, according to a recent study, almost 50% of ondemand workers agreed to terms and conditions without having seen them. 106Of those who had seen the terms and conditions of service, a third reported not having read, not remembering or not having understood them. 107All Uber contracts, for instance, require prospective drivers to sign away their rights to legal redress in favour of private arbitration. 108Therefore, the lack of an easily understandable and adequate dispute resolution process reinforces the imbalance that exists in the platform relationship. 109e to financial insecurity, very few gig workers are in a position to take on large companies through civil means, which makes them more inclined to accept settlements out of court. 110In addition, the fact that gig workers often use a variety of platforms 111 makes it even more difficult to standardise dispute resolution.At the same time, gig businesses go out of their way to prevent the passing of pro-labour regulations, and, in the United States, have been lobbying to rewrite state employment laws and overrule local regulations. 112

Vulnerability in respect of social security protection
If Collins is correct, social protection's very objective is to afford a certain minimum level of social welfare to all, 113 thus focusing on more than only the traditional employee.Sadly, for on-demand workers, performing work in the platform economy in no way guarantees a social safety net of any kind.
On-demand workers' social security coverage is extremely limited, increasing their vulnerability even further. 114If one considers that platform work affects almost half a million citizens in South Africa, 115 this becomes a significant economic and social problem.On-demand workers' lack of social protection has specifically also jeopardised their health and safety during the COVID-19 pandemic,116 with many of them entirely dependent on task-based work to earn an income. 117e ILO regards social security as a human right, that comprises of various benefits in respect of unemployment, occupational injury, illness, old age, disability, survivors and health protection, as well as maternity, children and families. 118However, the inclusion of social protection as a fundamental right varies between jurisdictions. 119Apart from the statutes listed above, several other South African statutes regulate different social security protections as well as the health and safety measures applicable to workplaces in different sectors of the economy. 120ile a focus on human rights and dignity lie at the very foundation of South African labour law, 121 most on-demand workers forgo their right to social security. 122reover, whatever type of platform work workers are engaged in, accidents and injuries are bound to happen. 123Yet the wording of platform user agreements reveals complete circumvention of liability for accidents on the part of the platform, to the extent that, should any accident occur, the agreement would not prove the existence of an employment relationship between the platform and the gig worker.The standard electronic contract exempts the platform from all legal liability, with no regard for workers' rights. 124is lack of specific labour and social protection has a long-term detrimental effect on on-demand workers' capacity to invest in housing and pensions. 125They are also less likely to have access to professional development training opportunities, which hamper their career progression. 126Moreover, many of these workers are exposed to severe stress because of traffic congestion (for those in the mobility and delivery sectors), low pay, excessive working hours, a lack of gig opportunities, as well as the timeframe within which a task needs to be completed.Workers' every move is monitored by the platform and can be tracked by the client in real time.This puts them under severe strain to reach their destination as quickly as possible to prevent the gig from being cancelled or the client from giving them a bad review.In addition, 83% of on-demand workers in the ride-sharing sector and 89% of those in the delivery sector have reported major concerns about their safety while performing tasks, mainly due to road safety, theft or physical assault.Ongoing stress of this kind can have serious long-term consequences for on-demand workers' health and safety, which, in a traditional employment relationship, would have been provided for through adequate social protection. 127Introduction The provisions of the Bill of Rights bind not only the judiciary, the executive, the legislature and all organs of state, but also juristic and natural persons to the extent that a right is applicable. 128e ILO plays a pivotal part in supporting research and publications to enhance lawbased policymaking 129 and has significantly contributed to African countries' ability to 124 Iossa A "Anti-authoritarian employment relations?Labour law from an anarchist perspective" in Blackham A, Kullmann M & Zbyszewska A Theorising labour law in a changing world.Towards inclusive labour law (2019) at 232. 125 Balliester & Elsheikhi (2018) at 19. 126 Balliester & Elsheikhi (2018) at 20.This is especially true of youth gig workers.
128 S 8(1)-(2) of the Constitution of the Republic of South Africa, 1996.The aforesaid rights, therefore, have both a vertical and horizontal application.Section 39 of the Constitution confirms the previously mentioned principles by stating that when courts, tribunals and forums interpreted the Bill of Rights, it must be done in such a manner that promotes the values that underlie an open democratic society.In addition, s 39(1)(b) stipulates that international law must be considered.The following section thus aims to provide a discussion on specific international instruments applicable to on-demand work. 129Bellucci S & Otenyo EE "Digitisation and the disappearing job theory: a role for the ILO in Africa?" in Gironde C & Carbonnier G The ILO @ 100: addressing the past and future of work and social protection (2019) at 215.
standardise their labour policies. 130The ILO's role in creating forums for dialogue, especially those associated with the African Union, remains critical in ensuring that programmes for development in the African context are Africa-led. 131Yet, fundamentally, the ILO's views and efforts are geared towards the traditional labour law view of work, and of vulnerability in work. 132ke jurisdictions across the globe, the ILO too is faced with a gig economy that is testing the boundaries of the traditional employment relationship, and the organisation continues to grapple with how basic labour and social protection could be extended to on-demand workers. 133Therefore, while the principles and rights expressed in ILO standards remain relevant, 134 exactly how these should operate and be applied in the on-demand work relationship is yet to be clarified. 135 course, it is ultimately the responsibility of the state to incorporate ratified international standards in its national laws, and to ensure that gig platforms comply.To date, however, the regulatory frameworks that could offer protection to on-demand workers differ vastly from one jurisdiction to the next.Although some progress has been made to afford some of the protection offered by international standards, many other standards are yet to be implemented. 136This does not mean to say that unratified or unimplemented instruments do not serve any purpose at all, since they still serve as a useful reference for national policy and legislative design. 137 the following paragraphs, we examine recent ILO trends, developments and steps that could guide South Africa in minimising the vulnerabilities of its on-demand workers. 130Bellucci & Otenyo (2019) at 214; International Labour Organisation (ILO) "Conventions and Recommendations" (2021) available at https://www.ilo.org/global/standards/introduction-tointernational-labour-standards/conventions-and-recommendations/lang--en/index.htm(accessed 31 May 2021). 131Bellucci & Otenyo (2019) at 216. 132 Rodgers L Labour Law, vulnerability and the regulation of precarious work (2016) at 95.
134 ILO (2021) "World employment" at 249. 135 See, for example, Development Goal 8 of the ILO Decent Work Agenda that focuses on the creation of jobs, sustainable livelihoods and equitable growth, with target 8(a) focusing on the number of good and decent jobs and livelihoods to be created by 2030.As commendable as this goal may be, the ILO is still battling with how to achieve it in the platform economy.Indeed, seen against the backdrop of the vulnerabilities of on-demand workers discussed above, it will take some doing to make gig work to fit the requirements of decent work.

Guiding ILO standards
The ILO is on record for expressing its support for the notion that all platform workers 138 should enjoy the right to participate in collective bargaining, be protected against discriminatory conduct, and be safeguarded against unsafe work. 139Moreover, its Declaration on Fundamental Principles and Rights at Work, 140 along with specific key recommendations and conventions, apply to all workers, regardless of their classification. 141e Employment Relationship Recommendation (ERR) 142 addresses the formulation of national policy to guarantee adequate protection for workers who perform work in the context of an employment relationship, to establish criteria to determine the existence of an employment relationship, and to adopt measures to monitor developments concerning employment relationships. 143Of particular relevance to this article is paragraph 4(b) of the ERR, which recommends that national policy should at least include measures to: "… combat disguised employment relationships in the context of, for example, other relationships that may include the use of other forms of contractual arrangements that hide the true legal status, noting that a disguised employment relationship occurs when the employer treats an individual as other than an employee in a manner that hides his or her true legal status as an employee, and that situations can arise where contractual arrangements have the effect of depriving workers of the protection they are due ..." The ERR provides important guidance to enable legislatures and judiciaries to ensure greater consistency in the treatment of all workers, in both developed and developing countries, including on-demand workers. 144Moreover, the Govindjee correctly notes that the ERR acknowledges the need for special protection for vulnerable workers advocating for measures that counter false employment relationships. 145 138 In this context, "platform workers" include both crowdworkers and on-demand workers.
139 ILO (2021) "World employment" at 248.This also entails that on-demand workers be provided with health and safety protection, as well as social security protection. 140Adopted at the ILO's 86th session, Geneva, June 1998.
141 ILO (2021) "World employment" at 248.For example, article 2 of the Declaration on Fundamental Principles and Rights at Workplaces a constitutional obligation on all member states, including those who have not ratified any conventions, to realise and promote the underlying principles of freedom of association and the right to collective bargaining, the elimination of forced labour, the abolition of child labour, and the elimination of discrimination.
Another key ILO instrument to consider is the ILO Transition from the Informal to the Formal Economy Recommendation. 146This is of particular relevance in the African emerging-economy context, where the informal sector is a key player. 147South Africa, as a leading emerging economy on the African continent, is no exception. 148It calls on member states to extend various rights relating to health and safety, decent work conditions and a minimum wage to all workers in the informal economy. 149 addition, it has been suggested that other ILO instruments, such as the conventions relating to minimum wages and working time regulation, should also be extended to platform workers. 150Similarly, various conventions relating to non-discrimination 151 should serve as a guide in dealing with discrimination on platforms and from platform clients. 152

Findings from the Global Commission on the Future of Work
Since 2015, the ILO has been investigating the adverse effects of labour platforms on workers and employment in general. 153The vulnerability of on-demand workers was also highlighted in the landmark report by the Global Commission on the Future of Work, who examined how to achieve a better future of work at a time of unprecedented changes in the world of work.154 146 Recommendation 204, adopted at the ILO's 104 th session, Geneva, June 2015. 147Beghelli S "The changing nature of work: challenges and opportunities for Sub-Saharan Africa" (2019) 2 FEEM Policy Brief at 6. 148 Over the past decade, South Africa has seen a massive increase in its informal economic sector, and it is anticipated to expand even further now that the COVID-19 pandemic has weakened the formal employment sector.Importantly, in South Africa and on the rest of the continent, the informal sector and the gig economy are gradually converging due to grey areas in their respective regulatory frameworks.In this regard, the ILO recommendation prescribes guidelines for developing an integrated policy framework to facilitate an economic transition from the informal to the formal economy, while preventing further informalisation. 149Zhou (2020) at 44-45.The report acknowledges the challenges faced by platform workers by calling for the establishment of an international governance system for online platforms, which should require platforms to respect certain minimum rights and protections. 155Viewing social protection as a "human right", the Global Commission on the Future of Work called on all governments to adapt their systems to the evolving world of work and guarantee universal, equal and adequate social protection for all forms of work and all categories of workers, including the self-employed and vulnerable workers in the informal economy, 156 regardless of contractual agreement or employment status. 157e report further advocates for a universal labour guarantee, which includes fundamental rights at work, adequate living wages and fair working hours to ensure a safe and healthy workplace. 158

The ILO Centenary Declaration
The ILO Centenary Declaration for the Future of Work 159 encourages all member states to build the capacities of all people to benefit from the opportunities of the changing world of work, including strengthening institutions' ability to achieve adequate protection for all workers. 160This must be done in the context of the considerable growth in informality, and the need for effective action to achieve a transition to formality. 161The declaration also reaffirms the importance of the Decent Work Agenda by stating that all workers should enjoy adequate protection, taking into account their fundamental rights, adequate minimum wages, the regulation of working time, and health and safety at work. 162Moreover, the declaration calls for measures to ensure adequate privacy and personal data protection. 163Of specific importance here, and outlined in the discussion above, is that various conventions could apply to work performed as part of the gig economy.Moreover, as the ILO Social Outlook Reports suggest, specific key instruments, inclusive of the Declaration on Fundamental Principles and Rights at Work, apply to all categories of work irrespective of their classification.
155 ILO (2019).The report also highlighted that technological advances require the regulation of data use and algorithmic control in the world of work.

EUROPEAN UNION PERSPECTIVES ON ON-DEMAND WORK
A number of terms are used to describe the broader scope164 of platform-based work across the EU, including the "sharing economy" and the "collaborative economy". 165ince 2015, the European Commission (EC) has been engaged in public consultations, which in 2016 166 resulted in two communications on online platforms 167 and the collaborative economy 168 respectively.These communications aimed to resolve the classification of activities separating professionals from individuals occasionally working on collaborative platforms. 169In addition, the 2017 European Pillar of Social Rights delivered new rights and improved existing ones, and specifically provided that employment relationships that led to precarious working conditions had to be prevented. 170It also addressed several policy changes associated with innovative and new forms of work, including on-demand work. 171 2019, the European Parliament and Council announced the Directive on Transparent and Predictable Working Conditions in the European Union, 172 which clarified the status of on-demand workers by confirming that on-demand work could fall within the directive's scope. 173This directive was followed by the Council's Recommendation on Access to Social Protection for Workers and the Self-Employed. 174The recommendation underlines that recent forms of work, such as on-demand work, has increased in importance since the 2000s, 175 and expressly states that on-demand workers are excluded from social protection schemes, which adds to their vulnerability in the employment context. 176The EC's 2020 communication reiterated the need for improved working conditions for platform workers to ensure the sustainable growth of the platform economy. 177e EC's Inception Impact Assessment on Collective Bargaining Agreements for Self-Employed -Scope of Application of EU Competition Rules is of great importance to those working on online platforms. 178The purpose of the initiative is to invite European social partners to submit their views on the need for, and direction of, possible responses to improve the working conditions on digital platforms. 179Realising that digitisation and the need for more flexible work have led to an increase in platform economic activity, 180 the EC's consultations aim ensure that: "… EU competition law does not stand in the way of initiatives to improve working conditions through collective agreements for solo self-employed where they choose to conclude such agreements, while guaranteeing that consumers and SMEs continue to benefit from competitive prices and innovative business models, including in the digital economy." 181aring the above in mind, the European Commission introduced the Draft Directive (Draft Directive) on 9 December 2021 which seeks to introduce measures to determine the status of gig workers working on digital platforms.By doing so, the Draft Directive aims to improve the protection of platform workers by proposing a comprehensive 175 Section 11. 176 Section 18.
177 European Commission (EC) "Commission Work Programme 2020: a Union that strives for more" (2020) available at https://ec.europa.eu/info/publications/2020-commission-work-programme-key-documents_en(accessed 31 May 2021).More specifically, the communication confirms the several opportunities that online platforms have created for labour.However, it also outlines the vulnerabilities and risks associated with this type of work, such as the workers' employment status, poor working conditions, lack of access to social protection, and lack of representation and collective bargaining. 178 framework for the classification of gig workers across the EU. 182The aforesaid framework also consists of procedures to ensure the correct determination of the status of platform workers based on the primacy of facts and a rebuttable presumption of an employment relationship. 183The Draft Directive also advocates for improved conditions of work by promoting transparency, fairness and accountability in algorithmic management systems.It must be noted that algorithmic discrimination is certainly a contested topic in the regulation of platform work in the gig economy and warrants future research.Other initiatives in the EU context include regulations that promote fairness and transparency for business users of online intermediation services 184 and grant workers certain rights concerning personal data protection. 185Supplementary to the Draft Directive, the European Commission published draft guidelines on the application of EU competition law to collective agreements regarding the working conditions of solo self-employed persons (draft Guidelines). 186Article 101 of the Treaty on the Functioning of the European Union (TFEU) prohibits agreements between undertakings.In terms of the current EU Competition Rules, self-employed individuals are classified as 'undertakings' which means that the cooperation between the selfemployed risks breaching article 101 of the TFEU.While acknowledging the vulnerable situation that platform workers find themselves in, the European Commission explained that its concerns go beyond the scope of platform work and include the vulnerable disposition of the self-employed by acknowledging that "some solo self-employed people struggle to have a say on their working conditions". 187In light of this, the draft Guidelines aim to clarify the circumstances where the EU competition laws stand in the way of collective agreements aimed at improving the working conditions of certain selfemployed people. 188In doing so, the draft Guidelines cover self-employed individuals with little to no influence over their working conditions because they are in a 'comparable situation' similar to workers, or considering that they are in a weaker negotiating position when compared to the other party. 189It must be kept in mind that the draft Guidelines do not only apply to platform work but go far beyond that. 190In line with this, we agree with Countouris and De Stefano who assert that it is possible to extend specific labour rights by way of 'ad hoc mechanisms' that ascribe particular labour rights to particular sectors of the labour market. 191at emerges from this discussion is that the EU has made significant progress in regulating platform work in its member states.Engels C "Self-employed collective bargaining in the EU gig economy: new proposals" (2022) at https://iuslaboris.com/insights/self-employed-collective-bargaining-in-the-eu-gig-economy-newproposals/ (accessed 29 August 2022).It is trite law that collective bargaining not backed up by a right to strike is tantamount to collective begging.Engels rightfully asks the question of whether a collective refusal to work by solo self-employed platform workers would be covered by this right to bargain collectively seeing that most of them have the freedom not to log into a particular system for a given counterpart.Furthermore, he asks the question of whether a solo self-employed person can be 'represented' in collective bargaining with multiple counterparts whom they are delivering service for.
There are no firm answers to these questions, and will the European Court of Justice have the final say in this matter unless out-of-the-box thinking could lead to a different solution? 191Countouris N & De Stefano V 2021 "The Labour Law Framework: Self-Employed and Their Right to Bargain Collectively" in Waas B & Hießl C (eds) Collective Bargaining for Self-Employed Workers in Europe: Approaches to Reconcile Competition Law and Labour Rights (2021) at 9. The authors explain that examples of the extension of labour rights to specific types of work or within a particular sector in the labour market can be found in the French Labour Code which provides for a presumption of employment.In addition, the Irish Competition (Amendment) Act 12 of 2017 is also illustrative of the extension of specific work-related rights to categories of self-employed persons, such as voice-over actors, musicians and freelance journalists.The aforesaid Competition Amendment Act introduced two new categories of self-employed persons, namely persons who are 'false self-employed workers' and the 'fully dependent self-employed worker'.In both aforementioned categories, a representative union may apply to the Minister to bargain collectively and conclude collective agreements on behalf of the group of workers.Of importance here is the fact that this legislation aims to extend the 'traditional' collective bargaining rights to vulnerable workers who, in terms of the binary classification system, would normally be excluded from such.See secs.15D and 15F (1).Although the extension of specific labour rights by way of ad hoc mechanisms, inclusive of extending collective bargaining rights via competition laws, could better the bargaining position of platform workers in general, it does not form part of the primary focus of this research.This said, it is a unique perspective that requires further research.

CONCLUSION AND THE WAY FORWARD
The growth in on-demand gig work presents vast potential for job creation in an increasingly job-scarce world and particularly among our youth.At the same time, however, it creates an array of legal issues as to on-demand workers' lack of protection under labour law, and the set of vulnerabilities to which they are exposed as a result.
In this second part of our research, we have identified four distinct areas where ondemand workers in South Africa experience structural vulnerability from enjoying basic social and labour rights.This, in turn, also paints a picture of the current working conditions that on-demand workers are subjected to.Firstly, on-demand workers are rendered vulnerable in respect of basic conditions of employment, having limited control over (or insight into) unilateral changes to the contractual terms that regulate their relationship.Secondly, due to limitations prescribed by the LRA's definition of an employee and other labour laws, they lack protection at the level of both individual and collective labour rights, and, therefore, experience unfair deactivation, discrimination by both clients and the platform, and poor collective bargaining power.In the third instance, dispute resolution for on-demand workers is highly technical, and mostly occurs through time-consuming and costly civil legal action, putting it beyond the average individual platform worker's reach.Finally, with lacking social security protection, on-demand workers are unable to invest in housing and pensions, lack skills development opportunities and have little if any career progression prospects, while their excessive stress puts them at risk of occupational health and safety issues.These structural vulnerabilities are in addition to the precarity built into the peculiar triangular platform work relationship discussed in part 1.
Both the ILO and the EU have taken steps to achieve decent work for, and extend basic labour and social protection to, those working in the gig economy.From an ILO's perspective, we opine that many of the applicable conventions could be extended to ondemand workers if one considers the extent to which they extend to "workers" and not "employees".It is thus a broader approach as compared to the binary approach to the classification of employment in the South African context.However, uniform approaches and policy considerations to regulate platform work are still lacking.While the classification of on-demand workers was not the focus of this research, we do foresee that an increasing number of matters involving gig workers and big gig business will reach our courts and be subjected to judicial interpretation in the years ahead until such time as a universal solution to the classification dilemma is found.Nevertheless, the research and approaches of the ILO and EU to help resolve the issues associated with on-demand gig work could indeed serve as a roadmap to direct our domestic legislative responses to the broader gig economy.
Considering viable alternatives to alleviate on-demand workers' vulnerability is still in its infancy in South Africa, and the classification of on-demand workers has not been adequately judicially tested to date.It was, nonetheless, noted that a legal solution could be the NMWA's definition of a "worker" as a basis for extending minimum wage rights to on-demand workers.Cognisance needs to be taken of the fact that the definition, for purposes of extending minimum payment rights to on-demand workers, has yet to be tested in our courts.In the meantime, we argue that the time has come for lawmakers to engage all stakeholders to reconsider traditional work categories with a view to including new forms of work, such as on-demand work, which currently do not fit the traditional work model.In addition, we opine that, in the interim, the time is ripe for gig businesses must consider ways in which they themselves can mitigate the identified structural vulnerabilities.This could include changes to their terms of service to extend certain minimum rights and protections to on-demand workers.
Reflecting on the existing research having been done internationally, as well as in South Africa, we opine that the easiest interim regulation seems to be to expand on the definition of a "worker" as defined by the NMWA.
In conclusion, we call on lawmakers not to forget the human being behind the faceless online work environment, but to develop a suitable response that specifically addresses on-demand workers' vulnerabilities.
victimization and retaliation) on the basis of their union activities and employer interference in their organisations.Both the Freedom of Association and Protection of the Right to Organise Convention and the Right to Organise and Collective Bargaining Convention are ratified by South Africa and given effect in terms of the LRA.However, due to the application of the LRA, platform workers are still excluded in the South African context.We opine that a broader application of a "worker" as prescribed by the aforelisted conventions includes on-demand workers as well.
Art 2 of the Freedom of Association and Protection of the Right to Organise Convention 87/1948. 71ILO (2021) "World employment" at 204.The key importance of the Convention lies in the fact that it prescribes that workers, including self-employed individuals, can join organisations of their own choosing.Similarly, Art 1 of the Right to Organise and Collective Bargaining Convention 98 of 1949 provides that all workers should enjoy adequate protection against discrimination (including 74 Nxumalo L "The role of trade unions in South Africa: towards the inclusion of persons with disabilities in the workplace" (2020) 41 ILJ at 2311. 75Nxumalo (2020) at 2311.In addition, chapter 3 of the LRA establishes different organisational rights applicable to trade unions.Van Niekerk & Smit (2018) at 406-407.
further undermines their bargaining power, in effect nullifying the efforts of workers and unions who struggled to eradicate labour exploitation and replace it with civilised The Economic and Labour Relations Review at 428.Various Canadian provinces, for example, permit dependent contractors to access bargaining rights and processes.
76Du Toit, Fredman & Graham (2020) at 1519.77Du Toit, Fredman & Graham (2020) at 1519; Van Niekerk & Smit (2018) at 404.Not all trade unions qualify for organisational rights -only registered trade unions that are "representative" may acquire such rights. 78ILO (2021) "World employment" at 249. 79 Workers who have contractual arrangements of a commercial nature (but not a contract of employment) to provide goods or services for or through another economic unit. 80Stewart A & Stanford J "Regulating work in the gig economy: what are the options?" (2017) 28(3) 81 Stewart & Stanford (2017) at 428.
150 ILO (2021) "World employment" at 251.See, for example, the Occupational Safety and Health Convention 155 of 1981, the Promotional Framework for Occupational Safety and Health Convention 187 of 2006, and the Employment Policy Convention 122 of 1964, which are currently not ratified by South Africa.
Valuable lessons can be drawn from the classification criteria prescribed by the Draft Directive on Improving Working Conditions in Platform Work.