How France subverts collective bargaining to favour Big Tech platforms

Some new organisations representing gig workers have been accused of being inexperienced and defending the platform’s interests — with the blessing of the French government.

"We are working on something unique which does not exist in the rest of the world", French officials representing the platforms of drivers and couriers — Uber, Deliveroo, Stuart [a state-owned delivery start-up] and more — and the FNAE, one of these new workers organisations, told EUobserver.

The collective bargaining, which was launched last October, aims at "agreeing on social rights and better working conditions for the workers while protecting the business model of the platforms", says Joël Blondel, head of the administrative body overseeing the negotiations.

Which business model? "The fact that they work with self-employed workers and put them in touch with clients, instead of having employees," Blondel says. Currently, like in most countries across Europe, French gig workers are independent workers who, as such, enjoy no social benefits, allowing the platforms to dodge social security charges.

Blondel’s words don’t come as a surprise, as Paris scrambles in Brussels to get rid of a commission proposal for an EU law on platform workers, which provides a so-called "presumption of employment". It would enable gig workers to be reclassified as employees if they meet certain criteria — with the burden of proof that there is no such a relationship being the responsibility of the platform.

If adopted by EU lawmakers, the future directive would be a victory for the left and workers’ unions.

A first round of the battle was won at the European Parliament in February, but the EU council must still agree on a position. And Paris hopes that pushing collective bargaining in France will help the country get an opt-out to the future EU law.

The compromise discussed by the 27 member states under the Czech presidency already provided a provision in this sense. And France is currently working to keep collective bargaining agreements as an exit door to the "presumption of employment" in the talks under the Swedish presidency.

Behind the scenes, the platforms are grateful to the French government; after all, it’s better to create your own rules through collective bargaining than standing up to an EU law that upends your business model.

Even more so if you have enough weight to impose your views in the bargaining. In France, unions, which are elected by workers, send their representatives to negotiate with employers in collective bargaining organised per economic sector or per enterprise.

But in the face of the powerful Big Tech platforms there was nothing but a void, until the government decided to launch the negotiations on the rights of the platform workers.

As self-employed workers, drivers and couriers did not have any union representing them. That’s why Paris decided to organise elections, and to open the doors to newcomers supporting self-employment, alongside traditional unions like the centrist CFDT and hard-left CGT, prone to request employee rights for gig workers.

Trojan horses?

The elections were not a success. Out of the 84,000 couriers and 40,000 drivers registered, less than two percent of the couriers and four percent of the drivers showed up to elect the organisations meant to defend their interest during the bargaining. The low turnout did not come as a surprise in a country where only 10.3 percent of the workers are affiliated with a union and especially for platform work, which is a new sector in the economy with some informal work, notably among couriers.

The way the French collective bargaining process started raised eyebrows in Brussels. Some officials of the European commission, who fear that the gig economy brings about so-called ‘yellow unions’ [Trojan horses effectively defending the business interest] — have been scrutinising the new organisations that have emerged on the French union scene.

As one official told EUobserver, these unions "create tension with other social partners who question their legitimacy, and we think they don’t get agreements in favour of workers but of enterprises".

Blondel doesn’t hide that his administration itself had let a business federation of road transports — the FNTR — register on the workers’ side at the elections, even though it failed to get elected.

Among the winners of the elections, the FNAE is described by CGT negotiator Ludovic Rioux as "inexperienced" in front of the well-established negotiators from the platforms but also "disconnected from the couriers in the field". He explains, "Many couriers often sublet their platform’s accounts to others. It’s in the interest of the true owners of these accounts to keep the status quo".

And not to elect representatives from an union like the CGT which wants the end of self-employment in the sector.

"This collective bargaining is unbalanced, with a union front which is divided," warns Josepha Dirringer, who researches workers protection at Université de Rennes. "An organisation like the FNAE claims it represents self-employed workers, so it means it represents business. One can wonder if they have a right to collective bargaining complying with labour law". According to Dirringer, economic rules should apply. "When companies agree with other companies on a price, it is called cartel pricing, which is forbidden by competition authorities".

The researcher thinks the French government is exploiting collective bargaining in favour of the platforms, far removed from what gig workers really experience in the field. She advocates for more social protection for them and the respect of collective bargaining rules. "Even if the EU has recently loosened the ability for self-employed workers to take part in collective bargaining, the fee agreed recently in France for the drivers still falls, in my eyes, under competition rules".

Macron and the Uber Files

Last January, a minimum fee was agreed for each fare by the drivers’ negotiators and the platforms. It was a successful first outcome of the negotiations, in the eyes of the organisations defending self-employment. Uber was applying the lowest rate on the market — €6 — and collective bargaining raised it to €7.65, no matter the fare’s distance. The final price for the consumer today is €10.20, after including Uber’s commission.

The CFDT refused to sign the agreement asking for a minimum fee per hour, but the union was in the minority.

"The gig economy is part of the French government’s strategy to achieve full employment, even if it’s low-quality employment" says lawyer Jérôme Giusti, who has several cases pending for drivers who want to be classified as employees. "The rights that are being negotiated collectively in France will never protect the workers as well as if they were employees".

The Uber Files have put under the spotlight how Uber and the then economy minister, Emmanuel Macron, worked together to impose the platform and its business model on the French market.

However, today, Paris’s strategy is not only under pressure from EU lawmakers, it has also to cope with national judges. The Court de Cassation, the highest court in France for criminal and civil cases, classified in 2020 and again last January some drivers working for Uber as employees.

Blondel minimised the impact of the rulings: "There’s not a massive move of gig workers to refer to court".

Likewise Laureline Serieys, general director in France of Uber, says most of them want to stay self-employed. "Those who advocate for an employee system want more social protections. I’m not against that," Serieys tells EUobserver, "But we have to invent a new world where workers can be independent while enjoying more social protections. That’s the merit of the current French collective bargaining".

That would appear to constitute a new French revolution — at least from the business point of view — with a government lobbying in Brussels to defend the platform’s interests.