Pedro needs to work. He has been out of work for several months and his family depends on him. María offers him an opportunity to receive income and Pedro must work for clients that she will send him. He will self-manage his schedule and will not have an employment relationship with her. However, María will define the amount that Pedro will earn per hour, will leave herself a portion of that income, and will be able to sanction him if the work does not meet certain quality standards.
It is likely that when asked if we would accept Pedro’s job, many of us would say no. However, in the Greater Metropolitan Area of Costa Rica, more than 15,000 people did accept a job with very similar conditions. However, in the Greater Metropolitan Area of Costa Rica more than 15,000 people did accept a job with very similar conditions, according to a study conducted by the School of Economics of the Universidad Nacional on people engaged in delivery work through platforms.
According to this study, 95% of the delivery people interviewed work more than 60 hours per week and a quarter of the population indicates that they do not take any days off. Although one of the main benefits of working through platforms is a flexible schedule, this benefit is transformed into job insecurity when you have to work that number of hours to cover your basic needs.
In addition, the study points out that delivery workers must pay social security contributions from their own earnings and do not have occupational risk insurance. This situation, which is not uncommon, means that in the event of an occupational accident they cannot be treated by the occupational health system of the Instituto Nacional de Seguros. A quarter of the delivery workers have frequently had road accidents, 17% have been robbed and 3% have suffered injuries such as contractures, bone wear and sunburn, among others.
Legal loophole
The situation of Pedro and other people dedicated to delivery work is allowed in Costa Rica because the companies dedicated to the management of delivery platforms and other virtual work platforms have alleged that they do not have an employment relationship with their workers, whom they call partners.
According to a study by the International Labor Organization, entitled “The role of digital labor platforms in transforming the world of work”, digital labor platforms interpose a party, which can be a client, a passenger or a consumer, between them and the workers. This model is called fissuring and allows arguing that they are not responsible for the acts of that “third party”, i.e. the worker.
Fuera de Costa Rica
Con el propósito de evitar esta fisuración, en varios países se ha diseñado legislación para imponer la responsabilidad en la capacidad de influir materialmente en los resultados, que tienen los empleadores sobre los contratados. Por ejemplo, países como Australia y Nueva Zelanda han incluido en sus jurisdicciones el criterio de la capacidad de influir en la salud y seguridad ocupacional que tienen las plataformas de repartición en los trabajadores.
Outside Costa Rica
In order to avoid this fissuring, jurisdiction has been designed in several countries to impose liability on the ability of employers to materially influence the outcomes of their employees. For example, countries such as Australia and New Zealand have included in their jurisdictions the criterion of the ability of delivery platforms to influence the occupational health and safety of workers.
Thus, the traditional concept of employers was changed to “a person conducting a business or undertaking” (PCBU) and it was determined that this PCBU must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking.
In Latin America, in 2022, Chile became the first country to regulate work with virtual platforms. It then included a chapter in the Labor Code that today regulates work through digital service platforms, describes what should be understood as digital service platform company and digital platform worker and defines the protections for workers. In addition, hiring platforms are required to maintain a contract for the provision of services, provide access to social security, limit working hours and define a value per hour of service.
This legal change was accompanied by the formulation of several decrees to legislate some safety elements that must be used by digital platform service providers. For example, protective equipment for people using bicycles and motorcycles was identified and characterized, as well as the management and road safety conditions that must be met by bicycle lanes.
This change prompted occupational risk insurance companies, known as law enforcement agencies in Chile, to develop a series of mechanisms to train workers providing digital platform services on the dangers to which they are exposed during their work and to design tools for digital platform service companies to self-assess their compliance with these changes.
Vision for the future
Digital platform service workers in Chile no longer work alone. Neither do those in Australia or New Zealand. The ILO’s 2019 Centenary Declaration for the Future of Work promotes this situation to be the global constant.
The declaration for the future of work indicates, among other issues, that a human-centered approach is needed, which promotes a fostering of economic, inclusive and sustainable growth, full and productive employment and decent work for all through policies and measures that respond to the challenges and opportunities posed by the digital transformation of work, including platform work.
The human-centered approach must be embraced by everyone. Many times, when we place an order through a digital platform, we forget that it will be delivered by a person who must protect himself from the weather, drive safely and may have a strenuous workday. We worry about our order arriving on time, but not about demanding that a precarious condition for more than 15,000 workers be regulated. The objective is not to eliminate this source of work but to regularize it so that its workers have the same rights as the rest of the workers in Costa Rica. Let’s not leave Pedro alone.