Platform Work and the Danish Model
– Legal Perspectives
Natalie Videbæk Munkholm * &
Christian Højer Schjøler **
* Associate Professor, Department of Law, Aarhus BSS, Aarhus University,
Denmark
** Assistant Professor, Department of Law, University of Southern Denmark,
Denmark.
NJCL 2018/1
117
1. INTRODUCTION ................................................................................... 118
2. THE DANISH MODEL .......................................................................... 121
3. NOTION OF EMPLOYEE – AN OVERVIEW ........................................ 123
4. EMPLOYEE - COLLECTIVE BARGAINING ASPECTS .......................... 126
4.1. COMPETITION LAW AND PLATFORM WORK .......................... 127
4.1.1. DANISH COMPETITION AUTHORITIES – CASE LAW ON
ATYPICAL EMPLOYEES AND COLLECTIVE AGREEMENTS
.......................................................................................... 128
4.1.2. CASE LAW OF THE COURT OF THE JUSTICE OF THE EU
.......................................................................................... 130
4.2. LAWFULNESS OF STRIKE AND SECONDARY ACTION ........... 134
4.3. LAWFULNESS OF BLOCKADE ................................................... 135
4.4. SCOPE OF A NEGOTIATED AGREEMENT ............................... 136
4.4.1. JURISDICTION OF THE LABOUR COURT...................... 137
4.4.2. WHO IS COVERED .......................................................... 137
5. FIRST COLLECTIVE AGREEMENT FOR PLATFORM WORK ............... 138
6. DISCUSSION ......................................................................................... 139
6.1. FIRST ATTEMPT FOR AGREEMENT FOR PLATFORM WORKERS. .
.......................................................................................... 139
6.2. PLATFORM WORK AND COMPETITION LAW. ......................... 142
6.3. PLATFORM WORK AND FLEXICURITY. ................................... 144
PLATFORM WORK AND THE DANISH MODEL 118
ABSTRACT
Labour law and services provided via online platforms or digital
apps, platform work, appear to be an ill-matched couple as the business
model of the platforms often relies on the worker not being an
employee, whereas labour law categorises persons performing work as
either self-employed or employees, depending on the circumstances of
the relationship. Recent European and national case law concerning
Uber illustrate that the classification of platform work is complicated.
This article examines platform work in the light of the Danish model of
providing a legal basis for decent pay and working conditions by way of
collective bargaining. Collective agreements are a prerequisite for the
Danish model to be extended to persons providing services via digital
platforms. Platform businesses operate in an uncertain realm where the
use of collective agreements could be questionable from a labour law as
well as from a competition law perspective. The article takes a closer
look at such legal perspectives by drawing out principles from national
case law as well as case law of the European Court of Justice. The article
further discusses a trial-agreement concluded between a trade union and
a platform business in Denmark. The article concludes that collective
agreements would be in line with the Danish model as well as with
competition law, as long as the circumstances of each contract of service
are characteristic of employment and as long as the service providers are
not genuinely self-employed. The article contributes to the discourse on
collective agreements as a means to ensure decent pay and working
conditions as well as societal values and protections for persons
providing services in the form of labour via online websites and digital
apps.
1. INTRODUCTION
Technological developments allow for new business models and
new forms of work. This has always been the case. Recent developments
in digital technology likewise enable new models for providing services.
The use of online websites or digital apps to assist the exchange of
services between private persons are often referred to as ‘platform
economy’, and it is often promoted as a manner of executing the
economic principle of sharing assets or services, referred to as the
‘sharing economy’.1
1 E.g. - The article in essence distinguishes between
digital platforms as regards to the object of exchange. The term ‘sharing’ is appropriate,
where assets are shared, such as a car or an apartment. As recognized for more than a
century, labour is however not a commodity. Evidently, labor hours, as they are
provided by a human being, cannot simply be shared as an ‘asset’, and thus is not
appropriately categorised as ‘sharing economy’. This perspective is easily neglected -
also in Denmark, e.g. in 2017, a trade association for platform businesses emerged with
the objective of ensuring that ‘Danes in companionship and with respect for each other
NJCL 2018/1
119
Business models vary, also businesses using digital platforms. There
is no one-size-fits-all model for using online websites or apps to connect
service providers and users. Certain elements can nonetheless be
examined as typical. The term ‘platform work’ in this article thus refers
to the phenomenon where a private person offers a service in the form
of working hours to another private person or corporate entity, where
the connection is made via an intermediary online website or a digital
app. The person offering work is referred to as ‘service provider’, the
website or app is referred to as ‘the platform’, the legal entity offering
and constructing the model of the intermediary app or website is
referred to as ‘the platform provider’, the recipient of the service is
referred to as ‘the user’.2
The dichotomy in labour and employment law provides that the
relationship between the parties can be categorised as either one of
employment or one of contracts for services by self-employed persons.
This division is often referred to as ‘the binary divide’.3 As an employee a
person is entitled to certain rights and protections, and as self-employed,
any rights or protections are the responsibility of the service provider. In
can earn and save money in sharing the available resources through collaborative
platforms’, Foreningen for platformsøkonomi i Danmark .
Instead, in the view of the authors, digital platforms enable new and welcome avenues
for providing services in the form of labour, e.g. cleaning services, transportation, etc.,
and could more accurately be termed new business models.
2 See a.o. these sources for more on the legal aspects of platform work: Jeremias Prassl,
‘Pimlico Plumbers, Uber Drivers, Cycle Couriers, and Court Translators: Who Is a
Worker?’ (Social Science Research Network 2017) SSRN Scholarly Paper ID 2948712
accessed 20 August 2018; Jeremias
Prassl and Martin Risak, ‘Uber, Taskrabbit, and Co.: Platforms as Employers -
Rethinking the Legal Analysis of Crowdwork’ (2015) 37 CLLPJ 619; Valerio De
Stefano, ‘The Rise of the “Just-in-Time Workforce”: On-Demand Work, Crowdwork
and Labour Protection in the “Gig-Economy”’ (2016) Working paper
accessed 20 August 2018; Jon Erik Dølvik and Kristin Jesnes, Nordic
Labour Markets and the Sharing Economy : – Report from a Pilot Project (Nordisk Ministerråd
2017) accessed 20
August 2018; Marianne Jenum Hotvedt, ‘Arbeidsgiveransvar i formidlingsøkonomien?
Tilfellet Uber’ (2016) 55 Lov og Rett 484; Ane Kristiansen and Søren Kaj Andersen,
‘Digitale platforme og arbejdsmarkedet’ (2017) 38 Forskningscenter for
Arbejdsmarkeds- og Organisationsstudier accessed
20 August 2018; Miriam A Cherry and Antonio Aloisi, ‘“Dependent Contractors” in
the Gig Economy: A Comparative Approach’ [2016] SSRN Electronic Journal
accessed 20 August 2018; Jennifer Pinsof,
‘A New Take on an Old Problem: Employee Misclassification in the Modern Gig-
Economy’ (2016) MTTLR 22, 341.
3 Alan Bogg and Mark Freedland, The Contract of Employment (Oxford University Press
2016) 238 where the evolution of the binary divide is explored.
PLATFORM WORK AND THE DANISH MODEL 120
non-standard contracts of work the distinction can be blurred. This is
apparent with work performed via platforms, where the platform
provider often utilises a contractual term, by which the service provider
is not an employee, but where at the same time the actual relationship
between the platform and the service provider is atypical for self-
employed persons.
The categorisation as employees or self-employed is of influence
not only for the rights and protections of the individual service provider.
Correct classification allows for fundamental societal considerations to
be enforced. A number of employee rights and protections are a result of
broader societal considerations and choices, e.g. ensuring a sustainable
and healthy work force by providing safety at work, maximum working
hours and paid annual leaves; a decent level of social security, e.g.
pension payments, sick leave pay and maternity leave pay; and protecting
societal values such as equality and protection against discrimination.
Indeed, the classification as either employee or self-employed is vital to
ensure that a given society’s basic rights and protection for persons
performing work in employment also applies when such work is
performed via an intermediary digital app or a website.4
At the collective level where social partners aim to conclude
collective agreements, the binary divide is likewise of essence. Collective
agreements is the primary tool of choice to ensure a proper balance in
the employment relationship as well as in society at large as a key feature
of the Danish welfare system. However, if a service provider on digital
platforms is categorised as self-employed, a collective agreement
providing binding payment structures would violate competition law,
collective action aimed at concluding agreements for genuinely self-
employed persons would be unlawful under Danish law, and the Labour
Court would not have jurisdiction to assess complaints of breach of
contract. And vice-versa. In April 2018, 3F, the largest trade union in
Denmark (United Federation of Danish Workers) concluded a collective
agreement with a digital platform, Hilfr, which acts as intermediary
between private cleaners and customers.5 This article draws into focus
existing labour law principles used to assess the status of persons in less
than typical employment situations, case law from the Danish
competition authorities and the CJEU regarding collective agreements
for non-typical employment situations.6As the agreement with Hilfr is
ground-breaking in Denmark, perhaps worldwide,7 the article also takes a
closer look at the innovative elements of the agreement.
4 Prassl and Risak (n 2) 622.
5 accessed 20 August 2018.
6 The agreement is available at
accessed 20 August 2018.
7 Collective agreements for quasi self-employed are not uncommon. According to Eva
Grosheide and Beryl Haar, ‘Employee-like Worker: Competitive Entrepreneur or
NJCL 2018/1
121
2. THE DANISH MODEL
Denmark is a small Scandinavian country of 5.7 million inhabitants.
The Danish Constitution, dating back to 1849, establishes a
constitutional monarchy and the framework for a democratic rule. The
legislative power lies with the parliament and government in unison, and
the rule of law is prevalent in Denmark.8
In the late Nineteenth century, labour was in abundant supply,
working conditions were very poor, and the only way to improve
working conditions was by acting collectively to gain bargaining leverage.
A system of collective bargaining and conflicts emerged. In 1899, a
lengthy nationwide conflict was brought to an end with the historic
September Agreement. The September Agreement carved out the
fundamental principles for the industrial relations system in Denmark,
and recognised inter alia the right to bargain collectively, the right to
strike, the duty of peace and the employer’s managerial power. The social
partners acknowledged the opposite party’s right to exist and the right
for employees and employers to freely join trade unions and employer’s
confederations.9 These principles continue to be the foundation of the
Danish collective bargaining system.10 In 1910, parliament provided a
dispute resolution system, based on a distinction between conflicts of
interest and conflicts of rights, whereas conflicts of rights should be
settled by way of dispute resolution rather than by way of conflict.
Statutory legislation provided a specialised and effective dispute
resolution system for the social partners, i.e. the Act on the Labour
Court, Arbejdsretsloven11 and the Act on a Public Conciliator,
Forligmandsloven.12 The social partners are otherwise self-regulatory as
there is no statutory regulation of trade unions, collective agreements
Submissive Employee? Reflections on ECJ, C-413/13, FNV Kunsten Informatie’, in
Maciej Laga and others (eds.), Labour Law and Social Rights in Europe. The Jurisprudence of
International Courts (Gdansk University Press 2017), one social partner has adopted
minimum fees for self-employed persons in a.o. architectural firms in the Netherlands.
8 E.g. Denmark tops the World Justice Project, Rule of Law Index, 2017-18,
9 Ole Hasselbalch, Labour Law in Denmark (Fourth edition, Kluwer Law International B
V 2016) 32; Jens Kristiansen, The Growing Conflict between European Uniformity and National
Flexibility: The Case of Danish Flexicurity and European Harmonisation of Working Condition
(DJØF 2015) 25.
10 E.g. recognized in the current version of the General Agreement concluded by the
Danish Employers’ Confederation, DA, and the Danish Confederation of Trade
Unions, LO,
11 Statutory Act no. 1003 of 24/08/2017 on the Labour Court and industrial
arbitrations. Available in English at accessed 19 April 2018.
12 Statutory Act no. 709 of 20/08/2002 on Conciliation in Collective Disputes.
PLATFORM WORK AND THE DANISH MODEL 122
and the lawfulness of industrial conflicts.13 The right to collective
bargaining is not explicitly protected in the constitution.14
The State interferes as little as possible in matters regarding pay and
working conditions. Such matters are considered to be more suitably
settled by way of collective bargaining.15 This understanding is supported
by a very high unionisation rate,16 in 2017 approx. 67%, and a high
coverage of collective agreements, in 2015 approx. 74% of private sector
and 100% of public sector employees.17 Within the boundaries of the
labour market, the social partners act as the primary legislative power.18
As a result, there is no general statutory legislation on what constitutes
an employment relationship, on working conditions, minimum wages,19
normal daily or weekly working hours20, overtime payment, sick leave
pay, maternity leave pay, pensions, continuing education or lawful
termination of employment.21 Statutory regulation is traditionally passed
only when avenues of negotiation have been exhausted in areas of social
security, or for groups of workers in need of special protection or
traditionally not unionised. Working conditions in Denmark are
primarily regulated by way of collective agreements.22 This system of
bargaining is referred to as the Danish model. Denmark’s membership
of the European Union and the duty to implement directives by
statutory law has forced the legislators to play a more active role.23 At the
political level, Denmark is reluctant towards EU legislation on topics
13 Hasselbalch (n 9) 51.
14 Jens Kristiansen, Den Kollektive Arbejdsret (3rd ed, Jurist- og Økonomforbundet 2014)
112.
15 Hasselbalch (n 9) 44; Kristiansen (n 9) 13.
16 In 2008 the average unionization rate in Europe was less than 25 percent. Kristiansen
(n 9) 45.
17 Dagpengekommissionen, Det Danske Arbejdsmarked, Oktober 2015, 22 .
18 Hasselbalch (n 9) 44.
19 There are only three minor exceptions: vocational trainees are by statutory legislation
ensured a minimum wage equal to the wage in the normal collective agreement in the
trade in question and the pay of ‘crown servants’ is ultimately fixed by the Parliament, if
the organizations do not come to an understanding during the negotiations. And finally,
if the job is created as a initiative under the public unemployment scheme, a statutory
act requires the pay to be settled according to the collective agreement within the trade.
Hasselbalch (n 9) 135.
20 ibid 120.
21 Kristiansen (n 9) 31. The provisions with formal and substantive criteria for lawful
dismissals exist, but are fragmented. E.g. Statutory Acts applicable to all employees
prohibit dismissal on specific grounds, and Statutory Acts for certain groups of
employees provide notice-periods and a standard of reasonableness in cases of
dismissal.
22 ‘COLLECTIVE AGREEMENT WITH ERGA OMNES APPLICABILITY |
Eurofound’ accessed 19 April 2018.
23 Kristiansen (n 9) 17.
NJCL 2018/1
123
traditionally reserved for collective bargaining.24 At the legal level, the
social partners aim to implement EU Directives by collective
agreements, supplemented by minimum legislation applicable to those
who are not covered by an implementing agreement.25
Collective agreements are automatically binding for signatories and
their members, but not applicable erga omnes.26 Employers can be bound
either via membership of an employers’ association, party to an
agreement, or through an individual agreement with a trade union.27
Agreements define their own scope of application. Typically, the
agreement provides that when an agreement is in force, the employer
must extend the provisions to all employees performing the type of work
covered by the agreement, regardless of their membership status.
Sectoral agreements typically run for a period of 2-3 years and regulate
material working conditions such as wages, working hours, overtime pay,
rules of termination and work place union representatives.28
For persons performing work via digital platforms in Denmark
who would be categorised as employees, the customary avenue of
ensuring reasonable pay and working conditions is by way of concluding
collective agreements.29
3. NOTION OF EMPLOYEE – AN OVERVIEW
At the collective level the question of employee-status has surfaced
in Danish law not only with regards to who is eligible to receive the
rights provided for in the agreement, but also in regards to the
24 E.g. a unified ‘no’ to the European Commission’s 2014 proposal to legislate on
minimum wages in all EU Member States, ‘Denmark: Heated Debate about
Introducing Minimum Wage | Eurofound’
accessed 20 August 2018.
25 This has been the model of implementation since 2001, where Denmark passed
supplementing statutory legislation to implement Directive 97/81 concerning the
Framework Agreement on part-time work.
26 Kristiansen (n 9) 40; The members of the signing organizations can be seen as
‘partakers’ rather than ‘parties’ given the very limited right to supplement or deviate
from the agreement they are bound by through their membership of the organisation.
Hasselbalch (n 9) 58.
27 If the employer is not a member of an employer organization, the employer can
accede to the industry wide agreement by concluding an adoption agreement with a
national trade union party to such an industry wide agreement.
28 Hasselbalch (n 9) 60.
29 For some groups of employees, the legislators have provided, that pay and working
conditions must abide by the standards in the agreements concluded by the ‘most
representative’ associations in Denmark. This is the case for e.g. posted workers, taxi-
drivers, and apprentices.
PLATFORM WORK AND THE DANISH MODEL 124
jurisdiction of the Labour Court and the lawfulness of collective action.30
This section gives an overview of the general principles for assessing
employee status as the basic foundation for the assessment at the
individual level.
There is no uniform statutory definition of what constitutes an
‘employee’.31 The question of whether at person is entitled to certain
rights as an employee is assessed according to the specific scope and
definition provided in the relevant legal basis compared to the
particularities of the relationship in casu.32 The sui generis definition of
the term ‘employee’ would be ‘a person receiving remuneration for
personal work in a service relationship’.33 General principles of what is
characteristic for an employment relationship has been derived from case
law. Most notably, the status agreed to by the parties themselves is
indicative but not decisive. The Danish approach is functional, based on
the social realities of the relationship between the parties.34
First, and often most prevalent, is the degree of the right of the
employer to make decisions in the contractual relationship and the duty
of the employee to follow such directives. In platform work, this would
concern instructions on how the work is to be performed, a right to
control the work, and a duty of the service provider to report to the
platform. Second important feature is the economic arrangement between
the parties, in particular how the remuneration is calculated and paid. It
is characteristic of an employment relationship that the employee
receives set remunerations calculated on the basis of time or results. The
employee typically does not bear the risk of the success of the work, and
likewise does not benefit from surplus. An employee typically does not
bear the costs related to the work, such as materials. It is characteristic of
self-employment to pay for an office/workshop, materials, tools, and to
pay sales tax, etc. Third, a duty to perform the work personally is typical
of an employment relationship. Fourth, the degree of connectedness
between the parties, such as the length of the work, the intensity of the
contractual relationship, and whether the contract supplies the main or
supplementing income for the worker. Fifth, the social perception of the
relationship, i.e. whether the worker in relation to the social perception
and to his occupational position is similar to an ordinary employee.35
None of these elements are decisive in themselves, and the Court will
30 Ole Hasselbalch, ’Arbejdsretten’, III, 1.2.2.,
Accessed 20 August 2018.
31 Jens Kristiansen, ‘The concept of employee: the position in Denmark’, in Bernd
Waas and Guus Heerma von Voss (eds.), Restatement of Labour Law in Europe, Volume I,
The Concept of Employee, Hart 2017.
32 Hasselbalch (n 30) III, 1.
33 Kristiansen (n 31), 135, Statutory Act no 240 of 17/03/2010 on a Written Statement,
s 1(2).
34 Hasselbalch (n 30) III, 1.
35 Hasselbalch (n 30) III, 1.
NJCL 2018/1
125
carry out the assessment based on all the circumstances of each specific
case.
The notion of employee is not constant, and legislation as well as
case law take into consideration aspects outside the relationship between
the employer and the employee. This is the case for legislation with an
underlying health or social security purpose,36, statutory acts based on
EU-directives which must be applied in conformity with the underlying
EU directive and CJEU case law,37 and legislation counteracting risks of
abuse.38
So far, no case law has emerged in Danish labour law specifically
assessing the employment status of service providers under digital
platforms. However, it is very likely that, depending on the specific setup
of the individual platform business, the degree of influence on setting
the prices, the degree of instructions as to how to carry out the work or
on personal conduct when providing services, the degree of managerial
powers delegated to the platform provider or its algorithm, the degree of
elements of the algorithm influencing the economic foundation for the
earnings, would render that the relationship could be assessed more
characteristic of employment than of self-employed.
Even if the classification of a person under Danish law would be as
self-employed, this cannot exclude a person from being classified as a
worker under EU law, and as such being eligible to enjoy rights provided
in EU directives.39
In Lawrie-Blum the Court adopted a definition, whereby:
‘The essential feature of an employment relationship [ ] is that for a certain
period of time a person performs services for and under the direction of another person
in return for which he receives remuneration’40
A key feature of being classified as employee in EU law is the
element of subordination to the employer’s directions and the element of
performing work for an external entity. A self-employed person under
EU-law can choose the type and amount of work and tasks to be
36 E.g. the Holiday Act, Ferieloven, the Act on Occupational Injury Insurance,
Arbejdsskadesikringsloven, the Act on Sick Leave Benefits, Sygedagpengeloven, the Act on
Unemployment Insurance Benefits, Arbejdsløshedsforsikringsloven, and the Act on
Supplementing Pensions Payments, ATP-loven, Hasselbalch (n 30) III, 1.2.1., 1), and the
Act on Occupational Health and Safety, Arbejdsmiljøloven, Hasselbalch (n 30) III, 1.2.1.,
2).
37 E.g. the Act on a Written Statement, Ansættelsesbevisloven, the Act on Equal Treatment
of Men and Women in regards to Access to Employment, Ligebehandlingsloven, and the
Act on Non-Discrimination in Employment, Forskelsbehandlingsloven, Hasselbalch (n 30)
III, 1.2.1., 2); Ole Hasselbalch, ‘Lønmodtagerbegrebet i EU-retlig kontekst’, (2018) EU-
ret og menneskeret, 25, 3.
38 E.g. the Act on Bankruptcy, Konkursloven, and the Act on an Employees’
Remuneration Guarantee Fund, Lov om lønmodtagernes garantifond.
39 On the concept of employee in EU law and Danish law, see Hasselbalch (n 37).
40 Case C-66/85 Lawrie-Blum [1985, para 17.
PLATFORM WORK AND THE DANISH MODEL 126
executed and performs work via the organisational entity of his own
business. The case law of the CJEU additionally suggests that self-
employed persons can lose their qualification as independent
undertakings if the independence of a self-employed person is merely
notional, thereby disguising an employment relationship, the CJEU in
Allonby.41 Likewise, if undertakings operate as auxiliary organs forming an
integral part of the principal’s undertaking, as promoted in Confederación
Española.42 In FNV43 the Court provided that self-employed persons
could be ‘fake self-employed’ in that they did not enjoy the freedom
typical of self-employed status under each specific contract, see further
section 5.1.2.
In Uber Systems Spain the Court considered Uber to primarily be a
transport service because of the decisive influence over the conditions
for transportation and the conduct of the drivers.44 The Court did not
take a specific stance on the employment status of the Uber-drivers, but
the decisive influences strongly indicate a status as employees.45 The
Court reiterated its view on Uber as primarily being a transport service
and, accordingly, not an ‘information society service’ in the later Uber
France SAS case.46
4. EMPLOYEE - COLLECTIVE BARGAINING ASPECTS
Collective agreements are concluded between a collective entity
representing employees and an employers’ association or a single
employer. The status of service providers via platforms as employees or
self-employed with regard to collective agreements presents additional
legal thresholds, namely the lawfulness of collective action, the
41 Case C-256/01 Allonby [2004], para 71.
42 Case C-217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006], para
43 vis-à-vis agents and their principal.
43 Case C-413/13 FNV KIEM [2014].
44 Case C-434/15 Uber Systems Spain SL [2017], para 39.
45 Other jurisdictions have assessed the status of Uber-drivers. In the UK, Aslam and
others v Uber B.V. and others, the Employment Tribunal found an Uber driver to be a
‘worker’ for the purpose of the Employment Rights Act 1996, Employment Tribunals
28.10.2016, 2202551/2015 upheld by Employment Appeal Tribunal 10.11.2017, Appeal
No. UKEAT/0056/17/DA. Conversely, the Australian Fair Work Commission on 21
December 2017 concluded that an Uber driver was not an employee and not protected
against unfair dismissal.
46 Case C-320/16 Uber France SAS [2018], para 22. Similarly, the status of Deliveroo
drivers/food deliveries in other jurisdictions. The UK Central Arbitration Committee
did not consider Deliveroo-drivers to be employees, cf TUR 1/985(2016), Independent
Workers’ Union of Great Britain (IWGB) v RooFoods Limited T/A Deliveroo, and similarly in
Italy regarding a similar food delivery service, Foodora, cf Tribunale Ordinario di Torino,
Sentenza n. 778/2018 pubbl. il. 07/05/2018 RG n. 4764/2017; The Spanish Juzgado
de lo Social in Valencia found Deliveroo-drivers to be workers, cf SENTENCIA del
juzgado nº 6 de Valencia nº 244/2018 de 1 de junio.
NJCL 2018/1
127
jurisdiction of the Labour Court, and the lawfulness of agreements
concerning remuneration under competition law.
4.1. COMPETITION LAW AND PLATFORM WORK
The purpose of bargaining pay and working conditions collectively
is, inter alia, to restrict the internal competition for jobs between
employees, which historically has led to the ‘race to the bottom’.
Collective agreements in reality restrict competition. In a narrow
sense by essentially fixating the labour costs of the employer, as well as
indirectly by appointing a specific financial institution as the sole
provider of e.g. compulsory occupational pensions.47
In Denmark, section 3 of the Statutory Act on Competition,
Konkurrenceloven48 explicitly provides that the act does not apply to salaries
and working conditions. This exemption has been in force since the first
Act on Price Agreements in 193649 was continued in the Act on
Monopolies in 1955 amendments50 and is now an essential feature of the
Competition Act. According to the preparatory works, collective
agreements are not acts of unilateral price fixing, but are the result of
negotiations between two opposing parties pursuing specific interests,
where the element of negotiation ensures that the provisions are well-
balanced.51 The social partners pursue social rather than competitive
interests.52 The mechanism of collective bargaining ensures societal
considerations as well as counteracts abuse of power by the social
partners.53 Although collective action is invoked with the purpose of
applying pressure on the opposite party,54 the mitigating function of the
Public Conciliator and the legal principles developed in case law ensure
that such actions remain proportional to the aim of the conflict.55
The legal test for exemption under section 3 is qualitative. If a
collective agreement does not regulate salaries and working conditions,
the agreement is not exempt from competition law.56
47 Ruth Nielsen, 'Samspillet mellem konkurrenceretten og arbejdsretten', in Jens Hartig
Danielsen and others (eds.), Festskrift Til Jens Fejø (DJØF 2012) 324.
48 Statutory Act no 155 of 1/3/2018 on Competition,
49 Statutory Act on Price Agreements, Prisaftaleloven, Rigsdagstidende 1936-37, 4948.
50 Statutory Act on Supervision regarding Monopoly and Obstacles to Competition,
section 2(2), Lov om tilsyn med monopol og konkurrencebegrænsninger, no 102 of 31/3/1955,
and report of the Ministry of Industry, ‘Fra monopollov til konkurrencelov’,
Betænkning 1075/1986, 35 and 52.
51 Rigsdagstidende 1936-37, 4948
52 Hasselbalch (n 30) XXI, 2.2.
53 Hasselbalch (n 30) XXI, 2.2
54 Collective action can in Denmark lawfully be invoked by the workers’ (strikes and
blockades) as well as by the employers’ (lockout and boycott) representatives.
55 Hasselbalch (n 30) XXI, 2.2
56 Hasselbalch (n 30) XXI, 2.2
PLATFORM WORK AND THE DANISH MODEL 128
At the EU level, collective agreements are not expressly exempt
from the scope of Article 101(1) of the Treaty of the Functioning of the
EU (TFEU). The social aim of collective agreements can however
outweigh the aim of unrestricted competition, as will be elaborated
further below in 4.1.2.
4.1.1. DANISH COMPETITION AUTHORITIES – CASE LAW ON ATYPICAL
EMPLOYEES AND COLLECTIVE AGREEMENTS
The case law of the Danish competition authorities illustrates that it is
possible for collective agreements to fulfil the conditions in section 3
even for self-employed persons, when entering into contracts of business
on similar working conditions as regular employees. The term used is
indicative but not decisive, and the specifics of the circumstances must
be compared to the characteristics of those performing services in
permanent employment and to those genuinely self-employed.
Determining factors are that self-employed workers perform services
under the same terms as employees, at the same entity and under the
instruction of the employer whilst performing the tasks. Likewise, it is
taken into consideration whether the agreement provides pay and
working conditions typical for the industry, and whether mandatory
social security payments were made.
This was the case in a ruling in 199357 where the Competition
Appeals Tribunal took into account that the use of the term ‘freelance’
indicated that the agreement did not concern ‘pay and working
conditions’, the freelance photographers had registered businesses with a
duty to pay sales taxes, and the relationship with the media houses with
regard to power of instruction and loyalty obligations did not differ
significantly from what is often the case in commercial relations. As
such, some persons covered by the agreement would in fact be genuinely
self-employed, and for these persons the price-list was a violation of the
Competition Act.
Likewise, in a ruling concerning freelancers from 1999,58 where a
‘Guideline’ for pay and working terms was assessed, the term ‘freelance’
was used for any employment contract of less than 6 months, including
casual contracts. As the Guideline in reality regulated prices for self-
employed, the Tribunal stated that the proper mechanism would be to
conclude collective agreements. However, freelance journalists providing
services on casual contracts cannot be classified as self-employed solely
because the assignments are not permanent. As the services of casual
freelance journalists had the same characteristics as the services of the
permanent employees at the same media houses, the Guideline was
similar to collective agreement provisions concerning casual work, and
was exempt from the Competition Act.
57 Section 70-76 of Competition Appeals Tribunal Ruling of 10/9/2003 (n 60).
58 Competition Appeals Tribunal, ruling of 7 April 1999, j. no. 97-218.349.
NJCL 2018/1
129
In 2003,59 the Tribunal assessed the lawfulness of a notice of
collective action. The collective action was in support of a claim for a
collective agreement providing standard payments for freelance
journalists. The dispute concerned whether the notice, using the term
freelancers, would cover also self-employed persons and constitute a
breach of the Competition Act. The union argued that the term
‘freelancer’ covered two groups of workers providing services on casual
contracts but not genuinely self-employed freelancers. The Tribunal
returned the case for renewed deliberation without assessing the
substance of the case as the notice could unintentionally include
genuinely self-employed persons. The case was later withdrawn.60
In 2005,61 the Tribunal inter alia62 ruled on fixed prices for
veterinary services. A collective agreement provided set hourly rates for
meat quality controls63 for employed as well as for substitute
veterinarians. The substitute veterinarians providing the services could
be employed elsewhere and could also be self-employed. The distinction
between salaries and working conditions on the one side, and terms for
conducting trade between businesses on the other side, should be carried
out comparing the circumstances of the situation to the characteristics of
either employment status or self-employed services. The starting point is
whether one person is under the instruction of the other party, including
a right to dismiss. A duty to pay mandatory contributions to social
security measures, such as social pensions, sick leave payments and
occupational injury insurance, is also characteristic of employment status.
The Tribunal stated that the veterinarians were under the instruction of
the public authority while providing the services, that payments were
paid out as ordinary remuneration, and that the veterinarians accrued
holidays with pay and social security contributions. The Tribunal also
noted that the substitutes performed the work as a supplement to their
main occupation. It was significant that during the contracts, the
substitute veterinarians provided services under the same working
conditions as permanently employed veterinarians. The Tribunal
regarded the veterinarians as employees during the substitute contracts,
59 Competition Appeals Tribunal Ruling of 10/9 2003, J.nr. 02-85.078, j.nr. 02-85.080
og j.nr. 02-85.081 accessed 20 August 2018.
60 Press release 25/2/2004:
accessed 20 August 2018.
61 Ruling of 26 October 2005, j.nr. 3/1120-0301-0374/SEK/LOB,
accessed 20 August 2018.
62 Other questions were assessed.
63 Ruling of 2005 (n 62), para 29-34 and 65-77.
PLATFORM WORK AND THE DANISH MODEL 130
regardless of their main occupation as self-employed, and the agreements
were exempt from the Competition Act.
In particular, the choice to compare the circumstances under each
contract was innovative and relevant, and an approach that also the
CJEU has taken, see 4.1.2.
4.1.2. CASE LAW OF THE COURT OF THE JUSTICE OF THE EU
Article 101(1) in the Treaty of the Functioning of the EU (TFEU)
prohibits all agreements which may prevent, restrict or distort
competition within the internal market. Agreements determining
minimum prices are mentioned as the first example of ‘blacklisted’
measures in Article 101(1) TFEU, as they ‘directly or indirectly fix purchase or
selling prices or any other trading conditions’. Such agreements, fixing minimum
prices for an industry, have, in the case law of the CJEU, consistently
been considered to entail a significant restriction on competition.64 CJEU
case law has, however, exempted agreements regarding salaries and
working conditions, which corresponds with the approach in Danish
competition law.65
In the case of Albany, the Court assessed whether collective
agreements establishing mandatory and exclusive pension funds
constituted an unlawful restriction of competition. Advocate General
Jacobs argued that collective agreements are, by their very nature,
restrictive of competition, since generally employees cannot offer to
work for wages below the agreed minimum.66 In reality, collective
agreements probably do not have a notable restrictive effect on the
competition between employers.67 The CJEU found it beyond question
that certain restrictions of competition are inherent in collective
agreements. However, as collective agreements pursue social policy
objectives of improving living and working conditions and provide social
protection,68 they were not a violation of the provisions in the Treaty.
The CJEU has on this account accepted that mandatory pensions,69
social security schemes with regard to occupational injuries,70 and
insurance with regards to sickness leave,71 are outside the scope of
64 FNV KIEM (n 44) Opinion AG Wahl, paras 35 -36 referring to case C-243/83
Binion, para 44.
65 Ruth Nielsen, ‘Kollektive overenskomster og konkurrenceretten’, (2001) Ufr
2001B.27.
66 Case C-67/96 Albany [1999] Opinion AG Jacobs, para 178.
67 ibid, para 182 in which he points to the labour costs being only one of many
production cost factors.
68 Case C-67/96 Albany [1999], para 59.
69 C-67/96 (n 69); joined Cases C-115/97 and C-117/97Brentjens’ Handelsonderneming
BV [1999]: Case C-2019/97 Drijvende Bokken [1999]; joined Cases C-180/98 and C-
184/98 Stichting Pensioenfonds Medische Specialisten [2000].
70 Case C-218/00 Cisal [2002].
71 Case C-222/98 Woude [2000].
NJCL 2018/1
131
Article 101(1).72 The Court takes the view that the social objectives
would be seriously undermined if management and labour were subject
to Article (85(1) (now Article 101(1)) of the Treaty when seeking jointly
to adopt measures to improve conditions of work and employment,73
and that agreements concluded in the context of collective negotiations
between management and labour in pursuit of such objectives must be
regarded as falling outside the scope of Article 85(1) of the Treaty.74
However, the exemption is not without limits. In 2004, the
European Commission pursued the Belgian Architects’ Association for
breach of Article 101(1) TFEU by adopting a scale of set fees for
architects.75 According to the Commission, architects are undertakings
because they provide services on a long-term basis and for
remuneration.76 As a result the fee scale was an independent act by the
association of a prescriptive character77 with the object of restricting
competition, and the association was imposed a fine of 100.000 Euros.78
In a more recent CJEU ruling, FNV from 2014, the Court assessed
the line between employed or self-employed with regard to self-
employed Dutch musicians. A Dutch association for self-employed
musicians, FNV, concluded a collective agreement with a Dutch
orchestra’s association, providing fixed minimum fees for self-employed
musicians when providing services as substitutes in orchestras.79 The
CJEU reiterated the arguments of Albany, Brentjens and Drijvende Bokken
that self-employed service providers are – in principle – undertakings
subject to Article 101(1). Self-employed persons offer their services for
remuneration on the market and in relation to the principal perform
their activities as independent economic operators.80
If an association acts in the name of and on behalf of self-
employed service providers, the association does not act as a social
partner, but as an association of undertakings.81 Such agreements would
therefore not be the result of collective bargaining between employers
and employees and would not be exempt from the scope of Article 101.
The Treaty encourages dialogue between management and labour in
72 The Danish Labour Court in ruling of 17 November 2000, AR 1996.225, aligned its
case law with the rulings of the ECJ in Albany, Brentjens and Drijvende Bokken, Nielsen (n
66) 31.
73 C-115/97 (n 70) para 56.
74 ibid para 57.
75 Orde van Architecten (Commission Decision of 24 June 2004), para 1.
76 ibid para 38.
77 ibid para 78.
78 ibid para 138.
79 C-413/13 (n 44) para 6. See also Eva Grosheide and Mark Barenberg, ‘Minimum
Fees for the Self-Employed: A European Response to the Uber-ized Economy’, (2016)
22(2) CJEL 194.
80 C-413/13 (n 44) para 27.
81 ibid para 28-30.
PLATFORM WORK AND THE DANISH MODEL 132
order to improve working conditions; the Treaty does not however
encourage dialogue between self-employed service providers.82 If an
agreement is concluded on behalf of self-employed service providers, it
is not a result of negotiations between employers and employees and is
not exempt from the scope of Article 101 TFEU. If, on the other hand,
the self-employed service providers were in fact ‘false self-employed’,
that is, if they are service providers in a situation comparable to that of
employees,83 agreements concluded on their behalf would be regarded as
a result of negotiations between employers and employees.
It is not always easy to establish the status of self-employed persons
as ‘undertakings’.84 A service provider can lose his status of ‘self-
employed’ if he does not determine his own conduct on the market, is
entirely dependent on his principal, does not bear any of the financial or
commercial risks, and thus operates as an auxiliary within the principal’s
undertaking.85 On the other hand, an essential feature of being an
‘employee’ is that for a certain period of time one person performs
services of and under the direction of another person in return for which
he receives remuneration.86 According to Advocate General Wahl, the
provisions of the TFEU Treaty on ‘employment’ (Articles 145 to 150
TFEU) and ‘social policy’ (Articles 151 to 161 TFEU) all centre on the
notion of the ‘worker’.87 The decisive factor is whether the person acts
under the direction of an employer, in particular with regard to his
freedom to choose the time, place and content of his work, does not
share the employer’s commercial risks, and, for the duration of that
relationship, forms an integral part of that employer’s undertaking,
forming an economic unit.88 The Court stated that in order for the
substitute musicians to be classified, not as ‘workers’ but as genuine
‘undertakings’, the national courts must ascertain whether the
circumstances are similar to characteristics of ‘workers’ under EU law.
Particular emphasis should be put on whether the relationship with the
orchestra would not be one of subordination under the duration of the
contract, e.g. whether the substitutes enjoy more independence and
flexibility than employees performing the same activity, when comparing
82 ibid para 29, with reference to joined cases C-180/98 and C-184/98, Pavlov and others,
para 69.
83 ibid, para 31.
84 ibid, para 32.
85 ibid, para 33
86 ibid, para 34, with reference to recent cases of C-46/12 N, para 40, and C-270/13
Haralambidis, para 28.
87 C-413/13 (n 44) paras 36-40.
88 ibid, para 36, referring to cases C-256/01, Allonby, para 72; C-3/87, Agegate, para 36;
and C-22/98, Becu and others, para 26.
NJCL 2018/1
133
the determination of working hours, the place and manner of performing
the tasks assigned, i.e. the rehearsals and concerts.89
Notably, the Court used the criteria established in case law for
losing status as an ‘undertaking’, i.e. not having the independence and
flexibility during the contract’s characteristic of self-employed. The
Court found that during the performances of the contracts, the self-
employed musicians were in fact in a comparable situation to the
employees, as the self-employed musicians did not enjoy more freedom
during the contracts compared to the employed musicians, but would be
under instructions as to the time, place and manner of performing music
alongside the employed musicians. The Court introduced the notion
‘false independent’ for self-employed persons providing services in a
situation comparable to ‘workers’.
It could be questioned if the Court, by introducing the concept of
‘false self-employed’, meant to introduce a new category or a third
category in between the status as employee or self-employed
undertaking. Similarly, whether the Court intended to prevent abusive
misclassifications by promoting a realist assessment of the binary divide
as seen in previous cases.90 The realist mode of interpretation prescribed
puts much emphasis on determining whether the service provider is a
subordinate of the employer. In the case of FNV this would be
sufficiently fulfilled by comparing the independence or subordination of
the substitutes whilst performing one single contract of service as a
musician. Whether or not the substitutes were genuinely independent in
other contracts or in between orchestra contracts was not assessed and
could be viewed as having no relevance to the assessment of whether
they had lost their full status as an ‘undertaking’ in relation to this one
type of contract, and as such on the classification of the provisions in the
collective agreement applying to the substitutes.
From the case law of Denmark and the CJEU, collective
agreements could be accepted for persons providing services via digital
platforms as not being in violation of competition law, as the
relationship during the performance of the contracts would be viewed as
most similar to employment, which is the approach of Danish law, or
most dissimilar to genuine self-employment, which is the most recent
approach of the CJEU.
The term used to denote the service provider or the contractual
basis as casual is indicative but not decisive.
Even unilaterally issued guidelines and recommendations that are
not the result of a collective bargaining process could be exempt from
89 C-413/13 (n 44), para 37. The national Court of Appeals of The Hague determined,
that the self-employed substitutes were in fact ‘false self-employed’ and that the
stipulation of minimum fees fell ‘by reason of its nature and purpose’ outside the scope
of Article 101(1) TFEU, Grosheide and Barenberg (n 80), 223.
90 Grosheide and Barenberg (n 80) 224.
PLATFORM WORK AND THE DANISH MODEL 134
the Danish Competition Act. Insofar as the content reflects negotiated
provisions in agreements and insofar as the working conditions are
exactly the same as those covered by the existing agreements, such
unilateral recommendations would not constitute a risk of abuse or
violations of Danish competition law. The status under EU law of
unilateral recommendations is more uncertain.
EU competition law has room for allowing collective agreements to
be negotiated for workers in atypical employment relationships as long as
the collective agreement pursues a social purpose and has a collective
entity representing employees on the employee side.
Danish competition law as well as recent EU case law on Article
101(1) TFEU allow the assessment of the classification of the
relationship to be performed on one single contract of work,
emphasising the degree of flexibility and independence during the
contract compared to employed persons performing the same work.
In this sense, it would be likely to find examples of service
providers via platforms who provide services on limited contracts, and
where for the duration of the contract the service provider would be in a
situation of subordination in particular regarding the time, place and
manner of work, as soon as the contract terms have been accepted by
the self-employed person. This could be the case when a platform
worker has accepted an offer of e.g. cleaning, and the cleaning must be
performed at the time, place and in a manner adhering to training or
directions set out by the platform provider. Some platform workers
could also very likely – as highlighted in the FNV case – be viewed as
not taking a commercial risk, but instead becoming an auxiliary to the
principal, an integral part of the platform’s undertaking.
4.2. LAWFULNESS OF STRIKE AND SECONDARY ACTION
The status of the service providers as employees or self-employed
also influences the lawfulness of collective action under Danish
collective labour law. In Denmark, a social partner can demand that an
employer enters into a collective agreement, and this can be supported
by way of collective action. One of the prerequisites for lawful collective
action91 is that the social partner has a reasonable interest in concluding
an agreement with the specific employer for the specific type of work.
This entails that the entity has employees who perform the type of work
covered by the agreement or by the social partner demanding the
agreement.92
In 2007,93 the Labour Court assessed the lawfulness of collective
action in support of a collective agreement for freelance journalists. The
91 Hasselbalch (n 30) XXI, 2.4., Labour Law in Denmark (n 9) 257-263 and
Lønmodtagerbegrebet i EU-retlig kontekst (n 37).
92 Hasselbalch (n 30), XXI, 2.4.
93 Labour Court ruling of 24 august 2007, A2007.293.
NJCL 2018/1
135
dispute hinged on the employment status of freelance journalists
providing services to the employer. The freelance journalists performed
work of the same character, under the same working conditions and with
the same remuneration as permanently employed journalists. The media
houses receiving the services withheld taxes on behalf of the freelancers,
some freelance assignments were partly permanent and editors could
adjust the materials delivered by freelancers. The Labour Court, referring
to the ruling of 1999 of the Competition Tribunal,94 stated that
freelancers are not considered self-employed persons solely based on the
services being provided as individual assignments. When the service is
provided on terms that are more characteristic of employees than of self-
employed persons, this is a basis for negotiating pay and working
conditions for the freelance journalists. The freelance journalists
performing casual work thus constituted an interest of the trade union to
conclude an agreement for journalists, including freelance journalists.
Additionally, the Labour Court stated that secondary action in support of
a main conflict for freelance workers could be lawful, and that members
of the same trade union could refuse to perform work targeted by the
main conflict, so-called ‘strike work’, also when the subjects of the
conflict were freelance journalists. Finally, the Labour Court approved a
right to engage in collective action for the freelancers performing work
on employee-like working terms.
The approach of the Labour Court resembles the approach of the
CJEU in the FNV case, and the Competition Appeals Tribunal in the
case regarding substitute veterinarians.
It would be in line with labour law principles to view persons
providing services via digital platforms as employees in the context of
providing a basis for an interest to engage in conflict against the platform
provider. Likewise, it would be in line with principles of labour law to
allow for support of the main conflict with secondary actions, and to
allow for employees organised in the same trade union to refuse to carry
out work targeted by the action, as well as for (organised) service
providers to engage in collective action themselves.
4.3. LAWFULNESS OF BLOCKADE
Lawful collective action against an employer can also be invoked in
the form of a blockade. If the blockade is lawful according to collective
labour law principles, the members of the negotiating trade union are
obliged to follow such actions. This is the case for strikes as well as for
blockades, even when the lawfulness under the Competition Act is not
yet determined.
94 Above 4.1.1.
PLATFORM WORK AND THE DANISH MODEL 136
In a Supreme Court ruling of 2001,95 a freelance photographer was
excluded from the Journalists Trade Union. The union produced new
price lists for freelance press photographers. The media houses refused
to pay the new prices. The union initiated a blockade, by which
photographers were not allowed to deliver materials to media houses
until the media houses consented to pay the new prices. One freelance
photographer continued to deliver photos to a media house targeted by
the blockade. As a consequence, the member was excluded. The Court
found that the decision to impose a blockade on deliveries was a
collective action in support of payments for services. It was of no effect
on the validity and the lawfulness of the action under labour law that the
action in support of the list could be rendered unlawful under the
Competition Act. This did not give the member reason to believe that
his deliveries were exempt from the blockade. The exclusion was upheld.
The mechanism of imposing a blockade against an employer also
binds freelancers that are members of the same trade union. The duty
not to supply services rests on members performing work as employees
as well as member performing work as self-employed.
Collective agreements supported by collective action can only be
concluded on behalf of employees. Service providers on digital platforms
could, however, constitute a legal basis for collective action, as long as
the service providers are not genuinely independent businesses but work
on terms similar to those of employees.
Likewise, the mechanism of industrial conflict can be invoked
against a platform company using the services of persons that perform
work as freelancers but are not genuinely independent businesses. If the
main conflict is lawful, secondary conflicts could be invoked, and
members of the same unions involved in the conflicts could refuse to
perform strike-work. Likewise, the freelancers themselves are expected
to adhere to a blockade against a company, e.g. a platform company.
4.4. SCOPE OF A NEGOTIATED AGREEMENT
When the social partners have negotiated an agreement applicable
to employees at an entity, the question arises regarding who at the entity
is covered by the agreement. The agreement typically covers only work
performed by employees.96 The Labour Court takes a functional rather
than a formalistic approach when assessing whether persons performing
work are employees or self-employed.
95 Supreme Court ruling of 17 October 2001, Ufr 2002.82H (first instance Eastern High
Court ruling ØLD of 15 September 2000).
96 Kristiansen (n 14) 237.
NJCL 2018/1
137
4.4.1. JURISDICTION OF THE LABOUR COURT
The issue surfaced as early as 192297 before the Labour Court (then
Permanent industrial Tribunal). The dispute concerned the uncertain
employment status of milk-distributors, as their remunerations were
calculated as payments per litre (milk, cream and butter) and not per
hour. The Labour Court did not assume that the milk-distributors were
self-employed persons, despite the remuneration scheme. The milk-
distributors were covered by the agreement and the complaint could be
assessed by the Court.
4.4.2. WHO IS COVERED
In 2010 an Industrial Arbitration ruling98 assessed which of the
freelance journalists working at the entity were covered by the collective
agreement for freelancers, and who were on the other hand genuinely
self-employed and not covered by the agreement. In his assessment, the
arbitrator set a high threshold for persons being assessed as a freelancer
working on employment terms. The presumption was that collective
agreements cover only employees in a traditional sense. As neither the
title of the agreement, nor specific elements during the negotiation
process indicated otherwise, the trade union could not establish evidence
that the parties had agreed to extend the agreement to freelance
journalists working as self-employed, nor to freelance journalists working
as atypical self-employed.
The arbitrator assessed all the specific circumstances. The decisive
element was whether the service providers had gained status as genuinely
self-employed, i.e. registered businesses, paying sales taxes, performing
and invoicing work under the auspices of the business, advertised their
services as a business, used accountants, had several customers, used
business contacts, worked from home or from a studio. The amount of
work performed for the media company was not decisive.
For the applicability of an agreement it is not sufficient to assess
the relationship between the employer and the service provider,
including the similarities to employment. The assessment also takes into
consideration the factual business setup of the self-employed person.
For platform work, this assessment would be similarly carried out.
The amount of work performed by the individual service providers is
not decisive, whereas the specifics of the relationship as well as the
business setup of the service providers are. Some service providers
perform work from an organised business setup, indicative of status as
genuinely self-employed and would not be covered by the agreement.
Other service providers at the same platform, on the same contracts and
97 Ruling of the Permanent Industrial Tribunal, AR 642, of 18/12 1922.
98 Industrial Arbitration Ruling of 5 April 2010, Case FV 2009.0015.
PLATFORM WORK AND THE DANISH MODEL 138
performing the same work would have less organised business setups – if
any, and would thus be covered by the agreement.
5. FIRST COLLECTIVE AGREEMENT FOR PLATFORM WORK
In April 2018, 3F and the digital platform Hilfr concluded a
collective agreement for cleaners performing cleaning services via the
Hilfr app.
The agreement is valid for 1 year from August 2018 with a view to
be renegotiated in 2019 as a 3-year agreement. The parties to the
agreement state that this is a first attempt to connect digital platforms
with the Danish model. The purpose is inter alia to gain experiences from
the first agreement with a view to establish more permanent agreements
in the future. The agreement is innovative.
The agreement applies to ‘employed cleaning assistants’, but not to
‘freelancers’ otherwise associated with the platform. The agreement
assigns the cleaners a default status as freelancers for the first 100 hours
of services. When a cleaner has performed 100 hours of service, the
status automatically changes to one of ‘employee’. From this point on,
the agreement starts to apply to the service provider (now employee).
The agreement does not preclude the cleaner from choosing ‘employee’-
status before having provided 100 hours of services, or to retain his/her
‘freelancer’-status after having provided 100 hours of services. This is a
major novelty for collective agreements. The agreement provides the
workers themselves with an unrestricted choice of being covered or not
being covered by the agreement. Another novelty is that the agreement
provides the worker with an unrestricted choice of status in the
relationship with the platform provider, choosing his/her own status as
either employee or freelancer. This is not in line with the principles for
determining status as employee developed in Danish labour and
employment law.
The platform can refuse a request for ‘employee’-status from
cleaners who have worked less than 100 hours if providing a fair and
objective reason for such refusal. The standard of fair and objective
reasons is well-established in Danish labour law and refers to reasons
concerned with the conduct of business.99
Employed cleaning assistants are entitled to an hourly minimum
pay corresponding to the sectoral agreement. The employee is entitled to
charge higher hourly rates - but not lower. The agreement grants the
employee several novel rights: partial payment in case of late cancellation
of accepted cleaning jobs, pension contributions paid by Hilfr, holidays
99 Persons covered by the General Agreement between the Confederation of Danish
Trade Unions and the Confederation of Danish Employers are protected by a standard
of reasonableness in dismissals – i.e. a fair and objective reason for dismissal, cf. section
4(2). Likewise, a choice not to employ an applicant can be viewed as restricted by the
same standard, see e.g. Hasselbalch (n 9).
NJCL 2018/1
139
with pay, sick leave pay, protection against removal of profile (or
otherwise making the profile inaccessible) without due cause and only
after notice in writing, and an explicit right to daily breaks, and daily and
weekly rest periods.
The parties agree not to be bound by the provisions in the
agreement after the expiry or termination of the agreement. This is
likewise novel in Danish collective labour law, as it is customary that the
employer continues to be obliged to apply the provisions in the
agreement until a new agreement has been concluded by the same
parties, or until the parties have endured a collective dispute of a certain
length and severity.100
6. DISCUSSION
6.1. FIRST ATTEMPT FOR AGREEMENT FOR PLATFORM WORKERS.
Choosing to negotiate an agreement specific to platform work
builds on the understanding that the service providers would not already
be covered by existing agreements. The less innovative and more
traditional approach would have been to assess the status of the cleaners
according to the normal concept of employee in Danish labour law and
the case law of the Labour Court and industrial arbitration, and assess
whether the cleaners could in fact be covered by existing collective
agreements for cleaners. A strict and more traditional interpretation of
the scope for freelance or non-typical employees would be in line with
the arbitrator’s assessment of the application of the journalists’
agreement in 2010, above 4.4.2. However, special emphasis was made on
the business setup of the self-employed freelancers. In this the cleaners
at Hilfr would perhaps differ. The trade union adhered to the notion that
a special agreement is required.
Second, the agreement aims at solving a number of issues by
adapting certain provisions of working conditions to persons performing
work via digital platforms. With regard to these substantial provisions,
the agreement constitutes a significant step forward regarding job
security, wage standards and social security measures for persons
performing work via platforms. Classifying the persons as employees and
providing the employees with typical workers’ rights and remunerations
constitutes a solid step forward and indeed a solution in part.
Third, giving the employees an unrestricted choice to opt-in or opt-
out of the collective agreement is in conflict with the basic elements of
collective labour law.
Allowing individual derogations of an entire agreement goes against
a fundamental feature of collective agreements on the part of the
workers’ association – to be binding by nature thereby securing the rights
of their members. Collective agreements in Denmark have mandatory
100 General Agreement s 7(2).
PLATFORM WORK AND THE DANISH MODEL 140
effect; that is, employers and employees bound by a collective agreement
are not allowed to reach individual agreements in conflict with the
collectively negotiated terms. This is also referred to as the inderogability
of collective agreements.101 Inderogability prevents individual
derogations from, for instance, working time provisions in an agreement,
which is in the strong interest of the employee association inter alia
because of the imbalance in the bargaining power of the individual
employee towards the employer – an imbalance brought back into
balance by the collectivity in the collective bargaining.102
The general theoretical approach of asymmetry in bargaining power
of the employer and the employee also presents questions as to the
element of free choice. Putting the worker in a position to individually
choose to opt-in or opt-out of the collectively bargained provisions
could be viewed with some scepticism. Traditionally, such options are
frowned upon, as they allow the employer to exercise coercion on the
worker, to opt-out of the binding collective provisions and instead
negotiate individually, in a setting of implied stronger bargaining power
by the employer. This sincerely questions the element of ‘free choice’ of
the worker agreeing to provisions negotiated individually and in the
interest of the employer. This debate has surfaced in Denmark in recent
times. In 2002, the Part-time Act, Deltidsloven,103 was amended to provide
a legal basis for the employer and employee to agree to a part-time
working arrangement, allowing such individual agreement to overrule
any limitations in collective agreements. The amendment was intensely
debated in the parliament Labour Market Committee,
Arbejdsmarkedsudvalget.104 The notion of ‘voluntarily’ agreeing to part-time
work was heavily criticised. The critics stated that the option to
individually agree on terms counter to terms collectively negotiated
‘removes the protection of the worker from the collective agreement,
and the employer becomes the stronger party’. The critics also
101 Jonas Malmberg, ‘The Collective Agreement as an Instrument for Regulation of
Wages and Employment Conditions’, DIVA (Stockholm Institute for Scandinavian
Law 2002) 199 accessed
20 August 2018; Lord Wedderburn, 'Inderogability, Collective Agreements, and
Community Law', 1992 ILJ 21 4, 245.
102 See Arbitration tribunal decision of 19 November 1998, where the chairperson ruled
that the members of the employee organization could not derogate from the provisions
on working time in the applicable collective agreement due to the protective incentive
of the provisions. The collective interest of the employee organization could even limit
the individual members’ freedom of action for the same reason.
103 Stautory Act no 815 af 26/9/2002 on Part-time Work.
104 52 consultation reports were received by the committee, 79 deputations visited the
committee, and the committee asked the Minister of Employment 210 questions during
the deliberations cf Reports of the parliament Labour Market Committee, ‘Betænkning
af den 8/5/2002 over Forslag til lov om ændring af lov om gennemførelse af
deltidsdirektivet, Betænkning af 25/5/2002’ and ‘Betænkning af 29/5/2002’.
NJCL 2018/1
141
maintained that the proposal allowed the employer to force the
individual employee into a part-time agreement, with a reduction of
wages as a consequence.105 The political compromise in 2002 was to
establish two conditions for the admissibility of part-time agreements
contrary to collective agreements: 1) Part-time work can only be agreed
to during the employment relationship, not upon employment,106 and 2)
provisions in collective agreements requiring a minimum of 15 hours of
work per week must be respected.107
The free choice of application is novel and surprising. The worker’s
association is bound by the collective agreement and cannot enforce the
provisions of the agreement if their members have chosen to opt out of
the agreement.
However, if a member, despite choosing to opt out of the
employee status, would in fact be regarded as an employee under EU
law108 concerning, for instance, a right to protection against
discrimination on grounds of race, or a right to equal pay, the collective
agreement cannot preclude the employee her right to invoke inter alia a
right to equal pay or a compensation for direct discrimination.
The agreement does not frame the 100 hours threshold into a
stipulated period of, for instance, two months. A freelancer meeting the
threshold after a long period of, for instance 10 months, has only had 12
hours a month work through the platform on average, and will from that
point on be regarded as an employee with regards to the agreement.
Conversely, a freelancer opting in or automatically receiving status
as employee with a right to minimum pay under the agreement can result
in a breach of the Competition Act, if the freelancer is genuinely self-
employed. Self-employed persons collectively establishing agreements
regarding their fees have been deemed cartels by the CJEU as well as by
national courts.109
Questions that arise are: what is considered fair and objective
reasons for dismissing workers for putting forth a request to become
employees? How will the duty of not undermining the agreement play
out for the platform? How will the provision on allowing the agreement
to be terminated without a new agreement and without a termination
105 Betænkning af 8/5/2002 (n 104), Statement by the minority.
106 The Part-time Act s 4a(1).
107 The Part-time Act s 4a(1).
108 The definition of worker in Art. 45 TFEU is used in the case law of the ECJ to
determine who is considered as a worker, when applying EU Directives in the social
field, such as Directives on; working time, Case C-428/09 Isère; collective redundancies,
Case C-229/14 Balkaya; equality/non-discrimination in employment, Case C-432/14 O.
In other Directives it is left to the Member State to define in accordance with national
law and practice, provided the definitions respect the purpose of the Directive and the
effectiveness of EU law, such as the Framework Agreement on part-time work; Case C-
393/10 O´Brien; Hasselbalch (n 37).
109 Grosheide and Haar (n 7) 1.
PLATFORM WORK AND THE DANISH MODEL 142
conflict be interpreted by the parties given its conflict with the procedure
set out in section 9 of the Act on a Labour Court? How will the workers
react when the initiative is placed with them for being freelance, not
covered by the agreement, or being an employee, covered by the
agreement, and what is the legal framework for coercion by the platform
by way of other means than dismissal? And how will the fixed threshold
of 100 hours be interpreted as this is not in accordance with the
principles developed in labour law nor in competition law? How are the
100 hours calculated – can a service provider fall out of the scope of the
agreement again, e.g. if having been on leave or travelling and starting
over, and how will any remunerations, pensions and holiday payments in
this case be calculated? Which hours count towards the 100 hours, how
about jobs that have not been concluded satisfactorily, or where the user
made last-minute-cancellations? Can the service provider change his/her
mind, and opt-in/opt-out at will? Could the parties agree on a partial
opt-in/opt-out and thus choose to apply some of the provisions, but not
others?
The trial agreement is a remarkable attempt at resolving the
difficult relationship between the binary divide and platform work and is
novel as it introduces innovative features from a Danish collective labour
law perspective. The effects remain to be seen, i.e. the purpose of
concluding the agreement as a trial agreement.
6.2. PLATFORM WORK AND COMPETITION LAW.
Although the ruling of FNV was a novelty in EU competition law,
platform work may not be entirely compatible with the facts in the FNV
case. Most notably, service providers via platforms will most often not
perform services alongside permanently employed persons performing
the same job. On the other hand, the work performed and the
conditions for performing the work to a large extent resembles normal
cleaning assistant work elsewhere in the industry. The elements of having
the liberty to arrange their own working hours and the liberty to accept
or decline jobs offered, are not similar to employees in comparable
employments as cleaners.
Some elements are worth looking further into. In the freelance
journalists’ cases of the Tribunal, the Tribunal looked to the cause for
not being covered by a collective agreement. In the competition cases,
the Tribunal stated that the element of the media house being covered
by a collective agreement or not, was an element outside the control of
the freelance journalist, and in itself could not render that the
employment status changed according to features related to the recipient
of the services, when all other aspects were the same, including the setup
of the freelance journalists. The same applies in the case of platform
work. The cause for the service provider to be self-employed in this
context is primarily controlled by the employer. The contractual setup as
self-employed is the choice of the employer, not of the service provider,
NJCL 2018/1
143
unless in the situations where the service provider has chosen a setup as
genuinely self-employed. This element of the choice being outside the
control of the service provider could likewise play a role in assessing
whether collective agreements concluded for persons perhaps self-
employed perhaps employees would be assessed as providing pay and
working conditions in line with section 3 of the Competition Act.
One final argument to be explored is whether it could be said that
an association of workers is still considered a social partner when
negotiating a collective agreement and bargaining for minimum fees for
genuinely self-employed persons, if the association is acting solely in the
interest of its own members, the employees. The objective of the
negotiations of the association for the genuinely self-employed would be
to prevent ‘social dumping’ or in other terms prevent a ‘race to the
bottom’.110 In her Opinion to the FNV case, AG Wahl made a
compelling argument for the exemption to Article 101(1) TFEU to also
include such agreements by applying a perspective on the social policy
objectives of collective bargaining.111
She argued that the elimination of wage competition between
workers — the raison d’être for collective bargaining — implies that an
employer under no circumstances can hire other workers for a salary
below the one set out in the collective agreement. On that basis, and
from the perspective of a worker, why should there be a difference if she
is replaced by a less costly worker or by a less costly self-employed
person. According to AG Wahl, preventing social dumping is an
objective that can be legitimately pursued by a collective agreement
containing rules affecting self-employed persons and that it may also
constitute one of the core subjects of negotiation. Further, she points
out, that in the Laval case, the Court accepted that the right to take
collective action for the protection of the workers of the Member State
against possible social dumping may constitute an overriding reason of
public interest within the meaning of the case-law of the Court which, in
principle, justifies a restriction of one of the fundamental freedoms
guaranteed by the Treaty.112
There still seems to be avenues of pursuit available for the trade
unions to aim at concluding collective agreements with the digital
platform providers on behalf of their service providers. The outer limits
are set by competition law, EU labour law and Danish labour law that
the worker must not be genuinely self-employed.
For collective bargaining to be lawful under Danish law, self-
employed persons providing services on terms more similar to those
characteristic of employees than of self-employed would form the basis
for a recognised interest for trade unions to initiate demands for a
110 Grosheide and Barenberg (n 80) 224.
111 C-413/13 (n 44) paras 74-79.
112 Case C-341/05 Laval un Partneri Ltd [2007], para 103.
PLATFORM WORK AND THE DANISH MODEL 144
collective agreement to be concluded, including by way of collective
action. Likewise, all collective action remedies could be put into play
when supporting a demand for collective agreement, also for those in
less than typical employment.
Finally, the element of combatting social dumping by concluding
collective agreements for all persons performing work within the sector,
including those working on less than typical employee terms, could be
used as leverage in order to fulfil the criteria for not being in breach of
competition law in the EU and in Denmark, as well as for abiding by the
requirements of recognised interest established under Danish collective
labour law.
Platform work and the Danish model are not inherently
incompatible, regardless of the contractual terms of ‘self-employed’ or
the setup of many small contracts of service. Labour law as well as
competition law from the CJEU and national courts provide appropriate,
clear and specific legal principles that can be put into practice when
approaching the issues concerned with platform work in the context of
the Danish model. This would perhaps give leverage to negotiating the
next generation of collective agreements applicable to persons providing
services via digital platforms, as existing principles would bring the
agreements some way, and this could perhaps moderate the urgency for
inventing brand new solutions on all accounts.
6.3. PLATFORM WORK AND FLEXICURITY.
Flexicurity and collective bargaining are key components of the
Danish welfare model. Flexicurity consists of three elements: flexible
labour laws allowing employers flexibility in terminating employment
relationships, generous state-financed unemployment benefits securing a
basic income for workers during periods of unemployment, and an
active labour market policy inter alia promoting and financing acquiring
skills and education to meet the changing needs of the market.113
113 For more on the Flexicurity model see: Christian Lyhne Ibsen and Mikkel Mailand,
‘Striking a Balance? Flexibility and Security in Collective Bargaining’ (2010) 32
Economic and Industrial Democracy 161; Henning Jørgensen and Per Kongshøj
Madsen, Flexicurity and Beyond: Finding a New Agenda for the European Social Model (Djøf
2007) accessed 20 August 2018; Per Kongshøj Madsen,
‘Flexicurity - Towards a Set of Common Principles?’ (2007) 23 IJCLLIR 525; Thomas
Bredaard and Flemming Larsen, 'External and internal flexicurity: Comparing Denmark
and Japan' (2010) 31 CLLPJ 745. On alleged detriments of the flexicurity system in light
of crisis, see e.g. Henning Joergensen, 'Danish "flexicurity" in crisis - or just stress-
tested by the crisis?' Report to the Friedrich Ebert Foundation, October 2010; Werner
Eichhorst, Veronica Escudero, Paul Marx and Steven Tobin, ‘The impact of the crisis
on employment and the role of labour market institutions’ (2010) International Institute
for Labour Studies, 29.
NJCL 2018/1
145
The possibility of completing collective agreements for workers is
the primary and preferred tool for ensuring proper working conditions
for workers in all industries in Denmark. Moreover, the agreements
provide a level of protection against arbitrary dismissals, thus moderating
the ‘flexible’ part of the flexicurity model. The agreements also provide a
certain minimum level salary which is necessary in order to be eligible for
social security benefits, when out of employment.
The criteria for being eligible for social security payments in times
of unemployment, sickness, retirement or other types of supported
leaves from active employment should be a smooth fit, in order to
ensure easy transition and an efficient ‘security’ part of flexicurity. In the
current realities of an increased fragmentation in career paths and in
employment, updating the legal criteria for eligibility for benefits to
constitute a proper fit has been on the agenda of the social partners as
well as the government lately. The first initiative was the amendment to
the regulation on unemployment payments,114 where several types of
work now can count towards the working hours thresholds for
becoming eligible for social security payments.
The blurred lines between what constitutes work as employee or
work as self-employed could be set straight by collective agreements for
platform workers, whereas with the current agreement, this is not
entirely clear yet.
There is still some way to go for the social partners and the
platform providers to meet and negotiate proper pay and working
conditions for the persons who are not genuinely self-employed. The
algorithms and digital apps are new tools enabling new, fast and
extended ways of creating contact, exchanging services and creating a
basis for business, whereas the service of personal labour remains more
or less the same.
114 Statutory Act no 1670 of 26/12/2017 amending the Act on Unemployment
Insurance; on the calculations, .