Last month, the International Labour Organization (ILO) adopted ILO Convention 193, the first international legal instrument regulating digital platform work. C193 is a boon for the roughly 400 million platform workers previously rendered invisible by algorithmic management and rampant misclassification. This article explores the Convention’s provisions on pay and cost recovery, the element of working conditions with perhaps the most tangible impact on the lives of workers. It takes a purposive approach to treaty interpretation focusing on the object and purpose of the instrument as stated in the preamble, namely for the Convention to contribute to the full realization of decent work in the platform economy in combination with other international labour standards.

Unpredictable and Inadequate Pay

Digital labor platforms depress workers’ labour income in several ways.

Platforms employ dynamic pricing models, with worker pay determined by real-time changes in supply and demand. Platforms also offer fluctuating incentive schemes in response to live market conditions. These practices create a ‘casino’ effect where  workers do not know what they will earn until after completing a job. To add to the unpredictability, platforms also engage in what Professor Veena Dubal calls algorithmic wage discrimination, whereby worker-generated data is used to produce variable and personalized pay. A number of studies have also shown a clear gender pay gap in the platform economy. 

Gig workers also have to pay high commission rates and fees to simply access work while having to personally cover the cost of basic workplace expenses since they are frequently misclassified as independent contractors. Further, by paying only for ‘engaged time’, workers are not compensated for the total time logged onto the platform, which can amount to 40% of effective working time.  

As documented in various reports, the above practices have resulted in platform workers receiving pay  below the minimum wage, thereby necessitating even longer work hours to make ends meet. The problem of low pay is also often compounded by a lack of on-time payment and the increasing use of intermediaries by platforms to evade accountability.

How does C193 address these issues?

Pay Transparency

Article 11 of the Convention requires platforms to provide workers with accurate and easily understandableinformation on their pay. Article 13, covering the right to information on the use of automated systems, also requires platforms to disclose to workers and their representatives the extent to which such systems have an impact on working conditions, of which pay is a key component. Finally, Article 18 calls on platforms to provide information on the terms and conditions of work, which, read protectively, should include the method used to determine compensation (i.e. the parameters of algorithmic pay-setting).

Taken together, these provisions establish an unprecedented level of algorithmic pay transparency, giving workers access to information on how their pay is calculated before they accept a job. Platforms are therefore likely to be disincentivized from personalizing pay when workers can discern differential pay for identical work. 

Data Protection

Article 16 requires States to ensure that platforms only process workers’ personal data for legitimate purposes compatible with the Convention. A protective reading of this article should, for example, require the prohibition of the use of workers’ behavioral data to offer individualized pay. Article 16 also gives workers the right to request access, rectification and erasure of their personal data, thereby preventing algorithmic pay-setting based on discriminatory ratings or reviews, for example.

Fundamental Principles and Rights at Work

Article 14 supplements Article 3 of the Convention by requiring platforms to ensure responsible use of automated systems in line with the Fundamental Principles and Rights at Work. By conditioning the use of automated systems on respect for fundamental rights, platforms will need to ensure that algorithmic pay-setting does not directly or indirectly discriminate a protected group. Platforms will also have to ensure that the use of automated pay systems does not enable a gender pay gap.

Article 4 requires States to prevent occupational accidents, diseases, and injuries. From a pay perspective, this means platforms should not be permitted to use financial incentives for ultra-fast deliveries or high completion rates where such rewards endanger workers’ occupational safety and health.

Finally, since recruitment fees and related costs are risks that can be considered elements of forced labor, implementation of Article 3 will require consideration of the ‘employer pays’ principle, especially in relation to migrant workers (Article 20).

Wage Protection and Cost Recovery   

Article 10(1) provides that all platform workers, irrespective of status, have a right to receive pay in a timely manner, in full, subject to lawful deductions. This provision broadly reflects the analogous protections in ILO Convention 95 on the Protection of Wages. Applying the principle of systemic integration, Article 10(1), read together with C95, effectively bars platforms from unilateral deductions, including those with a view to ensuring a direct or indirect payment for the purpose of obtaining or retaining employment (Article 9, C95). The requirement for timely payment should also eliminate the arbitrary delays known to plague the gig economy. These protections can also be enforced by workers through their right under Article 16 to a ‘human review’ of automated decisions that result in the non-disbursement of pay.

Article 10(2) requires States to ensure that platform workers in an employment relationship receive remuneration not lower than the applicable minimum wage excluding tips, and compensation for expenses or other costs. This Article is the only provision in the Convention that applies solely to workers in an employment relationship. However, there are two crucial elements that qualify this bifurcation along employment status lines.

First, Article 9 on classification, if effectively implemented, should ensure the correct classification of millions of platform workers as employees based on the primacy-of-facts principle. Second, Article 10(3) provides that States shall give consideration to whether the minimum-wage protection of Article 10(2)(a) should be extended to platform workers who are not in an employment relationship. This mechanism refers notably to Article 10(2)(a), thereby leaving the door open for the extension of the cost recovery protections in Article 10(2)(b).  

Article 10.3 represents the first time an ILO Convention provides for the possible extension of minimum wage and cost recovery protections to self-employed workers. This will require States to actively consider extending such protections and to report to the ILO’s Committee of Experts on steps taken in that regard. Indeed, governments at all levels, including in Australia, France, New York City, and British Columbia have already found innovative ways to extend these protections to  platform workers not in an employment relationship.

Working Time

While compensation for waiting time is not directly addressed in the Convention, there is a strong argument to suggest that existing ILO working time instruments already offer gig workers such protection. The ILO’s Committee of Experts has confirmed that that the definition of ‘hours of work’ in both Conventions 1 and 30 cover the time during which the persons employed are at the disposal of the employer and that the employee must be entitled to remuneration for such time. Therefore, in applying Article 10.2 and the extension mechanism under Article 10.3, States will also need to consider compensation for all time labored, including waiting time.  

The Way Forward

In order to make gig work pay adequately, States will need to effectively implement the provisions relating to compensation in C193 using a purposive, worker-protective approach. This will also require the firm regulation of intermediaries as provided for in Article 24(3).

For now, all efforts need to be focused on securing rapid and widespread ratification of the Convention.