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Freelancers unionise

Von Alex Pichaloff | Exberliner |
Die Zeitschrift Exberliner berichtet über die oft schlechten Arbeitsbedingungen von Selbsständigen und Scheinselbsständigen. Der Ausweg?
Gewerkschaflich organisieren in der FAU oder anderen Basisgewerkschaften!
(Text auf Englisch)

Freelancers
unionise

Be a freelancer! Work for who you want, when you want, Be Your Own Boss.
While the sales pitch sounds great, the reality isn’t nearly as rosy. Faced with
illegal contracts, offshore shell companies and the threat of overnight sackings,
Berlin’s freelance workers are taking collective action in their fight against
exploitation. By Alex Pichaloff

Michael* and Sarah*, both 29, work as editors at a British publishing company with an office in Berlin. Their situation is one of an increasingly common form of abuse. Required to work nine to five, Monday to Friday in their Charlottenburg office, they have permanent roles, their own work computers and even paid annual leave. Yet, the company contracted them on a freelance basis, meaning they don’t receive health insurance or pension contributions, are not covered by labour laws and would not be eligible for unemployment benefits should they find themselves out of a job – something they have seen through the arbitrary sacking of some of their
former colleagues. In fact, their employment contract qualifies them as “full-time freelancers”, an aberration according to German labour law, which states that freelancers should not earn more than fivesixths (83.3 percent) of their yearly income from one client, to prevent companies from using them on a long-term full-time basis. The situation is particularly problematic for non-EU citizens like Michael, who fears being caught out on Scheinselbstständigkeit (fake freelancer) laws, which could put his German visa at risk. With their company’s work practices blatantly breaching the law, Michael, Sarah and four other colleagues – almost half of their office of 14 – decided to take action.
As Sarah puts it: “We’d slowly become more comfortable opening up to each other about how fundamentally fucked the situation was.” They went to their boss with a series of requests. These included increasing the entry-level wage from €1600 per month, which at €9.09 per hour, was just above the then-minimum wage of €8.84,
changing the pay structure to ensure workers would receive regular, incremental pay rises, and allowing workers to work part-time so they could operate in an actual freelance capacity. The intervention had its successes: both ended up getting a pay rise, while others were allowed to scale down to part-time to meet freelancing requirements. However, the negotiations left a bad taste in their mouths. “I felt it was a demoralising way to succeed, because I would have liked us to have collectively gained improved conditions,” says Sarah, who feels she lacked the negotiating experience to face up to a well-trained manager.
“It was a classic case of divide and rule. The boss addressed us one by one and offered separate things as a way to try and quell us.” Meanwhile, in order to appease the workers’ concerns about falling foul of fake freelancer laws, the management made an unexpected offer: the option of invoicing a portion of their pay to an apparent offshore shell company – one without a website or any trace of it online – so that it would look like they were working for more than one client. “The boss said something like, ‘in terms of your invoicing, we’re going to have
our office in the Philippines handle that now,’” recounts Michael. This put them both in a dilemma: either continue working as fake freelancers, or run the risk of invoicing a fake shell company in order to seemingly meet tax and visa requirements. “It’s dangerous,” Michael said, “this could really screw us over.”

Grassroots unions to the rescue

This new exploited class of workers, characterised by unclear employment statuses and no collective agreements to guarantee their rights, have been increasingly turning to small, grassroots unions.
“The gig economy, with its many freelancers and couriers, has given us a lot of new members,” says Christopher Weber of the Freie Arbeiterinnen und Arbeiter Union (FAU), a small anarchosyndicalist federation active since 1977. He notes that while many freelancers see the larger unions as too bureaucratic, they are more drawn to the ‘direct action’ approach of the smaller bodies. In Berlin, the FAU has been actively supporting the struggle of Deliveroo and Foodora delivery riders, seen by many as emblematic of both the possibilities and exploitation associated with the so-called gig economy. They helped develop the ‘Deliverunion’ body in 2017, a forum for riders to organise
and discuss workplace issues.
“Getting everyone into one place has been the biggest thing in helping figure out what everyone’s main problems are, and how we can go about fixing them,” says
Deliveroo rider Jan. As part of efforts to secure better pay and working conditions, Deliverunion has staged a series of highly publicised public protests and even entered into negotiations with Foodora management, which appear to have been met with some success. Last year Foodora agreed to help meet some of the costs of bike repairs by offering riders credit at specific bike shops around the city. Deliveroo, on the other hand, has refused to respond to FAU’s demands, including
calls for increased pay and statutory accident insurance coverage.

The ‘self-employed’ scam

Meanwhile, questions have been raised over the legality of some employment models. While Foodora workers are contracted employees, hence paid the legal minimum wage, Deliveroo’s riders are considered self-employed, meaning they are paid per delivery and not compensated for the time in between food runs.
As a key selling point, Deliveroo emphasises the flexibility and independence of its couriers, and says the riders’ relationship with the company is that of a self-employed contractor. However, Eva Kocher, a law professor at the European University Viadrina in Frankfurt Oder, sees it differently. “I’d say that what Deliveroo
does is not legal from the perspective of labour law. From what I can tell from the working conditions practised by the company, it looks like a case of the workers operating in an employee capacity.
Their incorporation through the app is too strong and there’s practically no leeway. They work in a hierarchical relationship to the platform, and that is the defining feature of an employee’s position – control and directional authority.” But if some of these working structures are against the law, then how come they actually exist? The answer is rather complex.
Platform-based employers such as Deliveroo and Foodora have blurred the lines between what it means to be an employee or a freelancer. For Professor Kocher, more could be done in a legal sense to better clarify the rights of digital platform workers. “I think that if we had specific regulations that addressed what the legal implications of working on a platform are, then riders would have something they could refer to in case of conflict. Currently there are too many possible interpretations of the law. We need concrete legal frameworks to have a real impact on the organisational cultures.”

Fear of getting the sack

For freelancers in more traditional industries, some of the reasons that enable exploitative practices are a little more brazen. In the culture and media sectors, employers often take advantage of the popularity of these industries to flout the rules. For Julia*, a 30-year-old from Germany who’s worked in the dance and theatre field for many years, freelancing has always been common practice. Yet she’s become alarmed at how companies – including some state-funded bodies – have made it the norm. “A lot of cultural institutions – both private and public – have simply realised that they don’t have to hire people on employee contracts anymore,
and some are kept running entirely by freelancers. I wonder where the supervisory bodies are, because Scheinselbstständigkeit is illegal, but the institutions are simply not controlled.”
Meanwhile, as Julia has witnessed in recent years, the insecure working conditions that many freelancers face often prevent them from speaking out or taking action when they are being exploited. “Self-employed workers are often scared, because all of them are immediately sackable. And once you’ve experienced it in a company where someone is immediately dismissed, then people don’t dare to confront management.” This is a situation that Michael and Sarah experienced first-hand. Just a couple of weeks after they approached their boss to ask for improved working
conditions, one of their colleagues was suspiciously dismissed for “performance reasons”. “I felt very much like it was a warning to the rest of us,” Sarah said. “It seemed like a politically motivated sacking to me.” Today, both say it’s this fear, along with respect for their colleagues, that has stopped them reporting the company to the authorities. “I wouldn’t want to endanger other people’s jobs, or their visas,” says Sarah. As for Michael: “This is what is paying my bills at the moment and if I were to push harder, where would that leave me?” " 

*Names changed

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