There can be no doubt. Uber constitutes a massive challenge for the economy, the labor market and traditional companies. The company's exponential growth and rapid international spread worldwide are staggering. In this sense the arrival of Uber, and similar companies, is new and we can talk of a unique disruptive development. But if you look through the disruption, apart from a number of manifest differences, you will see very similar patterns between Uber's current arrival and the staffing business’ arrival in the sixties and seventies. In fact, Uber can save considerably on expensive lawyers by studying the developments back then and drawing the right conclusions. The legislator can also learn from it.
Both cases concerned new services which constituted a challenge for the established order. In the case of temporary staffing it concerned workers with a fixed contract with an employer. In Uber's case it is primarily about the regular taxi sector. In both cases there was, and is, the fear that this established order would disappear by the actions of this newcomer. In both cases there was confusion about whom is supposed to feel threatened. In the case of Uber does it only concern the regular taxi sector or should other modes of public transport also feel threatened? In the case of temporary staffing it not only concerned ‘full-time employees’, the trade unions, as organisers of the workers' interests, also felt affected. Would this new temping sector also erode their role? As is often the case for real innovation, the situation is created that the new services cannot or can only be partly incorporated into the existing rules and regulations. At the time, the new factual three-way relationship, temporary staffing agency – temporary worker – recipient company, did not fit into the existing employee – employer mold unless a subcontracting construction was chosen. Not incorporating this into an existing regulatory framework almost by definition condemns the newcomer into an existence in the grey, sometimes outright, illegal zone.
That was the case then, and is no different now. In both cases the status of the working person was key. Whether a temporary worker was an employee or a self-employed person was a major dispute in the sixties. It is literally the same question that is being asked of Uber drivers. Both then and now trade unions instituted legal proceedings. And both then and now there were calls to prohibit the newcomer. Temporary staffing was almost prohibited in Belgium in 1972 by the former Minister of Labour Glinne. If the government had not fallen, it could have happened. In various countries it was indeed prohibited and it was not until the late nineties before it was undone (Greece, Italy). Similarly, Uber has also been prohibited in various places in the year 2015. There are many similarities. In view of these turbulent developments history is indeed repeating itself.
what lessons have we learned?
What can Uber learn from the staffing business’ experience? Well, that a good regulatory framework is worth it, both socially and economically. It was only after the provisional act on temporary employment in 1976 that in Belgium a new regulatory framework was created for temporary staffing and other temporary labour, and that temporary staffing was able to develop freely. It was noticeable that in different countries various systems were opted for but in most cases, in general, this was not at the expense of the development of the sector. This does not mean that one regulatory framework was not more efficient than the other.
If Uber is smart, it will go full out for negotiations for a clear regulatory framework in which the services have every freedom to develop. The experience of the sixties and seventies has taught us that this will probably not have the same outcome everywhere but it does not have to be an insurmountable problem.
The legislator can also learn from the experience back then. The Act on Temporary Staffing provided a new framework in which the three-way relationship temporary staffing agency – temporary worker – recipient company was recognised but was incorporated in a broader social system. And that is exactly what needs to be done again now. The new framework of Uber has to allow us to develop the services further but at the same time ensure that essential rules are observed. Clearly something like this needs time. It concerns tailor-made work and weighing, at times, conflicting interests. On the other hand, we cannot, like in the sixties and seventies, wait for a small decade to come to an acceptable solution. The legislator has lost this luxury.