But what are the major problems of this Treaty? Which rights are so important that you shouldn't sell them for Flexibility?
The hashtag of Social media campaign #Arbeitsrecht4Mjam, which was created in our support by SPÖ MP Julia Herr and SJ chairman Paul Stich, has been on the colorful Riders Collective stickers since the beginning of the year, which we hand out to colleagues and stick to our backpacks (or which you may then find all over the city). It denounces the fact that workers' rights are simply being circumvented and that much is being withheld from freelance workers. For FDs, for example, there are
- no paid vacation
- no fully paid sick leave, i.e. loss of income due to accident or illness
- no collective agreement, therefore no minimum wage and no 13th and 14th salary
- no say in the company, i.e. no works council that acts in the interests of the workforce and can also provide individual colleagues with strong support when problems arise.
Okay not okay, then why do you even work as an FD for Mjam?
flexibility
Nevertheless, many freelancers are satisfied with their contract. The great value in this: flexibility. Students or parents can work when they want, others can work as much or as little as they want. In addition to AMS benefits or educational leave, many work marginally or often well over 40 hours a week every day. Legally, however, there is nothing wrong with making the shift schedule flexible even as an ED - Lieferando can do that too. Only the latter is not possible as a real employee - at least not without overtime supplements. According to the collective agreement, the processing period for overtime is 52 weeks. This means that you could exhaust the controversial 60-hour week, which was decided in 2018, for one year and, with full pay, go on vacation for half a year longer.
No obligations
So what is more of an argument for the free service contract are the few obligations. You can spontaneously cancel the same day service if the weather is bad or you don't feel like it. As an FD, you don't have to give a reason why you're not coming to work. If you are told to wait 10 minutes with the customer, or to take a photo as proof, or to drive back to the center, you don't necessarily have to do that because as an FD, you are not bound by instructions. You may or may not do all of this without the threat of consequences. Conversely, your employer can also dismiss you without giving reasons. In fact, FDs are never given a reason why they are terminated. A Rider Captain once explained to me: “Legally, we are not allowed to give any reason for termination.” That is nonsense, of course; legally, you can always give a reason why someone is dismissed. However, if this would make it possible to prove that an FD is terminated because it also frequently uses its contractual freedoms, then that would be an indication that the free service contract does not apply, but is a hidden employment relationship.
At Mjam, many unofficial reasons for termination are regulated via the batch system (quiz question: Who knows what they are?). If you're in the lowest batch and you're not working for a month, you might be terminated. However, if you want to continue working at Mjam, simply apply again and will most likely be accepted again. So far so good. Unless you are
Blacklisted:
But what if you are suddenly fired without giving reasons, even though you have been doing your job reliably and regularly for years? You'll want to know why you were fired. You may have bought an e-bike for around 3,000€ especially for this job in order to ride 60 hours a week and earn a lot of money after paying off the e-bike. Then you get a complaint from a customer or a restaurant employee, and you don't get a chance to comment. It doesn't matter what you have to say about it, the allegation is gross and the written complaint from a customer is given more credence than a long-time employee. Perhaps there was a complaint against you before that did not include your position. There is no works council for you. There is no labor code for you. There is no fair process for you. You are one of 2000 drivers whose names and faces are completely interchangeable.
There are many complaints on the table from management every day and there are around 200 new applicants every month. Management says you can't investigate every complaint, fire you and put you on a blacklist in case you want to apply again. It's not intended for you to see if you're on a blacklist. But is this even okay under data protection law?
An employee's personnel file may also contain complaints and warnings. However, if the allegations are incorrect, they must be removed from the record. Without comments from the parties concerned on the allegations, this file is incomplete and the allegations void. In any case, keeping such a file is not permitted if the person concerned has not informed it and has not agreed to it. With EDs, the permitted collection and recording of their personal data is regulated in the works agreement. Disciplinary measures once again require a works agreement. There is nothing like this for FDs and to date, the vast majority of FDs have not signed anything appropriate during their onboarding. I therefore strongly doubt the legality of such a blacklist and advise every current and former colleague with a free employment contract to a Data information requests to send to the company.
