Introduction
In many work relationships, the name given to the worker does not always reflect the reality of the work. A person may be called a “contractor,” “consultant,” “agent,” “partner,” or “self-employed person,” but the actual working arrangement may show something different. If the person works under the direction, control, supervision, or economic authority of another, the law must look beyond the label and examine the real facts of the relationship.
This is the essence of the principle of primacy of facts. It means that the true nature of a working relationship should be determined by what happens in practice, not merely by what is written in the contract. An employer should not be allowed to avoid legal responsibility simply by choosing a convenient description for the worker. Where the facts show employment, responsibility must follow.
This principle has become even more important in the modern world of work. Work is increasingly being organised through outsourcing, subcontracting, casualisation, agency arrangements, digital platforms and automated systems. The rise of digital labour platforms has made the question of classification more urgent. It is no longer enough to ask whether a person is called an employee, contractor or partner. The proper question is whether the facts of the relationship impose employer-specific responsibility on the enterprise that controls, organises and benefits from the work.
That is why ILO Recommendation No. 198 on the Employment Relationship and ILO Convention No. 193 concerning Decent Work in the Platform Economy, 2026 are so important. Recommendation No. 198 reinforces the general principle that the real facts of the working relationship must prevail over contractual labels. Convention No. 193 applies directly to platform work and the realities of algorithmic management.
The central argument of this article is simple: the modern world of work cannot be regulated by labels alone. Whether work is performed in a traditional workplace or through a digital platform, the facts must determine where responsibility lies.
ANALYSIS
The distinction is usually expressed as the difference between a contract of service and a contract for services. A contract of service points to an employment relationship, while a contract for services points to an independent contractor relationship. This distinction is not merely academic. It determines whether the enterprise must assume direct employer obligations toward the worker, or whether the person is treated as an independent contractor who bears greater responsibility for the organisation of his or her own work, subject to the protections available under law and contract.
The real issue, therefore, is not whether one category of worker deserves protection and the other does not. Every worker deserves protection. The more precise question is whether the nature of the relationship imposes employer-specific obligations on the enterprise that
controls, organises and benefits from the work. Where the facts show personal service, control, remuneration, dependence and integration into the enterprise, the employer should not be allowed to defer responsibility by relying on the language of independent contracting.
By integration into the enterprise, the point is that the worker is not merely providing an external or independent service, but is performing work that forms part of the normal operations of the business and is subject to its systems, standards, control or economic direction.
The leading common law starting point is Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497. The case set out the classic threefold test for identifying a contract of service: personal service for remuneration, sufficient control, and contractual terms that are consistent with an employment relationship.
This approach is supported by Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173, which asks whether the worker is genuinely performing the services as a person in business on his or her own account. If the answer is yes, the relationship points toward a contract for services. If the answer is no, the relationship points toward a contract of service.
It is also reinforced by Autoclenz Ltd v Belcher [2011] UKSC 41, which confirms the importance of looking beyond contractual labels where the written terms do not reflect the true reality of the relationship. The legal inquiry must therefore go beyond paper descriptions and examine how the work is actually performed in practice.
Taken together, these authorities support a simple proposition: classification is not a matter of drafting clever contract terms. It is a matter of examining the true substance of the working relationship.
This common law approach is reinforced by ILO Recommendation No. 198 on the Employment Relationship. The Recommendation recognises that many workers are denied appropriate protection because their employment relationship is disguised, unclear or deliberately misclassified. It therefore emphasises that the existence of an employment relationship should be determined mainly by the facts relating to the performance of work and the remuneration of the worker, regardless of how the parties describe the relationship.
This principle is particularly important in modern forms of work. Some employers and enterprises enjoy the full benefit of a worker’s labour, control how the work is performed, determine access to income, and integrate the worker into their business, but still describe the worker as an independent contractor. Such arrangements may be designed to shift risks onto workers while allowing the enterprise to avoid employer-specific responsibilities such as fair remuneration, social security obligations, occupational safety and health protection, leave, disciplinary fairness, and respect for freedom of association and collective bargaining.
The law must resist that approach. A business cannot treat a person as a worker when it needs labour, but as an outsider when responsibility arises. Where the worker is personally performing work, receiving remuneration, operating under control or direction, and depending economically on the enterprise, the employer must accept the legal consequences of that relationship.
This issue has become even more urgent with the growth of digital labour platforms. Platform work has created new opportunities for income, innovation and enterprise development, but it has also exposed serious decent work deficits. Many platform workers are described as independent contractors, partners or self-employed persons, even though the platform may control essential aspects of the work through digital systems.
This is why the adoption of ILO Convention No. 193 concerning Decent Work in the Platform Economy, 2026 is significant. The Convention gives direct international recognition to the need to protect digital platform workers and to address the specific realities of work organised or facilitated through digital labour platforms.
The most important provision for this discussion is Article 8 of Convention No. 193. It requires Member States to take appropriate measures to ensure the correct classification of digital platform workers regarding the existence or non-existence of an employment relationship. Importantly, it provides that classification must be guided mainly by the facts relating to the performance of work and the remuneration or payment of the digital platform worker, while also considering the specific nature of work through digital labour platforms.
Article 8 is therefore a strong platform-specific expression of the primacy-of-facts principle. It confirms that the legal status of a platform worker should not be determined simply by the language of the platform contract. The real working arrangement must be examined. If the platform controls the conditions of work, determines access to jobs, manages payment, monitors performance, imposes sanctions, or controls access to the worker’s account, those facts must be taken seriously.
In platform work, control may not look like traditional workplace supervision. There may be no human supervisor standing over the worker. Instead, control may be exercised through algorithms, ratings, automated decision-making systems, pricing structures, work allocation, customer feedback, penalties, suspension or deactivation. Technology may change the method of control, but it does not remove the reality of control.
Convention No. 193 recognises this wider reality. A digital labour platform uses digital technologies, including automated decision-making systems, to organise or facilitate work performed by persons for remuneration or payment. The Convention also defines a digital platform worker broadly, regardless of the worker’s classification or status in employment. This is important because it prevents platforms from using classification labels to exclude workers from the scope of consideration.
The Convention then builds a wider framework of responsibility. It requires respect for fundamental principles and rights at work in the platform economy, including freedom of association, collective bargaining, elimination of forced labour, abolition of child labour, non-discrimination, and a safe and healthy working environment. It also addresses occupational safety and health, including prevention of work-related accidents, diseases and injury, and the right of workers to remove themselves from imminent and serious danger.
The Convention further addresses economic protection. It deals with remuneration or payment, including timely and full payment subject only to lawful deductions. For digital platform workers in an employment relationship, it also requires protection against payment below the
applicable statutory or negotiated minimum wage. It requires platforms to provide accurate and understandable information on remuneration and deductions.
Social protection is also covered. Digital platform workers must have access to social security protection on terms no less favourable than those applicable to other workers with the same classification of status in employment. This is important because misclassification often shifts social protection burdens away from the enterprise that controls and benefits from the work.
The Convention also addresses algorithmic management. Digital labour platforms must inform workers and their representatives about the use of automated systems to monitor or evaluate work, or to generate decisions relating to work. Workers must also have access to written explanations and review of significant decisions, including decisions relating to non-payment, suspension, deactivation, or termination of employment or engagement. These provisions are important because, in platform work, management decisions are often hidden behind technology.
Protection against unfair deactivation is also central. The Convention requires measures to prohibit suspension, deactivation, or termination on discriminatory or otherwise unlawful grounds. This is critical because, for many platform workers, account deactivation is equivalent to loss of livelihood.
The Convention also recognises the need for access to justice, dispute resolution and enforcement. Digital platform workers and digital labour platforms must have access to safe, fair and effective dispute resolution mechanisms and appropriate remedies. There must also be mechanisms for compliance and enforcement. Digital platform workers must enjoy protection no less favourable than that enjoyed by other workers with the same classification of status in employment.
Taken together, the common law authorities, Recommendation No. 198 and Convention No. 193 send a clear message. Whether in a traditional workplace or on a digital platform, the facts of the relationship must determine where responsibility lies. Where there is control, dependence, remuneration, integration and personal performance of work, the law must not allow the enterprise to avoid employer-specific obligations through contractual drafting.
For Ghana and other countries reviewing labour legislation, this principle is particularly important. Labour law must be able to identify disguised employment and respond to new forms of work. It must protect workers whose employment relationship is hidden behind outsourcing, casualisation, agency arrangements, platform contracts or digital systems. It must also ensure that businesses compete fairly, without gaining an advantage by avoiding basic labour obligations.
CONCLUSION
The adoption of Convention No. 193 should be treated as a serious wake-up call to Organised Labour across the world. The future of work is not waiting in the distance; it is already here. The new form of work is increasingly digital, platform-based and algorithmically managed. What has traditionally been performed within the ordinary workplace may gradually be migrated onto digital platforms, controlled not by visible supervisors, but by apps, automated systems, ratings, data and algorithms.
This development has major implications for workers and trade unions. If Organised Labour fails to respond, work that was once clearly protected under traditional employment arrangements may be reorganised in ways that weaken responsibility, fragment bargaining power and shift risk from enterprises to workers. The danger is that employers and platforms may seek to enjoy the benefits of labour while avoiding the obligations historically attached to employment.
This is why Convention No. 193 must not remain merely an international declaration of good intention. It must be actualised. Trade unions must campaign for its ratification. Governments must be urged to incorporate its principles into domestic labour legislation. Labour laws must be reviewed to ensure that platform work, algorithmic management and digitally mediated employment do not become routes for avoiding employer responsibility.
The message to employers must be clear: if traditional jobs are migrated onto platforms, the rights that workers enjoyed in traditional employment must not disappear in the process. Rights must migrate with the work. Fair remuneration, occupational safety and health, social security, freedom of association, collective bargaining, protection against unfair termination or deactivation, access to dispute resolution and respect for human dignity must follow workers into the platform economy.
The struggle, therefore, is not only about recognising platform workers. It is about ensuring that the future of work remains anchored in decent work, social justice and employer responsibility. Technology may change the way work is organised, but it must not be used to erase the rights of workers.
For Organised Labour, the task is urgent. Convention No. 193 provides the platform. Ratification, domestic legislation, enforcement and collective bargaining must now follow. That is the way to ensure that as work migrates onto digital platforms, justice migrates with it.
The question should no longer be limited to what the contract calls the worker. The proper question is: what do the facts show?
Where the facts show employment, the employer or platform must take full responsibility.
Kenneth K Koomson
Deputy Secretary General, GFL | IR Practitioner | BSc HRM | LLB | LLM