Annuntio#2 - 19.7.2021 - 3.8.2021

harmless uses of AI and ADM, and the
regulation should focus primarily on ‘worker
impact’. At the mention of “high-risk” AI, it is
at this point we have to engage with the
initiative proposed by the European
Commission on the regulation of AI in April
2021 which has been dubbed as the European
Commission’s AI Law. Article 1 of the AI Law
proposes ‘specific requirements for high-risk
AI systems and obligations for operators of
such systems’. The key essence of the
proposal is the regulation of “high-risk” AI
systems. The proposal states clearly that in
classifying an AI system as high-risk, the
‘extent of the adverse impact caused by the AI
system on the fundamental rights protected
by the Charter is of particular relevance’
citing workers’ rights as one of them and AI
systems which are used that impact workers’
rights are deemed as high-risk.
The proposal justifies the position taken on
the basis that ‘AI systems used in
employment, workers management and
access to self-employment, notably for the
recruitment and selection of persons, for
making decisions on promotion and
termination and for task allocation,
monitoring or evaluation of persons in workrelated
contractual relationships, should also
be classified as high-risk, since those systems
may appreciably impact future career
prospects and livelihoods of these persons.’
In Annex III to Article 6(2), it is stipulated that
an AI system is a high-risk AI system if it is
‘intended to be used for recruitment or
selection of natural persons, notably for
advertising vacancies, screening or filtering
applications, evaluating candidates in the
course of interviews or tests’; and where it is
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Whilst the conversation on XAI began decades
ago, it saw a resurgence in recent years due to
a response by big tech organisations to a
downward trend in public trust in the sector.
Industry leaders such as Google and IBM
actively promote XAI and have developed
tools to help advance the theory and practice
of responsible and trustworthy AI.
It is important to note that while XAI is
pursued due to general concerns in
transparency and trust-related issues in AI
systems, the Spanish legislative push is also
indicative of revisiting existing legal rights in
traditional fields of law with the intention of
expanding their scope to fit new challenges.
For example, in the field of industrial
relations, especially in common law
jurisdictions, actions by an employer against
an employee are often guided by the principle
of “just cause and excuse” which would mean
that an employer should have a clear basis for
any action against an employee.
This is further expressed with the expectation
of compliance with the rules of natural justice
or the right to a fair hearing, which includes
the right to be informed of the basis of any
form of disciplinary action against them.
It could therefore be argued that new
regulations in AI explainability are merely
extensions of existing legal principles.
Notably, some countries such as Australia
have taken a different approach to regulate AI.
In a recent announcement by Australia's
government, the Minister for Digital
Economy stated that the country's AI ethics
framework will remain voluntary for the
foreseeable future.
The basis for this approach is that Australia
believes that it has sufficient existing
regulations to deal with AI which it regards as
“simply a technology”.
As the degree of explainability that may be
expected of an employer is yet to be seen,
entrenched positions of labour law could act
as the compass in navigating these new rights.
Whether an organisation utilises algorithms as
a determinant factor or merely as assistive
technology, the “right to know” found in the
rider law may be interpreted alongside the
already entrenched laws in industrial relations
thus naturally paving the way for demand in
XAI.
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