The European Commission is seeking to ensure that rule protecting free competition do not prevent improvements in working conditions being negotiated through collective agreements for those self-employed individuals who need protection.
Collective bargaining with workers has always fallen outside the scope of EU competition law. The European Commission has, for some time now, been at pains to stress this and remind everyone that the aim of competition law is not to prevent workers from forming a union and negotiating collectively. However, this has never been clarified for the self-employed, who are each generally considered to be an “undertaking”.
Collective bargaining agreements under which the self-employed benefit may therefore be covered by EU competition rules. Article 1010 of the Treaty on the Functioning of the European Union refers to “all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between member states and which have as their object or effect the prevention, restriction or distortion of competition within the common market“.
The Commission believes that the concepts of “workers” and “self-employed” have become blurred. A glance at the spate of worker cases over recent years gives some force to that belief. The Commission is therefore now seeking to clarify the position for individuals who negotiate collectively in order to improve their working conditions. It recognises that defining those “self-employed” who need and should be allowed to participate in collective bargaining is a challenge. It needs to examine whether it is necessary to adopt measures at EU level in order to address the issues raised by this situation and so help improve the conditions of such individuals.
The Commission is therefore inviting interested stakeholders to contribute to the ongoing public consultation on the Digital Services Act package and, in particular, the section on self-employed individuals.
In the UK, there are specific unions for the self-employed and some unions do accept self-employed individuals. An element of collective bargaining for some self-employed workers does occur, but the consultation aims to clarify this and provide consistency.
Given the rise of the gig economy, and the increased scrutiny in relation to exploitative working practices, the consultation will be interesting and, some might say, overdue. The consultation closes on 8 September 2020.