Draft Guidelines on collective bargaining of self-employed
Eurocadres comments on the Proposal for Guidelines on the application of EU competition law to collective agreements regarding the working conditions of self-employed persons.
Eurocadres welcomes the proposal for guidelines of the Commission, although we regret it is limited to guidelines and fails to include binding measures. Competition law must not infringe the right to collective bargaining and must be limited to anti-competitive practices alone. The issues addressed in the guidelines are quite specific, concerning solely Article 101 TFEU in relation to collective bargaining agreements. This problem is an essential one as it touches on the basic right to bargain collectively. In the light of increasing individualisation of work and an increase in the number of people being self-employed – genuinely or not – the right to use collective action is of utmost importance. With growing digitalisation, globalisation and a growing number of self-employed workers, it is essential to ensure an equitable balance of power and to guarantee the right to associate and to bargain collectively.
The guidelines are helpful as they help to determine when collective agreements are possible without infringing upon article 101 of the TFEU by giving concrete examples. They also acknowledge the fact that certain workers, who are called self-employed, are in reality fake self-employed due to their economic dependency. The guidelines are a step forward to improving working conditions and show the dedication of EU policy on the social side, taking into account the Pillar of Social Rights (notably article 8 which ensures the right to collective bargaining).
We also welcome the explicit references to the growing platform economy. As such, the guidelines are complementary provisions to the Proposal for a Directive to enhance Working Conditions for Platform Workers, issued on the same day as the guidelines. However, it is important to clarify the relationship between the guidelines and the directive, especially regarding Article 20 of the directive: “This Directive shall not affect Member States’ prerogative to apply or to introduce laws, regulations or administrative provisions which are more favourable to platform workers, or to encourage or permit the application of collective agreements which are more favourable to platform workers, in line with the objectives of this Directive. As regards persons performing platform work who are not in an employment relationship, this paragraph shall only apply insofar as such national rules are compatible with the rules on the functioning of the internal market.”
In addition, the application of the guidelines is not easy. Definitions of workers are different in each country and the bargaining position of groups of genuinely self-employed is also a different issue (In Spain, for example, bike riders are considered as employees with the right to conclude a labour contract in conformity with social security). The conclusion of collective bargaining agreements between solo self-employed and their counterparts would still depend on the willingness of both sides to reach agreement and of the respective power to negotiate. In addition, the power of negotiation is not evenly balanced and increased digitalisation, outsourcing and sub-contracting does not help negotiation in general and even more so for those workers. The changing dynamics in the labour market must be recognised.
Therefore, some of the restrictions (notably in articles 16, 17 and 18) should be handled with care. As it is difficult for self-employed or platform-employed to organise and therefore to gain relevant bargaining power, they must be protected in their ability to access a condition which enables them to be able to bargain collectively.
- Under article 16, it is stated that the decision not to provide services should be assessed on a case-by-case basis: « However, agreements under which solo self-employed persons collectively decide not to provide services to particular counterparties, for example because the counterparty is not willing to enter into an agreement on working conditions require an individual assessment. Such agreements restrict the supply of labour and may therefore raise competition concerns. To the extent that it can be shown that such a coordinated refusal to supply labour is necessary and proportionate for the negotiation or conclusion of the collective agreement, it will be treated for the purposes of these Guidelines in the same way as the collective agreement to which it is linked (or would have been linked in the case of unsuccessful negotiations). »In most cases, self-employed workers are not in a position of power and their ability to exert pressure on potential users of their services should be preserved.
- Under article 17, let us underline that associations and agreements of solely self-employed persons should be possible. To quote the recommendations set out by the ETUC in a former consultation (April 21) « Collective agreements aim to set minimum standards for decent work and pay, and must not be considered as horizontal cooperation agreements between competitors under Article 101 TFEU. Trade unions are not cartels, and neither are employers when jointly engaging in collective bargaining. »Eurocadres underlines the importance of the involvement of national trade unions in negotiating such collective agreements.
- In part 3.b “Solo self-employed persons working “side-by-side” with workers », the Commission underlines that solo self-employed have the right to ask to be covered by existing collective agreement which exist with their counterpart. The right to collective bargaining is an opportunity to negotiate better, and even similar, conditions for the group of self-employed people. Also, it should be added in the case where agreements in similar or equivalent areas exist. This is the case when an employer dismisses all his employees, asking them to conduct work as self-employed (common in the media sector for instance), these self-employed should be able to access the same working conditions as other workers in the same sector.
- Under article 18, it is stated that : « In particular, they do not cover agreements which go beyond the regulation of working conditions by determining the conditions (in particular, the prices) under which services are offered by the solo self-employed persons or by the counterparty to consumers, or which limit the freedom of employers to hire the labour providers that they need. »
Here again, let us quote the recommendation of the ETUC : « … solo self-employed workers must be entitled to collectively bargaining the fees they may charge for the work or service they provide to undertakings. In addition, trade unions must be able to give guidance to solo self-employed workers with respect to recommended minimum fees in the absence of a counterpart with whom to bargain or in case of persistent unwillingness of a counterpart to enter into collective bargaining.»Therefore, the distinction between fare setting and fees operated in example 5 appears to be a legal issue, and knowing that the interpretation of « fare » « fee » and « price » is very difficult, it should be acknowledged that recommended fees are justified by legitimate social policy objectives.
Euocadres welcomes the precisions of the definition of self-employed in part 3, articles 24 to 31. The distinction between economically dependent solo-self-employed, solo-self-employed working alongside with workers and platform workers sets out three specific categories. It should be noted that the categories can be overlapping, for example, an undertaking may source workers who work along with employees via a platform.
However, the threshold of 50% defined in part 3 article 25 is too high and unrealistic. In order to make the application of the guidelines possible this threshold should be diminished.
Definitions of workers, independents, platform workers and similar categories depend on national labour laws. In view of recent developments in telework and digitalisation of work due to the current Covid crisis, changes to the labour market could lead to a further increase in outsourcing and sub-contracting. A protection of these categories, which are on the rise, is extremely important. Competition policy should not hinder self-employed from gathering and setting conditions which enhance their social and economic welfare and protection.
The guidelines provide examples which, in the end, will need interpretation for each individual case in case of a disagreement.