CESI on the right to collective bargaining for the self-employed

As part of a consultation on a forthcoming Digital Services Act proposal by the European Commission, CESI issued its priorities relating to a right to collective bargaining for the self-employed, which may become part of the legislative initiative.

In a position paper on Future of work – A trade union perspective: Social protection, decent employment & interest representation, CESI had already advocated to allow, where this is not yet the case, the right of association especially for the precarious and vulnerable self-employed, regardless of the economic sector, and to explicitly allow them to become trade union members.

So far, this is not always granted on grounds that there may be cartel-forming through joint wage negotiations which is not in line with EU competition law and the integrity of the single market (article 1010 TFEU).

In its consultation contribution, CESI issued the following priorities:

• A general prohibition of collective bargaining for the self-employed via trade unions on the grounds that there may be cartel-forming through joint wage negotiations which is not in line with EU competition law and the integrity of the single market (article 1010 TFEU) is a misplaced contextualisation of EU law, especially when it is applied to vulnerable and precarious self-employed persons, -these working particularly often in solo self-employment-, as the cost of services is determined by many factors beyond wages too.

• Here, the establishment and preservation of collective ‘wage’-bargaining powers are legitimate to guarantee a general balance of powers and interests between all actors involved, i.e. the service provider the service taker, and, given the case, the intermediate (such as platforms), and to avoid that those concerned are excessively sold out by market powers and forced to provide work for indecently low wage levels. It is therefore of major importance to allow and strengthen the collective labour rights especially of the precarious and vulnerable self-employed.

• An extension of the right to collective bargaining especially to the precarious and vulnerable the self-employed would be appropriate. Such a right collective bargaining must be embedded in a four-tier approach which gives the concerned self-employed (1) the right to join trade unions, (2) the right to collective bargaining, (3) the right to become a part of collective agreements, and thus (4) also the right to industrial action. The mere right to collective bargaining on paper will not bring advantages; only by considering the above complete set of four elements may the right to collective bargaining be organised and enforced in practice and bring a concrete improvements for the self-employed.

• This initiative should not be aimed at the bogus self-employed, which by definition work in exploitative and precarious conditions as they are denied regular employee contracts because employers want to avoid higher social ‘costs’. This would be treating symptoms, not tackling roots. Bogus self-employed are, as the term reveals, false self-employed and de facto employees. What is necessary here is to ensure that they are considered as such with all consequences (regular individual and collective labour law and rights and social security schemes applied to them), thus eliminating bogus self-employment in the first place – an issue for the legislators to ensure clear legal frameworks and for (well-staffed and resourced) labour inspectorates to control their application and issue (deterring) sanctions for violations.

Full CESI consultation statement
Further information on the European Commission’s consultation on a Digital Services Act