CESI on collective bargaining for the self-employed

CESI published a new position on the conciliation of EU competition law with the right to collective bargaining for the self-employed. In the position, which is part of a response to a consultation which the European Commission is currently undertaking, CESI calls on the European Commission clarify how those in precarious solo-employment may benefit from a right to collective bargaining, and hence higher and adequate wages, without interfering with EU competition law, which currently may forbid this right on the grounds that this would constitute an illegal cartel-forming.

In its position, CESI outlines the following considerations and priorities for collective bargaining for the self employed:

  • 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 is not in line with the spirit and the purpose of EU competition law. Justifying the prohibition of collective bargaining by reference to the need to maintain the integrity of the single market (article 101 TFEU) is a misplaced contextualisation of EU law, especially when it is applied to vulnerable and precarious self-employed persons.
  • The extension of the right to collective bargaining especially to the precarious and the vulnerable self-employed would be desirable. To make it effective, such a right to collective bargaining should 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 take industrial action.
  • EU competition law should be made compatible with collective bargaining at least for all solo self-employed providing their own labour through digital platforms or to professional customers of any size with the exception of regulated (and liberal) professions. This should be implemented by a clear Council regulation and coupled to a clear-cut definition and a positive list of regulated liberal professions which are not facing precarious employment as a result of their self-employment (e.g. heads of notary, auditor and tax advising practices, architect bureaus, pharmacies, dental practices).
  • This initiative should not be aimed to alleviate challenges for the bogus self-employed. Bogus self-employed are denied regular employee contracts because employers want to avoid higher social ‘costs’. Supporting the right of collective bargaining for the bogus self-employed would mean 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 regular employees 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. It should be noted that the problem of bogus solo self-employment currently also persists in regulated liberal professions (among lawyers, dentists, etc), where persons may be employed under precarious self-employment conditions while they are in fact dependent workers (in the law firm, dental practice), just like regular private sector employees.
  • Clear legal frameworks for the right to collective bargaining for the self-employed are required and (well-staffed and resourced) labour inspectorates need to be put in place to control their application and issue (deterring) sanctions for violations.

CESI’s full position is available here.