Policy Responses to New Forms of Work

Chapter 11. Collective bargaining and social dialogue

A number of countries raised the question of how to extend collective bargaining rights to certain workers in new forms of work. Their concerns were mostly focused on those workers in the “grey zone” between the traditional definitions of dependent employment and self-employment.

Since the very foundation of modern labour law, all workers in a formally subordinate employment relationship (e.g. salaried employees) whether in a standard or non-standard one, have been granted undisputed legal access to collective bargaining. If the ILO Convention on the right to organise and bargain collectively refers to workers in general, in practice, it is subject to legal discussion as possibly infringing the application of antitrust regulations for workers usually classified as self-employed. The standard approach in antitrust enforcement has often been to consider all self-employed workers as undertakings and therefore any collective agreement reached by self-employed workers as a cartel.

Yet some self-employed workers share characteristics (and thus vulnerabilities) with employees, and there is an argument for extending collective bargaining rights to these workers. Moreover, some self-employed workers have little or no bargaining power (so that rates of pay are set unilaterally by their employers/clients) and they cannot easily switch to work for other employers/clients. The OECD Employment Outlook 2019 (2019[1]) includes a more detailed discussion on this topic.

Enforcing the correct classification of workers and fighting misclassification is of particular importance to ensure that workers benefit from the protection and rights to which they are entitled. Policy responses to tackle misclassification and to strengthen enforcement in this area are discussed in detail in Chapter 3.

While the questionnaire referred to a broad range of measures that could be taken to strengthen social dialogue and workers’ voice in new forms of work, most of the policies described were attempts to extend collective bargaining rights to certain groups of self-employed workers. Among the policy responses described in this chapter are:

• Clarifying the application of competition law;

• Introducing exemptions from the prohibition to bargain collectively;

• Providing a special status for workers in the “grey zone” which permits them to bargain collectively, whether applied in labour law or limited to labour relations law;

• Extending rights to collective representation and collective bargaining to self-employed workers, to platform workers or to certain sectors/occupations;

• Engaging with social partners, supporting their efforts to conclude collective agreements or establishing forums for dialogue.

11.1. Clarifying the application of competition law

The Norwegian Sharing Economy Committee, appointed in 2016 by the government to evaluate opportunities and challenges presented by the sharing economy (focusing particularly on passenger transport services and the accommodation market), recommended that competition authorities draft and publish a guide on the issue of collective bargaining and the application of competition law. Most committee members expressed the opinion that independent workers in the platform economy, who do not have the power to set prices, should be allowed to bargain collectively with the platform – although no further actions were reported in this regard.

11.2. Introducing exemptions from the prohibition to bargain collectively

In Australia, the Competition and Consumer Act 2010 generally requires businesses to act independently of competitors. However, the Act allows businesses to collectively negotiate with suppliers or customers, where such action is assessed as being in the public benefit. Business are able to obtain exemption from the Act if the Australian Competition and Consumer Commission is satisfied the collective bargaining would result in overall public benefits. The Australian Competition and Consumer Commission is also currently undertaking a public consultation process regarding the creation of a class exemption for collective bargaining by small businesses (including independent contractors). A class exemption for collective bargaining would effectively provide a ‘safe harbour’, so businesses that met eligibility criteria could engage in collective bargaining without breaching the competition law and without seeking approval from the Australian Competition and Consumer Commission.

“The collective negotiation provisions of the Act recognise that smaller businesses can face challenges when negotiating with larger businesses and that the outcomes from these negotiations may not be the most efficient or optimal. By acting together, small businesses may have a better opportunity to have input into negotiations than if they act independently.” – Australian questionnaire response

In 2017, the Irish Parliament adopted the Competition Amendment Act, which introduced exemptions from competition law for three professions, namely voice-over actors, session musicians and freelance journalists, allowing them to bargain collectively. These three professions had been the centre of campaigning and legal challenges by sector unions following a 2004 decision by the (then) Competition Authority to consider negotiations within these professions as price fixing.

The Act also opened the possibility of collective bargaining to the “fully dependent self‑employed” and not only to “false self-employed” workers. Under Irish law, trade unions have to apply for the exemption and prove that the workers they want to represent fall in one of the two classes and that their request will have “no or minimal economic effect on the market in which the class of self-employed worker concerned operates”, nor “lead to or result in significant costs to the State”. At the time of writing, no applications had been submitted.

11.3. Providing a special status for workers in the “grey zone”

In countries that have an intermediate category in labour law for workers in the “grey zone” between dependent employment and self-employment, this status may also be associated with the right to bargain. This is the case with arbeitnehmerähnliche Personen in Germany, workers in the United Kingdom, and TRADE in Spain.

Canada does not have an intermediate worker category in labour law. However, the definition of “employee” under Part I of the Canada Labour Code, which applies to collective bargaining in the federally-regulated private sector, includes “dependent contractors”. The origins of this approach were in arguments by a law professor in the 1960s (Arthurs, 1965[24]) – many Canadian jurisdictions adopted the definition of dependent contractor in the following decade – that collective bargaining is a way of addressing a power imbalance and, due to similarities between dependent contractors and employees, they should be eligible for unionisation. This allows for their inclusion in the same bargaining unit as other unionized employees, whether full-time, part-time or casual, to which the same collective agreement would apply. A separate collective agreement for dependent contractors is also legally permissible. The conditions for dependence are that the contractor must be dependent on a person or individual enterprise (rather than on an industry for example) and that the relationship more closely resemble an employment relationship than that of an independent contractor. Although this status has not been widely applied in practice (and is not a recent reform), the rationale that underpinned this approach has relevance for discussions today.

11.4. Extending rights to certain groups of self-employed workers

A number of countries reported efforts to extend rights to collective representation and collective bargaining to self-employed workers, to platform workers or to certain sectors/occupations.

On top of competition law barriers, in some countries, the self-employed are prohibited by law from joining trade unions. This changed recently in Poland. From 1 January 2019, amendments to the Act on Trade Unions come into force, which granted the right to establish and join trade unions and to conclude collective agreement to workers engaged under civil law contracts and self-employed. The amendments were a consequence of a 2015 Constitutional Tribunal ruling that restricting trade union access to employees only was unconstitutional. They were also reported to be motivated by the issue of bogus self‑employment in Poland. As a result of the amendments, collective bargaining rights are extended to all workers, as long as they do not employ others to perform the work and have rights and interests that can be represented and defended by a trade union.

Where platform workers are classified as self-employed, the same restrictions to collective bargaining will apply. In France, there have been particular efforts to extend collective bargaining rights to those working on platforms. The 2016 El Khomri law (or loi Travail) in France introduced a measure allowing platform workers to form a trade union organisation, to join it and to assert their collective interests through it. An interministerial circular has also stated that platform workers have the right to refuse to provide their services in order to defend their professional demands.

In the creative sector, where much of the work is done on a freelance basis, the discussion around access to collective bargaining rights is not new. In some countries, creative workers have had collective bargaining rights for years, enabled by specific exemptions and special statuses. For instance, freelance journalists in Austria have long had the ability to bargain collectively.

In Canada, the Status of the Artist Act governs professional (labour) relations between artists and producers (broadcasting undertakings) operating in the federal jurisdiction and protects their freedom of association. The Act covers independent contractors who work in virtually all artistic mediums as authors, performers, or other professionals who contribute to the creation of a production (e.g. camera operators, set designers, audiovisual technicians). Under the Act, a group of self-employed artists working for the federally regulated “producers” can be recognized and certified by the Canadian Industrial Relations Board (CIRB) as an artists’ association with the exclusive right to negotiate with producers for the purpose of entering into or amending scale agreements, i.e. written agreements that can include provisions related to hours of work, scheduling, collective bargaining procedures, provisions unique to the particular artistic craft and ones related to licensing fees, royalties, or copyright. The Act came into force in 1995 (with an amendment in 2012) in response to the UNESCO Recommendation concerning the Status of the Artist, adopted in 1980, which recognised the right of artists to be organised in trade unions or professional organisations that can represent and defend the interests of their members.

In New Zealand, the Film Industry Working Group (FIWG) was set up by the Workplace Relations and Safety Minister in 2018 with the aim of finding a way to restore collective bargaining rights to film production workers. These workers currently cannot bargain collectively because of changes to New Zealand’s Employment Relations Act in 2010 (known as the Hobbit Law), which excluded film production workers from employee status unless they are party to a written employment agreement. By contrast, the employment status of other workers in New Zealand is generally based on the real nature of the relationship between them and those who engage them. The FIWG reported to the Minister in October 2018 and has recommended a bespoke collective bargaining regime for contractors doing screen production work. The FIWG also recommended that existing barriers and restrictions on contractors bargaining collectively, such as in competition law, be removed. The New Zealand government is currently considering its response to the FIWG’s recommendations, and policy decisions are expected to be made in the first half of 2019.

The government in the Netherlands said that it was, at the timing of writing, working with the cultural and creative sector to strengthen freedom of association for existing organisations of workers, employers and employees. They anticipated that this might serve as a pilot for other sectors, although they acknowledged restrictions within EU competition law and the specific characteristics of the cultural and creative sector.

11.5. Engaging with social partners

While the focus of the survey was on public policy responses (and therefore did not capture initiatives by trade unions and by businesses to promote collective bargaining and social dialogue), a number of countries mentioned their attempts to engage with the social partners. The Italian Minister of Labour was said to be in discussion with employers and workers’ representatives to define basic principles and labour standards for platform workers.

Canada, Ireland, Portugal and Poland described recent efforts to establish dialogue between government and social partners:

• In Ireland, the Labour Employer Economic Forum was established in 2016 to bring together employer and trade union representatives and government ministers to discuss economic and employment issues. The Employment Legislation and Regulation sub-group will consider the issues of precarious employment and false self-employment.

• A forum for tripartite dialogue at national level was established by the Polish President in 2015. The Social Dialogue Council (SDC) aims to improve social and economic development conditions, the competitiveness of the Polish economy and social cohesion.

• Canada described a new commitment to engage with organisations representing employers and employees, official language groups and under-represented groups as part of its annual planning and priority setting process.

• Portugal mentioned a 2019 study on Digital Economy and Collective Bargaining undertaken by the Centre for Labour Relations, a tripartite body with technical functions established in 2012 by the government and the social partners.