On 30 June 2020, the European Commission launched a process to ensure that those who need to can participate in collective bargaining without the fear of breaking EU competition rules.

The first stage of this process will conclude on 8 September 2020, and later this autumn the Commission will publish an inception impact assessment setting out the initial options for future actions.

The focus of the Commission’s process is on self-employed ‘platform workers’. Platform work can be described as an activity that uses an online platform to enable organisations or individuals to access other organisations or individuals to solve problems or to provide services in exchange for payment. Platform work is central to the ‘gig economy’ which has seen significant growth in recent years.

The European Commission Executive Vice-President Margrethe Vestager, said: “The Commission has committed to improving the working conditions of platform workers during this mandate. So today we are launching a process to ensure that those who need to can participate in collective bargaining without the fear of breaking EU competition rules. As already stressed on previous occasions the competition rules are not there to stop workers forming a union but in today’s labour market the concept “worker” and “self-employed” have become blurred. As a result, many individuals have no other choice than to accept a contract as self-employed. We therefore need to provide clarity to those who need to negotiate collectively in order to improve their working conditions.”

Competition Enforcement Against Collective Bargaining in Ireland

In Ireland, the Irish Competition and Consumer Protection Commission (“CCPC”) and its predecessor organisation, the Competition Authority, have a longstanding history of taking enforcement action against collective bargaining on the basis that it eliminates competition between self-employed competitors (who are considered ‘undertakings’ for the purposes of competition law) and has the same detrimental effect on consumers as any other form of collusion. Trade associations representing family doctors, hospital consultants, pharmacists, dentists, hauliers, travel agents and veterinary surgeons, have all previously been subject to enforcement action for having allegedly engaged in anti-competitive collective bargaining.

In 2016, the Irish Congress of Trade Unions (ICTU) lodged a collective complaint (Complaint No. 123/2016) against Ireland with the European Committee on Social Rights (Council of Europe) regarding an alleged breach of Article 6.2 of the European Social Charter, due to a 2004 decision of the Competition Authority which found that voice-over actors were subject to competition law and were therefore prohibited from engaging in collective bargaining. Article 6.2 obliges Ireland “to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements”.

Before the Committee had adopted a decision, the Competition (Amendment) Act 2017 was enacted. The Committee found that the 2017 Act brought Ireland into compliance with Article 6.2 by introducing a limited exemption allowing for three categories of self-employed workers to engage in collective bargaining in relation to working conditions and terms of employment, including pay rates, namely:

• Voiceover Actors;
• Session musicians; and
• Freelance Journalists.

The 2017 Act also created a mechanism whereby trade unions representing certain classes of self-employed workers (known as ‘false self-employed workers’ and ‘fully dependent self-employed workers’) may apply to the Minister for Enterprise, Trade and Employment to allow those classes of self-employed workers to bargain collectively, provided that will:

• Have no or minimal economic effect on the market in which the class of self-employed worker concerned operates;
• Not lead to or result in significant costs to the State; and
• Not otherwise contravene the requirements of the 2017 Act or any other enactment or rule of law (including the law in relation to the EU) relating to the prohibition on the prevention, restriction or distortion of competition in trade in any goods or services.

Notwithstanding the above mechanism, to date, the Minister has not prescribed any further categories of self-employed workers under this mechanism.

Comment

The Commission’s process will be closely monitored by platform workers and online platforms, and also other stakeholders who have historically adopted a position on collective bargaining and competition law, such as national competition authorities, trade associations representing self-employed workers and employer’s unions.
In Ireland, stakeholders will be observing whether options for future actions proposed by the Commission include a mechanism allowing for collective bargaining by platform workers that is more permissive than the mechanism in the 2017 Act. If so, one could foresee arguments being raised that the relevant principles applicable to that mechanism should also be applicable to collective bargaining by other categories of self-employed workers (and not solely by platform workers).