1. Collective bargaining for the self-employed
Karen Curtis
Chief, Freedom of Association Branch, ILO

2. Trade union rights for Employees, Bogus Self Employed, Self-Employed Workers, Freelancers, Agency Workers . . .

3. Labour is not a commodity
Cornerstone of the ILO and turning point of anti- trust legislation in the first quarter of the 20th century
Recognized that collective bargaining and industrial action were legitimate objectives of self-help and could not be construed as illegal combinations or conspiracies
Critical tool for setting basic minimum conditions
Labour is defined as not having capital stock or conducted for profit as distinguished from an undertaking subject to competition rules
Clayton Antitrust 1914: The labor of a human being is not a commodity or article of commerce – objectives: avoid lessening of competition and creation of a monopoly
Undertaking. For the purpose of EU antitrust law, any entity engaged in an economic activity, that is an activity consisting in offering goods or services on a given market, regardless of its legal status and the way in which it is financed, is considered an undertaking Nov 14, 2017
In economics, a cartel is an agreement between competing firms to control prices or exclude entry of a new competitor in a market. It is a formal organization of sellers or buyers that agree to fix selling prices, purchase prices, or reduce production using a variety of tactics

4. No place for bogus/disguised self-employed and self-employed dichotomy
Most ILO standards refer to workers, not employees
Article 2 of C 87 provides that the right to organise is to be granted to “all workers without distinction whatsoever” for the purposes of furthering an defending their interests (Article 10)
ILO Conventions 98, 151 and 154 extend collective bargaining rights to all employers and workers and all subjects
2012 General Survey: the right to collective bargaining should also cover organizations representing self-employed workers (para 209)
Trade union rights have been systematically seen as applying to workers in the broad sense of the term
1985 Chile case for petitions of self-employed workers (Case No. 1285)

5. ILO Global Forum on Employment Relationships in the Media and Culture Sector (2014 Points Of Consensus)
Fundamental principles and rights at work apply to all workers in the media and culture sector, regardless of the nature of their employment relationship
Freedom of expression and independence must underpin the sector
Governments need to ensure that competition legislation does not obstruct the right of media and culture workers to freedom of association or to engage in social dialogue with their social partners (information sharing, consultation and CB)
Good starting point, but also need to go beyond more broadly to self-employed regardless of sectors

6. Ensuring fundamental rights in an Orwellian world
Freedom of association and collective bargaining
Problems in online activism – Easy monitoring of workers via GPS and IT- devices – Reputation and ratings
Discrimination (including indirect discrimination)
Implicit and explicit bias in rating – Exclusion of workers
Gender pay gap
Indirect discrimination if incentive to work longer hours. Companies may set criteria to skim workers also on the basis of home country. Emotional labour and implicit and explicit bias
Lock-in effects: idiosyncratic investments and reputation. Good ratings are a type of “capital” in the gig economy which is impossible to carry over, when moving to another platform

7. Collective bargaining mechanisms that adapt to the risks
Collective bargaining is between an employer(s) or their organizations and organizations of workers
Need clear understanding of who is an “employer” and a “worker” to determine which side of the negotiation table
Collective voice may be used to participate in regulatory choices
Bargaining units and mechanisms may differ and be adapted to new forms of work and work organization
Employer = A legal entity that controls and directs a servant or worker under an express or implied contract of employment and pays (or is obligated to pay) him or her salary or wages in compensation.

8. Korea – Self-employed truck drivers
CFA Case 2602
Can work outside of the labour relations law by virtue of constitutional right to organize and protect their interests through negotiation with their business counterpart BUT are not trade unions
Even if no employee status, right to join the union of their own choosing, including being represented by a national confederation of workers
Hold consultations with all the parties involved with the aim of ensuring that workers who are self-employed fully enjoy trade union rights under Conventions Nos 87 and 98 for the purpose of furthering and defending their interest, including by the means of collective bargaining
Identify the particularities of self-employed workers that have a bearing on collective bargaining so as to develop specific collective bargaining mechanisms relevant to self-employed workers, if appropriate.
Relevant aspects of Case raised in 2009

9. Cases before regular supervisory machinery - Ireland
Self-employed voice-over actors, session musicians and freelance journalists – workers in vulnerable situations
CEACR – Ensure that self-employed may bargain collectively for these workers and other types of freelancers and independent workers
CAS 2016: identify the types of contractual arrangements that would have a bearing on collective bargaining mechanisms.
2017 Competition amendment Act – noted with satisfaction – coverage of the above plus possible applications for fully dependent/false self-employed
Comments by employers’ organizations focused on determination of fully dependent and false self-employed
Who is the bargaining partner – previously Institute of Advertising Practitioners
First comments raised by ICTU in 2005 – little government engagement until CAS discussion 2016
– goes beyond self-employed substitute musicians working in the same place –
Collective agreement made by Actors Equity SIPTU and the Institute of Advertising Practitioners in Ireland (IAPI), Entitled Agreement on Minimum Fees, (2002) which agreed the rates of pay and the conditions of employment to be provided to workers within radio, television, cinema and visual arts – goes beyond price to working terms and conditions (NOT likely to happen with a cartel)

10. The Netherlands – the continuing debate around true self-employed and bogus
Netherlands Trade Union Confederation (FNV) brings case related to Netherlands Competition Authority opinion discouraging collective bargaining of contract labour and refers “serious matters” to CEACR in 2008
ECJ preliminary ruling December 2014: FNV Kunsten Informatie en Media (KIEM) v. the State of the Netherlands: national identification of false self- employed
Hague Court of Appeal September competition law does not preclude a collective agreement from requiring an employer to apply its provisions to self-employed substitutes (musicians substituting for members of an orchestra) and, in particular, to apply certain (minimum) rates
CEACR: Government reply continues to refer to negotiations between employers’ and employees’ organizations that may include “bogus self- employed persons” (service providers in similar positions to employees), which do not fall within the concept of “entrepreneurs” under European competition law, even if they are genuine self-employed under national law
FNV observes that the Netherlands Authority for Consumers and Markets (ACM) still refuses to more broadly acknowledge the collective bargaining rights of self-employed workers that work side by side with regular employees
Entrepreneur = a person who sets up a business or businesses, taking on financial risks in the hope of profit.

11. The Netherlands conclusion: Adaptability
The Committee is nevertheless aware that the mechanisms for collective bargaining applied in traditional workplace relationships may not be adapted to the specific circumstances and conditions in which the self-employed work. The Committee invites the Government to hold consultations with all the parties concerned with the aim of ensuring that all workers including self-employed workers may engage in free and voluntary collective bargaining. Considering that such consultations will allow the Government and the social partners concerned to identify the appropriate adjustments to be introduced to the collective bargaining mechanisms so as to facilitate their application to self- employed workers, the Committee requests the Government to provide information on the progress achieved in this respect.

12. Specific challenges for the gig economy and platform work : Where is the work performed and which rules apply?
Confirm the ‘place of work’ is where the worker carries out the work
National jurisdiction – But does the state have jurisdiction over the employer?
Is there a role for cross-border regulation of the digital economy?
Does Home Work provide an answer? General Survey for

13. National and international action
Tripartite dialogue to develop innovative approaches, including regulatory initiatives for self-employed FA rights and protection under applicable CBAs
Identify effective bargaining systems and mechanisms, including determination of relevant employer
Identify best practices and regulatory initiatives to close representational gaps and provide capacity building to social partners
Strategic use of ILO supervisory mechanisms to heighten attention on the specific challenges
Promotion of industrial/sectoral level bargaining with extension to all relevant workers – R 91
Determination of bargaining units so as to promote meaningful collective bargaining
Unchartered terrain: How to define the collective – national limits or cross-border? Which rules govern cross-border CBAs and where/how can they be enforced? Is there a role for international regulation?