Re-thinking the competition law/labour law interaction: Promoting a fairer labour market

Abstract

The spread of non-standard forms of work, including platform work, has created some friction between labour law and competition law, in particular concerning the collective bargaining of self-employed workers. This article aims to suggest a different, complementary rather than antagonistic, relationship between competition law and labour law. It initially explores the legal construction of the antagonistic relation between labour law and competition law, which is based on the conceptualisation of the two areas of law as separate and isolated legal fields. It explains that such conceptualisation is problematic as it leads to the risk of fundamental conflicts between the two disciplines and some uncertainty as to their respective scope, with the result that the level of labour protection may suffer. This calls for breaking the dichotomy and for ensuring a continuum of protection for various forms of labour, under both labour law and competition law. It thus puts forward concrete suggestions as to the strategies to be followed in order to achieve this goal.

Liberté syndicale et négociation collective dans l'économie des plateformes: de la mobilisation des travailleurs à l'approche axée sur les droits de l'homme

“…Dans ce cadre, le fait d'établir des conditions minimales peut être considéré comme une pratique de fixation des prix contraire à l'intérêt du consommateur et aux règles de la concurrence loyale. Les conventions collectives constituent dès lors une atteinte au droit de la concurrence (Lianos, Countouris et De Stefano, 2019). Nous verrons plus bas que la stricte application de ces règles a déjà privé un nombre considérable de travailleurs des plateformes de la protection fournie par les conventions collectives.…”

Measures for the betterment of the labor market position of non-standard working regimes in the cultural and creative sector in the Netherlands

“…There has been a prolonged debate on whether it is possible within Dutch law to create room for mandatory minimum tariff agreements for self-employed contracts. 2 Until recently the common interpretation of Dutch law entailed that self-employed individuals are entrepreneurs, and as such are subject to competition law which excludes the possibility of setting minimum tariffs (Lianos, Countouris, and De Stefano 2019). It was therefore legally prohibited to establish minimum standard tariffs as this would resemble the forming of a cartel to reduce competition and thus in effect would hamper a free market (Doherty and Franca 2020).…”

“…However, as it is becoming increasingly clear that many self-employed individuals are not able to sufficiently negotiate for their own benefit, and are taking on jobs that are paying well below levels to self-sustain, combined with the spread of non-standard forms of work, some friction arose between labor law and competition law, in particular concerning the collective bargaining of selfemployed workers (Lianos, Countouris, and De Stefano 2019). Therefore, new acts and interpretations of the existing law have been sought.…”

Collective rights of platform workers: The role of EU law

“…Lianos while labour law is increasingly accepting that many workers classified as self-employed are mainly or solely providing personal work to 'labour engagers', competition law is reluctant to accept the view that persons that labour law classifies as self-employed ought to be granted any exceptions from its scope of application. 80 So there is a conceptual and normative mismatch between the categories and purposes of the two disciplines, although some effort has been made to avoid any normative conflict that would arise out of the determination of the boundaries of each discipline. Therefore, EU competition law is an important barrier for the extension of collective labour rights to platform workers.…”

“…Platforms 'associate' a worker to a specific task, but without integrating the worker in the hierarchy, as the worker remains in principle free to also provide work for other 'employers', although this formal freedom may be regulated, for instance, by non-competition clauses in the contractual relation. 91 It must be noted that some of the national laws mentioned above (e.g. TRADE in Spain) have already guaranteed some collective rights for workers in the third labour law category.…”