A Collective Agreement is <i>Not</i> Inherently Anti Competitive in Japan: Trade Unions, Self-Employed Workers and the Antimonopoly Act

Abstract

The recent phenomena that the gig workers, franchisees and sellers using online shopping platform establish ‘unions’ to bargain collectively with their powerful counterparties give rise to questions as to how these organisations should be dealt under the competition laws. Although it is established that Japanese competition law, Antimonopoly Act (AMA), is not applicable to workers and their collective actions, the legal status of the above entities, which I call self-employed workers, is not clear. Possibility is that they are deemed enterprises, rather than workers, and their collective activities are deemed illegal cartels on which severe sanctions are imposed under the AMA. To help discussion, the article analyses conventional trade unions’ effect and nature from competition law perspectives. Such analysis should be informative given self-employed workers organisations’ aims and activities as well as their members’ economically dependent status are largely the same with ones of trade unions. Having clarified that the trade union should not be viewed neither as a monopoly nor as a cartel for the purpose of the AMA and that market share, or union density, is not helpful in assessing unions’ power, I analyse unions’ unique ways of influencing working conditions - collective bargaining and strike and engagement in regulatory, judicial and legislative activities - and contends that their activities are generally unlikely to be anticompetitive in Japan. Meanwhile, the complex nature of such analysis also become clear. I then conclude that the AMA is a brunt tool to evaluate effect and legitimacy of collective actions to counter powerful buyers, be it conventional employees or self-employed workers, and that the legislature, neither the AMA nor the competition authority, should determine whether self-employed workers should be allowed to unionise and engage in collective actions.