Competition Law, Cartels and Collective Bargaining

The rise of the gig economy, and the expansion of self-employment more generally, have magnified pre-existing concerns about how to address the risk of exploitation of non-employees, including franchisees, freelance journalists and owner-driver transport workers, amongst others. In a bid to fill relevant regulatory gaps, and correct destructive power imbalances, many are turning their attention to the power and potential of collective bargaining. At the same time, there is growing appreciation of how competition prohibitions against price-fixing may curb workers’ capacity to organize for decent wages and working conditions. There has been much discussion and debate about the need to expand existing labour exemptions from competition law in order to allow gig workers, and other vulnerable categories of selfemployed workers, to engage in lawful collective bargaining. Rather than fixating on questions of misclassification, however, this article considers a novel proposal emanating from the sphere of competition regulation in Australia. After extensive consultation and prolonged Parliamentary debate, the Australian Competition and Consumer Commission (ACCC) has adopted a class exemption which provides a broad legal immunity to eligible small businesses, including self-employed workers, wishing to engage in collective bargaining. The ACCC’s Determination to extend collective bargaining rights to small businesses – with effect from 3 June 2021 – represents a highly progressive approach and one worthy of greater attention and deeper analysis. To assess the regulatory value of this unique approach, we draw upon the International Labour Organization (ILO) standards relating to collective bargaining and freedom of association. In doing so, we critically assess the extent to which the ACCC’s approach offers a potential solution to resolving the tension between labour law and competition law when it comes to the regulation of self-employed workers. Somewhat surprisingly, we find that the class exemption largely complies with relevant ILO principles, despite the fact that it does little in terms of actively promoting or encouraging effective collective bargaining. For example, in line with ILO conceptions of voluntariness, the class exemption places virtually no restrictions on the scope, level or subject matter of the bargaining. Ultimately, however, we argue that if collective bargaining is to have any chance of filling the regulatory void which exists between labour law and competition law, it is critical that basic structures and supports are in place to facilitate meaningful bargaining: where collective activity is supported by trade union autonomy and the right to engage in strikes in support of bargaining demands and concluded agreements. Mercosur, Socio-Labour Declaration, Argentina, Brazil, Uruguay, Paraguay, Venezuela, Regional Integration, Labour Rights, Regional Trade Blocs, Latin America, Global South

Facilitating access to effective and meaningful collective bargaining is at the heart of the most recent set of reforms to the Fair Work Act 2009 (Cth) (‘FW Act’) enacted in the Fair Work Legislation Amendment (Secure Jobs, Better Pay) 2022 (Act). In the shadow of these reforms, this article explores who can engage in collective bargaining in Australia and under what conditions. While there are a range of issues impeding the effectiveness of the collective bargaining system under the FW Act, this article focuses on the question of bargaining access under both labour and competition laws and reveals some of the formidable challenges facing employed and non-employed workers alike. It examines how the rise in dependent contractors and the disaggregation of firms—through labour hire, subcontracting, franchising and/or digital platforms—has destabilised the binary conception of employment. The decline in formal employment and the growth of the ‘fissured workplace’ have not only perpetuated the problem of ‘wage theft’, they have altered the way in which wages are set in the first place. Moreover, these factors have exposed the tensions that lie between the regulation of mainstream labour markets through worker-orientated labour legislation and the regulation of product markets and business relationships under consumer-orientated competition legislation. The discussion explores the limitations created by the siloing of regulatory approaches to enabling collective bargaining for workers covered by different statutory regimes. We identify that in both labour and competition laws, meaningful access to collective bargaining in fissured work contexts has been frequently stifled by misplaced assumptions about the nature of the regulatory target and the power distribution in business networks. The article contends that a regulatory response to fissuring (or the problem of ‘the networked firm’) would straddle the labour/competition law divide in various ways, to ensure fissured workers are no longer excluded from exercising collective power by both legal domains.

Policy considerations: • EU competition law imposes limits on the scope of collective labour law, as it precludes self-employed workers from collective bargaining . • There is a rising number of self-employed workers whose livelihood are characterised by increasing precariousness and whose working conditions could be improved by ensuring that collective agreements fall outside the scope of competition law. • The European Commission intends to reform the scope of EU competition law and this could offer an opportunity to define a new regulatory paradigm. • This policy briefs discusses a possible reconfiguration of the coexistence between collective bargaining and competition law. • Access to collective bargaining should ensure that employing businesses with a dominant bargaining position do not push labour conditions downwards.

Many platform workers are engaged in activities that are insecure, poorly paid, and often dangerous. But the fragmentation and individualization of their work, reflecting both technology and (in many cases) geography, impede these workers from expressing their opinions, priorities and demands. Making matters worse, the typical classification (or misclassification) of platform workers as contractors often denies them not just basic employment protections, but access to traditional forms of collective organization and bargaining. This chapter focuses on the use of regulation to facilitate collective bargaining or other methods by which platform workers can win a meaningful say over work organization, compensation, and working conditions. The chapter assesses the extent to which existing systems of labour regulation around the world can accommodate representation and collective bargaining for platform workers. It also explores how collective bargaining for self-employed workers may be constrained by competition laws. It reviews examples of actual or proposed reforms to national laws to facilitate representation and collective action by platform workers, as well as the application of current or proposed international labour standards and codes of conduct. The chapter concludes by identifying the most promising priorities for regulatory improvement to support the development of genuine and effective mechanisms of collective voice, representation, and negotiation for platform workers.

It is sometimes mutually beneficial for businesses to join together through a cooperative or other organisational structure in order to pool their ability to buy or sell goods and services. Collective bargaining is a particular form of cooperation between businesses that is limited to either buying or selling particular products. Collective agreements between competitors are often illegal under competition laws. However, in some jurisdictions, such as Australia and the European Union, collective bargaining can be exempt from those laws. The test for exemption in these jurisdictions involves analysing the costs and benefits of exemption. This article analyses both the costs and benefits of collective bargaining by businesses. The aims of this article are threefold: (1) to develop a simple economic framework to analyse the costs and benefits of negotiations between a collective bargaining group on one side of a market and either a supplier or a customer on the other side of the market; (2) to compare the results from this framework with the approach adopted by the Australian Competition and Consumer Commission (ACCC) in recent collective bargaining decisions; and (3) to highlight areas of potential concern where the ACCC could focus its attention.

This chapter examines the potential threat posed to collective bargaining by workers from competition laws designed to prevent anti-competitive conduct by business actors. As increasing numbers of workers are engaged under contractual arrangements more closely resembling agreements between businesses or undertakings (irrespective of the economic or practical reality of the relationship), it becomes more likely that their collective arrangements will come under scrutiny from competition law. This chapter considers labour market exemptions from competition law in Australia and the European Union, which operate as the dividing line between labour law and competition law. Their scope ultimately determines which workers may engage in collective bargaining without potentially breaching competition laws. The continued existence, scope, and strength of the exemptions is, accordingly, a crucial element in ensuring access to collective bargaining for workers, enabling their collective voice to be heard.

The development of a wide-reaching collective representation for (genuine) self-employment and the collective negotiation of fair fees for independent contractors might often be more dissuasive vis-à-vis scam self-employment than the threat of reclassification. However, case law in both civil and common law jurisdictions showcases how antitrust law can hamper the collective negotiation of workers’ minimum fees. The premise of such a view, which has its roots in the early stage of development of collective bargaining, is that the agreements setting the rates of pay for non-subordinate labour stand as restraints of trade. The author contends that this narrow interpretation of the scope of collective labour law - or rather this extensive view of the scope of antitrust law - is unacceptable. On the one hand, workers who personally carry out their activity cannot be treated as businesses operating on a free market, because they are - akin to the employees - individuals who lack the power to tangibly affect the terms and conditions of their work. For those persons, as the author recalls, collective bargaining have always stood for, even before the binary legal divide between employment and self-employment was drawn. On the other hand, it appears incongruous that a major challenge to the perimeters of collective labour law stems from a formalistic approach to a field of law (antitrust or competition law) which seeks to correct the market asymmetries in the interest of weaker parties, such as smaller businesses, communities and consumers. Ultimately, the author contends that a solution to overcome this legal hurdle cannot be found through a mere change in the interpretation of the existing US and EU competition and labour law rules, which have to be amended by the legislators in accordance with the current social needs.

Starting from the recent ECJ decision in Albany, this article tries to rebuild the historical reasons of the possible contrast between collective bargaining and competition law. Moving from this historical analysis, the author shares the dissatisfaction expressed in the first comments on Albany. The less convincing is the Commission's thesis, according to which collective agreements could not fall within the notion of 'agreement among enterprises', contained in Art. 85 (now 81) of the Treaty. This is the reason why the author argues that we need a wide-ranged confrontation between labour law and competition law. Finally, the author identifies some hypotheses on the way in which law and economics may interact in this matter, either on the level of the legislation in force or on that of the future one.

The AMA does not apply to workers’ collective actions protected by labour law. Due to the uncertainty in the definition of workers and coverage of labour law, the extent to which self-employed workers’ collective actions are exempt from the AMA has become unclear. In such a context, it is imperative to recognise that small economic entities’ collective bargaining and other activities that trade unions are engaged in are not always anticompetitive and that an AMA violation is not found unless substantial restriction of competition, or lessening of competition, is caused by the practices. Moreover, the actions of co-operatives are also exempt from the AMA and those who are not protected as workers can strengthen their bargaining position by forming co-operatives. The AMA is primarily enforced by the JFTC and its interest has been rather to protect small businesses from those with superior bargaining positions. For the time being, it is unlikely that the JFTC will start prosecuting the collective actions of self-employed workers which may be protected by the labour law. The paper details the relationship between labour and competition law in Japan focusing worker's collective actions.

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.

The EU Court of Justice (CJEU) approach to solving cases of clashes of collective bargaining with the freedoms of the internal market is noticeably different from how the same Court resolves clashes of collective bargaining with the rules of economic competition. This difference has been the subject of disputes before the CJEU, but to date it persists despite the tensions that it raises due its practical consequences. The problem lies in the fact that while the CJEU is very accommodating towards the collective bargaining process in antitrust cases, it is strikingly unfriendly in cases involving the freedoms of the internal market. In them, the CJEU constantly assesses the exercise of the fundamental right to collective bargaining and action as a possible exception to the freedoms of movement that could only be justified by an overriding reason in public interest provided its defence passes the strict proportionality test. The study examines whether such a different approach is legally justified and concludes that the real problem lies not so much in the diversity of approaches as such, but in how deep and significant this difference is. In the end, the study seeks to offer a solution that would remove this sharp contradiction and the socio-political tensions that are caused by it.

Względy społeczne są silnie chronione w prawie Unii Europejskiej i Stanów Zjednoczonych. Ważnym elementem wskazanych systemów prawnych jest również prawo antymonopolowe, którego cel, najogólniej rzecz ujmując, stanowi zapewnienie właściwego funkcjonowania rynku. Kwestie socjalne nie mieszczą się w optyce prawa antymonopolowego. Może to prowadzić do powstania bardzo skomplikowanej sytuacji między prawem antymonopolowym a unormowaniami służącymi ochronie względów socjalnych. Istnieją obszary, na których te dwa zespoły norm są komplementarne, ale zauważyć należy również, że na pewnych płaszczyznach cele prawa pracy są odmienne, a nawet przeciwstawne wobec zadań stawianych przed prawem antymonopolowym. Sferę, w której powstanie konfliktów jest najbardziej prawdopodobne stanowią układy zbiorowe pracy. Zgodnie z unijnym i amerykańskim orzecznictwem prawo antymonopolowe nie może być wykorzystywane do uniemożliwienia osiągnięcia celów socjalnych chronionych przez prawo. Istnieją jednak przypadki, w których stosownie prawa antymonopolowego do układów zbiorowych pracy jest możliwe.

This article examines the collective bargaining provisions for SMEs in competition law in Australia. It concludes that SMEs' use of the collective bargaining notification process has been relatively small and does not have any impact over the competition regulation in the market. While this provision helps SMEs supply reasonably homogenous products or services, it is otherwise limited in its application.

In Náisiúnta Leictreach Contraitheoir Éireann v Labour Court, the Irish High Court struck down as unconstitutional a key component of Ireland’s industrial relations system for the third time in recent years. The Court determined that the extension of collective agreements erga omnes breaches the constitutional prohibition on the delegation of legislative power. This note explains the background to that decision and critiques the Court’s reasoning from the perspective of a ‘labour constitution’ model of labour law, and in light of international and European legal principles. The decision appears to misunderstand the place of collective bargaining at a sectoral level within European internal market and competition law. It also seems to rule out any form of meaningful participation by workers, employers and their representatives in collective bargaining on a sectoral basis or through dedicated industrial relations machinery. According to the vision of Irish constitutional law put forward in this case, decisions relating to the administration of production and economic life more broadly must be reserved to the legislature. This is a significant loss for the autonomy of the social partners and represents an impoverished understanding of democracy and legitimacy within the constitutional order, and risks leaving Ireland even more of an outlier in Europe than it already is on the issue of sectoral collective bargaining.

In the gig economy, workers could be subject to exploitative and coercive practices by platforms and their stringent labour algorithms. Since gig workers are not defined as typical employees, the Chinese labour law system fails to adequately protect gig workers. Furthermore, the limited scope of labour law protection is also another reason for the ineffectiveness of the Chinese labour law system. Even if gig workers can be identified as employees, the regulation of labour algorithms is uncovered by the existing labour laws. Additionally, collective bargaining rights of gig workers may help but as explained in Section 4, they are still immature and collective barging practices are likely to violate the Chinese Anti-Monopoly Law. This article claims that the enforcement of the Anti-Monopoly Law can be an alternative approach to protecting gig workers as the gig platforms may constitute a labour monopsony. Therefore, anti-trust enforcement can step in and punish exploitative and coercive practices harming gig workers. However, there are limitations of the Anti-Monopoly Law in dealing with these practices and thereby the advantages of the Chinese labour law system regarding the protection of gig workers should still be taken seriously.