Designing Collective Bargaining Frameworks for Self-Employed Workers: Lessons from Australia and Canada

Abstract

The capacity for workers to combine in order to further their economic and social interests is a fundamental right enshrined in the Conventions of the International Labour Organization. Despite this, access to lawful collective bargaining may be limited in national jurisdictions to a more restricted class of workers, namely 'employees'. In common law countries, self-employed workers (or independent contractors) are almost always excluded. The distinctions drawn in national collective bargaining schemes between who is covered and who is not are a product of twentieth-century forms of work organization which facilitated a clear delineation between 'employees' labouring for the benefit of their employer, and self-employed 'entrepreneurs' in business for themselves. However, the economic structures and forms of work organization underpinning that distinction have broken down. Workers in need of the protection and benefits collective bargaining offers may be excluded because their contractual arrangements do not fit the twentieth-century model of employment on which access to collective bargaining is commonly based. Exploring how the boundaries of labour law regulation should be redrawn for the new globalized, outsourced and restructured world of work is a major challenge confronting the labour law discipline. This article considers how we might redefine those boundaries in the context of collective bargaining to accommodate the needs of self-employed workers. Starting from the assumption that such workers should be provided with access to lawful collective bargaining, the article discusses the issues that arise in designing such a framework. The discussion will draw upon various schemes in Australia and Canada that have been designed for particular classes of precarious self-employed workers, considering the lessons that can be learned from those experiences.