Labour Law and Competition Law Under French Regulation

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

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.

UBER is often described as disruptive innovator. This paper examines whether the UBER model disrupts the classical competition analysis thereby creating the uber-cartel, a cartel to which the normal competition rules don’t apply. This working paper on UBER and UBER-like business models examines issues that such a model faces with regard to labour and competition law with a particular focuses on the competition law implications if UBER’s business model is not subject to labour law. The paper first describes the UBER model and the labour law questions. Then it examines the possible competition law implications of UBER and UBER-like business models. After presenting a recent antitrust court decision in the US in a pending antitrust case against UBER, the paper finally briefly explores potential ways how UBER and UBER-like can prevent antitrust liability.

The paper delves into the ways in which EU competition law affects the right of workers to combine with each other and act, collectively, in the furtherance of their rights and interests at work, in particular by means of collective agreements concluded with one or more employers. It begins by opposing the limited ‘labour exemption’ contained in the recent competition caselaw and contrasts that with a more traditional ‘labour law’ approach, that would typically see collective bargaining as a fundamental, and universal, labour rights to be enjoyed by all workers, or in the alternative will have to integrate the asymmetry of bargaining power between labour and digital monopsonies. We put forward a more nuanced and balanced approach, by reference to the concept of ‘predominantly personal work’, that could act as the new watershed concept around which labour rights and competition law could define their respective fields of operation and which may already inspire the recent Commission’s proposals enabling self-employed without employees (“solo self-employed”) to access the right to bargain collectively on a number of issues with digital platforms.

Innovation is central to competition policy. Indeed, in some industries, it is the primary means by which firms compete. The metaphors are dramatic: innovation is a ‘life and death matter for the firm’ and ‘a weapon in the arms race of competition’. Even more fundamentally, innovation, economists tell us, is pivotal to the capitalist economy as a whole. Baumol, in his book on innovation, declares that it is innovation that drives economic growth and that, without it, economies stagnate. Despite the well-established role of innovation in competition law and policy, however, the contribution such a perspective brings to the particular innovation issues raised in Gray’s case, the subject of discussion in other chapters, is limited. A contest between an employer and employee for intellectual property rights to an invention has clearer implications for labour, intellectual property and corporate law. The response of competition law to this issue, it seems to me, is far less clear. In broad terms, competition law and policy is concerned with the promotion of competition or, putting it in the more negative terms of competition legislation, prohibiting conduct that lessens competition.5 With this focus, competition law would seem to have little interest, in a general sense, in whether intellectual property rights are granted to an employer or an employee. It is true that there is a well-established interface between competition and intellectual property laws and, in a broad sense, some of this interaction may be relevant. This is because competition law, like intellectual property law, sees innovation as one of its key aims.

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.

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.

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.

Business Innovation and the Law analyses the topical issue of protecting and promoting business research and development. It does so by examining business innovation through the lens of different legal disciplines – intellectual property, labour and employment laws, competition and corporate laws.

This book examines the employment arrangements of professional athletes in the Premier League football competition, the National Basketball Association competition and rugby union played at an international level. It describes the organisation and regulatory frameworks of these three professional team sports and highlights the legal, economic and regulatory factors that influence the final form of an athlete’s working conditions. It provides a comparative analysis between the sports on issues such as the role of collective bargaining, wage regulation, salary caps, nationality restrictions, eligibility, player movement and the acquisition of a player’s intellectual property. It discusses the approaches adopted in each sport for balancing the interests of labour and management, the problem of controlling private regulatory power in professional sport and considers the extent to which legal or government intervention is required in an athlete’s employment relationship. National law can assist players in a domestic league to secure an involvement in the determination of working conditions but it has a more limited effect in a competition organised by an international governing body. This book argues that social regulation through soft law processes at an international level may benefit athletes, consumers and sport globally. It provides a useful case example for comparison with the organisation of other professional team sports in Europe, North America and Australasia. This book is important reading for scholars and practitioners in the fields of international sports law, employment law, competition law, European law and human rights law. It is also highly recommended for students at undergraduate and postgraduate levels taking modules and courses in Sports Law or Sports Business Management.

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.

The role of the legal system in the working of the economy is important. This is especially true in Italy's case. Uncertainty is a major handicap for a modern monetary market economy. Empirical analysis confirms that countries' economic performance is powerfully influenced by the legal system and how it is perceived by economic agents. There appears to be considerable scope for improving the legal framework within which the Italian economy operates - and even more the opinion in which it is held by economic agents. The key areas in this respect are company law, bankruptcy law and labour law, together with competition law and the rules governing civil proceedings. The obstacles to progress do not appear insuperable.

The protection and promotion of labour rights at the peak of globalization with digitalized economy needs altogether a different treatment, especially so with regards to a developing economy which has great challenges of dealing with poverty and concentration of wealth. It is a common understanding about law that a good law is the one which is able to accommodate exceptional conditions. Thus every law is all pervasive if it has general rule followed by exceptions. This analogy is very relevant with respect to various rights of the working class vis-a-vis the Competition Law also known as the Anti- trust law. The paper makes an attempt to examine the exceptions to the application of the competition law, rules and policies in the area of various activities of the labour/ employees recognized by law in regard to a workplace, with a view of protecting their rights and interest. The Competition Law promotes free competition in a liberalized economy and leaves all aspects to be determined by the market conditions. The globalization process has compelled all stakeholders to pass and implement Competition Law and frame an appropriate policy, any violation of this is viewed as direct attack on healthy practice of a globalized economy. The question here is should the working class be left to be governed by market forces in regard to their working conditions and denied the age old rights they have acquired after a great struggle which empowers them to negotiate terms and conditions of work or the statutory protection where provided for?

As scholars and policymakers around the world seek a systematic approach to the question of 'gig work,' one of its regulatory dimensions – the intersection of labor and competition law – points toward a deeper reconceptualization of the conventional legal and economic categories typically brought to bear upon it. A comparative approach to the question of gig work further reveals the variety and contingency of background assumptions that are often overlooked in the context of domestic policy debates. By combining a detailed comparative doctrinal survey of the regulation of non-employee workers in domestic competition law systems with a set of essays reframing the underlying questions raised – in terms of international legal frameworks, freedom of association norms, alternative approaches to law and economics, and more – The Cambridge Handbook of Labor in Competition Law moves the debates over the fissured workplace and the labor – competition law intersection forward in novel ways.