Filling the Void? A Critical Analysis of Competition Regulation of Collective Bargaining Amongst Non-employees

Abstract

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