3 - Economic Coordination as Freedom of Association

Summary

Labour lawyers are familiar with the binary divide between employees and the self-employed. Historically, this also demarcated the exclusion of competition law restraints on workers’ collective action. In recent times, growing numbers in the labour market are self-employed yet work in circumstances of economic disempowerment. They would benefit from collective bargaining, but competition law operates as a barrier to its realization. This chapter considers a ‘fundamental rights’ strategy for challenging competition law restraints. This strategy is based on the simple claim that the fundamental human right to bargain collectively is a right for ‘everyone’. The chapter identifies some weaknesses and problems with this approach within the European context. Abstractions like the ‘everyone’ argument can be counterproductive because human rights must be situated within existing power relations and economic structures in labour markets. Nevertheless, a suitably contextual fundamental rights strategy has an important role to play. On this contextual approach, reflected in the European Social Charter, entitlements to collective bargaining must be sensitive to substantive social and economic disadvantages. The exclusion of competition law would no longer be tied to specific contractual forms like ‘employee’.