Art. 101 TFEU remains embedded in UK law even after BREXIT. Like many other States the domestic legislation mirrors precisely the text of Art. 101. However, unlike some other EU countries, by and large competition law has not been used to suppress collective bargaining by the self-employed in the UK, though it has occasionally been threatened in some industries.
In the field of collective bargaining, the much more significant problem for the UK self-employed is one shared with UK employees: the dramatic contraction of collective bargaining coverage. At the beginning of the Second World War about 50% of the UK workforce was covered by collective bargaining. By 1950 total coverage had risen to around 70% and this figure remained relatively stable until it began to rise in the second half of the 1960s. By 1970 coverage was at about 78%. By 1975 it had risen to a peak of about 85%. The UK was then amongst the European countries with the highest levels of collective bargaining coverage.
However, after the election in 1979 of a government under Mrs Thatcher committed to neo-liberal doctrine in which the presence of effective trade unionism and collective bargaining was considered to ‘distort the labour market’, measures were taken to cause the percentage of workers covered to slide inexorably downwards. The destruction of collective bargaining coverage was achieved by a combination of means, both legal and practical. The downwards spiral of collective bargaining coverage barely paused in 2000 when a Labour government introduced a statutory recognition machinery which subsequently neither halted nor slowed the decline in collective bargaining coverage.
In consequence of 45 years of government policy against collective bargaining, the latest figure for coverage is the Labour Force Survey for 2019 at 26.9% of UK workers covered. Four years later, a more realistic estimate is probably around 23%.
In relation to pay, this figure must be significantly reduced since most workers in the public sector, though they nominally retain collective bargaining, are not permitted to bargain collectively in relation to wages which are instead set by Pay Review Bodies or overridden by public sector pay freezes. Many self-employed workers do not have collective bargaining coverage and amongst those workers (both employees and self-employed) who have achieved collective bargaining, there are many who do not have the industrial strength to negotiate wage rates but are merely the subject of consultation (if any) over pay.
One class of self-employed workers which has had very little success in achieving collective bargaining whether over pay or more widely are the gig workers. They are generally lacking in the industrial power to compel collective bargaining. They have therefore sought to utilise the statutory mechanism referred to above to compel collective bargaining. This has proved problematic because that statutory right is confined to ‘workers’, the statutory definition of which (for these purposes) permits employers to devise contracts which purport to exclude them from the definition.
One such case concerns Deliveroo riders. The statutory definition requires the contract to contain an obligation on the putative worker ‘to do or perform personally any work.’ This enabled Deliveroo to seek to prevent the riders’ union from admittance to the statutory recognition machinery by inserting a clause in each rider’s contract permitting the rider to engage a substitute. Needless to say, with payment by way of a small fee for each delivery, the right was infrequently used: ‘substitution is rare’, only ‘a few, if that, riders use substitutes’, ‘most riders do not use a substitute’, and ‘the vast majority of riders see no point in engaging a substitute’.
The judicially approved approach of Courts to the construction of the statute and to such contracts has broadened over recent years but this has not so far proved enough to secure collective bargaining for the riders. However, having failed in the Court of Appeal, the Supreme Court has granted permission to appeal and the case is to be heard in 2023.
In fact, the union’s argument is based not on the interpretation of the domestic statute but on the proposition that, since Art.11 European Convention on Human Rights guarantees workers the right to bargain collectively, for that right to be meaningful in the UK, a union must have access, under conditions not at variance with Art.11, to the statutory recognition machinery. Accordingly, for this purpose ‘workers’ must be defined in accordance with ECHR law, regardless of the UK statutory definition.
It is in that regard that the European Commission’s Guidelines on the application of Union competition law to collective agreements regarding the working conditions of solo self-employed persons are highly significant. It is true that competition law is not relevant to the Deliveroo case. Neither, strictly speaking, is EU law. However, it was remarkable that the Court of Appeal in Deliveroo found a CJEU case on the Working Time Directive, Yodel to be particularly persuasive in leading to its conclusion that the substitution clause was not compatible with the concept of ‘worker’ in ECHR law! The Guidelines, however, by showing a wider notion of the concept of ‘worker’ in a dimension of EU law focussed on trade union rights may help to moderate this curious conclusion.
For the purposes of protecting collective bargaining from EU competition law, the Guidelines in effect displace the CJEU’s current strained confinement of the notion of ‘worker’ to employees and the ‘false self-employed’. Instead, the right to bargain collectively (free from the intrusion of competition law) is extended by the Guidelines, to ‘solo self-employed persons’ and apply thus:
‘solo self-employed person’ means a person who does not have an employment contract or who is not in an employment relationship, and who relies primarily on his or her own personal labour for the provision of the services concerned.
The inclusion of the word ‘primarily’ in relation to personal labour must surely permit the rare use of substitute labour by a small minority of the workforce without the consequence of denying the whole workforce the right to bargain collectively.
Whether this will resolve, or at least assist, the Deliveroo riders’ claim to the right to bargain collectively with their employer which the latter has consistently denied them, remains to be seen. I will report in due course.