Labour Rights Beyond Employment Status: Insights from the Competition Law Guidelines on Collective Bargaining

Originally, anchoring labour rights to the existence of a personal relationship of subordination was functional to prevent the greater bargaining strength of the employer being disproportionately reflected in the terms and conditions regulating the provision of labour. This does not seem anymore the case. The paradigm of subordination and its complementary criteria of direction and control appear no longer adequate to reach all those who perform work in situations of bargaining weakness and vulnerability. Disruptive phenomena, such as platform work and the emergence of labour market monopsonies, are in fact putting existing regulatory paradigms under great stress. After having outlined the opportunity to redefine the scope of labour protection, the chapter proposes a new normative framework, alternative to that of subordination, defining the scope of application of workers’ rights. The proposed framework is the paradigm of imposed acquiescence and is centred on the idea that labour law should be refocused on those situations where the distribution of bargaining power between the contracting parties is so unequal that, in the absence of safeguards, the provision of work risks being commodified and performed under contractual terms that disproportionately reflect the interests of the principal. Finally, the chapter turns to recent developments in EU policymaking and, in particular, to the Commission’s proposal to adopt Guidelines on competition rules and collective bargaining. It is suggested that, by giving normative relevance to the imbalance of bargaining power among the parties to a labour relationship, the Commission’s initiative might have, inadvertently, made the first step towards legitimising a much-needed paradigm change on the scope of application of labour law.