"Unionising" the gig economy: European Commission proposals to remove competition obstacles

The European Commission has signalled that it is prepared to introduce regulations or guidance to ensure that competition rules do not prevent self employed workers, particularly those in the gig economy to collectively bargain with their platform employers.

The antitrust laws of most jurisdictions exempt collective bargaining by unions or collectives of workers from antitrust law. Similarly EU Courts have long recognised the rights of employees to form unions and negotiate better conditions. But self-employed workers (particularly gig workers who do not benefit from living or minimum wage requirements or leave) can be classified as undertakings under EU law and agreements between them to negotiate collectively for better terms and conditions in principle infringe rules on anti-competitive agreements.

This issue is particularly relevant to platforms like ride hailing apps (Uber, Lyft) and online food delivery (like Deliveroo) who use self employed drivers and have been embroiled in a number of employment law cases attempting to clarify their status : whether as workers or self employed contractors.

A number of writers, however, have argued that irrespective of their employment status, gig workers should be entitled to the same protections given in early industrial times to workers to unionise and by so doing address the imbalance between labour and capital in the digital economy and, implicitly to level the playing field between companies who bear employment costs and those who don't. Although the Commissioner has made a series of previous statements on this issue, the Commission’s thinking may also be that with large labour surpluses to be expected given the economic fallout of the Covid crisis, workers without conventional employment protections may well become even more vulnerable.

The Dutch competition Authority amended its guidance in 2019 to make clear that gig workers can collectively negotiate under certain circumstances without breaching competition law; similarly the City of Seattle sought to do the same in relation to ride hailing drivers but abandoned these after court challenges.

The Commission has invited comment on this issue via module V of its Digital Services Act consultation, the so called digital gatekeeper regulation, which seeks to level the playing field in relation to those active in digital markets. The Commission's consultation closes on 8 September.