The European Committee on Social Rights (ECSR) has, for the first time, addressed the collective bargaining rights of self-employed workers, holding that a pre-2017 Irish ban on collective bargaining by freelance journalists, voice-over actors, and session musicians violated the European Social Charter. See ECSR, Irish Congress of Trade Unions v. Ireland, Complaint No.123/2016, Merits, 12 December 2018, para. 35. In view of a subsequent amendment to the Irish law at issue, the ECSR also concluded that the current situation does not constitute a violation. Nevertheless, the ECSR took the opportunity to clarify the status of workers like these artists and writers, and to confirm that the self-employed cannot be categorically excluded from collective bargaining.
The Irish Congress of Trade Unions (ICTU) first brought this case to the ECSR on August 8, 2016 alleging that a prior decision by an Irish administrative agency excluding certain categories of self-employed workers – including freelance journalists, voice actors, and some musicians – from engaging in collective bargaining amounted to a violation of Ireland’s obligations to protect the rights of workers under Article 6 of the Charter. See id. at paras. 1-2. The decision prevented all classes of self-employed workers from concluding collective agreements with respect to minimum rates of pay and other working conditions standards. See id. at para. 2.
In its 2016 complaint to the ECSR, the ICTU initially alleged that the administrative agency’s interpretation of Section 4 of the Irish Competition Act 2002, which prohibited and nullified all agreements between self-employed workers and organizations of self-employed workers that had the purpose or effect of preventing, restricting, or distorting competition, amounted to a violation of the Charter. See id. at paras. 20, 43. Subsequently, Ireland enacted the Competition Amendment Act 2017, which modified the ban on all collective bargaining amongst self-employed workers by exempting certain classes of self-employed workers from Section 4 of the Competition Act 2002 . See id. at paras. 20, 60. Despite these changes, the ICTU maintained that the amendment did not provide protection against European Union laws restricting the collective bargaining of self-employed workers and that the exemption only applies to very limited categories of workers, in violation of the Charter. See id. at paras. 61-70.
Analysis of the Committee
Before turning to the merits, the Committee reviewed relevant European and United Nations standards and decisions, and also made some observations about the modern employment landscape. It noted:
the world of work is changing rapidly and fundamentally with a proliferation of contractual arrangements, often with the express aim of avoiding contracts of employment under labour law, of shifting risk from the labour engager to the labour provider. This has resulted in an increasing number of workers falling outside the definition of a dependent employee, including low-paid workers or service providers who are de facto “dependent” on one or more labour engagers. These developments must be taken into account when determining the scope of Article 6§2 in respect of self-employed workers. […] In establishing the type of collective bargaining that is protected by the Charter, it is not sufficient to rely on distinctions between worker and self-employed, the decisive criterion is rather whether there is an imbalance of power between the providers and engagers of labour. Where providers of labour have no substantial influence on the content of contractual conditions, they must be given the possibility of improving the power imbalance through collective bargaining.
See id. at paras. 37, 38.
The ECSR stated that “self-employed workers should enjoy the right to bargain collectively through organisations that represent them, including in respect of remuneration for services provided, subject only to restrictions provided by law, pursuing a legitimate aim and being necessary in a democratic society.” See id. at para. 95. From that standpoint, the Committee assessed the situation in Ireland before the 2017 amendment to the Irish Competition Law and after the amendment entered into force. See id. at paras. 96, 102.
The Committee found that prior to the 2017 amendment, the Competition Act 2002 amounted to a ban on collective bargaining with respect to voice-over actors, freelance journalists, and session musicians. See id. at para. 98. It noted that while the restriction was provided-for by law and could be said to be pursuing a legitimate purpose in attempting to protect trade competition, the ban was excessive because it erroneously presumed that these kinds of workers were truly self-employed. See id. at para. 98. The ECSR found it “evident” that these workers should not be categorized as “genuine independent self-employed” because they are unlikely to have numerous clients, be authorized to make hiring or strategic business decisions, or be able to influence their conditions of payment. See id. at para. 99. Moreover, allowing these workers to engage in collective bargaining would have a “significantly different” impact from employees’ collective bargaining agreements. See id. at para. 100. As such, the Committee held that the ban on collective bargaining for self-employed workers “was not necessary in a democratic society” and violated Article 6 of the Charter. See id. at para. 101.
In its assessment of the current status of Irish law on this issue, the Committee did not find a violation of the Charter. See id. at para. 116. The Committee explained that the 2017 amendment removed the restrictions to collectively bargain for certain classes of self-employed workers entirely and that the amendment provided a framework for other categories of self-employed workers to engage in collective bargaining. See id. at para. 106-107. The Committee further explained that whether or not the process outlined in the amendment allowing for the collective bargaining of self-employed workers was too restrictive and contrary to Article 6 of the Charter would have to be demonstrated through practice, and that based on the evidence before it, the law was consistent with the Charter. See id. at para. 110.
With respect to the claim that Irish law fails to provide protections against potentially restrictive European Union law, the Committee held that it is beyond the scope of its competence to address the potential risk that an EU law may pose without the law first being implemented through domestic legislation. See id. at para. 115.
The European Committee of Social Rights
The ECSR, which has its seat in Strasbourg, France, oversees the protection of economic and social rights in most of Europe. The Committee was established under the European Social Charter of 1961 and is tasked with monitoring the implementation of the 1961 European Social Charter, the 1988 Additional Protocol, and the 1996 Revised European Social Charter. See IJRC, European Committee of Social Rights. Unlike many other international human rights bodies, the Committee receives collective—as opposed to individual—complaints against States that have accepted the collective complaints procedure. See id. Several types of organizations are entitled to file complaints with the Committee regarding a State’s violation of the Charter, including certain international nongovernmental organizations and national employer organizations and trade unions. See id. Following a Committee decision, the State must report annually to the Secretary General of the Council of Europe regarding the steps it has taken to implement the Committee’s recommendations. See id.
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