Irish Congress of Trade Unions (ICTU) v. Ireland
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Judgement date :12/09/2018
The complainant organisation alleged that the decision of the Irish Competition Authority prohibiting certain workers - deemed self-employed - such as voice over actors, free-lance journalists, and some musicians, from concluding collective agreements setting out minimum rates of pay and other working conditions, as this would amount to a breach of competition law, was in violation of Article 6 of the Charter.
The European Committee of Social Rights affirmed that Article 6§2 of the European Social Charter grants self-employed the right to engage in collective bargaining, observing that “an outright ban on collective bargaining of all self-employed workers would be excessive as it would run counter to the object and purpose of this provision”.
held that “collective mechanisms in the field of work are justified by the comparably weak position of an individual supplier of labour in establishing the terms and conditions of their contract. This contrasts with competition law where the grouping of interests of suppliers endanger fair prices for consumers”. For the purpose of identifying undertakings falling within the scope of Article 101, “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”. In particular individual providers of labour who cannot be characterized as “genuine independent self-employed meeting all or most of criteria such as having several clients, having the authority to hire staff, and having the authority to make important strategic decisions about how to run the business”, must have their right to collective bargaining recognised.
The European Committee of Social Rights “does not consider that permitting the self-employed workers in question to bargain collectively and conclude collective agreements, including in respect of remuneration, would have an impact on competition in trade that would be significantly different from the impact on such competition of collective agreements concluded solely in respect of dependent workers (employees)”.
An “overinclusive” understanding of undertakings under Article 101 TFEU effectively creates obstacles for self-employed to access collective bargaining, as observed by the European Committee of Social Rights. A ban on collective bargaining for self-employed with the “aim of ensuring effective and undistorted competition in trade with a view to protecting the rights and freedoms of others” is still “excessive and therefore not necessary in a democratic society”.