Sindicatos de trabalhadores europeus divulgam documento "NEW TRADE UNION STRATEGIES FOR NEW FORMS OF EMPLOYMENT"
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Executive summary 07
1. Introduction and presentation of the report 09
2. Analytical framework 12
3. Structure of the report 14
4. Who is a worker – a comparative analysis of the personal scope of application of labour law in Europe 18
5. Beyond employment: quasi-autonomy and the self-employed in a comparative perspective 22
5.1 Protection afforded to quasi-subordinate and economically dependent workers 25
5.2 A full extension of labour protection to quasi-subordinate and economically dependent workers? 28
5.3 The labour and social rights of self-employed persons 29
6. Beyond the binary divide: testing the self-employment monolith 33
6.1 The performance of personal work or services to one main client 34
6.2 The performance of personal work or services to a multitude of clients or customers 35
6.3 The performance of personal work or services to one main client, while also owning some of the ‘means of production’ necessary to generate those services 35
6.4 The performance of personal work or services in association with others 36
7. Collective rights and the self-employed 37
8. Legal obstacles to collective bargaining of self-employed workers: the anti-trust threat 43
8.1 Legal obstacles to collective standards by the professions and EU free movement rights 46
8.2 Collective bargaining, competition law and the regulation of a ‘social market economy’: the case for revisiting the European Court’s approach 48
9. Current reform proposals and debates: quiet at national level, lively at EU level 55
10. A new concept of ‘employing entity’ 61
Conclusions 64
Vejam também o Executive Summary
The present report explores a number of regulatory, normative, and conceptual dimensions pertaining to
work performed in a self-employed capacity. The report was commissioned by the ETUC in 2017 following
its call for legal expertise on the topic “New trade union strategies for new forms of employment”.
In line with that call, the report explores a new legal conceptual framework for the analysis of the
normative and regulatory challenges arising from the proliferation of ‘new forms of employment’, and
in particular from the growth of forms of work that, by virtue of their being classified as autonomous or
quasi-autonomous, fall outside the protective umbrella of labour and social security law.
The main contextual backdrop for the project is the challenge, or set of challenges, arising from the socalled
‘digital economy’, on the one hand, and the opportunities emerging from the ‘European Pillar of
Social Rights’ initiative, on the other. The report engages with, and offers some answers and possible
solutions to, these challenges. It also has a deeper ambition that spans beyond the contingencies generated
by particular technological developments or specific EU - or domestic - regulatory agendas. The
report seeks to identify a novel analytical framework for reshaping and expanding the personal scope of
application of labour law in the 21st century, and to assist the development of a coherent strategy for the
ETUC to pursue this expansion on the basis of a set of compelling legal arguments.
From a methodological point of view, the present report was produced on the basis of both original research
work carried out by its two authors and on the basis of a number of national reports compiled in
respect of a representative sample of national legal systems, namely the Austrian, Belgian, French, Italian,
Swedish, Spanish, German, and British systems. These reports were authored by a number of national legal
experts and we would like to take this opportunity to express our gratitude to our colleagues Professors
Elisabeth Brameshuber, Mathias Wouters, Emmanuel Dockès, Elena Gramano and Giovanni Gaudiodo,
Samuel Engblom and Magnus Lundberg, Adrian Todoli, Monika Schlachter-Voll, and Mark Freedland.
The idea of ‘personal work relation’, as originally developed by Professor Mark Freedland and the first author
of the present report, sits at the centre of the normative suggestions developed in the present report.1 The
concept of personal work relation captures the fact that in modern labour markets, work can be provided
in a variety of ways and through a range of modalities and patterns. These can range from the classic
subordinate, bilateral, and continuous provision of employment, to more nuanced and complex forms of
work, involving multiple parties and economic entities, and ultimately developing in the realm of autonomy
and, in terms of their legal characterisation, self-employment. In developing the present project, one of our
main hypotheses was that a concept of worker based on the idea of ‘personal work relation’, could usefully
capture a wide range of employment statuses across a number of national (and probably supranational)
legal systems. Ultimately, the idea of ‘personal work relation’ can be used to define the personal scope of
application of labour law as applicable to any person that is engaged by another to provide labour, unless
that person is genuinely operating a business on her or his own account.
The report begins by exploring the question of the adequacy of existing legal and industrial relation systems
grappling with the definition of the personal scope of labour protection legislation. Section 4 explores the
1 Mark Freedland, ‘Application of labour and employment law beyond the contract of employment’ (2007) International Labour Review3; Mark Freedland and Nicola Kountouris, The Legal Construction of Personal Work Relations (OUP 2011).
classic ‘who is a worker?’ question, offering an assessment of the current state of the law in terms of
the personal scope of application of standard employment protection legislation in a number of European
countries, and in respect of a number of relevant supranational systems of regulation (mainly the EU, the
Council of Europe, and the ILO). Section 5, moves the scope of the analysis beyond standard employment
in order to offer a clearer taxonomy of the typologies of work relations that prevail and evolve outside the
narrower protective coverage of the bulk of employment protection legislation. In doing so it explores the
extent to which the (national or supranational) legal systems covered by the project contemplate intermediate
categories of quasi-subordinate or semi-dependent workers (as in the case of the UK, Spain, or Italy/
Germany/Austria), while exploring the rights and attributions recognised to workers that are not classified
as ‘employees’. Section 6 moves on to assess the conceptual boundaries and internal complexities of the
notion of self-employment. It argues that this notion has become extremely complex, multifaceted, and
conceptually confusing jumbling individual personal work profiles as diverse as that of the Deliveroo cyclist
and the owner of the dental practice specialising in prosthetic dentures (both ‘owning’ their own ‘tools’). The
category can go as far as including self-employed persons that hire their own employees, and that would be
better understood as performing genuine entrepreneurial activities in an employer capacity. Section 7 explores
both past and present collective practices seeking to regulate the terms and conditions of employment of
a range of personal work providers, both subordinate and autonomous, while section 8 explores the extent
to which these collective practices may encounter obstacles arising from a range of area of regulation,
including EU Competition Law, EU law on freedom of establishment and free movement of services, and by
the growing recognition in CJEU case-law of the fundamental freedom to conduct a business.
Sections 9 and 10 are more normative in character and explore and assess a number of alternative reform
approaches currently developing at a national and supranational level. In particular, they elaborate on a set
of reform proposals recently developed by Ewing, Hendy and Jones, in their Manifesto for Labour Law, and
in their more recent publication Rolling out the Manifesto for Labour Law advocating a broader construction
of the personal scope of domestic labour rights, by referring to any person ‘engaged by another to provide
labour’ and that ‘is not genuinely operating a business on his or her own account’,2 and a broad concept of
‘employing entity’. The sections also comment on the proposals recently developed by Emmanuel Dockés
and a number of other French academics, seeking to extend the scope of application of domestic labour law
by reference to a finer-grained classification of ‘dependent’ employees and ‘autonomous’ or ‘externalised’
salaried workers,3 and on the broad and far reaching personal scope advocated in art 1 of CGIL’s Carta dei
diritti universali del lavoro - Nuovo statuto di tutte le lavoratrici e di tutti i lavoratori (2016). Section 9 also
critically explores the approach suggested by labour economists such as Harris and Kruger4 that an intermediate
category of ‘independent worker’ or ‘dependent contractor’ ought to be introduced and generalised and
become the new regulatory paradigm for the application of some (not all) employment protection legislation.
The concluding section articulates the view that a range of fundamental labour and social rights have a
universalistic vocation and ought to be applied to all those providing personal work and services including,
under certain circumstances, workers that are currently perceived as self-employed professionals, and
that may be availing themselves of a limited and ancillary amount of capital or third-party services as
an non-substantial contribution to their pre-dominantly personal labour provision. This requires both an
extension of the coverage of these rights and their re-elaboration for the purposes of applying them to
particular modalities of personal work (for instance a right to regular working hours for casual and on-call/
zero-hours workers as a guarantee to ‘fair and just working conditions’). We believe, and have argued
in the present report, that there are sound normative reasons to advocate such extensions. Crucially it
is also our view that an extension of the scope of the employment relationship should not result in a
watering down of the substantive labour law protections enjoyed by workers.
2 Keith D. Ewing, John Hendy, and Carolyn Jones (eds), A Manifesto for Labour Law: towards a comprehensive revision of workers’ rights (IER 2016) 35; and Keith D. Ewing, John Hendy, and Carolyn Jones (eds), Rolling out the Manifesto for Labour Law (IER 2018) 36.
3 Emmanuel Dockés (ed), Proposition de Code du Travail (Dalloz 2017), arts L. 11-1 - L. 11-18.
4 Seth D. Harris and Alan B. Krueger, ‘A Proposal for Modernizing Labor Laws for Twenty-First-Century Work: The “Independent Worker” (2015) The Hamilton Project, Discussion Paper 2015-10 < http://www.hamiltonproject.org/assets/files/modernizing_labor_laws_for_twenty_first_century_work_krueger_harris.pdf> accessed 30 January 2019
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