The « Worker », EU Law, and Collective Bargaining
- Cet article est une traduction de :
- Le « travailleur », le droit de l’UE et la négociation collective [fr]
Résumés
Cet article examine comment le droit de l’UE envisage la notion de « travailleur » dans le cadre des débats sur les formes de travail (y compris le travail de plateforme), qui remettent en question la traditionnelle distinction binaire entre les travailleurs « salariés » et les travailleurs « indépendants ». En particulier, l’article analyse la jurisprudence européenne de la Cour européenne et du Comité des droits sociaux ainsi que la jurisprudence nationale sur le droit à la négociation collective des travailleurs non-salariés.
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1This article looks at the issue of how EU law has considered the notion of the ‘worker’ in the context of debates on forms of work (including platform work), which challenge the traditional binary divide between ‘employee’ and ‘self-employed’. Section 1 looks at the concept of the ‘binary divide’ between the ‘employed’ and the ‘self-employed’, while section 2 considers how the EU law concept of ‘worker’ has developed. Sections 3 and 4 consider how courts at EU and national level have addressed the conflict between collective bargaining rights for ‘non-employees’, and the enforcement of competition rules. Section 5 builds on this to argue for a more inclusive conception of what the right to collective bargaining must entail, and a normative framework that sees collective labour law protections as essential fundamental rights in the domain of work, which cannot be confined to ‘subordinate’ workers.
I - The Scope of Labour Law: The Binary Divide
- 1 H. Collins et al., Labour Law: Text and Materials, 2nd ed., Hart, Oxford, 2005, p. 70.
2The «starting point for the analysis of legal obligations arising in the context of working relations must always be the terms of any contractual arrangement»1. This is a statement with which every student of labour law (especially in common law jurisdictions) will be familiar. Traditionally, the scope of labour legislation has been confined to those in an « employment relationship ». Labour law systems have historically privileged subordinated labour as the object of protection and a standard model of rules has been constructed based on a « binary divide » between employment and self-employment. Those who fall within the category of subordinated labour can claim to work under a contract of employment, while others, who work under a civil contract (a contract for services), fall outside of the « employee » categorisation. Many important implications flow from the classification of « employee ».
- 2 For example, employers and employees are generally taken to have « good faith/ mutual trust and con (...)
- 3 H. Collins, op. cit., p. 160.
3We can consider here some of the most important. First, much labour legislation (particularly protective legislation), excludes from its coverage those who do not work under a contract of employment (for example, protection against unjust dismissal). Secondly, certain rights and duties may be implied into the contract of employment that do not apply to contracts for services2. Thirdly, differing obligations arise under income tax and social security legislation depending on whether or not one is classified as an employee. Given these factors (and others), the courts must always be alert to the possibility that it may be in the interest of one, other, or all of the parties to an employment relationship to seek to classify it as not involving a contract of employment. For example, the employer may try to evade taking on legislative responsibilities in relation to notice or redundancy requirements, while the worker might seek to maximise tax benefits. Employers may also seek to reduce their exposure to business risks by shifting these onto the worker through, for example, using a piece-work or performance-related remuneration system or offering work on a casual basis. The more risks the worker agrees to bear the less likely it will be that the worker will be classed as an employee at all3.
4Increasingly, of course, the « binary divide » has come into sharp focus due to the more differentiated working relationships now observed in modern labour relations. This can be seen most clearly in the debates on the « platform economy », where service providers/workers and end-users are connected, not by traditional « employers », but app-based « platforms ». In such a relationship, who is the employer? Are the service providers/workers « employees »? Are there labour law rights and obligations as between the service providers/worker and the platforms? Many of the issues in the platform work debate are not novel; as we will see, the legal position of some « freelance », and other « economically dependent » workers has been a source of legal controversy long before the advent of the platform economy. This article, however, argues that we may need to reconceptualise the collective employment relationship in extending collective bargaining rights beyond traditional employees, in order to ensure the core functions of labour law can be maintained.
II - The Worker in EU Law
- 4 Case C-75/63 Hoekstra v Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten ECLI: EU:C:19 (...)
- 5 E. Menegatti, « Taking EU labour law beyond the employment contract: The role played by the Europea (...)
5The notion of the « employee », at national level, therefore, is firmly based on a model that seeks to redress inequities in the employment relationship resulting from an imbalance of power between the parties. At EU level, there is no unified legal concept of « employee », but rather the Court of Justice (CJEU) has developed the category of a « worker ». However, it is important to note that the « worker » concept in EU Law originated from free movement law, and especially in the context of free movement of workers and their equal treatment rights (set out in what is now Article 45 of the Treaty on the Functioning of the EU; TFEU)4. Therefore, the « worker » concept was developed the Court « for the purpose of securing the sound functioning of the common market »5. This internal market focus, of course, has a quite different analytical foundation to that of remedying inequity with which national labour law has traditional been concerned.
- 6 Case C-66/85 Lawrie-Blum v Land Baden- Wuurttemberg ECLI: EU: C:1986:284, §17.
6The EU definition of « worker » was laid down by the Court in Lawrie-Blum6: The essential feature of an employment relationship… is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.
- 7 Case C-268/99 Jany v Staatssecretaris van Justitie ECLI:EU:C:2001:616, §34.
7In free movement law, those who do not meet the test for « worker » are protected under the treaty provisions on free movement of establishment (Articles 49 to 55 TFEU) or services (Articles 56 to 62 TFEU)7: any activity which a person performs outside a relationship of subordination must be classified as an activity pursued in a self-employed capacity for the purposes of [freedom of establishment].
- 8 M. Risak and T. Dullinger, « The Concept of “Worker” in EU Law: Status Quo and Potential for Change (...)
8It has been noted that, in interpreting secondary law, the Court has increasingly moved towards a Union-wide concept of « worker » (often wider in scope than at national level) achieved through its interpretation of the various labour directives, and particularly, the application of the effet utile principle to those directives that explicitly refer to the national understanding of the concept of « worker »8.
- 9 E. Menegatti, op. cit., p. 32.
9Additionally, Menegatti has persuasively argued that9: The Court’s approach changed at the beginning of the new millennium with the growing relevance of the EU’s social sphere. Social protection began to be been considered in its own right an aim of Union action, no longer being viewed as merely instrumental to the creation of a common market. Here, labour law directives play an important « market-correcting » function, steering the economic system towards social results it would not achieve on its own.
- 10 G. Davidov, A Purposive Approach to Labour Law, OUP, Oxford, 2016.
- 11 A. D. Frazer, « Reconceiving Labour Law: The Labour Market Regulation Project », Macquarie Law Jour (...)
10Indeed, the « market-correcting » function of labour law, or, to put it in Davidov’s terms the « efficiency » goal of labour law10, is always of relevance at national and EU level. Labour law has increasingly been viewed as having a purpose far beyond its traditional protective function, which includes becoming the « means for providing the institutional framework and mechanisms for redressing the deficiencies of markets for labour, and for promoting goals of flexibility and competitiveness in a socially sustainable way »11. However, here we come to a specific problem; when the goals (including efficiency) of labour law come into conflict with the goals (including efficiency) of other areas of law, notably competition/ anti-trust law.
III - The Collective Problem and the Court of Justice
- 12 M. Freedland and N. Countouris, « Some Reflections on the “Personal Scope” of Collective Labour Law (...)
11Until recently, comparatively little attention has been paid to the relationship between « non-employees » and collective representation. As Mark Freedland and Nicola Countouris have noted, it is striking to recognise: to what an extent individual employment law has constituted not merely the prime location but actually the engine room and driver of the « personal scope of labour law » discussion, to the effective exclusion of collective labour law12.
- 13 M. Doherty and V. Franca, « Solving the “Gig-saw”? Collective Rights and Platform Work », ILJ, 2020 (...)
12However, this article argues that extending the labour law protections for vulnerable and precarious individuals is unlikely, in itself, to be sufficient to ensure adequate fairness, dignity, and social justice at work. This is precisely because this vulnerability and precarity too often renders it difficult for individuals to access, and vindicate legal rights13. Therefore we must focus on a significant impediment to the effective collective representation of workers whose status as « employees » is contested; namely the intersection between collective bargaining and competition (antitrust) rules.
- 14 T. Novitz, « The Paradigm of Sustainability in a European Social Context: Collective Participation (...)
13Laws promoting collective bargaining can be justified by the need to remedy the structural imbalance and asymmetries of labour markets; as most workers do not have any alternative to earning their main income on the labour market, if wages fall below a certain level, they simply expand supply (e.g. by taking up another occupation/ overtime). A collective bargaining process is based on combining employees in order to alleviate the pressure to undercut the price of each other’s labour14. However, competition/anti-trust rules, at their core, prohibit cartels, or agreements between undertakings which distort competition. These rules clearly conflict with the right to conclude binding collective agreements (often referred to as « wage cartels »), the purpose of which is to set prices (wages).
14Article 101 of the Treaty on the Functioning of the European Union (TFEU) prohibits: « all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which… (a) directly or indirectly fix purchase or selling prices or any other trading conditions…».
- 15 Case C-96/94 Centro Serviczi Spediporto ECLI:EU:C:1998:454, §20.
- 16 Case C-67/96 Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie ECLI:EU:C:1 (...)
15The Court of Justice has made it clear that Member States must not introduce or maintain in force measures, « even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings »15. In Albany, the Court of Justice held that collective agreements do not fall within the scope of Article 101 TFEU when two cumulative conditions are met: (i) they are entered into in the framework of collective bargaining between employers and employees, and (ii) they contribute directly to improving the employment and working conditions of workers16. As the Court’s case law refers explicitly to « employees », collective agreements involving the self-employed fall outside of the « Albany exception ». The Court’s position, then, is that, unless a worker has « employee » status, the worker constitutes an independent undertaking, and is forbidden from coming to mutual arrangements over basic terms such as minimum payments.
- 17 Case C-413/13 FNV Kunsten Informatie en Media v Staat der Nederlanden ECLI:EU:C:2014:2215.
- 18 Ibid., §27-28.
16In FNV Kunsten17, the question was whether EU competition rules applied to a Dutch collective labour agreement, which contained provisions on the minimum fees to be paid not only to employees of an orchestra, but also to self-employed musicians who work for orchestras on an occasional basis as substitutes for employed musicians. The Court held that a self-employed musician should « in principle » be treated as an « undertaking », and that an organisation negotiating on behalf of self-employed service providers should not be treated as a social partner but should be characterised as an « association of undertakings »18.
- 19 Ibid., § 31-32. The factors to be considered in establishing « false » self-employment would includ (...)
17Therefore, the agreement in question could not fall under the « Albany exception ». However, the Court went on to note that the boundaries between the self-employed (as undertakings) and employees are not so easy to determine in a fluid employment market, and it identified a category of workers which it called the « false self-employed »; namely « service providers [who are] in a situation comparable to that of employees » who, subject to certain conditions, can benefit from an Albany-type exemption19.
- 20 M. Freedland and N. Countouris, op. cit., p. 64.
18Summing up the CJEU position, Mark Freedland and Nicola Countouris note that: the ability of self-employed workers to receive union representation for the purposes of collective bargaining processes aiming at improving their terms and conditions of employment founders on three main obstacles; the absence of a rights-based approach in respect of protecting collective bargaining either as a constitutional or as a fundamental right; the alleged absence from the Treaties of a right to bargain collectively for workers who are not employees; and the very strict binary divide between dependent workers on the one hand and self-employed service providers, on the other, with the latter category being invariably classified as « undertakings »20.
IV - The Collective Problem: A National Perspective
- 21 Decision of the Competition Authority no. E/04/002 (Agreements between Irish Actors’ Equity SIPTU a (...)
19The issues raised in FNV Kunsten bear a striking similarity to a long-running dispute in Ireland involving certain freelance workers; namely voice-over actors, session musicians, and freelance journalists. In 2004, the (then) Competition Authority issued a decision that an agreement between the trade union Actors’ Equity SIPTU (Services, Industrial Professional and Technical Union) and the Institute of Advertising Practitioners (an association of advertising agencies) setting out specific fees for services rendered, and various other terms and conditions, amounted to price-fixing, in breach of Irish and European competition rules21.
- 22 Towards 2016 Review and Transitional Agreement 2008-2009, § 9.6: https://www.ictu.ie/download/pdf/t (...)
- 23 The Memorandum of Understanding underpinning the programme can be found at: www.imf.org/external/np (...)
- 24 See Individual Case (CAS) - Discussion: 2016, Publication: 105th ILC session (2016): http://www.ilo (...)
- 25 Irish Congress of Trade Unions (ICTU) v Ireland No. 123/2016; published 12 December 2018.
20The issue became something of a cause célèbre for the Irish trade union movement, featuring in a tripartite national social pact in 200822, in the financial assistance (« bail-out ») programme agreed by Ireland with the « Troika » of the European Central Bank, the European Commission, and the International Monetary Fund in 201023, before the International Labour Organisation (ILO) supervisory bodies (most notably the Committee of Experts on the Applications of Conventions and Recommendations [CEACR])24, and in a complaint before the European Committee of Social Rights (ECSR)25. Before the ESCR issued its decision in the complaint, legislation was passed in Ireland to address the issue. The Competition (Amendment) Act 2017 provides that section 4 of the Competition Act 2002 (prohibiting cartel action) shall not apply to collective bargaining and agreements in respect of certain categories of workers. There are three such categories.
21First, the Act specifically applies to voice-over actors, session musicians, and freelance journalists.
22Secondly, the Act introduces the concept of the « false self-employed » worker; this is defined, in section 15(D), as an individual who:
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performs for another person, under a contract (whether express or implied and if express, whether orally or in writing), the same activity or service as an employee of the other person;
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has a relationship of subordination in relation to the other person for the duration of the contractual relationship;
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is required to follow the instructions of the other person regarding the time, place and content of his or her work;
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does not share in the other person’s commercial risk;
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has no independence as regards the determination of the time schedule, place and manner of performing the tasks assigned to him or her;
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for the duration of the contractual relationship, forms an integral part of the other person’s undertaking.
23Thirdly, the Act introduces the concept of the « fully dependent self-employed worker », defined, in section 15(D), as an individual:
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who performs services for another person (whether or not the person for whom the service is being performed is also an employer of employees) under a contract (whether express or implied, and if express, whether orally or in writing);
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whose main income in respect of the performance of such services under contract is derived from not more than 2 persons.
24In both of these last cases, a trade union which represents a class of false self-employed, or fully dependent self-employed, worker may apply to the Minister to include the class of worker in question as falling within the scope of the Act, in order to allow the union to bargain collectively, and conclude collective agreements, on behalf of the workers. The union must provide evidence under section 15(F) that the workers who are the subject of the application do fall within the relevant definitions.
25The application must also be accompanied by evidence that extending the Act’s provisions to the class of workers in question:
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will have no or minimal economic effect on the market in which the class of self-employed worker concerned operates;
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will not lead to or result in significant costs to the State;
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will not otherwise contravene the requirements of (the Competition Acts) or any other enactment or rule of law (including the law in relation to the European Union) relating to the prohibition on the prevention, restriction or distortion of competition in trade in any goods or services.
26The Minister must also be satisfied that extending the scope of the Act’s provisions to the class of workers in question is « appropriate ».
- 26 M. Doherty, « Trade Unions and the “Gig Economy” », in F. Hendrickx and V. De Stefano (eds.), Game (...)
27As Doherty notes, « the legislation represents an innovative attempt to extend collective bargaining rights to vulnerable workers, who do not fit within the classic “employee” definition » and sets out in law « the principle that collective representation should not be automatically denied to those who cannot satisfy traditional tests of employee status »26.
- 27 No. 123/2016; published December 12 2018.
28The decision of the ESCR on the merits of the complaint Irish Congress of Trade Unions (ICTU) v. Ireland was issued after the 2017 Act came into force27. The Committee found that the position in Ireland prior to the 2017 amendment was in breach of Article 6 of the European Charter of Social Rights, in that the « categories of persons included in the notion of “undertaking” were over-inclusive » (para 98). Moreover, the Committee (para 100) did 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).
29The Committee also noted that an overly restrictive interpretation of section 15 (F) of the 2017 Irish legislation by the Minister « would run the risk of being in violation of Article 6§2 of the Charter » (para 111). A minority dissenting opinion considered that Irish law remained in violation of the Charter by placing the right to collective bargaining of self-employed workers (other than those named in the Act) in the hands of the executive, and making the realisation of the right « entirely dependent and conditional on prior decision of the executive power » (para 32).
- 28 M. Doherty and V. Franca, op. cit.
30The minority opinion is emblematic of the argument that the Irish legislation only incrementally moves the situation forward, in that it proposes a solution whereby, in order to engage in collective bargaining, certain groups failing the « traditional » employee test, can seek exemptions from competition law rules from relevant authorities before engaging in collective negotiations. Thus, it is a negative right to be protected from competition law scrutiny, rather than a positive right to conclude collective agreements. Nonetheless, what is perhaps most significant to this argument is that, rather than simply offering the possibility of re-classification of employment status to, or indeed imposing a re-classification (with attendant rights and responsibilities attached) on, individuals (including, of course, platform workers), it vests a right in trade unions to negotiate collectively on behalf of those who actively seek or desire labour law protections28.
V - Autonomy, Freedom and Rights
- 29 Case C-341/05 Laval v Svenska Byggnadsarbetareförbundet ECLI:EU:C:2007:809.
- 30 D. Schiek and al., EU Social and Labour Rights and EU Internal Market Law: Study for the EMPL Commi (...)
31It is time to reconsider the intersection between collective bargaining and competition rules. The fundamental right to bargain collectively (recognised by Article 28 of the Charter of Fundamental Rights, and by the Court of Justice in Laval)29 is only meaningful if the full autonomy of the parties is respected and guaranteed. As Dagmar Schiek et al. argue: the right to collective bargaining is infringed in its essence if the parties negotiating a collective agreement are subjected to a detailed control of the process, or if the content of the demands they may make is prescribed30.
- 31 Decision no. E/04/002, § 2.12.
32In the course of its 2004 decision, the Irish Competition Authority made the following comment31: If one were to take a wooden approach and find that all trade union members were exempt from the Act, the protections afforded Irish consumers by the [Irish Parliament] in enacting the Competition Act 2002 could easily be rendered illusory. Associations of independent pharmacists, publicans, and barristers - to name only a few - would shortly obtain safe haven for their members by adding « union » to their name and obtaining a negotiation license (sic).
- 32 M. Doherty, « Trade Unions and the “Gig Economy” », in F. Hendrickx et V. De Stefano (eds), op. cit(...)
33The argument here is that this stance misses the point completely. If genuinely independent pharmacists, publicans, and barrister, and other self-employed workers are seeking to invoke collective bargaining rights in order to circumvent competition rules, this is an abuse of such rules, which competition authorities should detect, and prohibit. However, why should the collective bargaining rights of those who are not genuinely independent contractors should be rendered « illusory » a priori ?32
- 33 ILO, Giving Globalization a Human Face: General Survey on the Fundamental Conventions Concerning Ri (...)
34This narrow, and exclusive, view of the scope of collective bargaining is shared by the CJEU, and is at odds with that laid down in key International Labour Organisation (ILO) instruments. Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (no. 87) establishes that the principle of freedom of association has a universal application that covers workers and employers « without distinction whatsoever ». The right to collective bargaining set out in Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (no. 98), similarly, « [w]ith the exception of organisations representing categories of workers which may be excluded from the scope of the Convention, namely the armed forces, the police and public servants engaged in the administration of the State » has been recognised as « general in scope and all other organisations of workers in the public and private sectors must benefit from it »33. Normatively, we must ask whether it makes sense to preclude access to a fundamental right solely on the basis of an individual’s employment status?
Conclusion
- 34 In the context of temporary agency work, for example, see Case C-216/15 Ruhrlandklinik EU:C:2016:88 (...)
35We have referenced in section 2 the argument that, via Court of Justice jurisprudence, an autonomous EU-wide definition of « worker » appears to be slowly developing. Some recent decisions certainly suggest that the Court will be willing to disregard national classifications if no genuine worker independence can be established34.
36However, when it comes to collective rights, the fundamental binary divide remains; collective agreements can only comply with competition rules where they are entered into by employees; those who do not fit into the traditional employee category are excluded. This article argues for a more inclusive conception of what the right to collective bargaining must entail, and a normative framework that sees collective labour law protections as essential fundamental rights in the domain of work, which cannot be confined to « subordinate » workers. At the time of writing, some grounds for optimism exist. In March 2021, the Commission launched a public consultation to « gather views and evidence from citizens, businesses, social partners, academia, government bodies and all interested parties as part of an initiative to ensure that EU competition rules do not stand in the way of collective bargaining by certain solo self-employed people »35. It is to be hoped substantive outcomes will result from this process.
- 36 M. Doherty, « Battered and Fried? Regulation of Working Conditions and Wage-Setting after the John (...)
37In the light of the first ever decision by a county to withdraw from EU membership, and the social, political, and economic devastation caused by the Covid-19 pandemic, a failure to protect the pay and conditions of vulnerable workers (however their formal employment status is designated), and to guarantee the right to collective support at work, is unlikely to contribute to social cohesion and popular support for national or international governing institutions36.
Notes
1 H. Collins et al., Labour Law: Text and Materials, 2nd ed., Hart, Oxford, 2005, p. 70.
2 For example, employers and employees are generally taken to have « good faith/ mutual trust and confidence » obligations that are of a different nature to those that exist in purely commercial contracts.
3 H. Collins, op. cit., p. 160.
4 Case C-75/63 Hoekstra v Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten ECLI: EU:C:1964:19; Case C-66/85 Lawrie-Blum v Land Baden- Wuurttemberg ECLI: EU: C:1986:284
5 E. Menegatti, « Taking EU labour law beyond the employment contract: The role played by the European Court of Justice », ELLJ, 2020, vol. 11, p. 26.
6 Case C-66/85 Lawrie-Blum v Land Baden- Wuurttemberg ECLI: EU: C:1986:284, §17.
7 Case C-268/99 Jany v Staatssecretaris van Justitie ECLI:EU:C:2001:616, §34.
8 M. Risak and T. Dullinger, « The Concept of “Worker” in EU Law: Status Quo and Potential for Change », ETUI, Brussels, 2018.
9 E. Menegatti, op. cit., p. 32.
10 G. Davidov, A Purposive Approach to Labour Law, OUP, Oxford, 2016.
11 A. D. Frazer, « Reconceiving Labour Law: The Labour Market Regulation Project », Macquarie Law Journal, 2009, vol. 8, p. 21.
12 M. Freedland and N. Countouris, « Some Reflections on the “Personal Scope” of Collective Labour Law », ILJ, 2017, vol. 46, p. 52 (emphasis added).
13 M. Doherty and V. Franca, « Solving the “Gig-saw”? Collective Rights and Platform Work », ILJ, 2020, vol. 49, p. 352.
14 T. Novitz, « The Paradigm of Sustainability in a European Social Context: Collective Participation in Protection of Future Interests? », International Journal of Comparative Labour Law and Industrial Relations, 2015, vol. 31, p. 243.
15 Case C-96/94 Centro Serviczi Spediporto ECLI:EU:C:1998:454, §20.
16 Case C-67/96 Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie ECLI:EU:C:1999: 430.
17 Case C-413/13 FNV Kunsten Informatie en Media v Staat der Nederlanden ECLI:EU:C:2014:2215.
18 Ibid., §27-28.
19 Ibid., § 31-32. The factors to be considered in establishing « false » self-employment would include the extent to which the worker acts under the direction of another; whether the worker shares in the employer’s commercial risks, and whether, for the duration of the relationship, the worker forms an integral part of the employer’s undertaking (§ 36).
20 M. Freedland and N. Countouris, op. cit., p. 64.
21 Decision of the Competition Authority no. E/04/002 (Agreements between Irish Actors’ Equity SIPTU and the Institute of Advertising Practitioners in Ireland concerning the terms and conditions under which advertising agencies will hire actors/ 31 August 2004).
22 Towards 2016 Review and Transitional Agreement 2008-2009, § 9.6: https://www.ictu.ie/download/pdf/t16_review_and_transitional_agreement_oct_08.pdf
23 The Memorandum of Understanding underpinning the programme can be found at: www.imf.org/external/np/loi/2013/irl/060313.pdf
24 See Individual Case (CAS) - Discussion: 2016, Publication: 105th ILC session (2016): http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:13100:0::NO::P13100_COMMENT_ID:3284597
25 Irish Congress of Trade Unions (ICTU) v Ireland No. 123/2016; published 12 December 2018.
26 M. Doherty, « Trade Unions and the “Gig Economy” », in F. Hendrickx and V. De Stefano (eds.), Game Changers in Labour Law: Shaping the Future of Work, Kluwer, Amsterdam, 2018, p. 106.
27 No. 123/2016; published December 12 2018.
28 M. Doherty and V. Franca, op. cit.
29 Case C-341/05 Laval v Svenska Byggnadsarbetareförbundet ECLI:EU:C:2007:809.
30 D. Schiek and al., EU Social and Labour Rights and EU Internal Market Law: Study for the EMPL Committee, 2015, p. 26: http://www.europarl.europa.eu/RegData/etudes/STUD/2015/563457/IPOL_STU(2015) 563457_EN.pdf
31 Decision no. E/04/002, § 2.12.
32 M. Doherty, « Trade Unions and the “Gig Economy” », in F. Hendrickx et V. De Stefano (eds), op. cit., p. 106.
33 ILO, Giving Globalization a Human Face: General Survey on the Fundamental Conventions Concerning Rights at Work in Light of the ILO Declaration on Social Justice for a Fair Globalization, 2008, ILO, Geneva, 2012, p. 85.
34 In the context of temporary agency work, for example, see Case C-216/15 Ruhrlandklinik EU:C:2016:883, § 36 et seq: « To restrict the concept of “worker” as referred to in Directive 2008/104 to persons falling within the scope of that concept under national law […] is liable to jeopardise the attainment of those objectives and, therefore, to undermine the effectiveness of that directive by inordinately and unjustifiably restricting the scope of that directive ». However, the approach of the EU legislator may not be quite moving in the same direction. The original scope of Directive 2019/1152 (on transparent and predictable working conditions in the European Union; OJ L186/105) was intended to cover « workers », as set out in CJEU case law; « a person who for a certain period of time performs services for and under the direction of another person in return for remuneration ». The enacted directive, however, applies only to those with « an employment contract or employment relationship as defined by the law, collective agreements or practice in force in each Member State with consideration to the case-law of the Court of Justice » (Article 2).
35 https://ec.europa.eu/commission/presscorner/detail/en/IP_21_988
36 M. Doherty, « Battered and Fried? Regulation of Working Conditions and Wage-Setting after the John Grace Decision », DULJ, 2012, vol. 35, p. 97.
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Michael Doherty, « The « Worker », EU Law, and Collective Bargaining », Revue de droit comparé du travail et de la sécurité sociale [En ligne], 4 | 2021, mis en ligne le 31 décembre 2022, consulté le 15 juin 2025. URL : http://journals.openedition.org/rdctss/2713 ; DOI : https://doi.org/10.4000/rdctss.2713
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