Resumen de Square Pegs in Round Holes?: Collective bargaining and the self-employed
There has been an explosion of interest in the collective bargaining rights of the self-employed, and this is now reflected in an extensive body of academic and policy literature.
In part, this is a reflection of the growing numbers of self-employed workers in the labor market. In the United Kingdom in May 2021, for example, there were estimated to be 4.2 million self-employed workers.
The interest is not simply a matter of numbers, however. Many of these self-employed workers do not fit the classic normative underpinning to the binary divide between labor law and commercial law, reflecting the subordinate and dependent “employee” and the autonomous and independent self-employed entrepreneur. On this conventional division of work relations, collective bargaining was unsuitable for non-employees. To extend collective bargaining to the independent self-employed would be unnecessary and counterproductive, providing a shield to protect abuses of market power by privileged market actors.
Of course, self-employment is a broad category. It encompasses highly paid professionals, entrepreneurs, and small businesses that employ other workers. It also includes many who experience low pay, long working hours, casual contracts, extensive work surveillance, extreme economic insecurity, and in-work poverty. The legal battles over employment status in the gig economy have shone a light on the precarious working lives of the self-employed. The normative justifications for collective bargaining, such as dignity and empowerment, apply equally to many of the self-employed as they do “employees.” If labor law is to maintain its normative coherence and integrity, the allocation of its fundamental rights must be sensitive to social and economic disadvantages, rather than tied to specific contractual forms like a “contract of service.” It must certainly include many self-employed workers within the scope of fundamental labor rights, such as the right to bargain collectively.
This article offers a systematic legal study of the collective bargaining rights of the self-employed in the United Kingdom.
It begins by elucidating an intermediate category of employment status in U.K. labor law, the “worker,” which is the foundational personal work category for most statutory trade union rights in the United Kingdom. Since “worker” includes some self-employed work arrangements within its scope, this provides a legal right to bargain collectively for some self-employed individuals. There are two main difficulties with this “worker” approach.
First, the legal definition leads to dysfunctional consequences because it excludes some economically disadvantaged self-employed workers from its scope. These include many of the most disadvantaged in the labor market, such as delivery riders, who are in urgent need of basic labor protections.
Secondly, “worker” only provides a gateway into the existing statutory collective bargaining machinery. It does not respond to the distinctive collective interests of many groups of self-employed worker, which may require new forms of bargaining institution. In this dual sense, then, we are in the realm of square pegs and round holes. Some self-employed workers in need of collective bargaining protections are being excluded from the personal scope of worker. And those self-employed workers who are included in the scope of existing legislation are being channeled into a model of collective bargaining that may not serve their collective interests.
