Kolektivna pogajanja za samozaposlene – povabilo EFJ

2. Response by Flemish Association of Journalists

The Flemish Association of Journalists represents a significant number of journalists in Flanders/Brussels. In Belgium, almost 1 out of 4 journalists works on a freelance basis. Some of them, especially journalists dealing with local news but also journalists working for digital only media & photo journalists are poorly remunerated. This gives cause for concern because poor social conditions might impact your independence as a journalist.

At this stage, a more appropriate remuneration is a far away dream because of freelancers’ weak individual and collective bargaining position. Individually because media concentration is high in Belgium. Collectively because of legal restrictions as self-employed are considered as undertakings under compettiion law. The latter basically means no publication of (recommended) rates and no room for negotiation with sector partners about eg. minimum rates. National policy differences (in some countries partners actually have entered into collective bargaining agreements for self-employed, …) show that this is an untenable situation. It is time to put an end to legal uncertainty.

3. extract of inception impact assessment
“Competition: Commission invites comments on inception impact assessment on scope of application of EU competition law to collective bargaining agreements for self-employed

The European Commission has published an inception impact assessment as part of the process that aims at ensuring that EU competition rules do not stand in the way of collective bargaining for those who need it. Digitisation is profoundly affecting the way people work, creating new opportunities also in the labour markets. Evidence shows for instance that a growing number of individuals engage in platform work. However, digitisation can also create challenges for individuals and put pressure on working conditions. These challenges are also present in certain forms of self-employment outside the platform economy. European competition rules do not apply to collective bargaining by workers but collective bargaining by self-employed considered as “undertakings” could be caught by competition rules.  Whilst it is not for competition policy to address the social challenges faced by vulnerable self-employed, EU competition rules should not be an obstacle to collective negotiations or agreements that aim at improving the working conditions of these individuals. In the inception impact assessment, the Commission has set out initial options to clarify that, provided that certain conditions are met, working conditions can be improved through collective agreements not only for employees but also for those self-employed who need protection, in line with EU competition rules. The Commission proposes to assess these different options through an impact assessment. The published inception impact assessment is an opportunity for the public and for all relevant stakeholders to comment on the form and scope of the initiative. Stakeholders are invited to provide input by 03/02/2021. A more detailed public consultation, based on a questionnaire, will take place during the first quarter of 2021.

Neither collective negotiations/agreements concerning trading conditions (such as prices charged) to private consumers nor unilateral price fixing would be covered by this initiative. In addition, the initiative would not introduce any obligation on any of the parties to enter into such negotiations or to conclude collective agreements: it would merely clarify that EU competition law would not stand in the way of such agreements where the parties concerned chose to enter into them.

Against the baseline scenario, the Commission will consider different policy options that may be implemented through a Council Regulation or a Commission Communication. The Commission has identified four policy options concerning the scope of the initiative. As mentioned above, according to Eurofound, one in four self- employed, can be seen as facing more precarious situations, with lower levels of income and job security. One way

to identify these self-employed in need of protection, could therefore be to focus on those self-employed who have no employees and who rely on their own labour, as they can be expected to be in a weak position on the labour market. Therefore, re-sellers of goods would not be covered.

· ·  Option 1: all solo self-employed providing their own labour through digital labour platforms. Under option 1, only individuals providing their own labour through platforms would have access to collective bargaining. It has been shown that some people working through platforms face significant challenges in terms of earnings and working conditions. Evidence indicates that “most platform workers have little bargaining power” and challenges in terms of working conditions seem to exist both in online and on- location platform work,8 especially in the case of low-skilled, repetitive, easily replaceable tasks. Therefore, this option would cover all people working through platforms, doing online and/or on-location work through platforms.

· ·  Option 2: all solo self-employed providing their own labour through digital labour platforms or to professional customers of a certain minimum size. This option is broader than option 1, because in addition to platform work it would also include traditional professions in the off-line economy, as long as they are not covered by other specific competition law provisions included in sectoral instruments.9 As mentioned in Section A above, a growing number of individuals are economically active through individual commercial service contracts (e.g. independent contractors, freelance workers), and in the last decades there has been a sharp increase of freelancers in intellectual and technical occupations in the service sector. This option includes a minimum size threshold for the counterparty with whom the self-employed may bargain collectively. The minimum size threshold would aim to prevent that the balance of negotiation power tilts against that counterparty. For the purposes of determining the minimum size of the counterparty, the use of the definition/thresholds of the SMEs could be considered.

· ·  Option 3: All solo self-employed providing their own labour through digital platforms or to professional customers of any size with the exception of regulated (and liberal) professions. Under this option, self-employed exercising regulated/liberal professions would not be covered by the initiative. These professionals are often perceived as not being in a position of weakness. An issue to consider under this option would be the absence of a generally applicable EU definition of regulated/liberal professions.

· ·  Option 4: All solo self-employed providing their own labour through digital labour platforms or to professional customers of any size. Under this option, which is the widest in scope, there would be no restriction as regards the size of the counterpart in the collective bargaining/agreement. Those counterparts would be allowed to bargain collectively too, for example across a certain sector, mirroring traditional collective bargaining. This may ensure that also small businesses could gain enough countervailing bargaining power against solo self-employed negotiating jointly. Under this option it could be further analysed whether public or semi-public professional associations that unite all professionals exercising regulated professions should be allowed to negotiate on behalf of their members. In any event, as in all options, unilateral price setting agreements are excluded.