Devising a refined framework for distinguishing between ‘workers’ and ‘self-employed persons-undertakings’ in the EU labour and competition law fields: Lessons from the EU agency acquis
In recent years, the European labour market has undergone a radical change. In addition to part-time, fixed-term and agency work (the original ‘atypical’ contracts), new casual forms of employment have become more prevalent such as zero-hours contracts, employee sharing, ICT-based mobile work, interim management, portfolio, crowd, and platform work. These new forms of employment have blurred the lines between dependent and independent work, leaving many individuals standing uncomfortably in the grey area between ‘employment’ and ‘self-employment’. On the one hand, these new working professionals (i.e., Uber drivers) do not satisfy the archetypical paradigm of subordinate employees working under open-ended contracts of employment for one principal throughout their lives. On the other, they are not entrepreneurs free to provide their services in the market in whatever way they please. Since they exhibit characteristics of both categories, their classification has become increasingly troublesome. Are all these quasi-subordinate individuals ‘self-employed persons-undertakings’ or are they ‘workers’? In other words, should they be captured by, or considered irrelevant to, EU labour and competition law provisions and how do we decide?
This thesis responds to these challenges by coming up with a refined and detailed framework that would help judges and legislators classify working individuals. The originality of the thesis lies in its unique methodological approach of using tools and indicia that have been provided within the sphere of EU competition law to elucidate our understanding of who constitutes a modern-day ‘worker’. More particularly, instead of focusing on the notion of ‘subordination’ and the well-rehearsed debate on ‘worker vs self-employed status’, the thesis ventures into competition law to identify the instances when working persons can be said to be ‘integrated’ into their employers’ undertaking. In the competition law field, the ECJ has drawn an explicit jurisprudential parallel between the categories of ‘agents’ and ‘workers’, specifying the criteria that need to be present for an ‘agent’ to be integrated into his/her principal’s undertaking in the same way that a ‘worker’ is integrated into his/her employer’s business unit. The thesis draws on the voluminous guidance and case law that has been provided in the EU competition law ‘agency’ field on the instances when an ‘agent’ is in a comparable position to a ‘worker’ (from an integration point of view) and uses it as a starting point for the development of a refined and detailed framework for distinguishing between integrated ‘workers’ and unintegrated ‘self-employed persons-undertakings’ in the EU competition law field. It then brings the proposed framework into other areas of EU law that rely on the same concept of ‘worker’.
Overall, this doctoral thesis adds to the existing literature by providing an up-to-date, refined account of the basic characteristics of integrated working activity that would support a broader and more holistic conception of ‘worker’. If adopted, the proposed framework can act as a blueprint in the hands of EU judges and legislators in their attempts to classify working individuals who are engaged in complex, casual forms of work. On a domestic level, national legislators would have to provide explicit reasons for depriving certain categories of the working population of labour and social protections when the latter have been proven to share the same characteristics of integration as archetypical workers. This would allow for a larger number of people to be able to take advantage of favourable EU and national labour and social protection legislation and to engage in collective bargaining. Finally, even though definitions may differ for the purposes of tax law, undoubtedly, a robust labour and competition law ‘worker’ conceptualisation can have cross-field implications for both individuals and the State itself.