Collective Bargaining Beyond the Boundaries of Employment: A Comparative Analysis

38 Pages Posted: 29 Jul 2015

See all articles by Shae McCrystal

Shae McCrystal

The University of Sydney Law School

Date Written: July 27, 2015

Abstract

Labour laws are designed in part to provide workers with adequate minimum labour standards, including access to collective voice and representation in establishing working conditions. They generally focus on ‘employees’ but an increasing number of workers are not employees. As Judy Fudge has observed, ‘the forms of work and numbers of workers outside the scope of labour law has proliferated’. For example, in highly developed countries, self-employment ranges from ‘freelance professionals to women who provide childcare in their homes, and to men who drive trucks or operate franchises for a living’. Collective bargaining laws that only empower ‘employees’ (which may be narrowly defined) to organise and bargain as a collective may leave many workers subject to more restrictive rules of contract, commercial and competition law. This article examines how jurisdictions in Australia and Canada have dealt with the question of collective bargaining by self-employed workers. The article develops a typology of regulatory models, outlining the features of each type of model and considering, in particular, the manner in which these models differ from widely applicable models of employee collective bargaining. It assesses the strengths and weaknesses of the models from the perspective of facilitating worker access to collective bargaining.

Keywords: Collective bargaining, Independent contractors, Dependent contractors, Creative arts workers, Care workers, Truck drivers

JEL Classification: K10, K30, K31

Suggested Citation

McCrystal, Shae, Collective Bargaining Beyond the Boundaries of Employment: A Comparative Analysis (July 27, 2015). Melbourne University Law Review, Vol. 37, No. 3, pp. 662-698, 2014; Sydney Law School Research Paper No. 15/64. Available at SSRN: https://ssrn.com/abstract=2636600

Shae McCrystal (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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