This paper delves into the ways in which EU competition law affects the right of workers to organize and combine with each other and act, collectively, in the furtherance of their rights and interests at work, in particular by means of collective agreements concluded with one or more employers. It begins by opposing the limited ‘labour exemption’ contained in the recent competition caselaw and contrasts that with a more traditional ‘labour law’ approach, that would typically see collective bargaining as a fundamental, and universal, labour rights to be enjoyed by all workers, or in the alternative will have to integrate the asymmetry of bargaining power between labour and digital monopsonies. We put forward a more nuanced and balanced approach, by reference to the concept of ‘predominantly personal work’, that could act as the new watershed concept around which labour rights and competition law could define their respective fields of operation and which may already inspire the recent Commission’s proposals enabling self-employed without employees (“solo self-employed”) to access the right to bargain collectively on a number of issues with digital platforms.

INTRODUCTION. THE RELEVANCE OF PLATFORM WORK IN THE UK

In ‘Sorry We Missed You’, internationally acclaimed director Ken Loach vividly described the plight of millions of British workers trying to earn a living while being managed by a ruthless algorithm at the hands of unscrupulous employers operating in the so-called ‘gig economy’. ‘Sorry We Missed You’ was partly inspired by the even more tragic events that in January 2018 led to the death of Deutsche Post Delivery (DPD) courier Don Lane. Don had worked for DPD for nearly two decades when, in December 2017, he collapsed at the end of a long and exacting round of pre-Christmas deliveries. It was not the first time the diabetes-suffering, self-employed franchisee had collapsed, including once into a coma while at the wheel of his DPD van. DPD had a policy of applying a L 150 charge to the company's couriers whenever the latter cancelled a round and were not able to arrange cover, and Don – according to his widow – had missed several hospital appointments because of that. In March 2017, nine months before Don's death, Frank Field MP, the Chair of the House of Commons Work and Pensions Committee, had written a letter to the CEO of DPD UK, Dwain McDonald, requesting explanations about his company's policy. No action was taken before Don's death, and DPD only changed its contracts, granting self-employed drivers sick pay, in March 2018.

While not all those working in the gig economy are exactly in the same position as Don Lane, these forms of work have become synonymous with uber-precarious and unprotected working and living conditions. A 2019 report produced for the Trade Union Congress (TUC) and other trade union organisation, Platform Work in the UK 2016-2019, noted how, in the last three years, the ‘number of people working for online platforms at least once a week has doubled from 4.7% of the adult population to 9.6%’. or approximately 4.6 million workers. A report published by the UK Department for Business, Energy and Industrial Strategy (BEIS) in 2018 had that figure at about 2.8 million.