Collective Bargaining for the Self-Employed

Abstract

Labor law is a statutory law: it is the special law of dependent workers, and it grants a statute of protection. Since its origins, labor law only applies to one category of subjects: dependent workers. Labor law is defined as special, with respect to civil law, with reference to a category of persons, and not because of the existence of a different object or assets, or because of the concurrence of peculiar acts or legal relations. This is the traditional view, which appears in the studies of the early twentieth century, and whose validity is corroborated today by the Spanish Constitution of 1978 and the Workers’ Statute. According to the second perspective, labor law grants a professional or protection statute to dependent workers, which has been conferred, in general, by rules of a heteronomous nature: the law and collective bargaining. As the guarantor of a workers’ statute, labor law has become the paradigm for the protection of all those who work. In recent years, in the debate on the boundaries of labor law, the status of self-employed workers in a situation of economic dependence has acquired particular importance. Labor law, which emerged as the law of a special class of workers, tends to apply also, on occasion, to the self-employed. In a social State, labor law strives to become the common law of all those who work professionally on a dependent or self-employed basis. This article will analyze the problem of the right to collective bargaining of particularly vulnerable self-employed workers, both those who are economically dependent and those who, whilst not in this category, do not have dependent workers under their charge and, therefore, are not entrepreneurs or employers for labor purposes. In both cases, self-employed workers may find themselves in a situation of contractual weakness with respect to a single or several employers. In the Spanish legal system, selfemployed workers have a right to organize for the collective defense of their own interests. The analysis will make it possible to verify to what extent the channels established by the Spanish legal system for the collective defense of self-employed workers are adequate to respond to the need for protection, at the collective level, of the professional interests of those who are in a situation of economic dependence or contractual weakness with respect to the counterparty to whom they provide services.