Safeguarding the right to collective bargaining in the face of precarious self-employment – Gaps in Protection in Austria and Germany and obligations under European law

In recent years, terms like platform work, gig work and cloud work have sparked a debate amongst labour lawyers and lawmakers. Even though the circumvention of traditional employment relationships is not a new phenomenon, technological change and the increasing flexibility of work put previously established standards on fair wages and just working conditions anew at stake. Trade Unions have traditionally played a key role in protecting those whose livelihoods depend on providing labour for others. A closer look at the existing legal frameworks in Austria and Germany shows that solo self-employed persons, meaning workers who do not have an employment contract and do not employ others, can benefit only to a very limited extent from the capacity of trade unions to bargain collectively, which is a critical instrument to ensure fair working conditions, including fair wages. This article argues that the European human rights standards require national legislators to take active steps in ensuring the right to bargain collectively for every person in need. In section I, we will start by introducing the central concepts of our analysis and discuss the extent to which the legal frameworks in Austria and Germany allow for collective bargaining on behalf of solo self-employed persons. In section II, we will look at several layers of human rights protection at the European level, with a focus on the personal scope of the right to collective representation. In the final section, we will address the interplay between human rights standards and EU law, before concluding with our recommendations for domestic legal change in Austria and Germany.