Collective Bargaining Beyond the Boundaries of Employment : A Comparative Analysis

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