Non‐standard workers and freedom of association: a critical analysis of restrictions to collective rights from a human rights perspective *. WP CSDLE “Massimo D’Antona”.INT – 123/2015

De Stefano, Valerio (2015) Non‐standard workers and freedom of association: a critical analysis of restrictions to collective rights from a human rights perspective *. WP CSDLE “Massimo D’Antona”.INT – 123/2015. [Working Paper]

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Abstract

This article deals with the collective labour law aspects of the labour protection of non-standard workers. It aims at contributing to further the debate on the need to adapt existing regulatory frameworks and policy strategies to face the growth of the non-standard workforce in recent decades. Arguably, a vast part of this debate has concentrated on issues related to individual employment law and social security. Less attention has been given, instead, to the questions that the emergence of non-standard work in modern labour markets poses to the regulation of collective rights, and in particular of collective action. This article argues that many of the existing limitations and restrictions to the right to collective bargaining and the right to strike disproportionately affect non-standard workers. Indeed, in some cases, these restrictions go as far as denying, legally or as a matter of fact, access of non-standard workers to collective rights. This article, thus, is meant at reorienting part of the current legal and policy debate on nonstandard work on its collective dimensions. It provides examples of limitations that hamper the exercise of collective rights in a way that fails to keep pace with the changes occurred in labour markets and societies at large in recent decades, such as the increased number of workers involved in non-standard forms of employment, but also globalisation and some of the related consequences on business and work organisation. It also examines whether these limitations, many of which were formulated to address the economic and legal landscapes existing at the time of their enactment, are still fit to govern current labour markets or whether they have become unreasonably burdensome for the present. In doing so, constant reference will be to a legal development that has occurred since some of the existing standards on collective action were introduced, namely the evolution of the rationale of the right to strike “from being a weapon in collective bargaining into an individual human right”, remarked by Professor Sir Bob Hepple QC, in one of his last works. In this perspective, this article argues that existing regulations of the right to strike should be reassessed to investigate whether they are compatible with the “human right” status of the right to strike and in particular whether they are necessary, in democratic societies, to ensure the fulfilment of other basic needs, in particular the exercise of other human rights.

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