This presentation by Toh HAN LI, Chief Executive, Competition Commission of Singapore was made during the discussion on "Promoting competition, protecting human rights" held at the 15th Global Forum on Competition on 1 December 2016. More papers and presentations on the topic can be found out at www.oecd.org/competition/globalforum/promoting-competition-protecting-human-rights.htm
Promoting competition, protecting human rights – Toh HAN LI – Competition Commission of Singapore – November 2016 OECD discussion
OECD Global Forum on Competition, 1 December 2016
Competition Law, inequality and
labour market issues
Human rights, to the extent that they involve
due process and natural justice, will inevitably
be embedded into the competition
My focus is on whether competition
enforcement is inimical to labour market
issues, specifically freedom of association for
the purposes of achieving certain salary
Collective bargaining by unions well
established as an exception to competition
Industrial Relations Act (Singapore)
Section 6 Clayton Act (US)
“Undertakings” (EU, UK and Singapore)
Employed vs Self Employed
Employees in a single firm associating for
purposes of collective bargaining will not fall
foul of competition law because they are not
Independent self-employed contractors who
associate to achieve certain salary objectives
would fall foul of competition law since they
are considered undertakings and need to
compete to supply services.
Employed vs self-employed
Employees are not undertakings while self-employed
service providers who may perform the same activities
as employees are, in principle, undertakings in relation
to the Act.
Sound policy reason to prohibit freedom of association
among undertakings on collective agreements as it may
result in adverse impact to market competition and
FNV Kunsten Informatie en Media v Staat der
Nederlanden – notion of “false self-employed’
Uber drivers found by London employment tribunal to
Under cartel laws, where undertakings are
involved, freedom of association rules would
be proscribed by competition law.
But competition law regimes exist in an
institutional setting, where other policy goals
are being pursued.
Important for statutory framework to ensure
that competition enforcement does not
directly conflict with other policy goals
Schumpeterian disruption is a key feature of the
competitive process, but job losses caused by
disruption require policy interventions such as job
matching, retraining and reskilling
Lower prices for goods and services are important,
but so are good jobs and purchasing power so as to
achieve overall welfare enhancement
Good labour market policies can complement
Statutory framework allows government policy and
net economic benefits (if established) to be exempt
A number of modelling agencies agreed to
collectively raise rates for modelling services.
Claimed NEB to ostensibly raise welfare of
models, but no substantive evidence provided.
Argued that some clients had strong bargaining
power, hence agreement had no impact.
But CAB found 60% increase in rates from 2005
to 2009. Also a number of clients were SMEs.
Agreement to fix prices is a restriction of
competition by object; NEB not made out.
SMA is a private sector professional association for
doctors. The SMA GOF recommended range of fees for
services provided by self employed doctors in private
practice in Singapore.
GOF had the object of restricting competition as it was a
decision by association of undertakings.
GOF was not useful in constraining doctors from
overcharging, did not meet the requirements for NEB
test (e.g. there were minimum prices specified)
GOF was really meant more for doctors than patients
and there were less anti-competitive means to achieve
SMA applied to Minister to exclude GOF on
grounds of exceptional and compelling reasons of
public policy, but application was declined by the
Private sector healthcare services do not merit
special exemptions from the Act.
Law Society of Singapore removed guidelines on
fees for conveyancing in 2009 as “all fees should be
freely negotiated between solicitors and clients
without guidelines from the Law Society Council”
16 employment agencies (“EAs”) entered into an
agreement to raise and fix monthly salaries of new
foreign domestic workers (FDWs)
An FDW is charged a placement fee by the EA
(measured by no. of months of salary) for finding her an
employer in Singapore.
Agreement was in relation to the monthly salary of
FDWs, but actual intent and effect was to increase
placement fees retained by the Singapore EAs.
Government can intervene for social reasons (e.g.
mandatory rest day per week or progressive wage
models for specific sectors)
“…the goal of competition policy is to contribute to overall
welfare and economic growth by promoting market
conditions in which the nature, quality, and price of goods
and services are determined by competitive market forces.
In addition to benefiting consumers and a jurisdiction’s
economy as a whole, such a competitive environment
rewards enterprises that respond efficiently to consumer
-OECD Guidelines for Multinational Enterprises
Competition law enforcement restricts freedom of
association and collective agreements where
undertakings are not considered employees.
Competition law enforcement operates in an
institutional setting where various Government agencies
have different mandates which addresses various socio-
economic issues such as jobs, reskilling and salaries to
contribute to overall welfare and economic growth.
Important for statutory framework to ensure that
competition enforcement does not directly conflict with
other policy goals