Michael D Higgins (Galway West, Labour)

I want to say a few words about the extraordinary speech given by Deputy Fiona O'Malley which must qualify as the most brass-necked of the year. She regards it as somehow old-fashioned not to leap towards the abolition of the groceries order or to take a number of important and innovative steps which have aroused the intellects of the Progressive Democrats. The party she represents is extraordinary but is not particularly economically innovative. For example, it is in favour of private health care on public sites. In the case of transport, it favours an unending transfer of resources from the taxpayer to monopoly controllers of tolls. With regard to housing, its members are probably delighted that we have had approximately 81,000 housing finishes but have provided fewer than 6,000 public houses. It is a recipe for radical and unmitigated individual greed.

It is interesting to hear the brash presentation of all this by a young Deputy who has not learned much from her short time in this House. The analysis she brought to bear on the grocery trade is extraordinary but I will say little more on this because I wish to address the inappropriate amendment this Bill brings to section 4 of the Competition Act.

In 1967, when I was a young postgraduate economics student, I remember doing work on the changing structure of the retail trade. Nobody then could have anticipated the degree of change that has since taken place. The suggestion that consumers are interested solely in price is an appalling distortion of the nature of consumption in this and other sectors. Purchasers in the retail sector are interested in other issues, including convenience, time and packaging. A debate was held, for example, on the quantities in which goods are provided. Reports by the National Economic and Social Council and others have been compiled on the relationship between aged people and the retail sector.

It is nonsense to suggest that consumer interests are served solely by issues of price. However, such a suggestion recommends itself to the Progressive Democrats Party which, in addition to abolishing the groceries order, wants to reassure every small garage, shop and stand-alone business that it is available for contributions. That is what may be called classical Progressive Democrats hypocrisy — a mixture of radical individualism and a longing for a kind of Poujadist appeal to the Irish political scene.

The bright young Deputy from Dún Laoghaire-Rathdown did not reply to any of the issues raised by my colleague from County Galway on, for example, the systematic ignoring of the Oireachtas joint committee or the areas in which the consumer strategy group may have been wrong. I share the view of my colleague, Deputy Howlin, that the proposed amendment to section 4 will not achieve what it is purported to do and will have a structural effect in terms of changing diversity of choice and supply.

Serious questions arise with regard to shifting the burden of regulation to the Competition Authority, which has disgraced itself. Last November, in a move which no doubt will recommend itself to the Progressive Democrats philosophy, it pursued a specific target, credit unions. After that it pursued artists, including musicians, freelance actors and photographers. In December 2003, it decided to initiate a review of the members of such groups.

It went to the steps of the courts, effectively, with regard to Equity, the actors' union and members of SIPTU in general, to insist that the union had no right to represent freelance actors. We should bear in mind that the number of registered actors is probably approximately 5,500. It was argued that because freelance actors were not regarded as PAYE workers by the Revenue Commissioners — this was the beginning of the Competition Authority's analysis — they were, therefore, independent contractors. The judgment is interesting in that it argues that because such people are not entitled to security of employment, maternity benefit, holidays or any other benefits associated with regulated employment, they are, in effect, contractors. The decision of the Competition Authority will not be confined to the artists I have mentioned. It will be applied to others who lose their jobs and are asked to contract back their services.

The decision and the arguments made by the Competition Authority are very interesting. Section 2.15 of the decision reads as follows:

As a starting point, we consider whether the Revenue Commissioners treat actors as employees subject to PAYE or as independent contractors. The Authority's investigation revealed that the vast majority of actors in the State are not treated as PAYE employees. While this one factor is not outcome determinative, it is a useful starting place.

It was a vicious starting place, based on a new kind of ignorance being imposed on practice. Very few actors are in permanent employment. The authority went on to state, in section 2.16 of its decision:

Actors providing advertising services generally are not obliged to work for a single advertising agency. They may work for several at the same time.

Such actors generally do not receive the benefits one usually associates with a contract for labour. For example, they generally do not receive holiday pay, health insurance, maternity leave and the like.

Such actors generally do not have employment security.

Such actors are free to accept or decline a specific piece of work as they see fit.

An actor is expected to go from one source to another, for example, for recording an advertisement. The argument is based on the fact that actors do not have continuity of employment, but anyone who knows a whit about the nature of performance, acting, musicianship or photography will know that artists take work whenever they can get it and pay their taxes. Serious issues have been raised by this decision and the only way of dealing with them is to amend section 4 of the Act. Such an amendment will be proposed by my colleague, Deputy Howlin, on Committee Stage.

In March 2003, the Competition Authority initiated an investigation into alleged price-fixing between self-employed actors and advertising agencies. It struck down an agreement between SIPTU and the Institute of Advertising Practitioners in Ireland. The agreement in question suggested that before an actor accepted a fee less than that mentioned in the agreement, he or she would revert to the secretary of the union to determine whether to do so. The authority heard the complaint and made its decision. SIPTU had to give a signed undertaking that it would not represent freelance actors, including members of Equity. This tears apart a whole section of our trade union legislation. It is also in complete breach of a convention of the International Labour Organisation, details of which I will provide later. The decision is also an abuse of the right to trade union representation, as established in European law by the European Union.

The Competition Authority's starting point, based on information from the Revenue Commissioners, was the startling discovery that the majority of artists were not PAYE workers. It went on to argue that under section 4 of the Competition Act, each individual artist was an undertaking. It extrapolated from this that what existed was a contract. I believe that Members of this House are humane and will want to support the amendment proposed by the Labour Party.

Thankfully, the then head of the Competition Authority is now gone, and good riddance is my response, given his ideological choice of targets to establish competition, namely, credit unions, actors and occasionally, for the sake of appearances, the producers of food that Chihuahua dogs might eat.

The right to collective representation cannot be swept aside in the name of competition, unless one is defining and construing competition improperly. The correct response to the position artists find themselves in is to change the Competition Act by amending section 4; to vindicate the Industrial Relations Act of 1990 and the basic Act of 1901; and to uphold the ILO convention, which is Regulation 87 of 1998, as well as the EU directive which the authority's decision breaches. The appropriate amendment to the Competition Act would be to insert after section 4 a provision establishing the right of a trade union to represent an individual who should not be defined as an undertaking.

The implications of the case to which I have referred are important not just for artists but for all who are engaged in atypical employment, who find themselves under increasing pressure from the likes of the party Deputy Fiona O'Malley represents, which would like to destroy the security for workers that has been built up over 150 years. That is where the Progressive Democrats are coming from, be it in terms of justice or economics, it is somewhere out of the dark recesses of the 18th century. The decision will affect those who have been forced to trade in their jobs and who are being asked to offer their services as self-employed contractors. All such people, under the interpretation of the decision, will not only lose the benefit of employment protection legislation, they will also be prevented — I emphasise the scandal of this — from organising collectively to better their terms and conditions of service.

The very same grounds that justify trade unions receiving recognition and immunity a century ago under the Acts to which I have referred also justify organising and collective bargaining by self-employed persons. How dare the Competition Authority insist that somebody who is forced not to have continuous employment — an artist, musician or anyone who as an individual has to sell his or her labour — does not have the right to be represented by a trade union. That is what was sought on the steps of the court by the authority to avoid the SIPTU representative, Ms Jane Bushell, going to jail. This is the body that will be the regulatory authority, a scandalous, discredited bunch of people, operating ideologically and directing their powers to date against easy and cheap targets. This does not mean I am opposed to competition. At the outset of my remarks I stated that I am in favour of diversity of supply and consumption, but I am not illiterate enough economically to suggest that we should all be governed only by price.

If we accept the consequences of what I have described and if such people as I have mentioned are not allowed to organise and be represented, individually they are weak. United, however, they can achieve some rectification of the institutionalised inequality of bargaining power. If people wanted equality of competition in the supply of labour services, why should one side of the equation be allowed to organise but not the other?

Our view in the Labour Party is that trade unions should be free to organise and negotiate collectively on behalf of their employed membership and on behalf of individuals who enter work under contract personally to execute any work. Such individuals, for the purposes of section 4 of the Act and of the decisions of the Competition Authority should not be classed as undertakings. The self-employed should continue to be prohibited from price-fixing against consumer interests, but it will be interesting, as we are on the verge of talks between the so-called social partners, to see whether this issue will be resolved before the talks begin. Any partnership model worth its salt should incorporate an openness to trade union membership.

I founded a section of the WUI to represent lecturers in 1968-69. That union became the FWUI and then SIPTU. How could my brothers and sisters in SIPTU sit down and accept a situation where many of the people who had been in the trade union movement for such a long time would be denied the right of representation? It should be impossible but that is where we are, and it is interesting to be direct about it in this House.

Everyone has the right to be represented in here but it is time to recognise the extreme views that support the situation I have described, the extremists in law, housing, health, trade union rights and competition, who reduce everyone to their price. One can imagine the Progressive Democrats standing outside the supermarket saying there is a penny off something today. We live much better, and their arrival on the political scene considerably cheapened it.

The amendment I have suggested is essential to the Bill and I look forward to hearing the debate on Committee Stage. I was moved by the speeches of Members on all sides of the House representing a more generous time when they recognised the provision of retail activity as something that was not measured entirely by price but by the length of time a place was open, its proximity to those who needed it, good planning and physical and spatial factors such as access that are dismissed by the Competition Authority, factors as important as those praised by the cheapskate merchants who are trying to impose their economic misery on the rest of us.

See this speech in context