Michael D Higgins (Galway West, Labour)

I move: "That the Bill be now read a Second Time."

I am glad that we are discussing, this evening and tomorrow, the Labour Party's Private Members' Bill to amend the Competition Acts. This Bill is about the vindication of a fundamental principle, indeed a right, namely, the right to collective representation. This Bill aims to ensure that legislation cannot be used to undermine the right to collective representation of atypical workers such as actors, musicians, freelance journalists and others, or to block representative organisations negotiating with the Government or national bodies on behalf of their members, as is currently the case.

This means in practical terms that we are seeking to ensure the right to collective bargaining of those who can be, and who often have been, some of the most exposed workers in the State. These include, although they are in no way confined to, members of Irish Equity, members of the Musicians' Union of Ireland, the NUJ freelance section and others who have been precluded from negotiating with the people to whom they sell their services as employees by way of collective bargaining. These are often in instances of severe asymmetry, where an individual seeks to negotiate with a large and dominant organisation. Indeed, the issue first arose in the context of the difficulties undergone by members of Equity, the Irish actors' union. I must declare an interest here, as my wife is a member of Actors Equity and I know many of the people who are members of that section of SIPTU. I raised this matter on the Adjournment of the Dáil at the time, which is now over two years ago. At that time, the issue centred on the fact that Irish Equity had been forced to sign an undertaking stating that the union would not negotiate fees for actors working on commercials for private companies. The rationale given by the Competition Authority, and parroted by the Government at the time, was a fear of price-fixing by actors involved in services such as voice-overs of advertisements on television or the radio.

When I raised this issue on the Adjournment on Tuesday, 15 November 2005, I posed a fundamental question. Can an EU directive on competition that has been translated into Irish law be used in such a fashion as to undermine the rights of workers to collective representation? These are rights that have been hard-won and are enshrined in trade union law and in the conventions of the ILO, of which Ireland is a signatory. The Minister at the time, taking a particularly incoherent approach to the issue, took the view that actors be viewed as independent contractors rather than PAYE workers. As the very nature of an actor's employment, as well as that of other groups affected by this unsympathetic, even hostile, interpretation of legislation, means that he or she often lacks continuity of employment, such a designation could never be applied in the first instance. If people are in any doubt, they should look at the Arts Council survey on actors' incomes. The Minister replying to me on that occasion stated inter alia:

On the question of whether actors are 'undertakings' within the meaning of the Competition Act, I understand that, as a starting point, the Competition Authority considered whether the Revenue Commissioners treated 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. It also considered other factors, such as the following. . . . 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 of employment. For example, they generally do not receive holiday pay, health insurance, maternity leave, etc.

He said it as if this were a good thing. The upshot has been that these actors have suffered serious wage cuts and they have been denied the right to have unions make representations on their behalf or negotiate collective agreements. Freelance journalists, musicians and others are in a similar position.

The decision by the Competition Authority to use section 4 of the Competition Act 2002 against actors has immense implications. The fact that the trade union SIPTU was forced on the steps of the court to sign a declaration that it would not represent such actors was a low point in the modern history of Irish industrial relations. While the Competition Authority had begun with actors, all atypical workers could be affected. At a time when there is a drive for the casualisation of work and when we are already experiencing the abuse of workers provided on an agency basis, we need to vindicate the right to collective representation now more than ever.

The interpretation of section 4 of its founding legislation — the Competition Act 2002 — taken by the Competition Authority cannot be allowed to stand. I believe its implementation is inherently wrong, immoral and illegal since it is in violation of treaties which Ireland has signed and ratified. We have accepted an international obligation on the fundamental freedoms and rights of workers, and the right to be represented collectively. In this context, it is surely scandalous to have arrived in a position such as this, where an ideological attack on some of the weakest workers in Irish society, to whom we have never given proper recognition through social welfare, pensions or income, has been allowed to come about. Each individual worker, be they actor, musician, writer, photographer or anything else, is defined as a business and not a worker. This is simply a violation of the International Labour Organisation convention. Neither is it in line with a recent, and very important, decision of the European Court of Justice, which was asked to adjudicate on the competing rights of transnational commerce and the right of workers to collective representation. I will return to this case.

On Wednesday, 1 March 2006, I raised with the Taoiseach the implications of what was unfolding in terms of the undermining of the rights to collective representation. He affected a concern on more than one occasion, particularly as the talks with the social partners approached. On 28 March 2006, he replied to me, partly acknowledging the concerns of the social partners on this issue. In the course of his letter to me, he stated:

The investigation by the Competition Authority was in relation to a possible breach of Section 4 of the Competition Act 2002, which applies to arrangements which have as their object or effect the prevention, restriction or distortion of competition in trade in any goods or services in the State. The legal issues involved are therefore quite complex, in terms of striking an appropriate balance between the differing considerations of competition law, including EU provisions on the one hand, and the relationship between these considerations and industrial relations law and practice, including the role of collective agreements, on the other. As you know, ICTU has raised specific concerns about the approach of the Competition Authority in this matter. I appreciate fully these concerns, and I believe that a review of the range of legal and other issues involved would be worthwhile. While the difficulties that these issues present should not be underestimated, I remain optimistic that an appropriate and balanced solution can be developed in the context of a dialogue between the relevant union interests and the Authority against the background of the negotiations towards a new social partnership agreement that are currently underway.

That was in March 2006. However, nothing happened.

The matter of collective bargaining has been to the fore over recent times. There are two principal issues which have served to highlight the theme. In an international context, the Viking Line case, case C-438/05, has attracted attention across the European Union. In this recent decision of the European Court of Justice, delivered on 11 December 2007, the court declared the right to collective representation to be a fundamental right. This formed part of the judgment of the Laval case, which was just announced today. This case concerned a Finnish ferry company, Viking Line, which sought to re-flag its ferry in Estonia using low-wage Estonian crews. The Finnish seafarers' unions protested. They were taken to court by Viking Line on the grounds that they were interfering with the company's right to provide services under EU law, which is a central tenet of that law.

In its judgment, the European Court of Justice in Luxembourg held that the right to take collective action, including to strike, is a fundamental right and forms an essential pillar of the general principles of EU law and is not subverted by the right of businesses to operate anywhere in the EU. In the ruling, the European Court of Justice found that Viking Line's right to provide services did not overrule the right of workers to take collective action to protect their legitimate interests. This is particularly important on the eve of the proclamation of the European Charter of Fundamental Rights, which includes the right to collective action and will be made legally binding in the Lisbon treaty, should it be accepted.

It is an important ruling with implications for workers all across Europe, including Ireland, as it confirms that the right to take collective action to protect workers cannot be subsumed by the right of businesses to operate in other countries. It is also of relevance to the issue at hand on a domestic basis, since it demonstrates moral and legal leadership with regard to the right to strike. While the European Court of Justice found that strike action constituted a restriction of the right of freedom of establishment, such action was justified because it was done in pursuit of a legitimate aim, namely, protecting the jobs and conditions of employment of union members.

The Competition Authority's interpretation of section 4 of the Competition Act 2002 and its related court action in the case of Actors Equity was rolled out to challenge the right to collective representation in general. On a domestic level, we have seen the difficulties encountered by members of the Irish Pharmaceutical Union in seeking to negotiate a collective agreement on behalf of its members with the HSE. The current dispute between the HSE and the pharmacists over plans to cut the margins for dispensed drugs has been greatly complicated by the refusal of the HSE to negotiate collectively with the Irish Pharmaceutical Union. The HSE argued that a High Court decision taken by the Competition Authority and brought to the steps of the court in the case of Actors Equity prevents it from negotiating with the Irish Pharmaceutical Union, stating that pharmacists are undertakings. Such an interpretation challenges not only the right to use its negotiating power by the Irish Pharmaceutical Union, but the right of all those with a negotiating mandate, such as dentists in the health service negotiating with the Department of Health and Children or the HSE, or vets negotiating with the Department of Agriculture, Fisheries and Food.

This Bill that I introduce on behalf of the Labour Party would vindicate the right to collective negotiation in all of these circumstances. It would eliminate one of the major obstacles standing in the way of a resolution of the current crisis in the pharmacy sector. In a letter to all Deputies and Senators, Mr. Michael Guckian, President of the Pharmaceutical Society of Ireland, stated:

the Union is prepared to go to the table without any preconditions, or predetermined outcomes and we would hope that the HSE would do likewise. The Union has proposed that talks on a new pharmacy contract, under an Independent Chairperson, should commence immediately. The purpose of these talks would be to reach agreement on all aspects of the contract, including an appropriate pricing structure for the delivery of pharmacy services. This had previously been agreed with the HSE at a meeting in November. When agreement is reached on an appropriate pricing structure, the matter could then be referred to the new proposed arbitration system, which the Minister for Health and Children alluded to in the Dáil on 21 November 2007. It is hoped that such a Body or System will provide an independent and fair assessment of all of the issues involved and could then make recommendations to the HSE on pharmacists' remuneration. However there is no indication, as of now, the HSE are prepared to proceed on this basis.

That is a fair letter and deserves to be treated fairly, without people retreating regularly for legal advice to encounter the obstacle of the Competition Authority. This offer from the Irish Pharmaceutical Union should be taken up and a resolution could be achieved. The passing of this legislation would ensure that it would not be necessary to interrupt the talks at the point of nearing agreement by legal interventions as to whether pharmacists have the right to be collectively represented.

The basic question is whether the person engaged to perform services is performing them as a person in business on his own account. For Competition Act purposes, the test is whether an individual is what the Act refers to as an undertaking, defined as a person engaged for gain in the production, supply or distribution of goods or the provision of a service. If he or she is engaged for gain, as opposed to being paid a wage, then the Competition Act applies, and as far as the Competition Authority is concerned, and collective agreements are prohibited.

This interpretation is legally frail as well as being inoperable and recipe for chaos in industrial relations. The Competition Authority's reliance on the Revenue Commissioner's definition of worker as that of a PAYE employee is arbitrary and unacceptable. The key definition in the Competition Act is that of undertaking, which is how atypical workers have been classified. Following this rationale, such workers have effectively been designated as mini-businesses, each with their own contract, with apparently no contact with or connection to fellow workers. This bears little or no relation to the reality of the situation.

One has only to consider what the implications of such a view would be in a labour market where not only are there atypical workers, but also workers who have been made redundant and who are asked to sell back their services on contract. They do so, of course, at the risk of sacrificing all of the protections and benefits that have been won by trade unions over generations.

This Bill has two principal aims. It would enable trade unions to organise and negotiate collectively on behalf of individuals who enter into work under contracts "personally to do or provide any work or services", the emphasis being on the word "personally". It follows that such individuals should not be classed as undertakings for the purposes of competition law. However, self-employed individuals would continue to be prohibited from price fixing against consumer interests.

The Bill allows for collective negotiation and bargaining on the terms and conditions of a scheme whereby services are provided to the public by members of a trade, profession or vocation and paid out of public funds. Section 3(2), for example, would deal with the position of the Irish Pharmaceutical Union. The Bill seeks to change the powers of the Competition Authority by amending section 4 of the Competition Act 2002 in such a way as to ensure that it does not undermine the right to collective bargaining and representation. It is the Labour Party's view that section 4 is in breach of European law and the International Labour Organisation conventions on the right to collective representation.

I believe the Oireachtas never intended section 4 of the Competition Act to be used to undermine trade union statute law and international human rights conventions. However, that is precisely the position at which we have now arrived. Unless section 4 of the Competition Act is changed, under current interpretations many workers will be deprived of some basic protections. At particular risk are those in atypical employment or people who have been forced into contract employment.

Sections 3(1) and 3(2) of the Bill specifically enable participants and providers in schemes of public provision paid for out of the public purse to be represented and to pursue collective agreements. It thus, to give a specific and current example, eliminates one of the fundamental stumbling blocks towards a resolution of the dispute between the HSE and the Irish Pharmaceutical Union. The introduction of this Bill is necessary for further reasons, as a means to make sense of, and improve upon, the Competition Act of 2002. If this Act, under the current interpretation of the Competition Authority, were to be applied with full force and effect to trade unions and their members, trade unions would revert to their old common law status as unlawful combinations and trade union leaders would be prosecuted as parties to a criminal conspiracy. The difficulties we now face arise due to the obsession with a narrow and hegemonic definition of competition by the Competition Authority as well as the Government and an apparent inability to apply any sensitivity or flexibility in circumstances where the notion of competitiveness is clearly misplaced.

The Labour Party is not opposed to competition. There is a role for competition in many aspects of life. There are also other areas where the guarantee of provision of a service constitutes any reasonable definition of a citizenship right. It is important that competition legislation be interpreted in such a way as not to undermine fundamental rights. There are areas in which the market cannot and should not be relied upon to provide services that are basic rights of a citizen in a decent society.

The Competition Act not only encourages competition between entities, but further strives to make such competition mandatory. In the view of the Competition Authority, any agreement or concerted practice that has the object or effect of distorting competition is null and void, a civil wrong and a criminal act. This includes any agreement on the terms and conditions on which work is to be done or services are to be provided. Happily, the European Court of Justice decisions clearly strike this down.

Statute law, since 1871, the Constitution and international human rights conventions, including ILO conventions, recognise the right to form trade unions. Further, collective bargaining by trade unions on behalf of their members is actively encouraged as a bedrock of social partnership. This is why the Taoiseach was promising it would be fixed up in the early stages of the social partnership talks, a commitment that came to nothing. Nevertheless, I hope this evening and tomorrow that there will be support for this amending legislation from all sides of the House.

The basis of the problem as I have outlined it is the fact that trade union activity is, at its heart, anti-competitive. Workers do not underbid each other to compete for jobs, nor should they be required to do so. Instead, they organise and bargain collectively so as to obtain the best outcome for all members and society. Again, organisations of professionals providing a professional service for a public scheme must be accorded the right to collectively suggest, deliver and achieve the best possible service.

I am appealing to all Members of the House to support this amending legislation. It addresses inequities that I like to believe were never intended in relation to the position of the most vulnerable of workers. It would also remove one of the obstacles to the resolution of a dispute that the members of the profession involved and the public in general are anxious to see resolved. I appeal for support for this legislation, which is a modest proposal to amend section 4 of the Competition Act to achieve these objectives.

See this speech in context