Alan Kelly (Tipperary, Labour) | Oireachtas source

The Bill stems from a long-standing commitment my party made to ensure protection of the right to bargain collectively for freelance workers, including but not exclusively, freelance journalists, actors and musicians - anyone who performs work on a self-employed or contract-for-service basis in a freelance way. Under competition law, currently every self-employed person is considered to be a separate, independent economic undertaking. If one self-employed person combines with others to set prices for his or her services, they can be accused of an illegal, anti-competitive practice. However, the purpose of the Competition Act is not only to encourage competition between entities but to make such competition mandatory. Any agreement or concerted practice that has the object or effect of distorting competition is null and void, a civil wrong and also a criminal act. That would include any agreement as to terms and conditions on which work or services are to be provided. However, both statute law, the Constitution and international human rights conventions recognise the right to form trade unions. Collective bargaining by trade unions on behalf of their members is actively encouraged as a bedrock of social partnership.

The issue for legislators is that trade union activity is at its heart an anti-competitive activity. Workers do not underbid each other to compete for jobs. Instead, they organise and bargain collectively so as to obtain the best outcome for all their members. At present, the litmus test for exemption from the Competition Act is whether an individual is an employee or is self-employed. However, atypical employment, involving those who are not obviously employed or self-employed, is a growing phenomenon. That is partly due to a desire on both sides to reclassify employees as self-employed, in which case there are differences in taxation of expenses, PRSI and pension obligations and rights. Most employment protection legislation applies only to employees. In addition, different health and safety rules may apply. The employer's vicarious liability and, therefore, its insurance premiums, will also be different.

A variety of tests is applied in order to decide a person's employment status but the basic question is whether the person engaged to perform services is performing them as a person "in business on his own account". The issue was highlighted in a case where the Competition Authority decided that competition law applies to Equity, a section within SIPTU for actors and others in the entertainment industry. Traditionally, artists, actors and other self-employed individuals have acted collectively to reach agreements with powerful organised groups such as broadcasters and advertisers. However, from a competition law point of view, where entertainment trade unions enter into agreements recommending minimum prices for the hiring of services of their members, that is no more than a price-fixing agreement to which the competition legislation applies. Accordingly, in real terms, actors, musicians and journalists are barred from bargaining collectively with their common employer about their pay rates and conditions. That has surprised many people, but that is the understanding currently in Irish law under the Competition Act 2002 and that is what my party's Bill aims to change. The Bill will allow self-employed workers such as actors, journalists and musicians and in future others who personally provide work or perform services to bargain collectively with their employers.

Our colleagues in the trade union movement in SIPTU, Equity and the NUJ, among many others, have sought the change in the law that this Bill will achieve and have welcomed its introduction. A variation of the Bill was first launched by the former Labour Party president, the current Uachtarán na hÉireann, Michael D. Higgins, in 2006. It was then taken up by our former colleague, Emmet Stagg, and then our colleagues in the Seanad, Senators Ivana Bacik and Gerald Nash, who have progressed it through the Upper House to where it is before us today - they, in particular, deserve great credit for doing so. They worked with the Government to improve the legislation. I thank the Minister, Deputy Mary Mitchell O'Connor, for her co-operation on the Bill to date.

The Bill is a critical move for actors, freelance journalists and session musicians, but it is not just about those workers, it is also important because it creates a pathway for many other groups of workers to allow them to organise and to be fully covered by employment protection law and to be, correctly, represented by trade unions. It will also help to deal with something that has been a phenomenon in Ireland for some time, namely, bogus self-employment. Unions making their case to the Minister of the day can now prove the need for further freelance-type groups to be included in order that they are protected by this legislation. Unions can now organise groups across various sectors to build cases that can be put to the Minister for consideration and then be covered by the legislation. Many sectors have been hit by bogus self-employment and it must be addressed. It was especially the case in the construction industry. It was evident to all Members. I saw it myself on numerous occasions. When the crash affected the industry some years ago, many young men, in particular, with families, realised they had only basic protections when they lost their jobs, but it was too late then.

The Bill also covers those in full-time or part-time employment and does not make a distinction. The Bill covers those who are lured out of the protection of permanent, pensionable jobs into non-fixed hours, non-fixed low incomes without the benefit of employment protection laws who do not know from one week to the next how many hours or days work they will have. The end result is workers who have no bargaining power, few rights and who can be persecuted by unscrupulous employers.

In 2014 the European Court of Justice, ECJ, brought some clarity to the issue of employed work versus self-employment. The key distinction is recognising that someone cannot be described as self-employed if he or she is doing the same work as other employees and taking direction similar to those employees. This Labour Party Bill is now leveraging the 2014 ECJ ruling regarding the Dutch musicians decision and is bringing in legislation to give it effect in the State.

I will now turn to the provisions of the Bill. Section 1 is the interpretation section.

Section 2 is the principal section which provides the protections for freelance workers that are represented by trade unions. The Bill provides a definition that, "where an individual engages for gain under a contract with an undertaking personally to do any work or provide any services", a trade union can now fully negotiate on his or her behalf on his or her terms and conditions. This is a new litmus test for what constitutes an undertaking or an individual to whom the Competition Act 2002 applies. A principal issue in section 2 is that it enables trade unions to organise and negotiate collectively on behalf of those individuals who enter into, or work under, contracts personally to do or provide any services or work. The emphasis is on the word "personally". This will protect those freelance workers who currently face legal uncertainty. Importantly though, it also prohibits self-employed individuals from price fixing against consumer interests and it retains the core public interest principle of the Competition Act 2002. The exemption from the application of the Competition Act would apply only to contracts with undertakings, not consumers. This is a critical component of the Bill that must be understood.

Section 3 applies to a scheme for payments out of public funds by a public body to members of a profession in consideration of the provision of services to members of the public or to a class of members of the public. Where the Government makes a declaration that there is, regarding such a scheme, a public interest in negotiating a collective agreement between the public body concerned and an organisation that is representative of the profession concerned, providing for the terms and conditions under which the service is to be provided, that representative organisation is deemed not to be an association of undertakings for the purposes of section 4 of the Competition Act 2002 and, therefore, section 4 does not apply to the collective agreement.

It is again stipulated that nothing in the section prevents the application of section 4 to agreements, decisions or concerted practices affecting the terms or conditions under which services are provided otherwise than under and for the purposes of the collective agreement concerned. It is made clear that, for the purposes of this section, it is immaterial whether members of a profession provide services as sole traders or as members or employees of partnerships or corporate bodies. Section 4 makes standard provision for the Short Title and collective citation of the Bill.

The Bill is very progressive legislation and adds to the array of labour legislation my party has introduced in recent years to protect workers and improve their terms and conditions. I ask that those of all political parties and none support its passage through the House as a progressive piece of legislation. I thank the Government for its support for the Bill to date. I look forward to working with it to bring it through the Houses of Oireachtas as possibly the first Opposition Bill to be brought through the Houses during the term of the Government.

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