Mary Mitchell O'Connor (Dún Laoghaire, Fine Gael) | Oireachtas source

I welcome the opportunity to speak to this Private Member's Bill which seeks to amend the Competition Act 2002 to provide that section 4 of that Act shall not apply to collective bargaining and agreements in respect of certain categories of self-employed workers. The motivation behind the Bill is clear in that it aims to protect certain categories of vulnerable workers and to ensure that their rights to better their terms and conditions are protected in terms of the Competition Act. However, as the House will be aware, when the Bill was originally introduced in Seanad Éireann, the Government had real concerns as to some aspects of the provisions while understanding the motivation behind it. In particular, the Government believed the original Bill went beyond its stated policy objectives and was not sufficiently targeted or focused. In addition, there were concerns as to the impact on the Exchequer and its compatibility with both national and EU competition law.

On Report Stage in Seanad Éireann, the Government introduced a series of amendments which addressed these concerns. I am pleased to recall that these amendments were agreed unanimously across all parties. These amendments now mean that a structured process will be in place to consider requests for exemptions from section 4 of the Competition Act 2002 on a case by case basis. This reflects one of the considerations of the European court ruling on the Dutch musicians case in December 2014, where the court ruled that consideration of exemptions from competition law should be treated on such a case by case basis.

In summary, a new process provides the following main elements. A trade union can apply to the Minister for Jobs, Enterprise and Innovation for an exemption from the application of section 4 of the Competition Act 2002 to collective bargaining and agreements in respect of specific classes of self-employed workers. In such an application, the trade union must provide evidence that the members in question are either "false self-employed" or "fully dependent self-employed" as defined. In addition, it must provide evidence that if those workers were exempted from section 4, there would be minimal or no economic effect on the market, that it would not lead to significant costs to the State and would not fall foul of competition law generally. Furthermore, the Minister may prescribe by ministerial order, following consultation with any other Minister of the Government or any other person or body who ought to be consulted, such classes of self-employed workers to be exempt from section 4 of the Competition Act 2002. All orders made under the Competition Act 2002 must be laid before both Houses of the Oireachtas, which may pass a resolution to annul with 21 sitting days. The entire Bill shall come into operation no later than three months after its enactment.

As regards the definitions of "false self-employed" or "fully dependent self-employed" workers, these have been based on European court case law in the Dutch musicians case for the first category and on deliberations at the International Labour Organization in respect of the second category.

The Bill also inserts a new Schedule 4 to the Competition Act 2002 and, therefore, gives effect to a previous Government commitment given in the social partnership agreement, entitled Towards 2016. The new Schedule exempts from section 4 of the Competition Act 2002 those three activities outlined in the Towards 2016 commitment, namely, actors engaged as voice-over actors, musicians engaged as session musicians and journalists engaged as freelance journalists. These are the categories of workers that have been referred to repeatedly in previous debates on the Bill.

I believe this amended Bill provides a fine balance in meeting the stated objectives underpinning it, while at the same time remaining consistent with competition law. Before I close, I commend the work undertaken by Senators Ivana Bacik and Gerald Nash on the Bill during its passage through Seanad Éireann. I particularly wish to recognise their collaborative and open approach to working with the Government to progress the Bill to meet the stated objectives underpinning it while remaining consistent with competition law. As noted, the Bill as passed by Seanad Éireann includes the amendments proposed by the Government on Report Stage. Therefore, I can confirm to the House that the Government will not be opposing the Bill on Second Stage in Dáil Éireann.

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