Michael D Higgins (Galway West, Labour)
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I am pleased to have the opportunity of raising an outrageous abuse of a European directive and competition law for little less than the removal of the right to collective bargaining of some of the most vulnerable workers in the State. I am in a position to know about this for many reasons. I should state immediately that my wife is a member of Irish Equity. She has been for many years and remains so. I have the privilege of knowing many members of Irish Equity, members of the Musicians Union of Ireland and others who have been precluded from negotiating with the people to whom they sell their services as employees by way of collective bargaining.

The issue is simply this. The members involved — artists, musicians, singers and people who work in the film industries — are often vulnerable workers because of the nature of the work of the film and music industries and of the work of those hired to make, for example, voiceovers and advertisements. I refer the Minister to the report by the Arts Council on artists' incomes to see the income of the average actor in this State.

Last year Irish Equity was forced to sign an undertaking that the union would not negotiate fees for actors working on commercials for private companies. The result of this is that these actors have suffered serious wage cuts and are denied the right to have unions make representations on their behalf or negotiate collective agreements. The issue facing the Minister is as follows. How can an EU directive on competition be implemented in such a way that it undermines a right that Irish workers have had since 1901? I was a Minister in this area.

Many of these people are humiliated when dealing with social welfare in that when they state their occupation, the question asked is whether they are really looking for work when work is available in hotels and restaurants, even though they are actors, writers, etc. The position has not improved. Many face retirement without pensions.

The Competition Authority, which has had great successes against vulnerable and easy targets like the credit union movement and pet food for chihuahuas, regards each individual artist as a company selling his or her services. This is outrageous and must be redressed. We need a restatement of the 1990 representation Act, which redefined the rights of workers in the categories to which I refer, so that they might be properly represented. We also need to face down the Competition Authority's abuse of a reasonable principle of competition.

What does it mean practically? The National Union of Journalists cannot publish a fees guide for its freelance photographers and reporters. Except where named musicians are being engaged, the musicians' union is prohibited from telling its members what is the going rate for a performance. Irish Equity is prevented from negotiating with advertising companies, even those which want to negotiate a performance rate for the union.

Who has asked for this? Many of the people who organise concerts and events are perfectly happy to negotiate a going rate because it is more transparent and efficient. In addition, I listened to the Minister for Enterprise, Trade and Employment, Deputy Martin, on the previous matter on Private Members' business. How can this bring a benefit to the consumer when those areas, some of them heavily monopolised, are precisely those which whipped the benefits, which they had effectively taken off the most vulnerable part-time workers, into their own pockets? It is yet another outrageous extension driven ideologically against the weakest part of the labour force. Will the Minister take such action as is necessary, either under the 1990 Act or with the Competition Authority, to stop it before it spreads further? I dealt with these workers and I am aware of the efficiency and transparency of film agreements with trade unions.

The Minister spoke about the relationship between the Competition Authority and other bodies, including, for example, the Broadcasting Commission of Ireland. How can the arrangement be reasonable? The Minister has signed up to and accepted an international obligation on the fundamental freedoms and rights of workers, and the right to be represented collectively. More accurately, the Irish people have done so through the International Labour Organisation. How can an ideological shaft at the weakest workers, to whom we have never given proper recognition through social welfare, pensions or income, be permitted? Each individual actor, musician, writer and photographer is defined as a business and not a worker. This is an outrageous violation of the International Labour Organisation convention. It will be subject to an Irish and European campaign to have it redressed.

Micheál Martin (Cork South Central, Fianna Fail)
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I understand this matter relates to an investigation conducted by the Competition Authority from March 2003 to June 2004 regarding possible price fixing among self-employed actors and advertising agencies. An agreement between Irish Actors Equity SIPTU, on behalf of the actors, and the Institute of Advertising Practitioners in Ireland, on behalf of advertising agencies, provided for both specific fees for services rendered and various other terms and conditions. Following the authority's investigation, Irish Actors Equity and the institute signed undertakings in which they agreed not to fix fees and to comply with the provisions of the Competition Act.

In August 2004 the Competition Authority published a decision note explaining its decision and published the acknowledgement and undertakings made to it by both Irish Actors Equity SIPTU and the Institute of Advertising Practitioners in Ireland. The authority's findings centred on the fact that section 4 of the Competition Act prohibits anti-competitive agreements, decisions and concerted practices. Section 4 applies when "undertakings" are engaged in 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.

Section 3 of the Act defines an "undertaking" as "a person being an individual, a body corporate or an unincorporated body of persons engaged for gain in the production, supply or distribution of goods or the provision of a service". This definition has been in use in Irish competition law for some time and is supported by EU case law. To establish a breach of section 4 of the Act, the authority must demonstrate that there is an agreement, decision or concerted practice; that the parties to that agreement, decision or concerted practice are undertakings; and that the object or effect of the agreement, decision or concerted practice is to prevent, restrict or distort competition.

In this case, I understand that the parties did not dispute the existence of an agreement. The agreement was contained in a document entitled 2002 Agreement on Minimum Fees Effective from 1 October 2002. The institute did not contest that it was an association of undertakings and that its members were undertakings in their own right. The issue the authority then considered was whether actors were "undertakings" and whether Irish Actors Equity was an "association of undertakings" for the purposes of the Act.

Michael D Higgins (Galway West, Labour)
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It is not an association of undertakings. Those concerned are human beings.

Micheál Martin (Cork South Central, Fianna Fail)
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Put in layperson's terms, it was a question of whether the actors in question were self-employed independent contractors, who are subject to the Act, or employees, who are generally not subject to the Act. The authority considered this issue to be particularly important in this case where the trade union has both employed persons and self-employed independent contractors as members. The authority stated in its decision that while it was perfectly legal for a trade union to represent employees in collective bargaining with their employers, its trade union mantle could not exempt its conduct when it acts as a trade association for self-employed contractors.

The authority also stated that if one were to take a wooden approach and find that all trade union members were exempt from the Act, the protections afforded to consumers by the Oireachtas in the Competition Act could easily be bypassed in that associations of independent pharmacists, publicans and barristers, to name but a few, could obtain safe haven for their members by adding "union" to their name and obtaining a negotiating licence.

Michael D Higgins (Galway West, Labour)
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That is in contravention of the convention.

Micheál Martin (Cork South Central, Fianna Fail)
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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——

Michael D Higgins (Galway West, Labour)
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Because they do not have continuity of employment.

Micheál Martin (Cork South Central, Fianna Fail)
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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.

Michael D Higgins (Galway West, Labour)
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So they can be blackguarded even further.

Micheál Martin (Cork South Central, Fianna Fail)
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Such actors do not generally have employment security. They are free to accept or decline specific work as they see fit. Actors are not generally thought of as employees of a particular agency. In light of these factors, the Competition Authority took the view that actors are independent contractors and therefore are "undertakings" subject to the Competition Act. However, the authority also said there may be some actors who have genuine contracts of service and who are therefore employees, as is the case with some musicians. However, its investigation revealed that the vast majority of actors providing advertising services under the agreement that it examined were independent contractors and therefore undertakings. Having found the actors to be undertakings, it followed that Irish Actors Equity in this case was an association of undertakings and subject to the Competition Act.

The Competition Authority may enforce competition law by seeking appropriate civil remedy in the High Court or by recommending the prosecution of a criminal action by the Director of Public Prosecutions. Generally, the authority pursues a criminal prosecution only where there is clear evidence that parties are in breach of the more serious "hard-core" provisions of the Act.

Although the authority's investigation revealed an element of price-fixing, it elected, in this instance, to pursue civil relief. However, prior to the commencement of proceedings, the parties expressed their willingness to address the authority's competition concerns and signed undertakings. These undertakings are appended to the authority's decision, which is published on its website. The authority also acknowledges the right of Irish Actors Equity to represent employed actors in collective bargaining with employers.

I understand the view expressed by the authority was in respect of this particular case only as it is the courts alone that can interpret the law.

Michael D Higgins (Galway West, Labour)
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So casual workers are businesses.

Micheál Martin (Cork South Central, Fianna Fail)
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The parties to the investigation do not appear to have taken issue with the authority's view——

Michael D Higgins (Galway West, Labour)
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They are doing so now.

Micheál Martin (Cork South Central, Fianna Fail)
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——as they entered into undertakings with the authority in settlement of the case, thereby avoiding the need to go to court.

I emphasise that the Competition Authority is an independent statutory agency set up by this House for the enforcement of competition law.

Michael D Higgins (Galway West, Labour)
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It is an outrageous, philistine, anti-democratic decision.

Micheál Martin (Cork South Central, Fianna Fail)
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In general, I do not consider that it would be appropriate, or good practice, to interfere in the performance by the authority of its statutory functions, which this House has bestowed upon it.