Aideen Hayden (Labour) | Oireachtas source

I congratulate Senator Bacik and Deputy Stagg on bringing an important matter to fruition today. It is an important step on a road to remedy what is a significant anomaly in our employment code. This Bill would provide, under section 2, that where a person works under a temporary contract any activity by that person - as a member of a trade union - is not deemed to be an association of undertakings, for the purposes of the Competition Act 2002. Senator Bacik has set out the importance of that distinction. Section 3 would provide that a representative organisation is not an association of undertakings where a declaration is made by the Government. This also would apply to professions where a profession includes trade, vocation and other occupation. It is immaterial whether members of a profession provide services as sole traders or as members or employees of partnerships or corporate bodies.

This issue has been bubbling under the surface since the Competition Authority held, in a 2004 decision on arrangements between the Irish Equity, SIPTU and the Institute of Advertising Practitioners in Ireland, that any immunity enjoyed by a trade union - for example on collective bargaining - could only apply when the union was acting on behalf of employees and not, as in this case, where Equity was acting more as a trade association on behalf of independent contractors as opposed to employees. That is the nub of the problem which section 2 attempts to address.

People who work under contract and who currently work together through collective bargaining could be prosecuted under the competition legislation as it currently stands. Under the law 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 their services they can be accused of illegal, anti-competitive practices. Senator Bacik has made reference to the huge impact this has on people who work as freelance journalists, actors, models, photographers, musicians, construction and trade workers, various professionals and temporary workers for hire in the hospitality sector and many others. These workers are inherently vulnerable due to their need to continually apply for jobs and are in a dangerous position to agitate for better pay and conditions. I will give the example of one freelance journalist who told me that freelance journalists send work to a number of outlets. The outlets often do not state their pay levels for pieces which are printed upfront and it can take a number of months for payments to be made. It could be very easy to lowball a new journalist in the profession while paying more to established freelancers for similar quality work. Unions such as the NUJ and SIPTU have sought to change the law such as this Bill would achieve.

This Bill is also in compliance with the ruling of the ECJ that the worker is not genuinely independent of their employer if the worker acts under the direction of the employer regrading freedom to choose time, place and content of work and forms, in reality, an integral economic unit within the employer's undertaking. There is a balance to be struck between protecting the rights of vulnerable workers while not providing cover for individuals who are legitimate self-employed contractors and business who jack up prices for consumers. The test on whether the worker has the ability to choose their own assignments or whether they share the economic risk of the outlet does not protect workers such as freelance journalists where there is a substantial amount of power in the hands of media outlets and a huge number of journalists competing with each other for work. This goes right to the heart of the problem where collective bargaining is not an option. One may get a race to the bottom where workers would try to outbid each other by agreeing to accept less and less pay. This is especially pertinent as we see a move away from traditional full-time employment towards situations where an employee is more likely to work on temporary contracts, be self-employed or work as an intern. There has been a demise of the job for life. There are many reasons employment has become more precarious not least because of employers' desire to avoid the costs associated with the status of employee.

I will conclude by reiterating that this Bill is a very important step along the road to restoring fairness in a situation where self-employed persons do not have control over their own destinies and are at the mercy of those who are economically able to determine the outcome. The Labour Party has always believed in standing up for workers going right back to the 1920 Lock-out. The answers unfortunately become more complex as our economy does and how we ensure that consumers get better value while also protecting workers and making it attractive for businesses to set up and remain in the State also becomes more complex as time goes on. Changing employment patterns must be taken into account while firmly committing to ensuring that workers are protected. However, we must acknowledge that we are increasingly seeing people trapped in precarious work. There is a word to identify this work situation without predictability and security and it is now part of the English language - "precariat". The word has been analysed as a new social class by author, Guy Standing. It must be asked if, as a society, we can achieve a balance between the legitimate needs to ensure healthy competition while ensuring protection for those in work. This Bill is doing just that. I conclude by acknowledging the Government's role in improving employment situations overall - the House will forgive me for mentioning the Low Pay Commission, restoration of the minimum wage and more recently the increase of the minimum wage in Budget 2016. Without further elaborating on the wider role of Labour in government I believe we should look at this Bill on its merits as an extremely important piece of legislation which will restore balance to what should be a more equitable working relationship.