Michael Mullins (Fine Gael) | Oireachtas source

I, too, compliment Senators Bacik and Hayden on introducing this Bill and bringing forward legislation that will help improve the protections afforded to certain categories of employees who provide valuable services and who do not have the protection that organised employees have. As I understand it, any practice that distorts competition or has that as an objective is both a civil wrong and a criminal offence. However, union representation is a different animal. The area where collective bargaining and competition law intersects is a rather difficult and tortuous one. As the Bill notes, since late in the 19th century our understanding of trade unions has radically altered. Our Constitution and international human rights law recognise the right to form trade unions. The question with this legislation is whether unions representing people who are not in traditional employment are covered by competition law. The test currently is whether somebody is employed or self-employed. If they are employed, they can partake in union membership and collective bargaining. The self-employed cannot. That might be a simplification but, as I see it, that issue is at the heart of the matter. The categories of people impacted have been referred to.

We can trace this back to European Union law. This encourages competition within the trade union and regulates anti-competitive activity. Its aim is to prevent cartels and monopolies and no one would disagree with such an aim. Based on Articles 101 to 109, inclusive, of the Treaty on the Functioning of the European Union there is also a plethora of directives and regulations. This proposed legislation, therefore, transgresses on a hugely legally complex area. I will not get too immersed in the detail but I will refer to one case already referred to by Senator Back, namely, the European court case C-413/13 in which the court decided that competition law did not apply to arrangements among freelance, substitute or orchestra musicians. Its aim was an improvement in working conditions. The European law blog notes that the court significantly expanded the scope for taking social interest into account within competition law. It rejected the view of the European Commission. It is said that this particular case is very important as, for the first time, it took account the issue of false self-employed or those not in what one would term traditional employment. It said the court very much demonstrated a willingness to take public interest arguments into account rather than concentrating on very narrow economic ones. It is something I think is very relevant to this Bill.

There is also a very interesting paper on collective bargaining by musicians, written by Camilo Rubiano and supported by the International Federation of Musicians. This report notes that it is widely acknowledged that collective agreements concluded in good faith and dealing with core labour subjects are, in principle, legal. However, it also notes that there is little in the way of clear legislation removing collective bargaining from competition law and that it has been a matter for courts to establish where the limits lay and to harmonise conflicting relationships. The author goes on to give case law of the European courts in support of this position while noting that it has been very narrowly interpreted by various national competition authorities within the EU. It is therefore suggested that, although the European courts have suggested a more social approach to competition law, national authorities are very slow to follow. It is interesting to note that an Irish competition authority case involving SIPTU and self-employed actors formed the basis of decisions in other member states' various competition authorities. It is suggested that the EU courts are more open to social aspects but national authorities seemingly read and interpret the text of Articles 101 to 109, inclusive, quite strictly.

The Labour Party Bill is on a very interesting topic. It is also a very complicated topic and, in trying to balance the proper prohibition of anti-competitive practice and the right of people to fair terms and conditions, there will always be some tension. I welcome the chance for further debate on Committee Stage and generally. As a Government we are doing everything possible to enhance the rights of employees in all categories, and this Bill addresses a situation where there are anomalies and where people in certain occupations are being treated less favourably.It is with pleasure that I support the Bill.