Ivana Bacik (Independent) | Oireachtas source

I thank my colleagues for their support. I welcome that the Minister is not opposing the Bill and thank him for his detailed consideration of it. I also welcome the Minister's reference to the need to take the time to consider these matters afresh.

I thank Senator Hayden for seconding the Bill and for her support for it. I also thank Senators Ó Domhnaill, Craughwell and Mooney for their support. As pointed out by Senators Hayden and Craughwell, the Bill is being introduced in the context of the dramatic change in the nature of employment. Senator Hayden described this as the growth of the precariat, which I think is a very accurate term. Senator Mooney spoke of the legal limbo in which those who are members of said precariat, namely, the self-employed, find themselves, in that many of them because they are working freelance cannot be represented in collective bargaining negotiations by trade unions. As stated by many colleagues, this is a difficult and complex area.

What the then Competition Authority saw in 2014 as price fixing was viewed by the unions as wage setting for their members. It is difficult when a union representing employed persons in terms of wage setting and so on cannot also represent persons who may be close to employed. In other words, they are effectively in bogus self-employment under the rigid interpretation of competition law and, therefore, they cannot be represented by the same union. This Bill seeks to tackle that anomalous and unfair situation.Senator Michael Mullins clearly outlined the difference of view of the EU courts, which take a broader interpretation of the application of competition law to trade union activity than that taken by the national competition authority. Therefore, it is appropriate, particularly in light of the 2014 decision of the European Court of Justice, ECJ, for us as legislators to consider it afresh and not necessarily to take on board the legal interpretation of the 2014 decision that has been taken by our own commission here.

In respect of the Minister's point on Article 101, in the European Court of Justice decision in the Dutch case, the court explicitly looked at the application of Article 101 because that is the article from which the Dutch law was drawn, just as our own Competition Act is drawn. Under Article 101, the ECJ stated that it does not end the matter merely to state that because a union is negotiating for self-employed persons, they will be regarded as an association of undertakings. The court stated clearly that if the service providers on whose behalf the union is negotiating are, in fact, false self-employed, that is, if they are effectively working as employees because they do not bear any of the financial or commercial risks arising out of the employer's activity and they are really an auxiliary within the principal's undertaking, they are not in business on their own account in that sense, they may be seen as employees for the purpose of EU law and the union is therefore entitled to negotiate on their behalf.

It is a complex area and I accept the Minister's point about unforeseen consequences. However, there is a straightforward core principle here and we have attempted to deal with that in the rather narrowly drawn drafting of section 2, stating that where an individual engages for gain personally to do any work or provide any services, and a trade union of which that individual is a member negotiates an agreement on his or her behalf affecting the terms or conditions under which the work is done or the services are provided, then that should form an exemption to the application of section 4 of the Competition Act of 2002. This is narrowly drawn to protect a vulnerable group of freelance workers and it can be done in such a way that it does not fall foul of EU law or competition law and does not operate to the detriment of consumers.

Clearly, we all are very much in support of the principle that the competition law is designed primarily to protect the interests of consumers. However, there is an overly rigid interpretation of competition that suggests trade union activity is anti-competitive, and in our democratic tradition, we do not accept that. We accept there is a right to form and join trade unions, that collective bargaining is a bedrock of our society and that, therefore, we must see exemptions to what would otherwise, perhaps, rigidly be seen as anti-competitive activity where trade unions are engaged in valid and legitimate wage setting and terms and conditions agreements on behalf of members, who may be technically described as self-employed but who are, in reality, not undertakings in the spirit of competition law. That is the nub of this legislation.

I note others have spoken about the timing of the Bill. Of course, I would like to see this Bill enacted in the lifetime of this Government. Given the limited time available, I accept that is unlikely. I hope we will see it restored to the Order Paper. I anticipate it will pass Second Stage shortly in the Seanad. Therefore, it will be on the Order Paper of the Seanad. It would, therefore, be my hope and expectation that if the Labour Party is part of the next Government, we would see it is a Labour commitment and we would see it restored to the Order Paper in early course and continue its journey with rapid progress through the Houses of the Oireachtas in order that there would be the sort of protection for freelance workers that we need in law.

I thank the Minister, Deputy Richard Bruton, for taking the time to consider the matter afresh. I hope this is the start of the journey towards the enactment of this legislation. I again thank those union members and representatives in the Gallery who have lent their support and who, indeed, have been campaigning for this for many years.