Ivana Bacik (Independent) | Oireachtas source

I will speak briefly about section 2, given that we have addressed the main purpose and context of the Bill. I wish to consider briefly the provisions included in section 2 which constitute, as I said, the substance of the Bill which seeks to create an exemption from the provisions of the Competition Act 2002. If colleagues have the Bill before them, they will see that we start in subsection (1) by borrowing from the definition of "worker" in the Industrial Relations Act 1990 to distinguish a worker from an undertaking. That is the core of the issue. The Competition Authority took the view in 2004 that a self-employed person was effectively an undertaking for the purposes of the Competition Act; therefore, if an undertaking bargained with another, effectively an employer, that would amount to price-fixing and be prohibited under competition law. We say that where an individual personally engages for gain under a contract with an undertaking to do any work or provide services, he or she should not be considered to be an undertaking. The effect of the section, therefore, is to exclude from the definition of "undertaking" somebody who personally engages to do work or provide services. The section goes on to extend protection to such persons who may be described as self-employed contractors but who are, in fact, what I have and the European Court of Justice has described as "false self-employed", that is, people who are employees or workers in all but name and who should, therefore, have the benefit of trade union representation to negotiate on their behalf. As I mentioned, practices such as publication of freelance fee guides were normal prior to the 2004 ruling. This section will enable unions to publish such guides again, which will be hugely important as the protection of freelancers in a range of areas.

We are saying there should be a new litmus test in line with the ruling of the European Court of Justice, that it is not as simple as making a distinction between self-employed persons and employees, that there is a category of self-employed persons who are, in fact, workers, who are personally engaging to do work and who should not be classed as undertakings for the purposes of competition law. Our proposal does not apply to contracts with consumers. We are seeking to ensure protection for consumers against price-fixing remains, which I know is an important concern of the Government. We want to ensure specific undertakings, true undertakings - and we accept, of course, that an individual can be an undertaking - will still be covered by competition law. We want to craft an exemption under competition law for those individuals who really are workers, not undertakings. That is the crux of the Bill.