Michael D Higgins (Galway West, Labour)
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Question 27: To ask the Minister for Enterprise, Trade and Employment his views on the decision of the Competition Authority to interpret the Competition Act 2002 as prohibiting self-employed persons from having a trade union negotiate employment terms and conditions for them. [11283/06]

Micheál Martin (Cork South Central, Fianna Fail)
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I presume this question relates to the decision of the Competition Authority regarding Irish Actors' Equity, SIPTU and the Institute of Advertising Practitioners in Ireland concerning the terms and conditions under which advertising agencies hire actors. I have already spoken on this issue a number of times in the House.

The authority's decision, which is published on its website tca.ie, states that while it is perfectly legal for Equity to represent employed actors in collective bargaining with their employers, its trade union mantle cannot exempt its conduct when it acts as a trade association for self-employed contractors. In this case the authority determined that the actors in question were self-employed contractors and not employees. Section 4 of the Competition Act prohibits anti-competitive practices, such as price fixing, by "undertakings". An "undertaking" is defined in the Act 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.

In its decision, the authority quotes a European case where the EU Commission found opera singers to be "undertakings". The authority's decision is, therefore, consistent with European Law and any attempt to exempt a particular sector or profession would place Irish law out of step with European law.

However, I understand that the view expressed by the Competition Authority concerned this particular case only and it should not be taken as a definitive interpretation of the law. It is, of course, only the courts that can interpret the law. However, in entering into undertakings in settlement of the case, thereby avoiding the need to go to court, the parties appear to have accepted the authority's view. With the benefit of hindsight, it might have been more beneficial to all concerned had the case been heard before the courts so that a legally certain interpretation of the law could have been obtained. This course of action might be considered in the future should the issue arise again.

The bottom line regarding competition law and policy — and probably tax law and other laws too — is that there is no distinction between a self-employed actor, musician or journalist on the one hand and a self-employed electrician on the other, or a self-employed publican or hospital consultant. In considering the question of whether self-employed individuals should be permitted to have a trade union negotiate on their behalf, it is important that we bear in mind that almost any group of self-employed contractors — such as barristers, solicitors, pharmacists, architects, plumbers, undertakers, electricians, engineers, carpenters, shopkeepers, taxi drivers, consultants, farmers, pub owners, vets and so on — could, by joining together, adding "union" to their name and getting a negotiating licence, attempt to circumvent the protections afforded to consumers by the Oireachtas in the Competition Act.