Jan O'Sullivan (Limerick City, Labour)
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225. To ask the Minister for Jobs, Enterprise and Innovation the action she will take to legislate to introduce collective bargaining rights for freelance workers, in view of the Private Members' motion passed in Dáil Éireann on 2 June, and in the context of Ireland's failure to give effect to International Labour Organisation Conventions on the right of freelance workers to bargain collectively with their employer; and if she will make a statement on the matter. [15263/16]

Mary Mitchell O'Connor (Dún Laoghaire, Fine Gael)
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Following extensive and positive engagement with social partners, significant work over the past few years has resulted in key legislative developments that significantly enhance the rights of employees to collectively bargain with their employer and to access the State’s workplace relations machinery in order to vindicate their rights. The Industrial Relations (Amendment) Act 2015 provides for a number of significant reforms, which alongside the strengthening of the statutory code on victimisation to explicitly prohibit inducement to forego trade union representation, reaffirm compliance with recent judgements of the European Court of Human Rights and addresses the issues raised by the ILO Committee of Freedom of Association in the context of a complaint arising from the Supreme Court Ryanair case.

The Act significantly improves the position of workers and trade unions working to improve the terms and conditions of members in instances where collective bargaining is not engaged in by their employer. In such situations, it ensures that workers, aided by their trade union, can advance claims about pay, terms and conditions and have those determined by the Labour Court based on comparisons with similar companies.

Concerning the issue of collective bargaining rights for freelance workers, you will be aware of the investigation conducted in 2004 by the then Competition Authority (now the Competition and Consumer Protection Commission) regarding possible price fixing among self-employed actors and advertising agencies. The Competition Authority was the statutorily independent authority in Ireland with responsibility to enforce both Irish and EU competition law at the time.

The Authority found that an agreement between Irish Actors Equity SIPTU, on behalf of the actors, and the Institute of Advertising Practitioners in Ireland, on behalf of advertising agencies, was in breach of competition law in that it set the fees for services rendered. The self-employed workers in this case were deemed to be “undertakings". Such setting of prices by an association of undertakings runs counter to EU and national competition law.

The decision of the Competition Authority stated that while it was perfectly legal for a trade union to represent employees in collective bargaining with their employers, its trade union mantle could not exempt its conduct when it acts as a trade association for self-employed contractors in the area of price setting. However, this does not preclude, nor has it ever precluded, anybody representing the self-employed workers on other working conditions apart from price setting.

Under both Irish and EU Competition law, self-employed persons, including professionals who are not employees, are regarded as “undertakings”. There is ample EU case law in the Court of Justice of the European Union (CJEU) which has determined that professionals are regarded as undertakings from an EU Competition law perspective.

It is recognised that there can be instances where self-employed workers could be regarded as being in a comparable situation to employment, often referred to as false self-employment. A CJEU ruling in December 2014 in the case of FNV Kunsten Informatie en Media v Staat de Netherlanden relates to self-employed substitute orchestral musicians in the Netherlands. The CJEU ruling emphasised that self-employed service providers are, in principle, “undertakings” and are therefore subject to competition law. However, importantly the CJEU also acknowledged that it is important to examine, in each case, whether individuals who appear to be self-employed service providers should, in fact, be categorised as “false self-employed” because they are, in reality, employees who should not be subject to the provisions of Competition law. The Court made it clear that it is for National courts to examine the facts of particular cases in order to determine whether an individual should be classified as a “false self-employed” person - and therefore be deemed to be an employee for competition law purposes – or as a genuinely self-employed independent contractor.

The Irish Congress of Trade Unions and the then Minister for Business and Employment asked that the Competition and Consumer Protection Commission review its 2004 decision in light of the aforementioned decision. he Commission has carefully considered this case and is of the view that the analysis and conclusions of the former Competition Authority in 2004 remain valid in light of the relevant principles of EU Competition law set out in the CJEUruling. It also has acknowledged that had the undertakings in the 2004 case been proven to be “false self-employed”, then a different conclusion would have emerged.

It is important to state that there are a range of wider considerations that would require detailed examination and consultation to ensure that the basic tenets of both Irish Competition law and EU Competition law and the Treaty of the European Union from which Irish Competition law is derived, are not compromised and that there are no unintended consequences which could have implications for the economy and the State.