I move: "That the Bill be now read a Second Time."
I wish to share time with Deputy Joan Burton.
Vol. 940 No. 3
I move: "That the Bill be now read a Second Time."
I wish to share time with Deputy Joan Burton.
Is that agreed? Agreed.
The Bill stems from a long-standing commitment my party made to ensure protection of the right to bargain collectively for freelance workers, including but not exclusively, freelance journalists, actors and musicians - anyone who performs work on a self-employed or contract-for-service basis in a freelance way. Under competition law, currently every self-employed person is considered to be a separate, independent economic undertaking. If one self-employed person combines with others to set prices for his or her services, they can be accused of an illegal, anti-competitive practice. However, the purpose of the Competition Act is not only to encourage competition between entities but to make such competition mandatory. Any agreement or concerted practice that has the object or effect of distorting competition is null and void, a civil wrong and also a criminal act. That would include any agreement as to terms and conditions on which work or services are to be provided. However, both statute law, the Constitution and international human rights conventions recognise the right to form trade unions. Collective bargaining by trade unions on behalf of their members is actively encouraged as a bedrock of social partnership.
The issue for legislators is that trade union activity is at its heart an anti-competitive activity. Workers do not underbid each other to compete for jobs. Instead, they organise and bargain collectively so as to obtain the best outcome for all their members. At present, the litmus test for exemption from the Competition Act is whether an individual is an employee or is self-employed. However, atypical employment, involving those who are not obviously employed or self-employed, is a growing phenomenon. That is partly due to a desire on both sides to reclassify employees as self-employed, in which case there are differences in taxation of expenses, PRSI and pension obligations and rights. Most employment protection legislation applies only to employees. In addition, different health and safety rules may apply. The employer's vicarious liability and, therefore, its insurance premiums, will also be different.
A variety of tests is applied in order to decide a person's employment status but the basic question is whether the person engaged to perform services is performing them as a person "in business on his own account". The issue was highlighted in a case where the Competition Authority decided that competition law applies to Equity, a section within SIPTU for actors and others in the entertainment industry. Traditionally, artists, actors and other self-employed individuals have acted collectively to reach agreements with powerful organised groups such as broadcasters and advertisers. However, from a competition law point of view, where entertainment trade unions enter into agreements recommending minimum prices for the hiring of services of their members, that is no more than a price-fixing agreement to which the competition legislation applies. Accordingly, in real terms, actors, musicians and journalists are barred from bargaining collectively with their common employer about their pay rates and conditions. That has surprised many people, but that is the understanding currently in Irish law under the Competition Act 2002 and that is what my party's Bill aims to change. The Bill will allow self-employed workers such as actors, journalists and musicians and in future others who personally provide work or perform services to bargain collectively with their employers.
Our colleagues in the trade union movement in SIPTU, Equity and the NUJ, among many others, have sought the change in the law that this Bill will achieve and have welcomed its introduction. A variation of the Bill was first launched by the former Labour Party president, the current Uachtarán na hÉireann, Michael D. Higgins, in 2006. It was then taken up by our former colleague, Emmet Stagg, and then our colleagues in the Seanad, Senators Ivana Bacik and Gerald Nash, who have progressed it through the Upper House to where it is before us today - they, in particular, deserve great credit for doing so. They worked with the Government to improve the legislation. I thank the Minister, Deputy Mary Mitchell O'Connor, for her co-operation on the Bill to date.
The Bill is a critical move for actors, freelance journalists and session musicians, but it is not just about those workers, it is also important because it creates a pathway for many other groups of workers to allow them to organise and to be fully covered by employment protection law and to be, correctly, represented by trade unions. It will also help to deal with something that has been a phenomenon in Ireland for some time, namely, bogus self-employment. Unions making their case to the Minister of the day can now prove the need for further freelance-type groups to be included in order that they are protected by this legislation. Unions can now organise groups across various sectors to build cases that can be put to the Minister for consideration and then be covered by the legislation. Many sectors have been hit by bogus self-employment and it must be addressed. It was especially the case in the construction industry. It was evident to all Members. I saw it myself on numerous occasions. When the crash affected the industry some years ago, many young men, in particular, with families, realised they had only basic protections when they lost their jobs, but it was too late then.
The Bill also covers those in full-time or part-time employment and does not make a distinction. The Bill covers those who are lured out of the protection of permanent, pensionable jobs into non-fixed hours, non-fixed low incomes without the benefit of employment protection laws who do not know from one week to the next how many hours or days work they will have. The end result is workers who have no bargaining power, few rights and who can be persecuted by unscrupulous employers.
In 2014 the European Court of Justice, ECJ, brought some clarity to the issue of employed work versus self-employment. The key distinction is recognising that someone cannot be described as self-employed if he or she is doing the same work as other employees and taking direction similar to those employees. This Labour Party Bill is now leveraging the 2014 ECJ ruling regarding the Dutch musicians decision and is bringing in legislation to give it effect in the State.
I will now turn to the provisions of the Bill. Section 1 is the interpretation section.
Section 2 is the principal section which provides the protections for freelance workers that are represented by trade unions. The Bill provides a definition that, "where an individual engages for gain under a contract with an undertaking personally to do any work or provide any services", a trade union can now fully negotiate on his or her behalf on his or her terms and conditions. This is a new litmus test for what constitutes an undertaking or an individual to whom the Competition Act 2002 applies. A principal issue in section 2 is that it enables trade unions to organise and negotiate collectively on behalf of those individuals who enter into, or work under, contracts personally to do or provide any services or work. The emphasis is on the word "personally". This will protect those freelance workers who currently face legal uncertainty. Importantly though, it also prohibits self-employed individuals from price fixing against consumer interests and it retains the core public interest principle of the Competition Act 2002. The exemption from the application of the Competition Act would apply only to contracts with undertakings, not consumers. This is a critical component of the Bill that must be understood.
Section 3 applies to a scheme for payments out of public funds by a public body to members of a profession in consideration of the provision of services to members of the public or to a class of members of the public. Where the Government makes a declaration that there is, regarding such a scheme, a public interest in negotiating a collective agreement between the public body concerned and an organisation that is representative of the profession concerned, providing for the terms and conditions under which the service is to be provided, that representative organisation is deemed not to be an association of undertakings for the purposes of section 4 of the Competition Act 2002 and, therefore, section 4 does not apply to the collective agreement.
It is again stipulated that nothing in the section prevents the application of section 4 to agreements, decisions or concerted practices affecting the terms or conditions under which services are provided otherwise than under and for the purposes of the collective agreement concerned. It is made clear that, for the purposes of this section, it is immaterial whether members of a profession provide services as sole traders or as members or employees of partnerships or corporate bodies. Section 4 makes standard provision for the Short Title and collective citation of the Bill.
The Bill is very progressive legislation and adds to the array of labour legislation my party has introduced in recent years to protect workers and improve their terms and conditions. I ask that those of all political parties and none support its passage through the House as a progressive piece of legislation. I thank the Government for its support for the Bill to date. I look forward to working with it to bring it through the Houses of Oireachtas as possibly the first Opposition Bill to be brought through the Houses during the term of the Government.
Of all the changes that have happened in recent decades for individuals and families, perhaps the changes to the structure of work have been the most difficult and challenging. On the one hand, we are all delighted to see people involved in entrepreneurship and building new companies and businesses but, on the other, I doubt if there is a person here who does not know of a job or job situation where the core work somebody has been doing has been stripped down with the wage attaching to the employment with, essentially, the job being reduced to the lowest common denominator in a race to the bottom. When our current President and former member of the Labour Party Parliamentary Party set out the initial proposal in this legislation, it was when that move to deskill and strip down jobs had begun in order that people entered into not just genuine self-employment but bogus self-employment. The Labour Party, through Michael D. Higgins, countered this with the proposal that notwithstanding the structures set out in the Competition Act, people who were traditionally freelance or self-employed such as journalists, actors, people doing voice-overs in radio and TV advertising and people running small-scale businesses on an individual basis such as those operating kennels would be provided with a mechanism for recognition in order that their basic rights as human beings working over a long period in a particular employment would be recognised, acknowledged and protected by all of the labour legislation in place at the time concerning terms, conditions and hours of work rather than their entrepreneurship being interfered with in any way. Nowadays, particularly in social democratic countries, people are protected by a structure of living wages, minimum wages and terms of basic decency in respect of terms and conditions.
I am very happy that the Minister for Jobs, Enterprise and Innovation is here because she has inherited a situation in her Department, as had the Minister for Social Protection, where the unemployment rate has fallen consistently. Let us be very clear. We want people back at work, but we want them employed on decent terms and conditions and for them to be able to join a trade union. I assume that as somebody who worked in primary education over a long period prior to her political career, the Minister would have been an active member of the INTO. The Minister knows that primary schools have conditions that ensure staff are treated with some decency and have the right to collective bargaining and access to remedies that brings. I note that this month marks the 70th anniversary of the death of Jim Larkin, somebody who set the standards for labour, industrial relations and the right to form and join a union in this country. I hope Fianna Fáil will support this legislation, as it has done in the Seanad. Make no mistake about it - there is no point in having a society where young people who have been working for ten years and want to get a mortgage with their partner or on their own find out when they bring in their contract of employment or description of employment that they are unable to obtain a mortgage because there is no certainty, no legal framework and no protection.
Last week I spent a morning talking to people and a number of union officials from Mandate about the Tesco strike. What is involved there, which we see every time we go shopping, is the attempt to strip down jobs. It concerns people who are working on fairly decent pay and conditions. We know many of them agreed to take the package on offer, but what fewer people know is that there are another 3,500 or 3,600 people behind them, many of whom have worked in my or other local Tesco branches for 20 or 25 years, whose jobs, entitlements and rights will be stripped down. We need to be clear about where we stand on it.
We read about Bus Éireann. How many times in this country has €9 million stood in the way of finding a real solution to an industrial relations difficulty through bargaining and the employer and trade unions looking at the terms and conditions of work and issues like productivity and negotiating? We have a Minister for Transport, Tourism and Sport who is hands-off and says, "Don't touch me on this," but that is not good enough. We normally have the Independents in the Independent Alliance sitting close by. The Minister of State, Deputy Finian McGrath, like the Minister for Jobs, Enterprise and Innovation, has been an active member of the INTO. We are asking him to come in here and stand up for workers' rights and the right to decent pay and conditions, and collective bargaining. We are asking the same of the Minister for Children and Youth Affairs and the Minister of State, Deputy Seán Canney. In a Dáil that I once saw labelled "the do-nothing Dáil", I ask that we put aside our party differences and look at young people entering work with hope and expectation but finding out that they have no framework to obtain their rights as people offering their fantastic skills and services to an employer who is making them a contractor, consultant or associate. In all of those situations, some of which are in relatively highly paid positions, the end result is that the people pay a low rate of social insurance as a self-employed person which means that should they have an accident or illness, they have no cover. Should they experience a spell of unemployment, accessing cover if their partner is working will prove very difficult on a means-tested basis.
When commentators talk about young people being disenchanted with politics, the Dáil needs to look tonight at what legislation like this would mean. I remember when we reversed the €1 cut in the minimum wage that Fianna Fáil had brought in and people said to me, "Nobody will care. It affects only 70,000 or so women." People did actually care. The end result is that, with the Labour Party in government, we established a Low Pay Commission. The Minister's lowest point was probably that 10 cent an hour increase in the minimum wage because this is fundamental to how a modern economy will prosper. It will only prosper if workers get decent pay and conditions. We all know we came through hard times when it was difficult to achieve that but those times are past and now is the time to improve and implement improvements in workers' pay and conditions.
When one is in difficulty in a job, one's greatest protection is, generally speaking, one's trade union. The workers who are weakest are those who do not have a trade union or a collective voice to which to reach out that will act on their behalf to protect their best interests. That is what the Bill is about.
I welcome the opportunity to speak to this Private Member's Bill which seeks to amend the Competition Act 2002 to provide that section 4 of that Act shall not apply to collective bargaining and agreements in respect of certain categories of self-employed workers. The motivation behind the Bill is clear in that it aims to protect certain categories of vulnerable workers and to ensure that their rights to better their terms and conditions are protected in terms of the Competition Act. However, as the House will be aware, when the Bill was originally introduced in Seanad Éireann, the Government had real concerns as to some aspects of the provisions while understanding the motivation behind it. In particular, the Government believed the original Bill went beyond its stated policy objectives and was not sufficiently targeted or focused. In addition, there were concerns as to the impact on the Exchequer and its compatibility with both national and EU competition law.
On Report Stage in Seanad Éireann, the Government introduced a series of amendments which addressed these concerns. I am pleased to recall that these amendments were agreed unanimously across all parties. These amendments now mean that a structured process will be in place to consider requests for exemptions from section 4 of the Competition Act 2002 on a case by case basis. This reflects one of the considerations of the European court ruling on the Dutch musicians case in December 2014, where the court ruled that consideration of exemptions from competition law should be treated on such a case by case basis.
In summary, a new process provides the following main elements. A trade union can apply to the Minister for Jobs, Enterprise and Innovation for an exemption from the application of section 4 of the Competition Act 2002 to collective bargaining and agreements in respect of specific classes of self-employed workers. In such an application, the trade union must provide evidence that the members in question are either "false self-employed" or "fully dependent self-employed" as defined. In addition, it must provide evidence that if those workers were exempted from section 4, there would be minimal or no economic effect on the market, that it would not lead to significant costs to the State and would not fall foul of competition law generally. Furthermore, the Minister may prescribe by ministerial order, following consultation with any other Minister of the Government or any other person or body who ought to be consulted, such classes of self-employed workers to be exempt from section 4 of the Competition Act 2002. All orders made under the Competition Act 2002 must be laid before both Houses of the Oireachtas, which may pass a resolution to annul within 21 sitting days. The entire Bill shall come into operation no later than three months after its enactment.
As regards the definitions of "false self-employed" or "fully dependent self-employed" workers, these have been based on European court case law in the Dutch musicians case for the first category and on deliberations at the International Labour Organization in respect of the second category.
The Bill also inserts a new Schedule 4 to the Competition Act 2002 and, therefore, gives effect to a previous Government commitment given in the social partnership agreement, entitled Towards 2016. The new Schedule exempts from section 4 of the Competition Act 2002 those three activities outlined in the Towards 2016 commitment, namely, actors engaged as voice-over actors, musicians engaged as session musicians and journalists engaged as freelance journalists. These are the categories of workers that have been referred to repeatedly in previous debates on the Bill.
I believe this amended Bill provides a fine balance in meeting the stated objectives underpinning it, while at the same time remaining consistent with competition law. Before I close, I commend the work undertaken by Senators Ivana Bacik and Gerald Nash on the Bill during its passage through Seanad Éireann. I particularly wish to recognise their collaborative and open approach to working with the Government to progress the Bill to meet the stated objectives underpinning it while remaining consistent with competition law. As noted, the Bill as passed by Seanad Éireann includes the amendments proposed by the Government on Report Stage. Therefore, I can confirm to the House that the Government will not be opposing the Bill on Second Stage in Dáil Éireann.
I welcome the opportunity to discuss the Competition (Amendment) Bill 2016, which is being taken in Private Members' time and has been tabled by the Labour Party.
As I outlined last week, my party has a long track record of supporting workers' rights and balanced industrial relations legislation. The constitutional right of citizens to form associations and unions is enshrined in our progressive Constitution, Bunreacht na hÉireann, which was introduced under Éamon de Valera in 1937. Fianna Fáil has a strong record on worker protection from bringing in the National Minimum Wage Act 2000 to instituting the labour relations machinery of the State by establishing the Labour Relations Commission which has now been replaced by the Workplace Relations Commission. Furthermore, it has been a consistent policy of my party to end exploitable low-hour type arrangements and contracts. We have consistently stated that for any item of industrial relations or employment rights legislation to be fit for purpose, it must strike a proportionate balance between ensuring workers' rights are protected while providing flexibility in the workplace.
This is a balanced and proportionate legislative proposal. Fianna Fáil supports this Private Members' Bill. Having reflected on the matter, we will support its passage to the next Stage in the legislative process. The Bill was tabled by Senator Ivana Bacik and was passed during Private Members' time in the Seanad last October, where the Fianna Fáil Party supported it. This follows our support last year of a motion passed in Dáil Éireann to ensure freelance workers have the right to bargain collectively. Amendments were brought forward to the original Bill by the Department of Jobs, Enterprise and Innovation and, I believe, subsequently accepted by Senator Ivana Bacik to strengthen provisions in the Bill. Currently, competition law prevents actors who provide voice-overs for advertisements, musicians and freelance journalists from negotiating pay collectively. Irish Equity, representing theatre directors, actors and stage and set designers in Ireland, is part of SIPTU.
In 2004 the then Competition Authority ruled that the collective agreement concluded by SIPTU and Equity and the Institute of Advertising Practitioners constituted an unlawful agreement on the basis that each self-employed voice-over actor was considered to be a business undertaking. However, that has impeded the exercise of the right of collective bargaining and representation by trade unions for many workers and their union representatives in this sector. The restriction put on these workers has affected wages across the entire industry and impacted upon thousands of workers in the media, arts and cultural sectors. A list of some of those affected include actors doing voice-overs on radio, television, film or theatre; freelance journalists and photographers; writers for radio, television and film drama; musicians; and skilled tradesmen. Those workers have been denied the right to bargain collectively.
It is not disputed that competition law should preclude price-fixing agreements among cartels of businesses. The concern is that many self-employed persons are workers in the true meaning of that term. Many have little, if any, control over the legal minutiae or the nature of the contractual relationship with those for whom they work. In reality, they are employees on the basis that they earn their living from providing their labour for remuneration to others and they have been denied their right to bargain collectively. Crucially, this Bill would enable such persons to exercise the right to bargain collectively and negotiate pay and conditions. It would deem that such persons not be classed as undertakings for the purposes of competition law. Importantly, self-employed individuals would continue to be prohibited from price fixing in the best interests of consumers.
It is hoped the Bill will fulfil the commitment made in Towards 2016: Ten-Year Framework Social Partnership Agreement and assist workers’ campaign for increased pay and conditions in the media, arts and cultural sectors. In 2012, congress wrote to the Minister for Jobs, Enterprise and Innovation seeking an exemption from the Competition Act in regard to the collective agreement in question. Regrettably, however, it was dismissed by the Fine Gael-Labour Party Government of the day. Significantly, in 2014 the European Court of Justice ruled that such workers can be categorised correctly as self-employed in one context but not in another. The court said that the classification of a self-employed person under national law does not prevent that person being classified as an employee within the meaning of EU law if his independence is merely notional, thereby disguising an employment relationship. Despite this, the Competition Authority, which is now known as the Competition and Consumer Protection Commission, stated it would uphold its original decision rebuffing the concept that the actors concerned could be viewed as other than undertakings.
It is long overdue that freelance journalists, Irish musicians and voice-over artists be given the right to have collective bargaining via their trade unions recognised formally in Irish employment law. Having reflected on the matter, Fianna Fáil fully supports the passage of the Bill to Committee Stage. It is balanced and important legislation which should be dealt with as an urgent matter by the Minister for Jobs, Enterprise and Innovation and the Joint Committee on Jobs, Enterprise and Innovation.
On behalf of my party, I commend all workers who have been involved in this campaign and also the Labour Party.
I call Deputy David Cullinane who is sharing time.
I am sharing time with Deputy Michael Quinlivan.
I welcome the Bill. I commend the author of the Bill and also the Labour Party for bringing it forward. I take the opportunity to thank the Labour Party Members for the support they gave my party for Bills we brought forward on workers' rights.
The Bill rights a wrong that has continued for quite some time. It will allow trade unions once again to organise and to negotiate collectively on behalf of individuals who enter into or work under contracts personal to them or who provide any work or services. It will also allow for collective negotiation and bargaining on the terms and conditions of a scheme whereby services are provided to the public by members of a trade, profession or vocation and paid for out of public funds. As a result, it will restore the right of the National Union of Journalists, the Musicians Union of Ireland and Equity, the actors’ union, to negotiate collective bargain rates for their members and not before time. This is a welcome advance in the long-running campaign to have collective bargaining rights returned to freelance workers. It is a step in the right direction for the many freelance journalists, musicians and actors who have suffered since their right to be represented by a union in collective bargaining was removed from them over ten years ago.
The Bill also deals with false self-employment for those categories of workers, something that is on the rise in the State. In the construction industry, for example, the proportion of those self-employed has grown from 25% in 2006 to 38% in 2015. We have cases across the country of individual tradespeople who have relationships with individual contractors who are sub-contracting work. I have seen situations evolve in the past few years in particular where somebody enters what might be termed a bogus self-employment relationship, which is very damaging. It means that those people have no employment protections, no right to redundancy payment and PRSI contributions are not being made by the employer. This is used to disguise the employee-employer relationship.
We need to make sure the law catches up with this emerging practice and that we reflect in our law the actuality of the employee and employer relationship. In 2016, the think tank TASC compiled a report on bogus self-employment. It states:
The ‘bogus’ or ‘constrained’ self-employed are located within the self-employed without employees. Interviews show that the offer of employment is often conditional on accepting a status as self-employed. This can be achieved by the employer (the principal subcontractor) without any intervention by the designated worker. The process is entirely self-administered and the checks to prevent bogus self-employment are purely formulaic.
The report goes on to state:
Bogus self-employment results in loss of PRSI income which is unlikely to be compensated for by lower claims. We estimate that a minimum of 25% of those reported as self-employed without employees are ‘bogus’ or ‘constrained’ self-employed; they amount to nearly 7% of the industry workforce. This minimum figure would generate a loss of PRSI contributions of €21m per annum. In fact, the annual loss will be a multiple of this and closer to the upper bound figure of €83m per annum...
The spread of bogus or constrained self-employment is part of a broader problem of short-termism in the Irish construction industry where competition risks becoming a race to the bottom... Working conditions have deteriorated as has the skill base of the industry. One desirable and immediate change would ensure that the PRSI contributions generated by the self-employed are increased to become equivalent to those generated by employees; this would enable both employees and self-employed to avail of the same PRSI-funded benefits.
Sinn Féin has no quarrel at all with the genuine self-employed, many of whom are union members. Self-employment in construction includes small businesses with a few employees. It also includes independent craft workers who may employ others sometimes. Such craft workers may specialise in small build and maintenance work. They may also be subcontractors on larger sites. In fact, they may be all of these things at one time or another, and employed workers too when times are rough. Such people work on their own account; they really are their own boss. The law recognises that. Revenue includes these points in its guide on self-employment. Someone is self-employed if, among other things, he or she has control over what is done, how it is done, when and where it is done and whether he or she does it personally. They are also free to hire other people, on his or her terms, to do the work which has been agreed to be undertaken.
The issue of bogus self-employment is one that needs serious attention by this House and while the Bill does not tackle bogus self-employment, it at least raises the issue when it highlights forced self-employment and collective bargaining rights.
Despite my quarrels with the Labour Party Deputies in recent years and their involvement in government, I again wish to commend them on bringing forward the Bill. I also commend the Minister for her support and the Fianna Fáil Party for its support. My party will give the Bill its full support and I hope it will progress through the Dáil as quickly as possible. Whatever differences we have - the Minister cited some concerns about the Bill - they can be aired and dealt with on Committee Stage, but I hope all those musicians, freelance journalists and other workers who need this protection will get it very quickly if we do our work here as quickly as we can.
I welcome the Bill and particularly thank the Labour Party for bringing it forward. I also welcome the trade union members in the Visitors Gallery who have done a great job, with many progressive politicians, in running a concerted campaign for many years to build the case for justice and it is pretty clear. It is great that there was consensus in the Seanad, which was very significant. It seems there is also consensus in the Dáil, which is good.
For 14 years our colleagues have been suffering owing to a ruling under competition legislation, which was particularly significant. Esther Lynch of the European Trade Union Confederation wrote, "The Authority’s decision effectively turned the clock back almost 200 years to the era of the Combination Laws, which made it unlawful for workers to 'join together' to press their employer for shorter hours or more pay." The legislation had devastating consequences for workers across the sectors affected. The Arts Council investigated standards of living in the sector. Although the investigation took place some years ago, it is worth hearing the findings again because they really bring home the crisis in the sector. In 2010 it was found that just two in five professional artists spent all of their time working as artists because there was just not enough income for them to earn. One third often or always worked more than 55 hours a week. In other words, they had to do additional jobs to supplement their income. The figures from 2008 are still shocking. The average income in 2008 of a professional artist was just under €15,000, with half of artists earning €8,000 or less. In many cases, we are talking about poverty wages. Therefore, this legislation is long overdue.
It is welcome that the Bill received cross-party support in the Seanad. I appreciate the quality of the Bill and let us hope it receives full support in the Dáil Chamber, as I assume it will. Let us send a united message from the Dáil that the issue must be addressed and that it is fundamental in terms of our respect for the dignity of people who make a huge contribution to our society. From time to time I see politicians trying to grab the limelight when artists do something wonderful. This is an opportunity for us to pay them back for the wonderful work they do. They have been waiting 14 years to have this wrong addressed. Let them not wait any longer.
It is important to recognise our obligations under the International Labour Organization, ILO, conventions. ILO convention No. 87 relates to freedom of association and the protection of the right to organise. It was ratified by the State in 1955 and reads: "Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation". It is implicit in the words "without distinction whatsoever" that no distinction can be drawn to exclude this right from workers who happen to be engaged under a contract to provide services, that is, self-employed. I understand the State will respond to the ILO in November. Would it not be wonderful if the Bill was passed by then in order that officials could attend the ILO and relate the good news that this wrong had been righted and that we were fully compliant with ILO rules? I remind the Chamber that we are speaking about the fundamental right to collective bargaining of very vulnerable workers. It is very important, whatever amendments the Government has in mind, that it keep centre-stage the fundamental right to collective bargaining of vulnerable workers. We should all be able to support it and see the legislation through the Chamber.
I congratulate Senator Ivana Bacik on introducing the Competition (Amendment) Bill 2016 and successfully piloting it through the Seanad. However, because of the Government's amendments, I am afraid the inclusive nature of the original draft has been watered down and the scope of the Bill has been narrowed significantly by excluding the service economy. The Bill excludes self-employed professionals from engaging in collective bargaining and balloting on various Government contracts. In the current draft freelance journalists, voice-over actors and session musicians may gain an exception from the Competition Act to engage in collective bargaining but not other categories. The original intention was to protect vulnerable workers, but, sadly, the amended Bill only provides for a small number of categories. For example, doctors, dentists and other professionals are denied the right to engage in collective bargaining. I know that it may be unfashionable to describe doctors as vulnerable workers, but I can tell the House that general practitioners, GPs, particularly in rural Ireland, are an endangered species and competition law is a significant reason for this. GPs are not allowed to engage in collective bargaining on their contracts. It is virtually impossible to persuade a young doctor to work in general practice, particularly in a rural practice. GPs are almost entirely dependent on the HSE for their income. The HSE considers doctors to be freelance workers but does not allow them to engage in collective bargaining. However, the vast majority of GPs cannot make a living without participating in the general medical scheme. Any individual, professional or tradesman who is dependent on one organisation for the majority of his or her income is vulnerable to changes that organisation may introduce unilaterally. In other words, he or she is false self-employed. The introduction of free visits for children aged under six years is a good example of a major change introduced unilaterally without allowing GPs to engage in collective bargaining or ballot on the agreement.
The Bill does provide scope for a trade union to petition the Minister for Jobs, Enterprise and Innovation for an exemption from the Competition Act. However, it is the view of the medical organisations that any such decision would be taken in the context of the political climate rather than of looking at the merits of the relevant petition. The medical organisations have suggested that if the proposed Schedule 4 was amended, it would ensure the Oireachtas had the power to decide who should be classed as a vulnerable worker or a false self-employed person. In this regard, the Bill is a missed opportunity. Last November the Minister stated she was seriously concerned about the scope of the original Bill and the impact it would have on the Exchequer. Undoubtedly, the changes to the Bill to which the Minister has agreed will limit the impact on the Exchequer, but they fail to recognise many groups who view themselves as false self-employed. The result is a formula which will help some freelance workers, but it is not based on anything that might be described as justice for many groups who consider themselves to be false self-employed. However, they are excluded from the Bill. Having said that, I will support the Bill because at least it initiates change for some self-employed workers.
The Bill has its origins in the Seanad and was introduced by my colleague, Deputy Alan Kelly. It allows for self-employed persons to engage in collective pay bargaining with employers. I note, however, that the Labour Party spokesman in the Seanad, Senator Gerald Nash, said the Bill would apply to persons such as actors engaged in voice-over work, session musicians and freelance journalists. He also said it was the culmination of a 12-year campaign and that although the Labour Party might be in opposition, it was still delivering significant change for working people. This is delusion and denial at an almost unprecedented level. Perhaps the Labour Party might remember the pointed criticism of former Labour Party Deputy Eamon Moloney when he said:
I do not like using the word "austerity" ... When I was growing up we just used the word "hardship". The people in most working class estates do not use the word "austerity". I am aware it is cool for the career socialists to speak about austerity but it is an awful word. Hardship is much better, and people like Dickens used it. I do not know how the word "austerity" crept in.
Do these sound like the words of someone who believes his former party champions workers' rights? Does the decimation the Labour Party experienced at the local and general elections reflect this so-called championing of workers' rights? It abandoned them. Whatever the merits of the Bill, I cannot listen to the brazen hypocrisy of a political party that broke almost every political promise it had made and betrayed the working class and the working poor in communities throughout the State in a five-year period. It now comes along with this initiative. On a daily basis I hear Deputy Alan Kelly claiming this, that and the other. These are overhangs from what he was going to deliver and had in the pipeline, but this seems to be an overhang from a long 12-year battle.
As a self-employed person, I understand self-employment. As Deputy Michael Harty and others said, self-employed persons are vulnerable workers and the Bill is a missed opportunity. There are self-employed persons in many sectors. It is a strange tactic, but there are many false self-employed persons. Many people are being forced by companies to enter a self-employed role. We need them to have their place at the bargaining table. We need them to be supported because it is a sea change. Whether they are musicians, actors or in other roles in the arts, they need to be supported and respected. It is welcome that this issue is being debated, but we need to be more honest with ourselves and face reality and the challenges for this cohort. They have no support and and will have nothing in the pension pot unless they put it in themselves and very few are able to do this.
If they get sick, they have very few benefits. Therefore, they are a very vulnerable sector and deserve better than what is provided for in the Bill. Government amendments have watered the Bill down also. We need to be mindful of the people concerned and put ourselves in their shoes. They are trying to eke out a living and raise their families and need to have confidence that they will be able to sustain themselves and their families. They want to continue to do the trade they love, but they are only getting lip service from the Government and the institutions of the State.
With the permission of the House, I call Deputy Bríd Smith who missed her slot earlier. Is that agreed? Agreed.
We welcome the Bill as an attempt to address a growing problem, that is, the use of bogus self-employment contracts and definitions that will stop workers from accessing rights and using legislation that is supposed to be there to protect workers. It seeks to ensure that anti-competitive laws are not used against groups of workers who are deemed to be self-employed. I am not sure it will deal with the wider, growing issues at the heart of why workers are in this situation, in the form of the use by employers of bogus self-employment contracts. I am a member of the Joint Committee on Jobs, Enterprise and Innovation and with companies like Deliveroo and Uber we have seen that there is a growing phenomenon whereby employers insist that workers sign a contract which explicitly says they are not workers but a business that is selling a service to the employer. The result, for the bosses or entrepreneurs that came up with this whizz-kid idea, is that they do not have to pay minimum wage rates and are not responsible for workers' health, safety or sick pay. God forbid that they be entitled to a pension.
This is not a new phenomenon. It has been around for a long time and is as old as the system of capitalism itself. It is not a result of some shiny new, high-tech economy but is an attempt to individualise workers, to atomise them, to stop them coming together as a collective and organising as a union. This attempt will ultimately fail and workers will organise, whether they are in Deliveroo or any other company that attempts to classify them not as workers but as individual, self-employed service deliverers. They will come together as a collective and no amount of legal jargon or anti-competitive laws will stop that. This Dáil should legislate to make it illegal to classify workers as self-employed for the purpose of stopping them organising and forming and building trade unions, but it will not do so as long as we have a Fianna Fáil-Fine Gael majority. We need to make the attempts of Deliveroo and Uber illegal and allow workers the legal right to organise and have access to their union in their workplace, even if they have to hang around street corners waiting for information on an app, as Deliveroo workers do. Fianna Fáil and Fine Gael combine to stop us achieving that and they always use the excuse that it is bad for foreign direct investment.
The growth of bogus self-employment is just the tip of the iceberg and the iceberg is also about low-paid, flexi-hour contracts, if-and-when contracts, non-union employment and other attacks on the traditional values of working class people by the great and good in academia, as well as some newspaper columnists who think the very idea of a secure, pensionable, well-paid job belongs to history books and has no place in the brave new world where foreign direct investment and paying no taxes are treated as sacred cows.
While we support the Bill, it is really only an answer to a bigger question, that is, how we reverse the onslaught on workers’ rights over the past decade or so. The first step will be to encourage workers themselves to take action by joining a union and standing up and fighting, something we saw magnificently in the Tesco strike. This is why the battle in Bus Éireann is very important. It is an attempt orchestrated by the Government, the Department of Transport, Tourism and Sport and the NRA to make a secure, pensionable and permanent job in transport a thing of the past. This manufactured crisis in Bus Éireann could have been dealt with by the intervention of the Minister and will be a litmus test for the workers' movement. Bus Éireann workers cannot fight this battle alone but need and deserve the support of their colleagues in Dublin Bus, Irish Rail, the wider labour movement and the wider community. Just as we came out to support Tesco workers, we need to support Bus Éireann workers too, particularly where our community services are being cut, such as those from Athlone to Westport and Derry to Dublin. Communities are going to suffer and they need to get on side with workers to insist their rights are protected.
If we stop the spread of bogus self-employment and lead the fight to preserve every job that pays decent wages, we will go a long way to doing what we should do, and what this House is failing to do, for workers. We need to proclaim that the State is not a neutral actor in the fight between competitively vicious employers and workers who are at the whim of their definition of what they are or are not. The State needs to put itself on the side of workers' rights because this is not a level playing field with two equal actors. It is, in effect, a class war and is one our side will have to wake up to for victory. Tesco workers got together and fought alongside communities and other trade unionists and we will have to do the same for Bus Éireann workers and everybody else whose secure, pensionable jobs are under threat or who are being forced into low, if-and-when and flexi contracts. The passing of this Bill will play a small role in that war but it will be workers themselves, as it has always been, who will determine its outcome by getting organised and fighting back. We can echo that and be a voice for them, but we need solidarity to come back onto the agenda in order that people's rights are not trampled on. I commend the Senator who brought forward the Bill.
This is an historic Bill because it is the first Private Member's Bill to go through any House of the Oireachtas since the general election. I have described this Dáil as the "do-nothing Dáil" but the Minister for Jobs, Enterprise and Innovation, Deputy Mary Mitchell O'Connor, may be able to prove me wrong on this occasion and show that new politics will work. New politics has not worked well in other areas, but this is a Private Member's Bill which has come from an Opposition party. The Government has worked with our Senators and the indications are that it will be supported by all sides, apart from Deputy Mattie McGrath, who was not clear as to where he stood or if he even understood the Bill in the first place. He has completely forgotten that he supported the soldiers of destiny in the lead-up to the cut in the minimum wage but he cannot resist taking his current position. We are, however, very grateful for the support of all the other speakers so far.
The Bill builds on the good work Labour Party Senators did in this and the previous Seanad. It was first introduced by Senator Ivana Bacik and builds on the work Senator Gerald Nash has done in protecting and advancing workers' rights as Minister of State by increasing the minimum wage, protecting the right to bargain collectively and introducing registered employment agreements, among other things.
We should also acknowledge the work of those in the trade union movement with regard to this and other legislation on which we have worked with them. I single out Mr. Séamus Dooley of the National Union of Journalists, NUJ, in particular. I attended an event in his company in my constituency. At that stage, the NUJ was concerned that freelance journalists were in a precarious position. We have also worked with SIPTU and Equity on other workers in professions that are not secure such as session musicians, voice-over actors and other actors. There are many others also. One of the good things about this legislation is its flexibility which enables it to adapt to what is an ever-changing workplace.
Jim Larkin was mentioned. When he was fighting for workers rights at the foundation of the Labour Party, work was very different to today. We must, therefore, adapt to changes and protect workers in the current situation as well as in the future. The current labour scenario includes temporary contracts and bogus self-employment. The latter is particularly prevalent in the construction industry. These are all issues which we must deal with head-on. The Labour Party is proud to support the trade union movement on these matters.
When Senator Ivana Bacik spoke on Committee Stage in the Seanad, she described a situation that arose following the 2004 ruling of the Competition Authority, as it was then known. That applied a strict interpretation to the Competition Act. It judged that a collective agreement between Irish Equity and the Institute of Advertising Practitioners in Ireland was in breach of competition law. That agreement had set rates for voice-over actors. Senator Bacik explained the practical import of this matter. Until then it was accepted that, for example, unions could publish freelance fee guides. This was a particular issue in the arts and creative sectors, including acting, where unions such as Equity and the NUJ had long made agreements about minimum fee rates and a minimum floor of rights for freelance workers, many of whom were employees in all but name. The Senator also referred to people such as voice-over actors, session musicians and freelance journalists. On foot of the 2004 ruling, that sort of agreement, in setting a minimum floor of fees, was seen to be in breach of competition law. That is the basis upon which the difficult situation arose. There was the 2014 judgment of the European Court of Justice in a case to which reference has already been made. As a result of that judgment, I understand the Irish Congress of Trade Unions wrote to the Competition and Consumer Protection Commission asking it to reconsider the position the then Competition Authority took in 2004. While that did not happen, the judgment of the European Court of Justice paved the way for the Bill before the House. The 2014 judgment clarified that the Bill can be legally introduced.
I welcome the engagement of the Minister, Deputy Mary Mitchell O'Connor, both here and in the Seanad. She referred to the amendments she had moved in the Upper House. We acknowledge that to some extent they narrow the original intention of the Labour Party.
Despite welcoming Deputy Michael Harty's support, I think the Bill can incorporate his concerns in respect of doctors, pharmacists and dentists. The legislation is flexible in so far as new categories can be added. I hope, therefore, that Deputy Michael Harty's genuine concerns can be addressed because of that flexibility.
The Minister has specified the new schedule which exempts the three activities outlined in Towards 2016 - namely, actors engaged as voice-over actors, musicians engaged as session musicians and journalists engaged as freelance journalists - from section 4 of the Competition Act 2002. In other words, they are exempted from it. However, my understanding is that it can be adapted for the future.
We do not know what other situations will arise in future. We are aware of current examples, namely, those raised by Deputy Michael Harty and others. There is no doubt, however, that the world of work is changing hugely and we must be prepared to protect workers in what is becoming an increasingly unpredictable situation.
It is difficult enough for people whose parents brought them up to think that they will have a job for life, that they would go into a particular career and could rely on being there until reaching pensionable age and retiring happily. The reality for many people, however, is that that is not the world of work which currently exists. Therefore, workers need all the protections they can get. That is why we have put forward a series of proposals. When in government, we were able to implement legislation and regulations. In opposition, we are continuing that work. We are delighted that this is the first Private Members' Bill that has already gone through one House of the Oireachtas. The indications this evening are that it will move beyond Second Stage. I urge the Government and other parties to ensure we get this legislation into committee and entirely through this House. We can then ensure collectively that we will protect precarious workers. Many of us know and have met people who are in that situation. These workers deserve and need to be protected. In effect, they should be represented by trade unions and in collective bargaining. That is the intention of the Bill.
I am pleased to have been able to contribute to this debate. I am also pleased that the legislation has such strong support.
I welcome all those in the Visitors Gallery, whether they are actors, musicians or freelance journalists. They are all very welcome and I am sure it is a great night for all of them.
I want to respond to the previous speakers concerning this Private Members' Bill. As earlier interventions have acknowledged, the Bill has as its basis the desire to protect vulnerable self-employed workers, a matter in respect of which I am sure those on all sides can agree.
As was noted, on Report Stage in Seanad Éireann the Government introduced a series of amendments which addressed its concerns. These amendments were agreed unanimously across all parties. The Bill, as passed by Seanad Éireann, is a balanced legislative response which meets the stated objectives underpinning it, while at the same time remaining consistent with competition law. It is also a targeted and focused measure which addresses the underlying aim. It gives effect to the commitment in Towards 2016 concerning exemptions from competition law for three specific categories of self-employed workers, namely, actors engaged as voice-over actors, musicians engaged as session musicians and journalists engaged as freelance journalists.
To respond to Deputies Michael Harty and Jan O'Sullivan, the Bill does not exempt professionals. It is important to point out that if they are members of a trade union they can apply for exemption from competition law.
In the light of what I have said and as my colleague, the Minister, Deputy Mary Mitchell O'Connor, noted, the Government will not be opposing the Bill on Second Stage.
I thank all Deputies for contributing to the debate. I applaud my colleague, Deputy Alan Kelly, for taking up the baton from Senators Ivana Bacik and Gerald Nash. It is a baton that started its journey many moons ago in the most capable hands of our dear former colleague in this House who is now Uachtarán na hÉireann, Michael D. Higgins, who felt passionately about this issue.
As other Deputies have very thoughtfully contributed to this debate, we need to reflect on the future of work in this country because work has changed. There has been a casualisation of work. Above all else, we need to have a predictable future for working people in order that nobody on a Sunday evening is worried about how many hours they will get in the coming week or how many days they will be called on. It is almost like the hiring fairs of the past:
Go deo deo arís ní raghad go Caiseal,
Ag díol ná ag reic mo shláinte,
Bodairí na tíre ag tíocht ar a gcapaill,
Dá fhiafraí an bhfuilim híreálta
It is almost like that again. We have a situation where there are people who do not know with any predictability that they will have sufficient income to pay their way in the coming week. That is why measures like this are important and groundbreaking.
I express my appreciation to both the Minister and the Minister of State present, but particularly to the Minister, Deputy Mary Mitchell O'Connor. I know that often the default position of a Department is to say no. It takes a lot more effort to say maybe, even if there are difficulties, and to see if they can be addressed. That was the approach the Minister took to my colleagues in the Seanad and it is appreciated. It is an indication that there can be co-operative effort to bring an effective solution to people with real problems if there is a will to do it rather than simply a rejection of it.
I thank my colleagues across the House, including Deputy Niall Collins of Fianna Fáil, who supported the Bill. He made a very important point when he spoke about the need to ensure speedy enactment because too many Bills have passed Second Stage and then entered a sort of limbo land. I ask everybody here to give a commitment that we will have speedy passage through the committee since there is fair wind with this House.
Similarly I thank the Sinn Féin Deputies for their support of the Bill. They have introduced very important legislation themselves and, whenever that happens, I can assure them that they will have the solid support of the Labour Party in the advancement of any workers' rights.
In respect of Deputy Michael Harty's comment, I will say a word about it in a moment if I have time. It was about narrowing the focus. It is true that we had a wider focus in the original legislation but it is not true that this is an end in itself. This is pathfinding legislation that allows other categories through over time. I will say a little more about that.
I should really not be drawn into commenting on Deputy Mattie McGrath because he was the only discordant voice in what was a very constructive debate. He said nothing really about the Bill. He probably has not read the Bill, but dragged himself out just to be a discordant voice. It is not helpful because workers have real issues. People are dependent on us to be mature and act positively. Trump-like, he spoke about our record in relation to labour law. We, in the previous Dáil, in the worst of times, brought in protective legislation that was not achieved anywhere else on the planet, including the broadening of collective bargaining, the restoration of registered employment agreements, the legislation for sectoral employment orders and so much more. We increased the minimum wage twice and established the Low Pay Commission while the Deputy was a cheerleader for the destruction of those very basic supports.
I said this was a genuinely important measure and I mean that. It is important to realise that this Bill is not just about the categories that have been mentioned by many: the voice-over actors, the session musicians and the freelance journalists. Irish Equity has, through SIPTU, been pushing this measure from the very start. The Bill is important because, for the first time, it attempts to define and regulate a phenomenon we have been grappling with for almost half a century, which is this concept of bogus self-employment. That phenomenon was as much a feature of the building industry as it was of the newsroom. In fact the construction industry, as other Deputies have referenced, was riddled with bogus subcontractors and agency workers who found themselves without the most basic safety net when the crash came. Some 250,000 workers lost their jobs when the crash came, a huge number of them on the construction side. People who were forced into being so-called self-employed found that they had no recourse when their industries collapsed.
We all know about the growth of atypical employment and the decline of the standard permanent and pensionable employment model that we thought was the standard. Our legislation has adapted to cover those in full-time work, part-time work, fixed-term work and so on. It covers all these categories, as Deputy Alan Kelly said, but our law has not adapted properly to deal with those who it is claimed are not workers at all but who it is claimed are self-employed entrepreneurs, which I think was the phrase used. The distinction between workers and self-employed still depends on a set of common law rules. Not many cases come to court, although the Labour Court has regularly had to deal with them. In administrative terms, the rules are policed by the Revenue Commissioners, the Department of Social Protection and the Department of Jobs, Enterprise and Innovation and its agencies, but despite all the policing, or perhaps because the policing is too dispersed and the rules too uncertain, there is widespread, almost institutionalised, abuse.
The victims are the workers who are lured out of the coverage of our worker protection laws that we have been putting in place for decades, out of our social insurance schemes that we have developed over decades and out of the Exchequer. The result is a growing number of people in precarious, non-standard employment that is not just poorly paid and insecure but is completely outside the protection of developed employment law. It is the basic inequality of bargaining power between employers and workers that forces workers into poor rates of pay combined with low and variable hours, little structured training and limited career progression. So much for the hype around the so-called gig economy, a new term, in essence, for bogus self-employment. Employers say they need a level of flexibility to operate their businesses. That might be the case in some instances, but flexible work is one thing. Insecure work is quite another. Not knowing from one week to the next what hours or pay one might be getting is no way for any family in the 21st century to exist.
My priorities and those of my party are all about making sure the benefits of growth are fairly shared among everybody in society. We have no interest in jobs at any price or the spread of casual labour at the lowest wages that can be paid. The Government must not preside over an economy that is fuelled by a ruthless race to the bottom. We have seen this now and we are going to be challenged on it in respect of the destruction of very decent terms and conditions, for example, for bus workers in an important semi-State company. I am asking, as I did during questions to the Taoiseach, that there be a standard wage rate set for workers such as bus drivers in order that the competition can take place, not on the basis of driving down wages and terms and conditions but on the quality of the service and the bus, the frequency of service and so on. All these things are critically important.
In the early months of this Dáil we tabled our first motion as the Labour Party and it was unanimously accepted. It was a motion on workers' rights that outlined a programme of work to tackle abusive terms and condition of employment, low pay, insecure hours, and enforced and bogus employment. We set out a clear agenda of worker protection that was approved by this House. Approving the Bill before us and securing its speedy passage into law will give practical reality to the intentions set out in that specific motion we put before the House. It will mean a practical and urgent step to tackle bogus self-employment and bring these perverse abuses to an end. I am very pleased that there is such cross-party and cross-Member support for this important initiative.