Competition (Amendment) Bill 2016 [Seanad]: Report and Final Stages

Bill received for final consideration.

When is it proposed to take Fifth Stage?

Question proposed: "That the Bill do now pass."

I welcome the opportunity to speak on this Bill, which is intended to establish rights for certain categories of self-employed individuals. I welcome the many people in the Public Gallery whom the Bill will affect.

The Bill proposes that 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. The Bill allows me to prescribe by ministerial order, following appropriate consultation, that such classes of self-employed worker shall be exempt from section 4 of the 2002 Act which prohibits anti-competitive agreements and price fixing.

When applying for such an exemption, the trade union must provide evidence that the members in question are either false self-employed or fully dependent self-employed as defined in the Bill. In addition, the trade union must provide evidence that if the workers are exempted from section 4, there will be a minimal or no economic effect on the market, that the exemption will not lead to significant costs to the State and that the exemption will not fall foul of competition law generally.

Finally, the Bill inserts a new Schedule 4 to the Competition Act 2002 and exempts those three activities outlined in the social partnership agreement, 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. I note that we are joined in the Public Gallery by many voice-over actors, musicians and freelance journalists.

This amendment Bill, which has met with all-party support in the Seanad, provides for a fine balance in meeting the stated objectives underpinning the legislation, while remaining consistent with competition law generally. It has drawn from a December 2014 ruling of the Court of Justice of the European Union in the Dutch musicians case. The court made it clear that the facts of a particular case must be examined to determine whether an individual should be classified as a false self-employed person and, therefore, deemed to be an employee for competition law purposes, or as a genuinely self-employed and independent contractor. Ultimately, the court made it clear that future cases would have to be examined on their merits.

I welcome the support the Bill received as it passed through the various Stages in the Houses of the Oireachtas. I am sure that those who closely followed its passage will be delighted to see that it has reached Fifth Stage. I thank all those involved in getting the Bill to this Stage.

I particularly recognise the collaborative and open approach of the Labour Party to working with the Government to progress the Bill and meet the stated objectives underpinning it while, at the same time, remaining consistent with competition law. I thank Senators Gerald Nash and Ivana Bacik for all the work they have done on this Private Members' competition amendment Bill.

I thank the Minister. I welcome everyone in the Gallery, including musicians, voice-over artists, actors and many who have contributed to the Bill. Collectively, they will have a right good session when it is over, which we would love to be involved in.

Everyone knows the details of the legislation. It is a very important Bill with a long history. It is a great day for us in the Labour Party to see the Bill being enacted. I thank the Minister and her colleagues for their co-operation on this, and I genuinely mean it. The Bill honours a long-standing commitment my party made to ensure the protection of the right to collective bargaining for freelance workers, including freelance journalists, actors, musicians and many others, anyone basically who performs work on a self-employed or contract for service basis in a freelance way.

We had an anomaly relating to how competition law was interpreted, which has been outlined in the House a number of times. Given the European case that was taken, and the way in which SIPTU, through Equity and others, went and fought this, it was imperative that we dealt with it because competition law truly is not trying to prevent individuals working in the same way under similar conditions from being able to collectively bargain for better terms and conditions and better working rights.

Given the way society has gone, and how contracts are given out, the Bill will ensure there is not a prevalence of these contracts, whereby workers lose their entitlements and workers are paid far less than they should be. This means all of these workers, some of whom are here this evening, will be able to collectively bargain, argue their case, get better terms and conditions in their employment and get better wages. Ultimately, trade union activity is, technically, an anti-competitive practice. It is a weird thing to say but it is true, because it is about the right of individuals and groups, as part of a union, to act in a collective way to ensure that at the end of negotiations they manifest better conditions and better pay for themselves as workers.

The Bill covers those in full-time and part-time employment and it does not make a distinction. This is an important move for actors, freelance journalists and musicians, but it is not just about them. An important component of the Bill, which has had a long journey, is that it provides a pathway for other workers to get the same rights through the legislation being introduced here. Other workers will follow. The Labour Party will pursue other strata of workers, who will be able to apply under the legislation for the same recognition of those referenced in the Bill.

The Bill is very important for the Labour Party. It is very progressive legislation. It is an historic moment for us and the people whom the legislation will support. Some of us speak about new politics. It is not something of which I am a big fan, but I must say this is an example of a positive change. This is the first Private Members' Bill of this Dáil which will be completed and concluded. This is historic, and something of which the Labour Party is very proud. With all the support we are getting across the House, it is something of which we all should be proud and we should all welcome it.

This is an historic moment, and I mean this in more ways than one. I thank SIPTU, Equity, the NUJ, ICTU and all of the other unions and groups, many of which have representatives sitting above us, for their continued support. Some of the individuals here have been fighting for this for 15 to 20 years. I do not want to make them sound old. Others have been fighting for it for a shorter period of time but with equal conviction. For those who do not know, the history of the Bill goes back to our President, who was the first person to draft legislation to put forward this change. To be fair, it will be unique when the President, of whom we are all very proud and of whom we in the Labour Party, obviously, are especially proud, in a short space of time, will sign into law legislation which is, although he worked with a number of other people, effectively his own work.

President Higgins drafted his Bill in 2006. I also want to acknowledge a former colleague, Emmet Stagg, who consistently pursued it afterwards, and pushed for it to be brought forward, which it was under the previous Government. I also acknowledge Senators Ivana Bacik and Gerald Nash, who brought it through Seanad Éireann and completed it. They made amendments and worked with the Government to ensure we had a Bill that would go relatively quickly through the House. I thank them for doing this because they worked very diligently and hard and put on pressure to get it through. Now we are bringing it through this House and it is truly an historic moment. It will change the lives of many of the people I have referenced. Some of them are here. It will change the way in which they engage with their employers. It will get them better terms and conditions. It will create conditions whereby they can fight for better pay. In many cases, simply put, they are not being paid what they are due, and they can change the conditions under which they work and the fact the hours they work are not set. It is a very important Bill.

I thank those Members who have contributed to the debate and other spokesperson on jobs in particular. I thank them for their support. I thank people for supporting the Labour Party through both Houses regarding the Bill. I also thank the Minister for facilitating it. We spoke on Committee Stage and I asked that we get it through this week because so many people were hoping it would pass. The Minister has honoured this and I appreciate that on behalf of the Labour Party. I thank her very much. I look forward to the day the President signs the Bill which, in essence, will be a unique occasion because it is a Bill he first brought forward.

Fianna Fáil will support the Bill and we are happy to do so. We welcome the new politics which has brought it into being. As Deputy Kelly said, it is the first Labour Party Private Members' Bill of this term to pass.

It is the first of anybody's Private Members' Bill to pass.

We had a Bill this morning on fracking.

It has not been through the Seanad.

In the spirit of new politics, let us celebrate all sides of the House having successes today. I recognise Deputy McLoughlin's Bill on fracking, which passed through the House this morning, and which we were delighted to support. It also had all-party support today. I also recognise the Private Members' Bill of the Labour Party being passed this evening.

It is a good day for new politics. Despite media commentary to the contrary, there has been progress. There was also debate and engagement on all sides of the House to contribute to the passing today of the two legislative measures from different sides of the House. It is very welcome and bears out the fact that new politics can work when all parties lend their weight and support to it. Indeed, it is often not the Members in this Chamber who prevent it from doing so but, perhaps, forces outside the House or the dragging of heels elsewhere can lead to delays.

Deputy Kelly referred to An tUachtarán, Michael D. Higgins. I pay tribute to his work - I take Deputy Alan Kelly's word for it - on the long genesis of this Bill. However, I refer to an earlier Uachtarán, Eamon de Valera, who first enshrined the freedom of association measures in the Constitution. Bunreacht na hÉireann of 1937 was extremely progressive for its time given the changing Europe and world at the time of its enactment. It was far-sighted in many parts, perhaps not so much in the socio-economic area, but rights in the civic, liberal and political sphere, including freedom of association, were importantly enshrined in that document. It provides the framework for the laws we have today which, indeed, to some extent support the passage of this Bill.

The subject matter of the Bill is the self-employed people in the Visitors Gallery and in the industry who have struggled to date because provisions in this Bill were not enacted. The gig economy, as it is often called, has become prevalent, particularly in media circles. There are very few people with fixed-term contracts or any type of permanency in their occupation, so there are many freelance actors and participants in that sector. That is a difficulty in the media sector and it is a concern in many areas. The Bill gives them a degree of flexibility and some degree of collective bargaining. It is very important to provide that. It is also worth noting with regard to the artistic sphere that some European nations, particularly Germany, have a system in place whereby certain artists and contributors of content can become almost salaried by the state after a certain period of time if they serve an apprenticeship, as it were. There is the concept of a state artist or a state journalist or state content creator, provided certain criteria are met. That is progressive and laudable. Perhaps it is something we could consider in this jurisdiction at some stage.

Fianna Fáil is supporting this Bill. We supported it in the Seanad when it was first proposed last year. We also supported a motion in the Dáil in this regard towards the end of last year. Indeed, we have always supported the machinery of industrial and labour relations. From enacting the National Minimum Wage Act to establishing the Workplace Relations Commission and throughout the times of partnership, we have a strong claim to being extremely progressive in that space all along.

I do not wish to be churlish as it is a good day for new politics but I cannot let it pass without acknowledging that while it is welcome that the Labour Party has introduced this Bill and had it passed by the House, I am not sure why, given that previous Deputies were mentioned, the Labour Party was in government for five years and it held the Ministry for labour affairs for those five years, there was no attempt to enact this during that period.

We did not. That is not a factual statement.

The Labour Party certainly was in government and Deputy Sherlock was a Minister of State in that Government, as were five of the seven Labour Party Deputies. It is better late than never-----

It was introduced before we left the Government.

Perhaps the party needed a renewed and enlarged Fianna Fáil in the House to facilitate its passage as the real champion of workers' rights. Whatever the reason for it-----

On a point of order, I wish to assist the Deputy. There was no Minister with responsibility for labour affairs in the last Government until quite late in its term. The Bill was introduced during the lifetime of the last Government. I hope that is of assistance to the Member. This is a non-partisan debate.

It is, perhaps because the numbers dictate it as such. However, we welcome the Bill. There are a large number of Labour Party Bills and motions being brought before the House now and I often wonder why they were not brought forward in those five years when the numbers were different and the party was in a position to have more effect. However, it is better late than never.

We were too busy saving the country.

Fianna Fáil, as always, will be the champion of workers' rights and we are glad to support the passing of the Bill.

I welcome the people in the Visitors Gallery and especially the members of trade unions. As a proud member of SIPTU, I welcome members of SIPTU, Irish Actors Equity, the Musicians' Union of Ireland and the National Union of Journalists. They have done a great job running a concerted campaign alongside progressive politicians over many years to build their case for justice. It is great that there has been consensus on this important issue. It is a good day for the Dáil when we can all agree and acknowledge that the issue must be tackled.

The Bill rights a wrong that has continued for some time. It will allow trade unions once again to organise and negotiate collectively on behalf of individuals who enter into or work under contracts personal to them or who provide any work or service. 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. For up to 15 years people have been severely disadvantaged owing to the ruling under competition legislation. The ruling was particularly significant. Esther Lynch of the European Trade Union Confederation wrote that the authority's decision effectively turned the clock back almost 200 years to the era of the Combination Acts, which made it unlawful for workers to join together to press their employer for shorter hours or more pay. The legislation had quite devastating consequences for workers across these sectors.

The Arts Council investigated standards of living in this area a number of years ago. It found that just two in five professional artists spend all their time working as artists because they do not have enough income. One third of them often or always worked more than 55 hours per week. In other words, they had to do extra jobs to supplement their income. The figures from 2008 are still shocking. The average income of a professional artist in 2008 was just under €15,000, with half of the artists earning €8,000 or less. In many cases, we are talking about poverty wages. This legislation, therefore, is long overdue.

It is important to give credit where it is due. I give credit to Senator Ivana Bacik not just for the quality of the legislation, but also for the way in which co-operation with the trade union movement and cross-party consensus were built. 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 has received cross-party support in both the Dáil and the Seanad. I attended the meeting of the jobs committee last week at which we quickly passed the Bill. We appreciate how important it is to have it passed.

In conclusion, I welcome the Final Stage of the Bill. I again offer my appreciation to those who worked to achieve this.

Deputy Alan Kelly spoke about new politics. Sometimes I am sceptical of the notion, but this is different. Having been a self-employed person all my life, I appreciate the work that has been done on behalf of the sector being discussed here and on rectifying a wrong that has existed for a long time, to ensure that self-employed people can be assisted collectively to secure better conditions. That can be done collectively on their behalf after this Bill is enacted. It is only right and proper to support and encourage it.

Like the other speakers, I welcome the Bill and I congratulate the Labour Party and the Minister. We were completely at odds with the Minister on the last Bill, which related to the bogus tax avoiders of the multinational companies and the mechanisms being provided for them in that Bill. However, we are on the same page with this Bill. Perhaps the Labour Party had a better friend in Deputy Mitchell O'Connor in terms of her role in bringing this forward. We are currently working on a Bill to redefine what is the meaning of a worker.

The Minister referred many times on Committee Stage to the sorts of employment arrangements that exist, such as those of workers for Uber or Deliveroo, who are regarded as self-employed, who do not have a right to be recognised automatically by unions and who find it very difficult to organise within trade unions. Perhaps we can extend the provision to other groups of workers in the future. I am absolutely delighted for the group of workers in question that they have achieved what has been provided for.

I do not understand why Deputy Alan Kelly said trade unions are anti-competitive. That is an inverse way of considering it. Trade unions, by their nature, are not anti-competitive; in fact, they exist to protect, promote and defend workers' rights and conditions. This does not necessarily drive down competition if the employers are half decent, recognise unions and work and negotiate with them. Sometimes, however, trade unions fall down in their determination and in their concentration on representing workers' rights. I wish these workers all the best but all workers who are members of trade unions need to be vigilant and active. They need to realise that their membership is about their motivation and participation in trade unions; otherwise, the unions themselves are weakened.

I welcome the Bill and look forward to our being able to redefine "worker" in line with new, modern ways of employing and maintaining employment, albeit in many different guises. There are, however, many bogus forms of employment and this needs to be straightened out and changed. There is a lot of work to be done for workers after tonight.

I am delighted to have the opportunity to discuss this really important legislation. Deputy Kelly said that when it is signed by the President, it will become the first Opposition Bill to become law and to have passed through both Houses of the Oireachtas. It has taken a full year. It is to become law despite the fact that 137 Private Members' Bills have been introduced, many of which have passed Second Stage and many of which have proceeded to Report Stage. This, however, will be the first to be enacted. We need to ensure that, in the spirit of having decent legislation come from all sides of this House, we facilitate that.

I must sound a note of caution. I read the report today that has come to the reform committee. It seeks to restrict the capacity to introduce Private Members' legislation. That would not be good.

Genuinely, this Bill is a cause of celebration. It deals with the first issue on which we really had collective support to do something that was really important in this Dáil. For that reason, I found Deputy Lawless's partisan comments unnecessary and jarring. His party had been so supportive of this all along. Lest it go unrecorded, I must state the Labour Party's record on labour law in the previous Government was exemplary. Ireland is the only country to have introduced collective bargaining legislation in the past five years. In its 15 years in government, Fianna Fáil refused to do so. No other country in the world introduced new collective bargaining rights. We restored the registered employment agreements that were struck down by the Supreme Court and we introduced a new concept, sectoral employment orders, which have been of benefit to the Clerys workers and others, and which, I hope, will be of benefit to Dublin Bus workers. We can actually define the base for a category of worker for the first time. We restored the minimum wage, which Fianna Fáil cut twice.

I remind the Deputy we are dealing with a specific Bill-----

We are indeed. I am responding to-----

-----and not the last programme for Government. Could the Deputy just address the Bill?

Since the Acting Chairman did not stop Deputy Lawless from attacking the Labour Party's record, I am afraid I have to set the record straight.

I did allow a point of order. I have the matter clarified. All I am asking is that the Deputy stick to the Bill.

I will veer very readily back to the Bill. As stated, Fianna Fáil cut the minimum wage and we restored it twice. We established the Low Pay Commission and dealt with a host of other issues I do not have time to discuss. I am very proud of what we did on labour law in the worst of times.

The Bill before us is very important. It will exempt voice-over actors, session musicians and freelance journalists from competition law. They should never have been captured by it. In my judgment, that was a perverse interpretation of competition law. I acknowledge the work of ICTU, SIPTU, the NUJ, Irish Equity, the Musicians' Union of Ireland and many more, including individuals, who have travelled over the past 15 years on a journey to set this right. It was a very difficult process because competition law, as interpreted by the European Commission, was a real obstacle for these workers, who are entitled to be represented collectively but who were defined as sole traders.

In arguing this, we may have deliberately underscored the importance of the legislation. In my judgment, it will have long-term, far-reaching implications. The Minister has the power to add new categories to those already defined in the Bill. Perhaps more important, the legislation defines in law the notion of bogus self-employment for the first time. In recent years, we have all come across individual workers who have been forced to categorise themselves as self-employed although, by any objective analysis, they are waged employees who should be entitled to the protection of normal labour law and collective bargaining. As my colleague Senator Ged Nash said, this is a genuine game-changer for workers in the so-called gig economy. It will provide them with a clear roadmap to achieve collective bargaining rights and it will vindicate their democratic right to organise and negotiate fair pay and conditions, which other Members have referenced.

The Labour Party has taken the concept of the future of work as its major focus for the coming months. This will be the first of many initiatives we hope to take in this regard. I look forward to seeing the proposals in regard to the definition of work. This is now an important issue. I look forward to working with other Deputies in shaping definitions. The casualisation of work has occurred. There has not been a countervailing legal framework to protect workers as there has been for capital, which is now globally organised and globally mobile. It is workers who have suffered as a result.

Construction labourers were forced to work as self-employed contractors although they never were. Airline pilots were required to do the same. Companies required individual airline pilots to negotiate themselves and they were forbidden from having collective agreements. That is wrong. This set of protections will be groundbreaking and will expand to cover a lot of new forms of employment. The Bill makes clear that Ireland will not accept some of the predatory approaches to workers that have now become accepted elsewhere. One Deputy has already declared himself to be self-employed. The notions that one would be required to be self-employed when one is self-evidently working for a company and that some companies operating in this town require people to be sole traders even though they are all working for companies in an organised fashion are quite wrong.

Some of the history of this matter has been touched upon. I, too, acknowledge that it was 11 years ago that this was first mooted by our then colleague, President Michael D. Higgins. In her light reading, the Minister, Deputy Mitchell O'Connor, might have a look at the transcripts from that period. The spokesperson from her own party at the time trenchantly opposed what I have advocated, arguing that it was fundamentally wrong. I will not tell her who that was. That will be her revelation for later on.

Did Fianna Fáil oppose it?

That is very partisan. New politics.

In terms of-----

Please address the Bill that is before us this evening. There is agreement across the House so do not destroy the evening. Please address the Chair.

Through the Chair-----

Thank you for your co-operation.

The Chair also has to be entirely impartial, if you do not mind.

I welcome the cross-party support, but I am giving a historical perspective to this. I believe it is interesting that it has taken 11 years. The work of others, including the former Deputy, Emmet Stagg, and current Senators Ged Nash agus Ivana Bacik, has been acknowledged. I also want to add my thanks for the approach of the Minister, Deputy Mary Mitchell O'Connor. Quite frankly, without her goodwill and the goodwill of her officials at her instruction, we would not have advanced this Bill. One of the Deputies mentioned that perhaps we did not have quite the same goodwill in the past from others, but we have had it from the Minister and I acknowledge that.

We have a lot more work to do in this area of tackling the casualisation of work, but this is an important start. I look forward to working with my party in co-operation with all parties in the House to ensure workers' rights are vindicated and that we have decent standards of living to achieve our collective objective of having not only work available to every individual who wishes to work but of having work that will be rewarded to the extent that we have a living wage for families. Getting up and going out to work must make a substantial financial difference in order that people can plan their future knowing the number of hours they are going to work and knowing the income that is going to accrue to them. Collectively, we can work to achieve that objective.

On behalf of the Independents 4 Change technical group, I would also like to be associated with the warm congratulations to the Labour Party on the passage of this very important Bill. I also welcome the trade union colleagues and self-employed workers in the Visitors Gallery who fought long and hard for this development. Particular congratulations are due to Senators Ged Nash and Ivana Bacik who brought the Bill through the Seanad and into this House.

It was about 18 or 19 years ago when I moved the first trade union recognition Bill on behalf of the Labour Party when I was the enterprise, trade and employment spokesperson. We were taking on very powerful private interests at that stage, particularly led by Ryanair, which absolutely refused to recognise key members of its workforce. Although the subsequent long Fianna Fáil Government adopted one or two elements of that Bill, it refused point blank to accept the substantive general recognition across the sectors of the economy for collective bargaining that we had in the Bill at that time.

Deputy Bríd Smith rightly referred to the onset and development of the gig economy. We think especially of how vulnerable workers are in many of the arts industries in film, music, radio broadcasting and other areas. There is a particular vulnerability there for workers. Often, workers are generally self-employed in all those areas. I welcome the fact that research will be done on how to protect workers further all across the arts industries, especially in view of the context of the development of digital media whereby the enormous work of artists can very often be transmitted without due reward for the efforts they have made.

This is a very important Bill. Again, I commend the Labour Party and the Minister on bringing it to this point and getting it passed through the Oireachtas.

I thank the Ceann Comhairle for coming to relieve me to allow me to make a very brief contribution on this issue. I should explain to people why I am so much behind this Bill. I worked in local radio, presenting and producing, for 20 years. I contributed to a programme on TG4 for a number of years. I also worked with Irish TV before its sad demise. While I acknowledge that our party is very much a part of setting up local radio, of which I am very proud, it is very important we move this forward to support the many people in this business who are entitled to a fair deal. Many of the people who initially got involved in local radio in particular had financial difficulties in trying to support it because there was very little Government support down through the years for this sector. There is a little bit now, but it is still very minor. As a result of that, many workers unfortunately got caught up in these contracts that are simply not fair.

With those few words, I very much support the Bill tabled by the Labour Party. It is wonderful to see all sides of the House supporting it. It is to be hoped it will now become law and ensure those many people in the Visitors Gallery and the people they represent will get a fairer deal and will not be tied up in those contracts in the years to come.

Question put and agreed to.

A message will be sent to the Seanad acquainting it accordingly.