I thank the Chair and members of the committee. I agree with Mr. Walls's final point in particular. As a trade unionist, I have long believed that lawyers should be avoided like the pledge. Industrial relations matters should be settled through the industrial relations process. We do not use the scope section very often. I have had a positive experience of its staff on an individual basis but the State simply has not equipped it with the powers or resources to deal with this problem. It was asked whether fraud is involved. Yes, there is a fraud, but there is also a conspiracy of silence by the State that has allowed this to happen. The attitude is to shrug one's shoulders, conclude there is nothing to see here and revisit it every ten or 15 years. Interestingly, the current criteria in regard to the designation of self employees have their origins in complaints about the Competition Authority.
At the early stage, when we were told that setting rates for freelance workers was part of a price-fixing exercise, the national social partnership talks were ongoing, and those criteria, which are good and clear and which define what is a worker, what is an employee and whether one works under control and direction, were one of the outcomes of the social partnership process. The State, however, is not taking that seriously, because if one takes it to its logical conclusion in the construction industry, no one believes a builder is going in and working under control and direction. He cannot say, "damn this for a game of soldiers, I am going to work for someone else tomorrow". He cannot meet any of those tests, and he cannot profit from it.
In my industry I will deal with the overall situation and then make specific reference to RTÉ. It is important to state that freelance work is legitimate and casual contracts are legitimate. There is room and a necessity for the opportunity for a number of employees to take short-time gigs, to work as a production editor on one newspaper and as a columnist in another. There is a legal framework within that. There is a framework in relation to part-time work and casual work. All of that exists and yet, within our industry we have an abuse of the ability to offer contracts for service both within the national newspapers, the regional press sector and the national media. In effect, there are bogus self-employed contracts. They are not freelance contracts and I want to make that distinction in the context of the Competition (Amendment) Act. What are the lessons in relation to that? The provisions of the Competition (Amendment) Act link into Ms Patricia King's comments on the need to properly define a worker. What is interesting about the legislation is that we may already have to revisit it. Congress, SIPTU, and the NUJ in particular are looking at a significant determination which may not even have come across the Senator's desk yet in terms of a complaint lodged by congress before the economic and social rights committee of the Council of Europe, taken by us in advance of the legislation being passed by the Houses, which is really useful in terms of saying one cannot use competition law to restrict the rights of workers. The first lesson is on the issue of definition. We are at the stage of recruiting freelance workers and reorganising them. SIPTU and the NUJ have had a joint conference in relation to that. We are examining the rates, but it is difficult to make up for what is effectively 20 years of an inability to represent freelance workers.
The main lesson is not a legislative one, it is that it is proof of what legislators in both the Dáil and Seanad can do working together when they get their teeth into something. That is encouraging from the point of view of this committee. This is the centenary of the International Labour Organization, ILO, and it would be an interesting legacy of this committee if it could mark this centenary, seeing as everyone is so fond of centenaries at the moment, with some real action on this.
At last November's gathering where Ireland reported on the outcome of the Competition Authority Act, which was passed unanimously by both Houses of the Oireachtas, there was an attempt, not just by the Irish employers group but by the international body of employers, to prevent reference to that achievement on the part of the ICTU and the acknowledgment of rights by workers and to have that formally recorded as part of the record of the session. That says, to me, that it is not an accident that we have an abuse of bogus self employment but rather that it is part of a wider approach by employers.
The reason there are very few complaints in our workforce is simple. People are terrified. Some politicians spend their lives complaining about journalists and they think journalists are competent and confident. They are as weak and as vulnerable as any other section of workers. For the majority of people working in a newspaper, radio station or television station who are offered a contract, it is not an offer, it is the equivalent of a pint or a transfer for a garda. There is no choice involved. If a person does not sign the contract, he or she does not have a job.
There is an additional dimension in relation to well-paid posts, namely, that frequently organisations such as the national broadcaster require people, as a condition of their offer of employment, to register for VAT, because of the level of their earnings. Once one is registered for VAT, one is "agreeing" that one is not an employee. One can go to the Workplace Relations Commission or to the Labour Court, which I have done, and try to prove that one is an employee, and the employer who cannot afford to pay one under the proper terms has no hesitation in bringing down an army of lawyers and barristers to prove that Mr. Dooley, for example, agreed that he was a company and he registered for VAT. One of the reasons there are so few investigations is that people are afraid to make complaints.
I link the issue of bogus self employment within our industry to bogus redundancies. Frequently, within our industry – I will not name companies – we have a situation where workers are offered what is a bogus "voluntary redundancy" and then rehired under a contract for service. It is done in such a way that it is a voluntary redundancy. The terms are above the statutory rate and one is rehired within an indecent period. That has happened and it will happen within this city in the next year in one of the large national newspaper groups that I will not name. They are not voluntary redundancies but everyone goes along with it. A person is brought in and is told that he or she is at risk of being made redundant. He or she is interviewed for the only post. The person is not being made redundant but he or she is the only one who holds the post. What does a person do in that situation? It is exactly the same situation when one is offered an inappropriate contract.
The RTÉ trade union group is currently engaged in protracted and complex negotiations with RTÉ on the implementation of the Eversheds Sutherland review. We are due to meet senior management tomorrow. It has been a tortuous and extremely difficult period. I have spent more time in Montrose on this subject than any human being should be required to do.
Members will appreciate that I am reluctant to comment on specific aspects of ongoing negotiations, but from an NUJ perspective I acknowledge that the current director general, the HR director and the board have sought to address a legacy of blatant disregard for the employment rights of a significant number of workers over a long period. Ms Patricia King is a former member of the RTÉ authority who raised this, as did previous trade union nominees over many years. My union, SIPTU, and other trade union affiliates have been highlighting the issue of inappropriate contracts for many years. This morning I read detailed notes of a meeting attended by my colleague, Karen O'Loughlin and myself in January 2015, when not for the first time we warned the then HR director and his staff of the consequences of misclassifying workers. I acknowledge that some progress has been made but we are not happy with the speed of it. RTÉ’s failure to provide appropriate contracts will have consequences for the organisation. It is probably useful to remind ourselves that where workers are denied rights they have a right to retrospection. I remind the committee of the headline figures in the review. Of a total of 433 contractors reviewed, 106 have been assessed as having attributes akin to employment. RTÉ objects to the term "bogus self employment" so if members could kindly use the phrase "attributes akin to employment" or "attributes which are not akin to employment" that would be very good. A total of 51 contractors were assessed as having attributes akin to both employment and self employment. A total of 276 contractors were assessed as individuals who would not normally be considered as employees and require no further individual review.
According to the PAC periodic report from January to May 2018, there were 472 contracts of service in RTÉ and they involve 81 incorporated limited companies.
I will make a number of points on this. All broadcasting and media organisations have a fetish about personalities. There is a belief among broadcasting organisations in particular that, in some way, on-screen talent should be treated differently. I reject this notion. Whether in the public service broadcaster or anywhere else, it has a number of negative consequences. It denies some employees the opportunity for promotion, favours people who are on contracts for service or limited companies and has the potential for discrimination on age or gender grounds. I have not seen any justification for offering people contracts for service by virtue of the fact they perform one job rather than another.
Workers who have been denied contracts of employment in RTÉ will look for retrospection, as happens on an ongoing basis in other companies. Returning to the question that has been asked about why people do not put their heads above the parapet - my colleagues will have had the same experience - it is because they are told by the organisation that it cannot afford to make them employees as it would cost too much if it must pay retrospection. They are told they are endangering the profitability of the company. We have been very clear that workers who have been denied rights are under no obligation to subsidise in any way the cost of correcting a wrong. This is also reflected in congress's submission.
I stress that this problem is not confined to RTÉ. It has been rampant in many media organisations, mainly but not exclusively those that are not unionised. The problems identified by Ms King and Mr. Wall are also linked to inadequate protection arising from trade union membership or refusal to recognise unions. The issue is linked to bogus redundancies. In many ways, it is also linked to the operation of outsourcing programmes in our industry, whereby people have been forced out of work and then offered work for a company that, on the face of it, has no connection with the original parent company but when we dig deep enough we find they are all part of a family.