Competition (Amendment) Bill 2016: Committee Stage

SECTION 1
Question proposed: "That section 1 stand part of the Bill."

I welcome the Minister, Deputy Mary Mitchell O'Connor. I also welcome the opportunity to debate this Private Members' Bill which the Labour Party group of Senators introduced on Second Stage on 20 January this year. On that date, it was not opposed on Second Stage by the then Minister, Deputy Richard Bruton. We have now brought the Bill back on Committee Stage and it is unusual in the sense that it is a Private Members' Bill going through Committee Stage, but we anticipate we will have cross-party support for it. I thank my colleagues on both sides of the House for expressing support for it. I also welcome the many observers in the Visitors Gallery from across the trade union movement and the ranks of freelance workers, many of whom are in the acting and journalism professions where the issue of bogus self-employed - if I may call it that - is very widespread.

Section 1 provides for certain definitions, while section 2 provides for the substantive issue. The Bill stems from a long-standing Labour Party commitment to ensure protection of the right to collectively bargain for vulnerable workers who are freelance, particularly those in the arts, creative and media sectors. Senator Gerald Nash and I have worked on this issue for some time. It dates back 14 years to a ruling by the then Competition Authority, now the Competition and Consumer Protection Commission. In 2004 it ruled, applying a very restrictive interpretation of the Competition Act 2002, that a collective agreement between Irish Equity and the Institute of Advertising Practitioners in Ireland was in breach of competition and that was an agreement that has set rates for voice-over artists. To give colleagues something of the practical import of this, until then, it was accepted that, for example, unions could publish freelance fees guides. This is a particular issue in the arts and creative sectors, acting and so forth, where unions such as Equity and NUJ had long made agreements about minimum fee rates, a minimum floor of rights for freelance workers, many of whom were employees in all but name. I am talking about people like session musicians, voice-over artists and freelance journalists. As a result of the 2004 ruling by the Competition Authority, that sort of agreement in setting a minimum floor of fees was seen to be in breach of competition law.

As many of our colleagues in the trade union movement explained at the briefing earlier, this has had a very practical impact in the past 14 years on the incomes and lives of very vulnerable freelance workers. For example, the NUJ cannot now negotiate with a newspaper, television station or radio station to seek restoration of cuts in rates because that would now be seen as price fixing under the Competition Act. That is the blunt impact of that ruling. This has also had a chill factor on other sectors and has seeped into other areas where we are seeing a fear of encroachment of competition law into any negotiation over fees and pay at a time when there is such a high profile internationally for Irish arts, for the theatre, for acting and so on. It is important we ensure there is protection in this minimum floor of rights for workers. That is the context for the Bill. It is to try to tackle this difficulty and the lack of availability of collective bargaining rights for freelance workers.

The Bill meets a long-standing Labour Party commitment. In 2006 President Michael D. Higgins published a Bill to try to address the impact of the Competition Authority ruling, but it was not taken any further. Under the troika programme, there was a commitment in the memorandum of understanding that there would not be exemptions to competition law but that has all changed. My former colleague, Deputy Emmet Stagg, published a Bill in 2012 which aimed to do the same as this Bill. We had a ruling of the European Court of Justice in 2014 in a Dutch case involving session musicians where the court accepted that there was a category of people who were false self-employed and that where a collective agreement related to people who were not really self-employed, it would not be in breach of competition if it fixed pay rates. If such an agreement was a result of dialogue between management and labour in respect of people who were really employees in all but name, who were entirely dependent on the principle, such an agreement could be made and not be found to be in breach of competition law.

That European Court of Justice ruling, coupled with commitments given by the Government in previous social partnership agreements and the fact that we are out of the troika programme means that we are now in a position to legislate. In January this year we got agreement from the Government not to oppose the Bill on Second Stage. We are anxious that it now proceed to Report Stage in the Seanad as soon as possible and that it would then go through the Dáil in order that we would see protections enshrined in law for vulnerable freelance workers.

We understand the Minister has amendments but that they are not ready for the Committee Stage debate. We accept her bona fides and that she will undertake to put forward the amendments as soon as possible. She has indicated October is the earliest date by which they will be ready. We will then be in a position to debate the Bill on Report Stage in Government time in the Seanad and conclude it on receipt of the amendments.

That is the context for the Bill. I express a strong welcome for the huge support we have received from all parties and Independents for the Bill. Senator Gerald Nash, in his previous role as Minister of State, also worked extremely hard on this issue.

I thank the Minister for coming to the House. This is one of the greatest theatres of all. I will not surprise the people in the Visitors Gallery which I note is full. Having reflected on the matter, Fianna Fáil supports this Private Members' Bill. This follows recent support for a motion passed in Dáil Éireann to ensure freelance workers would have the right to bargain collectively. Currently, competition law prevents actors who provide voice-overs for advertisements, musicians and freelance journalists from negotiating pay collectively.

The Bill will enable such persons to exercise the right to bargain collectively and negotiate their pay and conditions. The issue of female workers who cannot avail of maternity benefit is of serious concern. The Bill will ensure such individuals would not be classed as "undertakings" for the purpose of competition law. Importantly, self-employed individuals would continue to be prohibited from price fixing in the best interest of the consumer. Following discussions with Senator Ivana Bacik and a couple of our colleagues, in addition to some of the unions, it certainly gives me pleasure to support this legislation on behalf of Fianna Fáil.

I welcome the Minister, Deputy Mary Mitchell O’Connor. I join Senator Ivana Bacik in welcoming activists from SIPTU, Irish Equity, the Musicians Union of Ireland, the National Union of Journalists. There are also representatives present from ICTU who have campaigned very actively for several years to have this matter addressed comprehensively. I really hope the tenacity and way in which they have campaigned for reform in this area, as reflected in the Bill, are given due recognition. I hope the legislation will be enacted swiftly because it is important.

I wish to reflect a little on section 2, the substantive part of the Bill that concerns us most. I wish to outline how the provisions of the Bill, if enacted, can improve the working and living standards of those working on a freelance basis in the arts and culture sector and also in the media. There is a long and difficult history attached to this issue, to which Senator Ivana Bacik has referred. I was anxious to ensure there would be some substantive movement on this issue. That has been the case in recent months. The predecessor of the Minister supported moves by the previous Government to put this issue on the legislative agenda to support Senator Ivana Bacik’s Bill in January. We have now moved it on to Committee Stage, on which we can have proper analysis. Our analysis throughout the legislative process will ensure the legislation will do exactly what it is intended to do.

On section 2, it is worth saying these legislative provisions do not in any way seek to bestow any new rights on anyone. The section merely seeks to restore rights that were previously enjoyed by freelance workers in advance of the decision of-----

I think we have moved on. Are we not having a general discussion?

Can we agree to section 1 and move on? Is that in order?

I am happy to withdraw and address section 2 when that is appropriate.

We are happy to support the Bill and the principle behind it. We need protection for worker. We also need trade unions. Even those who might have a more contrary view will realise that the value of being able to negotiate with a single body rather than several thousand individuals speaks for itself. However, the Government does have some issues and the Minister will address them. As the legislation is currently construed, it goes far beyond the stated policy objective, set out in the explanatory memorandum, of protecting vulnerable self-employed workers. Artists and actors have been mentioned and their needs need to be addressed.

The Attorney General has advised that the Bill which provides broad exemptions from generally applicable competition rules for all self-employed individuals providing services on a personal basis for undertakings of the State infringes Article 101 of the Treaty on the Functioning of the European Union. Implemented as it is, it would give rise to significant costs that have not been considered or analysed. Furthermore, there is a need for a separate regulatory impact analysis which does not accompany the legislation. This is just giving the rationale for the need for the amendments that need to be made; it is in no way knocking the Bill or the principles behind it. There is a host of smaller issues that I have no doubt the Minister will address.

We are very pleased the Bill was not opposed on Second Stage and there is no intention to oppose it today. We look forward to the amendments of the Minister that will allow the principles to be addressed and protection to be afforded to the people who need it, many of whom are in the Visitors Gallery.

I join colleagues in welcoming our trade union brothers and sisters in the Visitors Gallery. They have done a hell of a job running a concerted campaign - alongside progressive politicians - for many years to build the case for justice. The case is pretty clear. It is great that there is consensus in this Chamber. That is very significant. It is a good day for this Chamber that we can all recognise that this issue must be addressed. For 14 years, our colleagues have been suffering owing to the ruling under the competition legislation. The ruling 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 quite devastating consequences for workers across these sectors. The Arts Council investigated standards of living in this area. Although the investigation was 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 spend all their time working as artists because there is just not enough income for them. One third often or always work more than 55 hours per week. In other words, they have to do additional jobs to supplement their work. The figures from 2008 are still shocking. The average income of a professional artist in 2008 was just under €15,000, with half earning €8,000 or less. In many cases, we are talking about poverty wages. Therefore, this legislation is long overdue.

I wish to credit my colleagues, particularly Senators Gerald Nash and Ivana Bacik, not just for the quality of the legislation but also for the way in which, in combination with our brothers and sisters in the trade union movement and everyone in the Chamber, cross-party consensus has been built. It is really important that we keep this going. Let us send a united message to the Dáil that this 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.

I have not been a Senator for very long, but I am used to seeing politicians - clearly not anyone in this Chamber - trying from time to time 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 had been waiting 14 years to have this wrong addressed. Let us not wait any longer.

I am delighted to be associated with the Bill. I compliment Senator Ivana Bacik who has worked extremely hard on it and who brought it to this Chamber during the term of the previous Seanad. I acknowledge that Senator Gerald Nash has been a great champion of all workers both in his former role and now as a Senator.

It is terribly wrong that we pit professional against professional as they try to earn a meagre living. We have just heard figures such as €18,000 and €8,000 per annum. There is something terribly wrong about this. That we would try to use competition legislation to deny those affected the basic right to trade union representation is despicable. I compliment the National Union of Journalists, the unions and the Arts Council on working with Senator Ivana Bacik in bringing forward this legislation. Although Fine Gael spoke in glowing terms on Second Stage about how it was supportive of the Bill, I am somewhat disappointed that it now talks about amendments and the advice of the Attorney General whose advice a distinguished Cabinet Minister told us yesterday was nothing but an opinion.

Let us get real. The Bill was drafted by Senator Ivana Bacik who has a distinguished legal mind. I do not see any great need to start mucking about with this. These people have waited years to have this legislation passed. If we are cognisant of the pain and suffering people endure trying to get their rights as workers, we should move the Bill along and get it into the Dáil. If there is a genuine amendment which needs to be brought forward, let us hear the rationale behind it, but, for God's sake, let us not slow down the Bill but get it through this House as quickly as possible and let the people concerned receive their genuine entitlements. Having the entitlement to have a trade union represent them is tremendous work by trade unions. Trade unions in this country have come in for much stick in the past couple of years. This is a trade union that is taking not only a justifiable stand but a moral stand for its members, for which I commend it. I hope we will not slow things down but take the Bill as it was drafted and move forward with it. I am not taking a pop at Fine Gael. It has supported the Bill and I know that it will support it, but please do not introduce complex amendments at this stage. Let us get the Bill through the House as quickly as we can.

I welcome Committee Stage of the Competition (Amendment) Bill 2016 which Sinn Féin is proud to support. It seeks to provide collective bargaining rights for freelance workers who are self-employed. As it stands, workplaces are increasingly being populated by freelance staff unable to bargain collectively with their employers, regardless of whether those individuals are unionised. My experience as a part-time musician, full-time musician and a graduate and worker in film and television production informs my belief that although this legislation is not an organising tool in itself, it will greatly strengthen the ability of those in the arts and other sectors to collectively bargain. Many young people face appalling low pay and no-pay jobs and are incredibly vulnerable across work places on this island.

The erosion of workers rights and unionising impacts greatly on young people. This is really important legislation. I commend the work of Senators Ivana Bacik and Gerald Nash and the union movement, members of which I welcome to the House.

I commend my colleagues, Senators Ivana Bacik and Gerald Nash, for bringing forward the Bill. Like Senator Fintan Warfield, I have been involved in the music industry for a long time and worked with many musicians in the past. Freelance workers work hard not only at their career but also in building their reputation and ensuring they have an income in order that they do not have to rely on the State. Freelance workers, whether session musicians, voiceover actors or journalists, need the power of collective bargaining in order to ensure that their work is negotiated, taking into consideration their dedication, skill level and commitment to their chosen career. Sometimes we forget the amount of work musicians put in. People go to university and others work as plumbers and have to serve their apprenticeship but musicians have to work extremely hard, as do actors and journalists. The amount of work they have to put in is phenomenal.

Acceptance of this legislation would see unions representing freelance workers being given the power to negotiate on their behalf and the threats of prosecutions or fines from the Competition Authority removed. Freelance workers, small business owners and those on zero-hour contracts are the most vulnerable in the workforce but at times have the least protection. This is about freelance workers getting a fair day's pay for a fair day's work and the ability to negotiate what that pay should be rather than a race to the bottom. We need to work hard to ensure that this legislation is passed in order to support freelance workers. There was some movement in 2012 to address this issue, but the legislation never made it through the Houses. I call on all Members to take action to give back to freelance workers and their unions the power to negotiate and to see this legislation passed.

Speaking on behalf of the Civic Engagement group, I commend Senator Ivana Bacik for bringing forward this very positive legislation which I would like to see move swiftly through the House and swiftly into action. I also commend Senator Gerald Nash who has pushed forward a suite of measures for this legislation. It is good to see support from all sides of the House.

Looking back over a century, we see that many in the arts were first involved in the workers movement - for example, Helena Molony, was a founder of the Irish Women Workers Union and an actress on the stage of the Abbey Theatre. There has been a deeply entwined connection between democracy, the organisation of workers, union workers and the arts, which is fundamental to the State. This is a chance to again restore that connection. I argue that the Bill is not just important and crucial for freelancers and artists, it is also important for society and has a strong social benefit to it.

The 14 year old Competition Authority ruling has led to a very negative consequence not only in terms of the specific situation of all of those freelancers who can no longer be represented by their unions and who have not been able to be represented adequately and appropriately in their negotiations with employers, but it also damages the narrative in Ireland in terms of quality. It creates a perverse incentivisation towards casualisation. In recent years we have seen a growth in aggressive casualisation. We know that women, in particular, are vulnerable in terms of ending up in bogus self-employment. When we have a measure such as the ruling from the Competition Authority, which makes it harder for people to negotiate as freelancers, it creates a perverse incentive for companies to encourage people to be freelance and to press people into registering themselves as self-employed when, in many cases and many areas, they may not be. The importance of trade union representation in rebalancing the power of negotiation has long since been recognised. This is an opportunity to restore the power balance and ensure there is adequate representation and balancing in that area.

When we talk about incentivising casualisation which we have had in recent years, we are also talking about a race to the bottom in terms of cost. With collective bargaining, we have individual professionals in areas that are so crucial to our identity such as writing, the arts and the creative industries we are looking to a pressing upwards whereby cost is no longer the defining issue but rather quality is. We are giving people the power to press forward on quality conditions, decent terms and the kind of security that allows people to be original, creative and transformative. If we want Ireland to step on to the international stage in areas such as the media and film and to win Oscars, we need to ensure we are pressing for an equality agenda within all of these industries. The world is now global. These are global areas of work. Ireland should be a beacon for quality. I am delighted to support the Bill in all its aspects and look forward to the debate.

To clarify, I am speaking to section 1. I welcome those in the Visitors Gallery. I am listening very carefully. I believe the House can agree on the principle behind wanting to protect vulnerable self-employed workers. That is clear and that is what I am here to do. This is my second time in the House.

On Report Stage I propose to introduce amendments to the later sections of the Bill which will require amendment of the definitions section. I formally indicate that it is the Government's intention to introduce amendments on Report Stage to section 1. Senator Ivana Bacik asked about timelines and I can agree to the October date.

I would like to respond to some of the comments made by Senator Gerard P. Craughwell. My background, notwithstanding being a medical doctor, involves a trade union, that being the Irish Medical Organisation. I value very much what unions do and the protections they give their members. I am also familiar with the fact that how the rulings of the Competition Authority were interpreted has led to huge difficulty, not just for members of Equity but also for many other trade unions which found themselves unable to represent their members. Some of these issues have been resolved through various methodologies, but this has not addressed the issue Senators Ivana Bacik and Gerald Nash seek to have addressed through the Bill which the Government and I support. Let there be no doubt about this.

My issue with Senator Gerard P. Craughwell is that to refer to the Attorney General's opinion as just an opinion is unwise and discourteous. She is the highest law officer of the land. The function of this Chamber and Dáil Éireann is to improve and proof legislation in order that it is robust and will not fall. In deference to the people in the Visitors Gallery who have come in their own time and, God knows, their time is valuable, I do not want to see a situation where we rush through a Bill and then find we run into trouble with it and it is struck down and thus set back the agenda we are trying to address by another six, 12 or 18 months.

As a Minister I was very happy to start Bills in the Seanad and have all of the arguments addressed, make amendments which others offered and accept Bills proposed by other Members. One of the first Bills I put through here was Senator Ivana Bacik's Bill on female genital mutilation. This does a good service to the Dáil because a Bill will then go through the Dáil Chamber very quickly. I strongly believe the Minister is genuine in her intention that we want to get the amendments right over the summer and have them debated here in October. The Bill should then pass through the Dáil without any problem. This has been the experience with several other Bills. I hope the House will accept the bona fides of the Minister and the Government. The House is agreed on the need to protect workers, particularly those in Equity who in recent years have been left with little protection and exploited. I certainly do not agree with this and know that the Minister does not either.

I welcome the Minister and thank her for being here. I thank and pay tribute to Senators Gerald Nash and Ivana Bacik for the Bill. We must recognise its importance. It is about the value we place on those who work and protecting their rights as workers. Those of us who have worked in the public service recognise the importance of the collective nature of bargaining. In many ways the issue of social partnership is something we should revisit as a country. I see Senator Gerard P. Craughwell looking at me. Our unions benefited greatly from social partnership. It is a mistake that ASTI has not re-engaged with the Lansdowne Road agreement to protect its members.

Thank God I am a member of the TUI.

I know; that is why I said it. There is a balance that must be achieved. In his remarks Senator James Reilly made reference to the rights of those who were self-employed. It is equally important that collective-bargaining and price setting be addressed and that we look at the self-employed also.

I welcome the Minister's commitment and the spirit in which she has entered into the debate on the Bill because it is important that we look at what has happened in the landscape of employment throughout the country. We are very proud of our record and role in promoting the rights of workers, be it in a staff room, a hospital, a factory floor or the hospitality sector. Senator Frances Black referenced the entertainment industry and other parts of the world of work.

The one thing on which I would disagree with Senator Gerard P. Craughwell is that the Attorney General is the law officer and adviser to the Government.

I did not say it. It was the Minister who said it.

This applies to another Bill being debated in the other House today. Let us not give people false hope. In this case, the Minister has committed to coming back and working with all of us, in particular Senators Ivana Bacik and Gerald Nash, on the Bill. It is a good start and it is important, as is the issue of how the world of work has changed.

On the Order of Business today, Senator Paddy Burke made reference to the EU-Canadian agreement. We also have the TTIP and other issues such as Brexit which will have implications for the rights of workers. The European Commission has drawn up with us a framework for exemptions from competition law and it is important that we work together on it. I commend the Minister for the spirit in which she has come to the debate.

I welcome the Minister and wish her well in role. I also welcome those in the Visitors Gallery and compliment the work they have done over a long period of time. I also compliment Senators Ivana Bacik and Gerald Nash on the work they have done. They deserve great credit for having brought the Bill this far. It is not often we speak with one voice in the House, but today is one of those occasions. I welcome this. Self-employed persons in this sector have been exploited for much too long. I am delighted we are getting to a point, I hope, where we will see a solution to this problem. I hope the matter is not delayed and is expedited as soon as possible in order that the people concerned will receive their just entitlements.

I will make a few points in response before we move to section 2. I welcome the broad support for the Bill expressed so far by colleagues and thank them all for their kind comments. I should say in response to Senator Gerard P. Craughwell I do not want to take the credit for drafting the Bill. It was the product of a number of people. I mentioned Deputy Emmet Stagg who first published it in 2012. Certainly, this is an issue on which I have been working for some time. It is ten years since I first advised unions in my role as a practising barrister on the need to legislate to address this difficulty with the ruling of the Competition Authority.

All colleagues have expressed their support in principle. I am especially grateful to those colleagues who spoke from their experience as self-employed musicians and freelancers. I again thank the unions, including SIPTU, the NUJ, Irish Equity, the Musicians Union of Ireland and the ICTU, for their immense support and for how they have pushed on this issue to protect their members and these vulnerable self-employed persons.

I also thank the Minister for expressing her support for the Bill in principle. I note what she has said about the amendments. I am very grateful to her for agreeing to further debate in October. In response to Senators Gerard P. Craughwell and Robbie Gallagher on the question of delay, clearly we want to see the Bill pressed as soon as possible. We want to see this move forward. We want to see a robust Bill and to ensure its provisions will work effectively and the unions share this view absolutely. We are not averse to amendments. I say to the Minister and Senator James Reilly that, of course, we will be very interested to see the shape of the amendments to ensure they will not undermine the purpose of the Bill. In other words, I understand the purport of the amendments will be to narrow the scope of the exception we will provide for in section 2. Clearly, we want to be careful this will not narrow it too much. We will reserve our position on the amendments. We can wait until October once we have a guarantee we will be able to progress through Report Stage and proceed to the Dáil in October. We certainly do not want to see the matter delayed any further.

Senator James Reilly was kind enough to mention the female genital mutilation Bill which I introduced as a Private Members' Bill in the Seanad which the Minister accepted and which has now become law. It is now an Act to prohibit female genital mutilation. This was an instance of cross-party working where we achieved consensus and moved forward with Government amendments to what had originally been a Private Members' Bill. I had two other Bills go through a similar process. These were a Bill to give humanist celebrants the power to celebrate legal weddings and a Bill to amend section 37 of the Employment Equality Act which was hugely important particularly for the INTO and other unions in the teaching sector. We did it with qualified Government support and amendments and the Bill was passed.

I am happy to work constructively with the Minister and colleagues on both sides on the Bill, but it is important that the amendments do not narrow the scope of the exemption so much that it will be meaningless.

Many of us have been critical of the new politics, but the cross-party support we have seen and the positive comments from all sides of the House are good examples of how it can work.

Question put and agreed to.
SECTION 2
Question proposed: "That section 2 stand part of the Bill."

I will speak briefly about section 2, given that we have addressed the main purpose and context of the Bill. I wish to consider briefly the provisions included in section 2 which constitute, as I said, the substance of the Bill which seeks to create an exemption from the provisions of the Competition Act 2002. If colleagues have the Bill before them, they will see that we start in subsection (1) by borrowing from the definition of "worker" in the Industrial Relations Act 1990 to distinguish a worker from an undertaking. That is the core of the issue. The Competition Authority took the view in 2004 that a self-employed person was effectively an undertaking for the purposes of the Competition Act; therefore, if an undertaking bargained with another, effectively an employer, that would amount to price-fixing and be prohibited under competition law. We say that where an individual personally engages for gain under a contract with an undertaking to do any work or provide services, he or she should not be considered to be an undertaking. The effect of the section, therefore, is to exclude from the definition of "undertaking" somebody who personally engages to do work or provide services. The section goes on to extend protection to such persons who may be described as self-employed contractors but who are, in fact, what I have and the European Court of Justice has described as "false self-employed", that is, people who are employees or workers in all but name and who should, therefore, have the benefit of trade union representation to negotiate on their behalf. As I mentioned, practices such as publication of freelance fee guides were normal prior to the 2004 ruling. This section will enable unions to publish such guides again, which will be hugely important in the protection of freelancers in a range of areas.

We are saying there should be a new litmus test in line with the ruling of the European Court of Justice, that it is not as simple as making a distinction between self-employed persons and employees, that there is a category of self-employed persons who are, in fact, workers, who are personally engaging to do work and who should not be classed as undertakings for the purposes of competition law. Our proposal does not apply to contracts with consumers. We are seeking to ensure protection for consumers against price-fixing remains, which I know is an important concern of the Government. We want to ensure specific undertakings, true undertakings - and we accept, of course, that an individual can be an undertaking - will still be covered by competition law. We want to craft an exemption under competition law for those individuals who really are workers, not undertakings. That is the crux of the Bill.

This section aims to amend the Competition Act 2002 to establish rights for self-employed individuals to be represented by a trade union for the purposes of collective bargaining and price-setting. In introducing the Bill Senator Ivana Bacik highlighted the need for protection of vulnerable self-employed workers such as actors. The principle behind wanting to protect vulnerable self-employed workers is clear and something on which I think we all agree. However, the Government believes section 2, as drafted, goes far beyond the stated policy objective of the Bill of protecting vulnerable self-employed workers. In general, EU law confirms that self-employed workers are covered by competition law. However, there are also European Court judgments that certain specific categories such as false self-employed workers may not be covered by competition law and special attention will be paid to such self-employed and fully dependent self-employed workers in the proposed amendments. To this end, while not opposing the Bill's underlying aim, the Government cannot agree to section 2, as drafted. It is thus its intention to introduce amendments to the section on Report Stage. The amendments will address the policy objectives of the Bill in a more targeted way consistent with Irish and EU competition law.

I apologise for straying into section 2 earlier. I understood we were covering a number of sections, but perhaps I am just finding it difficult to get the timbre of the House. We are still getting used to it.

I thank the Minister for her response. As my colleague, Senator Ivana Bacik, said, we have no difficulty in working constructively with the Government because we are not in the business of merely making a point about this issue; we want to make a difference. I am pleased with the responses of colleagues in other political parties and none on their approach to this legislation. That is positive.

I wish to pick up on a number of issues the Minister raised, which leads us into a discussion on section 2. As I said earlier, the section does not seek to bestow new rights on anyone. It merely seeks to restore rights that obtained in advance of the Competition Authority's ruling in a decision in the early 2000s. The absence of collective bargaining rights from the arts and culture sector for freelance workers and those involved in journalism and the music industry has had a chilling effect on industrial relations and the ability of trade unions to organise effectively to enable their members to be provided with the service they would like to give to them. More important is the effect it has had on living standards. Colleagues discussed how in some cases we had seen a reduction of 40% in the living standards of freelance journalists. Their inability to have their pay and terms and conditions restored because of the absence of legislation covering collective bargaining is worrying and the Bill seeks to address this issue.

The State was before the International Labour Organization just a matter of weeks ago to answer a case regarding the absence of collective bargaining rights for freelance workers. Representatives of the Irish Congress of Trade Unions and IBEC, the social partners, attended and participated in that discussion. I was a little concerned about some references made at the hearing by the State's representatives, particularly the view expressed that the decision of the Competition Authority did not prevent freelance workers, to whom we are referring, from being represented collectively other than in matters of pay. If collective bargaining has nothing to do with pay, we need to re-examine our entire understanding of what it means. This time last year, with the support of this and the Lower House, we introduced new, effective and constitutionally robust collective bargaining legislation, the Industrial Relations (Amendment) Act 2015. To borrow a phrase, collective bargaining and representation, without the right to discuss and agree on pay, mean nothing at all to me or anybody else in this House. I am certain, though, that when the European Union decided that it would draft competition laws and rules and regulations, it did not have the work of Irish session musicians, voice-over actors or freelance journalists in mind. We all understand why there are robust competition law and rules in place: it is to prevent price-fixing by big multinational corporations and its effect on consumers. Therefore, when we consider legislation, we probably need to step back a little and try to understand the journey the drafters were on, what they intended to do and what the target was with the legislation. Its target certainly was not those gathered in the Visitors Gallery or those who seek to represent them.

I am of the view which I have held since the early 2000s that the Competition Authority's decision was the result of an overzealous and overweening interpretation of European Union competition law and that it should never be the case that competition law should override the overarching concerns we as a society should have for workers' rights, the ability of workers to be represented and their capacity to make a living. The need for exemptions for certain categories of worker in this corpus of law has been recognised before by the State. It was recognised in the Towards 2016 social partnership arrangements and agreed- "agreed" being the operative word - by the Government and the social partners that exemptions should be applied to the large category of workers to whom we are referring. Section 2 of the Bill will make good on that commitment, one which was renounced in 2012 in the context of different discussions, into which I will not go, at a very different time in our recent history.

For those in the House and elsewhere who still have concerns about our capacity to do something about this, we should reflect on the judgment of the European Court of Justice in the Dutch case, to which the Minister and others referred on Second Stage. Space has opened up for us to re-examine the application of competition law to self-employed workers in such arrangements because they are, to all intents and purposes, employees. The issue has evolved in recent weeks. The ILO has asked the Government to respond in November regarding its view as to how this issue can be progressed.

I was disappointed that the State sought to hide behind competition rules on this issue at the ILO hearing and took the view that nothing could be done because of the primacy, as some see it, of competition law as opposed to the need to protect and advance workers' rights. It is the case in France and Germany and it is about to be the case in Denmark and other member states that certain exemptions can apply in the context of collective bargaining and there is a provision in section 12A of the German collective bargaining Act which provides for special exemptions for certain types of worker in the culture and media sectors, for example, different categories of author. Where those exemptions can be applied, they have been applied elsewhere and there is no reason for the State to fail to address this issue. That is what we are seeking to do in this section. In doing so, we would not just do those in the Visitors Gallery a great service but we would do our society a great service and it would also assist the Government in meeting its international obligations under ILO Convention 98 which relates to collective bargaining. This builds on the motion promoted by the Labour Party in the Dáil in recent weeks to make work pay and to enhance dignity at work and the dignity of work agenda. Colleagues with whom I formerly served in government and I made a significant impact in enhancing our corpus of employment rights legislation in the past two years, in particular, and this legislation is the next stage in enhancing protections in the workplace. This will not only make Ireland the best small country in the world in which to do business but also the best small country in the world in which to work. We will work constructively with the Minister and all like minded colleagues in the House to make that a reality.

I agree with much of what has been said. I reiterate that the legislation is trying to strike a balance to give people the rights of which they are deserving and to which they are entitled, but, equally, not confer rights on other groups that can then hold the State to ransom. I will not mention specific groups, but we all have knowledge in the past of how unintentional consequences flowed from legislation which had the best of intentions. That is what the Minister is trying to say.

Where there is a will, there is a way and there is clearly a will in this House to make this happen. I could not agree more with Senator Gerald Nash, whom I sat beside in the Cabinet, that there is no way competition law should ever undermine a worker's right to a decent income.

This section is the heart of the Bill. It is important to recognise our obligations under ILO conventions. ILO Convention 87 relates to freedom of association and protection of the right to organise, which the State ratified in 1955. It states: "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. The State will respond to the ILO in November. Would it not be wonderful if this Bill was passed by then and officials could attend the ILO and relate the good news that this wrong has been righted and that we are fully compliant with ILO rules?

Senator Gerald Nash has rightly raised the important issue of the Government's appearance before the ILO in June. I share his concern and those of many in the trade union movement about the statements made in respect of this issue prior to the ILO hearing. In particular, it is important that Ireland cannot argue that following interpretation of EU rules, it is exempt from ILO conventions. It is critical that this artificial distinction between workers and self-employed undertakings is not allowed to inhibit the proper protection of workers' rights.

The Government raised the issue of the European Commission at the ILO hearing. Officials stated the Commission had been consulted on two separate occasions on draft legislation seeking to delimit the application of competition legislation, which is the legislation before us and its previous incarnation in 2012. On both occasions the Commission indicated it did not see a need for the exemptions from competition law. I agree with Senator Paul Gavan that it would be great if the Bill had at least passed all Stages in the Seanad by November. If amendments can be constructively debated and agreed in the House, the Dáil debate should be expedited. I hope it moves swiftly through the Dáil following the debate in this House. November would be a great time by which to have secured a concrete achievement on this. Our concern is that the amendments will not narrow the scope of the exemption so much that they undermine the Bill. Senator Gerald Nash pointed out the other jurisdictions that have crafted similar exemptions. I am concerned that the Government does not use the view of the Commission to inhibit the passage of the Bill because we all clearly agree on the need to pass a form of exemption to the Competition Act.

I would be grateful if the Minister could outline in a little more detail, if she can, the scope of the amendments to this section. She said attention would be paid to the criteria outlined in the judgments of the European Court of Justice. I presume this refers to the Dutch case, in particular, where the court pointed to various criteria that would enable a finding that somebody while notionally self-employed was, in fact, false self-employed and was somebody in respect of whom trade unions could negotiate fees. Some of the criteria put forward by the European Court of Justice were that the person was acting under the direction of the employer as regards freedom to choose to time, place and content of work, did not share in commercial risks and formed an integral part of an employer's undertaking. What framework does the Minister anticipate putting in place in amending the section?

I echo the comments of colleagues on the importance of recognising that competition law cannot be used to undermine workers' rights, our obligations under ILO conventions, and, as Senator Ivana Bacik ably outlined, the ruling of the European Court of Justice. The European Court of Justice has a wide definition of what might not be considered to be genuine self-employment where workers are under the direction of the employer as regards freedom to choose to time, place and content of work, and where they are an integral economic unit of the employer's undertaking. Large numbers of those we have been speaking about fall under that definition. They are workers, not undertakings, and although they may not be classed as employees currently, they often work for only one employer or a limited pool of employers, with those employers having the capacity to organise, set new trends and conditions and introduce new practices, as was the case with the increased use of if and when contracts. It is important to have a counterbalance that recognises this.

I also recognise, however, that many employers, including the IAPF, were happy to work with the collective bargaining principle in the past.

Within industry there are many who would welcome the return of these collective bargaining principles in terms of a uniformity of standard. I would like to hear the outline of the proposed amendment to section 2. In my mind, it is a strong section which would stand the test of the European Court of Justice and our International Labour Organization, ILO, obligations.

I apologise for being late for the debate, but I had other commitments which I had to fulfil.

From what I can gather, the tone of the debate is positive on the Government’s part towards assisting the passage of this legislation through the House. I am concerned, however, that in trying to tighten up loopholes that it might squeeze too strong and choke the baby. I hope that will not be the case because it has been clearly set out by colleagues already that there is a roadmap for this and it needs to be completed. I hope that between now and October, some positive discussions can be had by both sides to ensure the amendments actually address the Minister’s concerns but do not close down what we are hoping to do with the legislation. I note the Minister is giving a positive response to this. I hope it will be in writing in October.

Senator Ivana Bacik has outlined a concern we have, namely, that the Bill would follow that such individuals should not be classed as undertakings for the purpose of competition law. It is important that self-employed individuals continue to be prohibited from price-fixing and best interests.

The ILO committee invited the Government to report in detail to it before its next session in November 2016.

I want a robust Bill and to have Report Stage debate in October. Special attention will be paid to such false self-employed and fully dependent self-employed workers in the proposed amendments. The amendments have to be finalised in conjunction with the Office of the Attorney General and the Office of the Parliamentary Counsel. Accordingly, I am not in a position to give more details on them today.

I thank the Minister for her response and accept she does not have the text of the amendments before her. I look forward to working constructively with her and her officials who are working hard on this issue to ensure we can achieve amendments agreeable to every Member but mindful that they would not unduly narrow the exemption of the Bill.

Question put and agreed to.
SECTION 3
Question proposed: "That section 3 stand part of the Bill."

Section 3 is ancillary to section 2. It relates to section 4 of the Competition Act 2002 and seeks to provide for an application to a scheme for payments out of public funds by a public body to members of a profession. It concerns instances where the Government makes a declaration a public interest in negotiating a collective agreement on a national level with an organisation representative of a profession. It seeks to cover such agreements to ensure they will not breach the Competition Act 2002 and to provide for an exemption to section 4 of the Competition Act 2002. While it is not as urgent as section 2, it is a related issue concerning the application of the Competition Act to collective bargaining.

Section 3 proposes to allow the representative body of any profession to represent its self-employed members who are paid by the State such as doctors providing health care for the State. In effect, this would allow such professionals to set prices. Accordingly, the Bill, as drafted, would result in a large increase in the cost of services provided to the State by professionals with obvious negative effects on the Exchequer’s finances. If the exemption is granted, the State could not take legal action against such organisations of self-employed persons if they withdrew their services.

The Attorney General believes the Bill, as drafted, appears to infringe Article 101 of the EU treaty. The European Commission considers that the Bill, as drafted, runs counter to EU competition law. It also believes the proposed exemptions appear very questionable in view of the long-term interest in ensuring efficient use of public budgets. The Government believes section 3, as drafted, goes far beyond the stated policy objective of the Bill of protecting vulnerable self-employed workers. Accordingly, it is the Government’s intention to introduce an amendment to this section on Report Stage.

Our concern is that the amendments not undermine the Bill’s specific purpose, namely, to protect vulnerable self-employed persons. We will await the actual text of the amendments to see what position we will take on them.

The role of the Attorney General has been mentioned on several occasions. I did not call into question the role or the advice of the Attorney General. It was a senior Minister who did so the other morning. That is the only point I was making. I am not trying for one moment to undermine the role of the Attorney General. The role and the authority of the Attorney General will have to be discussed. Like Senator Ivana Bacik, my only concern is to see the Bill passed. I am not calling into question the opinion of anybody. I am merely making a point that was already made the other morning by a Minister.

Question put and agreed to.
SECTION 4
Question proposed: "That section 4 stand part of the Bill."

Section 4 makes standard provision for the Short Title and collective citation of the Bill. It cites the Bill as amending the Competition Act 2002 and states it may be cited together with the Competition Act 2002 as one Act.

It is usual to provide in legislation for a commencement order. To this end, it is the Government’s intention to introduce amendments to section 4 on Report Stage to this effect.

In the light of the comments made by colleagues on both sides of the House, while commencement orders are routine, our concern would be that it would not be used to delay the enactment and implementation of the Bill. We are all conscious of Acts, for example, the Charities Act, where there have been significant delays in the commencement of particular provisions. We do not want to see that happen with this Bill.

I echo the concerns expressed because we cannot afford a delay with this legislation.

I want to finish by reminding the House what we are talking about, namely, the fundamental right to collective bargaining of vulnerable workers. We are all agreed in this Chamber that this is the most important point that needs to be addressed. I recognise Senator James Reilly's point that we cannot allow that right to be undermined by competition law. If we are all on that page, we will get this Bill through. 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. That is what the Bill aims to support and I say, "fair play," to Senators Ivana Bacik and Gerald Nash. We should all be able to support it and see it through this Chamber.

Question put and agreed to.
Title agreed to.
Bill reported without amendment.

When is it proposed to take Report Stage?

On the first sitting day after the recess.

Report Stage ordered for Wednesday, 28 September 2016.

When is it proposed to sit again?

At 10.30 a.m. tomorrow.

The Seanad adjourned at 5.10 p.m. until 10.30 a.m. on Thursday, 7 July 2016.