I welcome the Minister, Deputy Mitchell O'Connor. I remind the House that a Senator may speak only once on Report Stage, except the proposer of an amendment who may reply to the discussion on the amendment.
Competition (Amendment) Bill 2016: Report and Final Stages
On the advice of the Attorney General, I am proposing a new Long Title to the Bill because some other Government amendments seek to amend the Competition Act 2002 by inserting a new Part and a new Schedule into that Act regarding the application of section 4 to collective bargaining and agreements in respect of certain categories of workers.
I welcome the Minister to the House. I also welcome the many people who are in the Gallery to represent the various unions that have been campaigning on this matter for some time. SIPTU, the National Union of Journalists, Equity, the Musicians Union of Ireland and many other unions have a long-standing commitment to reform in this area. The Bill we are considering on Report Stage today represents the culmination of their long campaign. I welcome amendment No. 1, which involves the insertion of a new Long Title, as the Minister has said. My view, which is shared by Senator Nash and our colleagues in the Labour Party group, is that the new Long Title probably more accurately describes the purpose of the Bill, which is to amend the Competition Act 2002 to provide that section 4 of that Act will not "apply to collective bargaining and agreements in respect of certain categories of workers".
I remind the House that we are seeking to ensure the Competition Act is amended in this way to make a real change in respect of what occurred in 2004. As the people in the Gallery and many Members of this House will recall, the Competition Authority ruled in 2004 that a collective agreement between Irish Equity and the Institute of Advertising Practitioners in Ireland in respect of voice-overs provided by freelance workers was in breach of section 4 of the Competition Act 2002 on the basis that each actor was a separate self-employed contractor - a separate undertaking, in effect - and therefore it was unlawful for any group of them to collectively fix prices for voice-over services. As the people in the Gallery are well aware and have told many of us, this has had a very detrimental effect on the livelihoods of many people involved in voice-over work. I refer not just to actors working on voice-overs because it is clear that it also had an impact on many other trades, particularly in areas like journalism, performance and the arts. It has had a chilling effect on photographers, writers, musicians, models and many other self-employed people on whose behalf unions have traditionally collectively negotiated.
I should declare a professional interest because, as a barrister at the time, I advised the unions on the need to try to resolve this matter by gaining some sort of exemption to the Competition Act 2002. The view taken by the unions, and now also by the Minister and the Government, was that competition law should not be applied in such a rigid way to these groups of vulnerable self-employed workers and that an exemption could and should be sought in respect of them. The Bill before the House relies heavily on the original Competition (Trade Union Membership) Bill 2006, which was proposed ten years ago by President Michael D. Higgins, who was a Deputy at the time, in order to permit an exemption of this kind. Without going into the history in any great detail, a commitment to deal with the matter was then included in the Towards 2016 partnership agreement that was negotiated at national level. The Bill we are discussing this afternoon, which was introduced in this House by the Labour Party group as a Private Members' Bill in January of this year, seeks to resolve this long-standing matter. It was not dealt with in Towards 2016 because of the bailout and the troika requirements. We are glad to see that the matter is being resolved now. I know the unions will be glad to see it resolved. We are happy to accept the Minister's amendments as a way of making the Bill a workable solution to deal with vulnerable groups of self-employed workers in respect of whom competition law should not have been so rigidly applied. This is a proud day for the Seanad because this will be the first Private Members' Bill to pass all Stages in either House of the Oireachtas since the new Government came into office. I think it is a positive sign of new politics. I thank the Minister and, in particular, her officials, with whom we have engaged extensively since the Bill was passed on Committee Stage on 6 July last. I thank the officials for engaging so constructively with us on the text of these amendments.
I am proposing the deletion of section 1. As my amendments seek to amend the Competition Act 2002 by inserting a new Part and a new Schedule into that Act, it is necessary to define that the "Principal Act" referred to in my amendments to later sections means the 2002 Act.
As the proposer of this Bill, the Labour Party group supports this amendment.
As amendments Nos. 3, 4 and 6 are related, they may be discussed together by agreement.
The need to protect vulnerable self-employed workers was often cited during previous debates on this Bill. As Minister for Jobs, Enterprise and Innovation, I have a duty to ensure all workers, regardless of their situations, are protected by robust and transparent law. The Bill, as initiated, proposes to exempt people other than vulnerable self-employed workers from certain provisions of competition law. If it were enacted without amendment, it would result in higher costs for those to whom services are supplied by such workers, including consumers, businesses and the State.
The amendments I am proposing address the policy objectives of the Bill in a more targeted way, thereby minimising the potential negative costs on the Exchequer. They allow a trade union to apply to the Minister for Jobs, Enterprise and Innovation to exempt a particular class of self-employed workers from the provisions of section 4 of the Competition Act 2002. The trade unions must provide evidence that their members are "false self-employed" or "fully dependent self-employed". Those categories are defined in the amendments. In addition, they must provide evidence that there would be no economic effect, or a minimal economic effect, on the market or on costs to the State and that the exemption, if granted, would be consistent with Irish and EU competition law. In defining a "false self-employed worker" or a "fully dependent self-employed worker", due consideration has been given to the European Court of Justice ruling in the Dutch musicians case and other International Labour Organization deliberations on this topic.
The Minister for Jobs, Enterprise and Innovation may consult relevant Ministers or other people or bodies about any proposal to make an order to prescribe categories of self-employed workers for whom trade unions have applied for exemptions. The amendments allow the Minister to refuse an application or revoke an order if market conditions change, but not without due consultation with key stakeholders and full consideration of all the facts. As it is not appropriate for any ministerial order to be made time bound, the proposed amendment does not do so. I will endeavour to ensure all applications are considered in the shortest possible timeframe.
I am proposing the deletion of section 3 of the Bill, as initiated, which would 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. This would, in effect, allow such professionals to set prices.
Thus, the Bill as currently drafted would result in a big increase in the cost of services provided to the State by professionals, with obvious negative effects on the Exchequer.
Amendments Nos. 4 and 6 insert a new Schedule 4 into the Competition Act 2002, thus giving effect to a previous Government commitment under the social partnership agreement entitled Towards 2016 Review and Transitional Agreement 2008-2009 - Amendment of the Competition Act 2002. The new Schedule exempts those three activities outlined in the Towards 2016 commitment, namely, actors engaged as voice-over actors, musicians engaged as session musicians and journalists engaged as freelance journalists, from section 4 of the Competition Act 2002. The exemption will come into effect when the Bill enters into force and an application for exemption will not be required for the three activities which I have listed in the Schedule.
I join with my colleague, Senator Bacik, in welcoming all the people in the Gallery. They are my colleagues from Equity, the Musicians Union of Ireland, the National Union of Journalist and SIPTU. This is a very significant day and I hope all of us will welcome it. This legislation is long overdue and it is probably worth repeating what Esther Lynch had to say when the Competition Act came into effect. She stated 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 and more pay. As we all know, the consequences over the past decade or more have been particularly harsh on people who make a major contribution to our society, the arts and so many other professions.
I must pay tribute to Senators Bacik and Nash in particular as they deserve full credit today. I chatted yesterday to Senator Bacik and I know there is a long history for her on the issue. Given what has happened in the past couple of days, it is important to recognise that the best antidote to some of the depressing politics happening worldwide is when all of us can come together and make a constructive difference. The Minister and Senator Reilly would be more used to me giving out and complaining about this Government - as I do, and I make no apologies for that - but equally I must give credit today. We have looked at this Bill in detail and the contribution from the Department has been very good. We must acknowledge that today in particular.
I am very happy with all the amendments, and they are significant in particular with regard to definitions, including those for collective bargaining for a self-employed worker. There has been a reference to the Dutch musician case and to the fully dependent self-employed worker, which relates to the International Labour Organization, ILO, deliberations. These are significant and the right choices to make. While it is long overdue, we welcome this. I hope the legislation will pass smoothly today and I urge the Minister to make great haste, if possible, as these people have waited more than long enough. It is fair to give everybody credit for what has happened today. It is a significant day and is it not great to see a Private Members' Bill pass through the Chamber this session? There should be congratulations across the board. I should be clear that this Bill has the full support of our party.
I thank Senator Gavan for his words and all colleagues across the floor and on both sides of the House for their support of this Bill. It took support from all sides to ensure it would reach Report Stage in Government time. It is historic because not many Private Members’ Bills have traditionally become law so we very much look forward to this becoming law and welcome the support of all colleagues. I should say that this, of course, stems from a long-standing Labour Party commitment. When we introduced it on Second Stage, my colleague, Senator Nash, as a junior Minister had a large part to play in its acceptance on Second Stage by the Government. I thank the Minister for continuing support for it and bringing it through Report Stage in Government time.
We support the amendments proposed by the Minister, which will provide for a new process for two groups of vulnerable self-employed workers to achieve exemption through application by their trade union to the Minister. The first category is the false self-employed work; this is somebody who is described as self-employed but who is in all but name an employee. This is the category of worker in respect of whom the European Court of Justice had previously ruled in the FNV Kunsten Informatie en Media case, relating to session musicians in a Dutch orchestra. In that case, very helpfully, the court set out a list of criteria by which somebody who is described as self-employed may be considered to be falsely self-employed, or in reality an employee. These are the criteria set out in the Minister's proposed amendment. We very much support that.
There is a second category of worker in respect of whom trades union will be able to apply for exemption to the Minister. These are people who are not necessarily captured by the false self-employed category and we were very conscious that many of the people who came to us, such as freelance journalists, would not come under the Kunsten case but would rather be better regarded as fully dependent self-employed workers. We are grateful to the Minister and her officials for working hard on this and the drafting of that was perhaps more difficult because there was not a clear set of criteria set out in a court judgment. It is helpful to know it derives from ILO sources and we can see other countries, like Germany, where there is a similar sort of provision in place for somebody who might be described as self-employed but is fully dependent on perhaps one or two persons for the vast bulk of their income. As the Minister's amendment indicates, their main income in respect of the performance of their services under contract is derived from not more than two persons. That will capture a large number of people who have been really disadvantaged by the Competition Authority ruling.
Finally, the Bill will also provide a welcome automatic exemption for a third category of self-employed worker, the three groups who were previously specifically mentioned in the Partnership 2016 programme and who will now be listed in the Schedule to the Competition Act as automatically exempt. Those are voice-over actors, session musicians and freelance journalists. We very much welcome that automatic exemption.
I will finish with three points on the amendments. I am grateful to the Minister for outlining her intention to ensure applications are dealt with speedily. I raised with the officials the issue of a set timeframe for decision making. We and the unions would anticipate that, although the timeframe is not specified, the Minister would always act expeditiously and speedily in coming to a decision and applying the criteria. I know the Bill anticipates that the Minister will allow for the application to be made. For example, there may be guidance as to timing set out in that, which would be very helpful for unions in making applications to the Minister for an exemption.
The second point is I understand there is no prohibition on reapplication by a trade union in respect of a class of a relevant category of self-employed worker where, for example, some conditions have changed or a new group of individuals have come into membership of a union and so on. I am sure the Minister will confirm there is nothing in the Bill to prevent a union from reapplying. The third point is the timeframe for the Bill's passage into law, and I am very glad to see it will be dealt with in amendment No. 5, with the Act coming into operation no later than three months after the date of its passing. That is a comfort to the unions and all those who have been engaged in this campaign for so long. We hope it will speed through the Dáil and I am glad to see a commitment that it will be brought into operation no later than three months after the date of its passing. We have no difficulty with the deletion of section 3 from our original Bill, as I made clear on Committee Stage.
I will be quick, as the proposer of the Bill has already spoken. I support the Bill and commend Senator Bacik in her long work in following through on these issues. It is a very positive step forward. The Civil Engagement group is very happy to support this. I commend the Minister and her Department for engaging very constructively in this area. I echo the points welcoming the definitions, as they will have a valuable contribution and give much clarity to many workers. I acknowledge the particular exceptions made in respect of artists and those working in the arts.
The arts sector is in the process of real transformation as it seeks to place itself on a more secure footing and ensure that all can participate, work, make progress and live fully in the sector.
I accept and support the legislation. The amendments have been constructive and I give the endorsement of my group to the Bill.
Amendment No. 5 is a standard provision for the Short Title and collective citation.
In respect of the commencement of the Act, I may appoint different days for different purposes but in any event all parts shall be in operation three months after its enactment.
I have reserved my comment on this matter until we reached amendment No. 5. I reiterate that I am glad that there is a provision for the coming into force of the Act. I ask the Minister to confirm, in respect of the earlier amendments, that there is nothing in the Bill to prevent reapplication.
I confirm that there is nothing in the amendments to stop unions reapplying.
I thank the Minister.
I welcome the Bill. It rights a wrong that existed for quite some time. It should have been addressed previously and it has now been addressed. l congratulate Senator Bacik on the legislation. It is not the first Private Members' Bill that she has put through this Chamber. It is great that the legislation has come through the Seanad. I appeal to the Minister and other Ministers to use the Seanad to initiate Bill, because I found it useful myself, when I was a Minister, to put Bills through here where we had a reasoned discussion and then the legislation went through the Dáil with very little problem.
I welcome the Minister's provision for trade unionists to apply and for confirming that they can reapply. I very much welcome the fact that there is room for a review where an application is not granted that people feel should have been granted. It is always good to have a review process when a decision is made that people feel strongly might not be correct.
I congratulate the Minister on all the work she has done on this legislation. A lot of consultation has taken place, which is only proper and right. It has allowed for cross-party agreement on an important Bill. That is important to the many people seated in the Gallery, whom I welcome, and to the many people who cannot be here today.
I have always believed that trade unions are hugely important and exist to protect workers. They are also very important to Government because one can deal with a group who can seal a deal and have their members partake in a deal. Rather than having to deal with 25 different disparate groups, one can deal with one group. Over the years the fact trade unions have been able to make agreements with the Government and employers has been very beneficial to the well-being of many people in this country and also the economy.
On behalf of Fianna Fáil I welcome all of the contributors here today. They are the people on whom this legislation will have a direct effect.
It is a red letter day for Senators Bacik and Nash. They have been here before and I commend them on all of the work that they have done on the legislation. It is a level headed piece of legislation.
I commend the Minister. As a Senator, I have found her to be one of the hardest working Ministers around. She has made herself available to discuss anything about a business matter for anyone who cares to engage with her. This is the first legislation that has been passed since the formation of the new Dáil and Seanad but that does not happen by chance. Only for the Minister, her Department and the two Senators who worked hard to push the legislation through, it would not be here. To follow on from what Senator Reilly said, this legislation is an example of the great work that takes place in the Seanad. Legislation can be initiated in the Seanad and moved on. I am curious to know why the Taoiseach is hell bent on cutting the Seanad to pieces. Reform is the word but I am curious to know what he is trying to achieve.
Amendment agreed to.
The Minister has asked to make a few concluding remarks.
I, too, commend Senators Bacik and Nash on all of the work they have done. I am delighted to be here today and thank Senators for their nice comments. It has been a pleasure to put through this legislation because we have all worked together. I thank my departmental officials for their hard work. They worked with Senators to make sure that we got the exact sense of what needed to be done. I am glad for all of the people in the Gallery because they have waited a long time. I am delighted to be able to do this work.
As I have previously noted in this House, while understanding the principle behind the original Bill, the Government had concerns that the legislation, as drafted, went far beyond that objective and would have had a serious impact on the Exchequer. Along with other Senators, I am delighted that Senator Bacik's and the Labour Party's legislation has been passed in Seanad Éireann. I believe President Higgins tried to do this many years ago.
It is great that this legislation has been passed. We have worked hard in a collaborative manner in the Government to ensure a more targeted measure has been agreed and that the focus in the Bill is on vulnerable self-employed workers.
I thank my officials for doing this work in a good, efficient and effective manner. I look forward to similar collaboration in the Oireachtas in the future.
I was going to say a few words of thanks to the Minister for her comments and to thank others. Perhaps I will wait until the Bill has been passed.
Yes, I will allow the Senator speak at that point.
I know others wish to speak at that time.
Senator Bacik can make her comment.
I am delighted that the Bill has been passed. I sincerely thank the Minister for her kind comments. It has been a pleasure to work with her and her officials. Her constructive approach has been welcome and positive. I thank her for closely engaging with us on this legislation from the start. I echo Senator Davitt's words about her capacity for hard work and, in particular, her constructive approach to all of these things.
I thank her officials. In particular, I thank Mr. Kieran Grace, Ms Breda Power and Ms Colette Reilly because they have been so good dealing with us all through the process. I thank all of those in the trade union movement who have worked so hard for so long on this legislation. There are too many names to mention but I single out Mr. Séamus Dooley of the NUJ, who cannot be here but who has worked really hard on this legislation. Ms Ethel Buckley, Ms Karan O'Loughlin, Mr. Pádraig Murray and many others have also worked extremely hard. I know other people in ICTU have also actively worked on this Bill.
This is a time of fairly bleak political developments overseas. This week, we have seen bloated progressive politics internationally, and some of us have already acknowledged the situation in this House. This Bill is a positive example of constructive legislative work by the Seanad and between the Government and the Legislature. I hope it is a good example of more to come. Senator Reilly recalled, as a previous Minister, accepting my Private Members' Bill on the prohibition of female genital mutilation. It was another example of the Senators working together to pass a Bill and there have been many more, including work done by former Senator Feargal Quinn.
Today's Bill is a positive example of constructive work done in a collaborative fashion by an active Legislature. This is also a good example of the collective rights of workers being asserted against a neoliberal ideology that was applied over rigidly by an authority working within EU law. We have shown through our work on this Bill, the Government's acceptance of this Bill and through working together on it that other interpretations are possible within EU law. We have also shown that collective rights can and should be asserted, where necessary, to protect vulnerable groups of workers who would otherwise face a huge amount of disadvantage as a result of particularly rigid approaches.
I am grateful to colleagues for their support for the Bill, in particular Senator Gerald Nash, who had an important role in making sure this Bill came through. It is a proud day for the Seanad and a historic day for all of us.
I was delighted to have had the opportunity to enable this Bill at an early stage to pass through the Cabinet approval process during the previous Government's term. Senator James Reilly was a member of that Government too. Success has many fathers and, indeed, mothers. Many people in this Chamber have played a role in bringing this legislation to this point today. I thank the Minister for Jobs, Enterprise and Innovation, Deputy Mary Mitchell O'Connor, for the fact her door was always open and that she took little convincing about the necessity of this legislation passing. I also thank her departmental officials for their consistent engagement with Senator Ivana Bacik to ensure we have legislation that is workable, practical and constitutionally robust.
I recall other colleagues involved in the development of legislation of this nature in recent years. Our former colleague, Emmet Stagg, attempted in 2012 to get similar legislation passed but, unfortunately, it did not make it through the process. As Senators Ivana Bacik and Paul Gavan said this is an important day for new politics and progressive politics. This Chamber has shown its better self in working together to achieve a positive objective for working people. Ultimately, we are here to represent the interests of citizens of this country. For several years, we have all been concerned about the rigid determination made by the then Competition Authority in the application of European Union competition law in this regard. I said in this Chamber previously that EU directives and regulations in this respect have been overly, literally and rigidly applied to many of those sitting in the Gallery today. I do not believe when these regulations were being drafted by the European Commission that it had Irish session musicians, freelance journalists and others in mind. It was dealing with regulating major utility and telecom companies and others.
Accordingly, it is important we can express ourselves in this Chamber, address deficiencies in the interpretations of our laws and see them amended. What we are about is trying to improve living standards for our people. Ultimately, this legislation, collectively viewed with other legislation which will be passed over the next couple of years by the Minister, will see improvements to people's living standards and their opportunities to provide for themselves and their families, as well as to participate fully in our society as active citizens in the economic sectors in which they are involved and work.
It is important to point out this is constitutionally robust legislation. Some legislation in the employment rights field was struck down as unconstitutional in recent years, such as joint labour committee and registered employment agreement legislation. We have reformed and reconstituted this legislation in recent years to make it constitutionally robust. I can see a thread and a pattern in this Bill where those lessons have been learned. Some of the consequent formulae have been applied to this legislation regarding the importance of ministerial orders and laying matters before the House. It is important the Houses of the Oireachtas have a role in terms of legislation like this. Those deficiencies have been addressed and the repairs we have provided are reflected in this legislation.
Having scrutinised this Bill and the Minister's amendments, it can be argued this is future-proofed. The world of work is changing rapidly. Industrial sectors that we have not yet imagined will be born soon. We need to be nimble and be able to react to them. There is sufficient flexibility in this legislation to ensure new categories of workers which might emerge in the future are catered for in the context of the protections and supports they need. Most important, this Bill will ensure the right to be collectively represented and the right to collective bargaining in one's workplace in one's interest to improve one's living standards and opportunities, as well as, ultimately, delivering fairness and decency in every workplace.
When is it proposed to sit again?
At 2.30 p.m. on Tuesday, 15 November 2016.