Competition (Amendment) Bill 2016: Committee Stage

Posted on July 06, 2016

I welcome the Minister, Deputy Mitchell O'Connor, to the House. 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 of 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 on it. I thank my colleagues on both sides of the House for expressing support for this Bill. I also welcome the many observers here in the Gallery from across the trade union movement and from 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. This Bill stems from a longstanding 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 Ged Nash and myself have worked on this 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 voiceover 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, in 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, voiceover artists and freelance journalists. As result of the 2004 ruling by the Competition Authority, that sort of agreement of setting a minimum floor of fees was now seen as in breach of competition law.

As many of our colleagues in the trade union movement explained at the briefing earlier on, 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, TV 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 our workers. That is the context for this Bill. It is to try to tackle this difficulty and the lack of availability of collective bargaining rights for freelance workers.

This Bill is a longstanding Labour Party commitment. President Michael D. Higgins back in 2006 published a Bill to try to address the impact of the Competition Authority ruling but that was not taken any further. Under the troika programme, there was a commitment in the memorandum of understanding that there would not 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, then 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, then 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 we are now in a position to legislate. In January of this year, we got agreement from the Government not to oppose this Bill on Second Stage. We are anxious that it would 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 today's Committee Stage debate. We accept her bona fides on that and that she will undertake to put forward those amendments as soon as possible. She has indicated October would be the earliest date on which they will be ready. We would then be in a position to debate this Bill on Report Stage in Government time in the Seanad and conclude it on receipt of those amendments.

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

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