Irish Equity wins legislation to recommence collective bargaining for freelance performers in Ireland!

On 31 May 2017, the Irish Parliament adopted the Competition Amendment Bill, which aims to introduce exemptions from competition law for certain self-employed workers. This significant breakthrough for performer unions will return collective bargaining rights for freelance performers in Ireland. FIA warmly welcomes this historic victory and congratulates Irish Equity for their outstanding work. In order to better understand the different steps that lead to the adoption of the Bill, we asked Karan O’Loughlin, Irish Equity Organiser, to give us a chronological outline of this long running struggle.

In 2004 the (then) Competition Authority published a decision which defined freelance actors who provided voice-over services for advertising production as “undertakings” and the Trade Unions/Organisations who negotiate for them as “associations of undertakings” for the purpose of Article 4 of the Competition Act and that such negotiation was therefore defined as price fixing – making it contrary to Competition law.

The Authority insisted that Irish Equity cancel all negotiated collective agreement on rates/fees which had been agreed for between Irish Actors Equity and the Institute of Advertising Practitioners in Ireland.

In short, this decision had the twofold effect of

1.     Nullifying the collective agreement on rates which had been agreed between Irish Actors Equity and the Institute of Advertising Practitioners in Ireland.

2.     Preventing any such collective bargaining from reoccurring for this category of worker, for freelance musicians who were members of the Musicians Union of Ireland (SIPTU) and freelance photographers/Journalists who were members of the National Union of Journalists (NUJ).

The unions involved fought a political campaign against this decision and a commitment was given from the Government of 2006 under the Ten-Year Framework Social Partnership Agreement 2006 called Towards 2016, that legislation would be forthcoming to deal with this issue so as to allow for collective bargaining for these categories of workers. The economic collapse that followed in 2008 however created a change of Government and pushed this issue off the political agenda.

Since that time the unions had being trying to have this matter resolved so as to create collective bargaining systems for these vulnerable workers. The new Government elected took the view initially that they were prevented from dealing with the issue by the Troika but an exchange of correspondence between the Irish Congress of Trade Unions (ICTU) and the Troika demonstrated that that was not the case and the unions continued to lobby for corrective legislation.

In December 2014 the case - FNV Kunsten Informatie en Media v Staat der Nederlanen (C-413/13) - was referred by the Court of Appeal in the Netherlands, following a complaint by Dutch Union Federation FNV. The FNV claimed the Dutch Competition Authority had incorrectly found their collective agreement to be contrary to Competition Law, having judged the freelance musicians concerned to be business ‘undertakings’ involved in price fixing, rather than workers bargaining collectively. The case bears a striking similarity to a 2004 decision by the Competition Authority here, in relation to self- employed voiceover actors.

The Court of Appeal has unequivocally held that it is wrong to define workers as undertakings under competition law simply on the basis that they are ‘self-employed’. 

In January 2015 David Begg, General Secretary of the ICTU wrote to Isolde Goggins, the Chairperson of the Competition and Consumer Protection Commission requesting that the Competition Authority decision be revisited having regard to the Dutch Judgement. This request was rejected as the Competition and Consumer Protection Authority saw no relevance in the Dutch Judgement where the Irish situation was concerned.

In January 2016 (immediately prior to the General Election) Senator Ivana Bacik revived an older Bill that had failed in 2012 and named it the Competition (Amendment) Bill 2016. This Bill sought to act to delimit the application of the Competition Act 2002 to Trade Unions and Trade Union Members and to certain agreements negotiated with public bodies, and to provide for related matters. The unions lobbied all the political parties on this seeking support.

This Bill was passed through the Seanad on January 20^th 2016 with all party support. The then Minister, Richard Bruton, while mindful of European Competition Law, supported the Bill and agreed that it was time to readdress this issue for the protection of vulnerable workers.

During all of this a complaint was made by the ICTU to the ILO who were asked to examine the issue as a breach of Article 2 of the ILO Convention No. 87 on the Freedom of Association and Protection of the Right to Organise. This convention had been ratified by Ireland in 1955. 

When asked by the ILO as to why they had not honoured the commitment given to the trade unions under Towards 2016 the Government position was that the European Commission had informed them that a derogation from competition law in Ireland would not be consistent with EU competition law but evidence of this was not produced.

A further complaint to the European Committee on Social Rights on the absence of collective bargaining for these categories of worker was also drafted and submitted in 2016.

The general election in Ireland resulted in the election of a minority Government. This, combined with organised and persistent lobbying at national level by the unions, along with the ILO and European Committee on Social Rights complaints, created a unique opportunity for change. The Competition (Amendment) Bill 2016 was subject to significant amendment by agreement and worked its way successfully through the Irish legislative system.

On May 31^st of this year the Bill became law in Ireland (effective from September 1^st 2017) and is now the Competition (Amendment) Act 2017. The Act provides that Section 4 of the Competition Act 2001 shall not apply to collective bargaining and agreements in respect of a relevant category of self-employed worker. This category of worker is identified as being Actors engaged as voice-over actors, Musicians engaged as session musicians and Journalists engaged as freelance journalists.

The Act also allow for trade unions to make an application to the Minister to have other categories of worker added to the list of exempted categories provided the addition of such categories would have no or minimal impact on competition in the category within which they work.

Author: Karan O’Loughlin