Freelancers’ Collective Bargaining Rights

Esther Lynch,Head of Legal Affairs Irish Congress Trade Unions

Why is this an issue?

Collective bargaining essential to ‘Quality Journalism’

The current restrictions on collective bargaining are contrary to all human rights standards (UDHR, ECHR, ILO)

Danger that bad rules will spread

no soul to damn, no body to kick,“…

Part of a developing unsatisfactory jurisprudence that human rights can be limited by EU ‘Fundamental Freedoms’ or ‘property’ rights of corporations

e.g Laval, Walmart, Ryanair

Corporations are successfully arguing that their property ‘rights’ and economic ‘freedoms’ – trump humans’ human rights and freedoms.

A case of don’t waste a good crisis

IBEC the national representative body for business employers has set out strong opposition to legal underpinning for a right to collective bargaining saying that any move in that direction would act as a major disincentive to foreign direct investment;

human rights adversely affect the “entrepreneurial spirit” because they dictate standards with which to comply…recent Minister for Justice McDowell

Freelancers in Ireland

Irish Competition Authority (incorrectly) determined that ‘Voice Over Actors’ (& Freelancers’) were ‘undertakings’ for purposes of Competition Law and declared a collective agreement unlawful

Set the clock back over 100 years – The Combination Act 1799, titled An Act to prevent Unlawful Combinations of Workmen

Problematic for trade unions and their members in Ireland

Because trade union laws are not based on Rights – but are based on immunities from actions in Tort

And the CA threatened unions with ‘hard core’ cartel prosecution

Penalties

…in the case of an individual, to such a fine or to imprisonment for a term not exceeding 6 months..

…in the case of an undertaking that is not an individual, to a fine not exceeding whichever of the following amounts is the greater, namely, €4,000,000 or 10 per cent of the turnover of the undertaking in the financial year ending in the 12 months prior to the conviction, or…

Ignore all Human Rights Law

Universal Declaration of Human Rights

The right to join trade unions and the right to collective bargaining :Everyone has the right to form and to join trade unions for the protection of his interests  - (article 23.4);

European Convention on Human Rights

The European Court of Human Rights in Demir has held that freedom of association (Article 11 of ECHR) must be read to mean that it includes the right of trade unions to bargain collectively and the right of trade unions and workers to take collective action (i.e., right to strike)

The International Covenant on Civil and Political Rights

Art.22 guarantees ‘Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.’

European Social Charter

Articles 5 and 6 of the Revised European Social Charter protect the right to organise and join trade unions.  Specifically:-

Article 5 - The right to organise Everyone… their economic and social interests

and to join those organisations, … national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom....

European Charter of Fundamental Rights

Article 12 ‘Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests’ and

Article 28 Right of collective bargaining and action Workers and employers, or their respective organisations, have, in accordance with Union law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.

ILO Core Conventions

International Labour Organisation Conventions 87 and 98 of 1948-1950 relate to the right to freedom of association, the right to organise and the right to participate in collective bargaining.

Article 2 of Convention 87 provides that the right to organise is to be granted to “all workers without distinction whatsoever”.

Hope on the Horizon

Reported to ILO under supervisory framework (next step is a complaint to CFA or CE)

New legal framework in Europe -TEFU requires EU to accede to the European Convention on Human Rights;

Creating a new hierarchy Competition Law and ECJ subject to ECrtHR

Scope for unions to collaborate at EU level

Back to the Competition Authority and their Arguments

Definition in Section 3 of the Competition Acts.

‘undertaking” means a person being an individual, a body corporate or an unincorporated body of persons engaged for gain in the production, supply or distribution of goods or the provision of a service’

Definition of Illegal Agreement

Section 4 …all agreements between undertakings, decisions by associations of undertakings and concerted practices which have as their object or effect the prevention, restriction or distortion of competition in trade in any goods or services in the State … are prohibited and void, including in particular,... those which—(a) directly or indirectly fix purchase or selling prices or any other trading conditions, (b) limit or control production, markets, technical development or investment,...

An Agreement on Minimum Fees

Collective agreement made by Actors Equity SIPTU and the Institute of Advertising Practitioners in Ireland (IAPI), Entitled Agreement on Minimum Fees, (2002) which agreed the rates of pay and the conditions of employment to be provided to workers within radio, television, cinema and visual arts

All the characteristics of a collective agreement

Pay Overtime Breaks and facilities to be afforded

Collectively Bargained

Collective Agreement negotiated by

Actors Equity /SIPTU –a trade union of workers

and

Institute Advertising Practitioners in Ireland an association of employers

Weren’t there supposed to be exemptions to stop this kind of ruling?

Article [85] 81(1) of the Treaty provided for some agreements to be exempt – (declared inapplicable) in the case of:

- any agreement or category of agreements between undertakings,- any decision or category of decisions by associations of undertakings,- any concerted practice or category of concerted practices,

which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not:

(a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;

(b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question

Irelands Competition Law

‘The conditions mentioned in subsections (2) and (3) are that the agreement, decision or concerted practice or category of agreement, decision or concerted practice, having regard to all relevant market conditions, contributes to improving the production or distribution of goods or provision of services or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit and does not—(a) impose on the undertakings concerned terms which are not indispensable to the attainment of those objectives,(b) afford undertakings the possibility of eliminating competition in respect of a substantial part of the products or services in question

Exemption refused!

We made the arguments but the exemptions were not allowed;

In any event this would not have been a satisfactory was to address the problem - as prior authorisation and limits on the subject matter of collective bargaining are contrary to ILO Conventions or other instruments

So where are we now?

Raised under review of Ireland under the UPR (6th October 2011): NORWAY took the issue of collective bargaining up.

Raised at the ILO as part of the complaint to CFA

REMEMBER…

Our strong and consistently stated view is that the interpretation by the Irish Competition Authority is incorrect …

however for the avoidance of future confusion it would be of assistance the law was amended…

NUJ playing a crucial role

Secured Government commitment to amend the law

Towards Recovery … ‘We will reform the current law on employees‟ right to engage in collective bargaining (the Industrial Relations (Amendment) Act 2001), so as to ensure compliance by the State with recent judgments of the European Court of Human Rights.

Approaches? use existing definition of collective agreement ?

Collective agreements are defined in the 1946 Act as …. an agreement relating to the remuneration or the

conditions of employment of workers of any class, type or group made between a trade union of workers and an employer or trade union of employers, or made at a meeting of a joint industrial council between members of the council representatives of workers and members of the council representative of employers.

Approaches?? Redefine Undertaking??

Section 23 of the Industrial Relations Act 1990 defines “worker” as meaning

“any person aged 15 years or more who has entered into or works under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing an whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour including in particular, a psychiatric nurse employed….

Apply the Code of Practice for determining self employment?

Direction and control? Risk and reward? Can you send someone else? Determination Tools

Finally thank you for listening

Stand ready to work with you and your colleagues on this

esther.lynch@ictu.ie

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