Irish freelances shorten the road to the promised land

POLITICAL DRAMA has rarely been so feverish. An unpredicted referendum result dashes economic certainty, fratricide grips two major parties, and the competence of government, civil service and military is found wanting by Sir John Chilcot.

From bus queues to boardrooms, these seismic narratives have gripped citizen pundits. Nevertheless, mapping the likely impact of such extraordinary events to everyday life seems more elusive than ever. The triumphs and travails of today's big beasts take place on a plane similar to that occupied by the ancient Greek's gods - compelling but remote.

But an apparently modest series of events across the Irish sea shows that politics need not always be a distant spectacle. On Wednesday (6 July 2016), the Parliament's second chamber, the Seanad, gave its approval, at committee stage, to the Competition Amendment Bill. What is significant is that the Seanad, the Upper House of Ireland's parliament, did not divide on the legislation and the Irish trade union movement secured the support of all the political parties.

Seanad screenshot

Ivana Bacik introducing her Bill

Doing so it makes almost certain that a pernicious 2004 ruling by the Irish Competition Authority will no longer prevent unions providing rudimentary support for freelance members. In particular, it should allow the NUJ as well as representatives of musicians and actors to publish fees guides to try and enforce the very lowest rates that skilled creative workers should accept.

I say "almost" because the Irish Government has signalled that it will table technical amendments at Report stage - and then it goes to the Dáil. But there is every reason to believe there will be consensus on the nature of the amendments and both the NUJ and the Services Industrial Professional and Technical Union (SIPTU) will be working with the politicians in advance of the Report stage.

For the full background to this, I defer to my colleague, the NUJ's Irish Secretary, Séamus Dooley, whose briefing is reproduced below, with his permission.

What Dooley's admirable modesty leaves unsaid, though, is the extraordinary work that has brought Ireland's legislators to this point.

From the moment this ruling was handed down, the affected unions did their utmost to unpick its consequences. Legal opinions were sought. Lobbying commenced. International allies were brought on board. In 2006, Michael D Higgins, today Ireland's president, introduced a Private Member's Bill that would have returned to freelance workers the rights that they were denied. It failed. A further attempt in 2012 also faltered when the Troika (European Union, European Central Bank and the International Monetary Fund) were invoked to deny the unions.

Throughout, the NUJ and others maintained the pressure: charming, arguing and arm-twisting in equal measure.

The debate's most significant point came when Ireland's Minister for Jobs, Enterprise and Innovation, Mary Mitchell O'Connor (of the Fine Gael party) signalled her Government's acceptance of the Bill. "The whole house can agree to the principle of protection for vulnerable freelance workers", she said, at the same time as agreeing an October slot in Government time when the Bill's Report stage could be heard.

[NUJ President Tim Dawson; © Lucy Adams]

Preceding her contribution, a range of senators from across Irish life gave universally effusive praise for freelances, and the importance of their being represented by trades unions. (You can watch them 42 minutes into this video.)

Ivana Bacik, introducing her Bill, said it was needed to ensure "the right to collectively bargain for vulnerable workers who are freelance, particularly those in the arts, creative and media sectors." Setting a minimum floor for fees will impact on the incomes and lives of thousands of freelance workers.

Paul Gavan, a Sinn Fein senator, acknowledged how this point had been reached: the trades unions "have done a hell of a job building a concerted campaign over a number of years to build the case for justice," he said.

To be clear, issues remain before Erin can be unveiled as a freelances' paradise. The Government's amendments will require scrutiny, the Bill's application could fall short of trades unions' aspirations and employers may prove dogged in refusing our rights.

But for those of us inured to the lack of representation of freelance workers in British civic life it is an enchanting tableau. The very idea that the UK's parliaments might give such consideration to our issues, much less debate so sympathetically about freelance concerns, has the quality of a fairy tale.

For so dire a situation as was faced in Ireland to be reversed, however, should stand as inspiration to all of us who campaign for fair treatment for freelances. Determination, tenacity and imagination has driven the campaign for Irish freelance rights. It is the application of these - the secret weapons of trades unionism - that have got them to this point. Within a year, real changes in at least some freelance workers' lives should be evident.

The lobbying and letter-writing that have propelled this campaign is the stuff of politics that clearly links citizen actions with outcomes that will improve scores of journalists' lives. For everyone who despairs of politics, or wonders how the leadership of this or that party will impact on them, it should be a clarion call. Raise issues during elections, tell legislators what you think of their actions and write to government ministers. Immediate results are few, but with time, discipline and determination, our demands will prove irresistible.

The briefing

The Competiton Bill is an attempt to restore to our freelance members their right, as workers, to be collectively represented by their trade union for the purpose of collective bargaining. As earnings are slashed freelance workers continue to be exploited.

The Bill would, if adopted, make good the commitment made in Towards 2016: The 10-Year Framework Social Partnership Agreement and assist in preventing the ongoing decline in the pay and conditions of many workers in the media, arts and cultural sectors.

The Bill was first tabled on 20 January 2016 by Senator Ivana Bacik and was unopposed at Second Stage by the then Minister for Enterprise and Employment, Richard Bruton.

A key issue is the insistence by the former Competition Authority, supported by the competition division of the Department of Enterprise and Employment, that competition law takes precedence over the rights of workers.

At the recent general assembly of the International Labour Organization (ILO) the Irish government representative implied that European Competition law was a barrier to granting any exemption to freelance workers. No evidence has been produced to support this claim and in fact we are advised by the European Trade Union Confederation (ETUC) that this does not accord with their understanding, based on regular briefings from the European Commission.

Senator Bacik's Bill was not opposed by Mr Bruton on the basis of a cabinet decision, which would not have been taken without the advice of the Attorney General (who would have advised the Government on the legal implications or impediments in respect of the Bill).

The NUJ campaigned for freelance workers to have their full rights to collective representation and bargaining restored. There is no evidence that the removal of that right, as a result of the actions of the Irish Competition Authority, has benefitted the consumer or that restoration of that right would have a deleterious impact on the Irish or European economy. On the other hand there is ample evidence that freelance journalists have suffered a massive decline in their income and this has had a negative impact both on the individual journalists and on the industry.

At the ILO recently the Irish Government's line was that nothing in the Competition Authority interpretation prevented freelances from being represented on matters other than earnings. This was a fundamental misrepresentation of the position of freelance workers.

Without the power to be collectively represented freelances cannot even have access to a fees guide or on the rate to charge for their work.

The background to this case

For many years trade unions represented freelance workers and negotiated with employers directly or through employer groups on their behalf. The loss of the right to bargain, to collectively represent and even to publish fees guides stems from the investigation by the Competition Authority of a collective agreement between Equity/Siptu and Institute of Advertising Practitioners.

The Institute of Advertising Practitioners in Ireland is the employers' association representing advertising agencies which hire actors for voice-overs for adverts subsequently broadcast on radio, television and film.

The collective agreement set minimum rates of payment and other conditions of work (including rest breaks and overtime rates) for actors employed to perform voice-overs for radio, television and film adverts.

The decision of the Competition Authority on 31 August 2004 (No.E/04/002 of 2004) was that the collective agreement was in breach of section 4 of the Competition Act 2002 for the exclusive reason that each actor was considered to be a business "undertaking" and it is unlawful for undertakings to agree to fix prices for the sale of their services.

The Competition Authority threatened to fine EQUITY/SIPTU up to €4m if it sought to use the collective agreement and so they signed - under duress - an undertaking drawn up by the Competition Authority which precluded use of the collective agreement. The Institute of Advertising Practitioners of Ireland was also obliged to sign a similar undertaking (on 24 August 2004).

In public statement and in parliament it has been frequently stated that the union involved signed an agreement not to enter into collective bargaining. This was not a voluntary agreement. The consequences of not signing was a criminal conviction, with grave personal consequences for the union officials involved.

The decision of the Competition authority affected other trade unions representing self-employed workers in Ireland. The National Union of Journalists (NUJ) represents (amongst others) freelance journalists and photographers. A "freelance" is a self-employed worker who sells each piece of writing or photograph to a media corporation where it may be published (alongside articles and photographs by employees of the media company). There has been a long-standing collective agreement between the NUJ and the Provincial Newspapers Association of Ireland ("RNPAI", an employers' association consisting of Irish newspaper publishers now known as Local Ireland). Collective bargaining took place from time to time to set rates for payment by Irish regional newspapers for articles and photographs bought by them.

The NUJ published an Irish Freelance Fees Guide reflecting the agreed rates and it was used by both the freelances and the employers to establish the appropriate rate for an article or photograph. The arrangement worked well and ensured that competition was on quality of work rather than lowest payment. In consequence the employers received high quality photographs and articles from the photographers and journalists in return for which those who were good were able to make a decent income.

After the decision of the Competition Authority in relation to the voice-over actors the RNPAI refused to negotiate with the NUJ. So did the owners of individual national and regional newspaper titles. The reason given was that to do so would be in breach of competition law and would place the companies at risk of prosecution. The NUJ were also informed that further publication of the Freelance Fees Guide would constitute a criminal conspiracy which would leave the NUJ open to prosecution.

Despite numerous requests from the Irish Congress of Trade Unions (ICTU) to the Competition Authority to alter its position, they have consistently upheld the original decision. The "National Social Partner Agreement" (Towards 2016: Review and Transitional Agreement 2008-9) tripartite negotiations between government, employers and unions however reached an agreement which provided, amongst other things, for an amendment to the Competition Act:

to exclude certain categories of self-employed workers (freelance journalists, session musicians or voice-over actors) from the provisions of the Competition Act 2002.

Consequently, we believed that an amendment of the Competition Act would follow and allow collective agreements for such workers to become effective again. Unfortunately in 2012 negotiations broke down (over unrelated matters) and no relevant amendment to the Act was made.

As far as the ICTU and Irish trade unions are concerned this is a solemn commitment which remains to be honoured. In 2012 Congress wrote to the Minister for Jobs, Enterprise and Innovation seeking an exemption from the Competition Act in relation to the collective agreement in question. However, it was explained to us that the Memorandum of Understanding imposed by the TROIKA (the European Commission, the European Central Bank and the International Monetary Fund) on Ireland as a condition of financial support, precluded the Irish State from granting any further exemption from the Competition Act unless the exemption was "entirely consistent with the goals of the EU/IMF Programme and the needs of the economy." The letter made clear that the TROIKA "would not support the envisaged exceptions." The letter continued: The intention of the EU/IMF commitment is to avoid a circumvention of competition law by undertakings and by associations of undertakings on their behalf and not to cut across ILO conventions and human rights". The European Commission subsequently confirmed to us that EU law would not permit self-employed workers to exercise the right to bargain collectively.

Since then we have had the Court of Justice of the European Union (CJEU) judgment in FNV Kunsten Informatie en Media v Staat der Nederlanden, Case C-413/13 which mitigated the rule that every self-employed worker is an undertaking, so that a collective agreement in respect of them was contrary to EU competition law. (See Freelance March 2015) Despite this, the Competition Authority has stated that it is upholding its original decision and rejecting the notion that the actors could be regarded as other than undertakings.

This Competition Bill seeks to address the problem created by the Competition Authority, now known as the Consumer and Protection Commission.