By 8 September 2017 at the latest, voice over actors, session musicians and freelance journalists will be free to bargain collectively with employers in relation to working conditions and terms of employment.
Currently these workers are prohibited from acting collectively by a decade old decision of the Competition Authority which concluded that such arrangements were anti-competitive.
The Competition (Amendment) Act 2017 (“the 2017 Act”), also provides a mechanism to enable other groups of workers to bargain collectively in the future.
New categories of worker in the 2017 Act
The 2017 Act introduces new categories of a “false self-employed worker” and a “fully dependant self-employed worker”. The criteria to identify whether workers which fall into either of these categories are set out in the 2017 Act.
The 2017 Act provides that trade unions may apply to the Minister for Jobs, Enterprise and Innovation to permit groups of self-employed workers who come within the above definitions, to act collectively. The Minister will make his/her decision, after consultation with other Government Ministers, and any other person or body the Minister considers ought to be consulted. It is not clear, yet, what role employers will play, if any, in this consultation process, as they are not specifically referred to in the 2017 Act.
Likewise, the 2017 Act does not state how an application is to be made, only that the Minister will specify separately how the process will work.
The Minister for Jobs, Enterprise and Innovation has said that “the Act provides a fine balance in meeting the stated objectives underpinning it whilst, at the same time, remaining consistent with competition law”.
SIPTU has stated that “unions will utilise this new legislation in a drive to organise workers employed in freelance arrangements so they can collectively achieve a better deal for themselves”.
Implications for Employers
For the first time, there is a statutory definition in Irish law of what constitutes “false” or “full” self-employment. While these definitions do not extend beyond the 2017 Act, they will likely be relied on in disputes over whether a worker is actually an employee rather than an independent contractor.
From the employer’s perspective, the immediate pool of workers affected by the 2017 Act is small, being limited to voice over actors, session musicians and freelance journalists. If, and when this pool is enlarged, employers may begin to notice the effects of the 2017 Act.
The Minister will not approve an application by a trade union where to do so would have more than a minimal effect on the relevant market, lead to or result in significant costs to the State, or otherwise contravene Irish or EU competition law.
Contributed by Alicia Compton & Jeffrey Greene
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