Transcript Collective Bargaining Rights of Freelancers

Freelancers’ Collective Bargaining
Rights
Esther Lynch,
Head of Legal Affairs
Irish Congress Trade
Unions
Why is this an issue?
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Collective bargaining essential to ‘Quality
Journalism’
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The current restrictions on collective
bargaining are contrary to all human rights
standards (UDHR, ECHR, ILO)
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Danger that bad rules will spread
no soul to damn, no body to kick,“…
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Part of a developing unsatisfactory jurisprudence
that human rights can be limited by EU
‘Fundamental Freedoms’ or ‘property’ rights of
corporations
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e.g Laval, Walmart, Ryanair
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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 Committee on Freedom of
Association as part of our complaint
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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
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
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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,
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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!
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We made the arguments but the exemptions
were not allowed;
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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?
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Direction and control?
Risk and reward?
Can you send someone else?
Determination
Tools
Finally thank you for listening
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