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NUJ welcomes Seanad move on freelance rights

6 July 2016

A significant hurdle in the battle for freelance rights in Ireland has been overcome with the all-party acceptance, at committee stage, of the Competition (Amendment) Bill tabled by Senator Ivana Bacik.

The bill, if eventually accepted, would end the legal impediment to freelance journalists being barred from collective representation by trade unions. It returns to the Seanad after the summer recess and would have to be approved by Dáil Éireann.

The Competition (Amendment) Bill 2016 is aimed at exempting some freelance or so called atypical workers from competition law, which has been used in Ireland to stop unions negotiating freelance rates or even publishing proposed fees. It has received widespread political support.

Séamus Dooley, Irish Secretary,  said vulnerable freelance workers, including reporters, photographers, and voice over actors and session musicians, have been abandoned for over a decade as successive governments refused to honour special commitments made in social partnership negotiations. He said:

“While the Committee stage is one step on a long journey it is a chink of light for workers who have long been abandoned by politicians, exploited by media organisations and denied protection by the Competition Authority.

“The authority relentlessly pursued a case against voice-over actors and their union and union officials were forced to agree not to represent their members or face a criminal conviction. It deemed collective negotiations as “price fixing”. A great deal of public money was spent on preventing freelances from being treated as workers while the shenanigans of financial institutions and powerful vested interests were ignored.”

Michelle Stanistreet, NUJ general secretary, paid tribute to Irish NUJ members who, with SIPTU and the ICTU, have worked over many years to demand legal protection. She acknowledged the support of Senator Ivana Bacik and her colleague Senator Ged Nash and also paid tribute to senators from all sides of the house who had responded positively to the comprehensive NUJ lobbying campaign.

You can see the Seanad debate here.

Background: 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 the 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 (No.E/04/002 of 2004) of 31 August 2004, was that the collective agreement was in breach of s.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 statements 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 consequence 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 Regional Newspapers and Printers 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 a 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 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. 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 Bill seeks to address the problem created by the Competition Authority, now known as the Consumer and Protection Commission and I am seeking your support.

Tags: , ireland, freelance, workers' rights, Competition (Amendment) Bill 2016, photographers, SIPTU, ICTU