Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Ireland (Ratification: 1955)

The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous comments.

The Committee takes note of the observations provided by the Irish Congress of Trade Unions (ICTU) in a communication received on 21 September 2015.

Article 4 of the Convention. Promotion of collective bargaining. The Committee notes with interest the information provided by the ICTU that a significant step was taken with the introduction of the Industrial Relations (Amendment) Act 2015 (No. 27), which entered into force on 1 August 2015. According to the ICTU, the Act provides for the reintroduction of a mechanism for the registration of employment agreements between an employer or employers and trade unions governing remuneration and conditions of employment in individual enterprises. The ICTU also states that the Act addresses some of the issues it had raised in a complaint before the Committee on Freedom of Association (Case No. 2780). The Committee welcomes this development and trusts that the introduction of these amendments will foster an improved framework for the promotion of collective bargaining in accordance with the Convention.

Self-employed workers. In its previous comments, the Committee had requested the Government to provide comments on the observations made by the ICTU in relation to restrictions on the right to organize and bargain collectively introduced by the Competition Authority of Ireland. The Committee recalled that the ICTU had stated that the Competition Authority had decided that the provisions of the Competition Act 2002 overruled the provisions of the Industrial Relations Act and had declared unlawful a collective agreement between Equity/SITP and the Institute of Advertising Practitioners that fixes rates of pay and conditions of employment for workers within radio, television, cinema and the visual arts. The Committee had noted the Government’s indication that, during the course of the social partnership talks in 2008, it committed itself to introducing legislation amending section 4 of the Competition Act to the effect that certain categories of vulnerable workers, formerly or currently covered by collective agreements, when engaging in collective bargaining, would be excluded from the prohibition in section 4 of the Competition Act. The Government subsequently added however that this commitment was overtaken by the EU/International Monetary Fund (IMF) Programme of Financial Support for Ireland in which it had been agreed that no further exemptions to the competition law framework would be granted unless they were entirely consistent with the goals of the EU/IMF Programme and the needs of the economy. The Committee had trusted that the Government would pursue its review of the Act with the social partners in accordance with its previous commitment and requested it to provide information on progress made in this regard.

The Committee notes that the ICTU continues to raise its concerns that this matter has not been resolved. In 2015, and in light of a recent decision emanating from the European Court of Justice (FNV Kunsten Informatie en Media v. Staat der Nederlanden, of 4 December 2014), the ICTU had requested the Competition Authority to reconsider its decision. The Authority nevertheless upheld its decision despite the concerns of the ICTU that there were increasing categories of self-employed workers who, due to the Authority’s decision, find themselves classed as “undertakings” and hence excluded from the right to collective bargaining. This included actors, freelance journalists, writers, photographers, musicians, dancers, performers, models, bricklayers and other skilled trades in the construction industry. The ICTU explains that it does not dispute that competition law should preclude price fixing agreements among cartels of businesses. The ICTU maintains, however, that, in order to protect legitimate collective bargaining, there needs to be a workable distinction between the sole-trade carrying on a business and a worker in the everyday sense of the word who is in a position of subordination.

The Committee recalls that Article 4 of the Convention establishes the principle of free and voluntary collective bargaining and the autonomy of the bargaining parties with respect to all workers and employers covered by the Convention. As regards the self-employed, the Committee recalls, in its 2012 General Survey on the fundamental Conventions, paragraph 209, that the right to collective bargaining should also cover organizations representing the self-employed. The Committee is nevertheless aware that the mechanisms for collective bargaining in traditional workplace relationships may not be adapted to the specific circumstances and conditions in which the self-employed work. The Committee therefore invites the Government to hold consultations with all the parties concerned with the aim of limiting the restrictions to collective bargaining that have been created by the Competition Authority’s decision, so as to ensure that self-employed workers may bargain collectively. To this end, the Committee suggests that the Government and the social partners concerned may wish to identify the particularities of self-employed workers that have a bearing on collective bargaining, so as to develop specific collective bargaining mechanisms relevant to them.