False Self Employment

Competition (Amendment) Act 2017

A ‘false self-employed worker’ means an individual who—

• performs for a person (‘other person’), under a contract (whether express or implied and if express, whether orally or in writing), the same activity or service as an employee of the other person,
• has a relationship of subordination in relation to the other person for the duration of the contractual relationship,
• is required to follow the instructions of the other person regarding the time, place and content of his or her work,
• does not share in the other person’s commercial risk,
• has no independence as regards the determination of the time schedule, place and manner of performing the tasks assigned to him or her, and
• for the duration of the contractual relationship, forms an integral part of the other person’s undertaking;

A ‘fully dependent self-employed worker’ means an individual—

• who performs services for another person (whether or not the person for whom the service is being performed is also an employer of employees) under a contract (whether express or implied, and if express, whether orally or in writing), and
• whose main income in respect of the performance of such services under contract is derived from not more than 2 persons;

‘relevant category of self-employed worker’ means—

• Actors engaged as voice-over actors
• Musicians engaged as session musicians
• Journalists engaged as freelance journalists”.
• class of false self-employed worker or fully dependent self- employed worker specified in an order made by the Minister

The Competition Act does not apply to collective bargaining and agreements in respect of the above  category of self-employed worker.

Trade Union Application

A trade union which represents a class of—

• false self-employed worker, or
• fully dependent self-employed worker,

may, for the purposes of collective bargaining and agreements on behalf of the class of worker so represented, apply to the Minister, to prescribe such class of false self-employed worker or fully dependent self-employed worker for these purposes.

An application by a trade union shall be made in the manner specified by the Minister and shall be accompanied by evidence to show the that the class of false self-employed worker or fully dependent self-employed worker, as the case may be, the subject of the application, falls within the definition of false self-employed worker or fully dependent self-employed worker, as the case may be.

Requirements

The must show that the prescribing of such class of false self-employed worker or fully dependent self-employed worker, as the case may be—

• will have no or minimal economic effect on the market in which the class of self-employed worker concerned operates,
• will not lead to or result in significant costs to the State, and
• will not otherwise contravene the requirements of this Act or any other enactment or rule of law (including the law in relation to the European Union) relating to the prohibition on the prevention, restriction or distortion of competition in trade in any goods or services.

Where the Minister is satisfied as to the matters referred to and  that it is appropriate to do so,he or she may prescribe by order the class of false self-employed worker or fully dependent self-employed worker, as the case may be, as a relevant category of self-employed worker.

Where the Minister is not satisfied, he or she shall refuse an application.

Order

An order may only be made after consultation by the Minister with—

• such other Minister of the Government who, in the opinion of the Minister, having regard to the functions of that other Minister of the Government, ought to be consulted, and
• any other person or body who, in the opinion of the Minister, having regard to the functions of that other person or body, ought to be consulted.

Where a class of false self-employed worker or fully dependent self- employed worker has been prescribed by the Minister under this section and, since the making of the order—

• the market conditions or circumstances which pertained to the making of that order have changed substantially, or
• new information relevant to the application which was the subject of the order becomes available to the Minister,

the Minister may, if he or she is of the opinion that it is no longer appropriate for the class of false self-employed worker or fully dependent self-employed worker concerned to be so prescribed, revoke the prescription of the relevant category of self-employed worker by order.

Making Order

Whenever the Minister proposes to make an order he or she—

• shall inform in writing the trade union who made the application concerned of the proposal and of the reasons for it and he or she may specify a period for the making of a submission
• may invite such other persons as he or she considers appropriate to make submissions in respect of his or her proposal within such a period as he or she may specify,
• shall, in a case where the Minister consulted another Minister of the Government or other person or body in respect of the making of an order the subject of the proposal, consult with that Minister of the Government or person or body in respect of the proposal concerned, and
• shall cause notice of the proposal to be published on the Department’s website and in one national newspaper circulating within the State.

A trade union notified or other person or body referred to may make a submission to the Minister within the period (if any) specified by the Minister), as may be appropriate, regarding the proposal setting out the reasons why the order should or should not be made.

The Minister shall consider any submission made to him or her before making an order. ) Where the Minister makes an order, he or she shall cause notice of the making of the order to be published on the Department’s website and in one national newspaper circulating within the State.”.