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The Government provided the following written information.

With reference to previous detailed reports from Ireland on the Convention, there has been no significant change in the implementation of the Convention since the previous report was submitted in 2011. The Government, however, outlines recent developments and progress with the enactment of the Industrial Relations (Amendment) Act 2015, which came into effect on 1 August 2015. Enactment marked the fulfilment of the commitment in the Programme for Government to reform the current law on employees’ right to engage in collective bargaining in order to ensure compliance by the State with recent judgments of the European Court of Human Rights. The legislation provides a clear and balanced mechanism by which the fairness of the employment conditions of workers in their totality can be assessed in employments where collective bargaining does not take place and will bring clarity and certainty for employers in terms of managing their workplaces in this respect. It also explicitly prohibits the use of inducements by employers to persuade employees to forgo collective bargaining representation and will provide strong protections for workers who invoke the provisions of the 2001/2004 Industrial Relations Acts or who have acted as a witness or a comparator for the purposes of those Acts. Enactment of the legislation follows a lengthy consultation process involving extensive engagement with stakeholders with a view to putting in place an effective and practical solution to all concerned. The legislation ensures the retention of Ireland’s voluntary system of industrial relations, but it also means that where an employer chooses not to engage in collective bargaining either with a trade union or an internal “excepted body”, and where the number of employees on whose behalf the matter is being pursued is not insignificant, the 2001 Act was remediated to ensure that an effective framework exists which allows a trade union to have the remuneration and terms and conditions of its members in that employment assessed against relevant comparators and determined by the Labour Court, if necessary.

The legislation ensures that where an employer is engaged in collective bargaining with an internal “excepted body”, as opposed to a trade union, that body must satisfy the Labour Court as to its independence of the employer. Specifically, the legislation includes: a definition of what constitutes “collective bargaining”; provisions to help the Labour Court identify if internal bargaining bodies are genuinely independent of their employer and not under their domination or control; bringing clarity to the requirements to be met by a trade union advancing a claim under the Act; setting out the policies and principles for the Labour Court to follow when assessing those workers’ terms and conditions, including the sustainability of the employers business in the long-term; new provisions to ensure cases dealt with are ones where the numbers of workers are not insignificant; provisions to ensure remuneration, terms and conditions are looked at in their totality; provisions to ensure that there is some management of the permitted frequency of reassessment of the same issues; and enhanced protection by way of interim relief in the case of dismissal for workers who may feel that they are being victimized for exercising their rights under the proposed legislation. An explicit prohibition on the use by employers of inducements (financial or otherwise) designed specifically to have staff forgo collective representation by a trade union was introduced with the adoption of a statutory Code of Practice on Victimisation on 28 October 2015.

In relation to the competition issue referred to by the Committee, under both European Union (EU) and Irish competition legislation, self-employed persons are regarded as “undertakings”. There is ample evidence of EU case law at the Court of Justice of the European Union (CJEU), which has determined that such workers are regarded as undertakings from an EU competition law angle. Section 4 of the Irish Competition Act 2002 prohibits and makes void all agreements between undertakings, decisions by bodies representing 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 or in any part of the State. This reflects the provisions of Article 101 of the Treaty on the Functioning of the EU (TFEU), which contains a similar prohibition in relation to agreements, decisions and concerted practices, which may affect trade between Member States. The current situation is that representative bodies and self-employed persons acting collectively cannot decide on the fees for services provided by them nor can they collectively agree a price between themselves for their services, as this is regarded as price fixing contrary to the Competition Act 2002. Competition law does not prohibit consultation with undertakings (or their representatives) as long as the power to ultimately set the price does not lie with that collective group. Under EU law, a worker, within the meaning of Article 45 of the TFEU is a person who, for a certain period of time, performs services for and under the direction of another person, in return for which he or she receives remuneration and such a person is not an undertaking. However, the formal classification under national law of a person as “self-employed” does not exclude the possibility that the person is a worker within the meaning of Article 45 of the TFEU. Accordingly, a person will not be considered to be an undertaking for the purposes of EU competition law where the nature of his or her work is such that he or she becomes incorporated into the undertakings for which he or she is engaged to provide services thus forming an economic unit with those undertakings. In this context, the right of employees to be represented by trade unions is not disputed. Under the Towards 2016 Social Partnership Agreement, the (then) Government agreed to the following:

9.6. The Government is committed to introducing amending legislation in 2009 to exclude voice-over actors, freelance journalists and session musicians, being categories of workers formerly or currently covered by collective agreements, when engaging in collective bargaining, from the provisions of Section 4 of the Competition Act, 2002, taking into account, inter alia, that there would be negligible negative impacts on the economy or on the level of competition, and having regard to the specific attributes and nature of the work involved subject to consistency with EU competition rules.

Since that commitment was entered into, the EU–International Monetary Fund Programme of Financial Support for Ireland was agreed. The Memorandum of Understanding under the EU–IMF Programme of Financial Support for Ireland committed Irish authorities to: Ensure that no further exemptions to the competition law framework will be granted unless they are entirely consistent with the goals of the EU–IMF Programme and the needs of the economy. No such exemptions were granted. There are no plans to introduce such exemptions, especially in light of the post-programme surveillance process that is currently in place. Following on from the CJEU Dutch Musicians judgment, December 2014 in FNV Kunsten Informatic en Madie v Netherlands, the Competition and Consumer Protection Commission was asked if, in light of the judgment, the Commission needed to revise Decision (No. E/04022): Restriction on the Right of Self Employed Workers to Collectively Bargain Through a Trade Union, dated 31 August 2004. The Commission concluded, having fully considered the matter, that the Authority’s analysis and conclusion of the Decision (No. E/04022) remained consistent with Irish competition law as interpreted in the light of the relevant principles of the EU competition law set out by the CJEU in its Dutch Musicians judgment.

In addition, before the Committee, a Government representative affirmed that his Government took its ILO obligations very seriously. Ireland had ratified all eight fundamental Conventions and a number of other important ones, including the Domestic Workers Convention, 2011 (No. 189). In 2015, the Government had completed several legislative and administrative reforms regarding its employment and industrial relations framework. In this same period, it had also made great progress in submitting outstanding reports to the Office; regrettably, the report on Convention No. 98 had been submitted in April 2016, too late for the Committee of Experts’ examination. He said that the Government had met representatives of the social partners to discuss the present case. He recalled that two issues had originally been raised relating to the application of the Convention. The first concerned the promotion of collective bargaining, in light of an Irish Supreme Court case involving Ryanair that was the subject of a complaint to the Committee on Freedom of Association. In this respect, significant work over the past few years, following extensive and positive engagement with the social partners, had resulted in important legislative developments. These developments greatly enhanced the rights of employees to collectively bargain with their employer and to access the State’s workplace relations machinery in order to vindicate their rights. In 2015, a new Industrial Relations Act had been enacted which provided for a number of important reforms. The Act strengthened the statutory Code of Practice on Victimization to explicitly prohibit inducements to forego trade union representation. It reaffirmed compliance with recent judgments of the European Court of Human Rights and addressed the issues raised by the ILO Committee on Freedom of Association in the context of the complaint arising out of the Supreme Court’s Ryanair case. Moreover, the Act significantly strengthened the position of workers and trade unions to improve the terms and conditions of members in instances where collective bargaining was not engaged in by the employer; in such situations it ensured that workers, aided by their union, could advance claims regarding pay and other terms and have these be determined by the Labour Court based on comparisons with similar companies. The reforms also included strong anti-victimization measures and new interim relief through the Irish Circuit Court pending the determination of a claim for unfair dismissal. The Industrial Relations Act provided for the reinstatement of collectively bargained Registered Employment Agreements at enterprise level, and for new Sectoral Employment Orders to give full statutory backing to sector-specific remuneration, sick pay schemes and pension schemes for specified classes, groups and categories of workers. The Government had noted with satisfaction the comments of the Committee of Experts’ on this legislation. A further significant development was the adoption in 2015, of the Workplace Relations Act, which had delivered Ireland’s most ambitious reform programme ever with regard to the State’s workplace relations machinery. The Act streamlined five workplace relations bodies into just two, greatly simplifying the system and facilitating access for those seeking to vindicate their rights. It also provided for enhanced compliance measures. Yet another law enacted last in 2015 was the National Minimum Wage (Low Pay Commission) Act, which placed the Low Pay Commission on a statutory footing. The Commission was mandated to make recommendations to the Minister for Jobs, Enterprise and Innovation on a minimum wage that was fair and sustainable, and when appropriate, was adjusted incrementally. It was clear from the above summary of developments that the Government was actively ensuring a comprehensive and up-to-date legal framework for employment rights and industrial relations.

The second issue regarding the application of the Convention concerned a decision made in 2004 by the then-Irish Competition Authority (now the Competition and Consumer Protection Commission), which was the statutorily independent authority in Ireland mandated to enforce both Irish and EU competition law. The decision concerned the application of the Irish Competition Act of 2002 to an agreement made between the trade union Irish EQUITY/SIPTU (on behalf of self-employed actors working as voice-over artists) and the Institute of Advertising Practitioners in Ireland (on behalf of advertising agencies). The Competition Authority had held that the agreement in question was in breach of competition law, as it established the level of fees for services rendered and so constituted price-setting contrary to the Competition Act. The self-employed workers in this case were deemed to be “undertakings” within the meaning of the Competition Act. The setting of prices by an association of undertakings ran counter to EU and national competition law. Following the Authority’s investigation, Irish EQUITY and the Institute had undertaken not to enter into or implement any agreement that directly or indirectly fixed the fees that the Institute or its members paid to self-employed actors. Neither party had challenged the Authority’s decision in court at that time, or since. He stressed that in its decision the Competition Authority stated that, while it was perfectly legal for a trade union to represent employees in collective bargaining with their employers, its trade union mantle could not exempt its conduct when it acts as a trade association for self-employed contractors in the area of price setting. This did not preclude, however, anyone from representing self-employed workers with respect to terms of work other than price setting. The decision thus related to the setting of fees by an association of self-employed actors deemed to be undertakings. It also related to an association of undertakings contracting those self-employed workers. He added that a corollary of this decision, was that a group or association of contractors could not set the level of fees to be earned by the self-employed. Additionally, under both Irish and EU competition law, self-employed persons, including professionals who were not employees, were regarded as undertakings, and there was ample case law in the CJEU supporting this position. The Government recognized that there could be instances where self-employed workers could be regarded as being in a situation comparable to employment, often referred to as false self-employment, as was the case in the Dutch Musicians judgment of December 2014 relating to self-employed substitute orchestral musicians. The musicians in that case were part of a trade union, and had argued that they had been excluded from minimum fee provisions under a collective agreement they had formerly enjoyed. The CJEU judgment emphasized that self-employed service providers were undertakings, and thus subject to competition law. The CJEU had also acknowledged that it was important to examine in each case whether individuals who appeared to be self-employed should in fact be categorized as “falsely self-employed”, who would in reality be employees who should not be subject to competition law. The Court had made it clear that it was for national courts to examine the facts of particular cases in order to determine whether an individual should be classified as a “false self-employed” or truly self-employed person. In light of the CJEU’s decision, the Irish Congress of Trade Unions and the then-Minister for Business and Employment had asked the Competition and Consumer Protection Commission to review the 2004 decision. The Commission had carefully considered the case and was satisfied that the CJEU judgment constituted a re-statement of well-established principles of EU law. It had also considered that the analysis and conclusions of the former Competition Authority in 2004 remained consistent with the relevant principles of EU competition law set out in the CJEU judgment. It had further acknowledged that, had the undertaking in the 2004 case been proven to be “false self-employed”, then a different conclusion would have emerged. Referring to the EU–IMF Programme of Financial Support for Ireland, he indicated that, pursuant to the Memorandum of Understanding, the agreement of the Troika had to be sought in advance of any initiatives that might potentially impinge on the fulfilment of the Programme’s objectives. The Troika, and in particular the EU Commission, were fully aware of the Government’s commitments to exempt voice-over actors, freelance journalists and session musicians. The EU Commission had been consulted on two separate occasions on draft legislation which sought to limit the application of the Competition Act in order to establish rights for self-employed workers to be represented by trade unions for the purposes of collective bargaining, and on both occasions it had indicated that it saw no need for exemptions to the competition law. He said that the Government recognized the need to protect vulnerable workers. Ireland had a well-resourced labour inspectorate, equipped to identify and address issues of false self-employment. He further acknowledged that, notwithstanding the fact that the case under examination concerned Irish and EU competition law, it also raised wider issues relating to the protection of particular groups of workers and noted that the issue of the false self-employed presented very real challenges. The Government looked forward to future discussions on these issues, and in this connection welcomed the consultations recently launched by the European Commission on a European pillar of social rights, which aimed to address the gaps in rights and protections for vulnerable self-employed and other workers in atypical situations. Concerning the illegality of price setting, he warned of the danger of applying the particular to the general. The illegality of price setting was not an all-encompassing restriction, and did not restrict association generally, or negotiations on other terms of work. In conclusion, he emphasized that the Government had addressed many of the issues raised in the present case through legislative and administrative reforms that resulted in a much stronger industrial relations landscape.

The Worker members noted that the present case raised fundamental questions relating to the future of work, including the placing of democracy under the supervision of international agencies and the subjugation of social justice to the imperatives of free market. In this regard, it was important to recall three principles related to the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and Convention No. 98: the right of collective bargaining was a fundamental right accepted by ILO members, simply by virtue of the fact that they belonged to the Organization, which they were obliged to respect, promote and realize in good faith. The recognition of the right to collective bargaining was of general application in both the private and public sectors, and only the armed forces, the police and public servants engaged in the administration of the State could be excluded from this right. When the outcome of collective bargaining was questioned or dismissed by a decision of the administrative authorities, employment relations were destabilized. Such interventions were not compatible with the principle of free and voluntary collective bargaining. This case concerned a collective agreement that had entered into force on 1 October 2002, which provided for the remuneration of self-employed workers in the audiovisual industry. The agreement had been declared illegal and the social partners had had to negotiate a new agreement. According to information from the Government, in European law, self-employed workers were considered businesses, in the broad sense. Under Article 101 of the TFEU, any agreements between self-employed workers and their business partners were prohibited, particularly if they had as their object or effect the prevention, restriction or distortion of competition. The Worker members were of the view that this placed a considerable restriction on self-employed workers to organize themselves collectively. In 2006, an initial direct request from the Committee of Experts, henceforth repeated many times, had referred to restrictions on the right to organize and to bargain collectively introduced by the Competition Authority of Ireland when it had declared unlawful a collective agreement between Irish EQUITY/SIPTU and the Institute of Advertising Practitioners. The Committee of Experts had noted in 2009 that the Government had committed itself to amending the legislation on competition to allow for the conclusion of collective agreements. However, the Government had not fulfilled its commitment, owing to a programme of financial support granted by the IMF, the European Commission and the European Central Bank, which prohibited it from amending the Competition Act and honouring its commitment to the social partners. The Worker members considered that the national authorities were being subordinated to the imperatives of international institutions. While some of the legislative progress noted by the Committee of Experts in 2015 was to be commended, the question of the right for self-employed workers to bargain collectively had not been settled. The Competition Authority, drawing on, inter alia, the jurisprudence of the CJEU, had affirmed that legislative provisions on competition took precedence over labour rights. This argument lacked grounds and the examination of the right by the CJEU, in conformity with economic freedoms, was too restrictive.

At the ILO, the word “worker” was used in a broader sense than in European law, and the principle of freedom of association had a universal application that covered workers and employers “without distinction whatsoever”, as stated in Article 2 of Convention No. 87. Convention No. 98, for its part, provided that, apart from organizations of categories of workers that could be excluded from the scope of the Convention, the recognition of the right to bargain collectively was a blanket provision and, as such, should cover independent workers. In the light of the case law of the Committee on Freedom of Association (Case No. 2602 concerning the Republic of Korea and Case No. 2786 concerning the Dominican Republic) and several of the ILO’s General Surveys, the proper criteria for defining the workers covered was not the existence of an employment relationship, which might be absent. Self-employed workers needed to be able to defend their interests, inter alia, by means of collective bargaining, and yet in many countries they were excluded from national legislation guaranteeing trade union rights. The fact was that self-employed workers were covered by the Conventions and were accordingly fully entitled to establish workers’ organizations and to bargain collectively. Following a request from the Irish Parliament in 2013, the European Commission had affirmed that the law of the European Union did not entitle self-employed workers to bargain collectively. Irish and European legislation on competition thus fell short of the principles of the ILO since, inasmuch as the right of competition restricted the right of self-employed workers to bargain collectively, it ran counter to Convention No. 98. As to the principles of collective bargaining, they were not respected when the Irish authorities were rendered subordinate to the imperatives of international agencies. Referring to the comments of the Committee of Experts, the Worker members recalled that although, in the name of an economic stabilization policy (i.e. for compelling reasons of national economic interest), it might be admissible for wage levels not to be fixed freely by collective bargaining, such restrictions must constitute an exceptional measure, be restricted to what was necessary and not exceed a reasonable period of time. As the Committee on Freedom of Association had pointed out, a three-year limitation on collective bargaining on wages as part of an economic stabilization policy constituted a significant restriction. The IMF, the European Commission and the Central European Bank had prohibited the Irish Government from complying with commitments it had entered into. Those measures had been in force since 2002 and the European Commission still maintained its point of view. From the standpoint of the Worker members, the reasonable period of intervention by the public authorities had long been exceeded, and the attitude of the three international institutions (the Troika) was in conflict with the right to bargain collectively. By way of conclusion, the Worker members considered that the examination of this case must not be allowed to mask the basic issue, which was that the right of a category of workers to bargain collectively should be recognized. Labour law was an interventionist law designed to regulate the economy, and refusing to apply a collective agreement because it hampered competition was tantamount to arguing in favour of complete deregulation. As the economy evolved and the number of workers with wage contracts declined, more and more people fell into the category concerned. In the twenty first century, recognizing the right of self-employed workers to bargain collectively was as important as decriminalizing trade union activities had been in the nineteenth century, and national legislation needed to adapt accordingly and to take it fully into account.

The Employer members pointed to the fact that the Convention had been ratified by Ireland in 1955, but that this was the first time that the Committee of Experts had adopted an observation and that the case had been considered by the Conference Committee. The information provided by the Government, and more specifically the adoption of employment legislation in 2015, should be welcomed. However, it was regrettable that the Government’s report on the application of the Convention had not been received in time for the last session of the Committee of Experts. As a result, no information except for the observations made by the Irish Congress of Trade Unions (ICTU) in September 2015 had been taken into account in the comments of the Committee of Experts. A first recommendation should be that the Government should submit its report without any further delay. It should be recalled that the Committee of Experts had made positive observations with regard to the introduction of the Industrial Relations (Amendment) Act 2015 and it should be welcomed that the enactment of the legislation had followed a lengthy consultation process with the social partners and extensive engagement with stakeholders. The majority of the comments of the Committee of Experts related to self-employed workers. The Committee of Experts had focused primarily on the ICTU’s observations, i.e. the categories of workers classified as “undertakings” who were therefore excluded from the right to collective bargaining. In the opinion of the Committee of Experts, organizations representing self-employed workers should also be covered by the right to collective bargaining. The Committee had also noted that the mechanisms for collective bargaining in traditional workplace relationships might not be adapted to the specific circumstances and conditions in which the self-employed work. The Committee of Experts had then invited the Government to ensure that self-employed workers could bargain collectively and develop specific collective bargaining mechanisms relevant to them. The Government had also explained that this was primarily a competition issue in both EU and Irish competition law, whereby the self-employed were considered to be “undertakings” and that, in this case, the restrictions focused on price-setting issues and did not interfere with bargaining. Ireland had a sophisticated labour relations system, including the jurisprudence to determine whether an individual was an employee or self-employed. There also existed case law of the CJEU in order to determine whether an individual should be considered a worker or self-employed. It should be recalled that Article 4 of Convention No. 98 referred to the promotion of voluntary negotiation between employers or employers’ organizations and workers’ organizations, but not to other forms of relationships (such as to independent or self-employed contractors). In their view this was a complicated issue of interaction between the principles of the Convention and EU competition law. Moreover, the Committee of Experts had only had limited information at its last session. There was insufficient information to consider this complex and very important issue of self-employed workers and collective bargaining. They therefore encouraged the Government to provide a full report for the consideration of the Committee of Experts at its meeting in 2016.

The Worker member of Ireland pointed to the observations provided by the ICTU in September 2015, including the significant step taken with the introduction of the Industrial Relations (Amendment) Act 2015. However, there were outstanding issues that needed to be addressed. An artificial distinction had been created between employees and self-employed workers, which was contrary to the proper observance of the Convention and was damaging the ability of vulnerable workers to bargain collectively on their pay and conditions of employment. In this regard, he recalled that the points of consensus adopted by the Global Dialogue Forum on Employment Relationships in the Media and Culture Sector, held in May 2014 at the ILO, called for fundamental principles and rights at work to apply to all workers in the media and culture sector, regardless of the nature of their employment relationship. He recalled that the collective agreement between Irish EQUITY/SIPTU and the Institute of Advertising Practitioners (effective from 2002 until the intervention of the Competition Authority) set minimum rates of payment and other conditions of work for actors employed to perform adverts in radio, television and the visual arts. The Competition Authority had decided that the collective agreement was in breach of section 4 of the Competition Act 2002, as each actor was considered to be a business “undertaking”, and that it was unlawful for undertakings to agree to fix prices for the sale of their services. On the threat of being fined, the two parties to the collective agreement had been obliged to agree not to make use of that collective agreement. The decision of the Competition Authority had also affected other trade unions representing self-employed workers, such as the National Union of Journalists (NUJ), which was no longer in a position to engage in collective bargaining with newspaper owners to set rates for the payment for articles and photographs, or to use the Freelance Fees Guide that it had established reflecting agreed rates for freelance work, because of the fear of the parties of being pursued for breaching competition law. Despite the CJEU judgment (Dutch Musicians) which mitigated the rule that every self-employed worker was an undertaking so that a collective agreement in respect of them was contrary to EU competition law, the Competition Authority had upheld its position. Despite the diverse efforts at the national level to exclude certain categories of self-employed workers from the scope of the Competition Act through amendments to this Act and a solemn commitment with the Government in this regard (“Towards 2016”), the Government argued the opposite. The Government had recently stated that the European Commission had advised that EU Law would not permit self-employed workers to exercise the right to bargain collectively. He emphasized that the Government could not argue that, following interpretation of EU rules, it was exempt from its obligations under ratified ILO Conventions. Such a position was contrary to a number of comments of the ILO supervisory bodies. Ireland was now ranked as the most competitive economy in the Euro area. It could hardly be argued that Ireland’s gold standard competitiveness would be undermined by a derogation for niche cultural sector workers. The economy was not so fragile that securing negotiating rights or setting minimum rates for actors and session musicians should shake the foundations of the country. In conclusion, the Committee should call on the Government to take action to be in compliance with the Convention. The agreement reached by all sides in “Towards 2016” to amend the Competition Act to exclude self-employed “workers” should be implemented; and the Government should report back in a timely manner on the progress made in this regard.

The Employer member of Ireland noted the position of the ICTU outlined in the comments of the Committee of Experts in relation to the application of the Competition Act 2002 to self-employed workers. While the right of employees to freedom of association and collective bargaining was not being disputed, she supported the view of the Competition Authority that independent contractors did not have the protection of the Industrial Relations (Amendment) Act in so far as there was a conflict with the provisions of the Competition Act. The request by the Committee of Experts for the Government to hold consultations on the Competition Authority’s decision was not understandable. Moreover, it was not understandable that the Government should review the Authority’s position in light of the Dutch Musicians case of the CJEU. If anything, that case reinforced the view that collective labour agreements only enjoyed exclusion from Article 101(1) of the TFEU when they related to terms and conditions of employees or those who were considered by a court of national competence to be “false self-employed”. The ICTU held the view that collective bargaining should cover the self-employed. However, there was nothing in the wording of the Convention to support this view. Article 4 of the Convention referred to the conclusion of collective agreements between “workers” and “employers”, which was distinct from other forms of contractual relationships, whereby a client or customer engaged the services of an independent contractor or “self-employed” person. In the latter event, the Convention did not apply. It was evident from the TFEU, the Dutch Musicians case and other sources of EU law that independent contractors had to be considered as “undertakings”, and not as “employees”. Both EU and Irish competition legislation regarded self-employed persons as “undertakings”, and there was a plethora of national and EU case law which provided direction on whether an individual was an employee or an independent contractor. The proposal of the ICTU to amend the Competition Act 2002 would be likely to bring Ireland’s competition legislation into conflict with its obligations under EU law. Such an amendment would be in direct conflict with the most recent decision of the CJEU on this very issue, which was jurisprudence by which the Irish legislature and courts were bound. The current situation was that representative bodies and self-employed persons acting collectively could not decide on the fees for services provided by them nor could they collectively agree a price between themselves for their services, as this was regarded as price-fixing contrary to section 4 of the Competition Act 2002. Amending the existing Competition Act would also have significant adverse implications for Ireland’s competitiveness. There was a reason that workers operating under a contract of employment enjoyed significant additional levels of protection in law, given the level of control usually associated with an employment relationship. An independent contractor did not face these constraints or controls. In conclusion, there was no basis in international or EU law and no legitimate justification for changing the position articulated by the Competition Authority.

The Worker member of the Netherlands recalled that the Committee of Experts had referred to the case brought by the FNV to the CJEU, which was similar to the case under discussion. The FNV had signed a collective agreement covering both musicians with a permanent contract and those that were self-employed. Following the prohibition by the Dutch Competition Authority in this regard, the FNV had made a submission to the CJEU asking whether they could organize self-employed workers and include them in their collective bargaining agreements. The Court had ruled that the collective agreement was valid. When discussing restrictions on the organizing and bargaining rights of self-employed workers, the ILO instances concerned had considered that these restrictions were contrary to the principles of freedom of association and the right to collective bargaining. For example, in Case No. 2888 concerning Poland, the Committee on Freedom of Association found that the narrow definition of “employee” in the Labour Code deemed freedom of association rights to self-employed workers. It had requested the Government to ensure that all workers and their representatives enjoyed adequate protection against acts of anti-union discrimination, regardless of whether they fell into the definition of employees under the Labour Code or not. The case of the self-employed had also been discussed during the Global Dialogue Forum on Employment Relationships in the Media and Culture Sector in 2014. Culture and media employers and workers had successfully concluded that the overly strict application of competition rules, intended to counter cartels, had in some cases resulted in the exclusion of self-employed workers from collective bargaining. Both employers and workers had agreed that this was an issue of growing concern, as it hampered the capacity of trade unions to represent creative workers and, as a result, undermined the standards that they had managed to set. The parties had agreed on points of consensus, acknowledging that fundamental principles and rights at work applied to all workers in the media and culture sector, regardless of the nature of their employment relationship, and had called on governments to ensure that competition legislation did not obstruct the right of workers in this sector to freedom of association and social dialogue. In conclusion, she called on the Government to accept that all the fundamental rights covered all workers, including to those that were self-employed.

The Government member of Spain, also speaking on behalf of the Government members of Italy and Portugal, said that, with respect to self-employed workers, the case presented two questions of great interest which had been carefully addressed by the Government. Firstly, the issues of competition and consumer rights, on which the community regulations of which also applied to other EU Member States and, secondly, the challenges that these new forms of work posed to society. With regard to defending competition and protecting consumers, within the strict limitations negotiated with the Troika within the framework of the Memorandum of Understanding on financial assistance to Ireland, the Government had sought to ensure, in line with EU legislation, that price-fixing did not prevent new agents, mainly young workers, from entering the sector. With regard to new forms of work, the Government was confronted with the problem of the so-called “false self-employed” who, as they were not subject to the regulations on competition, as they applied to businesses, could see their working conditions restricted owing to the inappropriate equation of self-employed workers with company workers. In conclusion, he indicated that Ireland had a robust system for the protection of vulnerable workers and that the debate would be followed closely, trusting that the Government would continue its dialogue with the social partners as the most effective approach for addressing these issues.

The Worker member of New Zealand, also speaking on behalf of the Worker members of Australia and the International Transport Workers Federation (ITF), referred to the events surrounding the production of the Hobbit movies in 2010, where all workers in the film industry had been consigned to contractor status in order to deny their collective bargaining rights. The issue of collective bargaining for film and television workers was well known. All working people, irrespective of whether they were employees or other workers, should be granted the basic rights of freedom of association without distinction, which necessarily included the right to bargain collectively. Both the Committee on Freedom of Association and the Committee of Experts backed this view. In Case No. 2786 regarding the Dominican Republic, the Committee on Freedom of Association had asked the Government: (i) to ensure that “self-employed” workers fully enjoyed freedom of association rights, in particular the right to join organizations of their own choosing; (ii) to hold consultations to this end with all the parties involved with the aim of finding a mutually acceptable solution so as to ensure that workers who were self-employed could fully enjoy trade union rights for the purpose of furthering and defending their interest, including by the means of collective bargaining; and (iii) in consultation with the social partners concerned, to identify the particularities of self-employed workers that had a bearing on collective bargaining so as to develop specific collective bargaining mechanisms relevant to self-employed workers, if appropriate. In paragraph 209 of the 2012 General Survey concerning fundamental principles and rights at work, the Committee of Experts stated that the right to collective bargaining needed to be extended to organizations representing (among others) self-employed workers, temporary workers, outsourced and contract workers. Along the same lines, the 2015 Tripartite Meeting of Experts on Non-Standard Forms of Employment had concluded that: “[F]reedom of association and the effective recognition of the right to collective bargaining help support the attainment of decent work. Non-standard forms of employment may pose challenges when it comes to the effective realization of freedom of association and collective bargaining rights. Governments, employers and workers should use social dialogue to develop innovative approaches, including regulatory initiatives that enable workers in non-standard forms of employment to exercise these rights and enjoy the protection afforded to them under the applicable collective agreements.” Effective recognition of human rights such as collective bargaining was challenged by the rise of the on-demand or “gig” economy. There were certainly particularities, and not all workers should be treated exactly the same way. However, the ILO should not condone arrangements that shifted costs and risks to workers, while stripping them of their basic rights. Laws which facilitated the exploitation of workers under the guise of protecting competition or freedom of contract should not be tolerated. In conclusion, he called on the Government to work with the social partners to ensure that self-employed workers were granted the effective right to collectively bargain.

The Worker member of France said that self-employed workers were currently alone in bearing the uncertainty of supply and demand. They were in a grey area, as neither entrepreneur nor salaried employee, and they alone were responsible for their training and social protection. They were placed in a separate realm based on, through employability or flexicurity, individual rather than collective risk-taking. The model of permanent contracts was being replaced by “on demand” offers of work, and self-employed workers accumulated small tasks, just like the pieceworkers at the beginning of the twentieth century. However, most self-employed workers found themselves well and truly in a subordinate relationship. The 2012 General Survey of the Committee of Experts emphasized that it was “essential to guarantee effective access to freedom of association and collective bargaining to ensure that workers in an employment relationship were recognized as such”. The number of self-employed workers was constantly increasing and this rise corresponded with an increase in complaints submitted to the Committee on Freedom of Association. The Committee emphasized that these forms of work could constitute complex obstacles to the collective organization of workers and, when they were not adequately regulated and supervised, could be used to circumvent or weaken freedom of association and the right to bargain collectively. The Government could not hide behind the decisions of the EU or the IMF, and forget the international obligations that it had taken on through the ratification of ILO Conventions, including Convention No. 98. The economy was based on the rights of its workers and on strong labour market institutions. The right to collective bargaining was a fundamental right guaranteed to all workers, including self-employed workers.

The Employer member of Belgium emphasized that the right to bargain collectively was a fundamental right and as such was irrefutable. It was recognized as a means of regulating terms and conditions of employment and, according to Article 4 of the Convention, only that. There was therefore no call to extend the scope of the Convention to all contractual relations entered into when providing services or labour. By definition, self-employed workers were free to manage their own time and employment conditions and to enter into contracts quite independently. From the legal standpoint, they were looked upon as businesses, and the Convention was not designed to regulate relations between businesses or between business people. Furthermore, national and European regulations existed that guaranteed healthy competition. The assertion in the 2012 General Survey that self-employed workers were entitled to bargain collectively was not justified: firstly, because the argument was based on only a few cases, whereas the instances of collaboration within countries varied widely, and because the national authorities themselves were responsible for establishing the criteria to distinguish between wage earners and self-employed workers; and, secondly, because the Convention established the framework for collective bargaining only within an employment relationship. Labour relations, however, evolved and raised challenges for ILO constituents as a whole. For that reason, the issue needed to be taken up within the context of a tripartite discussion and on the basis of more extensive information.

The Worker member of the United Kingdom highlighted the differences between the situations of the United Kingdom (UK) and Ireland regarding the right to bargain collectively. In the UK, collective agreements relating to the payment of both freelance workers and employees existed. In Ireland, by contrast, the commitment in 2008 of the Government to ensure that these self-employed workers had access to collective bargaining had never been fulfilled. Journalists, session musicians and voice-over actors had to bargain individually and were unable to be protected by collective agreements. The promised amendments to the legislation had not been adopted, with the explanation by the Government that such amendments would be in conflict with the EU–IMF Programme and the needs of the economy. Despite leaving the Troika programme, the Government’s position remained the same. The rights provided for in the Convention should not be differentially available according to the contractual status of the worker’s employment relationship, which most workers were unable to choose. In both the UK and Ireland, areas of the media industry had experienced major redundancies, resulting in many workers finding themselves competing against each other for a smaller pool of work. Some workers were especially vulnerable to the negotiating power of the employing companies. Low pay, casual work arrangements and sporadic self-employment were widespread in the new media sections of the communication industry, which was particularly attractive to younger workers. The position of the ILO clearly demonstrated that the protection of the Convention had to be available to self-employed workers, temporary workers, outsourced and contract workers. Technological developments which changed the nature of work could not remove the fundamental rights to organize and bargain.

The Employer member of Denmark indicated that the question of self-employment was under discussion in many countries and presumed that trade unions were particularly interested in the issue because of the alleged “unfair competition” of self-employment towards “normal workers” and the desire to attract self-employed persons to unions. The distinction between the self-employed and workers was not artificial and was important for the balance of the labour market. Both Denmark and Ireland were required to comply with EU competition rules. The CJEU stated in its decision of 4 December 2014 (C-413/13) that: “On a proper construction of EU law, it is only when self-employed service providers who are members of one of the contracting employees’ organisations and perform for an employer, under a works or service contract, the same activity as that employer’s employed workers, are ‘false self-employed’, in other words, service providers in a situation comparable to that of those workers, that a provision of a collective labour agreement, such as that at issue in the main proceedings, which sets minimum fees for those self-employed service providers, does not fall within the scope of Article 101(1) TFEU. It is for the national court to ascertain whether that is so.” This decision clearly established that only “false self-employed” persons would fall outside the scope of competition rules. The comment of the Committee of Experts suggested that the judgment of the CJEU provided a basis for collective bargaining by all self-employed persons. However, the reading of the decision did not support this position.

The Employer member of Australia recalled that the case involved a decision by the Competition Authority of Ireland to declare as unlawful a collective agreement made between Irish EQUITY/SIPTU and the Institute of Advertising Practitioners which sought to fix rates of pay and conditions of employment within radio, television, cinema and the visual arts. The report of the Government had not been received in time to be considered by the Committee of Experts. The provision of further information was welcomed, as the Convention specifically referred to national conditions. It was acknowledged that practices such as price fixing, cartels and other behaviours that would lessen competition could create market distortions and adverse outcomes for other businesses, consumers and the broader economy. The legislation regulating anti-competitive practices was needed and careful attention was required not to encourage an approach that might negatively impact the competitive landscape. The report of the Committee of Experts rightly indicated that the ICTU: “[did] not dispute that competition law should not preclude price fixing agreements among cartels of business”. The distinction between persons who were conducting a business and persons entitled to the benefits of collective agreements had to be considered in the national context. Thus, the jurisprudence in Ireland would be essential in determining which persons had access to terms of conditions of employment by means of collective agreements. An alternative question, regarding competition and consumer law, would be whether categories of independent businesses had to be considered in breach of competition laws to the extent that the law rendered collective bargaining by businesses unlawful. However, such issue was outside the mandate of the Commission and was a domestic matter for the consideration of the Government. Regarding the past commitment to review section 4 of the Competition Act, she noted that the absence of such legislation did not in itself give rise to a failure to observe the Convention and that the Government had changed since that commitment had been made. In conclusion, she called for the provision of further information by the Government.

The Government representative welcomed the numerous interventions that had reflected a diversity of opinions on how the different principles at stake should interplay and had provided thoughts for further consideration. The Government was committed to protecting all vulnerable workers, and not just the few categories raised in the current discussion, in dialogue with the social partners with the expectation that the social partners would take into account the Government’s broad responsibilities to the breadth of interests in Irish society and in the international community. Competition law and employment law could work together to protect all the interests at stake. Noting that a common theme at the present session of the Conference was the need to connect with the wider world and to build bridges across gaps in the world of work, he said that the Government was contributing to those important discussions. A balance between the different principles at play should be found to take into account the evolving nature of work. He said that he would convey the opinions voiced during the discussion to his Government and undertook to provide timely and comprehensive information.

The Employer members welcomed the detailed submission provided by the Government and its commitment to providing a detailed report on the issues raised by the Committee of Experts. The observation referred to two specific issues: collective bargaining and self-employed workers. On the issue of self-employed contractors, the discussion touched upon a number of issues of great interest to all tripartite stakeholders, including issues related to EU competition and consumer laws and the application of the Convention in the challenging context of the emergence of new forms of work. One clear question was the consideration as to whether Irish law prohibited self-employed workers from bargaining over price setting or fees for services, but permitted organization and bargaining on other types of issues, such as conditions of employment. The Employer members concluded that the complexity of the matter required further information to consider appropriately the nature and details of the relevant provisions. They therefore encouraged the submission of a full report by the Government.

The Worker members thanked the Government representative for the explanation provided. Before concluding the Committee’s examination of the case, certain principles under the Convention needed to be emphasized: the mere fact of membership of the ILO meant that member States were required to promote, respect and ensure in good faith the right of workers to bargain collectively; that right was of general scope, and only very specific categories of workers could be excluded from it; when a decision by the administrative authorities called into question the outcome of collective bargaining, the principle of free and voluntary negotiation was also called into question. When it had ratified the Convention, the Government had undertaken to adopt the necessary steps for its implementation in law and practice, irrespective of the degree of juridical complexity and the actors involved. While the Convention called on governments “to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations”, the Troika, in agreement with the national authorities, had made it impossible to conclude collective agreements. Clearly such interference was unacceptable. But it was the Government’s responsibility to encourage collective bargaining and to instruct the national authority accordingly. In the case of self-employed workers, it was undeniable that they were fully entitled to bargain collectively, and it was therefore the responsibility of the Government to engage in consultations with all the parties concerned so as to minimize restrictions on collective bargaining. It should therefore amend the Competition Act to allow self-employed workers to exercise their right to bargain collectively, and it needed to devise negotiating machinery that was specifically designed for their purpose. The Government would have to report back on the matter in 2017. In conclusion, the Worker members emphasized that, quite apart from the juridical considerations that it raised, the case also needed to be examined from the economic standpoint. If increasingly broad categories of workers were to be denied the possibility of negotiating the terms of their employment, unfair business practices were bound to proliferate. And if the right of competition prevented negotiations in more and more areas of the economy, then the rules of the game would no longer be fair and it would be impossible to formulate a long-term economic and industrial project.

Conclusions

The Committee took note of the information provided by the Government representative and the discussion that followed on issues raised by the Committee of Experts.

The Committee welcomed the Government’s indication 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.

The Committee expressed disappointment that the Government had not provided a report in time for the Committee of Expert’s review. It noted that the Government advised that it had submitted a report in April 2016 and the Government undertook to ensure that its report was fully responsive to the issues raised by the Committee of Experts so that the experts can fully consider the Government’s responses on all of the issues raised in this case.

The Committee noted that this case related to issues of EU and Irish competition law. To this end, the Committee suggested that the Government and the social partners identify the types of contractual arrangements that would have a bearing on collective bargaining mechanisms.

The Committee invited the Government to report in detail to the Committee of experts before its next session in November 2016.

The Government representative thanked the Chairperson for conveying the conclusions.

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The Committee notes the comments made by the Irish Congress of Trade Unions (ICTU) in a communication dated 31 August 2009.

In its previous comments, the Committee requested the Government to provide its comments on the observations made by the ICTU in relation to restrictions on the right to organize and collectively bargain introduced by the Competition Authority of Ireland. The Committee recalls 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 visual arts. The ICTU added that other relevant statutory provisions had also been overruled.

The Committee notes that the Government indicates 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 section 4 prohibition. According to the Government, this commitment took into account that there would be negligible negative impacts on the economy or on the level of competition and will have regard to the specific attributes and nature of the work involved, subject to consistency with European Union (EU) competition rules. Three categories of workers are proposed to be covered by the exclusion: freelance journalists, session musicians and voice-over actors. Recalling that the Convention requires the Government to take measures to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements, the Committee points out that intervention by the authorities which has the result of unilaterally altering the terms and conditions agreed upon is, in general, contrary to the Convention. The Committee requests the Government to provide further information in its next report on the impact of the section 4 prohibition, in particular on the types of abuses targeted by this provision and the progress made in amending the Act in accordance with its commitment and in full consultation with the social partners concerned.

The Committee notes the extensive comments of the Government in response to the criticism by the ICTU of the decision of the Irish Supreme Court in Ryanair v. Labour Court and IMPACT, in which the union stated that the Supreme Court had upheld the operation of the Ryanair Employee Representative Committee, a committee operating under the control and domination of the employer, to exclude a bona fide trade union, and aimed at preventing a trade dispute being processed under the Industrial Relations Act 2001. In particular, it notes that in the context of discussions with the social partners reviewing the consequences of the judgement on collective bargaining, the judgement was viewed as having had the effect of substantially impairing the capacity of the arrangements which had previously been agreed upon to operate as intended. These also clarified certain aspects of fair procedure and natural justice applicable in such cases. The Government and the social partners, therefore, agreed to the establishment of a review process which would consider the legal and other steps which are required to enable the mechanisms which were established under previous agreements to operate as intended. According to the Government, this process will take account of issues of concern to both sides from their experience of the mechanisms to date, the necessity for fair procedures, and will take account of expert legal advice and international practice, where relevant. The Government indicated that the review, which had originally been intended to be completed by March 2009 so that the necessary legislation would be enacted in June 2009, only got under way in September 2009.

The Committee further notes the indication in the Government’s report that it intends to bring forward legislative proposals to prohibit victimization and incentivization and to provide effective protection and means of redress to employees in relation to their trade union membership and activities, a matter being considered in tandem with the abovementioned review process. The Committee trusts that progress will be made in the near future to ensure that workers are fully protected in their right to organize as provided for by the Convention and requests the Government to provide information on the progress made in this regard in its next report, as well as with respect to the steps taken to strengthen the existing legislation underpinning the Joint Labour Committee and Registered Employment Agreement systems.

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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 direct request, which read as follows:

The Committee takes note of the comments made by the Irish Congress of Trade Unions (ICTU) dated 28 October 2005, underlining developments which restrict the right to organize and to bargain collectively. These restrictions have been introduced by the Competition Authority of Ireland which has decided that the provisions of the Competition Act, 2002, overrule the provisions of the Industrial Relations Act. The Competition Authority has made unlawful a collective agreement made by Equity/SIPTU on behalf of workers with the Institute of Advertising Practitioners on behalf of employers, despite the fact that Equity/SIPTU holds a licence to carry on negotiations for the fixing of wages or other conditions. This agreement fixes the rates of pay and the conditions of employment to be provided to workers within radio, television, cinema, and visual arts. Other relevant statutory provisions have also been similarly overruled. The Committee requests the Government to provide comments to these observations.

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The Committee notes 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 direct request, which read as follows:

The Committee takes note of the comments made by the Irish Congress of Trade Unions (ICTU) dated 28 October 2005, underlining developments which, according to the ICTU, restrict the right to organize and to bargain collectively. These restrictions have been introduced by the Competition Authority of Ireland which has decided that the provisions of the Competition Act, 2002, overrule the provisions of the Industrial Relations Act. The Competition Authority has made unlawful a collective agreement made by Equity/SIPTU on behalf of workers with the Institute of Advertising Practitioners on behalf of employers, despite the fact that Equity/SIPTU holds a licence to carry on negotiations for the fixing of wages or other conditions. This agreement fixes the rates of pay and the conditions of employment to be provided to workers within radio, television, cinema, and visual arts. Other relevant statutory provisions have also been similarly overruled according to the ICTU. The Committee requests the Government to provide comments to these observations.

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The Committee takes note of the Government’s report. The Committee also takes note of the comments made by the Irish Congress of Trade Unions (ICTU) dated 28 October 2005, underlining developments which, according to the ICTU, restrict the right to organize and to bargain collectively. These restrictions have been introduced by the Competition Authority of Ireland which has decided that the provisions of the Competition Act, 2002, overrule the provisions of the Industrial Relations Act. The Competition Authority has made unlawful a collective agreement made by Equity/SIPTU on behalf of workers with the Institute of Advertising Practitioners on behalf of employers, despite the fact that Equity/SIPTU holds a licence to carry on negotiations for the fixing of wages or other conditions. This agreement fixes the rates of pay and the conditions of employment to be provided to workers within radio, television, cinema, and visual arts. Other relevant statutory provisions have also been similarly overruled according to the ICTU. The Committee requests the Government to provide comments to these observations.

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The Committee notes 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 direct request, which read as follows:

The Committee takes note of the Government's report regarding the number of workers employed in "excepted bodies" under the negotiation licence provisions of the Trade Union Act, 1941. Although from the Government's report such "excepted bodies" are free to engage in collective bargaining, they do not enjoy the immunities under the Industrial Relations Act, 1990, in relation to industrial action. The Government further states that information is not available on the extent to which such bodies engage in collective bargaining.

The Committee would recall that under Article 4 of the Convention, the Government should take measures appropriate to national conditions to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers' organizations and workers' organizations. Only public servants engaged in the administration of the State are exempted from these terms. The Committee would therefore request the Government to indicate in its next report the measures taken to apply Article 4 to these bodies as well as to continue to indicate the number of excepted bodies and, to the extent possible, their membership.

The Committee also requests the Government to provide in its next reports updates on the activities of the Industrial Relations Commission and on the adoption of any further codes of practice (sections 42 and 43 of the Act).

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The Committee takes note of the Government's report regarding the number of workers employed in "excepted bodies" under the negotiation licence provisions of the Trade Union Act, 1941. Although from the Government's report such "excepted bodies" are free to engage in collective bargaining, they do not enjoy the immunities under the Industrial Relations Act, 1990, in relation to industrial action. The Government further states that information is not available on the extent to which such bodies engage in collective bargaining.

The Committee would recall that under Article 4 of the Convention, the Government should take measures appropriate to national conditions to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers' organizations and workers' organizations. Only public servants engaged in the administration of the State are exempted from these terms. The Committee would therefore request the Government to indicate in its next report the measures taken to apply Article 4 to these bodies as well as to continue to indicate the number of excepted bodies and, to the extent possible, their membership.

The Committee also requests the Government to provide in its next reports updates on the activities of the Industrial Relations Commission and on the adoption of any further codes of practice (sections 42 and 43 of the Act).

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The Committee takes note of the Government's report and of the information supplied in answer to its previous request. It would, however, reiterate its demand of information on the number of workers employed in "excepted bodies", in relation to workers represented by trade unions holding a negotiation licence.

The Committee also requests the Government to provide in its next report information on the activities of the Industrial Relations Commission and, in particular, on the adoption and implementation of the codes of practice (sections 42 and 43 of the Act) on subjects covered by the Convention.

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The Committee takes note of the Government's report and in particular of the Industrial Relations Act, 1990.

The Committee requests the Government to provide in its future reports information on the implementation of the codes of practice mentioned in sections 42 and 43 of the Act.

The Committee would also appreciate receiving general information on collective bargaining in "excepted bodies", for example on the number of employees concerned in relation to workers represented by trade unions holding a negotiation licence.