Labour Research May 2015


A different legal framework

Labour Research looks at unions’ alternative vision for employment law after the election, and at what Labour’s manifesto has to offer trade unionists.

As we outline in the previous feature, the coalition has waged a relentless attack on workers’ rights and organised labour, undermining workers’ legal protections and introducing a series of anti-trade union laws.

Matt Wrack, general secretary of the FBU firefighters’ union recently went so far as to say that, if the Tories win a further term in office, “the very existence of our movement is under threat”.

Since taking power in May 2010, the coalition has launched a vicious attack on both workers’ rights and collective action, continuing what began under the Tory Thatcher government in the 1980s with renewed vigour.

For example, at the end of March 2015, the Department for Work and Pensions (DWP) ended the check-off arrangement whereby union subs are paid directly through wages. The PCS civil service union is very clear that this is a political attack and an attempt by the government to disrupt its finances and weaken its ability to campaign against austerity.

The union says that the combined effect of check-off removal and job cuts in the civil service could reduce its income by as much as £6.5 million. “The government is attempting to break PCS as a union,” it says. “It is no exaggeration to state that our survival is at stake.”

On top of removing check-off, several government departments and a number of Tory-controlled local authorities have slashed facility time for union reps. And both the PCS and FBU have reported that over recent months, reps taking part in strike action have been victimised.

The FBU points out that Buckinghamshire and Milton Keynes fire and rescue service sacked national executive committee member, firefighter Ricky Matthews, after he took part in the national pensions strike last year. The service claimed that the union issued an incorrect strike call.

And earlier this year, the National Gallery suspended PCS senior rep and member of the union’s negotiating team Candy Udwin. The union reported that the gallery accused Udwin of “breaching commercial confidentiality” after she drafted questions for its full-time negotiations officer to ask the employer about the cost of using CIS, a private company employed in response to the long-running dispute over privatisation. The dispute has included several bouts of strike action.

Tory plans for second term

The Tories have made clear that if they win a second term in office, the picture for unions will be even bleaker. Their manifesto includes proposals to introduce thresholds for public sector strike ballots that will, says the TUC, “effectively end the right to strike in the public sector”.

These would require a ballot in which at least half the workforce has voted before strike action can be taken, and would introduce a tougher threshold in the health, education, fire and transport sectors. Industrial action in these essential services would require the support of at least 40% of all those entitled to take part in strike ballots — as well as a majority of those who turn out to vote.

TUC general secretary Frances O’Grady said the proposals were “a democratic outrage, especially as the Conservatives have opposed allowing secure and secret online balloting — the one measure guaranteed to increase turnouts”.

The Tories also want to repeal restrictions banning employers from hiring agency staff to provide cover during strikes; “legislate to ensure trade unions use a transparent opt-in process for union subscriptions”; and tighten the rules around facility time for union representatives in the public sector.

O’Grady said: “We know they plan to get rid of a million public sector jobs and cut the value of public sector pay every year in the next parliament if they win the election. Now they are also going to make it impossible for public sector workers to resist.”

What do unions want?

At a recent Institute for Employment Rights (IER) seminar, Employment law after the election — what kind of laws do we want?, unions set out an alternative vision for workers’ rights and labour law. They made it clear that, for example, they would want a future Labour government to abolish employment tribunal fees.

Top of the list for unions is a change to the law on balloting for strike action to give trade unionists the right to take industrial action. “It is impossible to run a legal ballot under the current rules,” said Dave Prentis, general secretary of the UNISON public services union. “We have to change that legislation — that is top of our priorities.”

The anti-trade union laws

UK law does not include a positive right to strike. Instead, workers and unions engaged in specific forms of industrial action are given “immunity” from legal action, as long as they comply with some of the most restrictive anti-strike laws in the developed world.

Among key restrictions introduced by the Thatcher government were:

• from the early 1980s, closed shops (workplaces where all workers must belong to a particular union) were first attacked and then banned altogether;

• picketing restrictions, including the Code of Practice “recommending” a maximum of six pickets, which arrived in 1980;

• secondary action, already restricted, was outlawed altogether by the Employment Act 1982, which limited immunity to trade disputes between workers and their own employer. The same Act banned political strikes and allowed employers to sue unions for damages and to sequestrate (or seize) their assets;

• secret strike ballots which became compulsory when the Trade Union Act 1984 came into force. Balloting restrictions became increasingly onerous with each new law; and

• the Employment Act 1990, which took on “unofficial” action, requiring unions either to repudiate or validate action with a secret ballot or else risk sequestration. Strikers involved in unofficial action lost all protection.

The International Labour Organisation has repeatedly condemned the UK’s strike laws.

The laws also run counter to new rulings from the European Court of Human Rights confirming that rights to organise, bargain collectively and strike are all protected by Article 11 of the European Convention on Human Rights.

And unions want a Labour administration to introduce a right to reinstatement to a job where an employee wins a case against unfair dismissal, something that currently only happens in a tiny handful of successful cases each year. Unions also want to see full employment protection from day one and strengthened protection for workers “TUPE’d over” to a new employer.

But as O’Grady outlined: “Individual rights are not worth the paper they are written on without collective rights.”

IER Chair John Hendy QC told those at the event that collective bargaining — backed by the right to strike — is the only way the voices of workers can be heard, that justice in the workplace can be won, and that the power of workers can match that of employers in order to restore pay levels and raise living standards (see box bottom of page 15).

“The Living Wage is helpful, but it is only an hourly rate,” he said. “Collective bargaining ensures proper rates of pay and proper terms and conditions.”

PCS general secretary Mark Serwotka called for greater protection for union representatives to enable them to do their job effectively; statutory rights to check-off, facility time and meaningful consultation; as well as strengthened rights for union reps, including the right to meet and discuss issues in the workplace.

And Steve Turner, Unite general union assistant general secretary, was among those calling for better industrial democracy, with unions represented at every level of the workplace up to and including the board, which happens in other European countries.

The statutory procedure for union recognition, introduced by the Labour government in 2000, was deemed to be “next to useless” in extending collective bargaining, and there was a call for a new right of trade union access to the workplace. “Trade union organisers should not be on the outside, with workers scared to death,” said Turner.

A future Labour government should, say unions, lead by example, establishing national bargaining machinery and encouraging other employers to bargain collectively through public procurement.

And where trade unions are weak, there should be institutions like wages councils to protect pay and conditions in precarious sectors. The Tories abolished the last remaining wages council, the Agricultural Wages Board, in 2013 (see Labour Research, August 2013, pages 9-11).

Labour Party's plans

So how has the Labour Party responded to these demands? Its manifesto for work, A better plan for Britain’s workplaces, contains a range of commitments on individual rights at work. It says that Labour’s first Queen’s Speech would include a stronger minimum wage, a ban on exploitative zero hours contracts and action to stop agency workers from being used to undercut wages.

A Labour government would increase the National Minimum Wage (NMW) to more than £8 before 2020 and use procurement to “promote” the Living Wage. Publicly-listed companies would have to report on whether they pay the Living Wage. It would introduce new “Make Work Pay” contracts to give tax rebates to businesses that sign up to become Living Wage employers in the first year of a Labour government.

It would give the Low Pay Commission powers to identify sectors that can afford to pay more and set up industry-led taskforces to raise productivity and pay — in social care and agriculture for example. And it would strengthen enforcement by giving local authorities and other relevant agencies a role, extending HMRC’s remit to cover holiday pay and, possibly, the non-payment of Statutory Sick Pay and statutory maternity, paternity and adoption pay.

On zero hours contracts, if workers work regular hours over the first 12 weeks of employment, they would have the right to a regular contract. In addition, Labour pledges to stop employers from being able to force workers to be available at all hours, or cancel shifts at short notice without compensation.

A Labour government would ban recruitment agencies from hiring only from overseas, and make it a criminal offence to undercut wages by exploiting migrant workers.

Labour says that in government it would ensure proper access to justice in the workplace by abolishing the coalition’s employment tribunal fee system. And it would review the rules on TUPE. The party says it would also double paternity leave to four weeks, and increase the level of pay to the equivalent of a full week’s work paid at the NMW.

But the manifesto contains less concrete commitments on the role of trade unions and collective rights. It says it would “promote building a culture of partnership in the workplace so that employers and employees can work together to raise productivity and support long-term company success”.

And it says that employee representation would be required on remuneration committees, and that it would review the Information and Consultation regulations to look at how information and consultation in the workplace can be made more meaningful.

In addition, Labour says it would ensure UK compliance with international obligations on labour standards and recognise the positive role facility time for trade union representatives plays in the public sector.

Labour may not have committed to rolling back the anti-trade union laws. But compared to the Tories’ open hostility to unions and trade unionism, it goes considerably further — in sentiment at least — than anything seen for some time from a party hoping to be in government.

The consequences of the decline of union power

In 1979 when Margaret Thatcher came to power, more than eight out of every 10 workers (82%) were covered by a collective agreement negotiated by trade unions.

By 2011, that figure had declined to just over two out of every 10 (23%). The UK now has the second-lowest level of collective bargaining in Europe.

In its election 2015 briefing, What’s at stake for work, pay and unions?, the Centre for Labour and Social Studies (CLASS) sets out that this decline “has been shaped by anti-trade union laws which inhibit trade union recruitment, activity and collective bargaining”.

It says there is a strong link between higher levels of inequality and a weakened trade union movement, with the gap between “the rich and the rest” now at alarming levels. For example:

• average weekly pay was 11% lower in 2014 than in 2008, while average prices for essential goods and services rose by 20% between 2009 and 2014;

• one in five employees (around 4.9 million people) earn less than the Living Wage (currently £7.85 outside London and £9.15 in London). It is estimated that at least 320,000 mostly female workers in cleaning, hospitality and retail have been trapped in minimum wage jobs for five years or more. Meanwhile, an estimated 250,000 to 300,000 workers are paid below the statutory National Minimum Wage;

• at least 1.4 million (and potentially 2.7 million) workers are on zero hours contracts; and

• more than 913,000 people received food from a Trussell Trust food bank in 2013-14.