Legal rights: trade unions set out hopes and fears
A Labour Research survey of UK unions has revealed deep concerns about the impact on workers’ and trade union rights of the Brexit vote to leave the EU. And as union responses to the Labour Party’s Workplace 2020 consultation show, existing rights are already far too weak, with the unions calling for a Labour government to considerably strengthen both individual and collective rights.
The consultation, launched earlier this year to help shape Labour Party policy in this area, has provided an opportunity for unions to set out their demands for stronger rights at work. Meanwhile, prime minister Theresa May’s commitment to worker representation on company boards is something the TUC has long called for.
Worker representation on company boards
Unions have been calling for greater industrial democracy. For example, the Fire Brigades Union argues for “levers to enable workers to have a voice and a guaranteed place at the table in critical managerial decisions at work”.
However, our survey found a mixed reaction to prime minister Theresa May’s stated commitment to worker representation on company boards.
The NASUWT teaching union said that it is in agreement with the plan and commented: “It is of concern to the NASUWT that many academy trusts have no worker representative on the Trust Board.”
Construction union UCATT says that, in principle, it agrees to the proposal. However, it adds: “As to whether it happens is another matter.”
Other unions have been more guarded about the proposals, emphasising that worker representation must be via a trade union.
The Unite general union, for example, cautions that “to be effective these workers cannot be lone voices. They must be a representative from a trade union in the workplace, and be backed up and supported by that workplace/company trade union.” It is a view echoed by public services union UNISON, which supports workers on boards chosen by unions.
And the PCS said: “We believe workers should be represented by their trade unions at all levels of governance and that cynical attempts to dress up worker participation via individuals, rather than their elected representatives on company boards, is no substitute for proper progressive trade union rights.”
Some unions are concerned that the move will be merely symbolic or tokenistic.
The GMB general union says it has mixed views “as representation at this level should not be used to undermine trade union organising and collective bargaining rights and recognition agreements in the workplace”.
It is also concerned about the balance and influence of worker representation on boards and says that “too often it has been tokenistic”.
Retail union Usdaw says that any call for increased worker representation on company boards is likely to be “a small symbolic step” and that workers are not fully represented in the workplace until an independent trade union has been granted recognition for collective bargaining purposes.
The RMT transport union is opposed outright to the proposal, saying that it would result in workers being co-opted into management and having only a nominal role in determining the terms and conditions of the workforce.
Labour Research asked the largest 20 TUC-affiliated unions how they are campaigning to defend workers’ rights post-Brexit, and what are their key demands for stronger collective and individual rights. Thirteen unions responded to our request for information.
Most unions concerned employment rights may be weakened
Most (10) expressed concern that UK employment law emanating from Europe is at risk of being watered down when the UK leaves the EU. For example, retail union Usdaw said that under the Conservatives’ plan for a Repeal Act, allowing them to repeal EU legislation they don’t like, the union is “deeply concerned” that the protections offered through European Court of Justice judgments “would no longer have authority in the UK”.
As such, it said, recent decisions relating to the Working Time Directive, which resulted in the UK Working Time Regulations (WTR), specifically around holiday entitlement and pay, along with “on-call” provisions, would disappear. In addition to the WTR — also highlighted by the UNISON public services, GMB general, UCATT construction, CSP physiotherapists’ and Equity actors’ unions — unions in our survey highlighted other UK employment legislation they believe is particularly vulnerable to repeal or watering down post-Brexit.
UNISON is concerned that the pre-transfer consultation and post-transfer harmonisation provisions of the TUPE transfer regulations could be vulnerable. And along with the GMB and Usdaw, it highlighted the Agency Worker Regulations as a possible target for deregulation.
Some are fearful that equality law could be hit. For example, the GMB and UCATT highlighted maternity rights as a possible target, while UNISON and Usdaw fear a cap could be introduced on equality tribunal awards. These are currently uncapped due to the strength of European legislation.
The EIS Scottish teaching union highlighted trade union facility time as well as the health and safety legislation emanating from EU directives, particularly the so-called “six-pack” of regulations introduced in 1992 (see Labour Research, October 2016, pages 19-21). UNISON said that other areas of vulnerability could include collective redundancy consultation and the Transnational Information and Consultation of Employees Regulations, which implanted the European Works Council Directive.
And the MU musicians’ union has very specific concerns about how Brexit will impact on its members, related to touring in Europe, taking instruments abroad and intellectual property rights.
However, the NASUWT teachers’ union says it is important that the labour movement avoids self-fulfilling prophecies . “The NASUWT expects government undertakings that there will be no dismantling of EU-derived legislation on equalities and workers’ rights,” it said.And the RMT transport union, which campaigned for a vote to leave the EU, believes that Brexit offers the opportunity to pursue a more progressive campaign for employment rights in the UK.
“It’s a myth that the EU is in favour of workers,” RMT general secretary Mick Cash set out in a letter to union branches and regional councils ahead of the referendum. “In fact, the EU is developing a new policy framework to attack trade union rights, collective bargaining, job protections and wages. This is already being enforced in countries which have received EU ‘bailouts’.”
Several unions in our survey have launched campaigns to defend workers’ rights in response to Brexit. For example, UNISON’s campaign includes support for Labour MP Melanie Onn’s Ten Minute Rule Bill calling on the UK government to underpin workers’ rights with the minimum standards set by the EU, as well as developing a new settlement for working people.
It is also working at European level with the European Federation of Public Service Unions (EPSU) and the European Trade Union Confederation (ETUC) to influence EU institutions on workers’ rights and Brexit. Last month, its national executive committee agreed a Brexit strategy.
The GMB has a Brexit campaign page on its website which says that the union will be fighting “for the rights and interests of working people to be at the heart of any negotiations”. Usdaw is working with the TUC to raise awareness on concerns over the future for post-Brexit employment rights. It has also responded to a Scottish Parliamentary Committee’s call for evidence regarding options for the UK and devolved administrations following withdrawal from the EU.
Usdaw’s response calls for current employment protections to be guaranteed as part of Brexit negotiations. And it calls for the UK government to commit to implementing future workplace initiatives created in the EU, such as the so-called “European Pillar of Social Rights”, which aims to strengthen the social dimension of the European Union. Without such a guarantee, the union is concerned that the UK workforce will become “victims of a race to the bottom on employment rights”.
The CSP is a member of the Cavendish Coalition — a group of health and social care organisations campaigning for the right of EU citizens working in the UK health and social care sectors to remain in the UK.
And although Equity has not launched a campaign around Brexit, it is monitoring its impact very closely and has made representations to government about the likely effects on the sector. It is also asking members their views and their fears for the future. “Many of our members are EU citizens, particularly workers in the dance and circus fields, and most of our members benefit from work opportunities that come through the mobility that the EU provides,” it said.
The PCS civil service union believes that any union campaign is best co-ordinated through the TUC. The union says it also fully supports work being done by the Institute of Employment Rights (IER) and Campaign for Trade Union Freedom. And the RMT supports the wider TUC campaign to both defend and advance employment rights.
Key union demands
Our survey also asked about unions’ key demands for stronger individual and collective rights.
Extending collective bargaining
A number of unions, including the PCS, UNISON and Unite general union, are calling for collective bargaining arrangements to be extended to cover more workers, particularly through sectoral (or industry-level) bargaining, where unions and employers set pay and conditions through negotiations covering a whole industry or sector.
They emphasised that this will remove the “two-tier” workforce and prevent outsourcing companies from seeking to drive down wages.
The PCS pointed out that the UK currently has the third lowest level of collective bargaining coverage across all European countries. The EU average is 62% coverage, rising to 70% in Norway and Spain. In the UK it is just 29%. Only Poland and Lithuania have lower coverage.
UNISON is demanding that the 2014 changes to the TUPE regulations, introduced by the previous Tory-led coalition government, are scrapped. The changes substantially weakened protections afforded to employees when a business transfers from one owner to another. UNISON points out that the changes undermine collective bargaining and the terms and conditions of some of the lowest-paid workers.
Public sector pay
Teachers’ unions are also making demands in the bargaining arena. The NASUWT says that it is opposed to the removal of public sector review bodies, including the School Teachers’ Review Body, while the EIS wants binding commitments on the delivery of fair pay and harmonised salary scales in all colleges to be delivered in full and on schedule.
The CSP, meanwhile, reports that it is lobbying for UK-wide pay and terms and conditions of employment, and for the maintenance of a truly independent pay review body system for NHS staff.
Manifesto for Labour Law
Unite and Equity both expressed support for the IER Manifesto for labour law which demands the reinstatement of a Ministry of Labour; sectoral collective bargaining across the economy, underpinned by strong trade union rights; the repeal of the Trade Union Act 2016 (TUA); and a review of individual employment rights around access to justice, blacklisting and strike action.
Both the FBU firefighters’ union and Usdaw are calling for a strengthening of the law on recognition and derecognition.The call includes a reduction of the thresholds needed to win statutory recognition in large companies, and provisions to prevent employers from derecognising unions “at whim”.
And the FBU and the PCS want changes on the law on taking industrial action — particularly around balloting, where they are demanding electronic and workplace balloting. The PCS also wants changes to the seven days’ notice of action required to be given to employers. And while several unions in our survey are demanding the repeal of the TUA, the FBU is also calling for the repeal of anti-union legislation passed by successive Tory governments which, it says, “hampers workers’ right to organise and trade unions’ ability to represent our members”.
Usdaw wants more support and funding for training trade union reps; the PCS is calling for stronger laws on trade union facility time; and the FBU is demanding the mandatory reinstatement of victimised trade union reps where stipulated by an employment tribunal. It also wants fines and public procurement bans on firms found guilty of blacklisting workers for trade union and/or political activities.
Fair wages and decent work
On individual workers’ rights, unions want “fair wages” and “decent work”. UNISON says that while Living Wage (LW) clauses are good, they are not good enough, and calls for a “fair wages” clause for public procurement, covering not only pay but wider terms and conditions including sick pay and pensions.
Unite is calling for a framework for decent work as part of an economic policy that includes public investment in infrastructure, an industrial strategy to grow industries of the future to re-balance our economy in place of austerity, and an additional role for public procurement.
Usdaw wants to see the National Living Wage (NLW) rate made mandatory for workers at age 18 (rather than 25 as at present), as well as support to help employers become LW employers. It is also demanding that the NLW, unveiled by former chancellor George Osborne in his July 2015 Budget, is brought into line with the higher LW rate set by the Living Wage Foundation.
An end to exploitative zero hours contracts is another demand high on the agenda of unions, who say that those in regular work should have the right to a contract that reflects their normal hours. Usdaw is also demanding an end to the exploitative use of short-hour contracts.
A number of unions are calling for “Day One” employment rights, rather than the two-year qualification period before, for example, an unfair dismissal case can be taken. UNISON also wants an incoming Labour government to take immediate action to prevent dismissal and re-engagement using Section 188 notices. “This involves making whole workforces technically redundant and then offering jobs back the next day on a new inferior set of terms and conditions,” the union explained. It said that many public and voluntary sector bodies are using dismissal and re-engagement strategies to avoid negotiating with unions, a practice “once rare“, but “now far more commonplace in public services”.
Usdaw is demanding a right to collective consultation over redundancy where fewer than 20 employees are affected as, currently, there are no set rules if fewer than 20 redundancies are planned.
With casualisation on the increase, several unions are calling for action to strengthen the protection of “atypical workers”. For example, UCATT wants umbrella companies and false self-employment status banned (see Labour Research, January 2015, page 26).
The FBU is also calling for an end to bogus self-employment, used by some employers to avoid employment rights and paying National Insurance. It wants a “levelling up of employment rights” to the employment status of “worker”, which gives basic rights and entitlement to the minimum wage.
Equity said it was keen for the Labour Party “to continue to explore” how self-employed, freelance and workers in the gig economy (see Labour Research, August 2016, pages 13-15) “can be protected and empowered at work”.
And Usdaw is calling for the closure of the so-called “Swedish derogation” in the Agency Workers Regulations. The Regulations entitle agency workers to get the same basic pay and conditions as other employees after a 12-week qualifying period, but the derogation provides an exemption from this as far as pay is concerned in certain circumstances.
In addition to widespread union calls for an end to employment tribunal fees, UNISON is demanding tribunal reforms to enable class actions in equal pay cases in order to close the gender pay gap. And it wants a speedier and more effective tribunal system. The EIS, meanwhile, has a long-standing demand of devolving employment and health and safety law to the Scottish Parliament.
While most unions are clearly on the defensive post-Brexit, Labour’s Workplace 2020 consultation has provided an opportunity for them to set out an alternative vision of what employment law could look like.
Unions in the survey
The unions taking part in the survey were (in order of size): Unite (general union), UNISON (public services), GMB (general), Usdaw (shopworkers), NASUWT (teachers), PCS (public and commercial services), RMT (transport), UCATT (construction), EIS (Scottish teachers), CSP (physiotherapists), Equity (actors), FBU (firefighters) and the MU (musicians).