Advancing rights at work: developing devolved solutions

One of the problems we are about to face under the Con Dem government is the erosion of employment standards.

Commentary icon27 Sep 2011|Comment

Professor Keith Ewing

President of the Institute of Employment Rights

Prof Keith Ewing, IER President & Mick O’Sullivan

27 September 2011

One of the problems we are about to face under the Con Dem government is the erosion of employment standards. More use of agency workers, limited rights to unfair dismissal, and restricted access to tribunals

In these circumstances we need to be looking around at areas where the Con Dems are not in power politically, and where there might be opportunities to advance rights at work. Specifically is there anything that can be done in Scotland, Wales and Northern Ireland (and by large local authorities)?

The obvious problem of course is that under the devolution settlements, employment rights are tightly controlled by Westminster. But while this means that there can be no ‘hard law’ mechanisms from the devolved administrations, this does not mean that we cannot develop alternative mechanisms that reflect a rejection of the race to the bottom being promoted by Osborne and chums.

So what would be possible? We think it would be open to the devolved administrations to take social justice and fair employment standards seriously, and to set a new agenda. There are three essential building blocks, all of which could be assembled very easily if there was the political will to do so.

Office of Fair Employment Standards

First, it would be necessary to establish an office in one of the existing departments (whether Belfast, Cardiff or Edinburgh) dedicated to Fair Employment. We could call it the Office of Fair Employment Standards (OFFEMPS), for want of something more imaginative. No doubt somebody will be able to think of something smarter with a clever acronym.

Charter of Fair Employment Practices

Secondly, it would be necessary to develop a charter of Fair Employment Practices, expected to be applied by all employers in the jurisdiction concerned (Northern Ireland, Wales or Scotland). The hard question of course is what these fair employment practices would be. But don’t despair – there is an easy answer.

2011 is the 50th anniversary of the European Social Charter, an international treaty ratified by the UK (in 1962). That treaty sets out a number of fair employment practices, that include

  • Everyone shall have the opportunity to earn his living in an occupation freely entered upon;
  • All workers have the right to just conditions of work;
  • All workers have the right to safe and healthy working conditions;
  • All workers have the right to a fair remuneration sufficient for a decent standard of living for themselves and their families;
  • All workers and employers have the right to freedom of association in national or international organisations for the protection of their economic and social interests;
  • All workers and employers have the right to bargain collectively.

There should be an expectation that all employers in Northern Ireland, Wales and Scotland will comply with these standards, which could be suitably embellished and developed, to fill gaps in legal protection, as in the case of agency workers in particular. A fair employer would be expected to convert an agency worker to full employment status after a year’s service.

So far as collective bargaining is concerned, this would provide an opportunity to address the declining levels of coverage, unparalleled in modern Europe. There ought to be an expectation on all employers that they not only recognise trade unions, but that they take part in sector wide bargaining arrangements, in common with the best practice of the Nordic countries and the Netherlands, countries with economies we can only admire.

Contact for Fair Employment Enforcement.

All of which brings us to the third of the building blocks, namely how to ensure that employers comply with these expectations. There are precedents for this elsewhere, but essentially what needs to be done is the establishment of a contact person in the appropriate government to whom complaints could be made by a trade union about the activities of a particular employer.

It would then be the responsibility of the officer and his or her team to investigate the complaint and to seek its resolution, publishing outcomes on the government website. A similar procedure is used by the
OECD to enforce guidelines relating to the labour (and other) standards of multinational enterprises. This has had good outcomes for British unions, including the global framework agreement with security giant G4S.

So although there may be no power to legislate on labour standards in the devolved bodies, this is no excuse for doing nothing. There is a power to set and supervise fair standards, and to name and shame. True, these standards are not enforceable in the courts or tribunals. Paradoxically, however, a reliance on political pressure and bad publicity may provide a better way of raising standards than a reliance on law and lawyers.

Given at least four years of the Tories at Westminster stripping away at our employment rights, this is one of our best options. It could be rolled out beyond Belfast, Cardiff and Edinburgh to London (if Ken wins) and to other Labour/Green councils.

Professor Keith Ewing

Professor Keith Ewing is Professor of Public Law at King's College London. He has written extensively on labour law including recognition procedures and international standards. He is the President of the Institute of Employment Rights and a Vice President of the Campaign for Trade Union Freedom.