Collective bargaining promises in Brexit deal are nothing but hot air

An atmosphere of mutual non-compliance will ensure neither the UK or EU stick to their promises over international law.

Commentary icon7 Jan 2021|Comment

Keith Ewing

Professor of Public Law, King’s College London

Lord John Hendy QC

Chair of the Institute of Employment Rights

As we pointed out in the previous article in this series, the EU-UK Trade and Cooperation Agreement (TCA) was engineered to permit the dilution in the UK of those workers’ rights derived from EU law which were in force on 31 December 2020. The TCA offers no guarantee of continuing alignment of rights after Brexit, the likelihood being that British standards will fall further and further behind our European neighbours.

There are nevertheless other provisions of the TCA which relate to workers’ rights which should not pass without comment. These include Article 8 of Title XI dealing with trade and sustainable development. To the uninitiated, this might look promising, the parties affirming their commitment to the development of international trade in ‘a way that is conducive to decent work for all, as expressed in the 2008 ILO Declaration on Social Justice for a Fair Globalization’.

But more than that, Article 8 of Title XI also commits the parties to respect, promote and effectively implement the internationally recognised core labour standards, as defined in the fundamental ILO Conventions, namely:

  • freedom of association and the effective recognition of the right to collective bargaining;
  • the elimination of all forms of forced or compulsory labour;
  • the effective abolition of child labour; and
  • the elimination of discrimination in respect of employment and occupation.

ILO Conventions on freedom of association include protection of the right to strike and to bargain collectively, and for trade unions to determine their own rules and activities. The Conventions provide levels of protection well in advance of current British labour law.

Yet despite the foregoing, it would be a mistake to get over-excited about Article 8: the commitment to ‘effectively implement’ ILO standards is meaningless. It is, as our colleague Professor Tham of Melbourne University puts it, a form of ‘faux regulation’, typical of other neoliberal texts. In other words, Article 8 is no more than a rhetorical flourish, not intended to bind anyone, and which in practice will bind no-one.

Article 8 is no more than a rhetorical flourish, not intended to bind anyone, and which in practice will bind no-one. 

We know this because Article 8 has been copied and pasted from multiple other free trade agreements where they have had absolutely zero effect. These include EU free trade agreements which bear the signatures of British Prime Ministers, such as the free trade agreements with Korea and Canada respectively. [It is thus not the case that pre-Brexit the UK has had no free trade treaty obligations.]

Yet despite agreements of this kind and commitments made to effectively implement ILO obligations, the Tories under Cameron introduced the Trade Union Act 2016. The latter was held by the ILO Committee of Experts to add to the long list of the UK’s violation of freedom of association obligations, a comprehensive list which it opened in 1989 and has added to almost annually since.

Under Johnson, it is likely that that list will be extended by even more restrictions on trade unions (note the Tory election manifesto commitment to introduce yet more restraints on industrial action on the railways). The EU (and a number of Member States) are also in persistent breach of ILO Conventions – the notorious Viking and Laval cases being good examples.

There, it will be recalled, the European Court of Justice subordinated trade union rights to the right of businesses to engage in social dumping. Industrial action by trade unions in response would be permitted only if it met very tight conditions, which were subsequently found by the ILO Committee of Experts – in a case involving British trade union BALPA – to violate ILO Convention 87.

The EU could comply with ILO obligations only if the European Court of Justice reversed its decision in Viking, or if there is a treaty amendment to give legal priority to the right to strike in EU law. Neither is likely to happen. The EU is thus in no position to complain about the United Kingdom’s continuing breach of ILO standards, with which the EU itself is currently unable to comply as a matter of EU constitutional law.

Both parties have thus given commitments in Article 8 in the full knowledge that they do not comply with the commitments made. Although they will no doubt deny that they are in breach, we live in a world of mutual non-compliance, in which it is in the interests of neither party to raise a complaint against the other. Article 8 will thus continue to be what comparable provisions are in other free trade agreements: pointless.

We live in a world of mutual non-compliance, in which it is in the interests of neither party to raise a complaint against the other

Apart from the foregoing, it will be noted nonetheless that Article 8 of Title XI includes an express commitment effectively to implement the ‘effective recognition of the right to collective bargaining’. If taken seriously this would be hugely significant. After 40 years of neoliberal ‘reforms’, collective bargaining coverage in the United Kingdom has fallen from 82% in 1979, to about 27% overall today, with just over half that in the private sector.

In the EU, in contrast, the European Commission is fretting about countries with density levels of less than 70% and is apparently trying to do something about it. But while the EU may be gripped by the seriousness of the crisis facing collective bargaining, that anxiety is not shared by the Johnson government, nor is it likely that Article 8’s commitment to collective bargaining will mean much in practice.

These collective bargaining commitments in Article 8 are to be looked at in the light of Article GRP1, which deals with general principles of good regulatory practice and cooperation. The latter refers to the right of the parties ‘to regulate [their] own levels of protection in pursuit or furtherance of its public policy objectives’, in areas such as occupational health and safety and labour conditions.

Although GRP1 is of uncertain scope and application, it offers guidance about British government thinking, as does the clarification added for ‘greater certainty’. This protects ‘the different models of industrial relations’ in accordance with national laws and practices, referring specifically to ‘laws and practices concerning collective bargaining and the enforcement of collective agreements’.

In other words, GRP1 appears to hard-wire a government intention to continue a regulatory model of collective bargaining which has been engineered to fail. It is a model which has been unable to deliver a collective bargaining density in excess of 50% in any of the major countries where it operates. The explicit need to preserve this model reinforces the concern about the government’s vision for the ‘labour market’ post-pandemic.

As we wrote at the beginning of Part I of this pair of articles, Labour MPs and peers are being asked to support an agreement that intended to undermine British workers’ rights, despite the ink needlessly spilled to convince us otherwise. The agreement fails to protect existing rights sourced from the EU, and fails to protect rights in international law derived from ILO Conventions (and the European Social Charter).

Nicola Countouris

Nicola Countouris Nicola Countouris Nicola Countouris is a Reader in Law at University College London, where he mainly teaches labour law. He is a member of the Institute of Employment Rights.

Keith Ewing

Keith Ewing 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 also the President of the Institute of Employment Rights

Lord John Hendy QC

John Hendy QC John Hendy QC John Hendy QC is Chair of the Institute of Employment Rights. He is a leading employment law barrister, operating from Old Square Chambers London, and H P Higgins Chambers in Sydney Australia. He is also vice-chairman of the International Centre for Trade Union Rights (ICTUR)and Joint Secretary to the United Campaign for the Repeal of Anti Trade Union Laws. John is standing counsel to UNITE, ASLEF,CWU, NUJ, NUM, POA, RMT and UCU.