Future of Labour Law: progressive rights under a progressive government – London

An event report on what progressive workers' rights could look like

14th June 2018

About the Conference

Roger Jeary

By Roger Jeary

This well-attended conference was kicked off (it seemed appropriate to use a football analogy on the day the World Cup started) by Adrian Weir, Assistant Chief of Staff for Unite, who welcomed delegates to Unite House. He told conference that collective rights have been decimated by governments over recent decades and reminded everyone that the Institute’s Manifesto for Labour Law was the basis for the Labour Party’s 20-point plan for workers’ rights in its electoral manifesto. Currently the Institute is working on the expansion of detail on the Manifesto, which will be launched on the eve of the TUC Congress in September.

Adrian then introduced the conference’s first speaker, Professor Keith Ewing.

A Ministry of Labour

Professor Keith Ewing, President of IER, began by reminding the conference that the idea of a Ministry of Labour was not a new one, either for the UK or in Europe. The Ministry of Labour is at the heart of the Institute’s proposals and was included in the Labour Party Manifesto for the last election. The concept was first introduced in the UK through the Ministries and Secretaries Act in 1916 and the subsequent Department of Employment was finally abolished in the Thatcher years. Its original purpose was to introduce the recommendations of the Whitley Committee, which was to massively increase machinery for collective bargaining. Its reintroduction would require no primary legislation and could be brought into being without obstruction. This is important, as such legislation would likely be obstructed in the Lords. However, governments now have the power to set up new departments through a Statutory Instrument.

Professor Ewing outlined the general roles and responsibilities of such a Ministry in today’s world as providing a strong voice at the heart of government for the UK’s 33 million workers, providing a link across the many departments impacting upon the labour market, and establishing a National Economic Forum with the Treasury Department.

He told delegates that such a department would have three main objectives – to roll out sectoral collective bargaining, modernise labour relations, and oversee the creation and operation of labour law enforcement mechanisms. He argued for a move away from legalistic resolutions to workplace problems and the introduction of a fully staffed Labour Inspectorate. He set out an overview of its role, emphasising the need to radically reform and restructure workplace relations and the supervision of international labour standards and laws. He pointed to the need for a properly resourced Labour Inspectorate and to promote policies to achieve its aims, including enforcement powers, and attaching conditions to public contracts and grants.

Download Keith’s presentation

Universality of Rights

The second speaker was Professor Nicola Countouris, UCL, who addressed the need for universality of rights, which would provide new definitions of worker and employer, introduce day one rights, and provide protections for those on zero-hour contracts.

He outlined the current problems with the status quo and the need for reform, making particular reference to bogus self-employment and the absence of collective labour rights. “Limb (b) workers” (section 230 (3) of the 1996 Employment Rights Act) are a poor substitute for providing rights for workers. He went on to advocate a single status for workers for the purposes of accessing employment rights and argued for a new employer definition which would establish ‘joint employer status’, removing the current confusion of who is responsible for the worker. He also argued for the general legal presumption to be that an individual is a worker unless the other party to the arrangement establishes that the only possible construction of the engagement was that the individual was not providing labour as a worker or employee.

He stressed that labour rights needed to apply from day one and all qualifying periods should be abolished.

On the subject of zero-hour contracts, Professor Countouris suggested that contracts must specify a minimum number of regular hours of work and that premium rates be paid for extra agreed hours. In conclusion, Professor Countouris told the conference that the objective would be to secure individual labour rights in a collective labour law context. This would include clear regulatory principles in statute to provide judges with a clear means to apply interpretation to employment legislation.

In answer to questions raised from the floor, Professors Countouris and Ewing reiterated that the Pimlico decision had raised more questions than it answered and that there was a danger that the concept of a ‘limb (b) worker” becomes central to a worker definition. Also the concept of a Ministry of Labour had been picked up by other think tanks and major political parties although little credit was being given to the origins of this proposal in 2013 from the Institute. Professor Ewing questioned the efficacy of equality legislation based on individual rights which has a limited role. He argued for a fundamental rethink of the structural problems which created inequality in the first place.

Download Nicola’s presentation

Health and Safety

Following coffee, Professor David Whyte, University of Liverpool, presented his case for the need for change in the health and safety regime. He reminded conference that the concept of regulation in this field had been under attack for four decades and that enforcement in many real senses was now non-existent, leading to workers in non-unionised workplaces being effectively unprotected. He stressed how important it is that health and safety moves to the heart of the employment rights agenda. To address this, Professor Whyte proposed the establishment of inspection and enforcement regimes that are ILO compliant and that policies prohibiting unannounced inspections to “low risk” workplaces be repealed. The numbers of inspectors at HSE and local authority level needed to be substantially increased and adequate funding provided to enable this.

Professor Whyte also argued for improved recompense for workers, including the right to seek compensation through civil actions for breaches of statutory duty and universal entitlements to sick pay that reflect a substantial proportion of normal pay. Recognising the changes in workers’ status, he proposed that the legislation provide protection for workers by ensuring the core duty is focused on “businesses” rather than just employers. Health and safety duties should also be applied to heads of supply chains.

He argued for an enhancement of the role of workers through trade union safety representative’s powers and the right of trade unions to initiate private prosecutions against wrongdoers. Safety representatives should be allowed to stop the job. He drew attention to the fact that trade union organised workplaces are safer than non-organised workplaces. Business should have the duty to consult all workers, not just employees, who may be affected by their activities.

He concluded by emphasising the need to reverse deregulation policies and ensure that decent work is no longer considered a radical demand but a matter of human rights.

Download David’s presentation

Trade deals and supply chains

The next speaker was Dr Aristea Koukiadaki from the University of Manchester. She examined the links between the structuring of global supply chains and worker exploitation. She began by highlighting the limitations of voluntary initiatives, the absence of labour standards in global supply chains being excluded from trade agreements and the absence of a binding international treaty on the issue.

Aristea suggested that by harnessing the power of large employers, the supply chains can be regulated. She went on to argue for an integrated approach to regulating global supply chains and provided examples of regulatory options at domestic level, for example, in the UK by increasing transparency in global supply chains through amendments to the Modern Slavery Act 2015. The most appropriate solution would see the integration of the UN guiding principles on human rights with the duty of care. She referred to the 2017 French law on vigilance, which she described as a historic step towards introducing due diligence in global supply chains. In addition, she referenced regulatory developments in Australia, the USA and Europe on illegal logging and minerals illegally produced. She suggested that the responsibility for disclosure should switch to companies from the existing watchdogs on exploitation and reverse the burden of proof of exploitation to employers to show that they have not exploited the workers in question.

At an international level, Aristea argued for making trade agreements with third countries conditional upon the observance of human rights and labour standards and referred to the 2014 UN Human Rights resolution on an international legally binding instrument on Transnational Corporations and Other Business Enterprises with respect to human rights. She also referred to the ILO Maritime Convention 2006 as a possible blueprint for regulatory innovation in global supply chains. She concluded by summarising her arguments for labour standards in global supply chains and the need for complementary policy mechanisms which went beyond transparency requirements and mainstream labour issues in all aspects of trade agreements.

Download Aristrea’s presentation

From the floor, the relationship between workers’ rights and social rights was raised in the context of health protections and care. The UK is signed up to international treaties on health protections which includes health and safety at work and it was suggested that we should use social rights as part of the approach to improve workers’ health and safety rights at work. Facility time for safety representatives was also raised as the reality was that, regardless of the theory of unlimited time, restrictions from employers meant that representatives weren’t able to fulfil their duties.

Professor Whyte responded by saying that the issue was not one of non-compliance with ILO regulations, since the UK has not agreed to them. On international social rights he accepted that these can be effective but the problem was that an approach on enforcement was required based on legislative rights established in the UK. On facility time he thought that we might consider ring-fencing facility time for safety representatives.

Union recognition

Following lunch, Sarah Veale, previously Head of Employment Rights at the TUC, made the case for replacing the failed trade union recognition laws in the UK. She summarised the current situation as providing an imbalance in current law with trade unions operating in a hostile legislative environment, and the failure of the law to recognise trade unions as legitimate representatives of workers. She pointed to the current provisions in the Employment Relations Act 1999 which had replaced the previous system with one based on voluntarism and the need for unions to secure large majorities in secret ballots, overcome restricted rights to access and the employers ability to challenge union claims for recognition. She referred to the extraordinary threshold system of determining ballot outcomes, which are unheard of in any other democratic process in the UK. Effectively, unions have to strive for recognition with both arms tied behind their backs, while employers have overarching rights to challenge claims.

To address this imbalance, Sarah argues for new laws that would give preferential treatment to trade unions, rely on short and easy provisions, and restrict employers in order to encourage voluntary agreements. Sarah outlined some key principles which she felt should be included in the new law. These included recognition that trade unions are legitimate representative bodies – not dependent on size or density; that the CAC has a duty to promote collective bargaining; statutory recognition validity based on simple 10% support; and right of access once notification is issued. She also argued that trade unions should have the right to determine the bargaining unit.

Sarah asserted that unfair labour practices should be outlawed with burden of proof on employers to show that the practice complained of was not unfair. In the event that an unfair labour practice is upheld then automatic recognition should be granted, and that restrictions should be introduced on de-recognition. This was previously promised by a Labour government but implementation was obstructed by the CBI. Once awarded recognition, a right to collectively bargain over a wide range of issues would apply. Rather than the de-recognition processes currently provided, Sarah concluded by arguing that awards for statutory recognition should apply for a minimum of five years and should continue regardless of transfer of employer.

Download Sarah’s presentation

Sectoral Collective Bargaining: making it work

The final speaker at the conference was John Hendy QC, the Chairperson of IER. He presented his thoughts on how sectoral collective bargaining should work. He started by emphasising that sectoral collective bargaining is a central feature of the Manifesto for Labour Law. He evidenced the need for reform by highlighting that real wages have not risen for many years whilst profits continue to soar; state benefits are subsidising poor paying employers on a scale never previously known; and only 20% of workers are covered by collective bargaining, the remainder relying upon the whim and goodwill of the employer.

This is the second lowest level of collective bargaining coverage across Europe; only Lithuania has a lower level at 15%. This is why collective bargaining has to be restored on a massive scale. The four pillars forming the basis for collective bargaining are based on the recognition of the imbalance of power between worker and the employer; the redress of inequality; the recreation of the workers’ voice; and the economic argument, which shows collective bargaining is good for enterprises as well as for workers.

The previous wages councils form a model for sectoral bargaining, which can be tweaked to meet the demands of the modern workforce. The new Ministry of Labour would be responsible for re-establishing sectoral bargaining. It would have powers to determine the boundaries of sectors and the establishment of an industry joint council for each sector. Trade unions would have to decide which unions should sit on each council. The Institute would want to see a model disputes procedure to overcome any deadlock and ultimately industrial action could be taken. Where this is not appropriate, the Secretary of State should have power to impose on the Joint Council three independent members to determine an outcome.

The Institute would suggest a list of mandatory subjects coming under the purview of the Joint Councils, which along with the obvious terms and conditions would include training and skills, promotion, equal pay, removal of gender pay gap etc.

John felt this would encourage trade union membership to engage in their workplaces, a participatory democracy in which workers would have a say in their futures. Whilst this places a burden on trade unions with increased resources needed, John felt sure that the unions would rise to the challenge.

Download John Hendy’s presentation

In the subsequent discussion, questions were posed regarding the impact on migrants of the collective bargaining mechanisms and how young people can be engaged in this new industrial environment. This latter point was answered by John Hendy with a plea to trade unions to take responsibility to educate its membership on the future role envisaged by the Institute’s Manifesto. Sarah added that immigration and visa restrictions needed to be addressed separately and that the Education Secretary needs to get schools to ensure young people understand better the world of work and their rights.

The conference chair brought proceedings to an end by exhorting delegates to be multipliers on what has been heard and to spread the message beyond the conference.