REVIEW: The ‘Manifesto for Labour Law’: an idea whose time is coming

13 September 2016

By Trade Union Futures

It must have seemed a lonely furrow at times. For years now, the Institute of Employment Rights has been the go-to source of expertise and thought on workers rights for the left in the trade union movement. But successive New Labour governments showed themselves to be profoundly uninterested in tackling the iniquities of Britain’s labour market, preferring to wish them away with utopian fantasies about the knowledge economy. The Coalition and its Tory successor of course have launched a further frontal attack on the few rights and protections left to organised labour. But such has been the electrifying power of the left revival around Jeremy Corbyn that suddenly, the issue of workers rights is back on the agenda. Even Corbyn’s ‘moderate’ opponent Owen Smith declares himself in favour of collective bargaining now and suddenly the IER finds itself in possession of the appropriate ideas for the moment.

And in timely fashion, ahead of this year’s TUC, the Institute has published its Manifesto for Labour Law, nothing less than a comprehensive programme for overhauling the legal framework within which Britain goes to work and in which its hard pressed unions attempt to organise. The Manifesto’s starting point is that Britain’s labour market has been devastated by 35 years of neoliberal legal reform. With great deliberation, Tory governments have slashed workers’ rights, crippled unions’ ability to exercise collective muscle and restricted workers’ individual access to justice. The legal framework of the labour market has become an iron cage, remade in the image of the neoliberal market fantasy: the abstract working individual now confronts the employer and the state alone, powerless in the face of massive concrete economic and political coercion. Employers have used this environment to effect a historic wage grab and to restructure the labour market, introducing a proliferation of new contract types that erode employment rights and increase dependence and poverty, from the zero hours contracts in the service industries to the bogus self-employment of construction sector and the ‘gig’ economy. The individual’s theoretical right to redress is worthless in the face of the reality of the modern workplace: unions in a historic retreat; an absence of collective rights; a remote and hostile state; a prohibitively costly tribunal system; the constant threat of unemployment and a job market increasingly characterised by precarious and poor quality work.

The centrepiece of the Institute’s solution is a massive investment of political will in creating institutions and a legal structure to support the recreation of collective bargaining. The various reforms to employment law proposed in this document all flow from this one simple idea. A new Ministry of Labour would be given responsibility for establishing a series of sector-wide collective agreements which would act as legally enforceable wage and condition floors. Within this, enterprise level collective bargaining could still take place but with the scope to adapt and improve around this floor. The attractions of such an approach are obvious for unions struggling to organise and bargain enterprise by enterprise in the context of today’s fragmented workplaces and complex company structures.

The authors argue that such an approach would also push the state back from its currently extended role in the labour market. Where the state currently steps in to regulate the detail of working life, under these proposals the onus would be on unions and employers to resolve issues within the context of multi-employer collective agreements. Placing collective bargaining back at the centre of regulating the workplace also creates a powerful logic in favour of rolling back Britain’s draconian restrictions on unions’ freedom of association and creating a positive right to withhold labour. The authors point out that unusually, Britain’s law views strike action as a breach of common law, a tort from which unions are only protected in certain highly restricted conditions.

Why the emphasis on collective bargaining? Why privilege this particular policy solution? Some have argued that the British labour movement’s historic attachment to free collective bargaining was a mistake and have turned instead to trying to build a political case for widening the stakeholder base of British businesses by including workers on the boards. Others have argued that the job formerly done by unions would be just as well performed by giving everyone a basic or citizens income. The IER pamphlet does not reject these measures, but it does make a sustained case for collective bargaining. At the heart of this case is the collective voice or power of workers. Collective bargaining can be an effective vehicle of workplace democracy and social justice, not just giving voice to workers but confronting the employer’s entrenched powers of coercion with the mobilised collective power of labour. They also argue that it can be an instrument of an alternative economic policy. In place of the vicious cycle of wage stagnation offset by the creation of consumer credit bubbles, collective bargaining offers not just an effective way of establishing appropriate wage levels in different sectors but a way of boosting workers earnings and encouraging greater spending. They also suggest that it would play a role in altering the incentive structure of firms by directing them away from a short-termist focus on the bottom line and toward investment in longer term research and development. At this point it becomes apparent (though it is not explicitly stated) that the IER’s proposals make most sense when seen as part of a wider alternative economic and political strategy such as has been advocated for years by the Communist Party and its allies on the left, and now arguably being developed by Shadow Chancellor John McDonnell.* Seen in such a context, legal reforms to the labour market would support action to create an active state, based on democratic control of finance and the use of public stakes in strategically important firms to reorient the economy away from the short term need of finance capital and towards a programme to resolve Britain’s economic crisis in favour of the working class.

But the particular emphasis on collective bargaining in the Manifesto is important for another reason. It’s because it places the working class at the centre of the story as the agent of its own destiny. The great advantage of the Manifesto over proposals like, say basic income, or ‘workers on the boards’ is not only that it’s more efficient or that it supports an alternative economic strategy but that it implicitly emphasises and explicitly licences the role of workers in active struggling to deliver this alternative.

As our briefing note explains, capitalist societies, collective bargaining takes place in the context of the struggle in the workplace as a moment of temporary truce between workers and their employers. Collective bargaining and the disruption of production are the mode of existence of workers’ struggles in the workplace. This is what makes unions essential ‘schools’ in which workers learn to combine to improve their conditions. Unions actively engaged in struggle around collective bargaining are also the vital precondition for the formation of wider political class consciousness. Workers who are not prepared to mobilise and struggle around trade union collective bargaining objectives are unlikely to develop the experience of struggle, understanding of power and wider political consciousness necessary to pose more profound challenges to the social order. Basic income and its derivative forms by comparison, can be seen as a technocratic solution that obscures issues of class power and relegates active struggle and its consequences to the background.

The union movement has a huge amount to gain from the Manifesto and the union left must press the Labour Party’s Workforce 2020 consultation for a future Labour government to implement it in full. By the same token, it will not suffice for unions to simply put their heads down and bet the house on a Labour government. Unions must also earn the political will they seek to mobilise by deploying imaginative strategies that can put the question of collective struggle around collective bargaining back on the agenda in more workplaces. The challenges of doing this are immense, no doubt. Public sector national collective bargaining structures and practices are being rolled back and undermined everywhere. Private sector collective bargaining coverage is desperately low. But established collective bargaining structures did not always exist. They were created out of a historical conjuncture in which shop stewards exerted increasingly coordinated power at shop floor level, increasingly concentrated capitalist industries found that they could not function on the old model of industrial relations and in which a crisis afflicted state discovered that it needed a measure of tripartism and planning. Unions must start to play their role in developing workplace struggles and raising the question of the benefits of collective bargaining in a concrete form, posing the current model as a problem of order for the state and of orderly business for employers. Then perhaps, the IER’s hugely impressive Manifesto stands a chance of becoming a truly materially forceful idea.

*See for example, Manifesto Press’s ‘Building an Economy for the People’ as well as the plans coming from the team around Jeremy Corbyn’s Labour leadership.

Originally published by Trade Union Futures