REVIEW: Manifesto sets out stall on new workers’ rights

30 August 2016 By the Labour Research Department Britain’s largest unions are backing comprehensive policy proposals for a framework of collective bargaining, underpinned by strong trade union rights, drawn up by 15 of the UK’s leading labour lawyers. 

30 Aug 2016| News

30 August 2016

By the Labour Research Department

Britain’s largest unions are backing comprehensive policy proposals for a framework of collective bargaining, underpinned by strong trade union rights, drawn up by 15 of the UK’s leading labour lawyers. 

A manifesto for labour law was developed by lawyers for the Institute of Employment Rights (IER) in response to a request from Labour Party leader Jeremy Corbyn. The proposals have been backed both by him and by leadership challenger Owen Smith. 

IER director Carolyn Jones (who edited the Manifesto alongside Professor Keith Ewing and john Hendy QC) says the manifesto’s 25 major policy proposals “show how the law can be used to create fair, just, secure, democratic and productive conditions of work which will diminish inequality and benefit the economy”.

The manifesto’s main plank is the reinstatement of sectoral (industry-wide, multi-employer) collective bargaining along the lines deployed in Germany, Sweden, Norway and Denmark. 

Sector-level collective bargaining works by creating a floor of collectively bargained basic terms applicable to all employers in the sector. The terms are binding on all employers within the sector, whether or not they recognise trade unions or participate in the bargaining process. The minimum terms can be improved upon through local bargaining or in individual employment contracts, but they cannot be undercut.

The manifesto’s authors say this forces employers to compete by innovating and investing in their workforce, rather than cutting wages. This works to improve productivity and increase wages, stimulating demand. The process can also help tackle some of the problems linked to immigration and the importing of cheap labour.

The authors estimate that collective bargaining coverage across the UK has fallen to less than 20%, and that the plan would need a new institutional framework of sector-level collective bargaining machinery. To achieve this, the proposals include a new Ministry of Labour responsible for promoting collective bargaining, and Sectoral Employment Commissions that would set minimum terms and conditions for each industry, through the negotiation of sector-level agreements. 

The authors acknowledge that there would still be a need for legislation under this kind of system. They point out that effective collective bargaining needs strong state support, and also that there would remain a need for basic employment rights, since some workers would inevitably fall beyond the scope of collective bargaining. 

They say one of the fundamental flaws in the current employment rights regime is that it was built around a pattern of work — direct, permanent, full-time, continuous employment — that no longer reflects the experience of many of the most vulnerable workers. They are often excluded because of precarious working patterns, or because their employer has deliberately devised a mechanism, such as the use of “umbrella companies”, to avoid employment and tax liabilities. 

The manifesto argues that labour rights should apply to all workers, and it contains radical proposals to achieve this. These include a new, more straightforward definition of “worker” (the entry-test for many statutory employment rights) and a presumption that everyone is a worker unless the employer can prove otherwise. Some of the most exploitative arrangements, such as “umbrella” contracts”, could be deemed to create an “employment relationship”. Service continuity barriers could be removed by making most employment rights into “day one” rights.

Employment rights are worthless if they cannot be enforced, and the manifesto makes several recommendations including abolishing tribunal fees, removing the mandatory element of Acas early conciliation and allowing unions to initiate legal proceedings on behalf of workers. The authors say a system based on collective bargaining should result in a reduced role for the employment tribunal, because more disputes should be resolved using collectively agreed dispute resolution procedures.

Many of the other proposals on individual employment rights in the manifesto are already the focus of union campaigning. They include: a legal duty to give all workers enough information for them to be able to see how their wages have been calculated; “defined hours contracts” to combat the spread of zero-hours-contracts; statutory rights for equality reps. Improved health and safety rights would include: allowing “roving safety reps” to visit workplaces where a union is not recognised; the reversal of the many negative changes to the inspection and enforcement regime; and the restoration of civil liability for breaches of health and safety regulations, abolished in 2013. 

There are also strong recommendations on trade union autonomy and freedom of association, based on international standards. The authors propose that trade unions should be allowed to regulate themselves, but with rules approved by the Certification Officer. Breaches should be only actionable by a trade union member and nobody else. Laws banning blacklisting and union victimisation must be strengthened and the Trade Union Act 2016 must be repealed. 

The manifesto proposes a wholesale rewriting of strike laws, reversing the existing presumption that industrial action is unlawful unless it meets stringent statutory tests, and legislating instead for a positive right to strike, including sympathy strikes.

The manifesto has so far been backed by the Unite and GMB general unions, public services union UNISON, the NUT teachers’ union, BFAWU food workers’ union, the CWU communications union and the Fire Brigades Union.

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This article was originally published by LRD