By Adrian Weir, Assistant Secretary, Campaign for Trade Union Freedom
The Employment Rights Bill is, remarkably, possibly the only policy that has survived the transition from the leadership of Jeremy Corbyn to Labour under Keir Starmer. In the Corbyn era, in its earlier iteration, the Bill was a Green Paper known as the New Deal for Working People.
Equally as remarkable was that the Shadow Secretary of State responsible for the New Deal, Andy McDonald MP, was kept on under Starmer but not for long as clearly the new thinking in the Labour leadership had viewed New Deal for Working People as going too far on the side of trade union and worker rights.
At the meeting of Labour’s National Policy Forum last summer, although held behind closed doors, it became apparent that there was at attempt by the claque around Starmer to limit the scope of the New Deal for Working People.
After the NPF the labour rights proposals became known as Making Work Pay: Delivering a New Deal for Working People that was eventually introduced into Parliament as the Employment Rights Bill.
I want to highlight 8 areas of weakness in the Bill, identified by our friends at the Institute of Employment Rights but this is by no means a comprehensive critique of it.
Starting with Single Status of Worker. Currently people at work are classified in three ways:
- employee that we’re mostly familiar with – ”on the cards” – gets paid a regular wage or salary – enjoys most if not all employment rights
- worker who gets paid by the task – for example, each delivery made by an Uber Eats rider – employers try to say self-employed contractor but the law has mostly said worker – enjoy fewer employment rights
- self-employed for our purposes we’re discussing the mostly bogus self-employed, particularly in the construction industry, enjoy virtually no employment rights.
Prior to publication of the Bill, Labour was committed to a move to single status of worker that would have only excluded the genuinely self-employed in business on their own account. But the Employment Rights Bill does not deliver on this.
In fact, it adds to the complexity in that it gives some new rights to employees, some new rights to workers and some rights to new categories of ad hoc workers.
Moving on to Union Recognition. In the 25 years since a statutory recognition procedure was carried into law it has been beset with problems. For example, employers either challenge the figures for employee support in the courts or mount aggressive anti-union campaigns.
The Bill does propose to significantly lower the thresholds (from 10% support down to even as low as 2% to initiate the procedure and, a simple majority of those voting in any formal ballot) needed to pursue a claim for statutory recognition but any system that has a ballot as its end point is likely to be bedevilled by aggressive employers’ countermeasures, as happened at Amazon Coventry.
Turning to Zero Hours Contracts. Prior to publication Labour proposed to ban “exploitative” zero hours contracts saying that everyone should have a contract that reflects the number of hours they regularly work in a 12 week reference period.
The Bill says that employers must offer zero hours and low hours workers a contract based on “guaranteed hours” drawn from the reference period – workers would be free to decline a guaranteed hours contract – but there are insufficient safeguards to prevent workers being coerced into not accepting a guaranteed hours contract and thereby staying on zero hour arrangements.
Turning next to Fire and Rehire. Labour promised to end the scourge of fire and rehire. However, the Bill does not ban fire and rehire outright. Employers are given a significant get out if the reason for fire and rehire was for a substantial business reason to keep the business solvent.
The terms of the Bill would not cover at all the P&O Ferries situation where the workforce was fired and replaced with a new set of workers supplied by an overseas employment agency.
No immediate, injunctive relief is on offer to workers unfairly subjected to fire and rehire.
On the question of Trade Union Access Labour had a clear commitment to allow for trade union access to workplaces for recruitment and organisational purposes. The Bill does not provide for this; it sets out a procedure for negotiating with employers to reach an access agreement, which is not the same as a right of access. A really obstinate employer may have to pay the equivalent of a fine if access is continually denied but a fine does nothing for a union in gaining access.
Collective Bargaining was the most equalising social system ever devised. The collapse of collective bargaining over the past 45 years is a causal factor in the long term decline in working class living standards and share of the national wealth.
Labour promised to establish Fair Pay Agreements across the economy to be negotiated through sector wide collective bargaining. This single move could have gone some distance in restoring to working people a fairer share of national wealth.
But, the Bill proposes just two FPAs, in adult social care and school support staff, and even then it’s not really collective bargaining as if the unions and employers come up with a deal the appropriate Secretary of State does not like it s/he can impose a settlement.
There is no provision in the Bill to roll out sector wide collective bargaining in any sector of the economy.
On industrial action Labour made a commitment to “[repeal] anti-trade union legislation … in order to remove unnecessary restrictions on trade union activity … the laws regulating industrial action should ensure that UK law complies in every respect with the international obligations ratified by the UK, including those of the International Labour Organisation and the European Social Charter.”
This was assumed to mean that the most restrictive anti-trade union law from the 1980s and ‘90s would be repealed as well as more recent anti-union laws. In the event, the Bill only proposes to repeal the Strikes (Minimum Service Levels) Act, 2023 and most, but not all, of the Trade Union Act, 2016.
This means that UK labour law will remain outside of the provisions of international standards that UK governments have signed up to. Essentially workers in the UK will still be denied a meaningful right to strike with, for example, complex balloting arrangements, no solidarity action permissible, giving the employer notice of industrial action and, limitations on picketing. The volume and complexity of the 1980s legalisation denies the right to strike to workers in the UK.
Finally, on Equalities the Bill falls short of what it could have delivered. Much of what is promised will be enacted through Regulations rather than being in the primary legislation so will allow for much more ministerial discretion. New rights and enforcement methods on sexual harassment, equal pay and family friendly rights should be much clearer and in the text of the Bill.
Many of the proposals in the Bill have been significantly diluted since the original publication of New Deal for Working People probably at the behest of business and lack of commitment among the Labour leadership. So we’ve ended up with what has been called a “good” Bill but not a “great” Bill.
The Campaign for Trade Union Freedom is hosting a rally on 22 March aimed to mobilising union activists and supporters to take action on strengthening the Bill; to make it clear that the Bill should be a legal intervention on the side of workers and their unions, to redress the legal imbalances in the workplace that we have endured since the Thatcher era.
Speakers at the rally will have first-hand experience of dealing with the great injustices of our age including outsourcing, union recognition when faced with a hostile employer and fire and rehire, P&O Ferries style. Trade union general secretaries and leading legal experts will highlight the Bill’s deficiencies and make the case for Amendments as the Bill passes through Parliament.
No one will advocate that MPs should vote against the Bill but our movement really does need to campaign so that the Bill gives us what we need; we should never be in the position of just accepting what’s on offer.
See you at the rally!
This blog was first published on Labour Outlook
