Category Archives: Unions

Injustice in Post Industrial Communities

By Simon John Duffy, Centre for Welfare Reform (@CforWR).

The Centre for Employment Relations Innovation and Change and Hope Not Hate came together to run an exciting cross-disciplinary event: A Future for Post Industrial Communities? The event, organised by CERIC’s Professor Jane Holgate, was lively, stimulating and wove together a vast array of information, helped by the use of the PechaKucha format, which forced all the presenters to concentrate their presentations to an essential minimum.

The central focus of the two days of discussion was the fate of the many towns and villages across the North, the Midlands, Scotland and Wales where heavy industry or mining had once been dominant. Where once the Labour Party was strong now there was growing support for UKIP and a strong vote for Brexit.

Academic research demonstrated that, contrary to the stereotypes, in these places people work hard and took care of each other, but struggled with low pay, job insecurity, benefit sanctions and growing poverty. Today the UK is the most unequal country in Europe, and these communities are on the wrong end of that inequality.

Many also noted that that these communities also lacked power. The UK is the most centralised welfare state in the world and in these places people have minimal democratic control and minimal representation in London. They seem abandoned by mainstream politics. Moreover social structures, the meeting places, the pubs, churches, working men’s clubs and leisure facilities had all declined. People have few opportunities to meet, organise or advocate for themselves. Poverty has been privatised.

These facts are rarely discussed and the assumption is that these places are now client states, dependent on subsidies from London. The truth is very different. For instance, if you calculate public spending in Barnsley it is £0.84 billion less than what you’d expect if you divided all public spending equally by head of population.

Barnsley Public Spending

The negative consequences of these overlapping injustices are severe and include much lower life expectancy. Yet none of this is inevitable; it was encouraging to hear that in other countries, like Germany, industrial change has not led to these kinds of problems. Communities can be supported to develop and to get back on their feet.

A further concern was that racism can feed off these social injustices. Speakers from Hope Not Hate shared their experiences of successfully over-turning prejudice in local communities where racists had exploited people’s fears and anger. But this also raised the question of what comes first: racism or injustice. And if, as most agreed, injustice comes first, how were we to understand and challenge that injustice.

Over the course of these two days I found my head whirling with competing categories and different understandings of social justice. Victims and perpetrators often seem to change places and people were forced to wear or to shed the group identities that mattered to some theory, but possibly not to people themselves:

– White working class men are seen by some as a threat

– White working class men are seen by others as victims

– But do white working class men really exist?

– Whose interests does this identity serve?

– Probably not the people shoehorned into it

Clearly some identities matter because others have chosen to use those identities for the purpose of scapegoating or vile attack. Categories like race, disability or native country become desperately important if others are using these categories hatefully. Yet we may think that these identities shouldn’t be important. It is injustice itself that has made them relevant.

For some these problems are obviously a function of capitalism. For others they are a function of class and elitism. Others stressed the organisation of power and the dominance of London and the big cities. Others looked back to the securities provided by large or nationalised industries; while some looked forward about to new forms of cooperative enterprise or community action.

What is critical here seems to be our sense of what is that actual reform or action that will reduce injustice. Politicians talk about ‘investment’ in these communities; but, reasonable as this seems, the reality is more complex. Often it amounts to no more than selling off our assets, our industries and our people. In Salford increased investment led to new offices and BBC premises, but local people saw no improvements. Increasingly housing policies has disconnected people from their communities: forcing people to move out just as the money comes in. We cannot assume that places and people are connected if people have no right to stay in their home communities.

Some, but not all, were attracted to the idea that power and money must down to community. Only if people can make their own decisions, shape their communities around their own assets and goals, can communities flourish. Others preferred the idea of national industries and even greater central control. Some were understandably suspicious that governments will exploit localism and asset-based approaches in order to disguise the structural injustices created by their own policies.

Perhaps one telling trend was the agreement across a range of speakers that change must begin by listening to and empowering communities. The Labour Party, trade unions, Citizens UK and Hope Not Hate have all made community organising a central plank of their strategies.

However this reinforces the need for more thinking about devolution in the UK. If we need to listen more now then that suggests that the current system is badly designed. If local communities are given more power, but the financial settlements are unfair, then this will just increase injustice. If devolution means merging large local authorities into even large areas, under the control of one mayor, then the powerlessness of smaller communities will only increase.

This two day conference did not resolve these issues, but it was certainly one of the richest discussions that I’ve been involved in. Brexit seems an unfortunate backwards step for the UK; but if it forces us to pay more attention to the deep and underlying injustices in the UK today then it will have at least one positive consequence.

Brexit and worker’s rights: should workers and trade unions be concerned?

DSC_4741

Dr Liz Oliver

Brexit creates uncertainty for important employment rights. Very many of the employment rights that have come to be expected as part of an employment relationship in the UK derive from EU law. Should the UK no longer be obliged to maintain these as part of its obligations under whatever relationship it has to the EU, then their future becomes much less certain. Could, on the other hand, Brexit create an opportunity for employment rights? An opportunity to re-think the way that employment law and other forms of regulation (such as collective bargaining) work together in a way that suits the economy in UK and responds to the national and global challenges that workers face? The answer to that question very much depends on the opportunity for an open and informed democratic debate. Whilst the Government is making assurances about protecting the workers’ rights, the mechanism by which it is doing this – ‘a Great Repeal Bill’ – potentially contains a back door through which such provisions could be readily amended or repealed without the full scrutiny of Parliament. Unfortunately therefore both workers and trade unions are right to be concerned.

What is at stake?

The impact of EU law on employment in the UK reaches far and wide, encompassing equality legislation; pregnancy; maternity and parental leave; paid holiday; employee rights in the context of insolvency; collective consultation in the context of redundancy to name but a few areas. Others have mapped this in great detail.

The impact of Brexit on this body of workers’ rights depends on two main contingencies;

  • the nature of the future relationship with the EU and
  • the political climate with regard to employment regulation at national level

It seems unlikely that the UK’s future relationship with the EU will entail obligations in the area of employment and other social law but much remains to be seen. As details of the Prime Minister’s negotiating strategy emerge in particular the intention to leave the single market and customs union and not to contemplate existing models such as ‘the Norway option’ which would entail continued membership of the European Economic Area. It becomes clearer that the overriding goal is for the UK’s future relationship with the EU to entail minimal to non-existent obligations. Nevertheless much remains to be seen. The Prime Minister’s speech and the subsequent white paper set out her unilateral intentions ahead of the negotiation with the other Member States of the EU. As such, it is aspirational and projects an intention for Theresa May to have her cake and eat it too. Any concessions around key objectives such as the “greatest possible access” to the single market and “tariff-free trade with Europe and cross-border trade there to be as frictionless as possible” will come with considerable strings attached.

In terms of the political climate with regard to employment regulation, the picture here is mixed. The current Government has not taken the overtly deregulatory stance of the Coalition Government or previous Conservative Government and the Prime Minister and her government have made assurances about protecting workers rights. Nevertheless concrete legal steps to ensure that current standards are maintained are lacking. Of particular significance is the distribution of power between the Executive (Government) and Parliament in decision making in the area of employment law. This important matter will shape extent to which matters of employment law will be opened up to democratic debate.

To what extent will worker’s rights be protected and maintained through the Brexit process and beyond?

The EU law that is relevant to employment takes different forms and takes effect at national level in different ways. Whilst some employment law derived from the EU can be found in Acts of Parliament (primary law) other provisions have been transposed using secondary legislation based on the European Communities Act 1972 and others still take effect automatically because they are directly applicable (The European Communities Act 1972 allows such provisions to have effect without further enactment).

Brexit poses two types of issues 1) technical issues about the form and function of different provisions and 2) issues of substance about what role employment law should take within the UK.  As the discussion below will show. The two issues interrelate.

Following the referendum result some called for a repeal of the European Communities Act 1972 (in order to ‘undo’ EU law), but it was clear that that position would be unworkable. The Prime Minister has instead announced a bridging mechanism in the form of a ‘Great Repeal Bill’ which will repeal the European Communities Act 1972 and transpose existing EU law into national law. The Government’s white paper on the UK’s exit from the EU contains assurances about worker’s rights:

“The Great Repeal Bill will maintain the protections and standards that benefit workers. Moreover, this Government has committed not only to safeguard the rights of workers set out in European legislation, but to enhance them”

On the one hand this looks like a sensible idea. It maintains legal certainly and potentially opens up a space to review what provisions to keep and whether or how to change or remove them. But an important question is who gets to make these decisions. Will it be Parliament or will it be the Government?

Constitutional lawyers have identified the proposed use of enabling provisions within Great Repeal Bill as a stumbling block to achieving enhanced Parliamentary sovereignty. The Department for Exiting the European Union’s announcement states “The Repeal Bill will include powers for ministers to make some changes by secondary legislation, giving the Government the flexibility to take account of the negotiations with the EU as they proceed.” Such enabling provisions may give ministers the power to amend or repeal former EU law based on the Great Repeal Act using ‘light touch’ secondary legislation. Of particular concern are so called ‘Henry VIII’ clauses which would allow for the repeal of primary law without further Parliamentary scrutiny, these could open up employment law that is already enacted by Acts of Parliament to amendment or repeal. It raises concerns that the ‘back door’ is left open for the Government to make significant changes to employment law without full debate or scrutiny. The scope and exercise of such powers will delineate the potential for Parliamentary (democratic) debate about what employment standards are expected by workers and employers within the UK.

The size and shape of the ‘back door’ is yet to be seen but talking about assurances that the Government has given on worker’s rights one legal expert notes

“There’s a definite “fox in charge of the henhouse” vibe here – quite literally so, if we remind ourselves of cabinet minister Liam Fox’s attitude to EU employment regulation”.

Workers and trade unions are right to be concerned and to seek legal mechanisms to guarantee employment rights.

Attempts to assure worker’s rights

Labour MP Melanie Onn introduced a private members Bill ‘The Workers’ Rights (Maintenance of EU Standards) Bill’ as an attempt to ensure that the current legal regime remains in place, however this was ‘talked out’ of Parliament on Friday (13th January).

Several amendments to the ‘Article 50 Bill’ (European Union (Notification of Withdrawal) Bill 2016-17) seeking to protect employment law were tabled. These took different forms, some sought to ensure  that the Prime Minister have regard to the public interest in existing social rights and others sought to ensure that current provisions are maintained and that Parliament has full scrutiny of any proposed changes to primary and secondary law. None of these amendments have held.

My view

Whilst some have argued that the removal of key employment protections that derive from EU law would be ‘politically unthinkable’ others argue that it would be ‘naïve’ to assume that any of the rights derived from EU law would be immune from repeal. It is my view is that a government with a deregulatory agenda can make important changes to employment law that are far reaching yet subtle, even where whole-sale deregulation would be politically unworkable (see previous blog post). The use of Henry VIII clauses within the proposed ‘Great Repeal Act’ could facilitate far-reaching changes without commensurate democratic debate. Employment law is complicated stuff, nothing short of a full and open democratic debate can support its appropriate reform. The Brexit domain is a million miles from this.

No shortcuts, organising for power

 

jane-mcalevey
Jane McAlevey

No shortcuts, organising for power
By Jane Holgate

On Tuesday 14 February 2017, Valentine’s Day, there was a large gathering at Congress House in London––the home of the UK’s Trade Union Congress. Over 150 people had forsaken candlelit dinners, wine and roses, instead choosing to attend a talk by Dr Jane McAlevey, whose new book, ‘No Shortcuts, organising for power in the new Gilded Age’, was being launched in the UK.  Professor Jane Holgate, from the Centre for Employment Relations, Innovation and Change, whose research work is around trade unions and organising strategies, was one of the organisers of this event. The room was filled with young (and old) trade unionists, community organisers, and people just interested in hearing what needs to be done to organise our communities to challenge the unequal power in society that has left many people either without jobs, or in low wage work that barely pays a living wage.

Dr McAlevey, a long-standing organiser in unions, and wider civil society, has recently completed a PhD on what is wrong with much of the ‘organising’ that is taking place today in many organisations­­––and particularly in unions. In conversation with the regional secretary of the South and Eastern TUC, who was hosting the event in conjunction with the charity Hope not Hate, she explained the crux of her argument­­––there is too great a focus on mobilising rather than organising: ‘most unions and social-change groups will say they’re organizing. I’m arguing that most are not—which is part of why we’re losing. The core difference to me is: what’s the role of the workers in the actual effort? Are the workers central to their own liberation? Are they central to the strategy to win a change in their workplace and in their communities? Or are they one teeny piece of a really complicated puzzle in which the workers’ voice and opinions are actually not decisive?’

The process of mobilizing tends to avoid involving rank and file workers, or the wider community––instead, she argues, that it tends to rely on pulling out the same already committed activists to protest, and thus is doing little to build a movement from the bottom up: ‘mobilizing is an activist-driven approach. Activists are the already converted who are not full-time professionals, or it could be full-time professionals in the movement—either one—but it’s people who are already with us. They already agree that Wall Street’s a problem; they already think that climate [change] is a problem; they already think that racism is a problem. They’re already standing with Black Lives Matter.’

Instead what is needed is deep organizing where people are expanding the base, where workers are central in organizing around their own issues that really matter to them, and where they are able to bring people along, either from their workplace, or their lived communities. What is also missing, she explained, is a proper understanding of power and how to challenge this. Dr McAlevey repeated said during the evening conversation that ‘life is a structure test’ by which she meant that there is a need to continually undertake power structure analysis when organizing to understand your opponent’s power and to assess the power there is within the communities in which you are organizing.  Only then, are you able to challenge that power and win concessions.

The problem with many trade unions campaigns today, she argued, is that they are top-down, where workers, if they come in at all, are pulled in at the end: ‘They are used as symbolic actors. They’re the face of the campaign. They’re trotted out to make testimony at the legislature about their bad boss, but they’re not actually central to the strategy. That’s the fundamental difference. The agency for change in the organizing model rests with ordinary people.’

The conversation with Dr McAlevey lasted two hours, but the evening of Valentine’s day wasn’t entirely without some reference to love. At the close, the audience was given paper hearts where they were asked to reflect on how they might organize differently reflecting on what they had heard. These hearts were put in sealed envelopes with the writer’s name and address and will be sent via post in a month’s time as a reminder of what they committed to this Valentine’s day.

‘No Shortcuts. Organising for Power in the new Gilded Age ‘can be bought from the publisher at Oxford University Press:

https://global.oup.com/academic/product/no-shortcuts-9780190624712?cc=gb&lang=en&

The business of the June Referendum and labour citizenship in the EU: what’s good for workers?

By Gabriella Alberti, Liz Oliver, Ian Greenwood and Chris Forde

Media coverage on the forthcoming Referendum over the UK’s membership of the EU continues to be dominated by economic predictions and intra/inter party posturing about the potential effects of Brexit. What is often lacking in the public media is an analysis of the substance of Cameron’s negotiations with the other EU members, and in particular, the consequences of a Leave or Remain decision for the employment rights and social protection of working people (including migrants) in the UK and in the EU. In what follows we bring together the expertise in CERIC as labour and legal scholars with the hope of sheding some light on the all too often empty debate on the consequences of leaving or staying in the EU, with the additional hope of bringing in some more international flavour. Our focus is on two elements of the negotiation: free movement of labour in the common market (in the context of a ‘Remain’ vote) and the protection of worker rights (in the context of a ‘Leave’ vote). We argue that while the agreement reached last February to meet the UK government’s conditions to Remain constitutes an important step to chip away at the equal treatment rights for all mobile workers in the EU, the Brexit scenario would have even more detrimental effects on the employment and bargaining rights of both UK nationals and migrants.

The untold story behind the Brexit debate: redrawing borders and labour rights

First, we look at the current state of negotiations over the free movement of labour. Motivated by attempts to forestall the exit of the UK from the European Union, the ‘set of arrangements’ put in place on the 18 and 19th of February 2016 to ‘address the concerns of the United Kingdom’ spans seven texts and covers many areas of EU competence. Even though the proposed revisions in the area of free movement do not introduce all-encompassing changes to the core principles of the common market for labour, good and services they represent a symbolic step away from the twinning of the free movement of workers with the principle of equal treatment for EU mobile workers with citizen workers of a member state. It is our view that in the context of membership of the EU’s internal market this equal treatment principle must go hand in hand with the free movement of workers in order to prevent a ‘race to the bottom’ and ‘social dumping’. The following sections consider the impact of the arrangements underpinning the UK’s continued membership of the EU on mobile workers (UK nationals living and working in other member states and nationals of other EU member states living and working in the UK).

Those aspects of ‘the set of arrangements’ that deal with migration comprise section D of the Decision Concerning a New Settlement for the United Kingdom within the European Union (which would become binding on the Member States in international law), and three Commission declarations, namely: one relating to child benefit exports, a second concerning the so called ‘emergency break on in-work benefits’ and the third addressing purported abuse of the right of free movement of persons (dealing with residence rights for non-EU family members and powers to deport EU national criminals (these are a political commitment by the Commission). The Decision will take effect upon the UK deciding to remain in the EU and if the changes it contains go ahead they would have consequences not only for the UK but for all EU Member states.

In the area of free movement, the declarations set out the Commission’s political commitment to change some of the secondary legislation that forms part of the framework for the free movement of persons. These amendments would not come into force automatically and it is not guaranteed that they would get through the EU’s legislative procedure, but through the Decision the Heads of State or Government legally bind themselves to “do all within their power to ensure [the] rapid adoption” of proposals in the area of the emergency break and child benefit. We focus our analysis on the emergency break because we think it is important to highlight the exception that it would create to the principle of non-discrimination.

What concerns us is that these arrangements contain the seeds for the erosion of the long-standing connection between freedom of movement and social protection for internal migrants in the EU common market (our focus is on workers who have generally enjoyed more extensive rights to equal treatment in the area of social benefits than other mobile EU citizens, since access to equal treatment is dependent on economic activity, degree of integration in the host state and the nature of the benefit claimed). This connection forms an important aspect of the protection of social and labour rights in the EU more broadly.

Tensions between internal market law and social and labour rights for EU citizens are increasingly recognised. In late 2015, we co-authored a Report with Prof Dagmar Schiek which explored the ways in which traditional interpretations of EU internal market law caused tensions and frictions for the protection of social and labour rights. All EU citizens can enter and reside freely in any EU country for three months but beyond that, residence and equal treatment rights differ depending on economic activity with workers or self employed people enjoying much more extensive rights. Such equal treatment in the field of social rights is meant to prevent a downward competitive pressure for all workers within the EU. As we argued in our report with Schiek:

“Putting equal treatment at the centre of the free movement of workers…not only corresponds to the Treaty’s demands, but also helps prevent the downward spirals of wages and employment conditions which may lead to contraction of Europe’s economies.” (p.22)

As also noted by the TUC, safeguards of this sort have reduced the risk of negative froms of competition that are inherent to participation within the internal market whereby member states compete on the basis of poor pay and conditions and reduced employment protection; the so called ‘race to the bottom’. Such protection is a necessary ingredient of participation within the internal market.

As we will show below, the new set of arrangements agreed in February thus creates the risk of a detrimental impact on the exercise of an important social right by internal migrants (that is both UK citizens living and working in another Member State and EU citizens living and working in the UK) and also starts to unpick (albeit in a modest way) some of the ways in which the harsher effects of membership of the internal market are modified. On the other hand the Brexit option, by opening to scrutiny the existing layers of social and labour protection that come from membership of the EU may well lead to even more detrimental effects for UK citizens.

Consequences of the ‘emergency break’ for the rights of moving workers

What has been highlighted less in debate is how – even with a Remain vote in June – the measures considered in the February Decision have the potential to undermine an important aspect of the framework for the free movement of workers, namely that a mobile EU worker should “enjoy the same social and tax advantages as national workers”. The Decision outlines a “safeguard mechanism” that would resond “to situations of inflow of workers from other Member States of an exceptional magnitude over an extended period of time”. In its declaration, the Commission sets out plans to table a proposal to amend Regulation (EU) No 492/2011 in order to bring this mechanism into being. Should the amendment go ahead (and withstand challenge), the mechanism popularly referred to as ‘the emergency break’ would be brought into being. Through this mechanism Member States would be able to withold access to non-contributory types of in-work benefits (like tax-credit and housing benefit). Nevertheless there are limitations on the circumstances in which the emergency break could be used and Member States must follow a procedure (which would involve a proposal from the European Commission and approval of the Council) before it could be used. The circumstances in which the use of the emergency break could be contemplated are: “an exceptional situation…on a scale that affects essential aspects of its social security system, including the primary purpose of its in-work benefits system, or which leads to difficulties which are serious and liable to persist in its employment market or are putting an excessive pressure on the proper functioning of its public services”. In this limited way EU member states could be authorised to discriminate against EU migrant workers in their access to non-contributory types of in-work benefits (i.e. wage subsidies usually provided for low-income workers). This ‘emergency brake’ is seen to over-ride the principle of equal treatment of EU workers; would be enforceable for a maximum of seven years and would apply to all ‘new arrivals’ for a maximum period of four years from the date of commencement of employment.

Why does this tightly defined exception concern us? With the ambition of going back to some issues in the debate that are rather taken for granted, we would like to emphasise the questionable assumptions behind the substance of this aspect of the agreement: that migrants who access this type of benefits seek to take advantage of the “generosity” of the host country’s welfare system, which would represent a magnet towards the country of immigration. This mythology of welfare tourism at the basis of current political compromises, is in fact far from what empirical evidence suggests (Touchstone 2014, Centre of European Reform 2016). Contrary to the idea that migrants represent a burden on public resources (a principle unfortunately legitimised by the current declaration) migrants are clear net contributors into the welfare systems of host countries (see OECD figures reported by INCA 2016). More broadly, the February agreement looks to amend the principle embedded in the regulation over free movement of workers (which is also central to EU regulations on the coordination of social security) in the EU.

equal pay women

In this context it is worth revisiting the origin of the free movement and social rights principles embedded in Article 45 of the Treaty on the Functioning of the European Union and Regulation (EU) No 492/2011 on freedom of movement for workers within the Union (and other provisions dealing with access to social security), the backbones of the regulation of the free movement of workers. Caldarini and Goldman (2016) note that if we look at the roots of the EU socio-legal architecture, alongside the core freedoms of movement for goods, services capital, and labour, the principle of social security for migrant workers established in the Treaties rests on the idea that, “to encourage the mobility of factors of production (labor) it is necessary to neutralize the discriminatory provisions on grounds of nationality present in the different national social security systems”. In other words, whilst wanting to encourage mobility, the principle of social security provision was not “a truly social measure” but was seen as a necessary element to grease the wheels of the newly constituted common market providing an incentive for European workers to move elsewhere for work.

The re-negotation of EU regulation on social benefits for mobile workers, under the pressure of the threat of Brexit thus risks in our view a potential further stratification of labour and social rights, even for workers who have traditionally enjoyed robust residence and equal treatement rights. A concerning scenario is one where even those who will continue to have the right to work in a host country will be officially treated as second class citizens in the EU. In our view this this is a basis to make these workers even more vulnerable to explotiative practices and lower pay. This will exacerbate the problem of social dumping under the overall rhetorics of ‘protecting the borders’ and the welfare state from alleged abuse. In sum, as a consequence of the battle against the assumed ‘social benefits fraud’ the reality of social dumping would thus come to replace the myth of welfare tourism thus engendering a downward pressure of labour conditions for all citizens and migrant workers.

Considering the potentially dangerous effects of the principles included under the political agreement reached by the EU 28, an outsider looking at the business of the Referendum may wonder: is Brexit then the answer to avoid a downward negotiation of EU minimum social and working standards (for the rest of EU citizens)? Given the EU origin of many of the current regulations protecting workers’ rights and the detrimental impact of curtailing social rights for migrants’ bargaining power in the workplace we are confident in saying that Brexit may lead to even worse effects for all those working in the UK.

 Impact of Brexit on workers’ rights and legal issues

The first thing to say about the impact of potential Brexit on UK workers rights is that what will happen to national employment law as a result really isn’t clear cut. This will very much depend on two main contingencies; the nature of the future relationship with the EU and then the political climate and responses at national level. The process of withdrawl from the EU entails negotiating a future relationship and the outcome of the process is an agreement setting that out. The agreement may entail social obligations. If for example the relationship between the UK and the EU resembaled that between Norway and the EU “the Norway Option” then the UK would still be obliged to comply with EU social law that is relevant to the European Economic Area (including the free movement of workers). The second thing to say flows from the first, change wouldn’t happen automatically as a result of a vote to leave the EU, the outcome of EU level negotiations will, in turn, shape national political responses in the realm of employment relations and employment law. That said very many of the employment rights that have come to be expected as part of an employment relationship in the UK derive from EU law. Should the UK no longer be obliged to maintain these as part of its obligations under whatever relationship it has to the EU, then their future becomes much less certain.

Space does not afford a full description of how EU law shapes national employment law here, moreover a full and detailed analysis of this sort has been completed by Michael Ford QC on behalf of the TUC . Drawing from Ford’s analysis the following list demonstrates that the impact of EU law on employment in the UK reaches far and wide:

  • key rights in the area of discrimination;
  • pregnancy, maternity and parental leave;
  • protection for atypical workers (part-time, fixed-term and agency workers);
  • working time (which includes paid annual leave);
  • collective rights (collective consultation in the context of redundancy, the transfer of undertakings, on questions relating to health and safety, transnational information and consultation, information and consultation of employees);
  • rights of employees in the event of a transfer of undertakings (for example a business transfer or service provision change);
  • certain areas of health and safety;
  • employee rights against employers who are insolvet;
  • right to a written statement of employment particulars;
  • aspects of data protection at work;
  • the rights of workers posted from the UK to work in another Member State;
  • the free movement of workers in the EU.

The risk of legal uncertainty caused by outright deregulation of all these provisions is great and it would be unworkable simply to sweep such legislation aside. Others have argued that a simple repeal of the European Communities Act would not be effective and it doesn’t seem plausible that the future development of employment law would be decided on a binary distinction between what is rooted in national law and what came from the EU. Surely a political review would be based on the substance of the legal protections and the merits thereof. Even if a binary approach was to be considered, the process of identifying what is an EU provision and what is a national one is complicated by the interrelationship of national and EU law. Some nation laws (such as those dealing with race discrimination or disability discrimination) preceded EU level regulation but were later modified as a result of the development of EU law. Moreover normative approaches to employment regulation have been shaped by soft legal mechanisms that promote policy coordination and exchange at EU level (for example through the European Employment Strategy). Whatever approach is taken, the key point is that exit from the EU may open these rights up to scrutiny.

The ways in which Brexit could impact on the national level regulation is certainly not straightforward but that is not to say that there would be no impact at all. In his analysis of the impact of Brexit on annual and parental leave, employment lawyer Philip Landau concluded that “Although the rules emanated from the EU, it would be politically unthinkable for the government to reduce these allowances.”. So what would be ‘politically thinkable’? Ford argues that it would be naïve to assume that any of the rights listed above would be immune from repeal. Our view is that a government with a deregulatory agenda can make important changes to employment law that are far reaching yet subtle, even where whole-sale deregulation would be politically unworkable.

To illustrate the above point let’s to look at the changes that were made in the area of unfair dismissal under the previous government. The law of unfair dismissal is a major employment right in the UK and, as a national provision of employment law, was open to scrutiny under the ‘Employment Law Review’ and the ‘Red tape challenge’. Even with the Coalition Government’s expressly deregulatory agenda it would have been politically unthinkable to repeal (or to use the words of Adrian Beecroft “do away with”) it. Nevertheless taken together, several of the changes made to unfair dismissal law have major implications for its practical effect. Firstly the legal coverage of the right contracted when the qualifying period was increased from one to two years, then the actual coverage of the right was curtailed by the introduction on employment tribunal fees and the categorisation of unfair dismissal as a ‘type B claim’ which attracts the higher level of fee (issue fee: £250, hearing fee: £950 total £1200) making it harder for low-earners to contemplate enforcing their right. Finally with the introduction of a new approach to settlement agreements important procedural aspects of a fair dismissal can be circumvented. Taken together these changes have far reaching implications for the relevance of this right in the work place.

This section could not tackle precisely how Brexit would impact on national employment law (much is unknown), nevertheless what it is clear is that the exposure of the extensive range of rights now guaranteed through membership to EU law to political reappraisal would open up the possibility of deregulation. It should be bourn in mind that where a government has a deregulatory agenda it may be politically possible to radically reduce the protection afforded by such key rights even where wholesale repeal is ‘unthinkable’.

 workers blue collar

Trade unions and Brexit

Although amongst UK trade unions, opinion is divided as to the benefits of leaving the EU, the leaderships of UK unions are, in the main, in agreement that although the EU requires reform, the benefits of staying in, outweigh those of exit. Unions argue that, although at the EU’s political heart there is a growing allegiance to business and, through the strictures of its financial institutions, a commitment to deflation, the idea that outside the EU lies a world that is not increasingly in thrall to the needs of finance capital is, nevertheless, a curious one. At its core, the left debate on Brexit centres on a fundamental question: will, European capitalism be weakened or strengthened by Brexit? A crucial question that flows from this analysis, is that workers’ rights and their ability to enforce these, will be either strengthened (Brexiters) or weakened (Stayers).

The two largest UK unions Unite and Unison, will be urging their member to vote to remain in the EU. That Brexit would not be in the interests of their members. They cite the noises coming out of Conservative Central Office that following Brexit, and a lurch to the right, health and safety regulations will be diluted and the labour market made more flexible. Dave Prentis, General Secretary of Unison believes it is an illusion that the public sector will be better served by Brexit. The Tories already pushing ahead with marketization will be emboldened. He also calls for unions to work solidaristically within the EU with unions and social movements transnationally for progressive reform of the EU rather: an international labour solidarity to match that of business.

The Executive Committee of Unite, the UKs largest manufacturing union, whilst calling for reform of the social dimension of the EU, is again urging members to vote against Brexit. A major concern for Unite is that a major contraction of UK manufacturing industry with its relatively high wages, skills and R&D spend, will accompany Brexit. A further concern for Unite is the impact of Brexit on the ability of the UK to negotiate trades deals that benefit workers. The bargaining influence of a trade block of 500 million people far exceeds that of a single country. The example of the steel industry is illuminating. Whilst there are problems with some aspects of EU policy, for example the opposition of the UK government to strengthening Trade Deference Agreements, the ability of the EU to negotiate as if was a single country is the only bulwark against annihilation of the UK steel industry. To sum up the impact of Brexit on workers rights and living standards is of course unknown but rests on assumptions made at two (connected) levels. One level is ideological, the other pragmatic. It might be argued that unions are adopting a largely pragmatic line.

Conclusions

To conclude, we may consider these sets of reflections as a general invite to endorse a less nationalistic stance to an essentially non-national issue such as the question of belonging or not to a regional political and economic community (and for some one with relative progressive social ambitions, for others more contradictory) such as the EU. Even more the above reflections may help shifting the gaze so to consider the impact of a potential exit of Britain from the EU from the point of view of the labour conditions and social protections not only of ‘nationed labour’ but for all moving workers, including the many Britons currently working and living in other EU member states. A further and critical step would be to look at the potential for alternative labour organising responses to the questions of the social effects of free movement of labour, and what staying in the EU may offer in terms of promoting a transnational labour solidarity that matches that of business.

Steel in Crisis: Restructuring for People

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Chris McLachlan, Leeds University Business School.

The construction of an industrial strategy for UK steel is essential. Within the debate over this requirement and as part of its development, it is important to have an understanding of what happens at plant level when restructuring and redundancy occur. A plant that is of key focus in the current steel crisis is Tata Steel’s long products site in Scunthorpe. The plant has undergone successive restructuring processes in recent years, with ‘Project Ark’ in 2011, ‘Path to Profit’ in 2013, and now the decision to sell the long products division.

Some 2,600 job losses have been announced over this 4 year period, which leaves the Scunthorpe site with approximately 3,000 employees. Since the divestment decision the security of the entire site has been under threat. The recent announcement of the potential sale of the long products division to UK based investment firm Greybull Capital provides hope for the Scunthorpe site, but for its employees a worrying period of uncertainty remains. This contraction of the UK steel industry workforce has, of course, been in train since the 1980s. Amidst the prevailing industrial context, the recent bout of restructuring is having profoundly negative effects on not only the lives and careers of individuals but also the communities affected by the restructuring. Banners at recent Save Our Steel events in Scunthorpe and Sheffield simply stating ‘HELP OUR TOWN’ (image below) are testament to the extensive impact of the current steel crisis. How might firms maintain their social responsibility to workers and communities in the face of these job cuts? Indeed, do organisations have a social responsibility for their employees?

Tata Steel Demo

At Scunthorpe, a notable step in attempting to develop a socially responsible approach to restructuring was the Project Ark process in 2011. This process was framed around a broader commercial strategy that reduced the volume of steel produced at the site, and further justified through a focus on producing higher quality, higher value added steel products along with a plan of investment in skills and training that sought to create a more flexible workforce. The consequence of this, however, was the announcement of 1200 job losses due the mothballing of the bloom and billet mill. The Project Ark strategy was a critical moment between Tata and the affiliated trade unions, as the job losses were essentially agreed by both parties to on the promise of future investment in skills and the broader commercial plan that promised to ensure the survival of the plant. Evidently, these promises were not upheld by Tata. At Save Our Steel rallies, senior union officials and MPs continue to bemoan the Project Ark process, with the subsequent Path to Profit process (500 job losses announced) perceived as a residual restructuring from the failures of Project Ark. Meanwhile, the HR team were rewarded for their efforts in managing the job losses, receiving an internal CEO award for their efforts in conducting a socially responsible restructuring process. Therefore, it is clear that Tata appreciate the need – the requirement, even – to ensure their restructuring practices are conducted in this way, with the process also being used as benchmark across the rest of their UK operations.

Tata claims a social responsibility to ameliorate the impact of these job losses for affected individuals and the local community. This commitment is laid out in its most recent Annual Report (2014-15). The socially responsible restructuring processes at Tata Steel UK have typically been characterised and managed through the avoidance of ‘hard’ (compulsory) redundancies – through redeployment practices such as cross-matching affected individuals in vacant positions internally – a close working relationship with the trade unions, and the provision of basic employability support in CV writing and interview training for those made redundant. As long as people who wish to leave do so voluntarily, this allows those wishing to remain to take up alternative employment within the organisation. The joint management-union goal of plant survival, has always been the key rationale underlying these processes. Amidst the prevailing industrial context the threat of restructuring within Tata seems more imminent than ever. The announcement of more job losses (18.1.16) at Tata UK’s Port Talbot site is clear evidence of this. In this context, the sustainability of this socially responsible approach to restructuring is subject to increasing amounts of pressure. The coming negotiations between Tata and its trades unions will prove historically significant not only for the fate of the Scunthorpe site but for the UK steel production more broadly. The feet of steel workers are being held firmly to the blast furnace fire.

Up to £6m has been pledged by UK Steel Enterprise (a CSR-based subsidiary of Tata that supports steel areas affected by restructuring) and the government to aid regeneration and job creation in Scunthorpe, along with another £3m aimed at funding retraining for affected individuals. Supportive measures like this, however important and in real terms quite limited, become devalued when CEO of Tata Steel Europe Karl Koehler claims that the long products division has no future beyond the end of the financial year. Moves like this further disillusion the workforce, creating a reluctance to engage with the range of support measures on offer. Additionally, recent changes in organisational structure in order to prepare the plant for being a ‘standalone’ business, then the subsequent decision to sell the division off, has put further pressure on the Scunthorpe plant to control costs and hence pressure on jobs. Given that previous restructuring processes have been necessarily framed around the survival of the plant, the imminent threats that these events pose bring into question any notion of a socially responsible approach. What is crucial in the negotiations around restructuring, job losses and sell off, is for Tata to continue to engage with trade unions in order to ameliorate, and where possible limit, the amount of job losses so as to ensure the process is conducted in a socially responsible fashion.

Chris McLachlan is a PhD student at Leeds University Business School and a member of the Centre for Employment Relations, Innovation and Change.

 

 

 

Fast food workers strike in the US, but who will unionise the UK’s chippies?

Jane Holgate WEB
By Jane Holgate, CERIC, University of Leeds

Low-waged workers in small workplaces are, statistically, the least likely to go on strike. They are unlikely to be unionised, are under close supervision from the boss and are easily replaceable. Traditionally, unions have paid little attention to these workers. Organising in small workplaces with high staff turnover provides little return for lots of effort.

Yet in the US, thousands of fast food workers from outlets such as McDonald’s, Domino’s and KFC have walked out of their workplaces taking their colleagues with them in a series of day-long strikes that began in 2012. The most recent of these involved coordinated action in 150 cities across the US last month.

But nothing of a similar scale has happened in the UK, and it doesn’t look like it will happen any time soon. The reasons for this go to the heart of the differences between unions on either side of the Atlantic.

Poverty wages

It is easy to see why campaigners in the US have targeted fast food. The industry’s workers are the lowest paid in the country, according to government data. Their median salary is just $11,000 per year. They also suffer a high degree of “wage theft”, where employers dock their pay or force them to work unpaid hours.

Workers are demanding the right to join a union and are pushing the Obama government to increase the minimum wage nationwide. Currently, the federal minimum wage stands at $7.25 but individual states and cities have the power to set their own rates above this figure. Since the strikes began minimum wages increases have been secured in seven states and two cities. SeaTac, near Seattle, in Washington State was the first city to win an increase to $15, followed by the city of Seattle itself.

Complex labour laws mean unions face difficulties getting recognised by employers and the unions often experience expensive legal challenges from employers. The unions and unionised workers also face intimidation and bullying from multi-million dollar union-busting companies. To avoid this, unions have adopted a new tactical approach to organising in this sector.

New tactics

Campaigners have targeted the state and federal legislatures to increase the minimum wage. As many fast food restaurants are franchises, the owners have little room for manoeuvre when it comes to wages, as the price of supplies and food is set and regulated centrally by companies like McDonald’s and Wendy’s. Low profit margins mean the owner of an individual McDonald’s franchise has little scope to increase wages.

The unions also chose to organise fast food workers in the community as opposed to in the workplace. They set up Fast Food Forward – a community coalition – where they have funded organisers to work with local groups and workers centres. Faith leaders in local churches and community activists have shown their support for the strikers. In one example, from late last year in New York, “Clergy and city council members walked a Wendy’s worker back in after her manager told her she was fired. The high-powered delegation convinced the manager to ‘unfire’ her”.

Workers are also legally protected from dismissal (largely), as it is unlawful to fire workers for attempting to organise a union.

Could these tactics work in the UK?

One reason this form of organising hasn’t spread to the UK is that local councils don’t have the power to set minimum wages. A minimum wage campaign could be directed at the national government, but unions in the UK have tended to use their political links with the Labour Party to press for demands for worker-friendly legislation and are unlikely to think it worthwhile to demand progressive labour laws from the current coalition government.

Unions in the UK also tend to be too focused on servicing their current members rather than on expanding into new, non-unionised workplaces. While some unions have adopted the language of organising, where this does take place, it tends to be where unions already have membership. For a typical UK union, a trip round the local high street’s fast food places would be a leap into the unknown.

It’s a leap the unions might be willing to take, if it weren’t for another problem: they simply don’t have the resources of their US counterparts. The UK trade union sector has seen merger after merger (a consequence of a failure to invest in organising) as unions need to consolidate in order to cut costs and survive.

In the US, unions are able to draw strength from being part of a wider tradition of community-based organising, including a number of national networks of faith-based and community coalitions. Geographically based community organising – while starting to take place in Unite, the largest private-sector union – is not a feature of UK trade unionism. But even Unite’s community membership is aimed at organising those not in work to campaign for social justice rather than workers in the workplace.

For unions in the UK looking enviously at the success their counterparts have had across the Atlantic, there are lessons to be learned. British trade unions could recast themselves as broader social justice organisations where their role is to create benefits for all workers rather than just their members. Forming genuine common-cause coalitions with progressive community organisations campaigning for social justice, instead of just requesting assistance when unions need support for an industrial dispute or campaign, could prove valuable in reaching into communities where unions do not have a base.

Further, the campaign for a living wage began in London in 2001 when London Citizens – a community coalition explicitly based on US organising tactics – began working with unions to secure wage increases for hospital workers in East London. Since then, this small organisation has managed to persuade dozens of employers to pay a living wage of £8.80 in London (£7.65 outside of London) per hour – £2.49 (£1.34) more than the national minimum. More than 100 local authorities have now committed to paying the living wage.

At the same time they have managed to shift the political discourse around low wages to that of a “living”, rather than a “minimum” wage, such that the Labour Party has committed to its introduction, should it be returned to government.

Unions need to get smarter and more flexible in the way they organise in order to adapt to the constantly changing labour markets and laws that make organising workers difficult. It can be done, but it requires a fundamental shake-up of the way unions currently operate and the adoption of more innovative and tactical approaches to organising.

Jane Holgate does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.

This article was originally published on The Conversation.

Unite’s community organizing initiative – what’s driving these developments?

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Dr Jane Holgate
Dr Jane Holgate is a Senior Lecturer at CERIC.

@CERIC_LUBS

In December 2011, Unite – the UK’s largest private sector trade union – announced it was introducing a new membership scheme to ‘to ensure those pushed to the margins of society can benefit from collective power’. Unite’s new ‘community membership’ category is aimed at students, people who are unemployed and others not in work – categories of people who normally do not have a relationship with unions. Unite claims that their community organising initiative will ‘organise the marginalised and revolutionise British trade unionism’. While this may be a little overstated, it is argued there that Unite’s move into community organising is an interesting and significant development in the way UK unions are starting to think about and engage with the idea of community organising.

Other unions have also recently taken steps in this direction but often taking different approaches – some of it project-based or ad hoc (for example in Unison, GMB and PCS), and others like Unite and the TSSA, where there has been a strategic decision taken by unions to invest considerable resource into community unionism. Nevertheless, it would seem from my observations of unions over the last few years there has been a significant – although as yet not that well-developed – turn towards community unionism. But what are the factors driving these community/union organising initiatives?

Firstly, the global economic crisis beginning in 2008 appears to be a major push factor. A national officer from the PCS union told me that ‘General Secretary after General Secretary wouldn’t have stood up [at TUC Congress in 2010] and talked about community organising in other environments if we’d still had a reasonably benign economic environment’. And, it is evident from most of the case studies I have looked at in the above unions, that where the campaigns have been allowed to spontaneously develop, that these have taken place around the impact of the cuts on communities. This is particularly the case in Unite, where the union is opening up its membership to ‘non-traditional’ members – with a clear objective of creating a ‘fundamental shift’ within the union to bring people together, in their own communities to organise.

To date, four months after Unite employed 6 community co-ordinators, nine Unite community branches have been established in Liverpool, Wirral, Salford, Manchester, Leeds, Sheffield, London (Camden and Islington), Glasgow and Edinburgh – all (except London) in traditional working-class communities with a tradition of high union density among workers.

What appears to be a the heart of Unite’s view of community organising is an attempt to tie together a trade union consciousness and a community consciousness – going back to the trade unionism of the nineteenth century where there was a convergence of trade unionism and popular politics – with people drawing on strong social networks in their communities. It is noteworthy that it is mainly in the trade union heartlands of the north of England and Scotland where the first Unite community branches have been established. Here trade unions remain embedded in local communities to a greater extent than in many other regions of the UK – albeit much weakened from earlier times.

The Unite community organising that has taken place in the cities mentioned above has drawn upon strong social networks that have been in place in these communities for decades (for example, ex-miners in Yorkshire, retired union members and ex-dockers in Liverpool and the Wirral), making it easier to establish relationships of trust much more easily than would be the case if starting from scratch as an outsider.

A second factor in driving the turn to community is also a recognition that, as manufacturing employment and Fordist mass-production declined, and welfare benefits have been cut or reduced, labour has been re-commodified so that workers are more tenuously attached to their jobs and their workplaces meaning a loss of occupational and class identities that previously bound (unionised) workers together.

As such, declining worker bargaining power ­– at the point of production – has led some unions to begin to think about how to widen their spheres of influence and to assess the value of community as well as industrial-based organising. Whether this turn to community organising will have an effect in revitalising unions in the UK remains to be seen as most of these initiatives are only yet in their infancy – but what is evident is that there is growing interest in this area.