Employment policy: drastic action required

By Gregor Gall

Introduction

As Labour continues to come to terms with its defeat in the 2019 general election and the arrival of a new front bench team led by a new party leader, Sir Keir Starmer, all manner of party policy is potentially up for review and revision in the coming period. This could be both positive and negative depending upon the balance of opposing forces in the Labour Party. Starmer’s pledges in the leadership campaign of 2020 and the impact of the COVID-19 pandemic will be major components in this process. On the one hand, Starmer made many left-sounding pledges in order to strike a note of continuity with Corbyn’s leadership – so as to gain the support of many on the left and to marginalise Rebecca Long-Bailey’s base. On the other hand, COVID-19 has led to a major re-calibration of the tectonic plates of British politics with the neo-liberal Tories sounding almost Keynesian in their pronouncements – even if underneath the surface, and under their plans, the rich will continue to get richer and the poor be further impoverished. These two components form points of reference – one of continuity and the other of change – in the forthcoming review and revision of party policy.

With that aforementioned context, I shall here examine three critical aspects of employment policy. The first is the repeal of the anti-union laws. The second is legal support for union membership, and the third is health and safety. The reason for examining these three rather than any others is because the first two have a transformative potential, that is to say, both could enhance the capability of unions to not only bargain more effectively for their members’ interests but also help enforce employment rights whilst also making union membership more attractive to non-union workers (currently 76% of the workforce). The third is examined because of the continuing effect of the pandemic we are living through. What binds all three together is that the labour market is increasingly deregulated in law and in practice, while employment relationships have become more complex and fragmented, with sub-contracting and outsourcing, so that employers now hold the whip hand. Consequently, inequality, especially for wages, has widened. The state has withdrawn from much of what it previously regulated and, where it continues to have a regulatory role, it engages in ‘light touch’ and under-resourced regulation – except, of course, in the case of union government and industrial action.

 Laws governing strikes and industrial action

Labour should commit to a policy of repealing all the laws from 1980 onwards which banish and restrict the ability of workers through their unions to take a number of forms of collective industrial action. But it should not just seek to repeal these: it should also commit to introducing strong, positive rights, such as the right to strike or take industrial action without interference from any third party. This would cover associated behaviours like picketing and blacking and not just take the situation back to pre-1980 where unions – not workers – had immunity in law from prosecution for loss of business by an employer dating from the Trade Disputes Act 1906. Clearly, this means not just repealing the Trade Union Act 2016 or the forthcoming law on a minimum service obligation on public transport.

To date, existing conference policy provides a good basis for this:

  • Conference in 2017 unanimously passed a motion calling for repeal of the 2016 Act and ‘anti-union laws introduced in the 1980s and 90s’; and a ‘strong legal charter of workers’ rights’. It also said: ‘the most effective way to maintain good rights at work is collectively through a union. Strong unions, freed from legal shackles and bolstered by positive legal rights, will be key to tackling poverty, insecurity and inequality … For unions to be effective, workers need an effective right to strike …’.
  • Conference in 2018 overwhelmingly passed a motion calling for a ‘radical government’ committed to ‘abolishing anti-union laws’.
  • Conference in 2019 overwhelmingly passed a motion calling for ‘repeal of all anti-union laws’, specifically mentioning the right to take strike action for political reasons ‘so that workers can freely take action over the climate’.
  • Conference 2019 also voted to reference back the part of the National Policy Forum report on this issue, on the basis that it was not strong enough on the right to strike and repealing the anti-union laws.

However, it should also be noted that the general election manifesto of 2019 was helpful here. While the 2017 manifesto merely pledged ‘Repealing the Trade Union Act …’ as well as ‘permitting secure online and workplace balloting for industrial action votes and internal union elections’, the 2019 manifesto went much further. In the light of the statement that Labour ‘will remove unfair and unnecessary restrictions on trade unions, allowing people to come together and speak up on issues that affect them at work’, Labour also promised to ‘Allow unions to use secure electronic and workplace ballots’, ‘Remove unnecessary restrictions on industrial action’, and ‘Repeal anti-union legislation including the Trade Union Act 2016 and create new rights and freedoms for trade unions to help them win a better deal for working people’. Policy development within Labour can facilitate the fleshing of these new positive rights.

Union membership and representation

The Labour Force Survey (LFS) report on union membership for 2019 was published in May 2020. It tells of an encouraging tale. The number of union members rose by 91,000 from 2018 to 6.44m in 2019, being the third year of consecutive years following the fall to a low of 6.23m in 2016. The proportion of employees who are union members also rose slightly to 23.5% in 2019, up from 23.4% a year earlier, and from the low of 23.3% in 2017. But there are a couple of levelling points. First, by age range, just 4.4% of members were between 16-24 (with 19.5% aged 25-34, 36% aged 35-49, and 40% aged 50 or older). Given that 2019 was named by the TUC as ‘year of young worker’ as a signal to facilitate and encourage its affiliates to improve their recruitment of young workers, it is interesting to note that in 2018 the corresponding key figures were 4.4% aged 16-24 and 18.7% were aged 25-34. While a slight improvement for the older band of young workers, it has to been set in the context that in 1995 the figures were that 7.4% of members were aged 16-24 with 26% aged 25-34. Unpalatable as it is, these figures raise the horrendous prospect that union membership could wither and die out.

Then there is the overall situation, Membership reached a peak in the late 1970s/early 1980s of around 13m (55% density), and declined sharply thereafter. From 1996, the rate of decline slowed, with occasional years of slight growth. From 1995 to 2019, membership fell by 673,000 (9.5%) from 7.11m to 6.44m, equating to a fall in density from 32.4% in 1995 to 23.5% in 2019. Part of the fall in density is explained by the size of the workforce in this period rising by around 5.7 m to 27.7m. For many years, density has been higher in the public than private sector – 52% compared to 13% currently – but it has fallen significantly in both.

Subsequent to the publication of the 2019 figures, various reports exist of the likes of the GMB, NEU, PCS and UNISON unions experiencing a sudden rise in new recruits over the last few months as a result of the COVID-19 crisis. This amounts to over 150,00 members. Welcome though that is, other unions will have lost considerable numbers of members as a result of an increase in redundancies – as unemployed workers do not maintain union membership – and this situation will only get worse come the end of the furlough scheme on 31st October this year and the emergence of a full blown depression. Many of the 9 million on furlough will find they have no jobs to go back to at that point (assuming they are not made redundant beforehand).

All this indicates that unions on their own cannot be expected under the neo-liberal form of capitalism to be capable of generating a return to their previous levels of membership and influence. In the last few decades with the turn to ‘union organising’, they have run to just standstill. What is needed is a fundamental rebalancing of the employment relationship – more than a tinkering about with the Employment Relations Act 1999 that governs the process of gaining statutory union recognition and even far more radical than the Institute of Employment Rights proposed in its Manifesto for Labour Law (which helpfully provided much of the basis of Labour’s general election manifesto on employment rights in 2017 and 2019). This, therefore, means changing the situation of the existing de facto non-union default into one of a union default. Under the existing system, workers must consciously join a union and they do so individually. There are many deterrents to them doing so, whether from employer opposition or media hostility. Under this new system, all workers in a bargaining unit would be automatically defaulted into the appropriate union once that union had gained a minimum threshold of membership (such as 10%) and there is an opt-out process so that this does not represent a return to the closed shop. A union would then have the automatic right to bargain for its members in this bargaining unit. If the union wanted to become the sole and exclusive bargaining agent for all workers, union and non-union, it would be required to gain the support of a majority of workers in the bargaining unit via a ballot of all workers.

In terms of where party policy stands (judged by the last two election manifestos), there is an opportunity to build towards a union default policy given the recognition of the inadequacy of the current situation. Thus, the 2017 manifesto promised to ‘roll out sectoral collective bargaining’, ‘guarantee unions a right to access workplaces – so that unions can speak to members and potential members’, ‘enforce all workers’ rights to union representation at work’, ‘use public spending power to drive up standards, including only awarding public contracts to companies which recognise unions’. The 2019 manifesto pledged to ‘Establish a Ministry for Employment Rights’ (as it did in 2017), again ‘Roll out sectoral collective bargaining across the economy’, ‘Strengthen and enforce unions’ right of entry to workplaces to organise, meet and represent their members and to recruit’, ‘ban union-busting, strengthen protection of union representatives against unfair dismissal and union members from intimidation, harassment, threats and blacklisting’, and ‘simplify the law around union recognition’.

One of the strengths of the proposal for a union default is that it would underpin, and thus help enforce, these rights. For example, sectoral collective bargaining based upon low union densities would militate against realising the potential gains to be had for workers from sectoral collective bargaining.

Health and safety at work

The COVID-19 pandemic has shone a searching light on the complete inadequacy of the current health and safety regulatory regime at work. Section 44 of the Employment Relations Act 1996 provides employees with the means to contest the adequacy and/or suitability of safety arrangements at work without fear of recriminations (like getting sacked) or suffering detriment (like loss of wages). It provides employees with the right to withdraw from and to refuse to return to a workplace that is unsafe and to do so on full pay. Employees are entitled to remain away from the workplace if they believe the prevailing circumstances represent a manifest risk of serious and imminent danger which they could not be expected to avert. Section 44 entitles employees to claim for constructive dismissal and (unlimited) compensation in the event that an employer fails to maintain safe working conditions. Despite this, it is evident that many workplaces are and have been unsafe due to COVID-19. Often workers have afraid to exercise their right here – assuming they even know about it in the first place.

Added to this situation is the statement to the Work and Pensions Committee on 4 March 2020 by Martin Temple, Chair of the Health and Safety Executive: ‘… the number of inspections we do is relatively small. We do 20,000-odd or something of that order and we have 5.5 million duty holders’. This means that the likelihood of any duty holder being inspected by the HSE in any one year is one in 1/275. Put another way, the average employer can expect to see an inspector only once every 275 years. This not only reflects a deliberate intention towards ‘light touch’ regulation but a massive underfunding of the HSE: staffing has fallen from 3,702 to 2,501 from 2009-10 to 2017-18 with the number of inspectors declining from 1,495 to 978 over the same period. This resulted in just 361 convictions for health and safety offences in 2018/19, a 40% drop from 2014/15 (which saw a decade of decline from 2003/04). Funding fell from £239m in 2009-10 to £135m in 2017-18.

Labour’s 2019 general election manifesto pledge the ‘Setting up a Royal Commission to bring health (including mental health) and safety legislation up to date’. This was a new commitment but it needs to be built upon to set a rigorous and robust regime which has effective powers of inspection and enforcement along with adequate funding. Under this, workers must have the unilateral right to call the HSE, and at short notice, in to inspect their workplaces without any forewarning to employers. A punitive regime of fines, penalties and effects (like a bar on gaining any public sector contracts and making individual directors liable) must also be initiated.

Conclusion

There is much to play for on employment rights. Some will support a toning down on policy on these matters because of the belief that credibility and respectability will be enhanced by moderation. This would mean junking much existing policy and much of the 2019 manifesto. However, the pre-pandemic, pandemic and post-pandemic periods all highlight that the gravity of the situation requires drastic and radical action that is deep-seated and far-reaching in its effects. Building support and credibility for such policies will, in large part, depend upon aligning these two aspects to show that the proposed policies represent a new ‘common sense’ for our age.

Gregor Gall is a visiting professor of industrial relations at the University of Leeds