Workers’ and union rights in #GE2019

The contrast between Labour and Tory manifestos when it comes to workers’ individual and collective rights could hardly be starker, and provides plenty of reasons to campaign for a Labour government. Unite activist and former General Secretary candidate Ian Allinson argues that their promises, threats and omissions also tell us a lot about the terrain of struggle after the election – whatever the result.

Workers’ rights

Perhaps the work-related elements of the manifesto likely to influence most voters aren’t those about creating a more favourable terrain for collective action, but about workers’ rights. Labour’s offer here is strong.

Millions would benefit from a £10 minimum wage (with no lower youth rates), an end to bogus self-employment and zero-hour contracts and employment rights from day one. Public sector workers would get a 5% pay rise and end to the pay cap. But there’s much more in the manifesto than has hit the headlines. Those who work regular hours would have a right to a contract reflecting them. Changes to hours would require proper notice and cancelled shifts would be paid. Breaks during shifts would be paid, as would travel time for care workers. Workers would have improved rights to training and education, much of it free. The increase in state pension age would stop at 66 rather than going up to 67 or higher, the WASPI women would get compensation, and retirement ages would be reviewed for workers in physically arduous and stressful occupations, including shift workers.

Genuinely self-employed people would benefit from collective income insurance schemes, annual assessments for state benefits and better access to mortgages and pensions.

Four extra bank holidays would kick off moves to increase holidays and reduce working time. Labour aims to reduce the average weekly working hours to 32 without loss of pay within a decade. In the meantime, the ‘opt-outs’ (which many workers are bullied into signing) to the Working Time Regulations would be scrapped and the limits would be enforced.

All workers would gain the right to flexible working. Labour would double paternity leave and raise statutory paternity pay, introduce bereavement leave, and review family-friendly employment rights, including rights to respond to family emergencies.

Protection against redundancy and unfair dismissal would be strengthened, including extra protections for pregnant or menopausal women and terminally ill workers. Insecurity would also be tackled by enabling struggling companies go into protective administration rather than suddenly collapsing, and by blocking some takeovers with a public interest test.

The introduction of a minimum workplace temperature is a long overdue proposal, and one only becoming more important as extreme weather becomes more frequent. A Royal Commission would be established to update health and safety legislation and ensure it adequately covers mental health.

Equality

Labour proposes to push forward equality, and not just by implementing bits of the Equality Act 2010 that the Tories ripped out.

The manifesto promises a new Department for Women and Equalities, with a full-time Secretary of State, responsible for ensuring equality-impact assessment of all policies. Labour aims to close the gender pay gap by 2030. However, while the proposed measures are ambitious, it seems unlikely they would be sufficient to achieve this. The new Workers’ Protection Agency is central to the plan, alongside the HMRC, which would take responsibility for enforcement of equal pay legislation, rather than leaving it to individual women. Large employers would be required to obtain government certification that they were devising and implementing plans to eradicate the gender pay gap or face further auditing and fines. Employers would be allowed to take positive action to recruit into roles where there was a need for greater diversity. Disappointingly, the 2019 manifesto drops the 2017 commitment to reinstate the Public Sector Equality Duties and extend them to the private sector. This was a crucial move from mere enforcement to a requirement for proactive action.

Statutory maternity pay would rise to from nine to twelve months. Pregnant women could not be dismissed without the prior approval of inspectors. Labour would ratify the ILO Convention on Violence and Harassment at work. Survivors of domestic abuse would be entitled to ten days of paid leave. The ban on harassment by third parties would be reintroduced while misogyny and violence against women and girls would become hate crimes. The benefit system would be reformed to allow up-front payments for childcare so parents do not have to turn down work or get into debt to pay for it. Labour would reform the Gender Recognition Act to introduce self-declaration for transgender people.

Race and disability pay gaps would also be reported and tackled for the first time. The specific proposals on disability would mark a significant step forward, championing the ‘social model’ of disability and amending the Equality Act to reflect this. Labour would implement the UN Convention on the Rights of Persons with Disabilities. Employers would be required to have training to support disabled people, and the government would work with employers and unions to raise awareness of neurodiversity. The Equality Act would be updated to include paid disability leave recorded separately from sick leave, which is currently a widely-ignored guideline. Labour would recommend that the Equality and Human Rights Commission prepares a code of practice on reasonable adjustments for disabled people to clarify how ‘reasonable’ cost is determined and set timescales for implementation of reasonable adjustments. British Sign Language would become fully legally recognised. Labour would review support for disabled people at work, bring back specialist employment advisors to support disabled people, and introduce a government-backed Reasonable Adjustments Passport scheme to help disabled people move between jobs.

While Labour’s manifesto commitments on free movement fall well short of conference policy, they are better than 2017, let alone the days of Miliband’s racist mugs. Labour promises to scrap the Immigration Act 2014, which included landlord immigration checks and charges to use the NHS. The Brexit deal Labour intends to put to voters in a second referendum would ‘seek to protect’ the rights of EU citizens here and UK citizens abroad. Minimum income requirements would no longer trigger deportation of family members. Refugees would have the right to work and access public services. ‘Overseas-only’ recruitment practices would be banned. Early legal aid advice would be restored including for immigration cases. Labour would ‘review’ the Prevent programme (which should be scrapped!) and consider alternatives. As well as benefitting immigrants and people perceived to be immigrants these changes roll back the attempt to turn public servants into spies and border guards.

The manifesto also attempts to address socio-economic inequality directly, rather than via other state functions. A Labour government would enforce a maximum pay ratio of 20:1 in the public sector. The Social Mobility Commission, which focuses on enabling people to switch classes rather than reducing the gap between them, would be replaced by a Social Justice Commission. When the Equality Act 2010 was passed, it included a provision (which was never enacted) to require public authorities to reduce inequalities of outcome resulting from socio-economic disadvantage. Rather than pledging to reactivate this, Labour propose to make socio-economic disadvantage a new ground for a discrimination claim.

The stance on socio-economic disadvantage reflects policy passed at this year’s TUC conference, which sought to address prejudice and bias against people from working-class backgrounds. This is a real issue, with opportunities often going to people with the right accents who went to the right schools and universities and live in the right areas. But it also raises many questions. Socio-economic disadvantage correlates with socio-economic background, but they are not the same. Giving a leg-up to rich people originally from working class backgrounds rather than reducing class inequality could be a move back towards a focus on social mobility rather than social justice. Do we risk feeding the confusions about class, which is widely seen as about accent, diet, education or tastes rather than a power relationship between people?

The Tories

Unusually for the Tories, there are a few vague words on workers’ rights: pressure from Labour has led the Tories to put forward a less rabid programme than usual. The Tories promise a single enforcement body to ‘crack down on any employer abusing employment law, whether by taking workers’ tips or refusing them sick pay’. But inadequate British employment law needs to change to outlaw such practices in the first place. They promise a ‘right to request’ a more predictable contract and promise consultation on employers treating flexible working as the default. Bad employers must be quaking in their boots. There are vague proposals to extend parental leave for neonatal care and to allow a week’s leave for unpaid carers.

But there are also yet more attacks on the right to strike in the Tory manifesto. Transport workers – primarily in ASLEF, RMT, TSSA and Unite, face the threat of yet more attacks on their right to strike. The Tories say:

We will require that a minimum service operates during transport strikes. Rail workers deserve a fair deal, but it is not fair to let the trade unions undermine the livelihoods of others.

Transport workers have shown their ability to pass the ballot thresholds in the 2016 Trade Union Act, and RMT members at the South Western Railway are currently taking 27 days of strike action to keep the guard on the train. The action is disruptive despite unions now having to give 14 days’ notice beforehand. Now the Tories want to use the courts to try to force workers to work even when they have jumped all the legal hurdles.

The Tories present themselves as protecting the livelihoods of other workers against disruption caused by unions. Their aversion to state action to protect our livelihoods doesn’t seem to apply here. Trade unionists should also note that the Tories are picking up on language used to justify the physical assault on Extinction Rebellion activists who disrupted the London Underground. There were reasons to view the tactic as ill advised, but we concede the argument for taking disruptive action at our peril.

Labour and the anti-union laws

The last few months have provided some useful illustrations of Britain’s anti-union legislation. CWU postal workers far exceeded the ballot turnout thresholds in the Trade Union Act 2016 with a 97% strike vote on a 75% turnout. An unelected judge banned the strike on the grounds that some people had filled in their postal ballots at work or videoed themselves voting – which couldn’t possibly have affected the result. The court ruling was granted using older anti-union laws: it was a 1993 Act that required fully postal ballots.

In contrast, the 2016 Act had a significant impact on university workers. Trade unionists had to put a huge effort into passing the ballot threshold. For UCU at universities where this was successful it may have actually contributed to a high level of participation in the recent strikes, so in that sense was counterproductive from the Tories’ point of view. However, many other universities and unions failed to meet the ballot threshold and didn’t join the strikes, making them less effective overall, though some are re-balloting to join the next wave of action. On 20 September many workers, including at universities, took strike action in defiance of the legislation to join the climate strike, yet suffered no detriment as a result. Royal Mail workers in Merseyside and Warrington recently defied the law to take unofficial action against workplace racism.

Labour’s manifesto promises to ‘repeal anti-trade union legislation including the Trade Union Act 2016 and create new rights and freedoms for trade unions’. There is a promise to ‘allow trade unions to use secure electronic and workplace ballots’, which would increase participation, save time and money. But the manifesto is otherwise alarmingly vague about how far they intend to go. The phrases ‘remove unfair and unnecessary restrictions on trade unions’ and ‘remove unnecessary restrictions on industrial action’ don’t say which restrictions are ‘unfair and unnecessary’, while clearly implying that the state imposing some restrictions is fair and necessary. The promise to ‘bring UK law into line with the International Labour Organisation standards it has ratified’ is encouraging, but ILO conventions are open to wide interpretation.

It isn’t in the manifesto, but John McDonnell told Radio 4 that Labour would repeal the ban on ‘secondary’ strikes (banned under the 1980 Act), where workers take action in support of workers employed by another employer. This is vitally important for many workers. Solidarity is at the heart of effective trade unionism. At present, a company can subdivide itself into multiple legal entities, outsource work and employ workers via agencies as it pleases, and the law bans workers uniting across these artificial divisions unless there are simultaneous disputes with each employing organisation. Workers are the best people to decide whether an issue concerns them sufficiently to decide to take strike action: no court should be imposing its view.

There is no mention of broadening the definition of a lawful trade dispute. Since 1982 the definition has been gradually narrowed so that, for example, taking action explicitly about climate change, to stop arms shipments to a warzone or to prevent deportations would be unlawful.

The vagueness of commitments is worrying, and the worries are intensified by the way Labour defends positive elements of its plans by reassuring the public that repealing anti-union laws won’t lead to more strikes. The truth is that workers build power by collective action. If repeal doesn’t help end the appallingly low level of strikes, where many employers are getting away with almost anything without facing effective resistance, Labour will have failed to significantly improve the lot of workers.

Even if Labour wins the election outright, workers will need to organise to ensure that what is implemented goes as far as possible and to take advantage of improvements in legislation to build organisation at workplace level. If Labour doesn’t win an overall majority, we will have to fight even harder.

Supporting unionisation

The Labour manifesto promises action to help workers organise. Unions would have greater rights of access to workplaces to meet, organise and recruit workers. They promise to ‘ban union-busting, strengthen protection of trade union representatives against unfair dismissal and union members from intimidation, harassment, threats and blacklisting’ and to hold public inquiries into blacklisting and Orgreave, as well as releasing the papers on the Shrewsbury 24 trials and the 37 Cammell Laird shipyard workers. There is no specific commitment to give tribunals the power to force employers to reinstate victimised union activists. The complex statutory process to win union recognition would be simplified and union reps given more time off to carry out their duties and these rights would be extended to Equality Reps for the first time.

Labour proposes to use government purchasing power to promote unionisation, requiring ‘all companies bidding for public contracts to recognise trade unions, pay suppliers on time and demonstrate equalities best practice’. However, elsewhere in the manifesto there is more detailed discussion about procurement where the commitment covers ‘services’ procured from the private sector. This is narrower than in the 2017 manifesto, excluding suppliers of goods. Still, the extension of Freedom of Information rules to cover private providers of public services could shine a light on corrupt privatisations as well as helping bargaining.

Unions’ finances would be helped by the restoration and expansion of the Union Learning Fund and by commitments on legal costs. Labour promises to ‘support trade unions internationally in their efforts to promote collective bargaining for better pay and conditions, and include binding social chapters in trade agreements to safeguard workers’ rights’.

Building workers’ power

Workers’ power in relation to their employer is heavily influenced by the state of the labour market and their employers’ product markets. Thatcher’s government deliberately used rocketing unemployment in the early 1980s to beat the unions. Labour’s plans for huge investment to create hundreds of thousands of unionised jobs in the Green Industrial Revolution, housing and expanded public services would strengthen the bargaining position of every worker.

Feelings of precarity don’t arise mainly from the risk of losing your job, but from the consequences if you do. Labour are proposing a whole series of measures that would all help raise the floor of the labour market. These include:

• a minimum wage of £10 an hour for all workers aged 16 and over
• ending zero hours contracts
• creating a single ‘worker’ status to end bogus self-employment
• employment rights from day one, scrapping Universal Credit
• banning unpaid internships
• protecting the right of EU citizens in the UK to work legally
• scrapping the 2014 Immigration Act and giving refugees the right to work.

Promises to reverse privatisation and outsourcing in public services can help reverse the fragmentation of the workforce, which often divides the lowest paid workers from those with the most power.

Demands from the movement

One of the strengths of the Labour manifesto is that it includes long-cherished demands from numerous unions, campaigns and movements rather than relying on think-tanks and focus-groups. This is reflected in a wide range of specific job-related commitments addressing particular industries and occupations, including seafarers, agriculture, health, mobile care workers, early years staff, schools, universities, prisons, probation, local authorities, post offices and Royal Mail, co-ops, fire and rescue, broadband, creative industries, news media, public-facing workers, retail, armed forces and shipbuilding.

However, this approach, which can help other organisations to mobilise a Labour vote, is also a source of weakness, as the manifesto sometimes reflects the short-term sectional interests of particular groups even when they clash with the general approach. Examples include commitments to Trident renewal, nuclear power, electric cars, aviation, and offshore-based hydrogen production. Similarly, some of the positive commitments to support workers through the transition to a decarbonised economy only apply to workers in the energy sector, when the impact will be much wider. Workers in car showrooms will be affected alongside those in car manufacturing, but are usually overlooked because they aren’t organised.

The role of the state

If Labour’s commitments to empowering workers are welcome but insufficient, Labour is at least as ambitious when it comes to the role of the state in changing employment relationships. With few exceptions, British employment law relies on individual workers gathering information to bring a complaint about a problem they have suffered in the hope of getting financial compensation largely based on the loss they suffered. This system individualises problems, exacerbating the power inequality between employer and worker. How many workers have access to the information they need to prove an injustice? How many have the resources to bring a complaint? How many can afford to take the risk of retribution? Why are outcomes restricted to compensation rather than fixing the problem?

The best alternative from workers’ point of view would be if their unions could bring legal cases collectively, deploying their expertise and resources while protecting individual workers from victimisation. Workers could then combine legal action with other forms of campaigning and pressure to get issues addressed for those already affected – and for other workers in the future. Labour isn’t promising this, but does propose a Ministry of Employment Rights, strengthened Employment Tribunals, new Labour Courts, and a unified Workers’ Protection Agency to enforce workplace rights, with ‘extensive powers to inspect workplaces and bring prosecutions and civil proceedings on workers’ behalf’. This could be powerful. The 1833 Factory Act created four Factory Inspectors to enforce restrictions on child labour, with far-reaching powers.

Although the Act didn’t entirely stamp out child labour, it resulted in dramatic reductions in working hours for all workers, because factories couldn’t run at times when children couldn’t work.[1] A similar, if less dramatic, approach was taken in the early years of British equality legislation. The Commission for Racial Equality (CRE) targeted sectors and companies for 24 investigations between 1977 and 1982, aiming to secure changes to policies and procedures, not just enforcement of legislation.[2]

Alongside enforcement, Labour proposes that the state would also roll out sectoral collective bargaining across the economy. The idea of sectoral collective bargaining has been heavily promoted by the Institute of Employment Rights and prominent figures such as Carolyn Jones, Professor Keith Ewing and John Hendy QC. It is a response to a real problem. ‘Bargaining coverage’, the proportion of workers covered by collective bargaining, has fallen by more than half since 1979[3] as workers struggled to gain recognition in workplaces set up since 1980[4], standing at just 26% by 2018.[5]

Sectoral bargaining can counter the ‘race to the bottom’ between employers in the same sector. This offers an attractive shortcut for union leaders looking to increase their influence, membership and revenues. For workers, though, there are some risks. Unions have generally been bad at taking advantage of existing organising opportunities. For example, Unite has struggled to extend recognition between sites in the same employer if they are in different regions. Massive new organising opportunities aren’t automatically taken. Bargaining without building organisation and power at workplace level is unlikely to produce much benefit for workers.

The risk is exacerbated when the bargaining occurs at national and sectoral level, where it more likely to be conducted by union full-time officers with little member involvement. If workers in a particular site get organised, it is hard for rank and file members to influence negotiations when officers can play them off against other sites. National bargaining tends to focus on those items, such as pay and hours, which are easiest to quantify. But in many jobs these are not always the grievances that motivate workers to action. In high turnover jobs, quitting can seem a more realistic way of getting a pay rise than collective action. Issues such as workload, work allocation, bullying, stress and sexual harassment are hot topics in many workplaces and can’t be tackled in once-a-year national bargaining – they need workplace organisation. Sectoral collective bargaining is not a cure-all: as workers, we will need to continue the hard work of organising every workplace.

Reforming away capitalism

As we have seen, Labour’s manifesto offers both some reforms to the conditions in which we’re exploited under capitalism, and a series measures which would increase our power relative to our employers. While these aspects are unwelcome to the ruling class, elements of the elite have made clear they would be prepared to live with such reforms in exchange for large-scale investments they can profit from and a reasonably coherent strategy for British capitalism’s place in the world – something the Tories utterly lack. Labour is, after all, claiming it can nurse British capitalism back to health.

But there are measures in the manifesto which some people might see as a greater challenge to capitalism. How do these stack up?

Labour is committed to doubling the size of the co-operative sector. While many co-operatives are more pleasant places to work, with no boss breathing down your neck or shareholders creaming off profits, they don’t represent a fundamental challenge to capitalism. If the Soviet Union proved that you can’t have socialism in one country when it’s locked in military and economic competition with others, you certainly can’t achieve it in one co-op.

The proposal to have one-third of company boards made of elected worker-directors has excited some. But while some of them might ask some awkward questions and head off some of the stupidest decisions, it certainly wouldn’t put power in the hands of workers. The problem with capitalism isn’t the stupidity, greed or malice of company directors – it is structural. Workers on boards would still be responsible for the business, and that means competing with other companies to accumulate profits as quickly as possible, regardless of the damage to workers, the public or the planet.

One attraction of the idea of worker directors is that they would have access to much better information about the business, which could help workers organise and bargain. There might be some truth in this, as there has been with national and European Works Councils, but any really important information would be protected with Non-Disclosure Agreements – or sensitive discussions would stop happening in the board meetings themselves. Germany has had workers on boards for decades, and while it may have helped capitalism function better, it certainly hasn’t helped end it. Who would take the role? If they weren’t committed to the union, would they help much? If they were, would they be gradually tied up with gagging rules, co-opted into a management mind-set, or kept too busy to actually organise workers? All these problems have been seen with existing works councils.

Labour proposes to ‘amend the Companies Act, requiring companies to prioritise long-term growth while strengthening protections for stakeholders, including smaller suppliers and pension funds’. Again, this is about smoothing the operation of capitalism, at best. No legislation can remove the structural pressure on employers to extract as much profit from their workforce as possible, to compete or go under.

Perhaps the most radical of the proposals is the requirement that large companies set up Inclusive Ownership Funds (IOFs). Big companies would have to transfer 1% of shares each year, up to a maximum of 10%, into a pot collectively owned by the workforce. Dividend payments would be shared up to a cap of £500 a year, with the balance used to top up the Climate Apprenticeship Fund and the cap raised to prevent that receiving more than 25% of dividends. The idea of workers getting a few hundred quid a year by expropriating what the Financial Times estimated at £300bn of shareholders’ assets can’t be bad. As James Meadway argues, if companies can regularly dilute their shares to fund bosses’ bonuses, why can’t we do the same for workers? In many big companies, Meadway says, a 10% shareholding would be ‘a commanding presence’. But to what end? Meadway explains:

The academic evidence shows convincingly that companies with worker ownership are more productive and better-able to make longer-term decisions. We think worker ownership can not only address some of the inequalities in Britain – rampant under neoliberalism since the 1980s – but will also introduce the structural changes needed to produce a radically fairer and more efficient economy.

These are no bad things, but they don’t fundamentally challenge the capitalist dynamics of the economy. Unlike measures elsewhere in the manifesto, neither do they strengthen the capacity of workers to take collective action. They are about managing capitalism differently, not about raising workers’ self-activity and capacity to replace capitalism with a society where decisions are taken democratically, and which therefore has the capacity to protect the climate and meet human need.

After the election

The climate crisis and the clear differences between the manifestos are both contributing to a sense of urgency, that this is ‘now or never’. On one level this is helpful to motivate the action we should all be involved in now. But it also carries problems. No matter what the election result, the class struggle, including the fight against climate change, will go on. That fight will need collective action to confront and defeat capital and its state. We should take inspiration from the fact that our fight is not confined to Britain, important though our battles are. People around the world are rising up against oppression, exploitation and environmental destruction – no matter how hostile their government or repressive their legal framework. To return to a previous example, working class rebellion won the 1833 Factory Act even though less than 5% of the population had the vote and at time when there was no Labour Party, let alone a Labour government.

 

References

[1] Andreas Malm, Fossil Capital: The Rise of Steam-Power and the Roots of Global Warming (London: Verso, 2016).

[2] Linda Dickens, ‘The road is long: thirty years of equality legislation in Britain’, British Journal of Industrial Relations, 45:3 (2016), 463–94.

[3] Brian Towers, ‘Trade union merger strategies’, Historical Studies in Industrial Relations, 25-26 (2008), 271–81.

[4] Tonia Novitz, ‘A revised role for trade unions as designed by New Labour: the representation pyramid and “partnership”’, Journal of Law and Society, 29:3 (2002), 487–509.

[5] https://www.gov.uk/government/statistics/trade-union-statistics-2018