Focus: Starting from Scratch: A Manifesto for UK Labour Law

Abstract

INTERNATIONAL union rights Page 10 Volume 23 Issue 2 2016 British laws on trade unions are the most restrictive in the Western World FOCUS ❐ BREXIT I n the same month as the Brexit referendum result, the UK’s Institute for Employment Rights (IER) has published its Manifesto for Labour Law: towards a comprehensive revision of workers’ rights. The IER’s proposals on reform of the UK’s labour laws could not be timelier. Fortythree years of EU membership may have contributed some gains for the rights of British workers , but current comparisons with Europe present a stark picture of working life in the UK: ‘On average, British workers work more hours per week, more days per year, more years before they retire, after which they receive lower levels of pension than most of their European counterparts. In comparison to other European workers they have generally received less education and training, and (because of lack of employer investment ) their productivity is lower. They get fewer paid holidays than almost all European comparators (the Working Time Directive notwithstanding). Their pay is so low that a great proportion of them are in poverty (and the State subsidises employers’ low wages in respect of a higher proportion of workers) than almost anywhere elsewhere in Europe. The gender pay gap is at a wholly unacceptable level’. As the manifesto’s authors explain in detail, the UK has ‘a framework of law born out of 19th century conditions, which has bypassed many advances of the 20th century, which ignores today’s economic and workplace realities, and which is not fit for purpose in 21st century Britain’. A debate on the future of British labour law is long overdue. The authors address head on the relationship between the dire state of workers’ rights in the UK and the current legal restrictions on the exercise of trade union rights, which have increasingly made collective actions such as striking so burdensome as to be almost impracticable. British laws on trade unions in 2016 remain ‘the most restrictive in the Western World. This is indisputable in relation to the right to trade union autonomy, right to strike, and the right to bargain collectively’. The Conservative government’s latest legislative attack on trade unions – the Trade Union Act 2016 – was roundly criticised for containing provisions which violate ILO Convention 87, and concerns were raised about its compatibility with the European Convention on Human Rights. Some of these aspects were watered down in response to pressure from trade unions. Nonetheless, many contested provisions – concerning ballot thresholds and the expanded role of the trade union Certification Officer – have now been enacted. The Manifesto calls for that Act to be repealed in its entirety, immediately. The restoration of collective bargaining The Manifesto’s principle recommendation for reform is to shift the balance of regulation from legislation to collective bargaining. The IER’s 25 comprehensive policy recommendations are founded on building ‘extensive sectoral collective bargaining structures underpinned by strong trade union rights’. The authors acknowledge that such a shift is ‘contingent on strong State support for [collective bargaining] and for trade unions (and employers’ associations), upon whose shoulders will lie a heavy responsibility for delivery’. Legislation therefore continues to play a key role. But the authors also amply demonstrate that legislation alone is an ambivalent and sometimes ineffective tool: the rampant levels of inequality in the UK at present are not an ‘unavoidable product of the operation of the ‘labour market’’. Rather, ‘the law has been moulded purposefully to achieve these outcomes’ – in particular since the Thatcher-era. One of the principle effects of this has been the cynical destruction of collective bargaining since 1980. Once the preferred method of regulation, collective bargaining has been largely displaced by legislation: ‘By 2011 Britain had fallen to the second lowest in Europe in terms of the level of collective bargaining coverage. Coverage is probably less than 20% today, lower than at any time since before the First World War’. The result is in ‘an unnecessarily legalistic, inefficient and immensely complex system of rules, contained in an ever-growing statute book too heavily dependent on lawyers, tribunals, judges and courts for their enforcement’. The weakness of this labour...