From the TUC

Working people’s rights after Brexit: campaigning for continued compliance

19 Nov 2016, by in International

This morning I was pleased to be asked to address a European policy forum in Yorksire & the Humber by the local Labour MEPs Linda MacAvan and Richard Corbett. Shadow Secretary of State for Exiting the European Union Keir Starmer spoke for Labour. Here are some of the remarks I made about workers’ rights after Brexit.

The TUC, like all of our largest affiliated trade unions, campaigned strongly for a Remain vote in the referendum. Although perhaps not strongly enough. Half of me thinks if we could have started just a couple of months earlier, put a few more boots on the ground, we could have won. And another half of me thinks the debate was lost years ago, when we failed – despite our best efforts – to address deindustrialisation, to ensure we had a regulated labour market, properly funded public services and adequate housing policies fit to manage migration better, and failed across Europe to ensure that the social model kept pace with economic change.

But we accept where we are, we accept the result of the referendum as we all too often have to accept election results we don’t agree with.

We also accept that we need a uniquely British relationship with the EU in the future, but that means that we have to decide what sort of relationship that is. That’s why we set out 5 tests for Theresa May’s government to meet before triggering Article 50 and starting the negotiations to leave the EU: a proper national debate on where we are going; a plan for what to do to sustain jobs and investment; a place for unions as well as the nations and business in the negotiating process; a right to remain for EU citizens already making their contribution to the UK; and a solution to the problems which will be faced by our colleagues north and south of whatever sort of border there will be in Ireland.

Our over-riding concern is that in that new environment, workers must not pay the price for Brexit.

Before the referendum campaign began, we commissioned leading employment barrister Michael Ford QC to produce an opinion on what rights at work we risked if we left the European Union. We thought it was a pretty good report, and it got positive reviews at the time – although not enough popular news coverage. But we have only recently realised how good it was when the very highly regarded Commons Library produced a report on exactly the same question which, basically, advised people to go read Michael’s report.

It was bleak reading. He identified a whole host of laws and regulations which we secured over 40 years of hard bargaining and campaigning from the European Union. I will paraphrase because it’s a long and technical list:

  • collective consultation, including the right for unions to be consulted if changes are planned that would result in redundancies;
  • working time rules, including limits on hours and rules on the calculation of holiday pay, as well as paid holidays which benefited six million people directly when the Directive came into force;
  • health and safety regulations;
  • protections of the terms and conditions of workers whose jobs are transferred or outsourced to a new employer, known as TUPE rights;
  • protection for agency, temporary and part time workers; and
  • equality laws, and laws that help women during pregnancy and the parents who come afterwards.

But he also identified a whole host of rights that are about the enforcement of those rights. Rules over how much compensation people can be awarded, for instance. And the right to take cases of injustice to the European Court of Justice, which has been far more positive especially about equality laws than the UK courts.

These rights, he said, would be under threat if we left the EU precisely because they could be changed by Westminster at will, which is something that could not happen if we stayed in the EU.

Our polling after the referendum showed that these rights were indeed popular. Hardly anyone – whether they voted leave or remain – voted to take those rights away, although we know some right-wing Tories and employers are rubbing their hands at the prospect.

We did find, though, that people felt that the rights would not be attacked by a future British government, despite the fact that the Coalition took away several rights that weren’t protected by EU membership, and the Cameron government wasted so much time, effort and political capital ramming through an eventually much weakened attack on trade unions in the Trade Union Act just weeks before the referendum. We’re not so confident.

More worryingly, we found that the impact of attacks on trade unions, reduced levels of inspection and enforcement – including the impact of Employment Tribunal fees – and a constantly changing labour market, meant that people often liked the EU’s employment laws, but didn’t feel they made that much difference to their working lives. I’ll come back to the implications of that.

So, our well-argued case did not convince enough people – although we know 60% of trade union members voted remain.

What we are now arguing for, lobbying British Ministers but also, through our trade union links around Europe, the governments of other EU member states, is continued compliance with EU employment laws when Britain leaves the EU, and at least for the transitional period which we think is likely to be necessary between the end of the Article 50 process and final agreement of the future arrangement between the UK and the EU.

Note that this means more than simply preserving the rights that we currently have. Preserving those rights is important, of course, and the effectiveness and power of our arguments is shown by the Prime Minister’s speech at Conservative Party Conference last month, echoed by David Davis who was at least opposed to much of the Trade Union Bill, that those rights were safe under her administration. That has been echoed in the Commons by the Business Secretary Greg Clark.

We’re not, of course, banking on those promises. We want, workers need, a mechanism that ensures their rights cannot be taken away.

Because there’s more than our existing rights at stake. If Europe wakes up to the need to protect workers, people, communities, in the face of ever more rapacious business interests, ever more insecure working arrangements like Uber and zero hours contracts, then European workers will see the rights we currently share move forward, get better, provide stronger protections.

We no more want to fall behind those new rights than we want to fall behind the rest of Europe by losing the rights we currently have. And it works both ways. If we’re not ‘keeping up with the Schulzes’, then we offer bad bosses the opportunity of increasingly using Britain as a low wage, lower rights export processing zone on the edge of Europe.

We don’t want to lose the rights we have, but nor do we want to fall behind. We know this is a stretch, we know it will require hard graft, popular arguments, putting pressure on people who currently seem to have the upper hand – even if they don’t know what their hand consists of yet!

We know it will be struggle enough to secure the rights we already have, but if we limit our ambition to that, we will certainly end up with less than we want and less than working people deserve. And we will undercut our ability, if we don’t secure such a mechanism, to demand catch-up legislation every time our colleagues in the European trade union movement wins new rights in the rest of the EU.

I mentioned this earlier, but one of the things we found in the referendum was that we found too many people for comfort who felt their rights at work were moot because it was so difficult to enforce them. The more we fall behind – which will probably include falling behind on enforcement rights – the longer we have no access to the European Court of Justice – the less the existing rights we have will matter to people in practice.

So we’re arguing for continued compliance with the rights other European workers have. Or even more, of course. We’ve always been able to control how much more rights we have, as the minimum wage, extended holiday rights and extra parental rights demonstrate. And, at the moment, we can’t see a more secure way of guaranteeing that than single market membership – so at the very least we don’t want that to be off the table.