Memorandum by Amicus
INTRODUCTION
1. Amicus is the UK's second largest trade
union with 1.2 million members across the private and public sectors.
Our members work in a range of industries including manufacturing,
financial services, print, media, construction and not for profit
sectors, local government, education and the health service. It
has recently agreed to a merger with the Transport and General
Workers Union which will create a new union of over 2 million
members.
2. Amicus believes that the best way to
modernise EU labour law to meet the challenges of the 21st century
(both in terms of globalisation and advances in technology) is
to encourage and strengthen collective bargaining, without diminishing
job security or contractual rights.
3. Amicus rejects the assumptions underlying
much of the green paper, and the implied meaning of "flexicurity',
that either the economy, or vulnerable workers such as women and
migrant workers, would benefit from weakened laws on unfair dismissal
and contractual rights.
THE SPECIFIC
QUESTIONS POSED
IN THE
COMMITTEE'S
CALL FOR
EVIDENCE ARE
ADDRESSED BELOW.
4. Flexibility of the labour market
4.1. It is necessary to define what is meant
by flexibility in the labour market. Numeric flexibility is more
than adequately provided for within UK employment legislation
and indeed Amicus would argue that this works against the long
term interests of British industry in favour of the short term
gains of investors.
4.2. Amicus is concerned generally that
"flexible" legislation might contribute to a situation
that allows workers to be exploited. UK legislation, which supposedly
protects employees' rights, actually contains many exceptions.
This is vividly illustrated in an extract from Professor Keith
Ewing's presentation to the Industrial Law Society in 2000:
"Take a young man in his mid 20s, employed
as a security guard. Despite the great reforms since 1997, it
remains the case that he may be hired on a lower minimum wage;
he may be required to agree to work long hours, certainly more
than the prescribed international and EU maximum of 48 hours weekly;
he may have no right to have his trade union recognised for collective
bargaining if he has 19 rather than 20 colleagues; he will have
no right to be represented by a trade union in the negotiation
of his terms and conditions of employment; and he will have no
right to be treated fairly by his employer for the first year
of his employment"[1].
4.3. On the other hand functional flexibility
is dependent upon the adequate provision of skills to equip workers
to meet the challenges that industry and commerce faces in a globalised
economy. In this area the UK has much still to do as has been
identified by the recent Leitch report[2].
4.4. Amicus does not believe that changes
to labour law is capable of achieving functional flexibility but
that the enhancement of the role of trade unions can advance flexibility,
without detracting from security and fundamental human rights.
4.5. Training and innovation are key to
the UK's competitive advantage in the world economy, and both
are best served by secure work places where the workers have a
voice to contribute ideas and both employer and employee have
the incentive to invest in training. Unions have a key role to
play in promoting education and training. Our workplace representatives
can help employers invest in education and training. We also directly
provide much training, both through the Union Learning Fund projects,
and other initiatives and bodies.
5. Employment Security
5.1. It is easier to hire and fire UK workers
than in almost any other Western European country. Amongst OECD
Nations the World Bank places the UK as the 4th easiest in which
to do business and the 6th easiest to hire and fire workers. Within
Europe only in Denmark is it easier to hire and fire workers and
that has to be viewed alongside its advanced social provision
for workers displaced identified as a model for flexicurity in
the EUC Green Paper.
5.2. Amicus would argue strongly that workers
respond better to change and flexibility where there is confidence
and trust in their own security of employment. This view is supported
by research undertaken by, amongst others, The Work Foundation[3].
5.3. Amicus has consistently argued that
strengthening the laws on redundancy consultation and protection
would enhance the security of employment of UK workers and create
a level playing field for workers in companies operating across
Europe.
6. The Concept of "Flexicurity"
6.1. Amicus is concerned about a number
of flawed presumptions in the Green Paper and rejects the propositions
that:
— reduced labour security improves
productivity;
— women and disadvantaged job-seekers
necessarily benefit from flexible forms of employment;
— new laws and better security must
involve "red tape" harmful to legitimate business; and
— the labour law framework in the UK
is conducive to growth and full employment.
6.2. The UK record on productivity over
the last 10 years whilst showing some improvement has not reached
the levels of other EU States where employment protection legislation
is significantly stronger.
6.3. In the UK, where we have some of the
most flexible employment practices in Europe, evidence points
to the most vulnerable workers continuing to find themselves in
the temporary labour market with less favourable protection than
those employed in the permanent labour market and frequently on
lesser conditions[4].
6.4. Equivalent growth and full employment
have been achieved in differing labour market models[5].
Research by Andrew Glyn & John Edmonds (among others) supports
this. They wrote: "Taking these increases together it is
clear that Mr Brown's public expenditure programme has been directly
responsible for all the growth in UK employment since 2000"[6].
6.5. We do support the contention that certain
forms of flexible working (quite different from flexicurity)
can assist workers, especially those with caring responsibilities
or certain disabilities. However, workers need secure employment
and contractual terms and effective trade union representation,
in order to negotiate flexible working that helps them. Flexibility
of hours at the discretion of the employer, e.g. annualised hours
contracts requiring long hours in periods of peak demand, effectively
exclude most workers with caring responsibilities.
7. Other labour market challenges
7.1. Within the UK there are groups of workers
who face challenges and are regarded as vulnerable. Amicus agrees
with the government that legislative changes need to be made to
protect the vulnerable workers in our society. Amicus has welcomed
the steps taken for example to offer some protection to migrant
workers through the Gangmasters legislation. However, Amicus is
disappointed that government has obstructed the introduction of
the EU Temporary Agency Workers Directive and has recently obstructed
the passage of the private members bill[7]
designed to provide some protection to agency workers in the UK.
7.2. There is a clear need for clarity in
Member States' legal definitions of employment and self-employment,
as there is a need for a convergent definition of "worker".
The EU should, of course, work to combat undeclared work.
7.3. There is a significant and growing
problem here, which highlights general failings of the legal employment
relationship. The particular solution would be to provide for
joint and several liability in relation to "three-way relationships"
including sub-contracting and agency work.
7.4. In the UK in particular the problem
is such that workers may never be sure, even after obtaining legal
advice from an expert in the field, whether they are employed
by an agency, a sub-contractor, or by the end user of their services,
or none of them. In Johnson v Montgomery Underwood in 2001[8]
the Court of Appeal asked Parliament to intervene.
8. Groups covered by labour law
8.1. The complications over this issue in
the UK include those in relation to ministers of religion. In
the UK the House of Lords[9]
and the Employment Appeals Tribunal[10]
are clearly saying that the legal framework must be reviewed and
changed.
9. Role of EU Regulation
9.1. The citizens and states in the EU should
seek nothing less than positive sound universal rights which accord
with giving effect to existing international and European standards.
This is not the same as a "floor of rights", that provides
low basic levels below which people should not drop and which
may be used by the unscrupulous to create a ceiling.
9.2. Sound universal standards are the only
means to avoid a drive for deteriorating rights and "the
race to the bottom". They are not the same as a "floor
of rights". The EU has a duty to emphasise, encourage or
enforce compliance throughout Europe and also the rest of the
world.
9.3. Consistent and clear rights will take
care of the problems of workers operating in a transnational context,
throughout the Community and beyond its borders. To that end Amicus
views the need for a common definition of worker as secondary
to the establishment of sound universal workplace standards.
10. Conclusion
10.1 In 2002, the Managing Director for
Human Development at the World Bank, Zafiris Tzannatos, produced
"Unions and Collective Bargaining—Economic Effects
in a Global Environment"[11]1.
This was an in depth report that reviewed more than a thousand
studies on the effects of unions and collective bargaining. It
found that co-ordinated collective bargaining tended to be associated
with lower and less persistent unemployment, lower earnings inequality,
and fewer and shorter strikes.
10.2. Amicus would assert that the promotion
and development of collective bargaining is core to the success
of meeting the challenges of the 21st Century.
March 2007
1 KD Ewing, Employment Rights: Building on Fairness
at Work, speech to Industrial Law Society (2000). Back
2
Prosperity for all in the global economy-world class skills Final
Report December 2006. Back
3
An agenda for work: The Work Foundation's challenge to policy
makers Provocation Series Volume 1 Number 2 David Coats, Associate
Director-Research, The Work Foundation. Back
4
Quarterly Labour Force survey, September-November 2005-from PSI
Report "The Hidden One-in-Five" September 2006. Back
5
OECD Employment Outlook 2006-Boosting Jobs and Income. Back
6
Andrew Glynn and John Edmonds, as reported in Financial Times
30 June 2005 http://www.ft.com/cms/s/4d573266-e903-11d9-87ea-00000e2511c8.html Back
7
Temporary and Agency Workers (Prevention of Less Favourable Treatment)
Bill. Back
8
Johnson v Montgomery Underwood [2001] IRLR 269. Back
9
Church of Scotland v Rev Helen Percy, [2005] UKHL 73. Back
10
New Testament Church of God v Rev Sylvester Stewart, [2006] UKEAT/0293/06/DA. Back
11
Co-written with Toke Aidt of Cambridge University-ISBN 0-8213-5080-3-
http://www-wds.worldbank.org/external/default/main?pagePK=64193027&piPK=64187937&theSitePK=523679&menuPK=64187510&searchMenuPK=64187283&theSitePK= Back
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