Memorandum by National Farmers' Union
On 22 November, the European Commission presented
a Green Paper entitled "Modernising labour law to meet the
challenges of the 21st century". The EU Green Paper invited
the social partners to give their opinion by 31 March 2007 on
how EU and national labour law can help make the labour market
more flexible while at the same time providing workers with maximum
security ("flexicurity"). This submission is the response
of the National Farmers Union (NFU) of England and Wales to the
House of Lords Select Committee on the European Union Inquiry
into the EU Commission Green Paper "Modernising Labour Law
to meet the challenges of the 21st century". The NFU is making
this submission as the largest agricultural employer's federation
in the United Kingdom representing farmers and growers in England
and Wales.
FLEXIBILITY OF
THE LABOUR
MARKET
Inflexible labour market rules act to the detriment
of both enterprises and workers by preventing or restricting the
formation of mutually beneficial economic relationships. However,
whilst it is now largely accepted that labour law is required
to even the balance of power between enterprises and workers and
to improve the operation of the labour market, it is also recognised
that this can reduce flexibility within labour markers and reduce
employment opportunities. A starting point to changes in labour
law to increase the flexibility of the labour market would be
to focus labour law initiatives on a narrow perception of the
employment relationship, and for labour law not to be used to
achieve broad social objectives.
The NFU notes the trend towards granting of
derogations from general EU labour law in situations where a collective
agreement is in place—for example Article 18 of directive
2003/88/EC. The NFU welcomes this flexibility, but is unable to
take advantage of such opportunities because the tripartite social
dialogue imposed by the Agricultural Wages Act 1948 falls outside
of the narrower criteria of collective agreement. Consequently,
the NFU requests that the derogations available for collective
agreements by broadened to include additional forms of social
dialogue.
The NFU is supporting the development of the
proposed EU Agripas project of an EU wide system of recognition
and accreditation of agricultural qualifications, skills and competences.
It is hoped that this will enlarge the available labour pool for
both enterprises and workers facilitating the free movement of
skilled and semi skilled agricultural labour and the provision
of training to benefit both enterprises and workers.
EMPLOYMENT SECURITY
In the UK workers gain protected status after
one years service, and once protected they should not be dismissed
without cause but may be made redundant if their role becomes
obsolete. This can result in substantial re-structuring costs
being imposed on enterprises to apply a fair redundancy procedure,
and to meet the redundancy payments of workers with long service.
This can result in substantial liabilities for enterprises already
under financial stress, and can encourage the winding up of enterprises
that might otherwise have a future.
The Transfer of Undertakings Regulations (TUPE)
serve to protect workers employment rights when an enterprise
is merged or taken over, "except when the role is redundant
due to an economic, technical or organisational reason entailing
change in the workplace". The revision of the regulations
in 2006 is welcomed for the greater clarity of drafting, but the
broad reach of this legislation is not entirely welcome for the
added complexity to re-organising agricultural enterprises.
In trying to suggest helpful changes to labour
law, one could revisit the accrual of labour rights with length
of service. Redundancy payments for long service serve to reward
inertia and may have age related effects. Such payments do not
reward the worker for the present marginal value of labour.
THE CONCEPT
OF "FLEXISECURITY"
The concept of "flexicurity" to combine
the ideals of a flexible labour market with those of employment
security is somewhat helpful. The conflicts inherent in flexible
labour markets and employment security underpin many social dialogues
at national and EU level and this newly coined word neatly encompasses
these issues. What is less certain is whether the concept of "flexisecurity'
will prove to be more than shorthand for maintaining the balance
between these competing interests.
Changes to labour law to help secure "flexisecurity"
must recognise that security of employment must be founded upon
viable economic relationships, and that flexibility is necessary
to retain viable economic relationships. Overemphasis on employment
security will impact on the motivations of the workers, and the
manoeuvrability of enterprises in responding to external stimuli,
and consequently lead to adverse consequences damaging the prospects
of the enterprise and the role.
OTHER LABOUR
MARKET CHALLENGES
The present Working Time Directive reference
period of four months sits uncomfortably with sectors operating
to annual production cycles such as parts of agriculture. The
NFU would welcome the introduction of a 12 month reference period
which would allow the tailoring of working hours to growing and
harvesting conditions with the effect of increasing the flexibility
of the labour market whilst adding to the security of employment.
Seasonal migrant workers are becoming increasingly
topical on both a national and EU level. The extent to which labour
law changes could help is difficult as many of the concerns are
outside of labour law as traditionally perceived and include issues
such as migration policy, housing standards, and access to government
services.
GROUPS COVERED
BY LABOUR
LAW
At present labour law applies irregularly to
a spectrum ranging from employees, paid workers, unpaid workers
and volunteers, with different definitions and applications in
different acts. In this it would be helpful if the definitions
could be common across different pieces of legislation, although
it is to be expected that the application of any given piece of
legislation would apply to the various categories of worker on
a particular basis.
The Green Paper suggestion to apply labour law
to workers whose employment status is intermediate between employee
and self-employment is to be resisted. Whilst it is recognised
that there is disguised employment this is adequately dealt with
by the present national law. However, the Green Paper proposal
to apply labour law to all intermediate employment status could
render ineffective or unlawful many positive economic relationships
which are not based on an imbalance of power between the parties,
but rational allocation of risk and autonomy. In particular the
Green Paper proposal could reduce the flexibility of workers to
act as independent agricultural service providers and contractors.
ROLE OF
EU REGULATION
To an extent the labour market of England and
Wales is now part of an EU labour market, and additionally with
significant connection to some extra-EU countries labour markets.
Despite this however, the role of EU-level regulation falls to
largely be applied by the member states resulting in diversity
at the level of member states. The EU members also exhibit substantial
cultural and geographic diversity for example with daylight hours
and temperature ranges. Consequently, further EU-level labour
regulation is not to be welcomed. This may be illustrated by the
problems on agreeing to reform of the Working Time Directive with
alternative proposals being put forward but making slow progress
towards the approval of an acceptable modified EU-level regulation.
The Green Paper "floor of rights"
should be resisted as too inflexible to apply meaningfully across
27 members states with varied cultural traditions and geographic
features. The Community wide definition of a worker to promote
worker mobility should also be resisted as the risk of adverse
consequences to national level policies is in excess of any advantage
conferred.
28 March 2007
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