Wednesday 20 November 2013

A one-day conference
Diskus Room, Unite Building, Theobalds Road, London
9.30am - 3.30pm

About the Conference

We launched our new publication Labour Migration in Hard Times at this conference - find out more here

The UK has always been home to migrant workers from around the world and the exploitation of these people is a problem the Institute of Employment Rights (IER) has highlighted in the past. In recent years the issue has worsened at a time when economic pressures are at their highest and as part of the current government's race to the bottom when it comes to workers' rights and terms and conditions. The IER brought an audience to the Unite HQ on Wednesday 20 November to hear from leading academics and other experts in this field on the plight of migrant workers in today's society.

Welcoming delegates to the Conference, Institute Director Carolyn Jones, told the audience that the Institute had been able to draw on its rich resource of academic expertise for this conference. She reminded delegates that migrant workers are on the frontline at work and raised the question of the day – how far is the law able to protect these vulnerable people and how might it be improved?

Introduction

Bernard Ryan, Professor of Migration Law at Leicester University

The first speaker Bernard Ryan, of the University of Kent, is the editor of the IER's new publication Labour Migration in hard times: Reforming labour market regulation?

Presenting an overview of the subject matter, Bernard reminded conference of the IER's previous report on this issue published in 2005 and welcomed the opportunity to revisit the subject in changed political and economic times. Reflecting on the UK's current labour law position, he reminded conference of the weaknesses of current provision and the demise of trade union membership and collective bargaining.

There has been a growth in labour migration, including in lower-skilled work. This, he suggested, leads to greater labour market competition, which labour law historically regulates. He acknowledged the reservations in society about the presence now and in the future of a significant number of migrant workers, and that this needs to be addressed in the context that migrant workers will continue to arrive in the UK and that labour law reform applicable to all workers is preferable to caps and net migration targets as a strategy for migration management.

Over the last five years, economic weakness has not led to a reduced number of migrant workers. Data suggests there is a greater concentration of migrant workers in lower-skilled work, with evidence of employers turning to migrant workers due to cost and delivery pressures within the low-paid sectors. This is partly because migrant workers are more willing to go along with what employers demand in terms of flexibility, and thus are more likely to be exploited. Due to redundancies and a higher rate of unemployment in the UK, as well as immigration, there has been a rise in the supply of labour and therefore increased labour market competition. There is some evidence that this has led to a decrease in wage levels, but there is a lack of recent specific studies on this subject.

Bernard told conference that Ed Miliband signalled a change in Labour policy in a speech to the Institute for Public Policy Research last year when he suggested labour standards need to be changed to protect people from exploitation. However, comments from the Labour Party have focused on discrimination against British workers by employment agencies and a proposed change to the Employment Agencies Act 1973 to prohibit UK-based agencies from working solely with non-residents. Bernard feels this policy is running in the wrong direction, highlighting that such legislation would also need to address agencies working only with those who are resident in the UK. He believes it is more important to address the practices of agencies based abroad to prevent discrimination.

Labour's proposed policy on pay and conditions includes tougher penalties on breaches of the minimum wage legislation and enabling local authorities to uphold the principles of the minimum wage in addition to HMRC officers. Bernard criticised this plan, as he felt it might lead to some confusion if adopted.

Further Labour reform options include extending the Gangmasters Licensing Authority (GLA) to other industries where there is exploitation, a move to a living wage and the extension of collective agreements to posted workers. On enforcement, Bernard felt there should be a licensing system for all agencies, not just Gangmasters, and a Labour Inspectorate to address the piecemeal approach to supervision.

Although he does not always agree with Labour's proposals, Bernard welcomed the Party's move to discuss labour standards in the context of exploitation. He felt a serious approach to exploitation had some chance of improving the public perception of migration.

A history of immigration and the political response

Don Flynn, Director of the Migrants' Rights Network

The next speaker to take the podium was Don Flynn, Director of the Migrant Rights Network, who explained to conference the poor treatment of migrant workers today has its roots in the neocapitalist politics introduced in the 80s. The key factors of neocapitalism are labour market deregulation and the use of social welfare systems to defuse protest and manage the transition to a new economy. Don explained the post-war history of labour market regulation gave the impression that the state could control immigration, whereas in reality it was the economy that determined the diminution in migration to the UK in the 1970s. Thatcher's settlement, he said, provided the reason for immigration to be kept at low levels. There was no immediate demand for increased immigration from the internal economy. But external circumstances began to produce a more volatile situation internationally, which brought large numbers of workers into migration systems. Whilst this was initially characterised by increased refugee flow, it later became largely economic migration.

During the 1990s, a new demand for labour brought about by the emergence of business models such as SMEs invoked a new phase of immigration. Don explained SMEs require a labour market with such a level of 'flexibility' that the jobs provided were simply not attractive enough to draw on those workers who had effectively been 'warehoused' since the 1980s. The political implications of this led the Labour Party to move away from a restriction on immigration, to policies which supported growth. The nature of the labour flexibility being demanded encouraged a new level of entrepreneurialism.

This policy fell apart for Labour in the years following 2008, when the recession led to a backlash against migrant workers. Claims of competition between British-born workers and migrants were made more plausible by evidence of youth unemployment, downward pressure on wages and an increased demand on public services. This allowed the centre right to find support for their anti-immigration arguments, enabling them to chip away at working class support for Labour.

Female migrant workers - no sign of equality

Sonia McKay, Professor of European Socio-Legal Studies, London Metropolitan University's Working Lives Research Institute

Sonia McKay, Professor of European Socio-Legal Studies at London Metropolitan University, was the next speaker. She focused on the particular position of female migrants in hard times. Sonia pointed to an increase in the number of female migrants over recent years brought about by a rise in poverty in their home countries, as well as a surge in female participation in the labour market. The trend for female labour as an export commodity is also a factor, but none of these aspects have challenged the old stereotypes and the market remains segregated.

Women tend to migrate to the UK due to economic factors, to reunite with family, to escape from oppression and to provide for their families. Sonia's research demonstrates that the main reason for migration among women is for the good of their children or the good of their whole family, whereas men are more likely to be driven by political, economic or emotional reasons. Women are also more willing to undertake any job available than men are, and tend to be older than male migrants.

Female migrants are those most likely to be educated to secondary level, but they are unlikely to be working in jobs which require their expertise and qualifications. Typical work includes cleaning, housekeeping, caring, hospitality and agriculture, where existing skills are appertained. These are the sectors most open to female labour, and where there is the greatest demand for their services, but they are also the worst regulated and the least likely to be unionised. This makes female migrant workers an extremely vulnerable group.

Sonia told delegates that the permit system that restricts entry to jobs for migrant workers is disproportionately affecting women, who are pushed into low-skilled work. Opportunities to challenge sex segregation have narrowed, women are being forced into informal work, and the decline of factory roles has also had a greater impact on women than men. She concluded that, for migrant workers, your gender determines your job opportunities.

Trade unions and migrant workers

Miguel Martinez Lucio, Professor of International HR Management, Manchester Business School

In the final contribution of the morning, Miguel Martinez Lucio of Manchester Business School addressed the relationship between trade unions and migrant workers. He began by focussing on the issues affecting migrant workers in the UK, including segregation and exclusion; the disorganisation and deregulation of the labour market; and new waves of migration through EU enlargement.

Trade union strategies in the UK from the 1970s to the 1990s saw the emergence of anti-fascist campaigns, and highlighted the importance of legal systems and the role of autonomous sections and interests within some unions. Internal training and race awareness campaigns were also developed within the labour movement. Unions have also historically taken advantage of English as a Second Language (ESOL) training and run specific campaigns defending vulnerable workers, such as the living wage campaign by London Citizens. Unions have also campaigned against racism and the far right in local communities and developed special policies for black and minority ethnic (BME) groups.

Union-designed projects have progressed engagement with migrant workers, but challenges remain for the labour movement, Miguel said. The demise or reduction in state funding such as the Union Learning Fund and the University Modernisation Fund means that the movement has been forced to be continually innovative in terms of collectivism. Miguel asserted that the challenge for unions is to improve work across organisational and regional. The development of links with the migrant community has not always been supported in terms of consistent structures at local level and within civil society, he warned, criticising a recent disconnection of unions with previous forms of BME democratic participation.

A debate was sparked on the podium over the language used to refer to migrant workers – and how helpful it is – when Miguel suggested that talking about migrant workers in terms of their 'vulnerability' may actually serve to mask the problems that are specific to them. While many workers are vulnerable, migrant workers have issues of their own and these should be faced as migrant worker problems, not simply issues of vulnerability, he argued.

However, with state funding cut and some trade unionists reporting distaste among members when union dues are spent on migrant workers, including migrants within campaigns for the larger group of 'vulnerable workers' at least means they can be covered by trade union activity.

Miguel concluded by advising trade unions to move away from 'project work', in which a lump of funding is acquired to reach one particular aim, after which the organisation swiftly moves on to another goal. This is not the most sustainable way to help migrant workers and there is always the potential for funding to be cut or removed entirely. For this reason, he recommended that unions embed migrant worker issues into their structures, thus making organising in this field a longer-term strategy rather than a one-time goal.

Posted workers - invisible employees?

Tonia Novitz, Professor of Labour Law, Bristol University

Following lunch, Tonia Novitz and Lydia Hayes from the University of Cardiff took on the issue of posted workers and the situation facing them in the UK labour market. Tonia defined a 'posted worker' as a temporary employee who does not gain access to the labour market of the host state. She told delegates there are three main categories of migrant worker:

• Those who originate from EU member states and so can exercise their right to work in other EU countries
• Those who are from outside the EU and who need visas to be able to work in the UK
• The posted worker – an EU national who is sent to another member state to provide services by their employer

Posted workers receive only minimal protection in the host state in respect of wages, hours and other terms. For this reason, they often experience hardship in the host state. What's more, the posted-worker model is now being used in different contexts, such as trade agreements including a href="https://www.ier.org.uk/blog/eu-friend-or-foe-trade-unions">Mode 4 of the General Agreement on Trade in Services (GATS). One piece of good news is that the Seasonal Workers Directive has now moved away from this model and more generous protection is to be offered to the workers to which it relates.

Dr Lydia Hayes, Cardiff University

The Posted Workers Directive introduced in 2007 provided host states the opportunity to set minimum standards which would apply to posted workers. Quoting the 'Laval' case, in which posted workers from Latvia who were employed in Sweden were not paid at Swedish minimum wage rates, Tonia explained that the service provider in question preferred to complete a collective agreement in the home state of Latvia rather than the host state of Sweden. Swedish unions lost a court case to secure a collective agreement in the European Court of Justice. This important case is a dangerous one for unions across the EU and migrant workers within member states, as it sets a precedent for the legal undercutting of national wage structures by employers with a migrant workforce.

Lydia then went on to explain the consequences of 'posting' in hard times on host state workers, which she said can lead to 'social dumping'. She told delegates that in the UK there is growing concern about unemployment and this has been illustrated by the Lindsey Oil dispute. Evidence of downward pressure on wages is scarce, but GMB found some evidence in the Staythorpe construction site, which should be an issue of concern among unions and an incentive to step up awareness campaigns on how the exploitation of migrant workers affects us all.

Tonia turned to the problem of accessing migrant workers' right to freedom of association, for example access to trade unions. This right is enshrined in the European Convention of Human Rights, but language barriers in host states and difficulties in contacting unions in migrants' home states are just some of the obstacles facing posted workers. Additionally, a lack of transparency over who a posted worker's employer is can lead to confusion over – and therefore a lack of protection in – health and safety issues and access to justice. Tonia stated that this contributes to the overall 'invisibility' of posted workers.

Enforcement of the law

Nick Clark, Employment Relations Senior Research Fellow, London Metropolitan University's Working Lives Research Institute

The final speaker of the day was Nick Clark from London Metropolitan University, who looked at the enforcement of rights in the workplace. In 2008, the UK was the second least regulated labour market in the OECD for unfair dismissal rights and it currently holds the same ranking in respect of hours and holidays. Nick told delegates that workers in the UK are over-represented amongst the least protected in the OECD, and many of the most vulnerable will be migrant workers, whose contracts may be deemed unlawful because of immigration laws or undeclared work.

In turning to the principal forms of enforcement, Nick outlined the agencies which have powers to enforce employment rights, health and safety, the National Minimum Wage. These include the Health and Safety Executive (HSE), the Gangmaster's Licensing Authority (GLA), the Equality & Human Rights Commission (EHRC) and the Employment Agency Standards Inspectorate (EAS). However, many of these are about to disappear through mergers (for example the EAS is to be absorbed into National Minimum Wage Inspectorate). Meanwhile, the HSE and GLA are to see a reduction in their enforcement procedures. He also drew attention to the changes to the UK Tribunal system, which has seen the introduction of fees and placed justice out of reach of those with claims likely to result in relatively small awards.

Nick concluded by saying that by focusing on migrant groups, it is possible to shine a light on routine exploitation in certain areas of the labour market. He added that enforcement methods are being weakened in the name of austerity and deregulation and that breaches of fundamental employment rights will go unpunished. As a result, he said, competition at the bottom end of the labour market will become more intense. He argued that organic enforcement and permitting unions to play.

Speakers

Chaired by Carolyn Jones, Director of the Institute of Employment Rights

Bernard Ryan, University of Kent
Overview: migration and labour law in hard times
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Don Flynn, Migrant Rights Network
The politics of migration in hard times
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Miguel Martinez Lucio and Stefanio Marino, Manchester Business School
Trade unions and migrant workers
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Sonia McKay, London Metropolitan University
Women migrants in hard times
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Tonia Novitz, University of Bristol and Lydia Hayes, University of Cardiff
Posted workers
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Alan Bogg, Hertford College, University of Oxford
The doctrine of illegality
Unable to attend due to illness

Nick Clark, London Metropolitan University
Enforcement at the workplace
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Click here to download the full programme