Wednesday 19 July 2017

A one-day conference
Unite the Union, London
9.30am - 3.30pm

Organised by the Institute of Employment Rights

About the Conference

Report by Roger Jeary and Andrew Moretta

The conference was opened by Adrian Weir from Unite who welcomed delegates and reminded them of the major division caused by the referendum on the EU in 2016. He described the referendum as a political event designed by Cameron simply to protect him from his own backbenchers. The outcome, he said, has left uncertainty for everyone on a range of issues including employment rights on leaving the EU, including through the "Great Repeal Bill" which provides government with the powers to amend or delete existing rights.

Diana Holland, Assistant General Secretary of Unite

Diana told conference that the trade union movement needs to identify its own priorities. How the movement approaches the outcome of the referendum is important and we need to look at the choices between competition, co-operation and solidarity with the aim being to move towards solidarity.

Our priorities should be jobs, standards, workers' rights and union strength, she said. She warned of a race to the bottom when it comes to setting standards for workers’ rights. While she has come across employers who believe the race to the bottom has gone far enough, there are others who want to compete by cutting rights in the workplace.

Diana referred to the ILO core labour standards as something that can be used as a safety net alongside industrial standards, many of which come from Europe. The need for common standards is essential and, if not maintained, opportunities for trade and competition will be lost. She said that the UK food industry could collapse if food tariffs and complicated procedures were introduced post Brexit.

The union response depends upon strong membership and organisation and strong support for elected representatives. Union strength relies upon collective bargaining and it is essential for UK Reps to remain on EU-wide fora, such as works councils. Trade unions need to fight to protect existing standard-setting organisations such as GLAA and HSE. Finally she emphasised the need for unity not division, equality not discrimination, trade union rights not exploitation, and solidarity not hatred.

Download Diana's presentation

Professor Keith Ewing, President of IER

Keith reminded conference that many of our employment laws were initiated through the EU. He spoke about four likely consequences of Brexit.

Firstly, on the day we leave we are left with the regulations already passed in the EU, and whatever follows in Europe will not automatically apply to the UK. It is true that not all EU law is favourable, however. The deregulation of bargaining procedures in France has been forced upon them by the EU. But there is an attempt to resurrect the social pillar of the EU and this will not apply to the UK.

The second consequence is that the rights transferred into UK law will not be subject to the European Court of Justice. This is important to the extent that ECJ judges' decisions in the past have enhanced the basis of understanding and application of existing laws, and such decisions in the future will rest with the UK’s Supreme Court.

The third risk is that there is likely to be a gradual erosion of these rights and standards depending upon the government in power. He referred back, as an example, to the Beecroft recommendations which sought to reform rights in the UK. He pointed to compensation payments on discrimination cases as being particularly under threat once the ECJ had been removed from the process. He was concerned about tribunal fees and that the current legal challenge that they are a breach of European law. If this is upheld by the ECJ it could be undermined once we leave the EU.

Fourthly, there is the issue of what will happen to European Works Councils. This will become a question for the other 27 states and the companies, not governed by UK law.

Keith outlined the options for dealing with these issues. The current government's promise to protect workers' rights is worthless. It is not legally binding, and in any event Mrs May is unlikely to be there in the future.

Meanwhile, Labour has said no deal without the EU Charter of Fundamental Rights will be accepted. Keith had concerns about this, as the Charter contains many elements that we would not want to have incorporated into UK law.

Workers' rights are in free fall. The only answer is a free trade agreement but the history of these leaves many gaps in workers' rights and lack of enforcement. Coming out will have impact on inheritance; there is no way that inheritance can be protected. The only approach has to be to adopt the Labour Party policies on workers' rights but that is only possible if Labour is in power and remains in power.

Iain Birrell, Thompsons Solicitors

Iain outlined how Brexit is already affecting case law. He began by trying to define Brexit and focussed on what it is that we are exiting from. This includes the UK employment judicial decisions through tribunals, which ultimately can be referred to the ECJ, which can bind the courts' decision in the UK. "Taking our country back" intrinsically means controlling our own laws. He reminded the conference that since we haven't left yet, the impact so far has been negligible.

What has happened already, though, is a rise in hate crime which has led to a small spike in race discrimination cases arriving at tribunals immediately following the referendum. He speculated that this correlated with the rise in hate crime figures. He also illustrated how facts in current cases are being influenced by the outcome of the referendum, (Day v Alloga UK Ltd). Another example was a case, (Farrow v Woodway UK Ltd) where the employee found that seeking alternate work following redundancy was becoming more difficult as a result of Brexit.

Looking forward, Iain speculated on how Brexit may affect case law. Referring to the Great Repeal White Paper now called The European (Withdrawal) Bill, he outlined the main principles that the Bill covers. Initially this means calling EU laws British Laws and hoping nobody notices. However, on Brexit Day the ECJ will have no role in interpreting UK cases, while existing ECJ case law will still apply as of that day. This, he asserted, leaves the UK with a great deal of uncertainty in terms of legal outcomes.

Iain asserted that the government will be hoping that nothing much will change as a result of these changes as far as case law is concerned. However, divergence will occur and the proposed solution is to provide a power to correct the statute book by using secondary legislation, (Henry VIII clauses). This worrying development means changes to the law will not receive parliamentary debate, which could lead to "inconvenient" rights being swept away, for example a cap on compensation on discrimination being introduced and reductions in working time regulations.

Download Iain's presentation

Ian Hodson, BFAWU National President

Ian gave a BAFWU perspective on Brexit and trade deals. He began by explaining the rationale for BAFWU members who supported Brexit. This was about the impact on their industry of EU membership which overall he asserted has not been positive. Now, BAFWU wants to see a resurgence of trade union/worker power without any borders. Trade deals should not be accepted unless adherence to workers' rights is applied to all parties.

The answer, he said, is to focus on trade union organisations and he used the fast food trade as an example of one in which workers want to be organised and where, in the past, trade unions have failed. He argued that only by coming together and campaigning will we change the lives of working people in Britain. He pointed to successful campaigns elsewhere in the world which have seen the removal of zero hours contracts (New Zealand) without damaging the opportunities for workers.

He believes that any trade deal must include environmental rights and basic rights, such as the right to strike. He said that Mrs May had been thwarted in her attempts to secure a greater majority on the back of an argument that she could secure the best deal on Brexit. The recent election result, he argued, can only be built upon through collective organisation recognising the importance of maintaining British values.

John Foster, University of West Scotland

John drew the Conference's attention to the volatility of Scottish politics; citing the shift from Conservatism to socialism in the first half of the 20th Century; the near extinction of the Tories as a political force since the 1980s; the ascendency of the Scottish National Party at the expense of the Labour Party; and the recent startling resurgence of support for the Tories in what had come to be thought of as the SNP 'heartlands' during the 2017 general election.

He argued that the collapse in the SNP vote was a consequence of the party’s neoliberal policies and enthusiasm for the EU, pointing out that the core of the support for both independence, and for Brexit, is to be found in those communities most affected by Scotland's industrial decline and by austerity policies.

In failing to address the concerns of those voters while offering 'uncritical support' for the EU, the party drove swathes of those who had previously voted SNP either to support the candidates fielded by charismatic Scots Tory leader Ruth Davidson – effectively a protest vote against the Scottish political establishment – or not to bother voting at all. The Scottish Labour Party, careful during the election campaign to avoid drawing attention to the Labour manifesto, missed the opportunity to present the socialist alternative that would very likely have attracted those disillusioned 'rustbelt' voters.

John commended the Labour manifesto as the appropriate strategy for resolving Scotland's considerable economic problems, and emphasised that membership of the EU single market would not permit the public sector investment and state ownership proposed, while access to the single market would allow those policies to be implemented while ensuring that the required sectoral collective bargaining mechanisms could be established without interference.

His paper provoked considerable discussion, and is essential reading for anyone interested in politics, economics or labour law.

Download John's paper

Download John's presentation

Speakers

Chaired by Adrian Weir, Unite

Diana Holland, Unite
Trade and employment rights post-Brexit: setting standards in UK industries
Download presentation

Ian Hodson, BFAWU
Brexit and trade deals: a BFAWU perspective

Iain Birell, Thompsons Solicitors
How Brexit is affecting caselaw already
Download presentation

Prof. Keith Ewing, IER President
The time limited floor of workers' rights in post-Brexit trade deal Britain. Is there a better way?

Prof. John Foster, University of West Scotland
Scotland and Brexit
Download paper
Download presentation

Click here to download the full programme