CTUF Response To Taylor Review On Zero Hours

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Brexit Rights Bonfire? Poll Shows Bosses Want Workers Rights Too.

By Ryan Fletcher, May 4th, 2017 From UniteLive.

A majority of employers do not want a “Brexit bonfire” of employment rights and are in favour of parental leave, working time regulations and the minimum wage, a major new survey has found.

More than 500 organisations gave their support to 28 areas of employment law, including unfair dismissal legislation and rights for agency workers.

The results contradict the views of Tory Brexiteers, such as international trade minister Liam Fox, who has said “it is too difficult to hire and fire” and that “it is intellectually unsustainable to believe that workplace rights should remain untouchable.”

The survey – conducted by the Chartered Institute of Personnel and Development (CIPD) and the Lewis Silkin employment law firm – asked employers whether they think the UK’s employment rights, including EU originated legislation, are necessary or not.

More than 90 per cent of employers asked support unfair dismissal laws, 87 percent back the minimum wage, 82 percent are in favour of parental rights, while 74 percent believe working time regulations are needed and 75 percent want agency worker laws.

CIPD employment adviser, Rachel Suff, said claims that EU “red tape” is holding back businesses were simply not true.

“While much has been written about the need to roll back important aspects of our employment law framework to free businesses of red tape, it is clear that businesses themselves recognise the value of employment protection,” said Suff.

“Many of these regulations exist to protect workers against exploitation, ensure they are paid a fair wage and prevent discrimination in the workplace and can help improve people management practices.

“Even the more controversial aspects of employment law, such as the working time regulations, have broad support from UK businesses.”

Prime minister Theresa May has said that all existing employment rights deriving from the EU, including such measures as the working time directive, will be transferred over to UK law using the Great Repeal Bill, with the government retaining the right to modify at some later stage.

However, many are concerned that the Tories will use the so called Henry VIII clauses – which allow government to change legislation without parliamentary oversight – contained in the bill to roll back rights.

Suff called for caution over workers’ rights during Brexit, saying “it is vital that we don’t throw the baby out with the bathwater by making sweeping changes to employment legislation that businesses may not want.”

Unite assistant general secretary for legal, Howard Beckett, said it was vital that whichever government takes power after June 8 ensures that employment rights are retained and protected.

“The most basic of employment rights have been achieved through membership of the EU. Protection from discrimination in the workplace, the right to be paid during your holidays, rights as to the length of a working week and protection at times of redundancy,” said Beckett.

“This excellent piece of research confirms that good employers understand the importance of employment rights and that it is only bad employers who would seek a bonfire of employment rights following Brexit. The same thing applies to government and whoever takes office after the election must protect, maintain and further workers’ rights if they are to serve the interests of the nation.”


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  • Give all workers equal rights from day one, whether part-time or full-time, temporary or permanent – so that all workers have the same rights and protections whatever kind of job they have.
  • Ban zero hours contracts – so that every worker gets a guaranteed number of hours each week.
  • Ensure that any employer wishing to recruit labour from abroad does not undercut workers at home – because it causes divisions when one workforce is used against another.
  • Repeal the Trade Union Act and roll out sectoral collective bargaining – because the most effective way to maintain good rights at work is through a trade union.
  • Guarantee trade unions a right to access workplaces – so that unions can speak to members and potential members.
  • Introduce four new Bank Holidays – we’ll bring our country together with new holidays to mark our four national patron saints’ days, so that workers in Britain get the same proper breaks as in other countries.
  • Raise the minimum wage to the level of the living wage (expected to be at least £10 per hour by 2020) – so that no one in work gets poverty pay.
  • End the public sector pay cap – because public sector wages have fallen and our public sector workers deserve a pay rise.
  • Amend the takeover code to ensure every takeover proposal has a clear plan in place to protect workers and pensioners – because workers shouldn’t suffer when a company is sold.
  • Roll out maximum pay ratios – of 20:1 in the public sector and companies bidding for public contracts – because it cannot be right that wages at the top keep rising while everyone else’s stagnates.
  • Ban unpaid internships – because it’s not fair for some to get a leg up when others can’t afford to.
  • Enforce all workers’ rights to trade union representation at work – so that all workers can be supported when negotiating with their employer.
  • Abolish employment tribunal fees – so that people have access to justice.
  • Double paid paternity leave to four weeks and increase paternity pay – because fathers are parents too and deserve to spend more time with their new babies.
  • Strengthen protections for women against unfair redundancy – because no one should be penalised for having children.
  • Hold a public inquiry into blacklisting – to ensure that blacklisting truly becomes and remains a thing of the past.
  • Give equalities reps statutory rights – so they have time to protect workers from discrimination.
  • Reinstate protection against third party harassment – because everyone deserves to be safe at work
  • Use public spending power to drive up standards, including only awarding public contracts to companies which recognise trade unions.
  • Introduce a civil enforcement system to ensure compliance with gender pay auditing– so that all workers have fair access to employment and promotion opportunities and are treated fairly at work.


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Taylor Review To Propose Pay Boost For Zero Hours?

Matthew Talor – leading government review into employment practices

The Government review which is looking at “if employment regulation and practices are keeping pace with the changing world of work” lead by Matthew Taylor, Tony Blair’s former head of policy could propose that employers pay a ‘premium wage’ on zero-hours contracts’ to discourage ‘lazy employers’ from excessive use of zero hours, according to an interview with Taylor in the Financial Times on April 14th.

“The problem in the labour market is not security of work, it’s security of income,” Taylor, said in the interview.

Taylor was appointed by Theresa May in October 2016 to lead an independent review into rise of self-employment; the ‘gig economy’ and zero-hours contracts.

Taylor told the FT he wanted to “discourage employers from forcing workers to accept new burdens that were once shouldered by businesses – including companies having to pay a premium on the minimum wage for hours not guaranteed in advance. It would not apply to workers who choose their hours”.

Taylor said: “We’ve been hearing about people in the social care sector who are told ‘be ready to leave the house at 7am in the morning’, then a phone call comes to say – no we haven’t any work for you today”.

Taylor says he believes that if employers were made to pay a higher rate for every “non-guaranteed” hour the person had to work, they would be incentivised to guarantee more hours in advance.

“I think we can encourage employers to be a bit less lazy about transferring risk, even if it means an employer offers 15 hours a week rather than one hour, at least that’s 15 hours that I can know I’m going to be able to pay my mortgage.”

But don’t hold your breath – he stressed the idea was only a possibility and was still ‘up for debate’. The CBI said it was vital that the success of the minimum wage was not “put at risk by complexity or the unintended consequences  – of trying to re-shape employment contracts using a wage rate”.

Taylor and the three members of his panel are halfway through a series of regional visits across the UK, where they are meeting employers, unions, experts and workers in town-hall style events.

They will publish their recommendations in mid-June. The government will then respond.

The FT gives an account of one meeting in Cardiff : “Over the course of the next two hours, their debate gave a taste of the wide-ranging and complex issues on Mr Taylor’s plate: a supply teacher complained she was earning half what she should be; a Deliveroo employee said couriers did not want to lose their flexibility; a trade unionist had a spat with the leader of a recruitment trade body over a wrinkle in employment law relating to agency workers’ pay, which is known as the “Swedish derogation”.

Taylor, the chief executive of the RSA — the Royal Society for the encouragement of Arts, Manufactures and Commerce — is described by the FT as a “savvy political operator who led the Number 10 policy unit for several years under Blair. He has seen independent reviews fail in the past, their policy recommendations left to languish on dusty shelves. As a result, he wants to build support for the Taylor Review before it is published. Next month, he will launch a national campaign to encourage people to discuss the notion “good work” and what it means to them. “If people think good work is impossible, or they think it’s incompatible with business competitiveness, then we’re in trouble,” he said. “So I want to have that conversation and win that argument.”

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China is repurposing TPP to build an even bigger and more secretive trade deal

By Tony Burke

The Trans-Pacific Partnership (TPP) was dubbed ‘the biggest trade deal you have never heard of’ because it was being negotiated behind closed doors with little public information available.

Covering twelve ‘Pacific Rim’ countries, trade unions in the USA, Australia and New Zealand campaigned against the TPP trade agreement.

President Barack Obama tried to push TPP through the US Congress with a ‘fast track’ process that would have left elected politicians with no opportunity to scrutinise the deal line by line. Had Obama got the deal on the floor of Congress it would have been a ‘take it or leave it deal’.

Donald Trump, during his campaign, opposed the TPP trade agreement — after witnessing the massive opposition from trade unions and blue collar workers, hit hard by the North American Free Trade Agreement (NAFTA) in the USA, which saw good jobs in manufacturing sucked south to free trade, low tax areas of Mexico. As president he quickly sunk the deal.

Trump also promised to ‘tear up’ NAFTA and renegotiate it. Current reports say he intends to ‘tinker round the edges’ of the deal rather than a wholesale re-negotiation.

But despite the TPP’s demise, global corporations and neoliberal governments seem intent on reviving trade deals that are bad for workers, bad for jobs and great for global corporations.

The European Union is currently rushing to negotiate a trade deal with Japan known as JEFTA.

Talks have been going on secretly since March 2013 with the EU intent on pushing ahead to get a deal signed by the end of the year – despite misgivings in Japan.

Now it appears the next in line is another mega-trade deal — bigger and more secretive than before — the Regional Comprehensive Economic Partnership (RCEP).

RCEP has been described as China’s answer to the TPP, involving all ten ASEAN (Association of South Eastern Nations) countries — Brunei; Cambodia; Indonesia; Laos; Malaysia; Myanmar; Phillipines; Singapore; Thailand; Vietnam plus candidate countries Papua New Guinea and Timor-Leste. It also incorporates ASEAN Plus Three — China, Japan and South Korea, and India, Australia and New Zealand.

Negotiations are now in their fourth year and the aim is also to finalise the agreement by the end of 2017.

If the deal goes ahead, the RCEP would cover half the world’s population. Because of the secrecy little is known about the RCEP text.

But leaked documents show that the failed TPP is the basis for RCEP.

Some of the most controversial clauses of the TPP are proposed in RCEP, including the rights for corporations to sue governments though secret ISDS courts and the extension of monopoly rights for pharmaceutical companies to charge higher prices for medicines.

Reports suggest that RCEP could also increase the numbers of temporary migrant workers, vunerable to exploitation — without testing or providing support for the local and national labour market.

These clauses come straight from TPP and have little to do with free trade. It’s all about extending corporate power at the expense of working people.

But it appears that India and some ASEAN countries are resisting the worst of these clauses.

Andrew Dettmer, the National President of the Australian Manufacturing Workers Union, commenting on RCEP said:

“The secrecy surrounding TPP has been reproduced around the RCEP. From Obama’s pivot into Asia, we now have China’s attempt to dominate trade throughout the Asian region. We had become used to the farcical approach to public consultation under the TPP. Now, with the RCEP, the 20 or so minutes dedicated to it by the Australian government seem like a luxury by comparison.

“RCEP has the same ISDS provisions. Even worse the minimal labour rights provisions under TPP appear to be even more watered down in RCEP.

“We had the benefit of Wikileaks last time around with the TPP. Now, without any further information, the likelihood is that RCEP will be agreed and implemented before any substantial public scrutiny is possible.

“And we know workers’ interests will be a long way down any consideration by governments in our region.”

 This blog was first published on Left Foot Forward

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JEFTA – The Trade Deal You May Not Have Not Heard Of

By Tony Burke

With Donald Trump sinking the Trans-Pacific Trade Deal (TPP) and with the EU – US Trade Deal (TTIP) and the Trade in Services Agreement (TiSA) seemingly on ice – and the Brexit bound UK government talking trade deals with anyone who will listen (New Zealand, Israel, Turkey and the probably the USA) confusion over trade deals reigns.

Despite Trump’s new trade negotiator Robert Lighthizer saying he has not ‘ruled out’ resuming TTIP and TiSA talks – don’t hold your breath.

However there is one negotiation that is taking place (very much behind closed doors) – JEFTA – a proposed deal between the EU and Japan.

Talks started in March 2013 and both the EU and Japan have kept it quiet, probably afraid that it will gain similar public opposition as TTIP, TPP, TiSA and CETA.

But thanks to a joint statement signed by dozens of civil societies in both the EU and Japan the gaff has been blown.

In a statement issued this week they said: “The EU and the Japanese government have been negotiating a deep and comprehensive trade agreement which would cover a third of the world’s GDP. The 18th round of negotiations took place in Tokyo in December 2016, and whilst the negotiations might come to a close soon, on the EU side, the mandate given to the negotiators is still not public, and on the Japanese side, secrecy is total.

Neither most parliamentarians in EU member states and in Japan, nor European and Japanese civil society organisations and trade unions know the content of the discussions. Nor have they seen draft chapters or been consulted. We condemn this opacity.

And the first leaks of some of the negotiating documents (only in German) have begun to appear on various websites. One of the few detailed documents is now on the EU’s official JEFTA site, – a 314 page Trade Sustainability Impact Assessment prepared for the European Commission in 2016.

The document says JEFTA will include an investor-state dispute settlement (courts set to allow corporations to protect their profits or threats to them from government actions).
The EU it seems has now made ISDS court systems an integral part of their trade agreement policies – almost a ‘dogma’ – and appear not to have learned from the fierce  public opposition TTIP and CETA received.

Interestingly reports suggest that Japan is also resisting the Commission’s push for an ISDS system – but there seems to be an agreement the ISDS clauses could be similar to what is in CETA – including the right for investors to ‘fair and equitable treatment’, ‘protection against direct and indirect expropriation’ – but with clearer language on exempting public services and procurements.

It appears that Japan is also pushing for the inclusion of its own model of ‘ad-hoc arbitration’, with an automatic consent to arbitration granted by the parties.

On the question of labour rights it is suggested that JEFTA would provide fairly weak provisions limited to an ‘obligation’ for the parties to implement the ILO conventions they have already been ratified, but no commitment to ratify remaining conventions.

Japan has not ratified convention 105 on forced labour and 111 on discrimination. The enforcement provisions would be weaker still, with no former powers granted to civil society and social partners whether in Domestic Advisory Groups or in a “joint dialogue with civil society”.

So why is this important to a Brexit bound UK? Well, until we leave we are bound by EU trade deals and even when we do leave they will remain in force for whatever time is agreed in the Brexit negotiations.

Also close attention to any JEFTA agreement will have to be paid to its implications by UK industries such as automotives, rail, engineering and hi tech companies.

UK Labour MEP Jude Kirton Darling commented: “As a result of public pressure, EU Trade Commissioner Malmström and EU negotiators promised greater transparency in EU trade talks in the JEFTA negotiations but they have kept  ‘radio silence’ without publication of the EU’s mandate or basic negotiating texts.

“Labour MEPs have been at the forefront of this push for greater transparency and the party is clear in our opposition to the inclusion of separate arbitration courts for multinational investors in trade talks.

“The Commission’s insistence on the inclusion of ISDS-style provisions in trade deals risks their public support and legitimacy, which is not good for the EU or our trade relations long term.”

That is why progressive groups, MEPs and European and UK unions need to be alert and begin campaign for a fair greater transparency and openness to ensure any JEFTA agreement is fair has strong labour clauses that work in favour of working people.

This blog was first published on Left Foot Forward

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Speech By Sally McManus General Secretary Of The ACTU On Employment Rights

Sent in by Barry Camfield

Good afternoon, it’s a pleasure to be with you today.

I want to pay my respects to the Ngunnawal people and their elders past and present.

I would also like to acknowledge the members of the Australian Services Union who here today as well as some of my dear friends, and my dear comrades from other unions.

I am here because of you. And there are some things I need to say.

Australia’s workplace laws are broken.

Our minimum wage has fallen to a dangerously low level.

This is why today the ACTU will be making a claim to increase the minimum wage. Significantly.

Wage theft is a new business model for too many employers

Inequality in our country is the worst it has been for 70 years and 679 of our biggest corporations pay not one cent of tax.

Our strike laws are out of step with international law.

Our bargaining laws are inadequate and unable to deal with the new and ever changing business models being adopted by the big end of town.

Now, the Fair Work Commission makes decisions to cut the wages and conditions of some of our lowest paid workers. And the mechanisms we have had to improve our living standards are no longer working.

In short, the very wealthy have too much power in our country and ordinary Australians – working people – do not have enough.

So let me tell you a little bit about the person who will lead the movement to change that.

In 1988, I was just 17 and I don’t think I really knew what a union was. I was at school, studying for my year eleven exams, when my history teacher lost her job.

I and my fellow classmates were confused and then angry. But it wasn’t just my teacher. Across the state, thousands of teachers were sacked as a part of an aggressive cost cutting agenda by the new Liberal Government. Thousands of devoted teachers like mine, lost their jobs, in the middle of the school year.

When you are young, you hear things adults say. What we heard was that our teachers were losing their livelihoods.

It was wrong for us and it was so very wrong for them.

The teachers decided to take strike action. I decided to join them and so did many of my friends at Carlo, Carlingford High School, in Sydney’s northwest.

So we got on the train, I think it was one of the first times I’d been into the city, and we went with other teachers and students and parents from across the state to Sydney’s Domain.

I will never forget that day. Trains flooded in from all the suburbs of Sydney, filled with people with banners and streamers, signs students had made. We all got off at Central together and walked to the Domain.

There were tens of thousands of people who felt the same way I did.

What the state Liberal Government was doing to teachers and students was unjust. And at that moment, I recognised people power – union power.

That strike action was illegal.

The power of so many people coming together, taking a stand against injustice, demanding they be treated fairly at work, at school, in their communities resonated with me in a way that has shaped my beliefs and my actions ever since. And it always will.

That’s who I am. I’m a unionist. First, second and third.

There will be some who find this difficult to understand.

I told 7.30’s Leigh Sales two weeks ago that our current industrial laws are wrong. I told her that it should not be so hard for workers in our country to take industrial action.

I believe in the rule of law, but laws must be fair and just and right. When laws are unjust no, I don’t think there’s a problem with breaking them.

Some people responded in just the way you might think it would respond. Play the woman, not the ball.

Instead of arguing about the right to strike, their approach was to attack me as a person.

The right to strike is a human right. It’s our government that is out of step, not the Australian trade union movement.

The United Nations has declared strike action to be a right. The International Labour Organisation declares Australia to be at odds with international conventions. Professor Andrew Stewart, an Australian expert on labour law, says:

“The ILO for the past 20 to 30 years has told governments of both political persuasions that we are in breach of international labour standards.”

In breach of international labour standards.

Yet our government and some major media institutions have a meltdown when workers stand up for themselves.

It’s sad really.

The question of what is a just or an unjust law and when it is ok to challenge unjust laws has been debated for a very long time. In our movement we take the examples of our heroes to heart.

For example, Martin Luther King Jr wrote a letter in 1963, defending the use of nonviolent resistance to racism when he sat in Birmingham jail. He wrote:

“One may well ask: How can you advocate breaking some laws and obeying others? The answer lies in the fact that there are two types of laws: just and unjust.”

Then he wrote:

“I would be the first to advocate obeying just laws. One has not only a legal, but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St Augustine that an unjust law is no law at all.”

And he goes on to quote St Thomas Aquinas: “Any law that uplifts human personality is just. Any law that degrades human personality is unjust.”

There are plenty of examples of Australians standing up to unjust laws in our own history:

  • In 1938 wharfies refused to load pig iron that was to be sent to Japan.
  • People broke the law to oppose apartheid.
  • There was the resistance to conscription.
  • Indigenous workers walking off stations to demand equal pay.
  • The Green bans which saved the beauty of Sydney.
  • And then there were all the illegal strikes by generations of union members that lead to the very living standards we all enjoy.

Working people in their unions stood up to unjust laws and they changed them.

I have always had a job, from the moment I could legally work. At 14 years and nine months, I did Thursday nights and weekends refilling shelves and working behind the counter at the newsagency down the road.

When I left school, I had a series of casual jobs, including delivering pizzas where I joined my first union, the SDA.

That was really the moment when I first became an organiser, not that I would have used that word then. I was a pizza delivery driver from Seven Hills.

A few of us thought we weren’t getting enough to cover fuel costs as they skyrocketed with the first Gulf War. But we had no skills and no experience of what real organising meant. We knew we had to work together – we just didn’t know what to do.

We met at a fellow driver’s house with an organiser from the SDA and he taught us what we needed to do. Eventually the rates were changed but it took a while. I was lucky, I still lived at home with mum and dad and my two apprentice brothers. Some of the other drivers weren’t so lucky.

And while all that was going on, I made it into university.

I wasn’t exactly sure what I wanted to do when I grew up, but an arts degree at Macquarie University seemed like a good idea to me.

My parents weren’t really convinced. No one else in my family had even finished their HSC, let alone gone to university and when I decided it was philosophy I wanted to study, it was pretty hard to explain to my parents what career opportunities this would lead to.

The wisdom in my household was to “get a trade behind you”. Good thing my brothers Wayne and Scott did exactly that.

I loved philosophy but university was not just about what went on in tutorials. There was an entire group of people who wanted to be involved in much more.

Here I had my first experience of making a tough decision I knew would make me unpopular.

By now, it was the early nineties and Australia was just beginning act on the negative health impacts of smoking.

I’d just been elected President of the University Union. We decided to ban smoking in the student bar because of the health and safety effects on our workers, we were one of the first bars in the country to voluntarily do this. It was well before laws that made it compulsory.

Now we ran a bar for students, so you can imagine it didn’t go down too well with many. It was unpopular, but we argued the case and it was also the right thing to do to protect workers.

Just as I was finishing university, Australia experienced its worst period of unemployment since the Great Depression. My entire graduating class – except for the accountants – were worried about getting jobs.

Me too.

Continue reading

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Another Corporate Atttack Is Looming

Adrian Weir

By Adrian Weir

After US President Donald Trump killed off the Trans-Pacific Partnership (TPP) and put the Transatlantic Trade and Investment Partnership (TTIP) on hold, can the coalition standing against the corporate power grab stand easy?

Beyond Trump’s trade representative declaring that he was open to resuming negotiations on TTIP, there are three more issues on the horizon that should concentrate our minds.

First, the ratification process of the free trade deal with Canada — known as the Comprehensive Economic and Trade Agreement or Ceta.

Second, the European Commission’s proposal to establish a Multilateral Investment Court (MIC).

And third, the recently revealed, and hitherto secret, “deep and comprehensive” free trade agreement between the EU and Japan, being referred to as Jefta.

Canada seems to have two pressing priorities: to provisionally apply Ceta on July 1 and then to ensure British ratification of the treaty before Britain leaves the EU in two year’s time.

If Britain doesn’t leave the EU before ratification by member states, it will be tied into the free trade agreement for a further 20 years.

Provisionally, application of the deal will reduce tariffs that currently exist on Canadian products, such as maple syrup and fresh lobsters.

But full ratification by member states — and in some cases regional assemblies also — will be problematic because of the inclusion of the rebranded investorstate dispute settlement (ISDS).

Although the rebranding now calls ISDS the “investor court system” (ICS), the essentials remain the same — privileged access to quasi-courts for multinational corporations to sue governments acting in the public and not necessarily the corporate interest, for example, on public services or workers’ rights, with no right of appearance for civil society organisations.

ICS is proving problematic for the European hierarchy despite the brave face of Cecilia Malmstroem, the EU’s Trade Commissioner. Although Malmstroem argues that it is only a “matter of time” before all 28 member states ratify, she has been forced to acknowledge that there is serious opposition in six or eight countries.

In France, 153 elected politicians, local and national, incensed by the government’s sleight of hand over ratification have applied to the country’s constitutional court for a review of Ceta. The court has responded with a full investigation of the terms of the treaty.

French legal opinion suggests that the ICS is not compatible with the French constitution. Giving foreign corporations privileged access to a court, a right not enjoyed by domestic corporations, is in contravention of the principle of equality before the law.

In Ireland, Sinn Fein is mobilising opposition to ICS. Matt Carthy MEP explains: “The Irish people need to have their say on the ICS in a referendum. And the possibility of ensuring this goes to a vote of the people puts us in a unique position to block Ceta in Ireland.”

Opposition is mounting again in the Wallonia region of Beligum and in Italy, Bulgaria and the Netherlands.

If full ratification stalls, what would that mean for the provisional application of the treaty? The German Constitutional Court has ruled that provisional application can be undone. Further, many countries in the European Council (not the Commission) reserved their right to undo provisional application.

Opposition to Ceta is not just a technical, legal issue. Research by Tufts University shows that for Canada, Ceta will transfer 1.74 per cent of national income from labour to capital. In other words capital will benefit from Ceta at the expense of labour, which can look forward to average incomes falling by $2,650 by 2023.

In all of the Ceta signatory countries, Tufts estimates, there will be something approaching a quarter of a million job losses.

Clearly battles over ICS on a treaty by treaty basis have prompted the European Commission to seek alternatives, to eliminate the focus of opposition.

Towards the end of last year it published proposals to establish a permanent ICS structure outside of specific bilateral treaties but each treaty could include reference to it.

Step forward the MIC. The Commission hopes that a permanent court sitting in judgement on ISDS-type issues would apply to all future agreements, if the parties agree.

The Ceta treaty contains references to the proposed new institution as does the draft EU-Vietnam free trade agreement, but of course the MIC is still very much in its early stages.

The TUC has comprehensively dismissed the MIC, noting in its submission to the Commission that the Commission’s consultation was “biased in favour of the proposal as it provides no opportunity for respondents to reject it.”

It goes on to call the MIC “unnecessary” and quotes corporate layer Cromwell Morris advising clients that ISDS type provisions give corporations “leverage to negotiate with the host government and cause it to change its behaviour more quickly.”

Rather than give corporations their own private court, the TUC raises the serious point that labour chapters in the existing EU-free trade treaties are woefully inadequate.

It points out that the South Korean government has recently trashed the Korean unions but the terms of the labour chapter in the EU-Korea free trade agreement contain no sanction mechanism if labour rights are violated. This same weak, non-enforceable approach has been included in Ceta.

The Commission’s promotion of corporate courts makes the recently disclosed Jefta all the more interesting as it would appear that the Japanese are resisting the inclusion of ICS type mechanisms in the terms of treaty.

In any future British-EU trade agreement, it will be likely that the Europeans will seek to bind Britain to the proposed MIC.

Japanese investors abroad have traditionally used the host nation’s courts to pursue any legal grievance but the European negotiators are pushing for an ICS system because it is part of the “emerging norm.”

It is not of course, it is however part of the Commission’s policy objective for all free trade agreements.

In closing, we may note that there is no improvement in the labour chapter in Jefta, only an “obligation” to implement already ratified International Labour Organisation Conventions, not to ratify any outstanding conventions, for example Japan has not ratified Convention 105 on forced labour.

It also has the same lack of enforcement mechanisms as in Ceta and the EU-Korea agreement. Because these negotiations have been conducted in secret, we do not yet know how close the treaty may be to ratification, if that’s likely before March 2019 and for how long Britain would be bound by the terms of Jefta if ratified before Britain leaves the EU.

To return to the opening question, can we stand easy? Unfortunately, the answer to that question is a resounding no!

Adrian Weir is assistant chief of staff at Unite and an officer of the Campaign for Trade Union Freedom.


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McCluskey calls for government to make good on promise to protect workers in Brexit

Unite General Secretary Len McCluskey

Theresa May should bring forth immediate proposals to show that she will honour her pledge to protect workers’ rights once the UK leaves the European Union.  In doing so, workers concerned that their protections will be attacked by a Conservative government will be able to have some faith that the Brexit process will not see their employment rights harmed.
That was the call was made today (Thursday 30th March ) by the leader of the country’s biggest union, Unite, who has urged prime minister Theresa May to reassure that the enormous powers – so-called ‘Henry VIII’ powers – she will have at her disposal during the Great Repeal bill process will not be abused to worsen the lives of working people.

The prime minister has said that all existing employment rights deriving from the EU, including such measures as the working time directive, will be transferred over to UK law with the government retaining the right to modify at some later stage.

However, Len McCluskey, the union’s general secretary, says that this `modification’ threat is causing serious concern among Unite’s members, particularly as comments from leading Tory figures, such as Liam Fox, reveal a wish to see rights reduced.

To counter workers’ fears that elements of the Conservative party is seeking to create a lower wage, poorer protections UK out of Europe, Len McCluskey is calling for a 66 percent threshold for the removal of any EU legislation to be established.

This is modelled on the threshold needed to call a general election out-with the fixed five year term parliament.

Len McCluskey said:  “However people voted in the referendum, they did not vote to be worse off.  That includes being easier to mistreat at work.  UK workers are already the cheapest and easiest to sack in Europe, a shameful state of affairs for an advanced economy.  To this the government must not add that UK workers are the easiest to exploit.
“Let’s build on a precedent that the House of Commons has already accepted – the two-thirds majority needed to secure an election under fixed-term parliament legislation – to put in place similar hurdles that must be cleared before any EU-derived law can be wiped from the UK statute books once transferred over.
“Sadly, there are too many on the Conservative benches who see Brexit as their moment to destroy employment rights for unions to simply accept the prime minister’s word that the status quo will endure.
“They will waste no time in destroying vital laws like the working time directive, a measure that is not red tape but essential protection for workers and the public alike.  Our roads are safer, for example, because under EU law lorry drivers must rest.  
“But this hurdle would also provide an essential corrector to the enormous powers that the government can give itself using measures established 500 years ago by Henry VIII.  This threshold would secure a voice for people in parliament during the most challenging time for our nations in generations.
“Unite is determined to campaign to ensure that the rights we have today remain in place and in tack when we leave the EU. They cannot be swept away by government whim – nobody voted for that,
“So I appeal to MPs from all sides of the House to support this proposal.  It would send a clear signal to working people right across the UK that their rights are safe under a Conservative government. That way, we can all focus on the task in hand, getting the best deal for this country from the Brexit process.”
Len McCluskey also challenged the prime minister to use the Great Repeal bill to improve working life for millions of UK workers by banning the use of umbrella companies set up to limit the liability of employment agencies and to outlaw the use of exclusivity clauses in any work contract providing fewer than 35 hours a week employment to a worker.

He said: “One of the lessons to take for the referendum vote last year was that people did not feel that they were getting a fair deal, especially at work.  The prime minister must signal that she gets that message by strengthening the now creaky floor under millions of temporary workers.
“Banning the use of umbrella companies set up to allow agencies to swerve their employment duties to workers and outlawing the `exclusivity clauses’ which make an agency worker at the behest of their agency but with no guarantee of a secure wage in return would restore some security and fairness to the increasingly uncertain world working people find themselves in.”
Unite is calling for an amendment to be tabled to the Great Repeal bill when it is brought before parliament.  The amendment would stipulate a 66 per cent threshold must be met to make any changes to the laws derived from the EU.

According to www.parliament.uk Henry VIII clauses are described as `The Government sometimes adds this provision to a Bill to enable the Government to repeal or amend it after it has become an Act of Parliament.
The provision enables primary legislation to be amended or repealed by subordinate legislation with or without further parliamentary scrutiny.  Such provisions are known as Henry VIII clauses, so named from the Statute of Proclamations 1539 which gave King Henry VIII power to legislate by proclamation.’
Under the Fixed Term Parliaments Act 2011, two thirds of MPs in the House of Commons must vote to hold an election before a five year parliamentary term has been concluded

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TUC Response To EU Proposals For Multilateral Investment Court

The TUC has responded to the European Commission’s consultation on proposals for a multilateral court for investment agreements.  The TUC submission states that this proposal should be rejected due to the fact it would undermine domestic legal systems and pose significant threats to workers’ rights and public services, just as other international agreements on investment protection (like ISDS) have in the past.  Rather than develop a multilateral investment court system, the TUC calls for the EU to strengthen provisions in trade agreements to enforce fundamental labour rights and support the development of sound domestic legal systems in partner countries.


The Trades Union Congress (TUC) is the national union centre of the UK.  The TUC has 50 affiliated unions, representing almost six million members, who work in a wide variety of sectors and occupations. The TUC welcomes the opportunity to respond to the European Commission’s consultation on multilateral reform of the investment court system as we have significant concerns about the proposed system.  The TUC objects to the nature of the Commission’s online consultation on the proposed multilateral investment system which is biased in favour of the proposal as it provides no opportunity for respondents to reject it. [1]

The TUC’s online response to the consultation should therefore be considered alongside this submission.

The TUC does not believe the European Commission should proceed with the proposal for a multilateral investment system as is not only unnecessary but would undermine the EU’s commitment to promote respect for labour rights and democratic systems of decision making.   Rather than develop a multilateral investment court system, the Commission should strengthen provisions in trade agreements to enforce fundamental labour rights and support the development of sound domestic legal systems in partner countries.


The TUC believes it is important for investors’ property rights to be respected. However we do not believe that foreign investors deserve additional rights established in a special body of law to claim compensation when they believe their property rights have been violated, as is proposed in the multilateral investment system.  The TUC believes domestic court systems should be used to resolve issues around property rights for both domestic and foreign investors.

If there is no functioning rule of law in certain countries, the domestic system will not be improved by establishing a parallel, democratically unaccountable multilateral court system that only protects foreign investors, such as that proposed by the European Commission.

The TUC believes the EU should work with potential trading partner countries to support the development of well-functioning, independent legal systems as part of its due diligence before undertaking trade negotiations.  Indeed the EU has undertaken to support such work by pledging to work towards the realisation of the UN Sustainable Development Goals which include a goal to create Peace, Justice and Strong Institutions (Goal 16).

If foreign investors choose to invest in countries where the rule of law is not yet established, the TUC believes they must bear the risk of this individually through private insurance.  Governments should not create parallel court systems to protect foreign investors’ rights as they come at the cost of undermining labour and social rights and the policy space of governments, as we highlight below.

 Chilling effect

The TUC believes that the additional rights given to foreign investors through the proposed multilateral investment system would pose a threat to governments’ ability to pass laws that protect workers and public welfare.

The TUC shares the concerns of the ETUC that the proposed multilateral court system does not plan to reform the rules of existing investment protection agreements.  As the terms of existing agreements contain broad definitions of what can be interpreted as ‘indirect expropriation’ and a breach of investors’ rights to ‘fair and equitable treatment’, the multilateral system will still provide scope for foreign investors to challenge legitimate legislation that promotes public welfare.  Existing investment protection systems have been used in such a way on numerous occasions in the past with damaging consequences for the countries involved.  Bolivia was sued by UK company Rurelac via Investment-State Dispute Settlement (ISDS) for nationalising its energy sector and ordered to pay the company $31 million in 2014.  Slovakia was sued by the Dutch health company Achmea via ISDS when it renationalised its health care system and ordered to pay €1.3 million in 2014. Meanwhile, the Italian diamond company Piero Foresti argued that South Africa’s laws to overcome the legacy of racial discrimination left by Apartheid constituted indirect expropriation and sued the government. As a result South Africa had to pay legal fees of over €5 million in 2015. These cases illustrate the serious cost to countries’ finances that result from cases brought by foreign investors through special court systems which mean governments have less resources to provide essential public goods such as health, education and infrastructure, or, indeed, support the creation of decent jobs.

Foreign investors’ use of ISDS in the past also indicates the dangerous chilling effect that the proposed multilateral court system may have over policy making. For example, New Zealand decided not to introduce plain packaging laws for cigarettes after Philip Morris launched an ISDS case against Australia for introducing similar laws.[2]

Indeed, the corporate law firm Cromwell Morris has advised its clients that investor protection in a trade agreement gives foreign investors ‘leverage to negotiate with the host government and cause it to change its behaviour more quickly.’[3]

We are concerned that the existence of an additional court system at the multilateral level will add to the pressure ISDS has brought to bear on governments not to pass policies in the public interest that might be challenged by foreign investors. These could include decisions to introduce additional protections for workers, raise the minimum wage or change the ways public services are run.


The TUC does not believe it is just for foreign investors to be given access to a special court system to claim their rights that is not available to any other group, including domestic investors or workers.   As discussed above, granting additional rights to foreign investors through the creation of a multilateral investment system risks endangering workers’ rights further by creating a means for foreign investors to challenge laws that protect workers.

The TUC believes that rather than pursuing proposals for a multilateral investment system, the Commission should focus its energies on ensuring that workers are able to claim their fundamental rights to organise, collectively bargain and be treated decently.

The TUC welcomes the pledge made by the European Commission’s Trade for All strategy to ‘prioritise work to implement effectively the core labour standards (abolition of child labour and forced labour, non-discrimination at the workplace, freedom of association and collective bargaining), as well as health and safety at work in the implementation of FTAs and GSP.’ [4]

This supports the commitment by the EU to work towards the realisation of the Sustainable Development Goals which include a goal on Decent Work (Goal 8).

However, we are concerned that, at present, trade agreements do not contain measures to ensure labour standards are effectively enforced.  South Korea committed to respect core ILO standards in the EU-Korea free trade agreement. However, the agreement contained no mechanism for sanctions if labour rights were violated and trade unions were relegated by the agreement to a monitoring role. This meant they have had no power to trigger investigations when labour rights have been abused and while trade unions registered concerns in recent years with the Commission that labour rights, it has been up to the discretion of the Commission whether to take action. The TUC has been concerned by the fact the Commission has to date chosen to take no action to address labour violations in South Korea that have included the imprisonment of union leaders, excessive working hours and union busting. [5]

The ETUC and TUC have raised concerns that the labour chapter in the recently finalised EU-Canada (CETA) agreement adopts the same approach as the EU-Korea agreement.

Given the current inadequacies of labour chapters in trade agreements and the significant incidence of labour rights abuses in many countries the EU has trade agreements with – or is negotiating trade agreements with – it is imperative that the European Commission develop more effective means to enforce labour rights.

Justice dictates that the European Commission work to ensure that the rights of workers facing discrimination, abuse and exploitation are respected, rather than creating the proposed multilateral investment system which provides another means for already powerful investors to advance their interests and exposes workers to further harm.

[1] https://ec.europa.eu/eusurvey/runner/mutlilateralinvestmentcourt#

[2] http://www.italaw.com/sites/default/files/archive/costs-and-benefits-of-an-eu-usa-investment-protection-treaty.pdf

[3] https://www.crowell.com/NewsEvents/AlertsNewsletters/all/How-Mining-Companies-Can-Mitigate-Risks-and-Protect-their-Investments-Part-I-International-Investment-Agreements

[4] http://trade.ec.europa.eu/doclib/docs/2015/october/tradoc_153846.pdf

[5] https://www.ituc-csi.org/korean-unions-plan-national

Download pdf Multilateral reform of the investment court system consultation TUC final.pdf

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Posted in Campaign For Trade Union Freedom News, European Employment Rights, International Employment Rights, New Generation Of Trade Agreements, UK Employment Rights | Leave a comment