US unions welcome Biden’s pick for new Labor Secretary

Marty Walsh – new US Labor Secretary

US trad unions have welcomed President-elect Joe Biden’s decision to appoint Boston Mayor Marty Walsh as US Labor Secretary.

Before becoming the mayor of Boston, Walsh was a member of the Massachusetts House of Representatives and previously the head of the Boston Metropolitan District Building and Construction Trades Council, covering over 20 union locals in the construction industry.

Walsh joined the Labourers Union Local 223 at the age of 21 and served as its president.

Biden was expected to choose a candidate who had wide support among unions given his support for collective bargaining and the right to organise. Walsh will play a key role in implementing Biden’s proposed pro-worker agenda.

He was chosen from a strong field of candidates including California Labour Secretary Julie Su and Andy Levin, a representative from Michigan. Bernie Sanders had also expressed an interest in running for the post but Biden persuaded him to remain in the Senate to ensure the Democrats kept majority.

United Steelworkers international president Tom Conway said that Walsh would make “a real difference” as US labour secretary.

Richard Trumka, the president of the US union umbrella body the AFL-CIO who backed Walsh, said: “As a long-time union member, Marty Walsh knows that collective bargaining is essential to building back better by combating inequality, beating Covid-19 and expanding opportunities for immigrants, women and people of colour.

“He will have the ear of the White House, the Cabinet and Congress as we work to increase union density and create a stronger, fairer America.”

Biden has already appointed 28 union and pro-worker members to his transition teams.

But it won’t be plain sailing. The National Labour Relations Board, which is supposed to enforce the law on the right to form a union, to take industrial action and for workers to improve their pay, benefits and working conditions through collective bargaining currently has a Trump-appointed Republican majority.

With no representatives who have experience representing of workers or unions the NLRB has stripped workers of their protections under the law, restricted their ability to organise, slowed down the process of ballots by workers to secure union recognition, giving employers more time to campaign against unions, repealed rules holding employers accountable for their actions and undermined workers’ bargaining rights.

Posted in Campaign For Trade Union Freedom News, International Employment Rights, Uncategorized | Leave a comment

The Brexit Deal and ILO Conventions (Part Two)

Far from being a cause for optimism, the EU-UK Brexit agreement’s commitment to work within ILO standards does not hold water, argue Nicola Countouris, Professor Keith Ewing and Lord John Hendy QC.

As we pointed out in our previous article, the EU-UK Trade and Co-operation Agreement (TCA) was engineered to permit the dilution in the UK of those workers’ rights derived from EU law which are in force on December 31.

The TCA offers no guarantee of continuing alignment of rights after Brexit, the likelihood being that British standards will fall further and further behind our European neighbours.

There are nevertheless other provisions of the TCA which relate to workers’ rights which should not pass without comment.

These include Article 8 of Title XI dealing with trade and sustainable development.
To the uninitiated, this might look promising, the parties affirming their commitment to the development of international trade in “a way that is conducive to decent work for all, as expressed in the 2008 ILO Declaration on Social Justice for a Fair Globalisation.”

But more than that, Article 8 of Title XI also commits the parties to respect, promote and effectively implement the internationally recognised core labour standards, as defined in the fundamental ILO Conventions, namely:

• Freedom of association and the effective recognition of the right to collective bargaining
• The elimination of all forms of forced or compulsory labour
• The effective abolition of child labour; and
• The elimination of discrimination in respect of employment and occupation.
ILO Conventions on freedom of association include protection of the right to strike and to bargain collectively, and for trade unions to determine their own rules and activities.

The Conventions provide levels of protection well in advance of current British labour law.

Yet despite the foregoing, it would be a mistake to get overexcited about Article 8: the commitment to “effectively implement” ILO standards is meaningless.

It is, as our colleague Professor Tham of Melbourne University puts it, a form of “faux regulation,” typical of other neoliberal texts.

In other words, Article 8 is no more than a rhetorical flourish, not intended to bind anyone, and which in practice will bind no-one.

We know this because Article 8 has been copied and pasted from multiple other free trade agreements where it has had absolutely zero effect.

These include EU free trade agreements which bear the signatures of British prime ministers, such as the free trade agreements with South Korea and Canada respectively. (It is thus not the case that pre-Brexit the UK has had no free trade treaty obligations.)

Yet despite agreements of this kind and commitments made to effectively implement ILO obligations, the Tories under David Cameron introduced the Trade Union Act 2016.

The latter was held by the ILO Committee of Experts to add to the long list of the UK’s violation of freedom of association obligations, a comprehensive list which it opened in 1989 and has added to almost annually since.

Under Johnson it is likely that that list will be extended by even more restrictions on trade unions (note the Tory election manifesto commitment to introduce yet more restraints on industrial action on the railways).

The EU (and a number of member states) are also in persistent breach of ILO Conventions — the notorious Viking and Laval cases being good examples.

There, it will be recalled, the European Court of Justice subordinated trade union rights to the right of businesses to engage in social dumping.

Industrial action by trade unions in response would be permitted only if it met very tight conditions, which were subsequently found by the ILO Committee of Experts — in a case involving British trade union Balpa — to violate ILO Convention 87.

The EU could comply with ILO obligations only if the European Court of Justice reversed its decision in Viking, or if there is a treaty amendment to give legal priority to the right to strike in EU law.

Neither is likely to happen. The EU is thus in no position to complain about the United Kingdom’s continuing breach of ILO standards, with which the EU itself is currently unable to comply as a matter of EU constitutional law.

Both parties have thus given commitments in Article 8 in the full knowledge that they do not comply with the commitments made.

Although they will no doubt deny that they are in breach, we live in a world of mutually assured non-compliance, in which it is in the interests of neither party to raise a complaint against the other.

Article 8 will thus continue to be what comparable provisions are in other free trade agreements: pointless.

Apart from the foregoing, it will be noted nonetheless that Article 8 of Title XI includes an express commitment effectively to implement the “effective recognition of the right to collective bargaining.”

If taken seriously this would be hugely significant. After 40 years of neoliberal “reforms,” collective bargaining coverage in the United Kingdom has fallen from 82 per cent in 1979, to about 27 per cent overall today, with just over half that in the private sector.

In the EU, in contrast, the European Commission is fretting about countries with density levels of less than 70 per cent, and is apparently trying to do something about it.

But while the EU may be gripped by the seriousness of the crisis facing collective bargaining, that anxiety is not shared by the Johnson government, nor is it likely that

Article 8’s commitment to collective bargaining will mean much in practice.
These collective bargaining commitments in Article 8 are to be looked at in the light of Article GRP1 which deals with general principles of good regulatory practice and co-operation.

The latter refers to the right of the parties “to regulate [their] own levels of protection in pursuit or furtherance of its public policy objectives,” in areas such as occupational health and safety and labour conditions.

Although GRP1 is of uncertain scope and application, it offers guidance about British government thinking, as does the clarification added for “greater certainty.”

This protects “the different models of industrial relations” in accordance with national laws and practices, referring specifically to “laws and practices concerning collective bargaining and the enforcement of collective agreements.”

In other words, GRP1 appears to hard-wire a government intention to continue a regulatory model of collective bargaining which has been engineered to fail.

It is a model which has been unable to deliver a collective bargaining density in excess of 50 per cent in any of the major countries where it operates.

The explicit need to preserve this model reinforces the concern about the government’s vision for the “labour market” post-pandemic.

As we wrote at the beginning of Part I of this pair of articles, Labour MPs and peers are being asked to support an agreement that is intended to undermine British workers’ rights, despite the ink needlessly spilled to convince us otherwise.

The agreement fails to protect existing rights sourced from the EU, and fails to protect rights in international law derived from ILO Conventions (and the European Social Charter).

For the party of Keir Hardie to support such a treaty would be not only deeply ironic, but perhaps also a signal of neoliberalism’s final triumph.

Posted in Uncategorized | Leave a comment

The Brexit TCA & Workers’ Rights – Part One

By Nicola Countouris, Professor Keith Ewing, and Lord John Hendy QC

Just short of one half of the entire population of the UK are workers – and most of the rest are dependent on workers’ wages. Workers’ rights are therefore crucial.

The Labour Party was created at the beginning of the twentieth century with a mandate to protect worker and trade union rights.   Under new leadership the Labour Party of the twenty-first century is about to vote in support of the Johnson’s post-Brexit Trade and Co-operation Agreement (TCA), an agreement that, by the new leader’s own admission, does not ‘underpin workers’ rights’.

Labour parliamentarians who vote with the Tories to support the TCA should do so fully aware of its implications for workers’ rights. The fact that the government has deliberately engineered a situation in which it appears that a no-deal Brexit is the only alternative to the TCA is no reason not to vote against it.   An extension of current arrangements in order to procure a better deal was always possible.

EU workers’ rights are by no means comprehensive. But they are significant, on health and safety, equality and discrimination, paid holidays, working time and so on. Regression from them is therefore dangerous.  Though the European Court of Justice has an appalling record on the right to strike and bargain collectively, Brexit reminds us that UK legislation on these collective rights can be even worse.

In 2019, the Institute of Employment Rights raised concerns about workers’ rights in any future relationship with the EU.   Not one is allayed by the TCA.   True, the TCA provides that neither the EU nor the UK shall ‘weaken or reduce, in a manner affecting trade or investment between the Parties, its labour and social levels of protection below the levels in place at the end of the transition period’.

But this needs to be read very carefully.

  • First, it does not mean no regression: it means, as the government has pointed out, no dilution of standards ‘in a manner that has an effect on trade or investment’. It will be hard to prove that reducing paid holidays or increasing the limits on workers’ exposure to dangerous chemicals will affect trade or investment.
  • Secondly, it does not mean that all existing rights are to be safeguarded in their existing form or with the same level of detailed protection.Backsliding would appear to be permitted by a formula that defines ‘labour and social levels of protection’ to mean ‘the levels of protection provided overall’in law. Removal of a specific protection whilst reiterating a general protection is likely to be enough.
  • Thirdly, if there were doubts aboutthe UK’s capacity to regress, Article 6.2 of Title XI of the TCA affirms ‘the right of each Party to set its policies and priorities . . . ., to determine the labour and social levels of protection it deems appropriate and to adopt or modify its law and policies in a manner consistent with each Party’s international commitments’.

That is why the UK government trumpets in its summary of the TCA, specifically in the context of workers’ rights, that ‘retained EU law will not have a special place on the UK’s statute books’. This signals the government’s barely concealed intention to dilute the standards of EU workers’ rights.  So while children will not be sent back up chimneys, the TCA enables the government, with its 80 seat majority, to modify the detailed EU-derived legislation, whether it be levels of compensation in discrimination cases, or the arrangements for paid holidays.

These are not imaginary fears.   Recall the current Prime Minister’s evidence to the Treasury Select Committee when, as Foreign Secretary, he said that stuff such as ‘the Working Time Directive, … the Data Protection Act, … many directives and regulations emanating from Brussels have, either through gold-plating in this country or simply because of poor drafting or whatever, been far too expensive …. They are not ideally tailored to the needs of this economy’.

It was nonsense.  But now we must prepare for the removal of the ‘gold-plating’, and for amendments to the drafting of workers’ rights.    Such legislation may take us below the Plimsoll Line in the TCA. If so, the weakness of the supervision and enforcement to prevent regression will ensure that the government will be free to act with relative impunity.  A matter of acute concern is thus the absence of any independent judicial body to assess whether or not the non-regression provisions have been violated.

Article 6.4 of Title XI clarifies that any disagreement arising in the context labour and social provisions will not be settled in accordance with the more robust standard arbitration procedure contained elsewhere in the TCA (which applies for instance when a dispute revolves around the misuse of state aid and other subsidies). Instead, any disagreement is to be addressed but by reference to the second-rate procedures set out in Article 9 of Title XI.

In the first instance, the provisions of the latter merely provide for consultative talks between the parties (i.e. the UK and the EU), and failing progress for a ‘panel of experts’ issuing non-binding recommendations. If a party refuses to accept and comply with these non-binding recommendations, then Article 9.3 of Title XI allows the aggrieved party to adopt unilateral temporary measures, including the suspension of certain TCA provisions.

Such measures are, as stated, temporary and the other party can have them reviewed by an arbitration tribunal. Similarly, under Article 9.4 of Title XI a party claiming that the other has diverged significantly in terms of its labour or social legislation, can adopt unilateral ‘rebalancing measures’ including tariffs.  This may appear an adequate deterrent to prevent social dumping, but as always the devil is in the detail:

  • First, rebalancing measures can also be brought before an arbitration tribunal; they must also be ‘strictly necessary and proportionate’ and ‘be based on reliable evidence and not merely on conjecture or remote possibility’.
  • Secondly, the entire ‘dispute resolution’ process lends itself to delays, unpredictable results, and substantial costs. For instance, in July 2019, the EU Commission requested a Panel of Experts to report on the alleged violation by South Korea of a number of important ILO Conventions. To date, the Panel has yet to report on the allegations.
  • Thirdly, workers and trade unions cannot initiate these processes., and unlike a Court judgment, a decision by a panel or arbitration tribunal is not directly applicable in law.

Because of these deficiencies, experience suggests that State parties to international trade agreements usually put up with substantial levels of divergence between labour protection systems, rather than turn to cumbersome, ineffective, and unpredictable dispute resolution procedures such as the TCA process.   But given the power reserved by the government for the UK to squander by legislation the EU inheritance, the ineffectiveness of these procedures may never need to be revealed.

Let there be no doubt, in the drawn-out negotiations (and to the dismay of both leavers and remainers), it was the UK government which insisted on having the power to water down the existing rights of UK workers. That, it has achieved.

Posted in European Employment Rights, International Employment Rights, UK Employment Rights | Leave a comment

TUC: “Ministers must quickly bring forward the long-awaited employment bill to enhance workers’ rights”.

TUC General Secretary Frances O’Grady

The TUC has called on the government to urgently build on the UK-EU trade deal, which it says “falls far short” of the deal ministers promised.   

The call comes as the deal was voted through in the House of Commons by MPs.

Divergence on workers’ rights now a real threat  

The TUC has warned that the deal’s flimsy protections on workers’ rights would fail to prevent the government pursuing a deregulatory agenda.

And it says without further action, jobs are under threat, UK workers’ rights risk falling behind and our public services face further austerity cuts.

Responding to the deal last week, the TUC said that it is “better than nothing, but not by much”.

In particular, the TUC highlights non-tariff barriers which would heighten production costs and thus pose a threat to jobs.

The union body says the government now needs to urgently build on this agreement with a new approach to trade deals that puts decent work at the top of the agenda, and a domestic strategy that supports investment in jobs and industries.

A plan to protect jobs, rights and public services 

The TUC has set out a ten point plan to fix the shortcomings of the UK-EU deal and protect jobs, rights and public services.

The union body calls on the government to:

Protect jobs:

•Help our hard-pressed manufacturing sector cope with the new barriers this deal will create, with a package to rival the best in Europe – investing at least £10bn to build supply chain capacity and resilience, green the sector, and create jobs across the UK, supported by proven workplace training programmes to skill up the workforce.

•Hire the 50,000 customs officers needed to ensure border crossings are as speedy and friction-free as possible.

•Implement a new state aid regime that supports companies struggling to keep afloat with the hit their businesses is taking both from coronavirus and from the new trading arrangements.

•Get back to the negotiating table to protect our service industry, with an additional service agreement to get closer to pre-Brexit market access, including mutual recognition of qualifications. Government should be ready to bargain greater regulatory alignment to protect service sector jobs.

Protect rights:

•Get going on the promise to ‘protect and enhance rights’ by bringing forward the long-awaited employment bill, including a pledge to end zero-hours contracts.

•Give guarantees that no existing rights will be watered down, now or in the future, and that workers’ rights in the UK will be at least as good as those in the EU.

•Ensure workers are not priced out of justice by guaranteeing there will be no re-introduction of employment tribunal fees.

Protect public services:

•Ensure health and social care will be protected from privatisation in any trade deal by setting this out in a joint interpretive instrument.

•Support decent jobs through social clauses in public procurement to drive up employment, labour standards, skills and environmental outcomes.

•Increase funding for overstretched public services, fill the current 600,000 vacancies, and don’t freeze public sector pay.

The TUC has also criticised the government for failing to adequately consult with unions during trade talks and has called on the government to ensure unions have a seat at the table in any further trade negotiations.

TUC General Secretary Frances O’Grady said:

“This agreement falls far short of the deal the government promised. 

“Ministers need to plug the gaps. A tough EU exit in the middle of a pandemic will hit workers hard when we already face the grim prospect of mass unemployment. 

“If the government fails to build on this agreement, jobs will be at risk, hard-won rights will be on the line and our public services will be starved of much-needed investment. 

“Government has been telling us for years that they can’t support industry because of EU rules. There are no more excuses. Ministers must now prove that the new relationship really means better support for manufacturing jobs. 

“The UK needs an industrial strategy with real investment behind it that creates good quality green jobs. And ministers must quickly bring forward the long-awaited employment bill to enhance workers’ rights.”

Posted in Campaign For Trade Union Freedom News, European Employment Rights, UK Employment Rights, Uncategorized | Leave a comment