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The government has now released its own âguidancesâ for a return to work by stealth â cutting workersâ representation out of the picture, writes Professor Keith Ewing, President of the Campaign For Trade Union Freedom
Last week the gloves came off. The pretence of government consultation of unions was dropped with the vicious attack on the teachers who decline to go back to work without the assurance that it is safe for their members, their membersâ families, the pupils and their families.
Their view is shared by the Scottish, Welsh and Northern Irish governments and the BMA. It is also shared by the leaders of English local authorities. And more particularly, it is shared by most parents who donât want their kids to become carriers of the disease.
But the British government is desperate for teachers in England to get back to what it regards as their proper function: childminding â so that business can get back to normal.
The episode shows two things. First, the government regards workers â and still more â their unions with contempt.
True, it was reported several weeks ago that the Department for Business, Energy and Industrial Strategy (BEIS) had consulted with unions about easing the lock-down, and facilitating a return to work. This, however, seems designed principally to help provide re-assurance and share the responsibility associated with the return to work in the knowledge that millions of people were fearful.
But there is no indication of any joint planning, negotiation or agreement with the trade unions about the pre-conditions of the return, or of the necessary infrastructure being settled before any return to work takes place.
On the contrary, it appears that the unions were given 12 hoursâ notice of the advice the government intended to publish, their recommendations largely ignored in the eight heavily criticised guidance subsequently published on May 11.
Which brings us to the second point. This relates to the substance of the guidance, which states that:
âThis guidance does not supersede any legal obligations relating to health and safety, employment or equalities and it is important that as a business or employer you continue to comply with your existing obligations âŠâ
Yet each guide (there are eight) fails to set out what the existing obligations are â and each fails to point out that it is not merely âimportantâ to comply, but that it is a criminal offence not to.
In Britain there are 5,613,000 micro businesses (96 per cent of all businesses) that employ fewer than nine workers. They will not have health and safety officers and cannot be expected to know their statutory duties.
It would have been easy to set out (on a single page) the duty of every employer to provide PPE; keep the workplace and workstations safe; make a proper risk assessment; and not to penalise or dismiss a worker for refusing to work where he or she has a reasonable belief of imminent danger of infection.
That said, the guides set out sensible steps to minimise risk. The employer is advised to do its best to minimise the risk of infection. That is obviously sensible. The problem comes at the point where the employer considers it has done what is reasonable and that it would be too much trouble or expense to do more, even though risk remains. This is simply not good enough.
Employers need objective standards to determine whether they have sufficiently minimised risk. The words of the regulations, approved by Parliament, set out what is necessary to be done and these obligations should be stated in government guidance.
In the absence of a clear statement of the law workers face the cruel dilemma of either risking their (and their families) health or earning a living.
In relation to PPE the guides say: âWorkplaces should not encourage the precautionary use of extra PPE to protect against Covid-19 outside clinical settings or when responding to a suspected or confirmed case of Covid-19.â
This canât be right. The Provision of Personal Protective Equipment Regulations 1992 says: âEvery employer shall ensure that suitable personal protective equipment is provided to his employees who may be exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective.â
So, if other steps are insufficient to eliminate the risk of infection, then PPE must be provided. What justification can there be for denying gloves to delivery drivers handling packages, or visors and face masks to those who have to work in confined spaces with other people (like shops, offices or schools), or have to mingle with other people (like ticket inspectors, such as the tragic case of Belly Mujinga)?
Last week, the ONS published figures showing an increased risk of death from Covid-19 among âlower-skilledâ occupations. So four-and-a-half times as many security guards died from coronavirus as in the rest of the population, taxi drivers, chauffeurs and chefs were three-and-a-half times more likely to die, bus and coach drivers over two-and-a-half times more likely to die, and sales and retail assistants twice as likely to die from it.
Far from their employers being advised not to provide PPE specifically against the risk to such workers, they should be advised that they are under a statutory duty to provide it. The point here is that our long established health and safety laws are being ignored.
Trade unions fought for statutory protection for at least 150 years. These laws are being trashed. So too are common-law obligations highlighted in legal advice to the NASUWT published last week.
Also last week, the HSE published its own guidance to a return to work. Although the HSE is an âarmâs lengthâ public body, its guidance on how to operate a âCovid-secureâ business would be risible were the matter not so grave.
The documents fail to mention any of the relevant regulations beyond advising employers to carry out a risk assessment. For the rest it merely advises that the employer âshould think aboutâ various matters of safety.
As workers were being pressured back to work last week with inadequate guarantees about their safety, Brexit negotiations were breaking down because the government was not prepared to accept âa level playing fieldâ with the EU on environmental and labour rights.
The Covid-19 crisis is providing us with an alarming insight of the kind of employment protection we are likely to see if the post-Brexit structures are to be created by a Tory administration.
We know the law is no friend of workers, so how can we ensure health and safety
in the workplace amid desperate times for many? Carolyn Jones recommends an expert panel discussion that will help workers and their reps get clued up
“Heigh ho, heigh ho. Itâs off to work we go”! According to Boris Johnson. But back in the real world, millions of people are fearful for their safety and reluctant to be herded back onto packed public transport to be delivered to unsafe and unregulated workplaces.
Media outlets would have us believe that it is militant trade unions preventing the cheery back-to-work scenario.
Yes, trade unions did resist Johnsonâs snap, 12-hour back-to-work proposal, announced without consultation or accountability in his puffed-up address to the nation.
And trade unions continue to play a leading role in highlighting the dangers and the inadequacies of protections available to workers in too many of Britainâs workplaces.
And so they should. As recent reports from the Institute of Employment Rights (IER) have shown, neither Britainâs health and safety laws nor the regulatory bodies established to monitor and enforce those laws are fit for purpose.
It is true that legislation exists to protect those at work. A glimpse at the key health and safety statutory duties â each of which are legally enforceable and carry criminal charges if neglected â suggests that the laws should be enough to protect even the most vulnerable of workers.
But itâs a mirage. Just like the line in the Heigh Ho song that claims: âIt ainât no trick to get rich quick,â the idea that legislation will protect individuals is a con.
Consider the weaknesses in the laws. Much of the legislation only covers those classified as employees.
Those classified as âworkersâ or self-employed, are denied the protection of much of the legislation.
Similarly, some of the laws are only enforceable in workplaces where a trade union is recognised for collective bargaining purposes, where recognised health and safety reps can demand consultation and inspection rights.
For those without the benefit of a trade union behind them, workers are left to fall back on individual enforcement actions through tribunals or appeals to the regulatory body tasked with overseeing health and safety at work, the Health and Safety Executive (HSE).
Both are fundamentally flawed. Ignoring the fact that the employment tribunals are not currently sitting, even when they are, getting around the vague phrases of the laws is extremely difficult.
The median amount of compensation given is around ÂŁ5,000 and the likelihood of getting your job back following unfair dismissal has been calculated as less than 1 per cent of all successful cases.
As for relying on the HSE, figures in a recent report for IER by Steve Tombs suggest that the likelihood of one of Johnsonâs proposed âHSEâs spot checksâ happening is just once in every 275 years.
The latest figures show that there has been a 35 per cent cut in the number of inspectors employed by HSE since 2010.
Speaking to the work and pensions committee in March 2020, the chair of the HSE himself described the number of inspections as ârelatively smallâ â just 20,000 a year across 5.5 million HSE duty holders.
It is clear that following years of cuts the HSE is not in a position to provide adequate cover during this pandemic.
Itâs true that the government has announced an additional ÂŁ14m for the HSE, but that is a drop in the ocean when compared to the ÂŁ104m cut from HSE funds since 2010.
And who will decide which sites to inspect with this new money? In 2011 the DWP declared whole sectors of the economy as âlow-riskâ and therefore exempt from proactive inspections.
Those low-risk sectors included some that most sane people would recognise as particularly high risk â including construction, one of the sectors the PM casually suggested should go back to work.
Little wonder that building work campaign groups are calling for construction sites to be shut down.
More could be said about the weaknesses of British laws â not least the changes introduced by the the Enterprise and Regulatory Reform Act, 2013 which revoked the 114-year-old civil liability of employers for their workersâ health and safety â making it exceptionally difficult to gain compensation for injury or death at work.
But readers of the Morning Star will know all too well that the law is no friend of workers, despite occasional victories in the courts.
In reality, it is trade unions which offer the sword of justice in the workplace and it will be trade unions that protect the health and safety of workers as the government blunders through this pandemic.
Of course unions in Britain remain restricted by anti-trade union laws, laws that render strikes in response to immediate emergency situations unlawful by demands for ballots and notice periods.
But for the past 30 years, British laws have led more and more workers down the individual path to enforcement of rights.
How ironic it would be if individual workers now decided to walk off the job quoting statutory health and safety duties in their defence.
The law may be weak but it still engages a duty on employers and the state to prevent serious and imminent danger, not just to individual workers but also to their families and to the general public.
And, according to the HSE, a pandemic flu virus is a hazardous and dangerous substance.
We cannot allow trade unions to be cast as the wicked witch. Nor should workers accept the poison apple being offered by a reckless government playing fast and loose with the health and wellbeing of working people in return for a paltry pay packet.
The IER is supporting a free Zoom event tonight organised by the Campaign for Trade Union Freedom to discuss When Is It Right to Stop the Job? Join us tonight, Monday May 18th, from 6pm-7.30pm. Sign up atÂ tinyurl.com/y7gmmrnb.
The speakers are John Hendy (CTUF), Dave Smith (Blacklist Support Group #shutthesites) on construction, Mick Cash (RMT) on transport sector, Steve Turner (Unite) on manufacturing sector, Shelley Asquith (TUC) campaigning on health and safety and Marie-Christine Naillod (CGT international department). The chair is Adrian Weir (CTUF).
Places going fast! So register today at tinyurl.com/y7gmmrnb Campaign For Trade Union Freedom on-line Zoom event for trade unionists: ‘When Is It Right To Stop The Job?’ May 18th at 6.00pm to 7.30pm. See flyer for speakers.
Using the word reform, Aussie unions say this means cuts in pay, employment conditions and Â and all out attack on workers rights.
Unions have accused Australian employers of being ideologically obsessed with weakening and removing workers rights.
Unions say employers have too much power, with upto Â third of them not paying any tax andÂ are in a race to the bottom on wages and job security.
Find out more and in Australia you can sign up to their union campaign by clicking here.Â
The coronavirus pandemic has exposed the underlying weakness of the UKâs employment laws and we can expect there will be demands from employers for âmore flexibilityâ or attempts to weaken the already weak employment laws. European and global trade unions are already anticipating a push by employers to role back employment rights in response to a weakened economy.
This week the TUC will be releasing a series of short interviews on Employment rights after coronavirus:
Monday, May 4thMonday, Michael Ford QC will talk about the employment law fall out from coronavirus.
Tuesday, May 5th, will see Dee Masters and Robin Allen QC of Cloisters talk aboutÂ technology at work after coronavirus.
Wednesday, May 6thÂ will feature an interview with Dr Alessio Bertolini of the Oxford Internet Institute on platform work after coronavirus.
Thursday, May 7thÂ Professor Melanie Simms will discuss the longer-run impact on labour markets and the issues facing trade unions.
Each video will last between 10-15 minutes and will be done in interview style.
The TUC will be providing links to these interviewsÂ which will be tweeted out.
Tim Sharp, Senior Employment Rights Officer at the TUC says: âDuring the coronavirus pandemic unions have fought hard to protect workers jobs and incomes and to ensure their rights are respected at this difficult time. But we need to ensure that when the shutdown is lifted and more people return to work outside the home that we are alert to the tasks aheadâ.
âThese interviews explore the various challenges workers will face whether it is to their legal rights or the impact of new technology to put them in a better position to defend and extend their rights at work.â
From the Morning Star Special May Day edition
A massively expanded state is needed with a greater role for unions and the people themselves: Professor Keith Ewing and John Hendy QC present ‘a post-Covid-19 manifesto’
Much has been written in recent months from across the political spectrum about Leninâs famous aphorism that âthere are decades where nothing happens; and there are weeks where decades happen.â
But apart from a determination that we should not return to the past, little time has been spent reflecting on Leninâs even more famous question: âwhat is to be done?â
Now is the time for answers.
The Covid-19 crisis has revealed in sombre terms the true nature of British society and is testament to the inequalities between us. As we have written before, some of us are more vulnerable to contracting the virus than others, while some are more vulnerable to serious and critical symptoms than others.
But it is not just the virus that preys on inequalities. So does the response to it, as well as the likely longer term effects.
Some are able to work conveniently from home, while others are not; and others are able to live comfortably in a period of lockdown, with secure incomes and sufficient space, including access to gardens.
But despite the governmentâs rescue packages, others are having to self-isolate on statutory sick pay, many have lost their jobs and 1,950,000 have registered for the mercies of universal credit since March 1st
For some, the future looks as bleak as the present, as the impact of the greatest depression for two hundred years begins to dawn.
There will be a massive job of rebuilding a broken society â neoliberalism and buccaneering free-market capitalism having totally disarmed the resilience of the state and revealed itself as no match for a global health pandemic which looks set to claim many victims in Britain and elsewhere.
In a period of just over a few weeks, we have seen the grim figure of 20,000 deaths in hospitals alone, including many healthcare workers and other essential service workers, who have sacrificed their lives in the interests of others.
This amid claims that the state has failed in its most basic duty to protect the lives of its citizens. We see a failure of politics and public administration on a scale not witnessed in modern times.
But above all what we see is the failure of an economic model as this crisis has incubated and spread: the failure of neoliberalism, free markets and global supply chains that have now conquered the globe.
This is the model that has stripped states of all resilient capacity, has proved unable to ensure the supply of even the most basic personal protection equipment for workers on the front line.
So what about the future? We are reminded of previous crises and the steps taken to address them â their causes and their consequences. As highlighted elsewhere in this special May Day edition, they included the revival of the ILO by the Declaration of Philadelphia as the second world war was coming to an end.
This is the greatest ever international statement in favour of social justice: although imitated it has never been equalled.
At its core the Declaration of Philadelphia commits to freedom of association and the âeffective recognition of the right to collective bargaining,â as well as âpolicies in regard to wages and earnings, hours and other conditions of work calculated to ensure a just share of the fruits of progress to all.â
In other words, the value of work and its rewards ought not to be determined by the vagaries of a âlabour market,â but by equity and justice.
Indefensibly, those on whom we are all most dependent are the lowest paid and the most vulnerable. Their critical role as well as their dignity and bravery reinforces the irrationality and unjustifiability of existing wage structures and the imbalance between the low and the well paid.
Above all, it reveals the interdependence of all who labour in whatever capacity and the need to âflattenâ what has become an inexplicable income curve.
If we are to escape the clutches of neoliberalism and reassess our values to rebuild after the crisis, there is a need for a public-policy revolution at least as great as that we saw in 1934, until it was eclipsed by Thatcherism in the 1980s.
The Covid-19 crisis has shown the need for a greatly expanded role for the state, a need that will continue as the country faces up to the devastation left in the virusâs wake.
An enlarged role for the big state will create in turn a need for new forms of political engagement and participation: citizens have a right not just to be spoken to by government but to be in government with government.
It will also create a new role for trade unions at the highest levels of policy-development and rule-making though sector-wide bargaining and the need for permanent machinery to create a framework for such engagement .
It is now more widely understood that trade unions perform an important role in a free society as intermediate institutions between state and citizen in an open, resilient, democratic society.
We need strong trade unions with the power and authority to participate in government, to hold governments to account and to resist policies that damage the national interest. But this will be only the start, as we look to the past to build a better future.
A post-Covid-19 manifesto
1 There is a need for co-ordinated and progressive international action, as in the ILO Declaration of Philadelphia (1944).
2 EU institutions need to rediscover and recognise the principles set out in the EU Treaty, articles 2 and 3 and abandon their commitment to an âopen market economy.â
3 At domestic level, radical and transformative fiscal policies must be adopted to raise taxes, in order to increase spending, in order to promote income equality and equality of wealth.
4 The state must be rebuilt as the expression of collective solidarity, not just in health, but also in employment, housing, education, transport and income maintenance.
5 Participation in government must be expanded to give trade unions a voice in public policy development, while all public services must be delivered directly by public bodies.
6 The economic constitution must be to restored to recreate an open, robust, resilient and inclusive democracy based on entitlement through strong industrial citizenship.
7 As a result, sector-wide collective bargaining should be restored, as a key lever for redistribution and the promotion of equality.
8 Steps must be taken to ensure the dignity of all workers and to end the various forms of exploitation through non-standard employment. Enough is enough.
9 We must reassess the value of work and its rewards. Wage rates should be based on service to the community not market value, with much greater state intervention.
10 Steps must be taken to disempower global corporations and to democratise companies, as an integral part of the new economic constitution.
Unite general secretary Len McCluskey calls on people to ‘Remember the dead, fight for the living’ with a one minute silence at 11am on International Workers’ Memorial Day, Tuesday 28th April.
“Safety at work is a right, not a privilege. Now more than ever the safety of our people is our primary concern.”