Covid-19 : No going back to ‚Äėbusiness as usual‚Äô.

Statement From the Campaign For Trade Union Freedom and the Institute Of Employment Rights : After Covid-19 No Going Back To Business As Usual

The Corona virus pandemic has demonstrated the need to revolutionise the protection of workers for the future.

There can be no going back to ‚Äėbusiness as usual‚Äô.

The crisis has shown the weakness of labour law, employment rights and protections. As long ago as 1944, at the end of the Second World War, the great powers agreed the ‘Declaration Of Philadelphia’ which set the fundamental principles of international labour law for the post-war settlement.

The key principle of the Declaration is ¬†that ‚Äėlabour is not a commodity‚Äô. Yet the pandemic has shown that, to business and government, workers are commodities, mere ‚Äėhuman resources‚Äô which appear with other business costs on one side of a balance sheet.¬†They are bought in at the lowest available cost and are disposable both as to their health and their jobs.

Workers at risk of the disease are working without PPE. Wages have been cut. In the last three weeks 1.4 million new claims have been made for Universal Credit. These are mostly workers who have been dumped on the so-called ‚Äėlabour market‚Äô to save costs. World-wide, one billion workers have been laid off.

As unemployment climbs and wages fall, so demand drops out of the economy and further redundancies follow.

In the global recession that is now following the pandemic, we cannot let employers restore the pre-existing power relations at the workplace or, worse, exploit the situation to yet further worsen terms, conditions and job security.

We need a new legal framework for workplace law. At its heart must be the restitution of sectoral and workplace collective bargaining. With the destruction of collective bargaining in so many industries and the unwarranted restrictions on the right to strike over the last decades, the crucial decisions now being made about how businesses respond to coronavirus are made (with a very few honourable exceptions) without worker input. That is unacceptable.

We need a new settlement in which workers through their unions can effectively represent by all means at their disposal the interests of the 32.7 million workers of all kinds in this country; just like other civilised countries. Just as was envisaged in 1944.

The Declaration Of Philadelphia reads:

The General Conference of the International Labour Organization,meeting in its Twenty-sixth Session in Philadelphia, hereby adopts, this tenth dayof May in the year nineteen hundred and forty-four, the present Declaration of theaims and purposes of the International Labour Organization and of the principleswhich should inspire the policy of its Members.

I The Conference reaffirms the fundamental principles on which theOrganization is based and, in particular, that:

(a) labour is not a commodity;

(b) freedom of expression and of association are essential to sustained progress;

(c) poverty anywhere constitutes a danger to prosperity everywhere;

(d) the war against want requires to be carried on with unrelentingvigour within each nation, and by continuous and concerted internationaleffort in which the representatives of workers and employers, enjoyingequal status with those of governments, join with them in free discussionand democratic decision with a view to the promotion of the commonwelfare.

II Believing that experience has fully demonstrated the truth of the statement in the Constitution of the International Labour Organisation that lasting peace can be established only if it is based on social justice, the Conference affirms that:

(a) all human beings, irrespective of race, creed or sex, have the rightto pursue both their material well-being and their spiritual development inconditions of freedom and dignity, of economic security and equalopportunity;

(b) the attainment of the conditions in which this shall be possible mustconstitute the central aim of national and international policy;

(c) all national and international policies and measures, in particularthose of an economic and financial character, should be judged in thislight and accepted only in so far as they may be held to promote and notto hinder the achievement of this fundamental objective;

(d) it is a responsibility of the International Labour Organization toexamine and consider all international economic and financial policies andmeasures in the light of this fundamental objective;

(e) in discharging the tasks entrusted to it the International LabourOrganization, having considered all relevant economic and financialfactors, may include in its decisions and recommendations any provisionswhich it considers appropriate.

III The Conference recognizes the solemn obligation of the InternationalLabour Organization to further among the nations of the world programmes which will achieve:

(a) full employment and the raising of standards of living;

(b) the employment of workers in the occupations in which they canhave the satisfaction of giving the fullest measure of their skill andattainments and make their greatest contribution to the common wellbeing;

(c) the provision, as a means to the attainment of this end and underadequate guarantees for all concerned, of facilities for training and thetransfer of labour, including migration for employment and settlement;

(d) policies in regard to wages and earnings, hours and otherconditions of work calculated to ensure a just share of the fruits ofprogress to all, and a minimum living wage to all employed and in need ofsuch protection;

(e) the effective recognition of the right of collective bargaining, thecooperation of management and labour in the continuous improvement ofproductive efficiency, and the collaboration of workers and employers inthe preparation and application of social and economic measures;

(f) the extension of social security measures to provide a basic incometo all in need of such protection and comprehensive medical care;

(g) adequate protection for the life and health of workers in alloccupations;

(h) provision for child welfare and maternity protection;

(i) the provision of adequate nutrition, housing and facilities forrecreation and culture;

(j) the assurance of equality of educational and vocational opportunity.

IV¬†Confident that the fuller and broader utilisation of the world’s productive resources necessary for the achievement of the objectives set forth in thisDeclaration can be secured by effective international and national action, including measures to expand production and consumption, to avoid severe economic fluctuations to promote the economic and social advancement of theless developed regions of the world, to assure greater stability in world prices of primary products, and to promote a high and steady volume of international trade, the Conference pledges the full cooperation of the International Labour Organization with such international bodies as may be entrusted with a share ofthe responsibility for this great task and for the promotion of the health, education and well-being of all peoples.

V The conference affirms that the principles set forth in this Declaration are fully applicable to all peoples everywhere and that, while the manner of their application must be determined with due regard to the stage of social and economic development reached by each people, their progressive application to peoples who are still dependent, as well as to those who have already achieved self-government, is a matter of concern to the whole civilized world.

The Declaration is dated 10th May 1944 and is annexed to the Constitution of the ILO.

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After Years Of Union Campaigning – Swedish Derogation Ends Today

The ‘Swedish Derogation’ which has been used by employers to exploit¬†agency workers ends today. Employers¬†will no longer be able to pay long-term agency workers less than their colleagues.¬†It is estimated that around 120,000 workers are currently affected by the misuse of the rules.

In another win for workers below is a statement issued today by the TUC explaining why unions campaigned against the misuse of the ‘derogation’ and what agency workers are now entitled to.

Ten years ago, legislation was introduced to ensure that agency workers received the same pay as those they worked alongside.

But a loophole in that law known as the ‚ÄėSwedish Derogation‚Äô meant that a significant number of agency workers were paid much less than directly employed staff for doing the exact same work.

Unions campaigned to abolish this loophole ever since it became clear.

Their dogged opposition to ‚ÄėSwedish Derogation‚Äô contracts means that many agency workers will now get paid the going rate for the job.

Why is this important?

Previous TUC research has shown that there are many agency workers trapped in long term agency assignments, many of them working under ‘Swedish Derogation’ contracts.

More than 420,000 agency workers have been in their jobs for more than a year, and shockingly, over 120,000 have worked for an agency for over five years.

Agency workers employed under the Swedish Derogation suffer a significant pay penalty. The TUC has evidence of workers earning up to £4 less per hour than directly employed staff even though they do the same work.

But now thanks to union campaigning, many agency workers should receive a pay rise.

Quickfire questions

What is a PBA/Swedish Derogation contract?

PBA or ‚ÄėSwedish Derogation‚Äô contracts are contracts of employment. Provisions previously meant that you could be paid between assignments, instead of receiving equal pay after 12 weeks of working for the same client in the same role.

Why is the new legislation good for agency workers?

The new legislation will abolish the Swedish Derogation, which gave employers the ability to pay agency workers less than their own workers in certain circumstances. It will be unlawful if you don’t receive equal pay after the 12 weeks qualifying period if you are on a PBA contract.

What happens for agency workers already on PBA/Swedish Derogation contracts?

If you are on a PBA contract, you must receive written confirmation from your recruitment agency confirming your right to equal pay by 30 April 2020.

What is the effect on an agency worker’s pay?

If you don’t receive equal pay after a 12-week qualifying period you may be able to bring a claim to an employment tribunal and claim compensation. In addition, you should not be unfairly dismissed or subject to a detriment when you exercise your right to receive equal pay.

Where can I go for further information?

If you’re in a union please speak to your union rep. The TUC has published this fact sheet to give you an overview of your new and existing rights as an agency worker.

CTUF comment: The UK ‘loophole’ was based on the clear exploitation of a Swedish collective agreement.

In Sweden agency workers are covered by a national collective agreement between the government, employers and the unions.

The derogation in Sweden allowed recruitment agencies to employ workers on a permanent basis, whilst guaranteeing they will be paid between assignments.

In Sweden agency employees on permanent contracts are guaranteed up to 90% of their salary when not working between assignments. This was never the case in the UK.

Unions in the UK fought against the introduction of the derogation with agency and permanent workers threatening to take industrial action when employers tried to drive through changes to contracts.

 

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Employers staying open must guarantee safe working conditions  says HSE, CBI and TUC in joint statement 

TUC General Secretary Frances O’Grady

The Health and Safety Executive (HSE), CBI and TUC have today issued an unprecedented joint call for employers to ensure safe working conditions during the coronavirus outbreak.

The statement says that¬†if¬†companies¬†remain¬†open¬†they must take¬†practical¬†steps to minimise the¬†threat¬†of¬†workers¬†being exposed to¬†the virus¬†wherever possible ‚Äď including enabling social distancing.

The statement warns that if employers do not comply with the latest Public Health England guidance they face being hit with enforcement notices and potential closure.

The joint appeal also encourages workers to raise any concerns about working conditions first with their employer or trade union. And it notes that if concerns can’t be resolved locally, workers can approach the Health and Safety Executive or their local authority for help.

 Employers unsure about the current guidance are advised to visit www.gov.uk and www.hse.gov.uk.

 CBI Deputy Director General Josh Hardie said:  “Businesses are stepping up to the mark in these incredibly challenging times.  Keeping staff safe must be their number one priority, as they also keep the wheels of daily life and the economy spinning.

¬†‚ÄúThe vast majority of firms are doing the very best they can in protecting their staff where premises remain open. The layout of some workplaces can make this incredibly difficult, but all efforts must be made to follow¬†social distancing guidelines wherever they can.‚ÄĚ

TUC General Secretary Frances O’Grady said:  “We all want businesses to get through this crisis and keep people in their jobs. But this must not come at the cost of safe working conditions.

“Employers and unions have a crucial role to play in stopping the spread of the virus, protecting our NHS and saving lives.

¬†‚ÄúMany employers are doing the right thing. But no-one¬†going into work¬†should have to endanger their own health and put their families and the wider community at risk.¬†Those¬†companies¬†who¬†refuse to follow the rules¬†must face the threat of closure.‚ÄĚ

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Coronavirus Has Exposed the Reality of Precarious Britain

Adrian Weir is Assistant Secretary of the Campaign for Trade Union Freedom.

By Adrian Weir

The coronavirus crisis has lifted the lid on Britain’s economy ‚Äď where one in ten workers are precariously employed ‚Äď and demonstrated the case for secure work and strong trade unions.

The coronavirus crisis has highlighted, in great relief, the crisis of the deregulation of the labour market, as designed by the neoliberal project, and the exponential growth of the precarious sector.

As I noted¬†previously, one in ten UK workers now have precarious jobs ‚ÄĒ including in the so-called ‚Äúgig‚ÄĚ economy ‚ÄĒ that‚Äôs 3.2 million workers on zero hours, casual, bogus self-employed or temporary contracts. It‚Äôs for these workers that the unions are now pressing the government for urgent action on income protection.

There has been an increased media focus in recent days on the construction sector. As Mark Harvey writes, bogus self-employment in construction is a deliberate policy pursed by employers. In fact, it can be traced back to the successful building workers’ strike of 1972.

The Shrewsbury Campaign¬†describes¬†the outcome of the 1972 strike as ‚Äúthe largest single pay increase ever negotiated in the building industry.‚ÄĚ ‚ÄúIt was,‚ÄĚ the campaign continues, ‚Äúa magnificent victory for trade union organisation, against all odds‚Ķ One of the least well-organised groups of workers had taken on their employers and won. The Conservative government and the employers did not let matters rest there.‚ÄĚ

For the employers, this meant a concerted effort to never again have directly employed (PAYE) workers on major construction sites. From that point onwards construction workers were forced into bogus self-employment schemes of various types which has meant that almost 50 years later on sites across London, and probably elsewhere, building workers are obliged to go to work, crammed together in site canteens or working in gangs in sites that are in all likelihood coronavirus hotspots.

As they are classified as self-employed, these workers are exempt from the government‚Äôs increasingly shaky coronavirus Job Retention Scheme. They have to keep working in order to get paid ‚ÄĒ and, therefore, are forced to put themselves at risk.

The Rise of the Precarious

The growth of the precarious sector would not have been possible had it not been for the framework of anti-union laws introduced under Thatcher and Major. The Conservatives may have spoken about the inequities of the closed shop or giving unions back to their members, but in reality these laws had the deliberate purpose of undermining collective bargaining and unions’ representative function.

The legal shackling of unions and the diminution of their bargaining power was a move to restore to the one percent that which they had lost in the post-war period of social-democratic advance.

Through 1980s and ‚Äė90s employers sought to minimise headcount and ensure that labour could be turned on and off like a tap according to demand. This led to the growth of agency working and zero-hours contracts, culminating in today‚Äôs gig economy where employers have transformed themselves into digital ‚Äúplatforms‚ÄĚ and all their workers are so-called independent self-employed contractors.

Those on zero-hours contracts feel obliged to turn up for work whenever the phone rings and they get their instructions to do a shift. The ‚Äúindependent‚ÄĚ union that represents gig workers, the IWGB, says it¬†will sue¬†the UK government because its¬†economic support measures ‚Äúdiscriminate‚ÄĚ against, and fail to provide proper support for, self-employed workers, women, minority groups, and those in the ‚Äúgig economy‚Ä̂Ķ the current policies are therefore ‚Äúnot only discriminatory‚ÄĚ and ‚Äúrisk driving millions of workers into deeper poverty‚ÄĚ, but also pose a serious threat to public health. This is because many self-employed workers, ‚Äúare forced to continue working while sick or while they should be self-isolating in order to survive‚Ä̂Ķ

Although the government has now announced a very limited package of income support with a long lead-in time for the self-employed, we have these further examples of precarious workers unwillingly creating a feedback loop to the coronavirus crisis.

This crisis may well engender profound changes in the world of work that we can’t yet imagine. The huge number of workers now working remotely may have permanent consequences; how will unions organise a vast army of home workers? How many of our employment and health and safety laws will be applied to working at home is also an unknown.

Changing the Rules

Whoever is declared the new Leader of the Labour Party tomorrow will have much to consider in terms of responding to coronavirus and the government’s evident mishandling of the emergency.

The immediate issues are PPE for healthcare and other frontline workers, testing for coronavirus and maintaining employment. But any Labour leader will need to also consider how the coronavirus crisis has exposed the dark underside of Britain’s labour market.

Fortunately, they need look not much further than Labour‚Äôs 2017 and 2019 manifestos to find solutions to the problem. On zero-hours contracts Labour pledged to ‚Äúban zero-hours contracts ‚ÄĒ so that every worker gets a guaranteed number of hours each week‚ÄĚ (2017) and ‚Äúban zero-hours contracts and strengthen the law so that those who work regular hours for more than 12 weeks will have a right to a regular contract reflecting those hours‚Ķ requiring cancelled shifts to be paid and proper notice for changes in hours.‚ÄĚ (2019)

Britain would, of course, not be the first country to ban zero-hour contract. The measure is long overdue. New Zealand has for some years banned zero-hours and in the Irish Republic legalisation has been passed to ensure that workers can access secure hours.

In its recent election campaigns, Labour also pledged to remove the anomalies in law that allow for workers having different rights according the hours worked. In 2017, the party committed to ‚Äúgive all workers equal rights from day one, whether part-time or full-time, temporary or permanent ‚ÄĒ so that working conditions are not driven down.‚ÄĚ In 2019, it summarised this with a commitment to ‚Äúgive everyone full rights from day one on the job.‚ÄĚ

In 2017 and 2019 Labour made clear and explicit promises on bogus self-employment:

‚Äúshifting the burden of proof, so that the law assumes a worker is an employee unless the employer can prove otherwise‚Ķ banning payroll companies, sometimes known as umbrella companies, which create a false structure to limit employers‚Äô tax liabilities and limit workers‚Äô rights‚ÄĚ (2017); and ‚Äúending bogus self-employment and creating a single status of ‚Äėworker‚Äô for everyone‚ÄĚ (2019).

As Mark Harvey¬†points out, ‚Äúno other European country has anything approaching the level of self-employment in construction as the UK, with most under 15% while the UK is now over 60%, especially of manual workers. It is a British disease.‚ÄĚ

Over and above providing protections for individual workers in difficult situations it is vital that Labour remains committed to restoring unions to a central role in industrial relations and worker representation.

In 2017, it said that ‚Äúa Labour government will‚Ķ empower workers and their trade unions ‚ÄĒ because we are stronger when we stand together ‚Ķ and roll out sectoral collective bargaining ‚Äď because the most effective way to maintain good rights at work is collectively through a union.‚ÄĚ In 2019, it was unequivocal: ‚Äúwe will roll out sectoral collective bargaining‚ÄĚ

In the end, there is only one way to ensure that unions can operate properly and effectively. That is to repeal anti-union legislation. In 2019, the party made clear that this went beyond the 2016 Trade Union Act and would mean doing away with years of anti-union legislation to ‚Äúcreate new rights and freedoms for trade unions.‚ÄĚ

Labour has the tools to deal with labour market deregulation and restore stability and dignity to people’s working lives. With the coronavirus crisis, we now know how crucial that task truly is.

The political outcome of the coming months is hard to predict. Even an 80-seat majority is no guarantee for a government in the face of a historic crisis. Now is not the time to retreat from bold policies to empower our unions and improve the lives of workers.

Adrian Weir is Assistant Secretary of the Campaign for Trade Union Freedom, a member of Labour’s National Policy Forum (NPF) International Commission and serves on the Executive Committee of the Cuba Solidarity Campaign.

This blog was originally published at https://tribunemag.co.uk

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Media North Newsletter – Special Edition ‘The Media & The Coronava Virus

The lasted edition of Media North’s Newsletter on ‘The Media and The Corona Virus’ is available to download here:¬† MediaNorth.VirusSpecial

The book (‘It‚Äôs The Media, Stupid!’) is ready to go for design and print. It should (fingers crossed) be ready in late April.

The details of how to order are on page 4 of this issue of MediaNorth.

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Note on relevant H&S laws for workers working during coronavirus crisis.

Lord John Hendy QC

A note on some of the relevant health and safety law for workers working during the coronavirus crisis.

By Lord John Hendy QC

 The evidence is becoming overwhelming that many employers not involved in essential work have been insisting on staff coming in to work. This increases risk of the spread of coronavirus whilst staff are travelling to and from work.

Once at work many employers are not arranging work so as to preserve the necessary 2 metre social distancing between workstations and for access routes, providing screens where necessary, providing adequate washing facilities or, where required, personal protective equipment such as masks, disposable aprons and gloves.

The requirement to protect staff and others affected by them is not merely a matter of moral duty or good sense, it is a longstanding requirement of the law. There is a great deal of relevant law so this note can only refer to some of the more obvious statutory provisions. The common law also has a lot say on these subjects. The most obvious provisions are those of the Health and Safety at Work etc Act 1974, and regulations made under it and the Employment Rights Act 1996. Union reps and workers should draw these to the attention of law-breaking employers. The Health and Safety Executive and the Local Authority should be notified of breaches.

Relevant legislation includes:

Health and Safety at Work etc Act 1974

Section 2.‚ÄĒ¬†General duties of employers to their employees.

(1)  It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.

(2)¬†¬†Without prejudice to the generality of an employer’s duty under the preceding subsection, the matters to which that duty extends include in particular‚ÄĒ

(a)  the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health;

(b)  arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;

(c)  the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees;

(d)¬†¬†so far as is reasonably practicable as regards any place of work under the employer’s control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks;

(e)  the provision and maintenance of a working environment for his employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work.

…

(6)It shall be the duty of every employer to consult any such representatives with a view to the making and maintenance of arrangements which will enable him and his employees to co-operate effectively in promoting and developing measures to ensure the health and safety at work of the employees, and in checking the effectiveness of such measures.

(7)In such cases as may be prescribed it shall be the duty of every employer, if requested to do so by the safety representatives mentioned in subsection (4) above, to establish, in accordance with regulations made by the Secretary of State, a safety committee having the function of keeping under review the measures taken to ensure the health and safety at work of his employees and such other functions as may be prescribed.

Section 3.‚ÄĒ¬†General duties of employers and self-employed to persons other than their employees.

(1)  It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.

(2)   It shall be the duty of every self-employed person who conducts an undertaking of a prescribed description to conduct the undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health or safety.

‚ĶSection 4.‚ÄĒ¬†General duties of persons concerned with premises to persons other than their employees.

(1)¬†¬†This section has effect for imposing on persons duties in relation to those who‚ÄĒ

(a)  are not their employees; but

(b)  use non-domestic premises made available to them as a place of work or as a place where they may use plant or substances provided for their use there,

and applies to premises so made available and other non-domestic premises used in connection with them.

(2)  It shall be the duty of each person who has, to any extent, control of premises to which this section applies or of the means of access thereto or egress therefrom or of any plant or substance in such premises to take such measures as it is reasonable for a person in his position to take to ensure, so far as is reasonably practicable, that the premises, all means of access thereto or egress therefrom available for use by persons using the premises, and any plant or substance in the premises or, as the case may be, provided for use there, is or are safe and without risks to health.

(3)¬†¬†Where a person has, by virtue of any contract or tenancy, an obligation of any extent in relation to‚ÄĒ

(a)  the maintenance or repair of any premises to which this section applies or any means of access thereto or egress therefrom; or

(b)  the safety of or the absence of risks to health arising from plant or substances in any such premises;

that person shall be treated, for the purposes of subsection (2) above, as being a person who has control of the matters to which his obligation extends.

(4)  Any reference in this section to a person having control of any premises or matter is a reference to a person having control of the premises or matter in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not).

 Personal Protective Equipment at Work Regulations 1992

Regulation 4 Provision of personal protective equipment

(1)     [Subject to paragraph (1A),] every 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.

…

(2)     Every relevant self-employed person shall ensure that he is provided with suitable personal protective equipment where he may be exposed to a risk to his 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.

(3)¬†¬†¬†¬† Without prejudice to the generality of paragraphs (1) and (2), personal protective equipment shall not be suitable unless‚ÄĒ

(a)     it is appropriate for the risk or risks involved, the conditions at the place where exposure to the risk may occur, and the period for which it is worn;

(b)     it takes account of ergonomic requirements and the state of health of the person or persons who may wear it, and of the characteristics of the workstation of each such person;

(c)     it is capable of fitting the wearer correctly, if necessary, after adjustments within the range for which it is designed;

(d)     so far as is practicable, it is effective to prevent or adequately control the risk or risks involved without increasing overall risk;

(e)     it complies with any legal requirement which is applicable to that item of personal protective equipment.

(4)     Where it is necessary to ensure that personal protective equipment is hygienic and otherwise free of risk to health, every employer and every relevant self-employed person shall ensure that personal protective equipment provided under this regulation is provided to a person for use only by him.

…

The Workplace (Health, Safety and Welfare) Regulations 1992

9.(1) Every workplace and the furniture, furnishings and fittings therein shall be kept sufficiently clean.

…

10.(1) Every room where persons work shall have sufficient floor area, height and unoccupied space for purposes of health, safety and welfare.

…

11.(1) Every workstation shall be so arranged that it is suitable both for any person at work in the workplace who is likely to work at that workstation and for any work of the undertaking which is likely to be done there.

…

17.(1) Every workplace shall be organised in such a way that pedestrians … can circulate in a safe manner.

…

21.(1) Suitable and sufficient washing facilities, including showers if required by the nature of the work or for health reasons, shall be provided at readily accessible places.

(2)¬†Without prejudice to the generality of paragraph (1), washing facilities shall not be suitable unless‚ÄĒ

…

(c)they include a supply of clean hot and cold, or warm, water (which shall be running water so far as is practicable);

(d)they include soap or other suitable means of cleaning;

(e)they include towels or other suitable means of drying;

…

The Management of Health and Safety at Work Regulations 1999

3.(1)¬†Every employer shall make a suitable and sufficient assessment of‚ÄĒ

(a)the risks to the health and safety of his employees to which they are exposed whilst they are at work; and

(b)the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking,

for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions…

…

(3)¬†Any assessment such as is referred to in paragraph (1) ‚Ķ shall be reviewed by the employer ‚Ķ who made it if‚ÄĒ

(a)there is reason to suspect that it is no longer valid; or

(b)there has been a significant change in the matters to which it relates;

and where as a result of any such review changes to an assessment are required, the employer or self-employed person concerned shall make them.

…

  1. Where an employer implements any preventive and protective measures he shall do so on the basis of the principles specified in Schedule 1 to these Regulations.

5.(1) Every employer shall make and give effect to such arrangements as are appropriate, having regard to the nature of his activities and the size of his undertaking, for the effective planning, organisation, control, monitoring and review of the preventive and protective measures.

(2) Where the employer employs five or more employees, he shall record the arrangements referred to in paragraph (1).

  1. Every employer shall ensure that his employees are provided with such health surveillance as is appropriate having regard to the risks to their health and safety which are identified by the assessment.

7.(1) Every employer shall … appoint one or more competent persons to assist him in undertaking the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions…

SCHEDULE 1

GENERAL PRINCIPLES OF PREVENTION

[This Schedule specifies the general principles of prevention set out in Article 6(2) of Council Directive 89/391/EEC) for the purposes of regulation 4 above]

(a)avoiding risks;

(b)evaluating the risks which cannot be avoided;

(c)combating the risks at source;

(d)adapting the work to the individual, especially as regards the design of workplaces, the choice of work equipment and the choice of working and production methods, with a view, in particular, to alleviating monotonous work and work at a predetermined work-rate and to reducing their effect on health;

(e)adapting to technical progress;

(f)replacing the dangerous by the non-dangerous or the less dangerous;

(g)developing a coherent overall prevention policy which covers technology, organisation of work, working conditions, social relationships and the influence of factors relating to the working environment;

(h)giving collective protective measures priority over individual protective measures; and

(i)giving appropriate instructions to employees.[There are other specific regulations too numerous to set out here that deal with specific kinds of workplace and make specific provision, such as the Construction (Design and Management) Regulations 2015 (which, for example, by regulation 33, require the provision of adequate washing facilities.]

 

Employment Rights Act 1996

Section 44  Health and safety cases

(1)¬†¬†¬†¬† An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that‚ÄĒ

(a)     having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities,

(b)¬†¬†¬†¬† being a representative of workers on matters of health and safety at work or member of a safety committee‚ÄĒ

(i)     in accordance with arrangements established under or by virtue of any enactment, or

(ii)     by reason of being acknowledged as such by the employer,

the employee performed (or proposed to perform) a functions as such a representative or a member of such committee,

(ba)     the employee took part (or proposed to take part) in consultation with the employer pursuant to the Health and Safety (Consultation with Employees) Regulations 1996 or in an election of representatives of employee safety within the meaning of those Regulations (whether as a candidate or otherwise),

(c)¬†¬†¬†¬† being an employee at a place where‚ÄĒ

(i)     there was no such representative or safety committee, or

(ii)     there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means,

he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety,

(d)     in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or

(e)     in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

(2)     For the purposes of subsection (1)(e) whether steps which employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time.

(4)     . . . this section does not apply where the detriment in question amounts to dismissal (within the meaning of [Part X]).

[s.100 in Part X provides similar protections against dismissal for the above reasons which will be regarded as automatically unfair.]

 

[It should be noted that s.64  Employment Rights Act provides that, on certain triggering conditions, an employee who is suspended from work by his employer on medical grounds is entitled to be paid by his employer remuneration while he is so suspended for a period not exceeding twenty-six weeks. All that is necessary for the triggering conditions would be for the Secretary of State to designate ss. 2-4 Health and Safety at Work Act as the basis of then requiring the Health and Safety Executive to publish a Code of Practice under those sections requiring or advising employers to suspend workers where government advice was that they should self-isolate and not attend work. The government has elected not to use this obvious machinery.]

 

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Prof. Keith Ewing On The Coronavirus Job Retention Scheme

Professor Keith Ewing

By K D Ewing, Institute of Employment Rights

The government‚Äôs recently announced Coronavirus Job Retention Scheme was met with widespread approval.¬†¬† According to the government website, ‚Äėall UK employers with a PAYE scheme will be able to access support to continue paying part of their employees‚Äô salary for those that would otherwise have been laid off during this crisis‚Äô.

It is further explained that the scheme is to apply to ‚Äėall employees who have been asked to stop working, but who are being kept on the pay roll, otherwise described as ‚Äėfurloughed workers‚Äô‚Äô.¬†¬† Employers will be entitled to recover 80% of the wages of the workers covered by the scheme, up to ¬£2,500 per month.

Although initially applauded, questions are now being asked about the scheme. Overlooked, however, is its legal base.  There is no specific statutory authority or parliamentary approval for the expenditure involved.  This is despite reports from the IFS that it will cost at least £10 billion, even if only 10% of workers are affected, and even if it lasts for only the initial three months optimistically contemplated.   More workers and extended period, greater expense.

There is an important constitutional point here.¬† Textbooks tell us that in the British system both the raising and spending of money by government needs to be approved by Parliament.¬†¬† Approval for expenditure is done on an annual basis when departmental estimates are generally approved in advance, with unforeseen expenditure on a limited scale ‚Äď and not for projects as big as this – to be met by a slush fund called the Contingencies Fund.

The statutory authority for the Coronavirus Job Retention Scheme is wafer thin, relying on an extraordinary power in the Coronavirus Act 2020 authorising any expenditure incurred by a minister, government department or public authority ‚Äėas a result of coronavirus or coronavirus disease‚Äô.¬† The power is a general power unlimited as to the scale of the expenditure, and unrelated to the specific provisions of the Act.

It is, moreover, underpinned by the Contingencies Fund Act 2020 passed on the same day.  This increases the Contingencies Fund into which the government can dip its hands, from 2% to a whopping 50% of expenditure previously authorized by Parliament.    Yes, it is a time of crisis, when governments need to be indulged.  But as we know, times of crisis are when governments take powers that are never returned, and when bad practice takes root.

There are other reasons why constitutional propriety should be maintained:¬† this is not just about parliamentary authorisation of the funding, but also parliamentary scrutiny of the detail, which ought to have a statutory base.¬†¬† The scheme ‚Äď the substance of which is unpublished – applies only to ‚Äėemployees‚Äô who have been ‚Äėasked to stop working‚Äô, begging a number of questions that need a legislative response.

Parliament needs to be given an opportunity not only to approve and improve the scheme, but government needs also to address some of the following concerns:

  • ensure that the scheme applies not only to ‚Äėemployees‚Äô, but also at least to ‚Äėworkers‚Äô, and indeed the self-employed;
  • ensure that the scheme includes zero hours‚Äô contract and agency workers, addressing levels of entitlement and responsibility for making claims on behalf of workers;
  • the¬†amount of the wages guaranteed:¬† why have they settled on 80% up to ¬£2,500 a month, and is this adequate?
  • the relationship between this scheme and the guaranteed payments scheme in the Employment Rights Act 1996, which provides much lower levels of support;
  • the relationship between this scheme and statutory sick pay, provision for which was amended by the Coronavirus Act but which still provides much lower levels of support;
  • the meaning of wages or pay for the purposes of the scheme ‚Äď this is a complex question as litigation under the holiday pay provisions of the Working Time Regulations makes clear;
  • the application of the scheme not only to workers who are ‚Äėfurloughed‚Äô (to repeat the revealing Treasury term apparently used in investment banks and hedge funds), but also those who are taking a hit because they have been put on short time working;
  • procedures for the resolution of disputes and the imposition of criminal penalties where employers either defraud the scheme, or do not pass on the money to their workers;
  • any amendment to or termination of the scheme by the government, and guarantee the role of the TUC and CBI in any renegotiations – to embed social dialogue which must surely continue more generally when we rebuild post-crisis.

There are other questions Parliament ought to have been given an opportunity to deal with.   Should redundancy continue to be a permissible reason for dismissal where a worker agrees to the employer going on the scheme?   Should there be mandatory information and consultation procedures with employee representatives before an employer goes on the scheme? What would be the remedy where the employer failed to inform and consult?

This ought all to have been dealt with in the Coronavirus Act, which did deal with statutory sick pay, albeit inadequately.  The closure of Parliament means that neither approval nor accountability will now be possible for an indefinite period.  The least we need from government in the meantime is more context, transparency and explanation about the Coronavirus Job Retention Scheme than is currently provided on HMG website.

Crisis or not, government directly by the Treasury is unacceptable.

For a fuller account of some of the issues raised here, see A Bogg and M Ford, ‘Legislating in Times of Crisis: The Coronavirus Job Retention Scheme‚Äô, UK Labour Law Blog, 23rd March 2020, available at¬†https://wordpress.com/view/uklabourlawblog.com).

This blog is an updated version to the article which appeared in the Morning Star on 26th March.

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Neo-liberalism and deregulation have exposed the population to virus

By Adrian Weir, Assistant Secretary, Campaign for Trade Union Freedom

‚ÄúNeo-liberalism and the de-regulation of the labour market have dangerously exposed the whole population to the #COVID-19 virus‚ÄĚ ‚Äď Adrian Weir

Are we to be undone in our hour of need by a combination of forty years of neo-liberalism and the hegemonic belief in the rights of ‚Äúfreeborn Englishmen‚ÄĚ to more or less do as you please unfettered by overarching government restriction?

Certainly the crowds out and about in Snowdonia on Mothering Sunday, a record number of visitors apparently, show that messaging about social distancing is losing out to a misplaced belief in a right to be out and about in the countryside.

A belief that is encouraged by Prime Minister Boris Johnson who at his daily press conference can’t resist undermining social distancing by stressing his belief in freedom and liberty. In doing so he proves a point made in the broadsheets over the weekend that he’s really an over-educated newspaper columnist moonlighting as a prime minister.

The impact of neo-liberalism on the labour market means 1 in 10 UK workers now have precarious jobs ‚Äď including in the so-called ‚Äúgig‚ÄĚ economy ‚Äď that‚Äôs 3.2 million workers on zero hours, casual, bogus self-employed or temporary contracts. It‚Äôs for these workers that the unions are now pressing the government for urgent action on income protection.

Neo-liberalism also shut the door on the unions having a voice in government. For good or ill, prior to 1980 there were many tripartite bodies through which the unions could have warned the Government that its initial strategy of protecting Capital at the expense of working people was the road to ruin. The Government has had to play catch up in bringing in the TUC and affiliates.

The TUC led by Frances O’Grady and supported by members of the TUC EC secured a significant breakthrough last week in getting the government to shift away from exclusively acting to support business but doing nothing for workers.

As Lord Myners argued on the Today programme it’s not good enough to give business rate relief if the firm lays off workers, there needs to be pay packet protection.

Which is just what the TUC extracted from the Government last week. As TUC EC member and Unite Assistant General Secretary, Steve Turner, tweeted: ‚ÄúYou cannot overestimate the importance of this victory ‚Ķ 80% state support for wages backdated to 1 March! An alliance of industrial and political voices led by trade unions ‚Ķ‚ÄĚ

Clearly action is need for those already sacked before this breakthrough, Turner again: ‚ÄúWith pay protection now secured for employees we move onto ‚Ķ the reinstatement of those already on forced lay off ‚Ķ only strong unions can do this.‚ÄĚ

This week the unions will be pressing the Government for more; support for the 3.2 million workers on precarious contacts and the self-employed and action on the pitifully low level of SSP, currently set at £94.25 a week. Unite issued a statement on Sunday making just these points:

‚ÄúUnite is absolutely standing with all workers, regardless of how they fill in their tax return. Our leaders and officers are working with the Treasury to get solution for the self-employed, for better SSP, for day one benefits. No worker can be left behind‚ÄĚ.

With no adequate or proper income protection those in the precarious sector will have no option but to go to work, even if ill; spreading the virus and with no alternative but to contribute to making an already bad situation worse.

Although the unions are having some success in winning some measures on pay packet protection from a hesitant Government we must remember that the Government’s first and natural instinct was to protect the interests of Capital and not Labour.

So although the fight against coronavirus is the political issue of the moment the Government has not let up on its other projects. Last week, with little fanfare, it published its Trade Bill setting out its position on post EU trade deals.

The briefing provided by the Institute for Government suggests that this is an innocuous measure. It says that the Bill will: first, to allow the UK to be a member of the agreement on government procurement (GPA), a¬†World Trade Organization¬†(WTO) arrangement which the UK is party to via the EU; second, to establish a UK-only Trade Remedy Authority (TRA) ‚Ķ and, third, to implement the EU trade deals which the UK is currently ‚Äėrolling over‚Äô ‚Ķ

All of which may or may not be true but the big issue is really that the Bill will allow the Government to negotiate new trade agreements with no parliamentary scrutiny whatsoever. Clearly is has learnt from the social movement mobilisation, including the unions, against TTIP and CETA particularly and now believes that if it can keep the whole process shielded from public and parliamentary gaze it can sign away whatever it likes.

At the height of the COVID-19 pandemic the idea that our Government could, in secret, sign away our NHS to US health care corporations shows that the battle between the 1% and us, the 99%, has not diminished just because of the current health emergency.

Further, the Government published last week the emergency powers it intends to take with the Coronavirus Bill 2019-21. The Bill provides no provision for income protection ‚Äď this is being negotiated separately by the TUC and the Treasury. In the¬†Morning Star¬†John Hendy QC has analysed the Bill‚Äôs shortcomings in connection with SSP and also makes the general point that the Bill will give to the Government ‚Äúdraconian powers.‚ÄĚ

Although it may be anyone’s guess how long the pandemic may last, the Government intends to take emergency powers that will last for two years, quite possibly well after the pandemic has subsided. When there was a real war, against nazi Germany and its allies in 1939/45, the Government’s emergency powers had to be renewed annually by Parliament.

A second difference between now and in the real war was the emergency powers during the Second World War allowed the government to requisition property. The current Government though is only interested in the regulation of people, for example the detention of infectious persons. Absent from the Bill is any infringement on the so-called rights of the holders of private property.

The libertarianism associated with neo-liberalism has limited the fight against COVID-19. Neo-liberalism and the consequent de-regulation of the labour market have dangerously exposed the whole population to the virus. Even at the height of this battle the Government has shown that it’s quite prepared to legislate for the 1% and against the interests of the 99%.

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Government must extend wage assistance to¬†help construction’s million plus bogus self-employed

Gail Cartmail Unite AGS

Unite, the UK’s construction union, is calling on the government to extend its wage support scheme announced last on 20th March, to protect the million plus workers trapped in bogus self-employment in the building industry, during the coronavirus crisis.

Unite is in the process of urging the government to extend its wage scheme to immediately cover workers paid via the Construction Industry Scheme (CIS) and those paid via umbrella companies and payroll companies.

A Freedom of Information request made by Unite last year found that 1.03 million construction workers were paid via the CIS scheme in 2018/19, the vast majority were bogusly self-employed and paid on a weekly basis. A further 300,000 construction workers are paid via umbrella companies.

Prior to the government’s employee assistance scheme being announced, Unite recommended that all self-employed workers who are taxed at source (which would encompass CIS workers) be treated as workers, and all workers including those paid by CIS, should be considered to be employees for the purpose of the scheme.

With construction sites in the UK already reducing the number of workers employed as a result of the coronavirus crisis, and further closures expected in the coming weeks and months, urgent action is needed to protect these workers who are denied even the most basic employment rights.

The situation in construction is made even more precarious since the vast majority of major contractors employ few if any construction workers on their sites. Instead work is sub-contracted (often repeatedly) and workers are recruited via labour supply companies or agencies. If the decision is taken to close or mothball a site, the main contractor has no direct employment responsibility for the workforce.

Unite assistant general secretary Gail Cartmail said: “The UK’s bricklayers, carpenters, electricians and plumbers will be deeply worried that if they are officially self-employed they will not be protected by the government’s scheme.

 “Most construction workers are the primary breadwinners in their family and swift action is needed to ensure that they are protected throughout the coronavirus crisis.

 “Over half of the industry is officially self-employed, with most of those bogusly self-employed. This is part of the hire and fire culture existing in construction which results in workers being dumped without warning or compensation during downturns.

 “In the short term the million plus workers paid via the Construction Industry  Scheme (CIS) and the 300,000 plus workers paid through umbrella companies must be brought into the scope of the government’s wage support scheme and Unite will be lobbying government to ensure that occurs.

¬†‚ÄúIn the long term a commission is needed into construction employment to ensure that workers who survive on a feast and famine existence secure proper employment protections.‚ÄĚ

The need for government intervention has been heightened as the industry has metaphorically washed its hands of the crisis.

 In early March, Unite contacted the industry and asked that the qualifying time on industry sick pay was waived during the crisis, so workers who were ill or needed to self-isolate as a precaution could do so and not infect others.

The reasonable and modest request has been rejected or ignored by the employers on all the construction industrial agreements. For example the JIB electrical agreement replied: ‚ÄúWhilst we appreciate the reasons behind your request, we cannot agree to an unfunded and potentially open-ended increase to JIB employers‚Äô costs.‚ÄĚ

Gail Cartmail, added:¬†‚ÄúOnce again we have been provided with a clear example of how the industry does not take the welfare of its workers seriously, with profits rather than people being its bottom line.‚ÄĚ


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McCluskey: Chancellor’s Measures ‘Historic, Bold And Very Much Necessary’

Frances O’Grady and Len McCluskey

Following¬†the announcement on March 20th by the Chancellor Rishi Sunak of measures to direct state money to millions of UK workers in order to fend off economic collapse, the leader of Unite the union has described the measures as¬†‘historic, bold and very much necessary’.

The general secretary of Unite the union said:¬†¬†“This is the package of measures that trade unions like Unite have been pressing for as the most effective way to stave off mass hardship and the conditions for a depression.¬†¬†

“We recognise that these are huge decisions for any¬†government, and especially for a Conservative government, but they have listened to the calls for action and have acted appropriately.¬†¬†Rishi Sunak’s¬†wage support measures are a historic first for this country, but are bold and very much necessary.¬†¬†

“The key to any wage support programme is that it needs to be simple, straightforward and above all fast.¬† This is the only way to put money into the pockets of the millions who see their livelihoods hanging by a thread.

“The will definitely be some relief amid all the fear in households across the UK this evening.¬† Never before has the country faced a crisis of this nature.¬†¬†People who were only days ago¬†in secure work are now¬†worried sick about putting food in light of the coronavirus pandemic.¬† The chancellor has done the right thing and we look forward to working further with him in the coming days to get this money into the hands of those most in need.”

A similar message was published by Frances O’Grady General Secretary of the TUC who said: Frances O’Grady said: 

“This is a breakthrough. The Chancellor has shown real leadership. We’re glad he has listened to unions and taken vital steps to support working families.

“Large-scale wages subsidies are the best way to boost household finances and keep businesses running. And they’ll help our economy bounce back after this crisis.

‚ÄúEmployers across the economy can now be confident that they will be able to pay their wages bills. They must urgently reassure their staff that their jobs and livelihoods are safe. Unions will continue to work with business and government to protect jobs and livelihoods.‚ÄĚ

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