Friday 14 January 2011

Dave and Employment Law

Guest post by Lawrence Shaw, NUJ Assistant Organiser (North and Midlands of England). Personal capacity.

Does anyone recall the momentous day in the spring of 2008 when the Tories hired an envoy to approach trade unions after more than 25 years of not talking to each other?

This trivial shift of posture was exaggeratingly hailed as a major change in Conservative Party ideology. No longer did “the old antagonisms” between the Tories and the unions exist, the corpulent Eric Pickles told a bemused Tory conference in Manchester in 2009. The appointed Tory emissary Richard Balfe spoke in glowing terms of unions as “great voluntary organisations” and assured union leaders in cosy private meetings that there were “
no plans” to change employment law.

Justifying himself, Balfe drew on the many
criticisms made of New Labour's approach to employment law that came from within the union ranks. He argued that as Labour was so bad to unions the Tories couldn’t possibly be any worse – somewhat ironically a very similar position to that taken by ultra-left parties and sects.

Now, less than a year after the general election, huge strikes loom large, the Tories want to weaken employment law and the trade union envoy who assured us everything would be OK is nowhere to be seen. Intriguingly, Balfe now doesn’t even like to mention his time as the Tory trade union envoy
on his CV.

Senior Tories like Boris Johnson are openly salivating at the prospect of further restricting some of the most restrictive laws on taking industrial action to have ever existed in the developed world, seemingly ignorant of the fact our un-elected judiciary
has been doing the job already over the past few years.

Outrageously, the Tories also
plan to double the length of employment service required for individuals being able to claim unfair dismissal at a tribunal.

This will mean that anyone in a job for less than two years can be sacked for no reason, with no legal recourse or compensation available whatsoever. The fact they may have up to 23 and half months unblemished, loyal service will matter not a jot.

It also leaves the sacked worker potentially
unable to claim jobseekers benefits for up to 6 months following dismissal. As for the private mortgage or income protection insurance people buy into, it is always hidden in the small print that in the event of a “dismissal for misconduct” the insurer is not obliged to pay out. And, of course, all-important references to try to secure future employment are impossible to obtain so people often have to pretend they haven’t been working at all. Anyone who has ever faced this situation knows that longer the gap on your CV, the more difficult it becomes to disguise where you have been and that you got sacked.

An unfair and unjustified sacking on the abstract grounds of “misconduct”, especially at a time when jobs are scarce, can quickly throw an individual or a family from relative security straight over the edge of the precipice into poverty and destitution. I have seen it happen to people, and it can often affect individuals more deeply and fundamentally than a violent crime or chronic health problem.

The ludicrous justification put forward by Cameron for planning to raise the threshold is to limit the number of “vexatious claims” that go in front of the employment tribunals and, in doing so, make it “easier for employers to hire people”.

Not one shred of statistical or analytical evidence that stands up to any scrutiny has been put forward by him, or anyone else, to back up this wild claim.

As the TUC has correctly pointed out, the move to raise the unfair dismissal threshold will not create a single job. There are no crowds of entrepreneurs and investors waiting for the unfair dismissal threshold to rise to two years before they rush in and splash the cash in a jobs-creation bonanza. The estimated
£600bn record corporate cash surplus sitting idly in the banks isn’t going to be freed up and invested in the country because you can sack workers a bit easier.

There is even an argument that making it easier to sack people actually goes against the hallowed labour market flexibility and social mobility that neo-liberals venerate. People are less likely to risk the upheaval of moving to another employer as they lose rights and face a longer period of insecurity, and end up staying in a job where at least they know they are relatively safe from sacking, meaning the natural churn of the job market slows.

The one-year threshold that currently exists is, in itself, an on-going national scandal. Only yesterday I was contacted by a union member concerned at the number of casual staff being taken on at his workplace. After completing 10 months service the casuals are forced to take a one month unpaid “sabbatical” - sacked to anyone else - then taken on in the same job again once the continuous service is sufficiently broken.

It is abundantly clear through examples like this that employers can easily find routes and loopholes around existing laws if they are so minded to do so. So what is the real rationale behind Cameron’s plans?

In weakening employment law, Cameron wants to send a message to employers that they can get away with being unfair towards their staff. This is because he wants to create a greater climate of fear amongst people considering fighting back. Worried that the on-going political demonstrations flaring up are likely to spill over into the workplace, Cameron now wants to put fear in the minds of individual employees, particularly younger people who are unlikely to have continuous employment of more than two years. The message coming down from on high is that daring to question anything you are told to do by authority – be it from the state or from your management - will see you out of a job and destitute. And that you can basically forget about getting any sort of retrospective justice, even if you’re innocent.

Quite how all this squares with the Lib Dems assurances on delivering “fairness” prior to the election remains to be seen.

It’s true to say that New Labour's improvements to employment laws and rights were imperfect and in many cases only implemented because of European pressure rather than through any genuine desire by Tony Blair to help ordinary workers.

But there were significant improvements nonetheless, and improvements that have made things fairer for people at work and for union reps. To dismiss them now as minor is to wilfully ignore the reality facing union reps and officials on the front line fighting for every job. The many real improvements we have seen since 1997 are all now very clearly under threat.

People join unions, in the main, for protection from bad treatment at work. It is the bread and butter of trade unionism, and what ties up the vast majority of union officials – both paid and voluntary - on a day-to-day basis. The ultra-left mantra that full-time union officials simply sit there colluding with managers to preserve capitalism is not based in reality. Fact is that four days out of five, all officials I work with and know are tied up in lengthy and complex talks over individual and collective situations to try to win justice for members, spending whatever time remains trying to organise and encourage demoralised members to collectively fight back against constant attack.

Our ability to protect union members on a day to day basis relies on both the law AND the wider general political climate which is why the number one priority for trade unionists and socialists must be to get the Tories out of office and a new government elected on a clear mandate of protecting existing employment laws, and improving them in the future.

The lies being peddled by Cameron on the unfair dismissal threshold cannot be justified on any factual or scientific basis and the plans will negatively affect all workers at all levels, from headmaster to classroom assistant, from Michelin-starred chef to McDonald’s staffer. The Labour party would be pushing at an open door to highlight and build widespread opposition to this straightforward workplace injustice that cannot be seriously defended, and should be doing so as a key priority. That is, if the Labour party wishes again to solidify a base amongst the very many politically aware trade unionists in workplaces across the country.


Neil Singh said...

What the ConDems fail to realise is that without legal recourse workers will be eventually forced into leveraging their labour power and taking industrial action. This action proves the idea of "partnership" is a busted flush, and that rather than maintaining a more equiable balance of power in the workplace employers are inexorably drawn to seek greater power and control, not realising that this ultimatley leaves workers little choice but to take their struggle from the legal arena to the industrial arena.

Alex Dawson said...

Hi Neil

I think what you say can be true to an extent in terms of larger workplaces.

However, where there is already a recognised union, it is unusual for managements to just sack people for nothing as, in my experience, union branches will just not stand for it.

I am more concerned about what happens in those multitude of small sized companies of less than 50 people - the ones where everyone knows the gaffer personally and suddenly the theoretical class distinctions become far more blurred and, in some cases, completely invisible.

In places like this, which ultimately are replacing the mega-sized workplaces in this country thanks to mass de-industrialisation and massive capitalist disinvestment in the UK, people are left relying on the legal minimums for most of their rights, with many having union membership in order to enforce those rights when necessary.

I don't know about the CWU, but the NUJ has a hell of a lot of "sole" members - working for tiny companies of about five people who are not really in a position to start calling strike actions in the face of unfair treatment.

They rely on regulation and legislation to keep their managements in line. This is why we have to fight through the political channels available to keep what rights we have. Waiting for the wider working class to rise-up and form a new party to overthrow the system is not really going to help the present situation for many if Cameron starts rolling back rights at work.

So trade unionists will need to be smarter and consider what else can be done in the coming period - both legally and in terms of other pressure.

The NUJ did it in the late 80s and early 90s when there were hardly any employment rights for people and no legal rights to enforce union recognition. The working class didn't rise up in the "red 90s" as we well know - but New Labour did come to power and deliver quite a number of key rights as I have outlined.

The union grew in power as a result which is why we are in far, far stronger industrial and financial position now than we were in the mid-90s.

Now those rights are under threat and therefore so is the union itself.

My point is get rid of the Tories first and let's be honest, the only way that's going to happen is when Labour gets back into government. Then we can start planning how we progress things, and try to do it better than last time around.

Until then we are on the defensive and defensive tactics means using any means at your disposal.

Some may call it lesser-evilism. I call it pragmatism.

I hope you got my phone message btw!


Anonymous said...

I think the Tories are trying to manouvre the enemy (ie protesters + workers) and the 'battle' onto ground which is more comfortable for them - because 'there is no alternative' and 'we're all in it together' have massively failed. They need something else to bolster their public image.

As much as Cameron may genuinely want to re-write union laws though, these ideas may well fall foul of the EU and thus there is every chance this development is a red herring - ie the Tories already know these proposals are unlikely to be implemented. So the value of this development is more PR than anything else - instead of tories = kiddie kettling millionaires vs decent squeezed middle, its now tories = protectors of uk economy vs militant union trots holding back recovery etc. l

Regardless of how real the prospect of these regs becoming law, I think the tories need calling out for this. What are the facts - how many workers are accused of misconduct in the first year? Why does UK need more anti-union laws when we already have the most strict? If the unions/workers jump straight into loud, angry demo mode, this could allow Cameron to do his calm, smarmy 'in control' PR stuff.

The other point that occurs to me, is that the Tories must be worried that unemployment will rise higher than anticipated. So they want to get in first and demonise the workers. The restrictions they want are after all, a kind of twisted counter-argument of the 'right to work. ie 'a right for employers to put people out of work'(by any means and without recompense).

Chris said...

Good article.

What are seeing right now is a class project as far as I am concerned and not some nutty manifestation of right wing populism. A systematic attack on workers rights is taking place and this kind of attack is best done in a climate of fear and despair. This is where right wing populism comes into its own, it helps divide and rule, and it helps to retard the workers. Right wing populism has never been the project but the useful tool to accompany the project.

But we must recognise that the cards are stacked heavily in the bosses favour and this makes defeat likely, though not inevitable of course. For example, in the council where I work the redundancies are not all coming on one fateful day, they are being staggered, with months going by until the next wave. What we are seeing are various reviews of services, these reviews have differing timetables. Some reviews have finished and people have been made redundant. Others are in the middle of the process and will not been finalised until the end of March. So because workers are being fired at different stages, because people are being offered their posts at lower salary scales the unions are unable to unify all the workers. Next year alone my authority has to find £33 million worth of cuts, this is over £3 million worse than we had forecast, Despite what the mouthpieces of big capital tell you, the cuts are worse than predicted in local authorities and the biggest cuts are in the most deprived areas.

The Tories may pay a heavy price for this in some future election but the reality is that by the time that happens they will have achieved what they set out to do and they know this. I think the Tory leadership are delighted with the pace of ‘progress’. The all out assault on public services has begun, what we are seeing is an attack on progress and NOT, I repeat NOT an attack on inefficiency.

The conclusion from all of this is that workers can only ever be free once they themselves become the bosses.

Boffy said...

In the end the demand and supply for Labour-Power determines. Despite the fact, that only a Minority of workers are in unions, and only a minority of that minority are active, or ever come to taking action, workers wages overall do rise. If the Tories policies resulted in a higher rate of profit, more people would want to set up in business - including some workers - and companies would want to employ more workers. The icnreased demand or Labour Power, and possibly reduced Supply, would automatically push up wages, and facilitate workers getting better conditions. How efrfective this process is depends on whether there is a lot of unemployment - and whether those unemployed are of any use to employers.

Also, in the end, the USSR shows that, where workers are denied th opportunity to express grievances, bargain effectively, the Supply of Labour Power gets reduced by other means, absenteeism, low productivity, sabotage etc. This tends to be worse for Capital, particularly Capital that has invested considerabvle sums in equipment, and educating workers than is orderly industrial relations regulated through a union structure with collective bargaining largely under the control of a Trade Union bureaucracy. That is why even during the 1980's, Big Capital attempted to strengthen the union bureaucrats and to negotiate, single union agreements, rather than to smash union organisation altogether.

As, Talen says, in his new book,

“Karl Marx, a visionary, figured out that you can control a slave much better by convincing him he is an employee.”

Fundamental to that is that workers are misled to believe that they are free agents. The more you convince them that they have no effective rights, that they are little better than slaves, the more that illusion, and the basis of the system breaks down. Its another example of the right-wing populist, petit-bourgeois, small mindedness of the Tories.

Boffy said...

The Tories would perhaps do well to look at what lessons Egypt and Tunisia provides them about what the absence of basic bourgeois democratic rights, such as effective Trade Unions capable of engaging in collective bargaining in order to channel workers anger, leads to.

Benjamin Hynes said...

I was completely unaware these movements were being made by the government. These employment law reforms are worrying and definitely make one think twice about moving to a new job. That said, regardless of the current employmant laws employers will always find a way around the 'red tape' for their benefit.