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Ruth Dukes: The White Paper, Employment Rights and Employment Relations

The independence white paper contains a number of significant policy pronouncements and legislative commitments in the field of employment rights and employment relations.  Insofar as it relates to the world of work, the white paper is striking for its emphasis of greater substantive equality as a key policy goal, for its recognition of the importance of employees’ rights in achieving that goal, and for the stated readiness of the Government to commit itself to involving trade unions and employers in government, recognising ‘the positive role that can be played by collective bargaining’.  In each of these respects, the authors of the white paper have put clear blue water between themselves and the ConDems in Westminster.  When called upon to address the existence of inequalities in British society, David Cameron and other Ministers have tended to limit themselves to recognition of the importance of equality of opportunity.  As part of an on-going employment law review, the ConDems have weakened existing employment rights, arguing, for example, that to guarantee a measure of job security to workers can be damaging to the economy because it hinders the ability of employers to hire new staff.   They have threatened trade unions quite regularly with a tightening of restrictions on the right to strike;  restrictions which amount already in their current form to breaches of the UK’s obligations under international law to guarantee workers’ rights to freedom of association.      

 Information relating to the Scottish Government’s priorities and objectives in the field of employment is contained, for the most part, in chapter 3 of the white paper, Finance and the Economy.  The headline message here is that the Government is strongly committed both to growing the economy and to combating inequality.  Time and again it highlights the importance of economic growth and competitiveness and, time and again, it emphasizes the need to take steps to tackle long-standing inequalities, both social and regional.  ‘Growth and competitiveness are important’ the Government writes, but so are ‘the characteristics of growth and the distribution of its benefits’.  Substantive inequalities between the rich and the poor, between those living in wealthy communities and those in deprived areas, are described as damaging in and of themselves, and restrictive of growth in the long term.  The chapter goes on to identify paid work – jobs – as key to the achievement of economic growth and a more equal society.  But it clarifies early on that the jobs it has in mind are not low-paid or insecure (precarious), but quite specifically both ‘sustainable’ and ‘fairly rewarded’. 

 How will the Government ensure the creation of secure and well-paid jobs?  Here, there is emphasis on the benefits that independence would bring in allowing for a coherent approach to labour market regulation: tax and welfare, education and training, and other employment-related policies should all be aligned in furtherance of the objective of ‘full-employment’ (my emphasis).  With the aim of ensuring that Scottish companies can compete with others, there is a commitment to set corporation tax at 3% points below the UK level.  In the interests of combating inequality, but also with a view to increasing labour market participation among women with young children, there is a commitment to provide 30 hours per week free childcare for all children aged over one.  In recognition of the particular problems faced by young people in the current economic climate, there is a commitment to guarantee a – constitutionally protected – right to education, training, or employment to all those aged 24 or younger. 

In terms of what might be labelled employment law proper, concrete legislative proposals or commitments are made in respect of four matters of concern to the Government: wages, employment security, gender equality, and union or worker participation.  In line with its identification of ‘fairly-rewarded’ jobs as a key means of combating inequality, a firm commitment is made to ensuring that the minimum wage rises at least in line with inflation.  To that end, the Government proposes the creation of a Fair Work Commission, comprising representatives of business, trade unions, and wider society, to advise the government on the minimum wage and other matters.  It also undertakes to continue to support and promote the living wage.  ‘Achieving fair levels of pay’, writes the Government, ‘is a fundamental aspect of building a more equal, socially just society’.  With an eye to improving employment security, the Government states that it would reverse changes to the law made in recent years by the ConDems in Westminster: for example, it would restore the 90 day consultation period for collective redundancies, and abolish the ‘shares for rights’ scheme.  Employment regulation must balance the twin objectives, it suggests, of protecting the rights of employees and encouraging companies to grow and create good quality jobs.  In furtherance of gender equality, the Government commits itself to consulting on the introduction of a quota for female representation on company and public boards. 

In some of the most striking passages in chapter 3, the Government declares its wish to involve trade unions and workers in government, and in the management of companies.  This declaration of intent is remarkable in and of itself.  Since the advent of New Labour, politicians of the centre left as well as the centre right in the UK have, for the most part, been unwilling or reticent to acknowledge trade unions as a force for good in society.  Though the Blair and Brown Governments consulted trade unions and employers more readily than the Conservatives before them, they did very little by way of reintroducing elements of tripartism or corporatism into their administrations, such as had been characteristic of the UK in the decades after the second world war.  (The Low Pay Commission would figure as an exception.)  To date, the current leadership of the Labour Party under Miliband has said nothing to suggest that it would act any differently.    

In chapter 3 of the white paper, in contrast, a foremost ‘priority for action’ is said to be ‘to work directly with the trade unions, employers associations, employers and the voluntary sector to build a partnership approach to addressing labour market challenges’.  A particular focus of Government collaboration with these groups would lie, it is said, with ‘encouraging wider trade union participation… in recognition of the positive role that can be played by collective bargaining in improving labour market conditions’.  Whether such encouragement would be understood to necessitate changes to the current law regulating union recognition, collective bargaining, and the right to strike is not spelled out, though there is elsewhere in the white paper (chapter 10) a firm commitment to honour international obligations on equality and human rights, which would include freedom of association.  In furtherance of its desired ‘partnership approach’, the Government proposes the creation of a ‘National Convention on Employment and Labour Relations’: a forum for ‘direct and constructive dialogue’ on labour market regulation and other employment-related policies.  It also commits itself to consulting on the introduction of employee representation on company boards, the question of precisely what this would involve being a matter for the future consultation.    

For the moment, these proposals are short on detail.  Whether they could be made to work in practice – whether the National Convention could develop into an effective policy-making body, giving workers a real voice in the formation of employment law and labour market regulation; whether ‘employee representation on company boards’ would take a form which allowed workers to influence decision-making – may depend ultimately on whether the Government is willing and able to take steps to force reluctant employers to play ball.  As recent events in Grangemouth illustrate, neither willingness nor ability in this regard should be assumed. 

Ruth Dukes is a senior lecturer in labour law at the University of Glasgow.

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