A charter for workers’ rights in Scotland: developing devolution

The Jimmy Reid Foundation made this submission to the Institute of Employment Rights

The Jimmy Reid Foundation, with 11 affiliates from the major unions in Scotland and an interest and expertise in matters of employment relations, welcomes the publication of the Institute of Employment Rights (IER) draft Charter of Workers’ Rights as an attempt to help turn the stated intentions from the SNP Scottish Government into more concrete actions in the context of the advance of neo-liberalism and the SNP’s clear preference for national action plans and strategies which are devoid of sufficient compulsion and resources to ensure effective implementation. For example, the number of employers that, as of April 2019, have signed up to the voluntary Scottish Business Pledge (involving paying the independent Living Wage and not using zero-hour contracts) is just 624, covering 112,510 workers, representing just 4.5% of all jobs in Scotland and 0.4% of the registered business base in Scotland after being launched in 2015. Rather belatedly, the SNP Scottish Government has put some meat on the bones of its Fair Work Framework by setting out Fair Work First in terms of compelling employers in receipt of public funds to adopt certain employment standards and practices.

We see that the strengths of the Charter are that, whilst recognising the limitations of employment matters still being reserved business, the Charter seeks to advance the cause of workers within this framework. To do anything other – like accepting the status quo or arguing for changes that can only at the moment and for the foreseeable future be made at Westminster – would be foolhardy. We also see the strengths of the Charter in trying not only to extend the degree of Scottish Government intervention (including gaining or compelling employer support and involvement in the process) but also in tightly monitoring and measuring the outcomes stemming from this suggested enhanced intervention. We see the Charter in this regard as an attempt to push forward the Scottish Government in a way comparable to the Fair Work First initiative but with more urgency and drive. Finally, we also note favourably that the Charter proposes a ‘coercive element’ in doing so in contrast to the Scottish Government’s overwhelming reliance on voluntary means.

However, we would suggest that the Charter reflects on what we believe to be four critical points.

First, in advocating an enhanced form of social dialogue like that found in continental western Europe, there is a potential danger that unions and their resources (personnel etc.) are sucked into an extended form of consultation with the Scottish Government that – pound for pound of resources – delivers relatively little. It is the experience of the STUC since devolution that it has become over-committed to involving itself in this activity with the effect that this has skewed the way in which it expends its resources. Either the Scottish Government should be asked to provide further resources to the STUC in order to engage in this activity or the proffered processes and outcomes of this activity need to be moved from those based around consultation to those based around negotiation.

Second, the Charter would benefit from examining the experience of the Welsh Assembly Government on workers’ rights in regard of the Trade Union Act 2016, blacklisting and public procurement and so on because, it would prima facie seem, that the government in Wales has done more here than the Scottish Government has done in Scotland but with seemingly less powers and resources.

Third, the Charter should give specific attention to the implications of the devolution of employment law to Scotland because, while most unions support this policy in principle, very little work has been carried out on what this might mean in practice. Other than on the issue of, say, employment tribunals, the range of issue and aspects that could be devolved has not been extensively discussed and what form these employment rights should take in terms of being individual or collective rights and whether this would also include equalities legislation (which covers services as well as employment).

And, finally, the call for a right to engage in sectoral bargaining (as with the Manifesto for Labour Law published by the IER in 2016) is to be welcomed. However, if this is to ensure that advances are made, it requires to be accompanied by an increase in union density and organisation in the workplaces covered by the sectoral bargaining. In other words, unions require to have the necessary leverage to gain good bargaining outcomes. It is for this reason that we suggest the Charter considers the proposals for a union default (see Harcourt, M., Gall, G., Kumar, R.V., and Croucher, R. (2019) ‘A union default: A policy proposal to raise union membership’, Industrial Law Journal, 48/1:66-97) or auto-enrolment (see Dromey, J. (2018) Power to the People: How stronger unions can deliver economic justice, IPPR, London), especially because the proposals on union access to workplaces to recruit and organise, in a decentralised industrial relations system, where employers hold the whip hand, will be difficult to realise. In making this suggestion, we acknowledge that there may be practical issues and potential problems associated with auto-enrolment that may have to be considered, including the issue of a mechanism to determine which unions workers in particular sectors should be auto-enrolled to and how the potential for inter-union disputes over membership might be avoided.