03/05/2017 08:45 BST | Updated 03/05/2017 08:46 BST

Radical Reform Of Collective Labour Law In Scotland - Looking At The Options

The scale of this challenge is on a par with that facing the British-wide unions supporting the Manifesto and seeking its implementation throughout Britain.


Last summer, the Institute of Employment Rights launched its A Manifesto for Labour Law. The policy recommendations contained therein have attracted support from many Labour politicians and almost all major unions.

The premise of A Manifesto for Labour Law is to shift the focus of labour law from statutory minimum rights to collective bargaining, allowing workers to organise and negotiate for higher wages and conditions within not only their companies but across entire sectors. Such sectoral collective bargaining could lead to wage and condition floors being set across industries, which can be built on at company level. This should lead to higher pay and better conditions, adding to workers' job security and income. What this amounts to is using the law as an enabler rather than being wholly reliant upon it to deliver protection whilst recognising that without strong unions, individual employment rights are too difficult to enforce at a workplace level. Moreover, it also recognises that too strong a focus on individual employment rights wrongly suggests the only role of the state is to enforce minimum standards with everything else left to determination by the market.

However, A Manifesto for Labour Law also recommends that the definition of the legal term 'worker' is reviewed so that all workers are covered no matter the attempts to impose the bogus status of 'self-employed' upon them and that the repercussions for those employers who break the rules are both punitive and deterrent in nature. Part of this would involve rebuilding the regime of regulation and enforcement through having labour inspectors within workplaces to make sure the law is followed, labour courts specifically focused on employment cases, and sanctioning unscrupulous employers including through criminal proceedings.

The extent and coverage of union recognition and collective bargaining have fallen in Britain over the last thirty years as employers and the state have attacked them. The consequence has been workers in Britain work longer hours for less pay than in most other competitor economies in western Europe.

Detailed proposals

The following are the key detailed proposals to be found in the Manifesto:

• Establishing a Ministry of Labour, a Labour Court and a National Economic Forum

• The Ministry of Labour should establish Sectoral Employment Commissions with responsibilities including to promote and negotiate Sectoral Collective Agreements, set minimum terms and conditions of employment, mechanisms for the resolution of collective and individual disputes, and health and safety standards for the sector as a whole;

• Regulatory legislation should underpin collective bargaining on a range of matters such as pay, working time (including zero hours contracts), discrimination, equality, and health and safety at work. Existing statutory standards should be universal in scope and effective in application;

Gaining implementation

The IER has previously produced wide-ranging proposals for the radical reform of labour law. The contents of the Manifesto have many of the same components of these, showing, on the one hand, the IER has stood steadfast in its perspective of the need for radical change, and on the other, the lack of progressive change as well as the continued backward march of progress. Of its activities, the Trade Union Freedom Bill in the late 2000s (in both its incarnations) was the only proposal to make it directly to the floor of Parliament via John McDonnell's Private Members' Bill.

This indicates the easiest part of gaining support for new proposals is to garner validation from existing progressive unions and politicians. But while this is necessary, it is not sufficient for seeing the implementation of the Manifesto in terms of i) making it on the statute book; and ii) being subsequently enforced by the state.

The scale of the task is such that the union movement needs to be considerably stronger than it currently is in order to gain such an objective, and that is said without taking into account the present situation found with regard to the Labour Party (its poor poll ratings, attacks on Corbyn's leadership and so on in the run up to the 8 June general election). To put it bluntly, the union movement needs to be as strong as it was in the late 1960s/early 1970s when it was capable of defeating two sets of government proposals on industrial relations laws (In Place of Strife, Industrial Relations Act 1971). Argument and evidence - as that represented by the Manifesto - are important in helping to play a part in the process of building such leverage and power but evidence on its own will not compel legislative change. At best, evidence and argument can help raise consciousness and confidence of workers when they are in engaged in mass, collective struggle.

Situation in Scotland

At one level, and as already alluded to, the prospect for implementing the Manifesto in Scotland is no more auspicious than it is south of the border - certainly in the short- to medium-term. As is widely known, employment law is a reserved matter (for Westminster and not Holyrood) and, somewhat more contentiously for some, the SNP in office as the Scottish Government since 2007 has not shown itself to be a radical or reforming administration. For example, its major initiative in regard of employment relations, the Fair Work Framework, has no statutory or regulatory underpinning so that no matter its good intentions it has no powers to be enforced. This has meant that on major Scottish Government or publicly funding building projects like the Southern General Hospital in Glasgow, the new Forth Road Bridge and the new Dumfries hospital of new Dumfries and Galloway NHS , for example, unions have been denied access to workers to recruit and represent them and worker representatives have been subject to blacklisting (which goes against the spirit and letter of the Fair Work Framework). Public procurement, in these examples, give the Scottish Government more than enough leeway to insist upon minimum conditions of employment without acting out with any devolved powers it has on employment law matters. This is, however, entirely in keeping with the SNP's non-interventionist, voluntarist approach to matters of employment relations. So currently, neither the legal framework nor the (mainstream) political will exists to implement the Manifesto. It also shows how unwilling the SNP Scottish Government has been to act when contrasted with the much greater activity and actions of the Welsh Assembly Government on similar matters.

However, the possibility exists that in the longer-term under independence that the Manifesto could be implemented. With full power on matters of employment law and employment relations, a Scottish Parliament could decide to do so. The issue then becomes one of political will. Again the nature of the SNP is paramount here. If the SNP continues to be the main force arguing for an independent Scotland, and if the SNP was to form the first governments under an independent Scotland neither would the ideas contained in the Manifesto get a proper hearing and consideration nor would they be implemented. This is all the more so if the SNP sought to return Scotland after independence to membership of the neo-liberal dominated European Union. So the challenge for those within Scotland who support independence is to command an alternative and socially progressive vision for a new type of society. The scale of this challenge is on a par with that facing the British-wide unions supporting the Manifesto and seeking its implementation throughout Britain.

A full version of this paper can be found here.