By Owen Tudor
What does the government claim it wants to do?
The government has been remarkably tight-lipped about its plans for Social Europe, but we know from the occasional slip, the lobbying employers are doing, and feedback from colleagues in governments and unions across the European Union, that the government has three objectives, which it may deploy with greater publicity later in the negotiations when it is a bit late to mobilise opposition:
* at its worst, the government has advocated returning competence for rights at work to national governments, or just to the United Kingdom (sometimes described as opting out of the Social Chapter, not that it exists any more in a single form, or ‘allowing national governments to determine employment laws in line with the national context’);
* introducing a moratorium on any further EU-level employment rights (because there have not been many new EU directives for a decade or so, this could be portrayed as continuing the current freeze); or,
* unpicking a few of the most totemic EU laws, such as the Working Time Directive and the Temporary Agency Workers’ Directive – or in some cases overturning European Court of Justice rulings on the Working Time Directive which have interpreted the directive to the advantage of working people. This was confirmed as a government objective by Europe minister David Lidington in a letter to the TUC in September.
Sometimes, ministers talk about ensuring that future employment laws should be determined at national level, which, although it looks like a mix of the first two, is actually just the second expressed differently: as the national minimum wage showed, EU law has never stopped governments providing workers with rights that go beyond EU requirements.
What does this really mean?
To restore the right of governments to control employment law would require a change to the treaties, and therefore, in many countries, a referendum. It is difficult to see how a moratorium could be legislated for without treaty change either, although EU governments could simply decide to stop legislating on employment law at EU level, and arguably already have – but they could start again whenever they wished unless the treaties had been amended to prevent them.
Changes to individual directives, including changes that would overturn European Court of Justice judgements, would require a qualified majority vote in the council of ministers, and would need to be agreed with the European parliament, which is essentially the same as the procedure for making new directives. But this process usually takes some years, and the Working Time Directive has effectively been under review for over a decade: governments, members of the European parliament and the social partners cannot agree how to revise it.
What would achieving this mean for the UK?
Opting out of EU employment laws would mean that the government could decide which EU employment laws to keep and which to scrap. This would effectively be the same as the impact of leaving the EU altogether. Currently, almost all UK employment law, including health and safety law and the legal right to paid holidays, is underpinned by EU directives (except for the minimum wage, some equality laws, and redundancy provisions). Some domestic employment laws were subsumed into EU law, but all of those would be vulnerable to being rewritten (a mammoth task that could take years) or not being reinstated.
A formal moratorium on new EU employment law would mean that, while the labour market and employment practices continued to evolve and change, the rules governing employment would not. They would become more and more outdated, there would be more and more loopholes for unscrupulous employers, and many new employment practices (like zero-hours contracts) would be completely unregulated.
Changes to specific legislation or ECJ judgements could affect the terms and conditions of employment of millions of workers (individual changes would often affect hundreds of thousands of workers at a time), reducing pay, lengthening hours of work and allowing for more inequality and exploitation. Taking away the right to paid holidays for every worker would hit millions of workers directly in their pay packets by up to 10 per cent a year.
Any or all of these changes would increase inequality, and could also, by reducing the incentive to invest in and respect working people, reduce the effectiveness and productivity of the UK economy. Britain would almost certainly become a less attractive place to work, leading to reduced immigration of skilled workers and increased emigration of those who would be better treated in other countries either in Europe or further afield. TUC and other polling has also shown that if workers’ rights were reduced, people would be less likely to vote to stay in the EU.
What would achieving this mean for the EU?
A moratorium on new EU employment law, or changes to existing EU laws and judgements would have the same impact on workers all over Europe that it would have on workers in Britain. But a British opt-out would create a two-tier employment market in Europe, with British workers open to increased exploitation and workers in other countries facing undercutting by British workers. It is likely that any competitive advantage for British employers from such lower labour costs would not last long as employers in other EU countries scrambled to catch up and sent the EU into a downward spiral of lower wages and worse terms and conditions, reducing domestic demand and therefore growth still further.
What should Labour do about it?
Labour should resist any attempt to reduce people’s rights at work, and work with unions and sister parties – especially those in government in other European countries – to block the UK government’s approach. Labour should also warn the government about the impact of the strategy on the likelihood of a vote to remain in the EU, and should warn voters about what the government is seeking to do to the rights they have secured from EU membership. Labour should also promote new legislation to adapt to changes at work, and to protect more workers from exploitation, like domestic workers who are often excluded from legal protection under current laws.
———————————
Owen Tudor is head of European Union and international relations at the Trades Union Congress. He tweets @OwenTUC
———————————