Workers’ Rights

Lord Monks Excerpts

Tuesday 26th January 2021 Lords Chamber

[Lord Callanan (Con)]

I can only reiterate the Answer I just gave: there is no government plan to reduce workers’ rights. Our manifesto promised, among other things, to get Brexit done and to maintain the existing level of protection for workers provided by our laws and regulations.

[Lord Monks (Lab) [V]]

Surprisingly, it did not take long after Brexit for the Government to consider shredding the working time directive, which deals with maximum hours, rest breaks and, importantly, minimum holidays. Instead of making vulnerable workers more vulnerable, when will the Government tackle abuses in the labour market, such as the growth of one-sided zero-hours contracts and other exploitative measures? These should be the priority targets, not attacks on workers’ established rights.

[Lord Callanan (Con)]

There is no plan to make vulnerable workers more vulnerable, as he put it. The House should be in no doubt that the Government will always stand behind workers and continue to stamp out unscrupulous practices where they occur.

Corporate Insolvency and Governance Bill

Lord Monks Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 16th June 2020 Lords Chamber

This is a proper distribution of risk. The secured creditors—banks, private equity, hedge funds and so on—are professional risk-takers, who have spread their risks in a diversified portfolio. If they take a hit, they can usually make it up from their other investments. The worker is at the other end of the spectrum: typically, she has one job, one investment, only. As her life unfolds, her fund of usable labour diminishes. If she takes a hit, it may be impossible to regain her earning capacity or restore her pension pot ever again. Those facts are magnified by the catastrophic unemployment consequential on the pandemic. She may never work again, or for a significantly lower income only. She needs protection. These amendments go some way to provide it.

[Lord Monks (Lab) [V]]

My Lords, I do not wish to speak at this stage.

[Lord Leigh of Hurley (Con) [V]]

I will speak to Amendments 12, 13, 17, 18, 30 and 31, all of which are mine. Essentially, they make the same point, but I had to table several amendments to the Bill to cover it. The point is to allow an extension of the moratorium where the rescue of the business, as opposed to the company, is likely. I draw the attention of your Lordship’s House to my register of interests, which includes being deputy chairman of finnCap, a stockbroker, and senior partner of Cavendish Corporate Finance, which specialises in selling businesses. Unusually, I am speaking to an area in which I have some limited expertise, particularly in selling businesses.

I add to the remarks of the noble Lord, Lord Hendy, that private equity firms, banks and others do spread their risk, and insolvency is a devastating experience for the owner of a business, who may have spent years building it up and invested all their family wealth into it. They too need as much protection as possible.

At the moment, there is constant reference throughout the Bill to “the company”, but frequently, if not in the vast majority of cases, the actual limited company, or plc company, will not survive—there is simply no possibility—and there will be no return to the shareholders or equity at all. However, the actual business itself might well survive. For example, in the retail sector, many businesses trade from shops. The companies that have the leases with the landlords will disappear, but the businesses trading in those shops will, hopefully, carry on. Typically, they may be sold to a third party but, to do that, the directors or monitor will need time to negotiate a transaction that preserves the business and the jobs. I thank the noble Lord, Lord Mendelsohn, for inviting me to amplify the amendments, but what they are saying is pretty simple. In many instances, the business that is owned by the company is viable and likely to carry on, but there is no chance of the company so doing. The amendments in my name seek to address this.

Amendments 12 and 13 refer to the situation where a director wants to extend the moratorium with creditor consent, and Amendments 17 and 18 to where the directors apply to the courts. I share the concern of other noble Lords that the courts are going to be very busy as a result of the Bill, and I hope that sufficient resources will be given to them. Again, where the directors apply to the courts, the courts will see that the business may well carry on, even if the company is not able so to do. This will then allow the courts to instruct the directors to carry on the moratorium.

Amendments 30 and 31 refer to the circumstances where the monitor is in charge. I will make a few comments about the monitor in a minute. The Bill states that

“the moratorium is no longer likely to result in the rescue of the company as a going concern”.

This ignores the possibility that the business might well be rescued as a going concern. It is particularly important that the monitor is a person who is able to see that viability and implement it. It would be tragic if the moratorium ends for all the wrong reasons.

I support the noble Lords, Lord Stevenson and Lord Hodgson of Astley Abbotts, in emphasising the importance of who the monitor is. The noble Lord, Lord Stevenson, quite rightly made the point that it need not necessarily be a chartered accountant or an insolvency practitioner. It would be great if the legislation allowed the flexibility for a turnaround professional to be appointed as a monitor, albeit with the appropriate protections, as they really do know what they are talking about in enabling a business to carry on afterwards. The story from the noble Lord, Lord Hodgson, about the investigating accountants telling the directors that they would be back on Monday to carry out receivership is chillingly true; I have seen it in practice. I have also seen much better examples, where the investigating accountants have been told by the bank that under no circumstances will they be appointed as the receiver, or in our case monitor. So they are truly independent and are working to try to ensure that the business carries on, as opposed investigative accountants being appointed, who know that they might be appointed as the receiver, with subsequent huge professional fees.

It is vital that we try to ensure that the monitor is independent not just at the time of appointment, as these amendments suggest, but subsequently, and is not appointed as a receiver without proper investigation that their actions have been in the interests of the business. I will not amplify this point any more but will simply quote from the Insolvency Practitioners Association, which has said:

“Expanding the definition”,


as I have suggested,

“will enable monitors to more broadly assist businesses, working with their owners, stakeholders and directors to give them a greater opportunity to survive the economic strictures of Covid-19 responses”—

which is the purpose of the Bill. Without the amendments I have tabled, the Bill will be heavily emasculated.

--- Later in debate ---

[Lord Palmer of Childs Hill [V]]

I did not realise someone was withdrawing. I asked to speak mainly to support Amendment 60, but also to inquire whether this will achieve what the movers want to achieve. With sale to connected persons, there is always a worry in any liquidation or moratorium as to whether those connected persons are getting a benefit, to the detriment of other creditors. It is also a fact that very often a sale or arrangement with connected persons is a way of saving a company by connected persons taking some of the business out of the company. If there is a situation in which that company can survive enough to pay all its creditors, sales to connected persons could be a valuable tool. I just want to ensure that the Minister says this is an open book and can help in some ways and police in others.

[Lord Monks [V]]

I do not wish to speak at this stage.

[Lord Fox]

My Lords, we have heard descriptions of a series of power imbalances. There are two large, powerful entities on the scene; one is covered by this Bill and the other is not. One is the banks and financial institutions, and the other is of course HMRC, which is covered in the Finance Bill but not in this. My noble friend Lord Palmer referred to that as the elephant in the room. Those two wield the power, and then we hear the tale of small creditors, small businesses, pensioners and workers eking out a return.

In proposing this Bill, the Government have destabilised what had been a static relationship. Things are moving, and we need to understand in detail how the Government see all this movement shaking out. The Bill, letters and now assurances from the Minister have moved everything around. It is still not clear to me—perhaps it is clear to others—where the power has moved in the end. At the moment, it still looks as if the financial institutions will get increased power as a result of this Bill and HMRC will get increased power as a result of the Finance Bill. If that is not the case, I am happy to be surprised by the Government.

I will say just one other thing. I welcome the suggestion from the noble Baroness, Lady Altmann, to perhaps look at different levels of pension fund debt below that of the Section 75 debt. That could be one way of alleviating some of the concerns. I hope the Minister is able to catch up on what the noble Baroness, Lady Altmann, had to say just now, because there was some wise suggestion there.

--- Later in debate ---

[Lord Monks [V]]

I add my support to the contributions made by the three previous speakers on this group. It seems that there is one big gap in the Bill, which is to take account of the interests of the working people, for all the reasons that have been explained by other speakers, which are so essential to the future of the firm and of the country. This is a gaping gap, and I hope very much that the Government will address it. I am told that there are plans in government for perhaps another Bill at some time in the future, where the points that we are raising might be addressed. However, I want a clearer indication from the Government on whether they indeed intend to bring forward some proposals additional to the ones in the Bill at the moment, to improve the position of working people. The Prime Minister said that he wanted to embrace the working people of this country. The Bill and the amendments we have tabled to it are an opportunity to do that. I ask the Government to embrace the amendments and follow what the Prime Minister is apparently talking about.

[Baroness Jones of Moulsecoomb (GP) [V]]

My Lords, in view of the time constraints, I will limit my comments to just two issues. The first is that Committee has been limited to an afternoon, which I think is absolutely appalling. It is all in line with the way the Government are reducing Parliament to a series of nods that they think they can control. I say to the noble Lord, Lord Monks, that there are, in fact, two huge gaps in the Bill. The first is the environment, which I spoke about at Second Reading. There is an absence of any thought of protecting our environment, when the Bill could play quite a major role in our transition to a net-zero carbon economy.

As the noble Lord, Lord Monks, pointed out, the Bill has another major flaw, which is the lack of protection for workers’ interests in this special insolvency scheme. Without these provisions, the Government will just have to hope that already wealthy people will not take advantage of this emergency scheme, but we all know that predatory capitalists use whatever legal loopholes they can to trash our planet, cheat our workers and strip the assets of companies to extract as much cash as possible. I think we will be able to point to today’s Hansard in six months’ time, when the inevitable happens and people are driven out of their livelihoods while bosses and shareholders are laughing all the way to the bank. I look forward to seeing the Government’s new amendments next week and I hope that Report will perhaps show that this Government have a heart.

Trade Unions

Lord Monks Excerpts

Thursday 18th July 2019 Lords Chamber

[Lord Monks (Lab)]

My Lords, I am delighted to follow my noble friend Lord Jordan and I congratulate him on his enterprise in initiating this debate. In so doing I also congratulate the ILO on its 100th anniversary. During that century, as the last surviving League of Nations institution, the ILO, as my noble friend said, has been fundamental in establishing the concept and details of human rights in the workplace and upholding the dignity of people at work. Its core conventions, with commitments to eradicating forced labour, child labour and unfair discrimination have been important influences in many countries—unfortunately, not all—and also influential has been the continuous campaign to promote trade union rights and decent work as part of the UN human rights framework. The ILO has been able to hold Governments who breach these rights to public account, and so expose abuses. It did this famously in Poland when Solidarność was carrying the torch of freedom in the Soviet era, and did it on a more modest scale in the UK, criticising aspects of the Thatcher era anti-trade union legislation. The ILO also works to secure labour rights in trade agreements: that is likely to be crucial in any post-Brexit free trade agreements that are to be negotiated.

The ILO is run on tripartite principles—unions, Governments and employers working together and, historically, coming up with plans that command consent among the three parties. These principles of tripartism became the basis of post-war reconstruction in most of western Europe after the Second World War. It is a proud achievement of the ILO that the European social model, as it is called, is rooted in the ILO conventions and principles. The approval this year of a convention on preventing violence and harassment at work shows that its system still works to help transform workers’ lives. I thank the ILO for all its work and I will be interested to hear the Government’s current view and how they are helping it, I hope, go from strength to strength for the next century.

Of course, the ILO has been affected by the pressures on trade unions in the last 40 years or so. My noble friend Lord Jordan spelled those out well and very interestingly in his contribution. It is clear that the rise of inequality from the early 1980s onwards has coincided with, and in part was caused by, the decline in trade union membership, and, more particularly, in the coverage of collective bargaining. Today in the UK only about one in four workers has their pay set by trade union negotiations. This retreat has meant that worker influence in companies has lessened. One result has been excessive pay levels in many boardrooms, as they have adopted a help-yourself, self-service practice, often unrelated to performance. The Conservative Government, through their anti-union laws restricting trade union freedoms, from the 1980s through to the Trade Union Act 2016, opened the door to unsavoury and unfair practices by unscrupulous, greedy employers—not all employers, but too many.

Conservative Governments ignored the fact that trade unions play a vital role in ensuring fair play at work. Union workplaces are safer, offer better training, provide more flexible working arrangements and are often more innovative. Their role in creating more equal societies has been endorsed by unlikely allies, such as the International Monetary Fund, the OECD and some central banks, which have come to recognise that strong unions can share out the productivity gains rather more fairly than if they do not exist. There has been some welcome recognition of this from Secretary of State Greg Clark in recent times, with the good work initiative, and plans on information and consultation to make it easier for workers to operate that. I wish him well in the future, and hope that in doing so, I do not seal his fate next week, when he faces his new boss in Downing Street.

What of the future? The UK needs a new settlement, which must involve progressive and responsible trade unionism, committed to raising productivity and performance, promoting long-termism and ensuring that the benefits of growth and the new digital technologies are distributed more fairly. The new settlement must promote a collaborative approach to work cultures, with a new emphasis on respect for workers and valuing their skills. I would like to see a concept of professionalism apply right through the labour force, not restricted to those with degrees and people with significant higher education experience.

I believe, as does the Labour Party, that to do this requires a reform in Whitehall, and the unification of labour market policy into a new, powerful department of work and employment, which would, among its other jobs, promote collective bargaining, a voice for working people and a high-skills, high-productivity agenda. A project of this kind will attract powerful enemies, but it will also attract wide support, including from the better employers. The cause is a great one. British workers must not be treated as second-class citizens. Already they are more vulnerable to job insecurity than those in some other advanced EU countries. Britain led the way in 1919-20 in establishing the ILO. We should take pride in its achievements. As my noble friend Lord Jordan said, many British trade unionists, as well as employers and government officials, have played a significant part in the organisation, going back to Ernest Bevin and Walter Citrine in the early days, and latterly, as my noble friend said, the late Bill Brett, chair of the workers’ group. In the TUC, we take particular pride in the fact that the current director-general, Guy Ryder, is a former member of the TUC staff. This shows that Britain can lead the way. It needs to do so in a whole range of issues on the labour market as the ILO enters its second century.

Employment Rights (Miscellaneous Amendments) Regulations 2019

Lord Monks Excerpts

Thursday 28th March 2019 Lords Chamber

[Lord Monks (Lab)]

My Lords, the noble Baroness, Lady Gardner, raises an important point. I look forward to the Government’s response to her very pertinent question.

I give a qualified welcome to these regulations. They certainly aim to alleviate, or eliminate, some weaknesses in British employment law. I particularly draw attention to the proposed end to the so-called Swedish derogation in the agency workers’ directive. This has been a long-standing loophole, allowing employers not to provide equal pay to agency workers if the workers agree to a lower rate of pay when the agency cannot find them work. I am usually an admirer of the Swedish labour market, but I wish we had not taken this import from what is normally a very advanced country on employment rights.

Agency working is now a major feature of the British labour market and is being abused in some cases. I do not want to overstate the case—there are plenty of areas where it works well—but European law designed to regulate this area has been built up over a period. We used to refer to agency workers, and temporary workers in general, as atypical workers. We do not use that term any more, because now agency working is typical; in many parts of the country, it is the main offering. It is a rather insecure method of working, a method which I do not think too many people like. Some it suits, but many it does not. The EU certainly sought to bring atypical workers’ conditions in line with those of regularly employed people, and for them to receive equal treatment. That was a long-standing theme of European employment legislation. It is important that unscrupulous employers do not use agency working to undercut the terms and conditions of regularly employed workers.

The Swedish derogation is one weakness—I repeat that I welcome the action that the Government have taken on it—but one other loophole remains, which these regulations do not cover. An agency worker must work for 12 weeks before they become entitled to pay equal to that of a directly employed worker. There are many agency workers whose assignments never reach 12 weeks, and some employers who make sure they never do by rolling them on to a new assignment and a new contract. I ask the Government to re-examine this weakness in the regulations.

Brexit: Protection for Workers

Lord Monks Excerpts

Thursday 7th March 2019 Lords Chamber

[Lord Henley]

My noble friend has made a number of points very well, particularly the fact that not all trade unionists vote Labour. He also referred to remarks made by Frances O’Grady, the general secretary of the TUC. I think Frances O’Grady is absolutely wonderful; it is just that we do not necessarily always agree on every matter. She took rather a negative approach to my right honourable friend’s announcement. I assure my noble friend that a document will be produced by the Government every six months after consultation and it will refer to any changes made in the EU. We might want to consider whether we wish to follow those changes, do something better or reject them for whatever reason. My noble friend referred to how they would be examined by another place. I am sure this House will find ways of examining them, just as another place will.

[Lord Monks (Lab)]

My Lords, Frances O’Grady certainly does not need any defence from me. She very much reflected the trade union mission in life, which is always to seek more—one word: more. Some business schools could learn from that mission statement. This is an astonishing change from the Government. We have been faced with a stream of anti-union and anti-worker legislation from them and their predecessor, and I can now see a change. It is not a huge change, and the motives for it are extremely murky in terms of next week’s vote and so on, but I ask the Minister to confirm two things. First, how does he see the role of trade unions going forward? Will there be an institution in which they will be involved to make sure that everything announced in the other place yesterday happens? Secondly, I would like him to repeat—I shall savour the moment—that the Government have no intention of changing the working time directive.

[Lord Henley]

My Lords, I imagine that Frances O’Grady would not want to be defended by me. I merely said that I did not agree with her on certain matters but that I thought she was wonderful in many other respects. The noble Lord said that he always wanted more. Lots of people always want more but it is important to get the right balance so that, as my right honourable friend made clear, we protect the rights of those in work, we do not impose excessive burdens on employers and we create a situation in which it is easy for those who are not in work to find work because work is available and employers want to employ people. That is something that unions should always remember. Although they are assiduous in looking after those in work, they should remember those who are not in work, and we want to create the right environment for them.

The noble Lord then asked whether there would be an institution involving trade unions. I cannot commit to creating any institutions; nor do I think it necessary to do so. What is important is that my right honourable friend, or whoever holds that office or is in government, has an open-door policy whereby they can continue to consult, talk to and have a dialogue with trade unions and all others who have an interest in the matters we are talking about.

Finally, just because the noble Lord wanted to hear me say it, I was asked to make it clear that we have no intention of getting rid of or watering down—I cannot remember the precise words he used—the working time directive. I can give him that assurance.

Employment Rights (Amendment) (EU Exit) (No. 2) Regulations 2018

Lord Monks Excerpts

Wednesday 6th February 2019 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Henley) (Con)]

My Lords, I hope I shall speak also to the other three sets of employment rights regulations before the House on the Order Paper. These SIs are part of a package of measures that the Government have promised to introduce to make sure we are prepared in the event that we leave the EU without a deal. It is important to remember throughout this debate that these changes will not be needed if there is a deal. The SIs in front of us make amendments to EU-derived employment law in both Great Britain and Northern Ireland.

As noble Lords know, new directives agreed in the EU are transposed into UK law. The act of the UK leaving the EU therefore does not remove these rights, as they are already in UK law. In passing the European Union (Withdrawal) Act, Parliament gave the Government the ability to ensure that necessary changes can be made to keep the statute book in proper working order. These statutory instruments make only minor changes to language to ensure that existing regulations reflect that the UK would no longer be a member of the EU. These changes are necessary to ensure that the statute book is accurate and clear. It is important that businesses, employees and citizens have clarity on their rights and responsibilities.

We are not making any changes to employment rights or employment policy through these regulations. The Prime Minister, my right honourable friend the Secretary of State for Business, Energy and Industrial Strategy, and many other colleagues have been clear that there will be no rollback of workers’ rights when we leave the EU. I wish to highlight that these statutory instruments would make some changes to the regulations for European works councils. This would be an unavoidable impact of the UK leaving the EU without a deal. I can explain these changes in more detail later.

Looking to the future, the political declaration on our future relationship with the EU states that we will build on the withdrawal agreement commitment not to reduce our shared standards—a commitment not to regress from existing EU legislation. I will now go into more detail on the amendments made by the statutory instruments. The Employment Rights (Amendment) (EU Exit) Regulations and the Northern Ireland equivalent regulations repeal four powers that the Government can use to make secondary legislation. These powers relate to parental leave, part-time work, fixed-term work and information and consulting rights. The powers that are repealed relate only to obligations that the Government would be under from EU directives. As the Government would not be under these obligations if the UK left without a deal, these powers would be redundant. We would not be able to use them even if they remained. For clarity and legal certainty, we are seeking to remove these powers. Removing them in no way changes the rights that workers enjoy, nor the Government’s ability to protect workers in the UK in future.

The Transnational Information and Consultation of Employees Regulations 1999 are also amended to reflect the UK’s departure from the EU. Withdrawing from the EU will mean that the UK is no longer included in the EU rules on European works councils, which is why changes are required to the legislative framework set out in those TICE regulations. Provisions relating to existing EWCs—which can continue to operate in a no-deal scenario—are maintained. These include the protections for workers and their representatives on EWCs.

I move on to the next pair of regulations—the Employment Rights (Amendment) (EU Exit) (No.2) Regulations and their Northern Ireland equivalent. These are listed first on the Order Paper, despite their numbering. The amendments made through these regulations amend the text of existing Acts to reflect the UK’s departure from the EU. None of these changes affects the rights workers enjoy or changes employment policy.

The changes that may elicit the greatest interest across the House are those made to Section 38 of the Employment Relations Act 1999 and its equivalent in Northern Ireland. These relate to TUPE protections. The SIs amend the wording of the existing legislation to maintain the current scope of a power currently derived from EU directive obligations. This power has been relied on to make secondary legislation to cover situations where workers are not covered by TUPE regulations. The revised clause still retains the breadth of the existing powers for the Government to amend TUPE regulations to protect the rights of workers. The changes also protect the regulations that have previously been made under this power. These amendments do not change the rights to which workers are entitled.

There is one further point I wish to bring to the House’s attention. Of course, I hope that these regulations will not need to come into effect. I hope agreement can be reached with the EU and these regulations can be revoked. However, in the event that there is no agreement—no deal—it is vital that these regulations are enacted. Failure to pass these largely technical regulations would mean uncertainty over both workers’ rights and employers’ obligations. This could lead to disruption for businesses and citizens, and an increased risk of litigation. This is in no one’s interest. It would be unacceptable not to provide this clarity to businesses and I hope noble Lords will accept that the Government are delivering on our workers’ rights commitment and that these SIs can therefore be approved. I commend them to the House and beg to move.

[Lord Monks (Lab)]

My Lords, it is pretty obvious that these regulations were drafted—as was necessary—before the conclusion of the current talks that the Prime Minister very belatedly initiated with the TUC and others about employment rights post Brexit. I understand that talks with the Business Secretary are still going on. I hope that at the back of the Minister’s mind is the thought that these regulations might well be altered in the light of any progress made in these talks. In effect, the TUC seeks a binding guarantee that existing employment rights will not just be maintained but will not fall below any levels of protection developed in the rest of the European Union and its single market.

There is a lot going on in the European Union at the moment on precarious employment, the gig economy, self-employment and protections for migrant workers. The key point in these negotiations with the Business Secretary is whether there can be any chance of a meeting of minds in these areas. So far, the Prime Minister has said to the union negotiators, “Trust me to make sure we will do the right thing”. “Trust me” is not quite good enough, given the transitory nature of being Prime Minister or party leader in this country. Binding guarantees are rather better than good intentions in this area.

The backcloth to these regulations has been drawn to my attention by the TUC. It has circulated a brief to Members of this House, which I hope noble Lords have had a chance to read. The first point is a procedural one about consultation. I echo previous debates in the House today by asking: who has been consulted on the regulations?

I turn first to the regulation dealing with the European works councils. It is worth reminding Members of this House that there are 850 or so EWCs and UK workers are represented on 500 of them. About 10 million European workers in total are covered by European works councils. Although their performance varies, as one would expect, on the whole they have been very successful in holding companies to account on their future plans and strategies. This is an important dimension in a world where pressures from financial markets on companies not to consult, inform or discuss their plans are very powerful.

We welcome the Government’s commitment to maintaining British participation in existing EWCs, but this commitment does not extend—at least as yet—to including new ones or to absorbing into UK law any changes in EWC arrangements that come into force over the next period. No new EWCs will be required to be set up under UK law after Brexit. We are worried that—at least in some cases—UK workers might lose their seats on the European works councils and therefore put British jobs at much greater risk than those of our neighbours across the channel and the North Sea. In other cases, I think there would be voluntary agreement. There are specific measures on the rights of UK worker representatives, such as paid time off to attend meetings. I note that these will be maintained after Brexit in relation to EWCs, but not necessarily to new EWCs that have a British component.

If there is no deal, most of these regulations are designed to come into force on Brexit day. What is the timetable should a withdrawal agreement be concluded? In our view, they should not come into force during a transition or implementation—or indeed a backstop—period.

I turn to the 2018 family of regulations. These are centred primarily on TUPE—the transfer of undertakings legislation—which has been valuable in handling transfers of staff due to privatisations in particular. They came in during the 1980s, under the Conservative Government at that time. The TUC is concerned that the regulations in this area lack a clear definition of what “TUPE-like protection” actually means. This is the phrase that has been adopted. I have not come across this kind of legal term before. “TUPE-like” seems to lack precision, as least to my layman eyes. Unless someone can explain the contrary to me, I think a clearer definition is very much needed.

The regulations do not extend TUPE-like protection and provisions to employee representatives, only to employees. Under the TUPE regulations, employee representatives have certain rights to information and consultation, and they should be maintained in whatever the future holds for us in this area.

Next, can we have an assurance that the regulations will not be brought into effect in any transitional or backstop period—that we would stick with the status quo? The powers under Section 13 of the withdrawal Act would hinder the UK’s ability to keep up with changes in EU law during any transition or backstop period and in the event of no deal. We want to avoid workers in the UK during such a period not having the same rights and protections as workers in other European countries. Protection during a transitional or backstop period is very important.

Trades Union Congress 150th Anniversary

Lord Monks Excerpts

Thursday 14th June 2018 Lords Chamber

[Lord Monks (Lab)]

My Lords, I start by declaring an interest. I am the oldest living former general secretary of the TUC, a position that I am in no hurry to relinquish. I am grateful to my noble friend Lady Prosser, a very good friend and close colleague for many years, for initiating and so skilfully introducing this debate to celebrate, as we do today, the TUC’s 150th birthday and the contribution it has made to the well-being of this country in so many fields of public life.

My noble friend Lady Prosser has, by the way, been a doughty and effective champion of rights for women. The progress made by women in the trade union movement, so that today there are more women members than men within the TUC, is in no small measure due to the efforts of my noble friend and others who have led the way in making the TUC more equal and more representative.

I am also grateful to the other speakers. A range of views have been articulated, all of them constructive. I will not go through them all but there were plenty of ideas there, which people will look at with great interest in the trade union movement. I am sorry to say that it is a bit of a pity, but perhaps not a surprise, that apart from the Minister, who has his job to do, there were no Conservatives down to speak. I see that the noble Lord, Lord Hunt of Wirral, is now looking for an invitation, but I am afraid that no trade unionist can miss the opportunity to get off work early, as we are likely to do this afternoon.

What we have lacked in quantity, we have made up for in quality in the debate. Manchester was the TUC’s birthplace all those years ago. As many noble Lords can tell, it was also my birthplace. I recall with pride that in 1968, on the occasion of the TUC’s centenary when, as my noble friend Lord Lea said, the celebrations were located in Manchester, my father, a parks superintendent, designed and installed in a central city park a floral clock with the TUC logo to celebrate those first 100 years. Little did he or I know that, two years later, I would have a job with the TUC.

In its 150 years, the TUC has had its ups and downs, but it has proved pretty resilient in the face of the great economic change from the UK as the undoubted, yet-to-be-challenged workshop of the world to the predominantly service economy of today. It has stuck up for working people in slumps and booms. It has seen its membership grow, contract, grow again and contract again. It gets written off, as we have heard from other speakers, but it has always found a means to bounce back. Six million people just cannot be wrong in this day and age when voluntary organisations generally are under threat, as far as keeping going is concerned, in a more individualistic and atomistic world than was perhaps the case in the earlier years of our lives.

I am glad that the efforts and determination of the current general secretary, Frances O’Grady, have been referred to in this debate, particularly her new initiative to attract to union membership young people isolated, vulnerable, uncertain about their prospects and perhaps burdened with debts which earlier generations did not have to anything like the same extent. In this precarious labour market, setting off on your own is a pretty daunting prospect unless you have pretty unique skills that are attractive in the labour market. Frances is proving a great asset to the TUC, and on this side of the House and, I hope, more generally in the country, we are very proud of her. As a former general secretary, I am proud of the staff who support her and do a very good job.

Since the 1980s, we have seen certain features which characterised the Victorian labour market—casual working, low pay, arbitrary action and degrees of exploitation by unscrupulous employers—coming back into today’s labour market. I am not pretending that we are back in Dickensian England, but they are features of today’s labour market which Dickens and the delegates to that first TUC in 1868 would recognise. I pick out one central point in particular: it is now clear that the rise in inequality since the 1980s coincided with, and was perhaps partly caused by, a decline in trade union membership and the coverage of collective bargaining. Collective bargaining now covers only about 30% of workers, and outside important exceptions, such as engineering and steel, industry-wide agreements have disappeared in the private sector. The bargaining that does take place is at the lower company and plant levels. This is obviously often very vulnerable to changes in management styles and policies, personality changes and particular changes such as outsourcing, privatisation, the use of agency labour and the rise of zero-hour contracts.

The results of that are now clear. The share of wages and salaries in the national income has been falling. Real wages have been stagnant and insecure contracts are increasingly the norm, especially for the young. I acknowledge that the flexible labour market, much lauded by many over the past 30 years, has a good side—the high level of employment has been impressive—but it has a dark side that has permitted exploitation and arbitrary treatment on a grand scale. It is also, unfortunately, linked to poor productivity and poor training, and the economic performance of this country leaves a lot to be desired. In particular, it cannot be a cause for celebration of the flexible labour market that it takes the average UK worker five days to do what a French or German worker does in four. That is a pretty damning statistic.

Meanwhile, as others have said, top executive pay continues to spew out lottery-winning sums to executives whose performance is often ordinary and in some cases downright dismal. I accept that the trade unions have not yet been able to arrest these trends. The collapse of traditional manufacturing industries, the restrictions imposed by a whole series of hostile laws from a succession of Conservative Governments—we have heard the latest one, the Trade Union Act 2016, mentioned today—and the focus of many managements on short-term shareholder value have all been factors in this weakness. In fact, it has always seemed to me that every time a Conservative Government want to cheer up their constituency associations, while at the same time not spending any money, they introduce a Trade Union Act. Give the unions a kick, we squeal and people in the constituencies think that is pretty good—a pretty unfortunate way to run the country.

I am not just talking about Conservative Governments. New Labour was very different, introducing a lot of welcome steps. I was a strong supporter of that Government on the public sector, the national minimum wage, new rights for trade union recognition and a whole raft of individual rights on maternity, paternity, time off and so on, which were very impressive. However, they were too cautious in promoting a new, fairer settlement generally at work and in arresting this trend towards greater inequality and insecurity. Maybe we thought the good economic times of the early part of this century would run for ever, but they did not. We crashed and we are now left with this picture of insecurity and inequality.

On the question of the flexible labour market, it has been a matter of great frustration for me that we in this country have not been able to emulate other economies in northern Europe such as Germany, the Netherlands and Scandinavia and introduce European-style social partnership with extensive collective bargaining, strong consultation and a move towards decision by consensus, including having workers represented on the boards. I am sure that that remains the way forward, but too often the UK has preached deregulation to our EU partners or even bragged about the lack of protections and rules for workers and, implicitly perhaps, about the weakness of British trade unions.

My time is up. I was going to conclude by saying that it was the speech of Jacques Delors at the TUC that led the British unions to embrace the EU, as others have said. Delors outlined a powerful single market combined with a lively social dimension, with a range of rights and opportunities. It was important that that initiative should not falter but it did, and the result has been the fact that in too many working-class communities the vote to leave was a reaction against seeing a Europe that did not seem to be doing too much for workers.

Stanley Baldwin has never received rave notices for his performance as Prime Minister, derided by Winston Churchill and Lord Birkenhead, who said:

“I think Baldwin has gone mad. He simply takes one jump in the dark; looks around and then takes another”—


a bit like the Brexit negotiations at the moment, by the way. However, Baldwin was consistent in some respects. He was aware that something had to be done after the General Strike to improve matters and he encouraged collective bargaining, strengthened the new Ministry of Labour and built up joint industrial councils. Crucially, he consulted the TUC, even on the induction of King Edward VII. Baldwin’s worries about employers if left unchecked seem to me to be very contemporary. Maybe the Minister can tell us if the Government are giving any consideration to a little bit of “back to the future” and the Stanley Baldwin lesson.

Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) (No. 2) Order 2018

Lord Monks Excerpts

Monday 16th April 2018 Lords Chamber

[Lord Monks (Lab)]

My Lords, people may not have noticed that the TUC is 150 years old this year. In that long and rather chequered history, it has not been too often that the TUC has warmly welcomed a step taken by a Conservative Government, but there are exceptions—and one of them is certainly today. I recall the apprenticeship levy in recent years, but not too many other cases where there has been some rapprochement between the TUC and a Conservative Government. I hope that it is the start of further progress on the good work agenda, as has just been said, and that we see other areas where things are done constructively and not in a confrontational manner.

The order extends the right to a written pay statement to dependent workers who are not employees; there are plenty of those, and they are growing in number in the so-called gig economy at the moment. We can see the growth of temporary agency work, some self-employment that is not really self-employment, and zero-hours contract workers. Currently, employees must get a statement of gross pay, deductions and net pay and, when hours vary, have that recorded too. The extension of this is very welcome to this group of workers who are not employees, who live outside the present scope of employment law. That is a very important step for a group which is often the most vulnerable to the underpayment of the national minimum wage. The particular problem area has been in the social care sector, where we have come across quite a lot of problems, but there are other areas where there are some problems.

As the Minister correctly said, many employers are already doing it and progress has already been made, but there are some who still do not. It is important that the workers concerned find out exactly what they are paid and that they can check they are paid correctly. This order will make it harder to underpay workers, whether by mistake or design, and I warmly welcome it today.

[Lord Fox (LD)]

My Lords, the Minister may find himself bathed in warmth from this corner of the House as well: we welcome this step forward. He raised a couple of points which we would like some clarity on. Will the Minister confirm whether the payslip itself will detail different hourly rates within the gross hourly performance, or simply an average number, as this was not clear? He also referred to raising with an employer the question of whether payment has been fair. Raising such an issue with an employer, and perhaps ultimately going to a tribunal, would be much easier if the burden of proof was on the employer rather than the employee. Have there been any thoughts about looking at the burden of proof in employee tribunals? Otherwise, the Minister’s injunction to raise the matter with an employer is unlikely to yield the sort of result that he is implying.

Overall, the gig economy and the sort of jobs set out by the noble Lord, Lord Monks, have created a group of employees who sit between full employment and self-employment. This goes some way to reaching out and giving them rights. Noble Lords on this side of the House would be pleased if a new, clearer status of dependent contractor was carved out from the Taylor report. That would give rights such as this, as well as a variety of other employment rights, to workers who are neither fully employed nor fully self-employed but sit between the two. Where are we in terms of fuller implantation of the Taylor review?

Taylor Review

Lord Monks Excerpts

Wednesday 7th February 2018 Lords Chamber

[Lord Henley]

My Lords, the noble Lord seems to think that we need to look only at dependent contractor status but the whole question of the boundaries between employed status and being self-employed also needs to be looked at. That is part of the consultation and I look forward to hearing his comments on that in due course as part of the consultation. Thinking back to the Employment Rights Act 1996—I do not remember its passage, though it is not that long ago—it is very likely that inclarities, if I may call them that, will emerge as a result of the consultation and will need to be looked at, as has happened since 1996. For that reason we are consulting—just to keep the noble Lord busy, there are three other consultations as well, where we would again be grateful for his comments—and it is quite likely that we will need to legislate as a result. As to the likely timescale for bringing forward primary legislation, I am afraid that I cannot give any assurances to the noble Lord. He will be aware that both Houses are rather busy with quite a lot of legislation at the moment.

[Lord Monks (Lab)]

My Lords, we are not short of consultations in this area; Taylor himself carried out a very extensive consultative exercise which the Minister referred to in his opening Statement. It looks to many people as if this exercise is being kicked down the road, with yet more consultation before the Government act. Some modest measures have been announced today—I noticed that the general secretary of the TUC said that a “baby step” had been taken. However, this is not the ambitious approach that the Prime Minister originally set out regarding the insecure labour market which affects so many in Britain today. Many young people are struggling to get secure contracts, and many people who work for agencies feel that their job security is at risk. Many mothers in particular, but also parents generally, cannot plan their childcare arrangements. We recently read about the case of a man who died because he did not want to take up a doctor’s appointment because he would be fined. I am not saying that that is typical but there are such cases. For too many people out there the world of work is nasty, brutish and, occasionally, all too short. When will the Government seize the nettle and move forward in an ambitious way, as we were led to believe would happen when the Prime Minister originally made a Statement on this matter?

[Lord Henley]

Again, my Lords, I am sorry that the noble Lord takes this rather negative view of what has emerged. Regarding the government response, Matthew Taylor himself said:

“There is much more to be done to make good work for all a realistic goal, but the Government response to my review is substantive and comprehensive. It will make a difference to the lives of the most vulnerable workers and that is what matters”.


We are in a position where employment is at an all-time high and unemployment is at its lowest level for some 40 years. Whatever we do, we do not want to damage, but we want to make sure that we make the right changes at the right time and in the right way. That is why there will be further consultation on employment status and on the other matters that I talked about—agency workers, enforcement of employment law and transparency for employees. Let us get that right and then legislate where appropriate.

Important Public Services (Border Security) Regulations 2017

Lord Monks Excerpts

Tuesday 24th January 2017 Lords Chamber

[Lord Kerslake (CB)]

My Lords, I intend to keep my remarks short, not least because the noble Lord, Lord Foster, made many of the points that I would have made. It is fair to say that this was one of the most contested pieces of legislation that this House has seen. Indeed, during the debate, this Chamber was considerably fuller than it is now. Looking around the Room I feel a sense of nostalgia for the noble Lords who were here for that debate.

It is important to emphasise that the issue of the threshold was one of major concern, because, as the noble Lord, Lord Foster, said, it applied a test that applies to almost no other election. That is an important point. If we see other elections as giving authority to take actions, in many ways having as big a consequence for people’s lives as strike action does, we do not expect the same level of test as we do here. But—and this is the important point—that debate was had and this House acquiesced to a package of changes to the Bill at the time. While I expect no one agreed with absolutely all of what was done, it seemed in the end a fair package given the contested and strong issues. If there are noble Lords who feel strongly that it should go further, I cannot see them in the House this evening.

The point I particularly wanted to raise was that part of that package was a commitment to review the issue of electronic balloting. That was not a small point, because hand in hand with the introduction of the threshold had to be measures that would make the process of voting easier for members. It is in all our interests to see the maximum turnout. Electronic balloting alongside postal balloting was the intended approach. We comprehensively demonstrated during the debate in the House that there were no real impediments to the introduction of electronic balloting. Indeed, it was used by a wide range of organisations already.

I may have missed something, in which case I am happy to apologise on this point, but I have not seen a great deal of evidence of progress on this issue—in particular, of a proposal coming forward from the Government to say either that they have looked at this and it is not viable, or that they have looked at it and it is viable. I would welcome a response from the Minister on that point, because, if there has not been the necessary progress, the House is due an apology. It was an integral part of the settlement agreed at the time.

[Lord Monks (Lab)]

My Lords, the real purpose of the Act was revealed to me by a former Conservative employment Minister, when he simply said, “Bills against the trade union movement don’t cost anything and they don’t half cheer up Conservative associations in the country”. That is the double benefit derived from a trade union Act.

As we can see, the pressure is already on for another round of action—which was what, I guess, the Minister was referring to in his remarks. I will not repeat the speeches that we gave during the passage of the Bill and the situation we have arrived at now, except to say that the regulations on the double threshold are extraordinarily tough, unprecedented in their application compared to other organisations and very difficult for unions to carry through in a way that will not leave them open to legal challenge.

For example, a GCSE teacher is covered in a different way from a teacher of A-levels. In my experience, teachers often teach both. I am not arguing for widening it, I am saying that there will be many borderline areas where it will be most unclear, and very difficult for a union to specify exactly who is covered by the double threshold and who by the turnout one.

I want to emphasise the point of the noble Lord, Lord Kerslake, about electronic balloting. I do not see why this measure could not have been left until we have completed the exercise on electronic balloting—whether it will be permitted or not. That makes a considerable difference to turnout and the impact that this law will have. It could simplify things enormously.

Secondly, I would underline a point made by the noble Lord, Lord Foster, about the political fund adjustment time. Again, this year is a tough one. I am thinking not just about union conferences—everything that the noble Lord, Lord Foster, said in that respect is correct—but also about the check-off agreements with employers. The big unions have hundreds of such agreements. They will have to adjusted, and that is a major task. They will have to be renegotiated in many cases: it will not be done just by an administrative stroke of the pen. They will have to be talked about and explained to the members and to the employers.

These regulations, therefore, are tough, and I echo the request that has already been put to the Minister, to give unions rather longer to respond—an extra six months would be extremely useful.

[Lord Whitty (Lab)]

My Lords, in focusing on the last of these regulations I do not mean to say that I agree with any of the previous five. However, the points have already been made on those.

I served on the Select Committee during the passage of this Bill, and the last of these amendments is out of keeping, in two senses, with the recommendations of that committee. First, as has already been alluded to, it presents unions with a very severe administrative problem. Secondly—to my mind this is the largest problem—even to proceed on this basis is a major constitutional outrage. I will come back to that.

Having received representations from both sides—and to try to maintain consensus—the Select Committee said that the transition period should be a minimum of 12 months. That, however, was subject to a consultation with the unions. I wanted a minimum of 18 months, subject to consultation, but we agreed on what currently stands.

The noble Lord, Lord Foster, has already referred to evidence from USDAW. I suspect that the belated report on the consultation on this point will reveal that several unions will be hard hit because of the timing of this regulation. Most unions have their conference between March and June. USDAW has it in April; my own union, the GMB, has it in June. It is impossible, in both those cases, to abide by both your own rulebook and the timetable laid down as a result of this regulation. Had the Government decided to trigger it and give them 12 months in, say, August, that would have given the unions plenty of time to abide by all the pre-proceedings of conferences and rule changes by this time next year. Instead, the Government have done so in such a way as to sabotage the ability of a conference such as USDAW’s in April—since the proceedings for it have already started—to meet the requirements of its own rules while complying with the regulation.