Employment Agencies and Trade Unions

Chris Stephens Excerpts

Monday 11th July 2022 Commons Chamber

[Chris Stephens (Glasgow South West) (SNP)]

I refer to my entry in the Register of Members’ Financial Interests and to my membership of Unison Glasgow City; I am a proud trade union member. Like the right hon. Member for Ashton-under-Lyne (Angela Rayner), I must say that the irony has not escaped me that right hon. and hon. Members who secured workplace change last week by withdrawing their labour—bringing the country to a standstill, as the Minister put it—now wish to stop others from doing so. When I saw the regulations on the Order Paper, I asked myself whether they were for the trade unions or for the Tories. In Operation Save Big Dog last week, was consideration given to hiring agency Ministers? That was the level that we were at.

What is wrong with the employment agency regulations, of course, is that the Government have tried them before, during the passage of Trade Union Bill. Indeed, there were Government Members who suggested to the Government that they should not go down that road. Then and now, the reason not to is the evidence of the agencies themselves, which do not support this legislation. There has been no consultation.

The regulations interfere with devolution by trying to end the Trade Union (Wales) Act, as we have heard from a number of hon. Members. They interfere with Scotland’s legislative approach, which uses the fair work model; once again, we are seeing this Government running roughshod over devolution. They are also based on fanciful notions. The Minister did not use the phrase “trade union bosses”, but I have heard it used over the past couple of weeks. Trade unions are not the bosses; they are the representatives. It has been suggested by some hon. Members that the fact of disputes taking place is all the fault of the trade unions, not of the poor, downtrodden, six-figure-salary executives who are not engaging.

[Jonathan Gullis]

It is the union barons.

[Chris Stephens]

There is no such thing as a union baron. The hon. Gentleman is one of the hon. Members who withdrew their labour to sit on the cobblestones, but given his rhetoric tonight, it seems that he wishes to stop others doing so.

Another problem is the likely breach of international law. The use of agency workers to replace striking workers would violate trade unions members’ right to strike, which is safeguarded by International Labour Organisation convention No. 87, article 3; by the European social charter of 1961, article 6, paragraph 4; and by article 11 of the European convention on human rights. Indeed, the ILO committee on freedom of association has said:

“The hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term…constitutes a serious violation of freedom of association.”

On 16 June, the Institute of Employment Rights published an article by the great Professor Keith Ewing, professor of public law at King’s College London. He discusses the convention and refers to the Government’s own agreement—the EU-UK trade and co-operation agreement, which is given effect in UK law via the European Union (Future Relationship) Act 2020. He suggests that the regulations’ revocation of regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 may be unlawful:

“It is at least arguable that these pre-existing powers are constrained by the 2020 Act, s 29 so that they cannot be used in a way that will violate the TCA and the obligations thereunder. If this argument is correct, the government is constrained by its own hand from legislating to revoke regulation 7 by secondary legislation.”

There will be a negative impact on agency workers. Allowing their deployment would put them in a horrible position. They would have to choose between crossing a picket line and turning down an assignment, with the prospect of being denied future work by the agency. Many agency workers, such as supply teachers and bank nurses, will be trade union members themselves. Under the UK’s weak employment laws, agency workers are not protected from suffering a detriment if they refuse an assignment because they do not wish to replace striking workers.

There will also be a negative impact on the agencies themselves. The removal of the ban on the supply of agency workers would mean that employment businesses were forced to become involved in industrial disputes not of their making. That is why agencies themselves oppose the proposals, as others have said. In a joint statement with the TUC, the Recruitment and Employment Confederation urged the Government to leave the current ban in place as a key element of a sustainable national employment relations framework. Part of the reason for that is the realisation by employers and trade unions that disputes come to an end, and there must then be a discussion about how to move forward from that dispute and how to rebuild industrial relations. Neil Carberry, the chief executive of the REC, said:

“The government’s proposal will not work. Agency staff have a choice of roles and are highly unlikely to choose to cross picket lines.”

There is a safety issue. The health and safety of agency workers and the potential impact on public safety is of serious concern to trade unions. Studies suggest that temporary agency workers are exposed to more hazards than others, and have higher rates of workplace injuries and ill health. A simple search of the Health and Safety Executive’s prosecutions over the last five years shows a litany of employer failures: a lack of training of agency workers, a lack of access to protective equipment, and a lack of supervision and monitoring of agency workers to ensure that they understand and are following risk assessments and safe systems of work. Sadly, those failures have resulted in fatal or life-changing injuries among agency workers. We also know from agency workers that their health and safety is often overlooked. When the work involves delivering a public service, that can present risks to the service user or endanger wider public safety.

The Health and Safety Executive and other safety bodies broadly agree that the components of a positive safety culture and successful health and safety management, leading to fewer incidents, include good communication, competence, training and induction, good team working, ability to raise concerns with no detriment, and good worker involvement. The hiring of agency workers to try to disrupt industrial action would not achieve that.

There are also concerns about public safety. Under section 3 of the Health and Safety at Work etc. Act 1974, employers taking on agency workers are responsible for their safety and the safety of the public. The agency placing the worker also has responsibility, and we suggest that failures in safety occur owing to the lack of communication and consultation between the two duty holders, with the safety of the agency worker falling through the gaps. That is borne out by reports from the Health and Safety Executive, which found that about half the recruitment agencies surveyed did not have measures in place to ensure that they were fulfilling their legal obligations.

This proposal is not practical. As was pointed out by Members earlier, there are currently 1.3 million vacancies in the UK , which is a record high. Data shows that the number of candidates available to fill roles has been falling at a record pace for months. In this tight labour market, agency workers are in high demand and can pick and choose the jobs that they take. Are they seriously going to take a job in which they have to cross a picket line in order to get a shift, rather than picking a different one? [Interruption.] Perhaps the hon. Member for Stoke-on-Trent North (Jonathan Gullis) would, but I have to say that he is a unique case.

[Grahame Morris]

Does the hon. Gentleman agree that many Conservative Members would prefer to turn the clock back to the days of the bond and indentured labour? My grandfather’s father was paid a modest sum as a bond to be an indentured labourer in the mines. It was illegal to go on strike, and if workers did go on strike for better terms and conditions, they were evicted from their homes. It is a disgrace that Conservative Members are trying to turn the clock back to those days.

[Chris Stephens]

Of course, it was Conservative Members’ party that introduced the Master and Servant Act 1823. I could say more about that, Madam Deputy Speaker, but I will not.

[Jonathan Gullis]

Go on!

[Chris Stephens]

Well, it was about what implements could be used to discipline a worker. The hon. Gentleman may want to reflect on that, because the Whips might have done something to him last week when he was taking his industrial action.

What the hon. Member for Easington (Grahame Morris) said was correct. I do not think the Conservatives understand what happens in the workplace. That is the issue here. They think that agencies will replace the striking workers, but that is just not going to happen. An agency worker who can choose between crossing a picket line to get a shift and not crossing the picket line and getting a shift somewhere else will choose the latter option.

[Rachael Maskell]

The hon. Gentleman is making an excellent speech. It is also the case that employers in safety-critical industries will not want to hire agency workers because they know that the liability will sit with them when the injuries and the accidents occur. Those roles often feature in safety-critical areas. These workers are simply irreplaceable.

[Chris Stephens]

That is absolutely true. There is a suggestion that the rail industry could bust the current rail dispute by hiring agency workers. Where are the unemployed signalmen who are sitting at home saying, “I cannot wait for the railway workers to go on strike so I can get a shift”? Those people do not exist. This is completely wrongheaded, and utterly impractical. In the gig economy, so-called key workers fighting for better employment terms and pay seem to be expendable under a Tory Government who do not care. Where is the employment Bill that the Government have been promising us since 2015?

There is another point that I forgot to make at the beginning of my speech. Last week, after his resignation, the Prime Minister made a commitment not to introduce legislation that was not in the Government’s manifesto, and not to introduce controversial legislation. Well, by any measure, this is controversial legislation, and, crucially, it was not in the Conservative party manifesto, and therefore it should not be introduced.

I have a couple of questions for the Minister. What assessment has the Secretary of State made of the compatibility of the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022—which we are discussing today—with the Human Rights Act, the trade and co-operation agreement with the European Union, and the UK’s commitment to the International Labour Organisation’s fundamental conventions, including convention 87, article 3?

We have heard about the impact assessment, but what consultation have the Government had with the rail industry employers, rail industry unions and rail industry regulators, including the Rail Safety and Standards Board, about the risk assessment of the use of agency workers in safety-critical parts of the rail industry? What consultations have the Government had with devolved Administrations, local authorities, health boards and other public services? I am guessing that they have not had such consultations, because if they had, they would have been told that these proposals were not workable. And what consultation have the Government had with the employment agencies themselves? We have already heard that the agencies do not support this legislation.

We in the SNP will certainly be opposing this statutory instrument and supporting the Labour prayer. My friend on the Labour Front Bench, the right hon. Member for Ashton-under-Lyne, is a good Unison comrade and I have known her for 15 years. I know that the trade union is proud of her working here, as well as of other hon. Members.

It is madness to say that no impact assessment has been produced for this SI because no significant impact on the private, voluntary or public sectors is foreseen. Fining trade unions for pursuing strike action that is deemed unlawful is a deliberate Tory attack to undermine the ability of trade union members and working people to pursue their aims. Instead, the Transport Minister should be negotiating with the trade unions—sitting down with them and seeing if he can help to resolve this dispute. It is quite incredible how this Government do not understand working people or how modern trade-unionised workplaces operate. This statutory instrument that they are proposing should therefore be placed in the bin.

[Madam Deputy Speaker (Dame Eleanor Laing)]

I am going to impose a time limit of four minutes.