My Lords, I thank the Minister for introducing this debate, but what I heard was a lot of gesture politics and nothing about how we improve industrial relations in this country. In moving this amendment, I will focus on the failure to consult, the lack of an impact assessment when the statutory instrument was laid, and whether the instrument will meet the Government’s policy objectives.
The Employment Agencies Act 1973 requires consultation before changes are made. Rather than consult on the new regulations, the Government are relying on a consultation conducted in 2015, when Ministers previously considered similar changes. I do not see how it can be justified for a seven-year old consultation to apply to legislation being laid in 2022. Things have changed considerably in those seven years, both industrially and politically. Even the department itself acknowledged that
“circumstances have altered in some ways”.
However, it did not think that these were
“particularly relevant to the changes”
proposed. Tell that to the employees of P&O Ferries, where agency workers were used to undermine a collective agreement and replace unionised jobs. P&O’s actions were met with condemnation from all political parties—including the Minister’s—unions and employer organisations alike.
Turning to the 2015 consultation, let us not forget that 70% of the respondents were of the view that the changes would impact negatively on employees, yet the Government still believe that they have got the balance right between the interests of individuals—by protecting their right to engage in industrial action—and the interests of the general public.
Despite what the noble Lord says, I think it has the completely opposite effect. They are not defending individuals’ rights. Rather than focus on supporting negotiations to resolve disputes, we have a Government determined to undermine workers and damage good industrial relations. The use of agency workers during a strike would increase tensions between workers and their employers. This is bound to make disputes more difficult to resolve amicably.
Let us not forget: strikes are a last resort, as the noble Lord says, and most negotiations resolve in an agreement. Even where a strike takes place, the resolution requires agreement and this Government are doing nothing to support negotiations and reach settlements and agreements. It will make it far harder for working people to organise collectively to defend their jobs, their livelihoods and the quality of their working lives. This would be a shameful outcome for a Government which only a few years ago promised to protect and enhance workers’ rights.
The Explanatory Memorandum to the draft regulations stated:
“The Impact Assessment will be published in good time before any parliamentary debates”.
That did not happen. The explanation for the delay, given to the SLSC by the department, was that an impact assessment had been produced but needed “final quality assurance checks”. As the SLSC reminded us, every time an instrument is laid without the supporting impact assessment, it undermines the ability of Parliament to scrutinise legislation effectively.
Last week, the Government belatedly published an impact assessment. This featured, as the noble Lord said, vastly reduced costs and benefits from 2015, suggesting that any net benefit for businesses is expected to be below £5 million per year. The impact assessment published in 2015 was declared not fit for purpose by the Regulatory Policy Committee because it did not provide sufficient evidence of the likely impact of the proposals.
Of course, the SLSC rightly drew attention to the Secretary of State’s statement that it is not possible to robustly estimate the impact of the policy due to the lack of evidence. That is where we are: no evidence. This is purely a political gimmick without any consultation with those most affected, including employment agencies and workers. How can we believe the assumptions in this latest assessment?
The lack of robust evidence and the expected limited net benefit must raise questions as to the practical effectiveness and the benefit of the proposed repeal of Regulation 7. I repeat that this change is opposed by employment agency businesses, trade unions and employee organisations alike.
In his letter to noble Lords, the Minister stated that:
“We believe the changes we are making will help mitigate the impact of future strikes, such as those seen on our railways this week, by allowing—
—and these are his words—
“trained, temporary workers to carry out crucial roles to keep trains moving.”
What is clear is that there is not a large pool of sufficiently trained and qualified agency workers able to replace most roles on the railway and in most other sectors. They are simply not there, so what is the purpose of this change?
Neil Carberry, chief executive of the Recruitment and Employment Confederation, says:
“The government’s proposal will not work. Agency staff have a choice of roles and are highly unlikely to choose to cross picket lines.”
In addition to the damage to constructive employment relations, agency workers could also face a terrible choice between crossing a picket line or turning down an assignment and risk not being offered future employment.
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Agency workers recruited at short notice are unlikely to have received relevant health and safety training. Despite what the Minister says, this could lead to accidents and injuries in the workplace, with the safety of other workers or indeed the public being put at risk. Absolutely no one wants undertrained staff in food factories or working on track maintenance.
I have previously asked the Minister what assessment the Government have made of the compatibility of these regulations with the Human Rights Act, with the EU-UK Trade and Cooperation agreement, and with the UK’s commitment to the ILO’s fundamental conventions, including article 3 of convention 87. In response, he stated that the Government were confident that they were meeting all their international obligations —so what assessment has he made of the assertion by the International Labour Organization’s Committee on Freedom of Association that:
“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”?
That is something that the Minister has repeatedly said that the Government are determined to defend—it does not look like it to me.
On the SI relating to tort and increasing the damages, I would like to hear what the Minister would say to trade unionists who demanded a 400% increase in salary if they had not had an increase in the previous five years. Are we going to apply that principle to wage negotiations? Will it apply to the employees of BA who have suffered cuts, or to other employees who throughout the pandemic had their salaries and conditions lowered? Are we going to see the Minister defend that? Of course not. The Government want this increase but there is little rationale for the change.
This element of the legislation is barely used; in fact, the department’s own evidence shows that the last time there was a case under it was in 2003. What justification is there for doing this apart from having a
chilling effect on industrial action? A £1 million fine would seriously damage the finances of a trade union and indeed could cause some to collapse. That is not because unions deliberately break the law, as the Minister well knows. It is easy for even the most careful trade union to fall foul of the many requirements on issues such as timescale and giving notice. On top of that, they may face huge legal bills to protect that right which the Minister considers fundamental. What consultation has been conducted on this increase? What impact assessment has been made in respect of the trade unions?
From the report of the SLSC and the evidence of both employer and employee organisations, it is difficult not to believe that the two instruments we are considering are simply a political exercise to deflect from the failure of this Government to engage meaningfully with the organisations affected to resolve disputes. It is political gimmickry that does nothing to support our workers and good industrial relations.