Over the last year, the TUC has highlighted just how many of the workplace rights most of us take for granted come from Europe and how these rights could be at risk as we prepare to leave the EU.
The government has sought to allay these concerns by promising the Repeal Bill would protect workers’ rights by incorporating them into UK law.
Yesterday, the government finally published the European Union (Withdrawal) Bill – formerly known as the (Great) Repeal Bill. So what if anything, will the Bill deliver for working people?
EU law should no longer apply
The starting point in the Bill is to the repeal the European Communities Act 1972. This means EU law will no longer apply in the UK and European Court of Justice (ECJ) judgments will no longer be binding on UK courts.
Retaining EU rights on day one
The Bill then moves on to one of the largest cut and paste jobs ever witnessed in legislative history. It seeks to ensure all EU sourced laws, including workers’ rights, consumer standards and environmental protections will be retained or incorporated in UK law once we exit the EU. This includes Treaty provisions which individuals can currently rely on in UK courts – such as Article 157 which protects the right to equal pay. Even free movement rights for EU citizens will form part of UK (that is until any new Immigration Bill changes things).
The government says its aim for this part of the Bill is to provide certainty for businesses, workers and the wider public and to ensure that on the day that the UK exits everyone will have the exact same rights they did the day before we left. So far so good – you may think.
But then we dig a bit deeper and things start to look a whole lot less rosy for working people.
Human rights on the line
The one major omission in the Bill is the Charter of Fundamental Rights – which the government has decided should not form part of the UK law in years to come. The government claims the Charter was never intended to create any independent rights for UK citizens – therefore it’s fine to overlook it. To which one response must be – tell that to the TV and film technicians who relied on the Charter’s predecessor to secure holiday pay for freelancers!
An executive power grab
And then we turn to part three of the Bill and the remaining 57 pages, which set out the wide-ranging new powers for government ministers to scrap, water down or modify EU based rights. And all without the need for full Parliamentary scrutiny. Some commentators have asked – is this what returning control to our elected representatives really looks like?
No safeguards for workers’ rights
You would be hard pushed to find anyone who voted for fewer workers’ rights once we leave the EU.
Yet despite the government’s commitment to safeguard EU workers’ rights, the Bill contains no special protections for employment rights or health and safety standards. Not even the Equality Act 2010 will be immune from the new powers.
That said, the Bill does place some limits on future government action. According to Clause 7, the new powers should only be used where existing EU sourced laws don’t operate effectively or are otherwise deficient. But decisions on whether these tests are met will not be taken by the general public or by the workers who benefit from the rights. They are to be made by Ministers – without the need for any consultation or even prior debate.
The Bill also contains a ‘sunset clause’ – which would bring the new powers to an end two years after the UK exits the EU.
But will this mean working people will be able to breathe a sigh of relief after this date in the knowledge their rights will be safe? No I would suggest. For there is nothing in the Bill to stop a future government from introducing a new Employment Bill or from using other order-making powers to shred or water down employment rights.
Workers’ Rights remain at risk
So has the government allayed our fears that workers’ rights will be at risk when we leave the EU?
The Repeal Bill may keep workers’ rights safe in the short term. But in the longer term, the risk remains.
This is not to suggest that we expect there will be a massive bonfire of workers’ rights as soon as the UK exits the EU.
But employers’ lobby are already drawing up plans for the salami slicing approach of workers’ rights. Whether it’s:
changes to the way holiday pay is calculated
fewer rights for agency workers or
weaker rights for outsourced workers allowing employers to compete for new contracts on the back of lower pay.
Such changes may seem small on the surface – but they would make a real difference to working people.
Failing to keep pace with Europe
And of course the Bill will do nothing to ensure that UK workers’ rights keep pace with those enjoyed working people across Europe in Germany, France or Spain. On the contrary – the Bill actively prevents Ministers from using new order-making powers to update UK law in line new worker rights secured in Europe (see Clause 7(3)).
UK workers also are likely to lose out on future wins secured in the ECJ. In recent decades, the ECJ has repeatedly delivered improvements in the rights for UK workers– be it the right to equal pay for equal value work, improved pension rights for part time women workers or rights to be consulted on collective redundancies. In years to come. UK workers risk missing out on similar advances. Once the UK leaves the EU, our courts may be able to consider new ECJ decisions – but will not be required to follow them.
So all in all, the Repeal Bill delivers very little for working people.
Which is why the TUC is calling for the new trade agreement to ensure that UK employment law keeps pace with the rest of the EU and for the European Union (Withdrawal) Bill to provide better protections for workers’ rights.
Hannah Reed is a Senior Employment Rights Officer in the TUC’s Economic and Social Affairs Department. This article first appeared on the TUC Touchstone blog. Copyright © 2017 ToUChstone, Trades Union Congress.