Transcript Labour Law in a time of Migration

Labour Law in a Time
of Migration
Bernard Ryan
School of Law
University of Leicester
Labour Migration in Hard Times
Institute of Employment Rights
20 November 2013
Overview
British labour market characterised by:
• weak labour law/ industrial relations framework of regulation
• growth in labour migration, including in lower skilled work
Post-1979 period of de-collectivisation and weak regulation facilitated the rise
in labour migration from mid-1990s. (Among many factors.)
Could migration lead to revitalisation of labour law?
• Migration leads to greater labour market competition, which labour law
historically regulates
• Desirable to promote social acceptance of migration in a context where
likely to continue, for legal and economic reasons
• Labour law reform preferable to caps and net migration target as a strategy
for migration management – as applies to all migrants, not only non-EEA.
The rise in foreign-born workers
Foreign born workers %
16.0
14.0
12.0
10.0
8.0
6.0
4.0
2.0
Source: Labour Force Survey, for United Kingdom
2013 Q2
2012 Q2
2011 Q2
2010 Q2
2009 Q2
2008 Q2
2007 Q2
2006 Q2
2005 Q2
2004 Q2
2003 Q2
2002 Q2
2001 Q2
2000 Q2
1999 Q2
1998 Q2
1997 Q2
0.0
Evidence concerning the effects of migration
• Evidence that foreign-born, and especially recent migrants (resident for five years or
less) in lower-skilled work - Rienzo/ Migration Observatory (2012):
- By occupation: in 2011, the ‘elementary process plant’ (39%), food preparation
(29%), process operatives (28%) and elementary cleaning (25%)
- By sector: food manufacturing (35%), domestic work (30%), food and beverage
services (28%). occupations and sectors.
• Evidence of employer dependence on, and/ or preference for, migrants in skilled and
unskilled sectors –e.g. papers in Ruhs and Anderson (2010), concerning health,
social care, hospitality, food production, construction.
- Dependence: linked to (i) cost and delivery pressures within sector, or (ii)
insufficient provision for training
- Preference: linked to perceived greater fit with employer organisational demands
• Some reduction in average wages for bottom 20% of wage spectrum – Dustmann,
Frattini and Preston (2013) –LFS data up to 2005 (and now?)
Labour law in the migration debate
Ed Miliband speech to IPPR on 22 June 2012:
“In [some] sectors, immigration in the last few years collided with a labour
market that is too often nasty, brutish and short term … That means tougher
labour standards to do more to protect working people from their wages and
conditions being undermined.”
Followed in
• speeches by Yvette Cooper (7 March 2013) and Chris Bryant (12 August 2013);
• response to Immigration Bill (Yvette Cooper at 2R stage, 22 October 2013,
amendments proposed in Committee stage on 7 November 2013)
Alternative to the incoherent position of Conservative Party/ Coalition: reducing
net migration below 100,000 per annum, without re-regulation of labour market
But will protectionism be avoided in exposition of the policy, and in the detail?
Access to work
Employers might wish to (1) favour migrants for perceived advantages, or (2) British or
local workers, including after pressure others.
Area is regulated by race discrimination law:
• Direct nationality discrimination is prohibited by Equality Act 2010, including
choosing ‘British’ or specific non-British nationalities
• Indirect discrimination will be in issue if recruitment rules or practices favour or
disfavour a given nationality
• Objective justification: employers may have recourse to arguments concerning
difficulty of recruitment, or need for workers with a given language/ residence.
Probably unable to justify favouring British/ local workers by reference to wider
public policy objectives.
• Questions of proportionality may arise – if a valid employer argument, but addressed
in a manner which excessively favours or disfavours a particular nationality
• Problems of proof significant. (Recording duties, transparency?)
• 2010 Act applies to employment agencies, and to employers who use them (Equality
Act 2010, sections 56 and 39).
Labour policy on access to work
Apparent discrimination against British workers by employment agencies:
• Chris Bryant speech in August 2013, that some agencies recruited exclusively from
another member state (citing Next/ Poland example).
• At Committee, amendment proposed to Employment Agencies Act 1973: “By order
the Secretary of State can prohibit UK based agencies … from including only people
not ordinarily resident in the UK as their clients.”
• If this is support for the Equality Act 201o, it ought also to prohibit agencies which
include only those who are resident in the United Kingdom
• Refers to “clients”, rather than to a particular employer or work
• Applies only to ‘UK based agencies’, which not defined - ought to address application
of 1973 and 2010 Acts to agencies based in other states
Labour has also criticised “employers who recruit for some shifts only from certain
nationalities” (Yvette Cooper, 22 October 2013)
• Committee stage proposal to amend Equality Act 2010 s 39, to prohibit
discrimination “as to [an employee’s] shifts or hours of work”
• What would such a rule prohibit? Separation still possible in practice.
• Does not address discrimination at recruitment stage (pre-employment)
Labour policy on pay and conditions
June 2012, Ed Miliband that “tougher labour standards” needed to prevent
“wages and conditions being undermined.”
August 2013, Chris Bryant included “the undercutting of workers' terms and
conditions” among Labour’s “concerns about immigration
Taken forward in two Committee stage proposals:
• A new civil penalty for breaches of minimum wage rules of up to £50,000
[intended for s 31 NMWA 1998]
This additional to the payment of wages owed; penalty of 50% of that sum,
to a maximum of £5000 [both, s 19A NMWA 1998]; and, criminal offences
[s 31 NMWA 1998]
• Enabling local authorities to appoint officers to enforce the NMWA
[intended for s 13 NMWA]
These would be additional to HMRC officers.
Labour policy on enforcement
• Gangmasters Licensing Authority is a system of licensing of intermediaries
in agriculture and food processing
• Policy announced (starting with Ed Miliband in June 2012) to “look at”
extending the remit of the GLA to “to other industries where there is
exploitation”
• Probable candidates for such an extension are social care, hospitality and
construction.
• Committee stage amendment would allow Secretary of State to extend the
scope of the Gangmasters (Licensing) Act 2004 to “any further work which
by order of the Secretary of State is defined as relevant to this section.”
• Somewhat odd formulation – avoids defining the characteristics of a sector
which would permit such a step.
Further reform options
Pay and conditions
• From minimum wage to living wage
• Mechanism for extension of collectively agreed terms and conditions
(linked to debate over posted workers)
Enforcement
• Registration or licensing for all employment agencies, not only gangmasters
• A labour inspectorate to end the piecemeal approach to supervision
• Express provision for legislation to extend to workers hired elsewhere (via
agencies or directly)
• Protection of labour law extended to irregular migrant workers
Conclusion: reform or protection?
Labour’s focus on exploitation of (migrant) workers is to be welcomed
Risk of adopting a position or policy which is protectionist in spirit –
especially if developed within home affairs, no evidence of input from
business/ labour law
Such a policy has far less chance of securing public acceptance for inevitable
migration
It would also miss out on the opportunity for revitalisation which the current
context presents
Preferable to seek:
• a level playing field in the labour market
• a reasonable standard of living for all
• protection of those in an especially marginal position.