The battle over working time

I think it’s fairly obvious by now that the reason why the EU working time directive, and its application in UK law, was not on Hannan’s list was that it’s so very obviously at the very top of it he hardly thought it actually needed to be mentioned.

The assertion late last week by Kwasi Karteng, Secretary of State for Business Energy and Industrial Strategy, that the government had no plans to dilute workers’ rights was believed by no-one, for reasons not least of all that Kwarteng was co-author, along with a number of other leading representatives in this Vote Leave government (Priti Patel and Dominic Raab among them), of Britannia Unchained. This was a call written back in 2012 for an end to the UK’s ‘bloated state, high taxes and excessive regulation’ and (in)famously described UK workers as:

Among the worst idlers in the world. We work among the lowest hours, we retire early and our productivity is poor.

Karteng’s non-credible denial was rapidly followed yesterday by confirmation in parliament that the government is, indeed, looking at scrapping some EU labour laws, including a ‘relaxing’ of the working time directive. Another lesson in the ‘never trust a Tory’ narrative.

In the midst of a pandemic and post-Brexit uncertainty – is, of course, scrapping workers’ rights can scarcely be much of a priority. Working class families are struggling with huge numbers of issues, including insecurity at work as a result of employment laws failing to keep up with the pace of change in employers’ exploitation of them, while still (in substantial numbers of cases) occupying positions as keyworkers keeping this country going. Furthermore, ‘building back better’ post-Covid-19 requires the sorts of consensus-building exercises and extending involvement to workers’ organisations that, actually, comes as second nature in Europe proper but which is clearly entirely foreign territory to this government. By definition, scrapping workers’ rights does not embody much in the way of consensus building.

Other than that, however, I wanted to make two (main) points.

Firstly, Karteng points to ‘being struck’ by ‘how many EU countries – I think it’s about 17 or 18 – have essentially opted out of the working time directive’. This is of course rhetorical nonsense: ‘countries’ cannot ‘opt out of the working time directive’ – EU health and safety laws have general application across the EU and are not available on the pick’n’mix counter. (As indeed should social and employment rights not be either, although that is a slightly different argument.) What he does mean is that member states are allowed to deviate from bits of the working time directive where – crucially, but which is frequently forgotten – this is with the agreement of the individual worker (calling to mind here the blanket forms issued to employees, especially new recruits, and where coercion rather than ‘agreement’ has been the keyword). Alternatively, this can be done – other than in the UK – where there is a collective agreement in place. With the specific maximum 48-hour week limit in mind (the working time directive being about much more than just that), there is a qualification which must be met about the protection of the health and safety of workers being guaranteed. This is all covered summarily, and very usefully, in Opting out of the European Working Time Directive, a publication from the European Foundation from 2015 and bits of which Karteng – more probably an adviser – seems to have read.

In particular, pages 4-5 of the document summarise the positions across the then EU. Broadly, it is not possible for workers to opt (or be opted) out of the provisions across Scandinavia, southern and south-eastern Europe (other than Bulgaria) and Ireland; some, limited opt-outs are available across the swathe of central Europe; while broad opt-outs are (or were) the case in the UK, Cyprus, Malta, Estonia and Bulgaria.

Consequently, the number of opt-outs are (surprisingly) not as many as Karteng would like to portray and, actually, they encompass those among the peripheries of the EU. So, it will not be as easy as all that to remove these protections without triggering a response in kind from the EU as regards the tariffs it will be able to impose, under the free trade agreement agreed and signed before Christmas, where the UK departs from EU norms.

I suspect that Karteng knows this very well and that this exercise is a little bit of testing the waters to see who is listening (the EU will be, of course) and thus to see what he may be able to get away with. But it won’t therefore be much, except at a price: the UK can only depart from EU norms under the agreement in limited, and heavily circumscribed, ways: the price of negotiating with experienced, expert negotiators. The phrase ‘rule taker, not rule maker’ springs to mind as regards the UK’s post-Brexit future – while that, of course, for any number of reasons including among Brexiteers themselves, is simply unsustainable in anything other than the short-term. Again, I suspect Karteng is also very well aware of this. Expect therefore more war, in private of course, within the Tory Party over the next few years. This testing of the waters is being done with that in mind, too.

Secondly is the issue of the direction of reductions in working time. Historically, working time fell for much of the twentieth century but, from around 1980 onwards, such a trend has slowed and even, in some cases, been reversed. There are a number of reasons for this, explained in depth in a very useful paper – The Why and How of Working Time Reduction – written by colleagues from the European Trade Union Institute (I believe an update will also be available shortly). Again unsurprisingly, hours (of full-time workers: the key to the Britannia Unchained phrase) are not lower than elsewhere: such hours are pretty standard but the UK ranked among the highest in the EU.

The working time directive is a health and safety law. It was proposed under a particular section of the European legislative framework allowing a majority vote by member states and its aim is to improve health and safety. Nevertheless, it also improves social rights in allowing workers the opportunity to control, in some small way, aspects of their working time and, thereby, to achieve some measure of influence with the employer as regards their work-life balance. All of this is, of course, why the Tories hate it and why the working time directive is at the top of the list for removal (pro tem: restriction). It also explains very well why it needs to be defended. At a time of the deunionisation of society in general – stout battles still taking place in certain sectors – we can expect to see such gains as were made in working time during the first three-quarters of the twentieth century reversed here too, deunionisation being one explanation for the gains having come to a halt.

As Brexiteers have already implicitly observed, this issue is one that underpins huge aspects of the future social organisation of this country. It concerns not only the decoupling of wages and productivity – with gains in national income not going to workers over the last few decades – but taken instead by capital owners in the form of corporate profits and shareholder dividends. It is not just that, to quote that phrase again, ‘productivity is poor’: it is, but quite clearly wages are even poorer and, in comparison, becoming increasingly so. We know from the theory that such a decoupling leads to rises in income inequality – something in which the UK is, shamefully, among the countries already taking a bit of a lead. But also, with fresh concerns of job loss through mechanisation and robotisation (on top of those lost in the destruction wreaked in hospitality and the arts and entertainment industry during the pandemic, as well as the loss of workers who have, simply, gone away), reduced working time in compensation for the impact of mechanisation on the jobs and security of workers has again come back on the agenda, as indeed has the idea of a universal basic income.

When we emerge from the pandemic, the quality of jobs will also matter and, in this respect, a National Recovery Council, as proposed by the TUC, has a clear role in building consensus and support for a better, more inclusive society. Furthermore, if the loss of substantially younger workers as pointed to by ESCoE is correct, increased mechanisation to deal with the loss of workers is one possible outcome. That may, in turn, raise productivity – but wages, and the labour share in general in terms which also encompass working time, need to rise too. Working hours in the UK are not low – but they do need to be lowered and there are thus many pressures building in that direction.

All this is why the Tories want to knock the working time directive on the head – and, furthermore, why they want to do it now while the pandemic is causing much of a distraction and when this lends itself, at a time of prospective rises in mechanisation, all too readily to people being regarded as ‘lucky to have a job’.

As always: Join a Union. And Organise.

First shots fired in post-Brexit battle

On Wednesday this week, as Washington DC was preparing, on the one side, and not (on the other), for the substantially white privilege ‘revolution’ that did, in contrast, turn out to be of the televised type, the soon-to-be-Lord (Daniel) Hannan, Lima-born and raised and privately educated, published his list of regulatory ‘barriers’ that a post-Brexit UK could ‘disapply’ (trigger warning: post is on Conservative Home). These include (as listed):

  • Temporary Workers’ Directive
  • the REACH Directive
  • the End of Life Vehicles Directive
  • the droit de suite rules and other regulations that hurt London’s fine arts market
  • the Alternative Investment Fund Managers Directive
  • chunks of MiFID II
  • GDPR
  • the bans on GM.

Alphabet soup apart (and I’m not going to decode any of it here), this is quite astonishingly specific and betrays, in part, Hannan’s own petty concerns, some apparent pay-offs to mates and some things of which I suspect he actually has rather little working knowledge.

None of this is of course a surprise: the only surprise is that the Working Time Directive – setting out rest periods and prescribing minimum rest breaks and leave entitlement for workers – commonly thought to be the first target of Brexiteers, isn’t on the list (though Hannan clearly sets out that the EU directives he sets out are non-exhaustive, in which case the WTD surely hasn’t been forgotten). In a move that was clearly choreographed, Boris Johnson held a call with business leaders later the same day asking them to come up with ideas for changing the regulatory environment because ‘the UK would need regulatory and legislative change’ (no ££).

It’s clearly about time we had another ‘red tape challenge’: with two this decade (in 2011 and 2019) so far, on top of certain aspects of the 2012-2014 ‘balance of competences’ review, and the 2014 consulting on ‘gold plating’ the TUPE regulations, there is clearly a mini-industry (not least in media headlines) needing to be fed and sustained. Indeed, you’d almost think that asking the question, rather than coming up with anything practical to do, was the point. Businesses are, by the way, likely to use the opportunity to have a varied but wide-ranging moan over the costs of employing young women who then become pregnant – a somewhat flippant response, perhaps, but one which also has at its heart the implicit core of the problem as to why these ‘challenges’ continue to come around regularly with little apparent effect in practice: the costs to businesses of continual labour turnover as a result of poor employment policies are significantly greater than the costs of complying with regulations which actually raise labour standards; while the regulation that remains in place overwhelming has a clear, and useful, function. For all that it walks around with a target perennially pinned to its back, regulation not only protects but also supports ourselves as citizens in terms of our health, the environment within which we live and the cohesiveness of our society. That is why it is hard to get rid of, despite all the noise its reduction is able to generate.

It will be interesting to see who is listening to Hannan – who is, by the way, an adviser to the Board of Trade as well as President of the Initiative for Free Trade (a well-connected think-tank whose mission is to use Brexit to advance the case for revitalising the world trading system). If Hannan does get his way then, on the strength of this list alone, the Brexit that results will clearly be that of the elites.

Other than that concern, the central significance of Hannan’s post is that it highlights that Brexit will not be over for some time to come – indeed, that we are only at the beginning of a very long and hard road ahead. Given the current policy vacuum at government level, on top of the inability of Brexiteers over the last four/five years to indicate what Brexit should look like other than in terms of simple (‘side of the bus’) slogans, there is inevitably space for people like Hannan to fill with such concepts as deregulation (most obviously, but no doubt among others). Furthermore, the free trade agreement signed on Christmas Eve and the joint UK-EU commissions that it envisages gives plenty of space not only for debate over the tariff costs in terms of a UK which actively seeks divergence from European standards; but also in terms of how that agreement can be developed and improved upon not least in terms of supporting workers’ rights in ways that reflect social policy improvements within the EU. Additionally, while the free trade agreement might solve problems over tariffs, it is – as businesses are already starting to find out – the non-tariff barriers that the single market brought down that are the key to trading successfully. Here, not least in the context of deregulation, there is the rising amount of realisation (see here, for instance; or otherwise here) that, at least in this first week, Brexit actually means more red tape for industry, not less. On top of all this, and rather less prosaically, there is the notion of full independence for Scotland, on which this blog will no doubt have more to say, as well as the question of a united Ireland, the growing YesCymru movement and the existence of support for improved democratic representation within England itself. The price of ‘sovereignty’ is indeed likely to be a much smaller territory over which that dominion reigns.

All these are ways in which the future shape of the UK will be competed over as a result of the Brexit bow wave. Politically therefore, the notion that the word ‘Brexit’ can be avoided – in ways akin to Johnson’s own attempts this time last year to ban the word – is not only itself simplistic but also naive. Labour may not now need to define what Brexit means – but it does need to define what the UK should look like in its wake. The first shots in that war have, at the very least, been fired by Brexiteers which provides some cover for Labour being able to say the word again; and, most certainly, to ensure that the vacuum is filled not only by the likes of Hannan.

In the meantime, it is worth noting that such shots were fired to (not at!) an exclusively business audience. In the context, that’s probably unremarkable in itself – but I wonder how that will go down amongst new-blue voters in so-called ‘red wall’ seats? Was that really the Brexit they thought they were voting for, either in 2016 or in 2019? And did they really believe, in 2019, that they were voting for an end to Brexit?