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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.

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Presentation on theme: "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."— Presentation transcript:

1 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

2 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.

3 The rise in foreign-born workers Source: Labour Force Survey, for United Kingdom

4 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?)

5 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?

6 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).

7 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 employees] 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)

8 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 Labours 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.

9 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.

10 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

11 Conclusion: reform or protection? Labours 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.


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