TO DENY national collective bargaining to care workers in Scotland is a grave error of judgement.

Thanks to the efforts of Labour MSPs and unions in Scotland, Neil Findlay’s proposal for national collective bargaining for care workers in Scotland was passionately debated in Holyrood last week. Put to the vote, the amendment to the Coronavirus (Scotland) no. 2 Bill was heavily defeated by the SNP voting as one with Scottish Conservatives. 

Based on my years of research about care workers and the regulation of care work, I conclude this was a grave error of judgement. The exclusion of care workers’ from decision-making has cost lives during the coronavirus pandemic, in Scotland and elsewhere. Acting in the interests of public health provides the strongest possible reason to introduce collective bargaining for social care as a matter of urgency. The Scottish government (and indeed the Welsh government) are ideally placed to act now. They can make good on a track record of support, in principle, for collective bargaining in social care and deliver this most important form of assistance to care workers.

The amendment would have required the Scottish government to establish, as a soon as possible, a national system for trade union representatives to negotiate with private-sector employers in social care.  

The remit for those negotiations would have been to ensure all workers benefited from consistent arrangements for terms and conditions of work about issues relating to coronavirus. Those issues were defined as being general, but explicitly included death in service payments and other payments relating to coronavirus. 

The proposal was, therefore, specific to the coronavirus epidemic and it required the employers of care workers to collectively negotiate with the representatives of care workers.  It was modest. The Scottish government was essentially being tasked with establishing meetings in which care workers were welcomed to the negotiating table as the equals of their employers.  

The proposal was rejected however on the basis that establishing such meetings would be “impossible.”  The word “impossible” was used over and over again by the Cabinet Secretary in his resolute refusal to support the amendment, at one point during the third reading describing it as an “impossibilist demand.”  

It is an extremely curious basis for opposition. I was reminded of the words of Mohammed Ali: “Impossible is just a big word thrown around by small men who find it easier to live in the world they’ve been given, than to explore the power they have to change it. Impossible is not a fact. It’s an opinion.”

Over the past five years the Scottish government has moved from voicing its general support for collective bargaining, to supporting the specific advancements of governance mechanisms in social care that are “similar to” collective bargaining and purport to deliver “worker voice.” These advancements were driven by the Scottish government’s recognition that the exploitation and poverty of care workers was politically and morally unacceptable. In tandem with the position in Wales, the Scottish government does not have legal powers to enact measures which are primarily concerned with matters of employment.  

However, both governments now have a wealth of evidence that collective bargaining on grounds of public health is both a necessary and legitimate exercise of devolved powers. The Covid-19 crisis in care homes should serve as a legal and political catalyst for the immediate introduction of collective bargaining as a primary method for decision-making in social care over coming months.  

In England, Scotland and Wales, policy mistakes have been made, and lives lost in care homes, in part because there has been no structural route for care workers’ views and knowledge to be given equal status to that of their employers. 

Health and social care professionals made errors in the drafting of their advice on the need for PPE and in their oversight of its distribution. The gaps in their knowledge about social care practices are, in part, because care workers’ voices and interests have been suppressed in a fragmented and marketised care industry. 

The virus has spread from community to care home and back again because care workers have not been afforded the dignity of wages when they are sick or shielding or when they need to self-isolate. 

Lack of occupational sick pay has discouraged care workers from getting tested and made it easier for employers to overlook the health and safety concerns of their staff.  

Chronically low wages have made it nigh on impossible to fill vacancies. Without a forum for negotiation for the entire industry, staff shortages have been framed as an inevitability of the pandemic when this issue should have been on the negotiating table and the problem could have been fixed. 

Indeed, the knowledge of care workers was not considered to be important when employers, civil servants and ministers facilitated the movement of workers between care settings in order to address staff shortages. 

I know that care workers would have advised them early on to abandon this deadly practice because research I undertook with Unison North-West and a survey of workers by Unison Scotland made abundantly clear that care workers were experts in knowing how the people they care for were being put at risk.  

Without collective bargaining for the sector, there is no mechanism through which care workers can be properly respected.  

Proper respect for care workers means giving care workers equal recognition as parties to decision-making and ensuring that care workers are engaged in negotiations as equals. 

At the current time, the private-sector care industry, especially in Scotland, is desperate for financial support from government. It is also eager to be protected from recrimination in the face of growing evidence of human rights abuses and public unease at what are considered to be avoidable deaths in care homes. 

Across England, Scotland and Wales, governments have lacked oversight of the private care industry and they have lacked insight about the day to day running of care services. 

They have underestimated infection risks in care home and home care services. They have struggled to distribute personal protective equipment to all care workers. Their regulatory agencies and ministers have struggled to gain accurate and timely information about deaths, infection rates, and staff shortages in care homes. These are ample grounds with which to establish the necessity of negotiations between care workers and their employers.  

The knowledge of care workers has not been taken into account in decision-making about the response to coronavirus, indeed the knowledge of care workers has not been sought out because it has not been recognised as important. 

However, care workers are first-hand witnesses to coronavirus in care settings, they are experts and they deserve a seat at the negotiating table. It is the job of government to tell social care employers to sit down at that table with them. 

This is no more than is required in the interests of public health. It is certainly not impossible. 

To oppose national collective bargaining for social care on grounds of “impossibility” does not withstand scrutiny. 

I would urge the Scottish government to rethink its opposition and encourage unions and MSPs to redouble their efforts in the midst of this unique crisis.

Lydia Hayes is Professor of Law at University of Kent and author of Stories of Care: A Labour of Law. Gender and Class at Work (2017). She is Principal Investigator of the Social Care Regulation of Work Research Programme funded by Wellcome Trust.