FOR many unions the Employment Rights Bill has been the saving grace of a Labour government whose policies on public services, welfare or climate change and a just transition give them little to cheer about.

But disquiet about the Bill’s future is obvious at the TUC Congress in Brighton this week. TUC general secretary Paul Nowak, making a spirited defence of the Bill as a means to tackle insecure work at the opening press conference, fielded questions on its failure to address the need for sectoral collective bargaining and exemptions the Unite union says make the ban on fire and rehire a “paper tiger” employers will easily get around.

And it wasn’t long before the Cabinet reshuffle prompted by the resignation of deputy prime minister Angela Rayner came up: not only was Rayner seen as one of the Bill’s champions in government, but unions quickly realised the reshuffle has been used to demote or move every single minister who has worked on it. 

Jonathan Reynolds, who had headed up the business department, has been redeployed; employment rights minister Justin Madders has been sacked. Peter Kyle, the new business secretary, does not inspire much confidence: performers’ union Equity general secretary Paul W Fleming recalled at the Trade Union Co-ordinating Group fringe meeting that as science and technology minister until last week Kyle “was very keen to get into bed with AI companies who are demanding that our members’ work is scrapped, that exceptions [to data protection rules] allow the data mining of our members’ work to train and create AI models.”

The Campaign for Trade Union Freedom (CTUF) has no doubts: “The government has succumbed to pressure from employers and business — there is no other sensible explanation for the sacking of the entire Employment Relations Bill team in the House of Commons and the House of Lords,” it stated yesterday. “The campaign is concerned that the government may compromise further on the House of Lords amendments, as well as bringing some of their own amendments.”

Tory and Lib Dem peers have submitted a succession of “wrecking amendments,” to quote former Institute of Employment Rights director Carolyn Jones at the joint IER-CTUF fringe meeting on Sunday night, reducing the ban on zero-hours contracts to a mere right to request defined hours and reintroducing the 50 per cent participation threshold for industrial action ballots among other bids to water down the provisions in the Bill.

Labour can easily bat away these amendments with its huge parliamentary majority. Unions’ fear is that the reshuffle indicates it may not want to. “We support a second employment rights Bill,” RMT leader Eddie Dempsey told the Sunday evening meeting in reference to the IER’s campaign for a new Bill to deliver on areas ignored or inadequately addressed by the current one, “but I’m now less clear whether we’re going to get the original Bill at all.”

Dempsey said he didn’t agree with speakers that day at Congress who said the Bill would prevent scandals like P&O’s 2022 mass sacking of ferry crews to replace them with foreign labour on lower pay. “Extending consultation rights for people in a situation like that makes absolutely no difference at all,” he pointed out, “when the employer intended to act illegally and breach the consultation regulations in the first place.” What RMT had called for, absent from the Bill, was “a real-time mechanism for us to bring an injunction against an employer should they act in breach of employment law.” That could have prevented the mass sacking, which P&O knew was illegal but judged it could get away with anyway.

He also stressed the need for the movement to unite to deliver sectoral collective bargaining across the economy — something the Bill only addresses for the social care sector (even there, the IER’s Lord John Hendy KC and Professor Keith Ewing note, the provisions don’t actually amount to collective bargaining because the government determines the remit of negotiations and can override the outcome).

“You can see the Labour Party is very nervous about Reform UK and is trying a number of things to appeal to Reform voters — ‘I’m an admirer of flags, an appreciator of flagpoles’ and so on — well, people who are thinking of voting Reform are working-class people who also want decent rights at work. This could be the biggest weapon they could use against Reform but instead it seems they’re peeling away from it.” 

On a deeper level trade unionism was the most effective weapon against the far right’s politics of division: “I’ve stood on picket lines with people I disagree with fundamentally, but once you’ve got people into that place where they’re prepared to support each other in the workplace before long those antagonisms melt away. People start to recognise each other as workers, as part of a class, and there’s nothing that brings those realities to bear quicker than a trade dispute. I’ve seen it happen in real time.”

Professor Ruth Dukes of the IER emphasised the Bill as it stands prioritises individual over collective rights: “Without a trade union presence in workplaces, without collective bargaining, employers remain free to interpret legal rules in line with their own priorities to avoid the law by designating workers as self-employed in one way or another.”

Neil Todd from Thompson’s Solicitors outlined ways the Bill has already been weakened. An original clause saying an employee would automatically count as unfairly dismissed if this was for refusing to vary terms of their contract has now been amended to specify that this only applies to “prescribed” terms — pay, pensions, hours or time off.

Employers have already successfully lobbied to preserve the right to alter employees’ duties without negotiation, saying they need this to be able to innovate and introduce new technology: initial insistence by government that changed duties should be collectively or individually agreed have disappeared from the legislation. “We know what’s coming next — hours, because [employers] repeatedly say they need flexibility to change hours.”

Public and Commercial Services (PCS) union leader Fran Heathcote says the Bill remains a significant step forward — for example “it delivers access to statutory sick pay for over a million more workers, and that’s something that would have saved lives during the pandemic” — but warned key provisions were being delayed “to allow for consultation, and we know what that means. More time for big business to get rid of parts of it — we’re going to have to fight very, very hard to defend gains bosses and corporate lobbyists will be working day and night to water down.” 

The unexpected scale of the reshuffle following Rayner’s resignation suggests that the deputy leader — whose elected status in that role made her hard for Keir Starmer to remove — was key to a network of “soft left” Labour ministers sympathetic to trade union concerns. Starmer, we heard at the TUC, looked trade unionists in the eye last week as he promised to deliver on employment rights: but it’s clear many unions are beginning to question that.