A Requiem for Workers’ Rights

A requiem for workers’ rights is about to take place in the European Parliament on Wednesday.

Commentary icon10 Jun 2015|Comment

Lord John Hendy QC

Chair of the Institute of Employment Rights

Keith Ewing

Professor of Public Law, King’s College London

A Requiem for Workers’ Rights

By Professor Keith Ewing and John Hendy QC

A requiem for workers’ rights is about to take place in the European
Parliament on Wednesday. Although the Order of Service is ostensibly a
celebration of the obscure Transatlantic Trade and Investment Partnership,
in the process it will be the final nail in the coffin carrying the European
Social Model.

The Transatlantic Trade and Investment Partnership – or TTIP as it is now
widely known – is the audacious free trade agreement between the US and the
EU. It is the latest in a large number of bilateral trade deals the
Americans have negotiated all over the world, and one of an increasing
number concluded recently by the EU – so far with countries such as Canada,
and Korea.

A major function of international free trade agreements is, of course, to
redress the regulatory imbalance between corporations trading under
different regulatory regimes. So it is necessary to level the playing field
to ensure that a corporation in one country does not have an unfair
advantage over its competitor in another. It is generally accepted that it
is unfair to allow international competition on the basis of low wages and
poor working conditions, ‘social dumping’ as the EU called it.

This has been well understood in Europe since the creation of the EU in 1957
(then called the EEC), with its entrenchment in the first EEC Treaty of the
right of men and women to equal pay for doing work of equal value. The EU
social model was founded on the principle of leveling up to the standard of
the best, across a wide range of working conditions.

No more. The EU has been fatally infected by the contagion of deregulation
(the removal of laws which protect workers – and others). EU Commission
inspired initiatives which eroded workers’ rights in Europe’s Mediterranean
and Celtic fringe have been brought to the very heart of the EU itself.
Deregulation is a deal TTIP will seal, with its surrender of workers’ rights
on the anvil of corporate self-interest.

Much has been written about the travails of TTIP, which has rightly
attracted resistance from citizens across the EU. Two million have
petitioned against it. Although their voices are not being heard, the
peoples of Europe have condemned the secrecy of the TTIP negotiations, its
threat to the NHS, to environmental and food standards and the rights TTIP
gives to multinationals to undermine the fundamental right of peoples to
govern themselves as they see fit.

But a much-neglected feature of the proposal is its impact on workers’
rights. Motions to be debated by the European Parliament on Wednesday make
only weak claims for workers that are no more than rhetorical. The likely
effect of TTIP on workers’ rights will be to drive the EU closer to the low
level of the US, rather than vice versa.

The defeatism in the European position is reflected in the documentation for
the European Parliament’s debate, drafted at best in aspirational rather
than mandatory terms. The demand is to ‘aim’ for rather than insist upon
full ratification of the core standards of the International Labour
Organisation (the UN agency which sets the globally applicable minimum
standards of workers’ rights). The core standards include matters such as
freedom of association and the elimination of discrimination.

Most EU States have already ratified most of these ILO Conventions. The
United States, on the other hand, has one of the lowest levels of
ratification of ILO conventions in the world. And there is no question of
the US agreeing to ratify trade union rights as a condition of TTIP going
ahead; it would be delusional to think otherwise.

This is simply because – unlike in the UK – the ratification of such
international treaties in the US is not in the gift of the Executive.
Treaties can be ratified only with the consent of the Senate – and there is
NO chance of the Senate agreeing to the ratification of Conventions
extending trade union rights, under this administration or any other in the
foreseeable future.

US negotiators will be happy with an aspirational commitment to ‘aim’ to
ratify these treaties, simply because it requires its government to do
nothing. They will also be content with equally vacuous commitments to
‘further improve’ labour standards, and will no doubt smile at a commitment
to:

  • ‘ensure that labour and environmental standards are made enforceable, by
    building on the good experience of existing [Free Trade Agreements] by the
    EU and US and national legislation’.
  • This reads like a bad joke. It would of course be a good idea to have
    labour standards that are ‘enforceable’. But no existing free trade
    agreements currently make ILO Conventions enforceable. The ‘good
    experiences’ of US national legislation in enforcing ILO standards which EU
    policy makers propose to emulate – is non-existent.
  • The truth is that on labour standards, the US is the prime example of
    regulatory failure. The Senate, captured by corporate interests, prevented
    Carter, Clinton and Obama from addressing the labour rights deficit.
    Indeed US national legislation guarantees that only 10% of American workers
    are covered by a collective agreement negotiated by a trade union (compared
    to 61% across the EU, with ten countries exceeding 80%).
  • In the absence of mandatory provisions on workers’ rights, TTIP will create
    unsustainable pressures on EU social rights. In the absence of obligations
    on the US, the pressure to create a level playing field will inevitably lead
    to a dilution of European standards, with implications stretching well
    beyond Wednesday’s debate.
  • European parliamentarians now have a heavy responsibility to the people they
    represent. The feeble documents for discussion on Wednesday are not an
    adequate discharge of these responsibilities, and will lead inexorably to
    the further erosion of worker and trade union rights in the interests of
    rapacious corporate power. TTIP must be rejected unless social (and other)
    rights in it are very greatly strengthened.

Otherwise,

Social Europe RIP.

Lord John Hendy QC

John Hendy QC is Chair of the Institute of Employment Rights. He is a leading employment law barrister, operating from Old Square Chambers London, and H P Higgins Chambers in Sydney Australia. He is also vice-chairman of the International Centre for Trade Union Rights (ICTUR)and Joint Secretary to the United Campaign for the Repeal of Anti Trade Union Laws. John is standing counsel to UNITE, ASLEF,CWU, NUJ, NUM, POA, RMT and UCU.

Keith Ewing

Keith Ewing is Professor of Public Law at King's College London. He has written extensively on labour law including recognition procedures and international standards. He is also the President of the Institute of Employment Rights