Esther Lynch: “Pitting workers against each other is not a good basis for the future of Europe”

The third round of Britain’s negotiations to exit the European Union, which took place between 28 and 31 August 2017, delivered precious little to reassure workers about their post-Brexit rights. A principle was agreed, “to protect the rights of frontier workers”. A UK government source interviewed by Equal Times was unable to say what the next set of UK position papers would be about and when they will come out. However, the source said that the views set out by the UK’s Brexit negotiator David Davis in the parliament’s House of Commons still stand.

“The White Paper published on 30 March sets out that the employment and workers’ rights that are enjoyed under EU law will continue to be available in UK law after we have left the European Union as the Great Repeal Bill will convert EU law into domestic law,” Davis told the Commons back in April. Davis added that the Prime Minister, Theresa May, has appointed the Taylor Commission to ensure that workers’ rights are protected for the modern age.

Esther Lynch, Confederal Secretary at the European Trade Union Confederation (ETUC), headquartered in Brussels, explains why there is an urgent need for much more detailed negotiations to give workers clarity for the future.

Can you give examples of the kinds of problems that UK workers are facing post-Brexit?

The biggest problem facing workers is uncertainty. Workers can’t put their lives on hold and worse, we are beginning to hear examples of some employers discriminating against UK workers. Some employers in EU-27 countries are beginning to tell UK workers that they won’t be put in charge of new projects or even be put forward for promotion because they don’t know what the status of such workers will be after Brexit. We see this as a form of unfair discrimination against UK workers contrary to EU directives and we are working with a legal team in connection with this.

How can the EU ensure that employers don’t discriminate against employees both before and after Brexit?

The right not to be discriminated against as a UK worker needs to be an explicit part of the exit, transition and final deal. At the moment, if a member state in the EU does not have sufficient laws in place to ensure that employers do not discriminate against a worker, workers and their unions can complain. The European Commission can issue infringement proceedings and oblige that member state to put in place laws that will protect workers from that form of discrimination. After Brexit, the UK will be outside of the EU so this option to ensure protection for workers coming from the UK will disappear unless something is put down in writing in the UK-EU transitional and final exit deal.

Is this just a problem for UK workers?

No. This also affects EU-27 workers. It is clear that EU workers in the UK will also need protection. There should be greater recognition in the positions of the negotiation parties that these matters are likely to be reciprocal. The ETUC is stressing that discrimination in the workplace on the basis of nationality or immigration status is not what workers want or need. Pitting workers against each other is not a good basis for the future of Europe. There are also about 60,000 so-called ‘frontier workers’, who live in the UK and work in an EU-27 country, or live in an EU-27 country and work in the UK. Almost half of those workers are based in Ireland and it is essential that a genuine solution is found for this situation.

What are you asking the European Commission to do about this?

We have met the EU Commissioner for Brexit, Michel Barnier, and have urged him to move beyond high-level principles and to get into nitty gritty details. The problem with high-level principles is that they can be easily circumvented. For example, a high-level principle relating to frontier workers would be to say that their rights will continue. But a member state might then set up queues at the border where workers will have to wait for an hour or more – we can’t have that type of situation.

We have told him, and we’ll keep telling him and his team, that we need to run scenarios as to how things will work in practice, as to what guarantees are needed to ensure that the high-level principles [to prevent competition] on the basis of social, environmental and fiscal dumping are applied, and importantly as to what laws will be put in place to ensure that employers don’t undermine the principles agreed in the deal. Here there is a big difference between the EU and UK statements and the concrete proposals. Importantly there needs to be a way for workers and their unions to bring complaints if employers are behaving in way contrary to what will be agreed. We have met with Barnier’s technical advisers to run through the type of laws that are needed but for now it is clear that the sides are very far apart on this issue.

What are you saying to the UK government?

We have met the UK government with the [UK] TUC [Trades Union Congress] and we’ve told them that we need proper laws in place to ensure that workers have a way to complain about infringements of their rights and that they have effective remedies. Our concern, as we’ve made clear to the UK government, is that, after Brexit, whilst employers will realistically have to meet EU-27 standards for goods exported, they will try to compete in the production process, for example, by having to adhere to less health and safety or other working standards than in the EU-27 countries. For us that would be unacceptable.

What are your key concerns in relation to Brexit?

One is that Brexit is creating a layer of uncertainty that will be exploited by employers and is putting jobs at risk. Another is the ‘showboating’ politics that is going on at the moment with politicians making statements. It is unclear if these are simply negotiation positions or statements of intent. Moreover high-level principles are good but they need to be turned into hard law and guarantees that will give UK and EU workers confidence that their rights will be upheld in both the UK and the EU. In terms of the exit deal, the EU needs to ensure that the UK has in place the type of laws that will not allow employers to compete on the basis of less rights, less standards and unfair discrimination between workers.

What is the atmosphere like in trade union circles on Brexit?

Everyone is getting more and more angry because while both the EU and the UK are saying that they want to protect workers’ rights and that they won’t use workers as bargaining chips, it is becoming clear that this is exactly what is happening.

The UK’s ‘EU Withdrawal Bill’ states that “there is no right in domestic law on or after exit day to damages in accordance with the rule in Francovich”. What does this mean in practice?

The Francovich rule is that member states could be liable to pay compensation to individuals who suffered losses due to a member state’s failure to convert an EU directive into national law. It essentially allows workers to sue the government in this eventuality. Removing this rule from the statue books means that there is a real danger that, without anything to replace this in terms of guarantees and laws, the UK is signalling that they do not intend to provide workers with the ability to hold the government to account for their losses when employers decide to ignore their rights in the future Brexit agreement. That will have an impact on workers in the UK but also a knock-on effect on workers in the EU-27 countries.

What is the right approach to Brexit in connection with workers’ rights?

The UK Labour Party has put forward the most sensible and realistic approach: to stick with the status quo during the transition period. This would give working people the type of certainty on their jobs and rights that they need. The clock is ticking. People need to know where they stand to make decisions about where they are living and working, and also about their families. The issues related to workers’ rights should have been dealt with by now.