The Trades Union Congress (TUC) has 54 affiliated unions, representing almost six million members, who work in a wide variety of sectors and occupations. The TUC has had a long history of opposition to racism and xenophobia, and has consistently highlighted and campaigned against discrimination against black and minority ethnic workers in the British labour market. The TUC believes in a rights-based approach towards migration which ensures equal rights for people at work whether they are indigenous or migrant workers.
The TUC welcomes the opportunity to respond to the Home Office's consultation on proposed changes to the Civil Penalty Scheme, laid out in the document 'Strengthening and Simplifying the Civil Penalty Scheme to Prevent Illegal Working'. Our submission will not answer the individual questions provided in the Call for Evidence document, with the exception of the Equality Impact assessment (see Section III). This is due to the fact the consultation questions only address the technical specifications of policy proposals, whereas the TUC has serious concerns about the premise on which the proposals are founded.
1. The TUC's submission to the Home Office when it first proposed document checks and civil penalties for employing undocumented workers in 2008 made clear that such measures threatened workers, as they turned employers into immigration staff and concentrated power in the hands of would-be abusive employers.
2. The Home Office states that its current proposals to increase civil penalties for the employment of undocumented workers are designed to reduce the 'harm to employees [caused] as a result of exploitative working conditions' as 'rogue employers...exploit illegal labour and undercut legitimate businesses'.
3. The TUC agrees that exploitation is a major problem facing many migrant workers, both documented and undocumented which can lead to undercutting of the resident workforce. However, requiring document checks of workers and imposing penalties for their employment only increases their vulnerability. It puts employers in the position of immigration officers who can threaten to report undocumented workers to the authorities unless they accept low paid and poor, dangerous, working conditions. These threats are also used to discourage workers from joining trade unions to collectively bargain for their rights. UnDocNet have compiled case studies that indicate the wide-spread incidence of such abuses in UK workplaces. Furthermore, forcing one section of the low-paid workforce to accept worse conditions has a negative impact on terms and conditions for all workers employed in low paid sectors.
4. This has also proved the case in the USA where criminal sanctions were introduced against employers of undocumented workers in the 1986 Immigration Reform and Control Act. In their new position as part of the American immigration services, some unscrupulous employers exploited their duties for their own interests. Union recruitment activities were frequently interrupted by threats by employers to carry out document checks. Many undocumented workers faced with such action just slipped away rather than organising for their rights.
5. A survey carried out in 1990 by the US General Accounting Office showed that the sanctions had resulted in 'widespread discrimination' and 'a serious pattern of discrimination'. This prompted the American trade union confederation, the AFL-CIO, to reverse its position on criminal sanctions and call for their repeal. In 2000 the AFL-CIO President John Sweeney explained that: 'even though the object of employer sanctions was to punish employers who knowingly hire undocumented workers, and not the workers themselves, in reality employers have manipulated the program to violate federal and state labor laws and to discriminate against workers. The current situation not only harms all workers, but also those employers who face unfair competition from others who skimp on labour costs by hiring and then exploiting undocumented workers....Although employer sanctions did not create the problems of exploitation and discrimination, they have contributed significantly to the inability of immigrant workers to enjoy and enforce the most basic labour and workplace rights.'
6. The TUC believes the key to tackling exploitation of undocumented workers is to allow them recourse to the law to claim their rights at work which they are currently denied and better enforcement of workplace rights through government agencies.
7. The enforcement of workplace rights through the Gangmasters Licensing Authority (GLA) is crucial to ensuring that employers in the agriculture and fresh produce sectors comply with minimum employment, health and safety and housing standards and tax obligations. There is a broad consensus amongst academics, trade unions, retailers, industry representatives and the agency sector, that the GLA has successfully protected vulnerable workers and raised standards in some of the highest risk sectors in the UK. It is worrying, therefore, that the Government has recently consulted on reducing the scope of the GLA, including removing the forestry sectors and vulnerable workers, including cleaners, volunteers and some apprentices from the remit of the Authority. The TUC is also seriously concerned at recent decisions to weaken the inspection system in the GLA. This is likely to lead to abusive employment practices going undetected and unpunished and the return of rogue operators into the GLA sectors.
8. The TUC would be concerned if pressure was placed on GLA to become an immigration agency rather than an organisation to protect vulnerable workers. If workers do not feel they can trust the GLA for fear of being reported to the authorities, workers suffering the worst forms of abuse, including forced labour and trafficking, will not be identified and abuses not tackled.
9. There is also a need to strengthen the enforcement of the National Minimum Wage (NMW). The Low Pay Commission notes that the Government has successively reduced funding for NMW enforcement and only managed to 'name and shame' one employer in two years for the non-payment of the NMW. Official statistics indicate that in April 2012 around 287,000 workers were being paid under the NMW.
10. Given the high incidence of non-payment of the minimum wage, the TUC believes it sends out perverse signals to set the maximum penalty for non-payment of the minimum wage at only £5,000, which is half the maximum level of current civil penalties for employing undocumented workers - and a quarter of the new maximum civil penalty being proposed. The TUC will ask the Low Pay Commission to review the penalties for failing to pay the NMW, with a view to making them more stringent.
11. The TUC is concerned by the Home Office's stated intention to make the Biometric Residence Permit (BRP) the principal means to identify an employee's right to work. We do not believe the complexity of people's individual circumstances can be properly reflected through the BRP. The Home Office does not have the resources to ensure that any changes to an individual's circumstances would be reflected through the card. This is likely to result in employees who do have a legitimate right to work in the UK being denied employment because their BRP is not up to date.
12. We are also concerned that there is a risk that the new document checks introduced will impede the labour market access of black and minority ethnic (BME) communities who are legitimately in the UK. There is longstanding and clear evidence of racial discrimination in the labour market, despite the existence of anti-discrimination legislation. This was the case when section 8 of the Asylum and Immigration Act (1996) was introduced, which made it an offence for employers to knowingly or negligently employ people with no permission to work in the UK. With increased fines for employers who do not exercise document checks, there is likely to be an increase in discrimination against workers from BME communities who are either not offered work or subject to document checks that workers of 'European' appearance are not.
13. The TUC believes that the Home Office proposals would negatively impact on people on the grounds of race defined in terms of ethnicity and colour. The requirement for document checks for employees to prove they have a right to work is likely to only be exercised by employers who perceive their employees to be non-EU citizens. Whilst this is impossible to establish on the grounds of name or colour, employers will inevitably make assumptions about people's citizenship on these grounds and may not employ certain ethnic or racial groups on suspicion that they are not legally permitted to work. This means certain groups will be excluded from the labour market.
14. As mentioned above, discrimination may also take place with certain ethnic and racial groups being asked to produce documentation by employers whilst this will not be required of those who are assumed to be EU citizens which will impact on BME communities disproportionately.
Wilkinson et al (2010) 'Forced Labour in the UK and the Gangmasters Licensing Authority The Wilberforce Institute for the study of Slavery and Emancipation, University of Hull; Gangmasters Licensing Authority: A Hampton Implementation Review Report - September 2009; Inquiry into recruitment and employment in the meat and poultry processing sector - Equality & Human Rights Commission - March 2010, p.1.
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