Section 44 and the civil service

Submitted by AWL on 26 May, 2020 - 10:47 Author: A PCS activist
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Civil service employers have been reticent to go for a return-to-work drive in the short to medium term. The Cabinet Office informed the union that they would continue to support homeworking.

That approach isn’t completely uniform, and the Cabinet Office hasn’t exerted any particular pressure to rein in departmental employers who are taking a different approach, but there has been no central, concerted, back-to-work lurch.

The major exception to this is the outsourced contractors, who have behaved appallingly and are forcing workers to continue working despite the buildings they clean or maintain being largely empty. Union pressure has forced outsourced contractors in many departments to pay full pay for periods of sickness and self-isolation, but, again, this is has not been uniform.

This has led to what is in my view effectively an act of murder, with cleaning worker Emanuel Gomes, who worked in the Ministry of Justice and was a member of the United Voices of the World union, dying from the virus after working through his symptoms because his employer, the contractor OCS, refused to pay full sick pay.

There has been a particular flashpoint around the Passport Office, where the employer wanted people to come back quite early, to conduct work that clearly wasn’t essential. The union won on that initially, and pushed back a return-to-work drive. Now we may have a similar flashpoint over workers in the Ministry of Justice, in the courts and judicial system, being pressured back to work to deal with backlogs of court cases. The union has a smaller density in that department, which obviously makes organising resistance harder.

We have also won smaller victories in individual workplaces where workers have threatened to refuse to work on safety grounds.

Our last National Executive Committee (NEC) meeting agreed a set of tests and demands that we need to see met before we deem it safe for there to be a substantial return to the physical workplace. These include a policy of only conducting essential work that cannot be carried out remotely; all workplaces to have union-approved risk assessments; access to adequate PPE for certain tasks, where necessary; social distancing measures in place in the workplace; access to both antigen and antibody testing for all workers, outsourced and directly-employed; for a track-and-trace strategy when confirmed cases occur; and protection for vulnerable workers, or those who live with vulnerable people.

As well as risk assessments, we want to see equality impact assessments that deal with the disproportionate risks faced by BAME workers, as well as the impact on others such as disabled workers. We’ve specifically demanded that where employers cannot guarantee the safety of BAME workers, including outsourced workers, they should make provisions for them to work at home, or, if that’s not possible, give them special paid leave.

The majority of the union leadership is hostile to the idea of the union taking a lead about using health and safety legislation, specifically Section 44 of the 1996 Employment Rights Act, in a collective, assertive and combative way, and explicitly encouraging members to collectively use their rights under that legislation to refuse unsafe work if necessary, and have voted down proposals submitted by myself and other Executive members outlining such a strategy.

I have also supported the idea of national ballots in any department/employer where workers feel they are being forced back to work, again also voted down on the NEC in lieu of a passive statement of support for any individual workplaces or branches that wish to take action.

It is a near inevitability that employers will at some point demand members return to workplaces and collective industrial action will be the only thing left in our armoury. If balloting legally will take too long, but we are too cautious about attempting to collectivise Section 44 walkouts because of worries about legal challenges, then we (and any union) are rendered impotent.

The vagaries in the law around Section 44 mean my preference is to risk that strategy if the need arises.

The Independent Left caucus has highlighted the limitations of not giving explicit leadership and support in terms of encouraging members to use legislation to organise collective refusals of unsafe work. A section of the union bureaucracy is concerned that this could get the union into legal difficulties, but this is based on an extremely conservative interpretation of the law.

If we acknowledge that ballots will take too long, but won’t give members leadership and confidence around using the law, we have to ask what weapons we actually have left in terms of taking any direct action.

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