GLAA response to consultation on the “Good Work Plan: establishing a new Single Enforcement Body for employment rights”
The below is a summary of a covering letter submitted as part of the GLAA’s response to the consultation. However, it outlines the key points made as part of that response.
The GLAA supports the principle of a proposal to create a SEB and recognises the potential benefits that this could bring in tackling labour exploitation.
Our aspiration is for the creation of a SEB that:
· Is victim/worker focused
· Builds on the prevention and enforcement successes of the GLAA with its wider remit;
· Builds on the successful collaboration between GLAA and the National Minimum Wages (NMW) teams and the Employment Agency Standards (EAS) team, involved in worker protection under the Office of the Director of Labour Market Enforcement (ODLME)
· Maintains the drive to achieve a decline in the prevalence of labour exploitation within UK labour markets
· Ensures that the UK remains at the forefront internationally in eliminating labour exploitation
The GLAA believes that such a SEB would provide the following benefits in relation to the identified areas of state enforced rights:
· Consistent approach to protecting workers
· Ease of access improved, and clarity provided for reporting concerns and obtaining guidance·
· Fewer opportunities for worker issues falling between services
· Ease of agency collaboration reducing inefficiencies, and increasing effectiveness
· Fully informed picture in relation to labour exploitation and labour market issues
· More robust, strategic intelligence-led activity resulting in better outcomes for workers and levelling the playing field for employers
· Stronger strategic relationships and influence
· Increased opportunities to encourage and support holistic compliance across the economy
· Opportunity to close enforcement gaps
It should brigade the powers and responsibilities of the bodies currently overseen by the Director of Labour Market Enforcement, and incrementally consider whether other functions and bodies should be incorporated following a full assessment of the impacts and resource requirements that would arise. The success of a SEB ultimately depends on the ambition of the Government. It will be a significant ambition if it has at its heart the protection of workers, and reduction in victimisation.
To deliver the potential benefits, and to justify the inevitable costs of transition in time and resources, the SEB will need to be properly resourced, suitably structured and empowered with an ambitious remit. Some of these issues are indicated below and are addressed more fully in our response.
Extension of licensing
The GLAA has demonstrated that licensing is a valuable pro-active, prevention tool which aims to reduce the need to investigate offences by ensuring compliance with labour standards in the first place. This has a wider benefit for law enforcement generally.
In parallel with the creation of the SEB we propose there should be an extension to the scope of the licensing regime to other sectors where there are demonstrable benefits to doing so. This will further improve the ability to protect workers and help achieve the outcomes sought by the government in its consultation document. This should be the key driver to extending regulation to protect up to 10 million vulnerable low paid workers across the labour market UK-wide.
Alternatives to Licensing and co-regulation
The SEB should also take the lead in considering whether, there are alternative models, supported or led by industry that should be considered. These might include sectors where there is a direct consumer relationship, rather than a business to business, relationship, there is no agency use, but there is a high use of casual labour, and reported self-employment. In such areas it is recognised that exploitation, underpayment of national minimum wage, and exploitative manipulation of tax regulation can arise and adversely affect the workers’ conditions.
The SEB could provide strategic oversight of how other regulators could further enhance the protection of workers, and improve business compliance, whilst the SEB directly enforced its core remit. This model would allow the SEB to set overall regulatory principles which could be delivered through other appropriate regulators. This oversight might, in the longer term, determine what other functions currently undertaken by other bodies could or should be included in the remit of the SEB.
Prevention and Pursuit
A SEB should have a central intelligence function, to ensure that its prevention and enforcement resources are deployed effectively on the highest risk industries.
“Transparency in Supply Chains” (TISC) enforcement
The analysis provided would also support enhanced enforcement on TISC, if introduced. We agree a SEB should be the body to enforce a new enforcement framework on TISC.
The SEB should operate consistently in all jurisdictions. Currently the three core bodies have different powers in the different jurisdictions in the UK. To maximise the benefits of a SEB it must be empowered to operate all of the powers of those bodies that may transfer into a SEB consistently in all jurisdictions. This may be more complicated in relation to Modern Slavery where the forced labour offences exist in three different Acts, and where police powers operate differently. It is recognised that there would need to be discussions with the devolved authorities to ensure a civil and criminal enforcement framework can be established UK-wide. A single enforcement policy could therefore apply a standardised and proportionate approach to the use of sanctions as alternatives to prosecution throughout the UK.
The creation of a SEB will need to address sponsor Department oversight requirements. The establishment of the ODLME has improved collaboration between the enforcement bodies within its oversight, but we also consider that it has led to closer collaboration between the Home Office and BEIS, to whom the ODLME’s strategy must be submitted. Given the nature of legislation that might fall into the remit of a SEB the GLAA considers that such cross-Government collaboration is essential to assist a new organisation to succeed.
Creation of a shadow organisation/shadow functions
It is important to recognise that any new organisation, will need appropriate project planning and resources to deliver the improvements possible. Challenges include alignment of terms and conditions of employees from different organisations, a common IT platform and access to current databases, development and awareness raising of the single brand of a SEB, and the legislation and implementation timescales to ensure effective implementation.
To achieve a successful transition planning should consider a staged implementation approach which could deliver short and medium-term gains. Setting in place a shadow organisation would facilitate this.
The GLAA considers that a number of progressive changes could be made during the project phase for the creation of a SEB to assist effective transition. This could build on how the enforcement bodies intend to address the ODLME’s recommendations for joint action. The following points should be considered even if a SEB is not implemented:
· Any candidate organisation to be included in the SEB should voluntarily support the Duty to Notify (DtN)/NRM procedures regarding potential victims (as the GLAA does in Scotland), as a step change towards the operation of the SEB as “first responder”. This would demonstrate the commitment of the Government to improving victim support and identification.
· Introduction of a single tasking approach that would enhance the current closer cooperation between EAS, NMW and GLAA, and direct each bodies activity against strategic risks. It would introduce a consistent approach and align activities to the National Intelligence Model, as best practice. It might also assist further successes with the LMEU/O regime, and securing the first joint LMEU/O.
· Simple changes to the BEIS arrangements letters for the GLAA would enable it to operate a single compliance function using the civil inspection powers of all three bodies under existing legislation in Scotland. It would also enable the GLAA to investigate and refer for prosecution any offences under the NMW and Employment Agency Acts).
The GLAA recognises that implementation of a SEB is likely to take time. Therefore, the GLAA is keen to explore with government how it can develop in short-medium term to deliver more of the ambition set out in the “Good Work Plan”.