The Tories are threatening to use agency workers to break strikes. Tom Schofield assesses the dangers and argues for full union rights for all agency workers to overcome divisions.

Agency workers striking at the London School of Hygiene and Tropical Medicine earlier this year

The last Tory government brough in new legislation allowing businesses to employ temporary staff during strikes. Unison is challenging this through the courts, but the response of unions and workers cannot rely on the courts alone. The labour movement’s bargaining power is underwritten by its capacity to organise the withdrawal of labour. Agency workers – who are defined as having ‘a contract with an agency’ but work ‘temporarily for a hirer’ – must be empowered to join and play a full part in the strikes.

The current state of play is one in which reactionary TV presenters can goad union leaders in live interviews about how agency staff might be used to break strikes. The labour market that enables this ruling class bravado has been shaped by changes to workplace practices particularly since the 2008 recession. In 2014, the Labour Research Department noted how ‘A bewildering variety of non-standard employment arrangements has mushroomed over this period, including growing use of intermediaries such as employment businesses and agencies, payroll companies and umbrella companies.’

This shift is a complement to other recent anti-trade union legislation that makes secondary strike action illegal. For an example of how this has hurt strike efforts, we can see the industrial action taken by retail and catering staff at the Tate galleries in London in 2020. These workers were technically employed not by Tate, but by a subsidiary company called ‘Tate Enterprises’. Tate’s directly employed workers were not facing mass redundancies during the pandemic, but anti-trade union laws made it illegal for them to strike alongside their workmates and save the jobs. In this way the fragmented workforce was a gift to a bad employer. The Tate strike would have been more effective had employees been able to halt operations completely through wider strike participation.

A history of reluctance

Historically, major trade unions have not been especially proactive in recruiting and mobilising workers outside the company fold. Casual or agency staff are often left out of union bargaining units. The work of representing these seemingly hard-to-reach members of staff has largely been left to the less well-resourced but more tactically dynamic fringe unions, such as the Industrial Workers of the World, and more recently, Independent Workers of Great Britain (IWGB) and United Voices of the World (UVW).

However, the pattern of reluctance in Britain’s major unions is beginning to change, with activist members taking steps to bring agency staff conditions up to the same standards as in-house workers. In one particularly successful case, an employer’s relationship with Serco was ended, with 1,800 staff brought onto in-house contracts after a campaign by trade unionists from Unite won ‘a landmark agreement with one of the UK’s largest NHS trusts to end the two tier workforce.’

Before the Tories’ newest addition to anti-union legislation, right-wing pundits were goading the unions with questions around what they would do in the case of agency workers being called in to break strikes. When pressed, Mick Lynch of the RMT union pointed out that many of the workers he represents are too skilled to be quickly replaced. This is true for train drivers, signalling staff and many other grades, but many train station staff are already on agency contracts, and if staff training can be provided by agency workers, then any longer-term strike action of in-house staff could be derailed. Hard picket lines may give cause for some agency staff to join the strike, but it will also be necessary to find ways of incentivising their collaboration.

Organisation and the law

A lot of agency workers, and this is true of many employed in rail, work across multiple unrelated workplaces, e.g., stadiums, stations, or retail centres. They tend to face worse pay, less predictable working patterns, lower prospects for job progression, and are subject to harsher and less transparent regimes of workplace discipline. A study of German workers linked temporary agency work to unfavourable outcomes in terms of general health and musculoskeletal complaints – in large part due to the associated stress of job insecurity.

It is easier in legal terms for an employer to dismiss an agency worker than one of their direct members of staff – they can complain to the agency, and the agency can have them moved to another post. There can also be health and safety issues where agency staff are not offered the same training opportunities as directly employed workers. Workers on RMT picket lines have complained that this is particularly the case with agency staff brought in at very short notice to fill labour gaps on strike days.

Pivotally, the agencies that provide businesses with temporary labour are able to use their ‘flexible’ working patterns to punish agency staff who turn down shifts on strike days. Since there is little obligation to spell out why a worker is or is not picked for shifts, many fear that one wrong move could result in a spate of effective unemployment. This could then potentially add up to more than just the loss of pay on strike days. All these features of agency work contribute to precarity, and the perpetuation of a class-fragmenting ‘two-tier’ system of labour.

Now is the time to demand employers across the board bring staff into direct employment. The outsourcing onslaught is evidently a core part of the business agenda. The response of employers to every recent economic crisis has been to double down on driving through the outsourcing practices. As organised workers are now beginning to shape the cost-of-living crisis, it’s time to use that reclaimed agency to win back some of this territory.

To do this, agency staff presently carrying out work for a hirer need to be given assurance that they will be protected from any workplace victimisation should they join the strike. And any effort on the part of agency staff to uphold the strikes should be underwritten by the chance to shape the demands, one of which might well be the provision of direct contracts for their jobs.

Meanwhile, 13 of the UK’s biggest temp agencies are looking for a quiet resolution, and urging the government not to escalate. In a letter sent to the then business secretary, the agencies said that by operating strike breaker services, “the industry will be called into disrepute”. Given the remarkably exploitative way in which the UK’s £40 billion staffing industry has grown, it adds up that its figureheads might want to retain a low profile for their profiteering patch amidst mass strikes. But the Department for Business, Energy and Industrial Strategy is being tough, making no apology to state instead that while their new legislation enables agencies to break strikes, it ‘does not mandate employment businesses to do this’. The industry is now faced with a wedge issue, as some agency companies could see in the caution of their competitors a chance to grab the bull by the horns and turn a quick success with the government’s backing.

Organising to win

In the long run, for workers, it is entirely in the interests of direct employees to support a demand for bringing staff in house, since it increases the amount of labour and therefore profit that can be withheld from the employer. However, there is a long-standing reticence on the part of major trade unions to take the initiative around mobilising workers on (increasingly prevalent) atypical contracts. Even where the chances of success have been good, such as the ‘3 Cosas’ campaign of outsourced workers at University of London, it has required persistent mobilisation from rank-and-file workers to get their demands represented at formal negotiations.

The trade union movement has always been beset by conservative currents, and marginalised workers have had to find ways of fighting to win their place. When the Trades Unions Council was formed, many ‘unskilled’ workers faced exclusion, while battles for women and racialised groups to find greater representation have also characterised the movement. At present, employers’ use of agencies is a way of sustaining a fractured working class.

Gender and race pay gaps are of course widely documented, despite the fact that women are more likely to be union members than men, and black workers more likely than white workers. We know a principal mechanism for repairing this is through greater union participation, since trade union members tend to be better off in terms of pay and conditions. So the fight to include agency staff in established trade unions is part of a longer historical struggle against social oppression.

This is shown in UVW’s recent attempts to demonstrate through the courts that the failure of employers to bring outsourced workers in-house constitutes institutional racism. An encouraging demonstration of established unions working productively with the new unions to address this issue today can be seen in recent collaborations between PCS and UVW – where the larger union gave resources and backing to a minority of campaigning workers who had been organised through the smaller union on shared worksites. Some of this work will be carried on through the new unions, some of it will emerge from established trade union branches that are ready to combat conservatism in the movement.

At this current stage in the cost of living crisis, the two-tier system’s inbuilt bias against workers is being flaunted by right-wing pundits on breakfast television. We should take this as a cue to redouble any and all efforts that will secure the inclusion of more workers into the labour movement. The direction of this summer’s strike wave may be an unprecedented chance for agency workers to realise their own class power.

Building solidarity

Mick Lynch’s driving confidence that the RMT’s Network Rail members cannot be easily replaced by agency staff could be well-founded, but we must allow for the possibility that NR’s managers may try and prove otherwise. To counteract this splitting of the workforce, it may be necessary to identify temp agencies that could be used to undermine strikes and find ways of protecting workers there from disciplinary action if they resist pressure to work. And even if rail proves to be relatively invulnerable to workforce-replacement via agencies, we know that other industries may not fare so lightly when confronted by this anti-union tactic.

In practice, we can do several things to build solidarity amongst agency workers. We can speak to workers on picket lines in different sectors about agency staff, about how they are used at their workplace or in their industry, suggesting constructive responses to the threat of scabbing. We can identify common agencies and introduce their workers to the relevant unions, or direct the unions towards them. We can also build campaigns against this use of agency workers from the outside, for example by causing reputational damage and disruption to the agencies that make their living by offering scab labour (such as by applying for scab jobs with no intention of taking them).

Imagine the power of a groundswell of militancy that works to include millions of workers whose participation in the walkouts could be operationally pivotal in bringing the government to its weakest possible bargaining position. The onus is upon major unions to see this and dedicate more resources to building it now. They need to be contacting workplace reps and discussing how to approach agency staff. We must support the RMT and other unions on strike at the moment, and further we must build up a demand that staff be brought in-house!

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