Labour's plan for social care collective bargaining
Making sense of the Employment Rights Bill
The Fair Pay Agreement is dead! Long live the Adult Social Care Negotiating Body!
No one is going to win prizes for catchy buzz-words. But the provisions on social care in last week’s Employment Rights Bill could make a huge difference to the working lives of 1.4 million people. Labour has been promising what it called a ‘Fair Pay Agreement’ for social care workers since 2021. Now in the proposed legislation we have the first detail of how this policy might be put into practice. So, what have we learnt about the government’s new plan for an Adult Social Care Negotiating Body?
The bill honours Labour’s commitment to introduce collective bargaining in adult social care
Part three of the bill allows ministers to create machinery for collective bargaining in adult social care. Such bargaining is what Labour promised in opposition and it contrasts with the usual UK approach of asking independent advisory bodies just to make recommendations on pay and conditions. Representatives of workers and employers will negotiate directly on an equal footing.
The focus has shifted from a one-off agreement to a permanent institution
Before the election Labour’s commitment was to broker a ‘Fair Pay Agreement’ (a New Zealand legal concept that is now sadly defunct). The party had said nothing about the institutional machinery required to make such an agreement happen. Now, in this bill, the emphasis is on creating a permanent adult social care negotiating body, as the setting for a rolling cycle of bargaining.
A robust framework is envisaged but nothing is set in stone
The bill requires nothing of ministers regarding adult social care, it only creates powers for them to make regulations if they wish. This ‘wait and see’ approach was expected, as the new government had a huge amount to do to meet its promise to publish the bill within 100 days. But the order-making powers are actually wide-ranging and detailed. If used to the full they would create an extremely robust framework for upgrading pay and conditions in the care sector. All the powers needed are there to facilitate and direct parties towards good deals that can then be enforced.
It feels very ‘public sector’
The social care provisions are strikingly similar to clauses in the bill that re-create the school support staff negotiating body, which was abolished in 2010. This is noteworthy because school workers are employed either by statutory bodies or by academies. Academies are notionally independent charities but are highly controlled by the public sector. On workforce matters, this degree of central prescription will make care providers feel like academies more than free market enterprises. This includes care providers receiving little or no public funding. The shift towards greater public control of social care has been underway since the pandemic and will continue over the next decade as Labour develops its plans for a National Care Service in England. The downside to this approach is that it may offer few lessons for low paid sectors that are purely private sector. But it could be a template for early years and children’s social services.
The negotiating body’s subject remit could be broad
Ministers will have the power to mandate the negotiating body to cover any issue relating to the employment of care workers. Remuneration and terms and conditions are specifically mentioned. But the body could also be tasked to consider issues such as training, qualifications or professional accreditation. Importantly, the envisaged remit is not just for minimum pay and conditions (which was the initial thinking behind Fair Pay Agreements). The framework could be used to develop pay scales and a comprehensive system of occupational progression in social care. It could also be used to bargain on sector-wide pension arrangements.
The range of workers covered could also be broad
The bill’s definition of ‘social care worker’ is wide, going well beyond just frontline care workers in CQC regulated services. Anyone working ‘in, or in connection with, the provision of adult social care in England’ can be covered, making it a framework for ‘sectoral’ rather than ‘occupational’ bargaining. Workers who could be in scope include:
Administrative, catering and facilities staff in care homes
Registered managers and regulated health professionals working in social care
People with back-office or managerial functions in care businesses
Personal assistants employed directly by disabled people
Workers providing unregulated services such as home help or day centre provision
Agency staff and workers who are not employees
Providers of supported housing might find that some of their workers are within scope and others without. The only explicit exclusion is workers supporting young adults in Ofsted-regulated services (this avoids drawing in staff who mainly work with children). However, regulations could restrict the body’s remit to only a sub-set of the workers covered by the bill, and individual agreements could treat different classes of workers in different ways. This means there is time to consider and consult on who should be included and what variations might be needed.
The powers are designed to give neither side a veto and to facilitate an outcome
The bill permits regulations designed to prevent either side from blocking the process and to steer talks towards a positive resolution. There is flexibility as to who represents each side (as long as the worker representation includes a trade union) making it hard to collapse the process through non-cooperation. The regulations can allow ministers to: determine a timetable for bargaining; create procedures for resolving disagreements; and provide for binding arbitration. The regulations could also permit ministers to make decisions themselves, if no agreement has been reached on an issue they have referred to the body.
Ministers could have a very high degree of influence and control
In addition to ministerial powers designed to deal with disagreements between the parties, the bill allows for regulations that would give ministers the right to specify: what topics should be considered; what issues should be taken into account; and what conditions should be met in reaching an agreement. The bill explicitly says these can include funding considerations. Ministers may also be permitted to appoint members of the negotiating body beyond employer and worker representatives, such as people from local or central government. Other provisions envisage regulations that permit ministers to: issue guidance or codes of practice; require the negotiating body to reconsider an agreement; and reject or only partially accept an agreement. This is a very long way from the purely facilitative role one might expect if this was private sector bargaining. But it is recognition that agreements have to reflect public finance constraints and other policy decisions.
Ratified agreements would create legal obligations for employers and revise workers’ contracts
The regulations that ministers make to ratify each agreement would have direct application on every employer of a worker covered by the agreement. Employment contracts would also automatically change to be compatible. This is a strong legal device for applying the agreements, modelled on the national minimum wage. It means workers will be entitled to pay and conditions based on the negotiated terms from the moment an agreement commences, with a legal basis to directly challenge their employer if they do not comply.
An otherwise robust framework is silent on consultation and weak on enforcement
The bill will allow ministers to create a robust and credible bargaining system but there are two areas that could be strengthened. First the bill says nothing about what members of the negotiating body must do to consult those whose interests they represent. Linked to this, there is no provision for trade unions to be able to access workers so they can engage with and represent them during the process. Second, the clauses on enforcement are also under-developed. Enforcement is mainly expected to replicate procedures used for the minimum wage, which is currently poorly policed. No monitoring role is envisaged for public bodies that already supervise care providers such as the CQC or local commissioners.
This will all take time
The Employment Rights Bill won’t receive Royal Assent until next summer at the earliest. Then there will need to be consultation on lots of the detail and a slew of regulations. After that, the negotiating body will need to be established before bargaining can commence. The first year’s negotiation is likely to be lengthy and complex, even if subsequent annual reviews are more routine. With these constraints, implementing an agreement even in 2027/28 is likely to be challenging. The workforce pressures in adult social care are unlikely to wait that long. Some sort of interim arrangements to improve pay and fill vacancies may well be needed.
I’ve been involved in various ways in the development of Labour’s policy for sectoral bargaining in adult social care over the last four years. I was lead author of Sharing the future: workers and technology in the 2020s, the final report of an independent inquiry chaired by Yvette Cooper which recommended sectoral bargaining for low paid work, starting with social care. In 2022-23 I led a review for Unison and the Labour party on The Roadmap to a National Care Service which included ideas for a social care Fair Pay Agreement. Since then I’ve been providing informal advice on implementing the proposals, including arrangements for sectoral bargaining. The views here are exclusively my own.