Official Report 790KB pdf
Our next agenda item is further oral evidence on a supplementary legislative consent memorandum on the Employment Rights Bill. At last week’s meeting, we took evidence on the supplementary LCM from a panel of stakeholders. This morning, we will continue our scrutiny by taking evidence from the Minister for Social Care, Mental Wellbeing and Sport and supporting officials. I welcome to the committee the minister, Maree Todd. The minister is joined by Stephen Garland, unit head, fair work division; Lucy McMichael, head of branch, social care legal services unit; and Martin Reid, unit head, adult social care workforce and fair work, all from the Scottish Government.
We move straight to questions.
Good morning, everyone. Minister, will you outline the work of the fair work in social care group in recent months?
There is a great deal of on-going work on fair work in the social care sector. We have overseen a significant increase in investment in social care, and specific workstreams of activity are well under way to progress actions to improve fair work in the adult social care sector. The workstreams are being taken forward in partnership with key stakeholders through the fair work in social care group.
Workstream 1 has enabled a minimum rate of pay of at least the real living wage for workers who are delivering direct care and commissioned social care services, as well as enabling annual uplifts to be delivered quickly into workers’ salaries.
Workstream 2 has developed a framework of proposed minimum terms and conditions, reflecting fair work principles and initial priority areas to be progressed. Due to budget constraints, we are currently unable to implement those proposed minimum standards.
Workstream 3 has developed an effective voice framework. The first phase of that delivery programme has been rolled out through a volunteer cohort of organisations from across the sector in Scotland. That will undergo a comprehensive evaluation before progressing to national deployment.
Through workstream 4, progress has been made on voluntary sectoral bargaining with key stakeholders. That work is complex, as there are more than 1,000 employers in the social care sector. Once developed and introduced, it will help to underpin improvements in pay and terms and conditions across the social care workforce.
Are staff representatives, small care homes or care-at-home providers represented on the group? Can you expand on who sits on the group?
The group has quite broad representation. Martin Reid might want to talk a little more about it.
Care providers are represented principally through the Coalition of Care and Support Providers in Scotland and Scottish Care. Trade unions are represented through Unite the Union, Unison and the GMB. The Scottish Government, the regulators and the Convention of Scottish Local Authorities are also at the table.
Those organisations make up the core membership. We can bring in additional expertise, which we have done during the past 18 months or so to support sectoral bargaining in particular. The trade unions lobbied hard for someone with academic expertise to join the group. We listened to that and acted directly on their specific recommendation about an expert they had identified. Their involvement has made a significant difference to the progress of our sectoral bargaining work.
To expand on that, the CCPS tends to represent not-for-profit providers and Scottish Care tends to represent private providers of varying sizes. Both organisations represent very large and very small organisations. It is complex to set up a sectoral bargaining organisation, especially as so many different parties are involved, including a large number of employers, COSLA, the Scottish Government and a variety of trade unions. The academic input has been crucial to unlocking the challenges that we face. We feel as though we are motoring and that we are pretty close to reaching an agreement; we just need to dot the i’s and cross the t’s on the sectoral bargaining proposal.
Can you describe in detail the tripartite arrangements that have been agreed to and that, according to stakeholders, are ready to be implemented?
They are not quite ready to be implemented. We are still trying to achieve consensus, but the evidence that the committee has taken has been absolutely correct: we have made massive progress and we are significantly ahead of other UK nations, because we have been working for many years on the voluntary sectoral bargaining tool.
I will let Martin Reid say more about the detail.
I probably do not need to add too much. As the minister said, we are close to finalising our draft constitution. We need to work with our legal colleagues to ensure that it is robust, but that conversation is on-going to ensure that we are on the right side of the line for a voluntary arrangement in Scotland.
The stakeholder engagement has been interesting. Whenever there is delay, people tend to think, “Oh, it’s the Scottish Government’s fault,” but, at times, both trade unions and provider organisations have needed a significant amount of time to go back to their members to discuss things, as they are at the table in a representative capacity. We are also conscious that, although Scottish Care and the CCPS represent a significant number of organisations, they do not cover the totality of the sector. Sometimes, it is also necessary to talk to others. There have been periods when there has been what probably looks like a small hiatus in the progress that we have been making, but that has mostly been when trade unions have been talking to their members about where we are.
11:00The issue of effective voice is a particular challenge for the trade unions, because they see themselves as the voice of the workers, but the effective voice work goes a bit wider than that. We are looking to management structures to ensure that organisations that are not unionised can also have a voice at the table, so that we do not limit ourselves. There has been quite a lot of in-depth conversation with the unions about how we strike the right balance.
It is fair to say that we encourage union membership, and the minister has been very active in having conversations with providers to say that the Scottish Government encourages union membership. Having a unionised workforce certainly makes it easier for us when we engage with the sector. Historically, the unionised workforce has been just below 20 per cent. I think that the level of union membership in the sector is a wee bit better now, but that gives an idea of the level that it is at. The percentage is not particularly high, so we are conscious that, when we talk to the unions, we need to have an awareness of other mechanisms, and the effective voice framework is the other mechanism that we are looking to use to ensure that we hear what workers are saying.
To draw a distinction between Scottish Care and the CCPS, Scottish Care already has a negotiating mandate for its member organisations, because it negotiates under the national care home contract, whereas the CCPS does not. Constitutionally, those organisations are in a different place. The CCPS needs to ensure that it has got itself sorted out to be able to come to the negotiating table to undertake sectoral bargaining and legitimately represent its members at the table, and it is undertaking on-going work on that.
I will add a little more detail. One thing to be aware of about unionisation levels across the sector—which we are keen to increase, because we see that as a means of improving the pay and terms and conditions for the workforce—is that, as well as being relatively low, with around 20 per cent of the workforce unionised, union membership is concentrated in local government employees. Do not misunderstand me: we are keen to listen to and work with unions, but a large part of the workforce is not represented by the unions, so we need to ensure that we capture the voice of that workforce.
Another thing that has disrupted progress, in a good way, during the past few months is the issue that I am here to talk about today—the Employment Rights Bill, which we have had to take time to examine. We have been working on that through a voluntary arrangement in Scotland. The Employment Rights Bill is going through the UK Parliament because what it covers is largely reserved. We have had to take time to take stock and have a look at that proposal, which we broadly welcome, which is why I am here today.
Good morning. We heard last week from the CCPS and Scottish Care that the terms “collective bargaining” and “sectoral bargaining” are both used. Both involve negotiations between workers and employees, but they differ. Can you put on the record the difference between collective bargaining and sectoral bargaining?
Do you want to have a go at that, Martin?
Yes, I am happy to do that.
My very first conversation with the unions was on exactly that topic. The language used varies round the table, and one of the first things that needs to be done is define that in your sector.
In simple terms, sectoral bargaining is what it says on the tin. It means that we look at the entirety of the sector. In this case, sectoral bargaining is being developed for commissioned services, which are not the services that are delivered by local authorities. When we talk about sectoral bargaining, we are talking specifically about commissioned services, and about the entirety of commissioned services across Scotland.
Collective bargaining is a much more localised arrangement. There could be collective bargaining between a management team and a single organisation. A single care home that is totally independent of other care homes could have a negotiation that takes into account whatever sectoral bargaining might say should be delivered—a rate of pay and certain terms and conditions, for example—but its local collective bargaining could, in theory, go beyond that. Nothing that we are doing on sectoral bargaining would prevent such localised arrangements from being used. Better pay and terms and conditions could be introduced locally—the two things do not prevent each other from operating in the same space.
The reason for focusing on commissioned services is that there are already arrangements in place for local authority employment.
Yes. There is a sectoral bargaining arrangement in place that covers local government staff in the totality and includes staff who deliver social care services and who are directly employed by local government.
Thanks.
I declare an interest as a practising NHS GP.
I want to go back to what Martin Reid just said. Is it possible that collective bargaining could be worse than the sectoral agreements?
As we are discussing it now, sectoral bargaining has to be a voluntary arrangement. In order to deliver commissioned services as part of the deal, you would have to meet the minimum standards through the contracts—you could not drop below the sectoral bargaining standards to deliver commissioned services and access the contracts. The simple answer is no. Collective bargaining allows you to go further, if you wish.
To go back to the FWISC group, is there any reason why minutes have not been produced?
I did not know that minutes had not been produced.
Minutes are produced. Sorry, I should make a distinction between different meetings. The fair work in social care group is the strategic representation of our four workstreams. Pay, terms and conditions, effective voice and sectoral bargaining are four distinct workstreams that drop out from the fair work in social care group. Representative members from the fair work in social care group meet to discuss those four workstreams. Those meetings are all minuted and the details are available for anybody who wants to see them.
The fair work in social care group meets far less frequently. It was originally envisaged that it might meet two or three times a year. In reality, it has not met for quite some time, but that is because the focus has been on the workstreams. It has not been necessary to convene the group.
However, the minister engaged directly with Andy Kerr, who was the chair of the fair work in social care group when the Employment Rights Bill was published, to ask for the group’s feedback. Andy engaged with the group in its totality to ask for feedback on the group’s response to what was in the Employment Rights Bill, and he then wrote directly to the minister. The group is accessible, but it has not met in that format for some time.
Thank you.
Minister, in relation to workstream 2, which is about minimum standards of terms and conditions, you spoke about cost and being able to afford things. In last week’s evidence session, we heard that local authorities pay themselves almost three times as much to deliver care as they pay independent care homes. There has also been a significant hike in employer national insurance contributions. The evidence that we took said that a huge or significant uplift in pay would be totally unaffordable for the sector without significant money going in. Is the Scottish Government considering putting in significantly larger sums of money, or can you foresee there being a way to give people more money and still have a care home sector that works?
Over the years, our track record in delivering at least the real living wage to people who are employed in social care has been strong. That has been possible to deliver because we have put in extra money. That policy of investing sufficient funding to ensure that everyone is paid at least the real living wage now costs between £900 million and £1 billion.
The workforce tells us that, if we were to bring in improvements on terms and conditions, its priorities would be maternity and paternity pay, as well as sickness pay. Yes—we would have to invest extra money to ensure that those changes were delivered into the system.
My final question on terms and conditions is about whistleblowing, which is an issue throughout the health service. People who whistleblow lose their jobs and are ostracised. I absolutely accept that there is existing legislation, but that does not translate to the reality on the ground, given the number of people who have come to me to talk about the issue.
Although there is legislation on whistleblowing, are you looking at something in social care to ensure the safety of people who want to say that what is going on is unacceptable?
Largely, people can raise issues with the Care Inspectorate, and there are protections in place, so those discussions are confidential. The identity of the person who raises concerns does not have to be in the public domain.
The work on effective voice is intended to address those kinds of issues. It is intended not to take the place of legislation but to make its provisions more accessible and ensure that people know how to raise concerns. We would signpost people towards the effective voice framework for exactly those kinds of issues. That work is being piloted at the moment. As I said, it is intended not to take the place of existing mechanisms for people to do that but to make them more visible and accessible, so that people know where they can raise concerns.
In addition, through the fair work in social care group, we have less formal troubleshooting mechanisms. For example, if people have concerns that their pay uplift has not come through in sufficient time, the fair work in social care group can be alerted through a troubleshooting mechanism that we have introduced. Through the effective voice framework, we are looking at what else, in similar terms, we could do to introduce a mechanism that feels like a safe space for people to raise concerns.
That troubleshooting mechanism was introduced because there were significant delays between our putting the money into the system for the uplift to the real living wage and people actually receiving the real living wage. That mechanism appears to have largely sorted the issue.
Last week, the witnesses expressed a sense of urgency about devising a sectoral negotiating body, but their perspectives slightly differed. A union representative was quite relaxed about and supportive of the LCM and stated that it would not threaten the progress that the fair work in social care group has made. Other witnesses felt that the bill had already created a delay and that refocusing on it would further delay implementation in a sector that urgently needs a means to ensure parity across the sector. Given that there does not appear to be total agreement on the way forward for sectoral bargaining in social care, will the Government consider further consultation on the issue?
I do not think that we are planning further consultation, but, once the legislation is passed in the UK Parliament, we definitely need to pause and reflect on whether we will pursue the process with statutory underpinning or continue with our voluntary process as envisaged.
The fair work in social care approach was specifically brought in for Scotland, and, when we consulted the fair work group, it clearly liked the work that has been done so far. We will need to pause and reflect. I do not think that we need to consult too much more, and we have the mechanisms in place to ensure that we hear from the sector.
The UK Employment Rights Bill, as it is amended at the moment, includes provisions to establish a social care negotiating body, but we do not have to do that. We can choose not to implement that part of the legislation in Scotland, but we might find that it is more effective.
Does the minister recognise the concern among some of last week’s panel members about what they perceive to be delays in implementing what has been agreed?
11:15
Yes. As we have illustrated with our answers, things are not quite agreed, although we are very close to agreement. I absolutely understand the frustration of people working in the sector that their terms, conditions and pay are not improving fast enough. That is the concern that was outlined to the committee last week. I agree—I would like to go further and faster. A number of limits are in place. We have just about managed to work out a mechanism that can help us to navigate what is a complex landscape. The other challenge will be finding the money, but we are keen to do that. We are committed and we have a track record.
On having a sectoral negotiating body, our briefing papers say that the bill is in the House of Lords at the moment, so it is reserved legislation. It would be better if employment law was devolved to Scotland completely, as that would give us more control over what we do with employment throughout Scotland. If the legislative consent motion is agreed to, what will be the next steps to establish a sector-wide negotiating body?
You are absolutely correct that employment law is reserved. The bill is required to devolve some power to the Scottish ministers to make changes. We saw the bill coming on the horizon and recognised the opportunity to underpin much of the work that we have done on sectoral bargaining by seeking to extend the bill’s scope to Scotland.
When the bill was introduced, it was intended to be for England only. Scotland and Wales in particular were pretty keen for its scope to be extended. That will give us the option to regulate for negotiated fair pay agreements for the sector as an alternative to the voluntary process, which we think will be useful.
On your point about the reserved nature of employment law, the Scottish Government, much of civic Scotland and trade unions are all keen for employment law to be devolved. Under the mechanism that is in the bill, there is an issue that, despite the area being devolved, UK ministers will still have to consent. It is fair to say that we would have preferred not to have that. At the moment, relations are very positive with the UK Government, but there have been times in the recent past when we have had very different views on how we should proceed. Having to ask the UK Government for permission to implement fair work is not my choice.
It is good to hear that relationships are better at the moment. I am sure that that makes negotiations with our UK Government partners easier.
I have another question. If the Scottish Government were to proceed with establishing a national negotiating body, how would you ensure that the mistakes that were highlighted in the Strathesk Resolutions report on collective bargaining in the college sector were not repeated?
I will be honest—I am not particularly familiar with that report, but I can say that we are working closely with UK Government colleagues on how we move forward with implementing the negotiating body. As the minister said, we have done quite a lot of work on developing a model that is based on voluntary participation in sectoral bargaining.
The UK Government is in a different position, as the bill is its first go at doing this. It is seeking to move quickly to a statutory route, which is not a mechanism that has been available to us, and it has been able to move quite rapidly to this stage. We are in regular consultation and conversation with the UK Government on the steps that need to be taken to set up the negotiating bodies—we are dealing with issues such as the membership, the voting rights and ensuring the participation of the sector and of people with lived experience, for example, so that their voices are heard around the table.
We are working jointly with the UK Government and Welsh colleagues to understand the structure of the negotiating body and what it would do. I absolutely agree with your point about lessons that need to be learned from other work that has been done. We have already told UK Government colleagues that we will feed in anything that we can in order to avoid any missteps and to ensure that any learning that is picked up along the way can be shared. I am happy to take away the point that you made, look a wee bit further into the report and pass on our thoughts to UK Government colleagues.
We are at the early stages of the process. As ministers consider which option they want to move on with—whether it is a voluntary approach, a statutory approach or a transition from one to the other over a period—it will be important that we pick up any learning that we can along the way. I am happy to make the commitment to consider the issue.
Minister, you talked about the low rate of union membership in the care sector. I know that there might be geographical challenges in that regard in rural areas such as your constituency and Dumfries and Galloway and the Borders in my region. How will you address the geographical challenges to increasing union membership in the various areas across Scotland? How will you support people to join a union in a context in which some providers are not very sympathetic to that?
The issue of geography is always challenging. In the Highlands, we have always been quite keen on virtual options for meeting, because the distances involved are vast, but that has become much more of a factor since the pandemic, and now people can go online to gather together, work together and network virtually in a way that was not commonplace a few years ago. Therefore, issues of geography should not prevent union membership.
On the hostility towards unions, it is important that we remind people of the benefits of union membership. That includes reminding employers of the benefits that their organisations will realise if their workforce has union representation, an effective voice and better terms, conditions and pay.
We have worked really hard to work in partnership with the sector, despite the low unionisation level, which exists for all sorts of reasons. However, we are pretty keen on unionisation in the sector. I see union membership and increasing unionisation of the workforce as being strongly beneficial to the workers and to the sector as a whole.
Some of the benefits could involve things such as access to skills development, competence enhancement and support for clinical advancement. I say that as a former clinical nurse educator who taught people across the care sector.
Absolutely. Unions are brilliant at providing professional leadership. We have a professional workforce in social care in Scotland, which is a slightly different approach from that in the rest of the UK. The situation in the rest of the UK has led to some of the narrative over the past few weeks around immigration. Keir Starmer talked about the social care workforce being low skilled, which I absolutely rail against.
Our workforce in Scotland is professional. Staff are regulated by and registered with the Scottish Social Services Council and are either qualified or working towards qualifications. A great deal of support is available to maintain the level of skill and increase pathways to progress in our social care sector. The situation is significantly different in England, which has perhaps led to some of the misunderstanding over the past few weeks.
As I have said clearly in the chamber, the announcement on immigration is potentially catastrophic for particular geographies, including Scotland’s rural areas, such as the ones that you and I represent. It is a result of a fundamental misunderstanding of the different approach to social care in Scotland.
You have answered quite a lot of the questions that I was going to ask, so I will have a wee look at the scope of the proposals and the funding. Can you clarify why the proposed negotiating body will exclude children’s social care staff? Is there a particular reason for that?
We have negotiated a change to that. The arrangements were introduced in that way for England, but we and Wales are both keen on including children’s social care staff, and that will be the position in Scotland.
That is a helpful clarification—thank you.
On funding, have you done any cost analysis of sectoral bargaining and fair work arrangements? Could we look at anything on that?
We have done broad costings around the areas of the terms and conditions that were prioritised by the fair work in social care group that the minister referred to, including maternity, paternity and sickness pay. It is hard to produce costings on sickness pay, as that is quite a variable area, so we have arrived at a range of estimated costs for delivery.
Equally, on pay, we know the approximate costs of increasing wages by, say, 10p an hour, so we have ballpark figures for that. For example, this year, the Scottish Government invested £125 million in increasing pay by 60p an hour—you can probably do the rough arithmetic from there to work out the costs. That work has given us indicative costs for introducing the policies.
Is that information publicly available?
It is not something that we have made publicly available. I am trying to think of any reason why we could not do so.
We can probably furnish you with some costs. I have spoken before about the on-going costs of the increase in employer national insurance contributions, which we think will cost social care in Scotland between £84 million and £100 million a year, every year, from now on. We are trying to regularly update people and help them to understand the situation, because some of the figures are enormous. We will gather some costings together and provide them to the committee.
On the options appraisal of the models that will apply after the UK bill comes into force, do you veer towards a voluntary model?
The Scottish Government welcomes the introduction of the bill. I am positive about the part that we are discussing today in particular, which is a real step forward. We need to spend time working with the sector to bottom out whether people in Scotland would prefer the arrangement to be voluntary or to have a statutory underpinning. However, I am absolutely delighted that the legislative consent motion will give us both options—it does not mean that we will have to introduce one option over the other. We have done a great deal of work towards the voluntary arrangement—as I said, we are nearly there—and I do not want to lose the progress that we have made, but I absolutely want to have both options, and that is why I am recommending approval.
I thank the minister and her officials for their attendance. I apologise for keeping you waiting as our previous session ran over slightly.
At next week’s meeting, we will take oral evidence on pandemic preparedness from stakeholders including the chief medical officer for Scotland. Following that, we will undertake our periodic scrutiny of the work of the Mental Welfare Commission for Scotland.
That concludes the public part of our meeting.
11:30 Meeting continued in private until 12:14.