Consultation on Review of the Role of the Scottish Agricultural Wages Board: Findings from the Analysis of Consultation Responses

Option A responses

As detailed above, 13 of the responses received (23%) were in favour of retaining the SAWB with its present statutory powers to set minimum wage rates and other conditions of service which are legally binding on employers - option A. As Table 5 sets out below, of these 13 responses four were from organisations representing workers and three were from other organisations (the Law Society of Scotland, the Scottish Living Wage Campaign, and Sustain). Two responses were from employers favouring option A and a further four responses were received from other individuals (neither workers nor employers).

Table 5. Summary of responses favouring Option A, by respondent type.

Main themes emerging from the responses favouring Option A:

1. Positive aspects of the SAWB and the current arrangements
2. Concerns about the potential for pressure to cut wages if the SAWB is abolished
3. Concerns about potential for exploitation of workers with language barriers if the SAWB is abolished
4. Repercussions of the abolition of the Wages Board in England
5. Concerns about alternative options (options B and C) and lack of evidence supporting these options
6. Other issues

1. Positive aspects of the SAWB and the current arrangements

Responses favouring the retention of the SAWB tended to emphasise the positive aspects of the Wages Board and the current set up. For instance, it was noted that the SAWB has specialist expertise above and beyond general employment law, that the Board sets a baseline from which it is possible to compare wages across the industry, for the fairness of all, and that it helps to ensure that staff are not underpaid by any one employer.

Both the Equalities Law Sub-Committee of the Law Society of Scotland and Unite the Union noted that the SAWB constitutes a sectoral and uniform model of best practice in industrial relations, while the Scottish Trades Union Congress (STUC) pointed to the importance of collective bargaining in what it referred to as a "low wage industry where seasonal employment is so prevalent".

The International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF) contended that the SAWB provides "a mechanism which at least gives workers some possibility to address the severe socio-economic and cultural disadvantage, inequitable labour relationships and distribution of benefits that are the characteristics of the agricultural sector in too many countries", as well as to address power imbalances between rural workers and employers. Additionally, the IUF argued that the existence of the SAWB ensures that there is a negotiating system in place in the agricultural sector which allows the UK's obligations under International Labour Organisation and other conventions to be met, for example relating to freedom of association, collective bargaining, equality, forced labour and child labour.

With regard to pay rates and conditions, the STUC pointed to the fact that the provisions within the annual Agricultural Wages (Scotland) Orders outlining agreed changes to rates of pay and terms and conditions ensure the most vulnerable will not be exploited by employers. It was also noted that existing arrangements afford workers who are covered by the SAWB additional provisions in terms of a higher rate of pay (including a higher minimum rate for overtime), no age related pay differentials, the option of a stable income arrangement, paid sick leave, additional bereavement leave, and pay for standby duty. The Scottish Living Wage Campaign was strongly supportive of the SAWB's role in ensuring that workers receive a rate of pay higher than the National Minimum Wage. There was also a view that maintaining the current role of the SAWB was in line with the Scottish Government's stated commitment to end poverty and support the Living Wage.

2. Concerns about the potential for pressure to cut wages if the SAWB is abolished

Concerns were expressed that abolishing the SAWB, or changing its role to one of an advisory body, would lead to a 'race to the bottom' in terms of pay and conditions.

3. Concerns about potential for exploitation of workers with language barriers if the SAWB is abolished

Both Unite the Union Scotland and the Scottish Living Wage Campaign expressed concerns that abolishing the SAWB or changing its remit would impact negatively on migrant workers. In its response to the consultation, Unite contended that given the significant proportion of so-called A8 migrants in the Scottish rural and agricultural workforces (migrants from eight countries from the former 'Eastern Bloc' that joined the EU on 1 May 2004, namely the Czech Republic, Slovakia, Poland, Hungary, Slovenia, Estonia, Latvia and Lithuania), abolishing the SAWB or changing its role to that of an advisory body would have a "direct and detrimental impact on race equality and endanger migrant workers disproportionately". The Scottish Living Wage Campaign expressed its concern that the removal or reduction of the SAWB would leave workers who are already vulnerable at the mercy of employers without an additional level of protection, particularly workers with language barriers who "are unfamiliar with UK/Scottish working regulations and procedures, are isolated within the community due to the nature of the work and are often indebted to agencies/traffickers".

4. Repercussions of the abolition of the Wages Board in England

Unite the Union Scotland, the STUC, the Law Society of Scotland and the Scottish Living Wage Campaign all pointed to the abolition of the Agricultural Wages Board in England in 2013. Both Unite and the STUC stressed the impact that the abolition of the AWB has had on wages and other terms and conditions in the agricultural sector in England, with Unite contending that there has been "downward pressure and growing exploitation" as a consequence. It was noted that in Northern Ireland the AWB was retained following a consultation by the NI Assembly in September 2012, while in July 2014 a decision by the UK Supreme Court upheld the move by the Welsh Government to set up its own version of the AWB. The Scottish Living Wage Campaign recommended that the Scottish Government "look to the example of the Welsh and Northern Irish Assemblies in retaining their Agricultural Wages Boards rather than following the UK Government in retracting workers' rights and conditions, and deregulating the sector".

5. Concerns about options B and C and lack of evidence supporting these options

Concerns were expressed by respondents favouring the retention of the SAWB about the potential impact of abolishing the SAWB or changing its role to that of an advisory body. For instance, there were concerns that either of these options would lead to increased non-compliance with Scottish Government Orders, would facilitate inequality and would lead to a less safe working environment in the industry. Unite's view was that an advisory body did not and could not be a substitute for a statutory body, while the STUC argued that abolishing the SAWB would be contrary to the Scottish Government's stated policy position and the recommendations of the Working Together Review and would undermine the work of the Fair Work Convention. The IUF stated that weakening the SAWB "can only be interpreted as a dismantling of agricultural workers' rights".

Countering the arguments made by others in favour of the abolition of the SAWB, for example that there is no reason for agricultural workers to be treated differently to other workers, Unite noted that unlike other sizable groups who can enter into collective bargaining agreements on a workplace or individual company basis, farm workers cannot in the majority of cases meet the threshold for statutory trade union recognition rights. There was strong opposition to the view expressed by some of the respondents in favour of abolishing the SAWB that the SAWB's role is obsolete given National Minimum Wage and Working Time Regulations. Unite argued that these do not encompass the minimum standards within the SAWB process to effectively regulate a low density, geographically disparate and isolated industry, while the STUC noted that the National Minimum Wage and Working Time Regulations are subject to little or no pro-active enforcement.

Reference was also made to the lack of evidence justifying the abolition of the SAWB or the changing of its status to an advisory body. In its response to the consultation, the Law Society of Scotland's Equalities Law Sub-Committee noted that it had found no evidence to suggest that abolishing or restricting the SAWB would result in enhanced employment conditions for workers in Scotland. The Committee pointed to the fact that wage setting has been in place in various forms in Scottish agriculture since 1917 and reflects the norm across the European Union, and expressed its support for the retention of the SAWB. Additionally, the STUC noted that circumstances in the agricultural sector have not changed to any great extent since the 2008 review when the decision was made to retain the SAWB, and that there remains the potential for low pay and poor terms and conditions across the sector.

6. Other issues raised

• It was noted that the SAWB improves the dynamics of farming management in Scotland (between farmers, the SAWB and the Scottish Government).
• It was noted that the protection of agricultural wages is crucial for creating a more sustainable food and farming system.
• It was noted that some employers pay above the rates of the SAWB but use the SAWB agreed percentage increase to increase their wage rates.
• Unite noted that the Agricultural Wage Boards play a role in setting pay far more widely than for the workers formally included in their scope.
• One respondent contended that there is no conflict within Scottish agriculture regarding wages as both employers and employed respect the wages negotiated by this method.
• In relation to the low number of responses received from agricultural workers' and workers' organisations to the 2008/9 consultation, Unite suggested this may have been due to isolation. As such, Unite urged that "the case for retention should not be based on the numerical numbers of the response for or against the retention of the SAWB, but on the merits of the case".