Brexit negotiations have engaged the devolved nations of the UK in discussions with the UK Government about migration policy and the implications of Brexit for migrant workers. It is essential to the health of the Welsh economy that labour markets in Wales attract sufficient workers with relevant skills to fill vacancies, yet Welsh Government does not have competence in matters of migration. The Welsh Government therefore required an evidence-base to develop its regulatory position on UK migration policy and to inform a ‘Welsh approach’ to migration. One of its initial concerns was that migrant workers are vulnerable to exploitation and thus may be considered by Welsh voters to drive down wages and other terms and conditions of work in Wales. While Welsh Government carries legal responsibility for the regulation of devolved industrial sectors which depend upon the labour of high numbers of migrant workers (such as health, agriculture, social care), Wales does not have legal competence in employment matters. This raises questions about what, if anything, can be done at a Welsh Government level to address the exploitation of migrant workers.
Hayes was invited to a series of meetings to discuss the exploitation of migrant workers in Wales with Welsh Civil Service Brexit team. Consequently, she advised that to understand connections between migration and labour exploitation the Welsh Government should define what it meant by ‘exploitation in Wales’. She secured Welsh Government funding for LawLab to support initial research to map out understandings of ‘exploitation’ in UK employment policy, what was meant by ‘exploitation’ in other forums and to explore how different understandings of exploitation could inform migration policy. She reported back her core observation that if exploitation in Wales were understood to include routine breaches of minimum labour standards then a policy framework of worker exploitation could speak to the experiences of many thousands of migrant and non-migrant workers’ who experienced poor quality employment in Wales. Thus a Welsh Government migration policy could go some way to address concerns about exploitation with regulatory tools in areas of devolved competence, despite employment standards being a reserved matter. Hayes was asked to write a research report to answer four principal questions:
1. What is meant by the term ‘exploitation’ in relation to low-waged work?
2. What is known about exploitation in Wales?
3. What are the rights of workers in low-waged work which protect them against exploitation and how are those enforced?
4. What needs to be done for existing legislative approaches to be more successful and what are the other policy options which would be considered?
Her report explained that action on exploitation is of relevance to large numbers of workers where breaches of minimum labour standards are recognised as abusive labour practices in a spectrum of exploitation which separates decent from unacceptable forms of work. The report explained that the UK government adopted a much narrower approach to worker exploitation, increasingly focused on the criminalisation of migrants engaged in ‘illegal working’ and the prosecution of rogue employers, particularly those engaged in people trafficking. Hayes’ research evidenced a wide range of factors which made migrant and non-migrant workers in Wales particularly vulnerable to exploitation. It identified the largest risk factor was the very low risk of prosecution for abusive employment practices and minimum wage law violations, characterised by a lack of workplace monitoring, an employment rights regime which located enforcement responsibilities with individual workers and offered few opportunities for independent representation of workers’ interests through trade unions. The research found that experiences of exploitation are not the same as experiences of poverty and observed that Wales’ strong evidence base about poverty does not give sufficient regard to the scale or nature of workers’ experiences in low-waged work in Wales. Hayes recommended that Welsh Government commission bespoke research and put in place a strategy to develop national expertise in UK and international labour standards. She observed many ways in which existing Welsh Policy initiatives contribute to tackling exploitation and showed the importance of furthering policy initiatives to widen trade union access to workplaces, support strategic litigation and fund advice and advocacy for minimum labour standards claims to be adjudicated in Wales. Dr Hayes also identified how exploitation could be framed as an equality issue and suggested that Welsh Government consider its new powers to implement section 1 of the Equality Act 2010 regarding socio-economic disadvantage as an opportunity to considerably enhance its existing capacity to address exploitation via equality law.