Social Partnership and Public Procurement (Wales) Bill Consultation

ASLEF's response to the Social Partnership and Public Procurement (Wales) Bill Consultation

ASLEF's response to the Social Partnership and Public Procurement (Wales) Bill Consultation.

April 2021

  1. The Associated Society of Locomotive Engineers and Firemen (ASLEF) is the UK’s largest train drivers’ union representing over 21,000 members in train operating companies and freight companies as well as London Underground and light rail systems. The union represents just over 650 members in Wales.

  2. We strongly welcome the aims and objectives of the draft Social Partnership and Public Procurement (Wales) Bill. The legislation offers an important opportunity to embed fair work and trade unionism in both public bodies and other workplaces in Wales.

  3. Against the backdrop of more and more aggressive anti-trade union laws being passed by Conservative governments at UK level from those brought in by the Thatcher government to the more recent 2016 Trade Union Act, it is vital that the Welsh Government uses all the powers available under devolution to take a stand against these attempts to curtail workers’ rights. The union is very supportive of steps already taken in Wales including the 2017 Trade Union (Wales) Act which protects public sector workers. We are very keen to see additional efforts to protect working people in Wales, and encouraged to see the Welsh Government proposing to use all the levers available in both the public sector and through procurement in order to deliver this.

  4. The definition of social partnership in the Bill is clear and effective. It is important that all partners’ input to any consultation or process is treated fairly and the union believes this will be achieved by the provisions laid out in the Bill. The principle of early engagement with workers through their union, and full and open consultation is vital to improving fairness at work.

  5. While the social partnership principles outlined in the consultation document (and intended to be included in future guidance) are a good basis for achieving good outcomes at work, it should not be considered that the aim of any negotiation is a positive outcome for all parties. The nature of negotiation should lead to fair and equitable outcomes rather than positive. In terms of workers’ rights in the face of employer power, it is also important that workers’ rights remain a focus. In some cases this could mean that employers must be forced to make changes they are unwilling to make, and the Bill and its implementation should allow for this.

  6. The draft bill leaves space for a definition of ‘fair work’. The Fair Work Commission provided a proposed definition, and the union endorses this definition for inclusion in the Bill. The definition of fair work is vital in terms of the duties that will be placed on organisations by this legislation and therefore full consideration should be given to both the definition and any accompanying guidance or examples which illustrate or confirm how it should be implemented. Elements of fair work such as ‘fair reward’ must be considered in the round, including terms and conditions, benefits and employee voice as well as remuneration.

  7. The right to organise collectively as a trade union is enshrined in the UN Declaration of Human Rights, and therefore must be considered fundamental. Employers are not legally required to make recognition agreements but as part of action towards delivering fair work in Wales, collective agreements should be encouraged as far as possible. Employers agreeing to recognition are not agreeing out of kindness, and it is therefore reasonable to impress duties on public sector employers - and requirements on companies selling to Wales - to put in place recognition agreements so that workers have a collective voice.

  8. In the consultation document, the list of challenges which could make delivery of Fair Work difficult does not currently include labour exploitation. The union would like to see this included and acknowledged in any implementation guidance for the Bill, as it is a serious risk which needs mitigation.

  9. The union also welcomes proposals to make procurement socially responsible. Procurement is an area in which the Welsh Government can exert a significant amount of power within its competence and therefore the Government should use all levers available to it to ensure the best quality workplace protections through procurement rules.

  10. The Wales TUC has proposed a new definition of socially responsible public procurement, and ASLEF agrees with this proposal. That is, “Socially responsible public procurement is taking action, when purchasing goods, services and works to achieve the well-being goals, and the new fair work goal detailed below, to improve the economic, social, environmental and cultural outcomes that result from public procurement spend. These matters must be considered throughout the procurement and contract management processes.”

  11. Elements of this Bill and consultation document - including the social value measures - have been developed without social partnership. Therefore the contents of these proposals undermine the goals in the Bill. ALSEF welcomes the Welsh Government’s broad approach to this Bill and its aims, but is clear that the legislation and any future guidance must be developed in partnership to demonstrate the Welsh Government’s full commitment to the aims within the Bill.

  12. A crucial element of the public procurement duty will be enforcement and holding to account those bodies issuing contracts, and the companies selling to Wales. In its current form, and based on the consultation, there is no provision in the Bill for detailed scrutiny and enforcement of these duties. Making these rules statutory is just the first step. It is clear from a number of existing laws that self-policing is insufficient to ensure compliance with rules and duties, so procedures will need to be put in place and fully resourced to ensure compliance.

  13. Additionally, training programmes and making available full guidance and information on definitions within the bill, and related issues such as Fair Work and ‘labour exploitation’ will be required in order to support companies and contracting bodies to comply with the duties.

  14. The aim set out in the consultation document to support Welsh businesses is admirable, but there is a risk that this aim could take precedence over using public procurement to ensure fair work and labour rights. It is vital that the Bill makes clear that even if businesses are ‘home grown’ the principles of the Bill are not being adhered to if there is not also a requirement on these businesses to recognise trade unions and comply with the principles of Fair Work. It should be possible to both encourage Welsh businesses and Fair Work by combining these duties and holding all employers to account.

  15. In addition to socially responsible procurement, the union believes that this Bill should also include a duty to in-source public services wherever possible. While insourcing has been achieved in Wales, ASLEF believes that the Welsh Government could go further within this Bill to directly mandate insourcing rather than outsourced contracts wherever possible. Given the social partnership duty to be placed on public-sector employers, the results of insourcing would include better rights and protections for workers in these roles.

  16. The recent move by Transport for Wales to bring the ownership and operation of Transport for Wales Rail fully in-house is a good example of the potential and successes of insourcing. ASLEF would like to see other contracting authorities mandated to insource contracts upon their expiry or in any other reasonable timeframe. Eventually the union would like to see Welsh Government explore adding these in-sourced and therefore fully public organisations to the list in the Future Generations Act of organisations which are subject to the full social partnership regulations proposed in this draft Bill.

  17. There is no specific mention of equality and diversity in the draft Bill. While it may be assumed that equality and diversity runs through social partnership as a thread, it remains necessary to include specific mention of equality in legislation. Otherwise proposals run the risk of overlooking equality and diversity issues. The union believes that part of the Fair Work definition and decisions made in social partnership should include specific requirements on diversity, for example reducing occupational segregation and ensuring that workplaces and careers are fair and welcoming to all, from every background and with any protected characteristic.

  18. The Social Partnership Council which will be created by the Bill is an important and visible element of this work in Wales. As such, it should be constituted fairly and equitably, with as much work as possible to ensure diverse representation on the council. If the majority of council members are from, for example, the same gender or part of Wales, there is a serious risk that the needs of all workers in Wales will not be adequately taken into account when decisions are made by the council.

  19. In addition, in order to achieve the best possible and most rigorous scrutiny of reports made to the council, a diverse group of people will be required to bring experience from a range of situations, backgrounds and circumstances.

  20. Beyond the direct competence of Welsh Government in this area, there is an important opportunity within this Bill and its guidance to promote the principles of Fair Work, in- sourcing, social partnership and socially-responsible procurement across Welsh employers and businesses. While the Welsh Government may be unable to require businesses to operate in particular ways, ASLEF would like to see communications around the importance of the Bill, and any training or additional guidance to those impacted, be made widely available to encourage and further these aims in Wales.

  21. This Bill is a good step towards bringing into law many of the principles and practices already at work in Wales to improve the quality of work and promote collective bargaining. It should be seen as a starting point on which to continue to build strong and effective provisions within Welsh Government competence to ensure that everyone in every part of Wales has access to good-quality, fair work and unscrupulous employers are held to account.