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Consultation on Workforce Matters

In October 2008 the Department for Communities and Local Government issued a new consultation on “Best Value and Procurement Workforce Matters in Best Value Authority Contracting – Statutory Guidance”, with the purpose of updating existing guidance on the treatment of staff working on best value local authority contracts. The Consultation ran until 19 January 2009.

The existing guidance is comprised in ODPM Circular 03/2003. The following sections of the Circular are proposed to be updated into a single suite of updated statutory guidance:

	Valuing the Workforce
	Handling of Workforce Matters in Contracting
	Code of Practice on Workforce Matters in Best Value Authority Service Contracts (the Two Tier Code)

The main updates to the guidance are as follows

Valuing the Workforce

	Under the Local Government Act 2003 section 101 and 102 when there has been a contracting out of services the Secretary of State is empowered to require an authority to deal with the matters affecting who employs the best value authority staff and the terms of the employment. Under section 101 of the Act authorities should also have regard to any guidance issued by the Secretary of State.
	The TUPE Regulations 2006 are now in effect and will apply when there is a transfer of an undertaking/business to another person, or a service provision change.
	The Best Value Authorities Staff Transfers (Pensions) Direction 2007 provides pension protection for employees of English best value authorities when staff are transferred under TUPE. Pension protection will be secured if the transferring employee has the entitlement to acquire pension rights that are the same, or broadly comparable, or better than those they had as an employee of the authority.
	Authorities should ensure compliance with the general duty of best value and note that a two tier workforce will not achieve best value.

Handling of Workforce Matters in Contracting

	Value for money and standards in service delivery can be achieved by authorities ensuring that a potential contractor’s workforce has the necessary skills and training to deliver the contract. EU procurement rules and Government procurement policy allow scope for incorporating workplace skills in the public procurement process in the situation where skills are relevant to the subject of the contract, and lead to successful service delivery whilst achieving value for money.
	The amended guidance covers all best value contracts whether or not they are subject to European Public Procurement legislation. Procurement should align with the objectives of the authority, be managed and delivered on time, within budget and to agreed quality standards. Any issues regarding workforce matters should be identified early and a plan for dealing with them drawn up.
	Contracting authorities should be aware of the Public Procurement Regulations 2006, which include procedures and requirements not included in previous rules.
	To comply with health and safety, authorities should ensure that the contract makes clear the essential measures needed to control significant risks to workers, service users or the public.
	Local authorities have a legal duty to eliminate unlawful discrimination and promote equality of opportunity. Existing equalities policies should be monitored and changes in policy should be assessed for adverse impact in the equality duties. If goods, works or services are provided by external suppliers, authorities are still responsible for meeting equality duties, if a contract therefore raises issues relating to the equality duties to promote race, disability and gender equality, the authority should seek confirmation that these duties will be met, covering both workforce matters and if relevant service delivery.

Code of Practice on Workforce Matters in Best Value Authority Service Contracts

	The amended Code is to apply regardless of whether the original contract was entered into before the coming into force of the Code or its predecessor. It is emphasised that the Code should form part of the service specification and conditions for all such contracts.
	Best value authorities must ensure that individual contracts comply with best value requirements. Local authorities should assess the arrangements for complying with workforce matters in contracting as part of the Comprehensive Area Assessment.
	Trade unions and other stakeholders can question any issues relating to contracts and workforce matters with the appointed auditor, providing the information is relevant to the functions of the auditor.
	Requirements relating to Best Value Performance Plans have been removed from the guidance as the Audit Commission is revising the method of monitoring compliance. There has been separate consultation on the new assessment methods.

To see the proposed guidance in full, the consultation document is available by clicking here

For More Information Contact:
Peter Hill
TPP Law Limited
53 Great Suffolk Street
London SE1 ODB

t 020 7620 0888
f 020 7620 0778
e info@tpplaw.co.uk

Email: Peter

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