Public and Commercial Services Union

Information

Workplace representatives have the right to be informed and consulted where there is likely to be a transfer under the TUPE regulations.

TUPE states that all employees who could be affected by a transfer have the right to be informed in advance of what is happening. The legal requirements on information and consultation can be found in Regulations 10 and 11 of TUPE (See Annex B for full details).

Communication

Full and continuous communication with management should begin as soon as a review is considered and it should continue thereafter. You should bear in mind that PCS officials will be often be better informed than your managers on privatisation and TUPE. .

You may wish to invite negotiation officers from the PCS Commercial Sector to talk to members about the consequences of privatisation. If so, first contact PCS HQ6, Commercial Sector: 0207 801 2667

Freedom of information

If necessary, use the Freedom of Information (FoI) Act. For clear, user-friendly information on how to use the FOI to access information that may be of use to you, please go to the relevant page of the Department for Constitutional Affairs website.

Commercial confidentiality

Public sector clients often use the ‘commercial confidentiality’ clause as an excuse to withhold information from the trade union side.

If companies are using this clause as a reason to withhold information, you should:

1. Ask management to justify its decision. Under Treasury rules the department must give a reason for its refusal and consider alternatives which strike a balance between legitimate commercial interests and the right of unions to be consulted

2. Find out what information prospective contractors are receiving. Often, prospective contractors who do have a commercial interest are given better access to information than unions which don’t

3. Before signing a confidentiality agreement, check to make sure there is the right balance. Confidentiality agreements can significantly restrict your ability to keep members informed, and seek advice from union colleagues. At a minimum, you should retain the right to share information and seek advice from PCS full-time officials, the research and legal departments.

4. If management refuse to provide information consider contacting the minister responsible, your local MP or the PCS parliamentary group.

Public sector comparator

For new projects requiring significant capital investment, departments need to produce a comparative analysis between involving the private sector and using traditional public sector procurement.

To do this departments must produce a “Public Sector Comparator” for use as a model for public sector provision to compare with the expected model of private provision.

It is important that PCS lay officials and full time negotiators make the point, and follow it through, that only if departments demonstrate that private sector involvement will bring about better value for money than a full public alternative should the project proceed.

The public sector comparator is not, however, the equivalent of an in-house bid. For example, an in-house bid will devise innovative approaches to delivering services within the public sector. A public sector comparator will not do this.

It is a “hypothetical benchmark”, i.e. the cost of public sector provision based on the existing status quo. Accordingly it does not reflect the potential for the public sector to modernise, and is therefore not an strictly equivalent comparator with which to judge.

Nevertheless, it is a useful tool. Therefore make sure:

1. There is a public sector comparator and union involvement
2. You find out service levels hypothesised for the public sector option
3. You know the discount value for the public sector comparator
4. You know what decision will be made if the public sector comparator is considered better value for money

There are three central tenets in which a private bid is compared to the Public Sector Comparator:

1. The cost to the department of purchasing required assets through traditional procurement
2. The cost of providing services in-house
3. The cost to the department of retaining the risks that would have been transferred to the private sector

There are several key questions for management on risk and penalties for non-compliance which should be asked:

1. What criteria is being used to allocate risk
2. Is the department able to manage the risk?
3. What are the penalties for the contractor if it fails to deliver?
4. How are the penalties imposed?
5. When are the penalties imposed?
6. Does the contractor share profits with the department?

In proceeding with work around a public sector comparator, it may also be useful to refer to the clauses in the new Agreement on Managing the People Consequences of Outsourcing and Privatisation (see Annex One for the full text of the agreement) that are useful in this context, specifically (b) and (c), which make clear that Departments should:

A national campaign?

If the proposed privatisation is likely to have a wider resonance beyond the bargaining unit itself – i.e. the service to be privatised has a high national profile and the implications of its privatisation may be of interest to the wider public, the media, MPs etc – a national campaign may be the best way to publicise, criticise and derail the proposal.

In this instance PCS officials should contact the Campaigns and Communications Unit and the Protect Public Services Unit to discuss a possible campaign, which might consist of nationally produced campaigning material, briefing for M.Ps, the use of Parliamentary Questions, meetings with Ministers, press notices, national rallies etc.