Public and Commercial Services Union

Information

Under government rules trade union reps have the right to be fully consulted about and kept informed of plans to outsource any service in which they represent staff.

Communication

Full effective and continuous communication is the key to successful improvement and change. It should begin as soon as a review is considered and it should continue afterwards to share what has been achieved. You should bear in mind that union officials will be often be better informed than your managers on privatisation and TUPE (see ANNEX A). You may wish to invite reps from the PCS Commercial Sector Association to talk to members about the consequences of privatisation.

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:

• 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
   
• 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
   
• 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.
   
• Use the Freedom of Information Act. 
   
• 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 that require significant capital investment, departments need to produce a rigorous comparison between involving the private sector and using traditional public sector procurement. Departments must produce a "public sector comparator" as a model for public sector provision with which to compare.

Only if the department can demonstrate that private sector involvement will bring about better value for money than a full public alternative can the project proceed. The public sector comparator is not, however, the equivalent of an in-house bid. There is not an in-house team devising innovative approaches to delivering services within the public sector. Rather it is a "hypothetical benchmark": the cost of public sector provision based on the status quo. Accordingly it does not reflect the potential for the public sector to modernise, and is therefore not an equivalent comparator with which to judge.

Make sure:

1. There is a public sector comparator and union involvement
2. You find out what service levels are hypothesised for the public sector option
3. You know what the discount value for the public sector comparator is
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

Questions for Management on Risk and Penalties for non-compliance

• What criteria is being used to allocate risk
• Is the department able to manage the risk
• What are the penalties for the contractor if it fails to deliver
• How are the penalties imposed
• When are the penalties imposed
• Does the contractor share profits with the department?