Updated guidance on Fair Work First in procurement is now available. The guidance was drafted in consultation with representatives from the public, private sector, third sector and included the Fair Work Convention. This replaces the previous Best Practice Guidance and Toolkit published in 2018.

The Scottish Procurement & Property Directorate shares more details on the changes made.

 

What’s New?

  1. The guidance builds on the publication of statutory guidance (May 2022)
  2. It replaces the previous best practice guidance and a toolkit published in July 2018. All practical guidance is now in one place for ease of use and forms part of a wider package on the Sustainable Procurement Tools platform as it sits alongside the statutory guidance, e-learning and various tools.
  3. It reflects changes to the Scottish Government’s policy on mandating payment of at least the real Living Wage to workers involved in delivering public contracts and the two additional FWF criteria (offer flexible and family friendly working to all workers from day one of employment and oppose the use of fire and rehire practices), that were added to Fair Work First in 2021.
  4. It includes a new table of FWF definitions, intended benefits and suggestions of what a good response may contain.
  5. It provides more detail on taking a proportionate approach to implementing FWF as part of a procurement tendering exercise.
  6. It provides guidance on how to evaluate responses from larger and smaller organisations fairly and proportionately.
  7. While it does not extend the scope of fair work first and procurement policy beyond SPPN6/2021 and we will shortly be replacing that SPPN to reflect that new guidance is available.

 

Guidance layout

As with the other guides on the Sustainable Procurement Tools platform, the updated guidance is practical guidance aimed at professional buyers. While we have not created a flowchart, the guidance follows the same cycle as the Procurement Journey and users are able to go directly to a stage in the procurement process as shown below or to download a copy of the complete guidance document.

 

Adapting the Fair Work First criteria for this guidance

The purpose of this guidance is to support implementation of Fair Work First, the Scottish Government’s policy for driving high quality and fair work, and workforce diversity across the labour market in Scotland. In drafting this guidance, we have not changed the scope or content of the policy. Instead, we have tried to provide more detailed guidance on how the seven Fair Work First criteria, can be built into procurement processes. In doing this we hope we are reflecting their mutually reinforcing nature and the aim that they should be used collectively seek to address challenges in the labour market.
Annex B – Fair Work First: definitions, intended benefits, what good looks like and relevant sectors
This Annex highlights a category approach in the table, where each of the FWF criteria might apply. In some cases, we have suggested sectors that may be particularly relevant to specific criteria, these suggestions are not fixed or finite and neither are the examples of what good looks like. These are intended to be selected and adapted where relevant and proportionate. We have also added some statistics e.g. gender pay gap, to help illustrate the issues that specific criteria are intended to address.

Exclusion Criteria

While our focus in Fair Work First and Procurement is to drive high quality, fair work and work force diversity, we have included a reminder of the option to use breaches of social, environmental and employment law as a grounds for exclusion.

Monitoring FWF

As detailed in the ‘post-procurement’ part of the guidance, monitoring of FWF outcomes should include the use of any agency or sub-contractor workers throughout the duration of the contract, including any new members joining the workforce engaged on the delivery of the contract. The guidance highlights that this may, for example, take the form of information on pay policy and terms and conditions of workers involved in the delivery of the contract, including what the main contractor is doing to ensure commitments are being maintained for agency workers and down the supply chain.

For example, if payment of the real Living Wage was committed to, then this can take the form of a statement from a director that workers’ pay has been adjusted annually to maintain parity with any national increase in the real Living Wage or collective bargaining rates where relevant.

Human Trafficking and Exploitation Risks and related guidance

While some very useful suggestions around modern slavery were provided, we think they are out of scope of this guidance. Reference to the Modern Slavery Act 2015 is included under the Exclusion Grounds section of the guidance and we signpost our Fair and Ethically Traded guidance that provides more details with regards to handling risks and issues relating to Human Trafficking and Exploitation and Modern Slavery. In the Overview section we suggest a few other guides that may also be relevant to FWF considerations.

Similarly, other economic, social and environmental guidance on the sustainable procurement tools provides support to applying relevant policies through public procurement.

Public Procurement vs. Grant Conditionality

Fair Work First in procurement is distinct from the application of Fair Work First in Scottish Government grants. Scottish Government Fair Work First grant conditionality requires payment of the real Living Wage and a prescribed approach to Effective Voice for recipients of Scottish Government grant funding. While we advocate application of Fair Work First through procurement, individual public bodies are responsible for their own procurement decisions. This is described in the flowchart in Annex A of the Fair Work First Guidance.

The FWF criteria, and wider fair work practices should be applied to public sector contracts and frameworks, as well as publicly funded supply chains where relevant and proportionate to do so. The criteria allow a public body to be specific in its tender documents as to what fair work practices it is looking for.

 

Guidance for Suppliers

This guidance does not constitute new policy and provides multiple examples of what constitutes good practice for each of the seven Fair Work First criteria. The Supplier Development Programme (SDP) have guidance on Fair Work and bidding for contracts. We intend to work with them to update relevant content to reflect the new guidance. The funding SDP means that its resources are available to all private and third sector organisations in Scotland wishing to bid for public contracts.

Many thanks to the Scottish Procurement & Property Directorate for details on this update.

Visit the Scottish Government website for more information at: sustainableprocurementtools.scot