In addition to employment law, health and safety requirements and collective agreements that a public body must uphold, Fair Work First in procurement relates to a range of Scottish legislation, frameworks and strategies. These include:
Scottish Government Missions of:
Implementing and promoting Fair Work First and wider fair work practices is one of the ways in which a public body can contribute towards the delivery of the National Outcomes and Indicators within Scotland’s National Performance Framework. The National Outcomes relevant to Fair Work First are:
Economy: We have a globally competitive, entrepreneurial, inclusive and sustainable economy
Fair Work and Business: We have thriving and innovative businesses, with quality jobs and fair work for everyone
Poverty: We tackle poverty by sharing opportunities, wealth and power more equally
Human Rights: We respect, protect and fulfil human rights and live free from discrimination
Education: We are well educated, skilled and able to contribute to society
Communities: We live in communities that are inclusive, empowered, resilient and safe
Health: We are healthy and active
The United Nations Sustainable Development Goals were developed to achieve a better and more sustainable future for all. Many of the Goals align with Scotland’s National Performance Framework and are relevant to Fair Work.
Scotland’s National Strategy for Economic Transformation (NSET) outlines the actions needed to maximise the opportunities to achieve the vision of a well-being economy, recognising that “every citizen holds Scotland’s economic potential in their hands”. It clearly acknowledges the challenges, including that currently not everyone is afforded the same opportunities. Its equality position statement recognises people must be at the heart of an economy that works for all and where everybody, in every community and in every region of the country, shares in Scotland’s prosperity.
NSET seeks to reorient our economy towards wellbeing and fair work: delivering higher rates of employment and wage growth, reducing structural poverty, particularly child poverty, and improving health, cultural and social outcomes for disadvantaged families and communities.
The Public Procurement Strategy for Scotland provides a future high-level vision and roadmap for Scottish public procurement in the longer term which all public sector bodies can align to and deliver against. The objectives are at the heart of the strategy and set out how public sector bodies in Scotland can align:
Good for Businesses and their Employees: Maximise the impact of procurement to boost a green, inclusive and wellbeing economy, promoting and enabling innovation in procurement
Good for Places and Communities: Maximising the impact of procurement with strong community engagement and development to deliver social and economic outcomes to drive wellbeing by creating quality employment and skills
Good for Society: Ensure that we are efficient, effective and forward thinking through continuous improvement to help achieve a fairer and more equal society
Open and Connected: Ensure procurement in Scotland is open, transparent and connected at local, national and international levels
The spending pillar of Community Wealth Building (including Fair Work First and Community Benefits) sits under the Good for Places and Communities objective of the Strategy. It aims to: maximise economic and social benefits through procurement and commissioning; apply fair work practices; and develop good enterprises and secure supply chains.
The Procurement Reform (Scotland) Act 2014 (“the Act”) aims to make the best use of public money, helping public bodies to achieve their overarching purpose to create a more successful country, with opportunities for all of Scotland to flourish, through increasing sustainable and inclusive growth.
The Act places a Duty on a public body that, before it buys anything, to consider how it can improve the economic, social and environmental wellbeing of the area in which it operates through its procurements. The Duty places a particular focus on reducing inequality. Examples of this might include:
Implementing Fair Work First in relevant public contracts demonstrates a public body’s compliance with several elements of the Sustainable Procurement Duty, and by extension a public body’s strategic objectives.
Section 15(5)(b)(iii) of the Act requires certain public bodies to develop an organisational procurement strategy and report against its delivery at the end of each financial year. The strategy should set out how the organisation intends to carry out its regulated procurement and must include a statement of the public body’s general policy on payment of the real Living Wage to individuals involved in the delivery of a contract.
Section 15(5)(b)(ii) of the Act requires that the organisation procurement strategy should include a statement of the public body’s general policy on how it has consulted and engaged with those affected by its procurements.
The Statutory Guidance, published under the Act, states that a public body should consider including a statement in its strategy outlining its commitment to implementing Fair Work First. The statement should highlight a range of approaches that the public body may use to promote Fair Work First.
By reporting and monitoring the delivery of intended sustainable outcomes, such as Fair Work First, a public body can more easily demonstrate how it is complying with the Sustainable Procurement Duty.
Fair Work is a model for innovation and success, providing safe and secure working environments and promoting positive workplace cultures where workers are valued, developed, engaged, have their voices heard and are paid fairly for their work. Economies that have stronger productivity growth also have higher wellbeing.
The Fair Work Convention developed the Fair Work Framework which defines Fair Work as work which provides:
The definition of Fair Work is provided in more detail at Annex A - What is Fair Work?.
Fair Work remains at the heart of Scotland’s economic and social programme and is key to a just transition to a net-zero wellbeing economy.
Fair Work for employers supports improved recruitment and retention, makes good use of workers’ skills and creates more constructive relationships at work. This leads to a workforce that is more engaged and motivated which in turn supports innovation and productivity for the business.
Fair Work for workers means addressing labour market inequalities; increased financial security, greater independence, and better physical health and mental wellbeing; increased say in decisions that impact them at work; equal opportunities at work, including access to learning and development, work progression, and to enjoying a culture and environment free of bullying and discrimination, helping people to live more fulfilling lives.
Fair Work is for everyone. The right to just and favourable conditions of work, including pay, is established in the United Nation’s Universal Declaration of Human Rights, and as such, the Scottish Government’s commitment to Fair Work is central to our economic strategy.
The International Labour Organisation (ILO) recognises a safe and healthy working environment as a fundamental principle and right at work. It reinforces the right for freedom of association and recognition of the right to collective bargaining, and the elimination of discrimination in respect of employment and occupation.
The Scottish Government’s vision, shared with the Fair Work Convention, is that by 2025, people in Scotland will have a world-leading working life where Fair Work drives success, wellbeing and prosperity for individuals, businesses, organisations and society.
The Scottish Government’s Fair Work Action Plan: Becoming a leading Fair Work Nation by 2025 sets out the strategic approach we are taking to help achieve Scotland’s ambition of becoming a Fair Work Nation.
The Scottish Government is committed to the principles of Fair Work mentioned above and has made clear its opposition to inappropriate zero hours contracts and other non-standard types of employment that offer workers little or no job security.
To help achieve these objectives as well as drive good quality fair work and address particular challenges in the labour market the Scottish Government introduced Fair Work First. Fair Work First aligns with the Fair Work Framework and consists of the following criteria:
The criteria are mutually reinforcing and seek to address challenges in the labour market. They aim to make a real difference to people and their communities, business, other organisations and the economy.
For full details on the definitions and examples of the Fair Work First criteria refer to Annex B.
The Fair Work First 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.
It is expected that suppliers adopt the criteria in the delivery of public contracts as part of a fair and equitable employment and reward package.
Buyers are encouraged to complete sustainable procurement e-learning to help identify relevant Fair Work opportunities, and risks.
A public body should consider, before undertaking a procurement exercise, whether it is relevant and proportionate to include Fair Work First requirements as part of the procurement tendering exercise. This decision may emerge from Equality Impact Assessments and/or by undertaking a Life Cycle Impact Mapping exercise and a Sustainability Test relating to the project. Fair Work First requirements may apply to lower value and excluded contracts where fair work practices are relevant and proportionate to the contract.
Determining when it is proportionate to apply the Fair Work First criteria to a procurement will depend on many factors including the subject matter of the contract, contract length, location and the impact fair work practices will have on the way the contract is performed or delivered.
Fair Work First, is likely to be relevant where research indicates that any of the following circumstances may be present in the sector/industry:
The above examples are not in order of priority. This is by no means an exhaustive list and should not be treated as such. Other factors may be relevant depending on the individual procurement and sector.
If the answer to any of the above is “yes” then Fair Work First is likely to be relevant to the procurement. By determining relevance and proportionality, a public body will establish which, if not all, of the Fair Work First criteria will apply to their procurement.
Where the primary focus is on the quality and performance of the goods being supplied, for example, where the contract ends when the goods have been supplied and there is no on-going contract management required then other sustainable procurement factors may be more relevant.
A public body should consider whether there is an opportunity through the procurement to positively influence fair work practices for potential suppliers' existing workforce, or in the sector where they operate, where relevant and proportionate to do so. Life Cycle Impact Mapping and Sustainability Test can help with this, along with early engagement with the market.
A public body should consider how to apply Fair Work First in contracts that are likely to be delivered by smaller businesses and sole traders. This requires balancing the need to minimise the burden on bidders while ensuring Fair Work First is addressed in an adequate and proportionate way.
For the purposes of public procurement in Scotland, businesses are defined as follows:
A sole trader is an individual that exclusively owns their own business, is self-employed and is unincorporated. A sole trader can employ workers but is solely responsible for the business, as well as being personally liable for any losses. It is important to consider how a sole trader would deliver a contract. Will they rely on short term workers and consequently is there a risk of disguised employment; inappropriate use of zero-hour contracts or abuse of the umbrella company model? In these instances, Fair Work First should be used to advocate that all workers involved in delivering the contract should have fair terms of engagement.
Suppliers from different countries will operate within different economic, social and legal contexts. Most obviously, the real Living Wage is UK-specific and cannot be applied to workers based in foreign countries.
Where a foreign-based bidder is intending to use workers who are based in the UK to deliver the contract, then Fair Work First as described at Annex B should apply. However, if a bidder intends to deliver a contract using workers based in another country, then the bidder would be expected to offer fair working practices tailored to the location where the contract is being delivered. In this case, fair work practices described at Annex A and Living Wage considerations should apply.
A public body should consider using a Risk check tool, to establish Fair Work First risk and opportunities in contracts that are likely to be delivered outside the UK. An example of these tools is available in Annex C.
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