4. Recommendations and Outcomes

4.1 Recommendations

Procurement

Recommendation 1

All contracting authorities should seek to maximise quality weightings and fair work criteria should be given a robust weighting within the quality dimension. Fair work weightings should not be lower than 10% of the contract and it must be possible for low scores on fair work to impact whether a tender is won or lost.

Owner

All Contracting Authorities

Timeframe

Within each tender and reviewing frameworks as they arise

Recommendation 2

Training in fair work should be mandatory for all project commissioners and managers overseeing construction contracts. Training should be provided by those who have demonstrable expertise on fair work and support an understanding of what constitutes positive and stretching fair work commitments by contractors.

Owner

All Contracting Authorities

Timeframe

All staff should be trained by Jan 2024.

Recommendation 3

Guidance should be reviewed to ensure it supports the use of collectively bargained rates within procurement contracts and short best practice guidance should be developed for construction procurement that highlights positive examples of practice in the construction industry. Current wording around avoiding the use of umbrella companies should be retained.

Owner

The Scottish Government

Timeframe

As soon as possible and before Dec 2022

Recommendation 4

Contracting authorities should set an expectation that trade unions have access to workplaces on all public construction contracts in line with the aspiration of the HS2 approach. Access should be facilitated throughout the supply chain.

Owner

Timeframe

With each procurement

Recommendation 5

Guidance should be updated to make clearer the connections between fair work, sustainable procurement duties, community benefits and discretionary and mandatory exclusions. The guidance should support more use of discretionary exclusions when a contractor or sub-contractor has breached its labour law obligations.

Owner

The Scottish Government

Timeframe

Immediate

Recommendation 6

All contracting authorities should include adherence to relevant collectively bargained pay rates as a condition of contract. Introducing this clause within industry standard form contracts is an efficient, proportionate and transparent way to implement this and to ensure that it is applied throughout the supply chain.

Owner

All Contracting Authorities

Timeframe

Immediate

Recommendation 7

In every contract in which fair work questions were asked at the framework stage, tender stage or both, effective contract management by the contracting authority must take place to ensure that the response provided by the contractor is delivered in practice.

Owner

All Contracting Authorities

Timeframe

Immediate

Recommendation 8

All contracting authorities should be signatories to a Fair Work Charter collectively agreed with employers and trade unions. The Scottish Government should also facilitate the appropriate industry leadership group/forum, in negotiation with trade unions, to develop a single charter that sets out principles for advancing fair work in the industry. The single Fair Work Charter should then be used as a pass/fail condition within all construction procurement exercises in Scotland to ensure appropriate fair work standards are applied throughout the supply chain.

Owner

Timeframe

Strengthening Effective Voice

Recommendation 9

All existing industry-level groups including Construction Scotland and the Construction Leadership Forum should include balanced membership from a range of stakeholders including trade associations, professional bodies, federations and smaller employers. All such groups should also include balanced representation from trade unions.

Owner

Scottish Government

Timeframe

Immediate

Recommendation 10

The relationship between each of the industry leadership groups should be clarified and the Scottish Government’s interaction with each group clearly articulated.

Owner

Scottish Government

Immediate

Recommendation 11

All industry leadership groups should seek opportunities to support, through voluntary agreement, collaborative working and mandatory approaches where possible:

Owner

All Industry Leadership Groups and Forums

Timeframe

Immediate and ongoing

Recommendation 12

The issue of disputes resolution should be considered in all large-scale public contracts before work begins on-site. The contracting authority, lead contractor and relevant trade union should work together to agree an appropriate and mandatory dispute resolution process that all parties on-site must adhere to. This could be through existing collective agreements or through a standalone procedure, for example a procedure backstopped by ACAS.

Owner

Timeframe

Recommendation 13

Employers should better engage with existing collective agreements, and unions and trade associations should be prepared to work together to ensure collective agreements support new ways of working and equality, covering elements like flexible working, mental health and maternity issues. The Scottish Government should facilitate unions, employers and trade associations to work together to support effective modernisation within the industry through the collective bargaining structures that already exist.

Owner

Timeframe

By 2023

Recommendation 14

The Construction Leadership Forum should support development of an effective workforce strategy to facilitate the transition to net zero carbon economy. Workforce planning must consider how to support workers through peaks and troughs in demand.

Owner

Timeframe

By 2023

Recommendation 15

All public funding supporting the transition to net zero should include fair work conditionality and drive fair work in the industry.

Owner

With each funding stream

Recommendation 16

Public sector bodies and construction employers at all parts of the supply chain should increase their use of direct employment and support upskilling and retraining to support high quality careers in the industry and improve attraction and retention. Support for direct employment should also reinforce a commitment never to use umbrella companies.

Owner

Timeframe

Immediate

Apprenticeships

Recommendation 17

The Scottish Government should work with SDS, SQA and CITB to reinstate the need to register with trade associations/federations and employers should be required to pay collectively bargained rates as part of the apprenticeship agreement, as was the case prior to 2017.

Owner

The Scottish Government

Timeframe

Immediate

Recommendation 18

SDS should take action to support apprenticeship pay including by:

Owner

SDS

Timeframe

By September 2022

Recommendation 19

Continued funding and support should be provided for the Fair Work Apprenticeship Coordinator role, which has been valuable for supporting the Effective Voice of apprentices.

Owner

The Scottish Government

Timeframe

Ongoing

Recommendation 20

SDS should ensure there is full and consistent partnership working between SDS, SQA, CITB, trade unions, employers and trade associations/federations in agreeing apprenticeship frameworks, with an aim to see all construction apprentices trained to SVQ level 3 (SCQF Level 6) or above.

Owner

SDS

Timeframe

Immediate

Recommendation 21

SDS to work with CITB, employers, trade associations/federations and trade unions to develop principles for taking forward a shared apprenticeship scheme successfully and in line with fair work principles.

Owner

SDS

Timeframe

By Dec 2022

Equality, Diversity and Inclusion

Recommendation 22

Scottish Government, through the Construction Leadership Forum, should convene a working group that includes employers, trade associations/federations, trade unions, SDS and CITB to address skills and labour shortages and future labour needs in the industry and to promote the opportunities that exist within the industry. This group should aim to:

Owner

Timeframe

Advertising campaign to launch in 2023

Recommendation 23

Employers should support a zero tolerance approach to bullying and harassment at the workplace protecting workers from adverse treatment and employers from potential liability. Embedding a safe culture for reporting must come from the top of the organisation. Employers of all sizes must focus on:

Owner

Construction Employers of all sizes

Timeframe

Immediate

Recommendation 24

Unions should provide support mechanisms and dedicated networks for under-represented groups in construction to combat the isolation that workers can feel at work or on training schemes. Employers, trade associations and other relevant actors should signpost to these networks and any dedicated officers who can offer support.

Owner

Trade Unions

Timeframe

Immediate

Recommendation 25

Contracting authorities should require participation in the Gangmasters & Labour Abuse Authority’s construction protocol within large-scale procurement projects.

Owner

Timeframe

Monitoring Outcomes for Workers

Recommendation 26

The Fair Work Convention should return to this Inquiry after five years to examine how well recommendations have been adopted and evaluate the industry against the fair work outcomes within this report.

Owner

Fair Work Convention

Timeframe

2027

4.2 Outcomes

The final recommendation notes that the Fair Work Convention should return to this Inquiry after five years to examine how well recommendations have been adopted and evaluate the industry against fair work outcomes.

The Convention will work with public authorities, employers, trade associations, trade unions and workers to monitor, on an ongoing basis, the adoption and implementation of all of the recommendations within this report.

After five years, the Convention will then consider the impact that the adoption of these practices is having on the experience of fair work by the workforce. The Fair Work Convention will also consider how well social dialogue has been maintained and built upon within the industry. It will further seek to monitor the outcomes presented in this section for workers in the industry which the Convention sees as key measures of how fair work is being strengthened.

For many of the suggested measures listed in this section, existing statistics and publications will allow for tracking over time. However, there are some data gaps and challenges – in particular where data is not currently available at a sector level. Where data is not available, the Convention will seek to carry out research to fill data gaps - through surveys with construction workers and apprentices, for instance. It is recognised that once research is fully scoped, it may be that certain data gaps cannot be feasibly filled or that alternative measures would be more effective and efficient. Nonetheless, the Convention will seek to present a full picture of the extent to which recommendations have been adopted and the subsequent impact on fair work in the sector.

It is therefore proposed that the Evaluation of the sector following this Inquiry be conducted in two phases:

Proposed measures to be considered are as follows:

Security

Opportunity

Fulfilment

Respect

Effective Voice