Wednesday, 16 April 2014

Congress 2014: Grahame Smith, STUC on A Just Scotland

On the last afternoon of Congress 2014, Grahame Smith, STUC general Secretray delivered the following statement to conclude the debate on A Just Scotland:

President, Congress, happy to present the General Council statement on A Just Scotland and urging support for Composite C and amended motion 103 and asking Congress to oppose motion 105.


Congress, opening this debate on behalf of the General Council, Mary Senior persuasively outlined the reasons why we should be proud of the STUC’s A Just Scotland initiative.


We have shifted the referendum debate firmly onto social justice and onto the real priorities of the working people we represent.


But Congress I’ve heard it argued – at this Congress and elsewhere – that our refusal to tow a Yes or No line demonstrates a lack of leadership.


I refute this absolutley.


In many ways for the STUC choosing one side and blindly pursuing its rigid arguments would have been the easy option.  But it would have also risked the unity of the movement .


Developing and promoting A Just Scotland has been an intense and difficult task.


But we know trade union members and many in wider society have valued our contribution and the difference it has made to the debate.


It is right that people should read and learn from our reports knowing that they’ve been compiled to constructively challenge both sides.


And that is what we have done this week in the two question and answer sessions.


Hard, fair and informed questions to both sides eliciting revealing responses; sometimes welcome, sometimes not.


Both Yes and No positions have profound implications for the future of our nation – defending these positions shouldn’t be an easy ride for anyone.


Whether it be the First Minister on tax and procurement or Johann Lamont on Trident or public spending  it is our responsibility to highlight inconsistencies and weak arguments.


And we will continue to do so.


Congress,  it is of course acceptable and understandable that affiliates will develop their own positions on the referendum. These are reflected in our agenda.


However the terms of motion 105, if adopted would be tantamount to taking a Yes position which would be incompatible with the A Just Scotland approach. It would throw away the outstanding work undertaken over the last two years and marginalise our impact in the remaining months before the referendum.


The General Council is entirely comfortable with affiliates taking their own positions. But it is essential that we leave this Congress with a united STUC position.


One that will give strength to our A Just Scotland approach.


One that will secure our influence in the debate.


But Congress, the increasingly febrile nature of the debate  and  the exaggerated and at times hysterical  claims  of both campaigns is deeply worrying because the tone is being set for the referendum’s aftermath.


Whether it is a yes or no vote the political atmosphere could quickly become poisonous.


This is why it is so important that the Scottish trade union movement continues to play a central role in ensuring the path to Scotland’s constitutional future is as smooth and consensual as it can possibly be.


Whatever the outcome in September our actions as a movement will be driven by our values - our values of unity and solidarity.


Whatever the outcome, Scotland’s trade union movement and civic society must be at the heart of the negotiation process for  independence or enhanced devolution.


And we will not be shy about stating our red line issues:


If it is independence there must be no backtracking on Trident;

and trade union freedom must be at the top of the agenda for the new Scottish Parliament.


If it’s enhanced devolution then tax powers must go further than those proposed by the Labour’s Devolution Commission.


And we need to see a new direction from UK Labour. More austerity is not acceptable.


We will not accept a little bit less of the same.


We want a lot more of something different.


Whatever the outcome in September there will be change - and the trade union movement on this island will not be immune from it.


Whatever the outcome we all need to remember the need for unity amongst workers; within and between unions and between trade union centres.


But if we want to be in a postion to shape that change, to achieve A Just Scotland  - closing our eyes, keeping our fingers crossed and hoping change won’t affect us not an option.


The status quo is not an option.


If we fail to recognise that we fail to recognise the danger of division – division that will damage our class and our movement and will have the bosses rubbing their hands.


Our objective is to move forward together. But if the opportunity to advance is offered should it be rejected because it is denied elsewhere?


If Scotland’s constitutional arrangements, whatever they turn out to be, allow us to advance the cause of social and economic justice, would it not ultimately benefit workers across these islands?


We have the capacity to lead that change but we need the  capacity to  change ourselves.


This is an historic moment for our country and our movement.


It will fall to us to define the road we take, to shape our future, to grasp the opportunity to achieve A Just Scotland.


Our ability to do it lies in every workplace where there is a union member.


In every workplace where good reps do what good reps do –  build the union – and fight for their members.


It lies in our ability to organise;


In our ability to take on the bad bosses;


In our ability to stand up for our values and our beliefs.


This Congress meets on the cusp of a momentous moment in Scotland’s history. The prospect of profound change in our nation’s democracy is very real.


But we should be in no doubt that whatever our constitutional future working people will still have to contend with the Jim Ratcliffes, Michael O’Leary’s and the faceless private equity barons of this world. They’re not going away. 


But Congress neither are we!


The Scottish constitutional debate is a debate about where power should lie and why.  It will be of little real relevance unless government, wherever it sits, has the power and is willing to use it to prevent the destructive actions of private equity or if workers through their union, do not have the power to influence the actions of an employer, and achieve a much more equal share on our national wealth.


I commend the statement and our A Just Scotland approach to Congress.


Congress 2014: Mary Senior, UCU on A Just Scotland

On the last afternoon of STUC Congress 2014, Mary Senior, UCU delivered the following speech moving support for Composite motion C on A Just Scotland:

Congress, in Inverness two years ago we decided that the debate over Scotland’s constitutional future was just too important to be left to the politicians alone.
STUC Congress was determined that the voice of working people would be heard and that the programmes of the Yes and No campaigns would be tested against the proud and unwavering values of our movement. With the future of our country at stake we were simply not prepared to settle for debate containing little more than political fluff, sound bites and half-truths.
Congress, I think I can state with some confidence that the STUC’s A Just Scotland campaign has achieved these aims. It is true that much of the public debate remains mired in assertion and incivility - with personal abuse continuing to be a very unwelcome feature particularly on social media - but the campaigns and political parties have had to respond to the analysis and difficult questions set out in the two A Just Scotland reports.

Following publication of the interim report there was a discernible shift in the terrain on which the referendum battle was being fought. The ground shifted to competing visions of social justice. This will be the legacy of A Just Scotland. 
Working people are now better informed on the issues that at the core of the debate. Politicians and the campaigns are now more aware of the questions working people want answered.  
Not every question set out in the second A Just Scotland report has been satisfactorily answered - the contributions of both Alex Salmond and Johann Lamont at the Congress both testify to this fact - but the STUC will continue to press the campaigns over the coming months to make sure our members are as informed as they can be when they step into the ballot box on September 18th 
Whatever the outcome in September the STUC will as ever vigorously defend the interests of working people in Scotland: whether it be making sure that workers’ rights are at the forefront of the political agenda in an independent Scotland or fighting for enhanced devolution which is sufficiently strong to deliver on social justice in the face of Tory austerity at Westminster.
For working people know that constitutional change cannot in and of itself deliver a better, more socially just Scotland. The same elites and vested interests that have Osborne’s back on austerity will remain as active and well-funded in whatever constitutional scenario Scotland finds itself in. Scotland’s trade unions will continue to be the progressive force which counteracts and overcomes these forces of privilege and self-interest. 
The STUC will remain at the forefront of the constitutional debate and A Just Scotland initiative will continue to inform and challenge in advance of the referendum. A Just Scotland will not be won or lost on 18 September. The trade union movement knows that whatever the decision the fight for social justice, good jobs and public services will go on. The STUC, with the support of this Congress, will be ready to meet the challenge.















Monday, 14 April 2014

Congress 2014: the Economy

The following speech on the economy was delivered to STUC Congress 2014 by Pat Rafferty, Scottish Secretary UNITE on behalf of the STUC General Council:


We meet here today at a time when the eyes of the world are looking at Scotland and its democracy.

Questions are being asked about Scotland’s economy;

Scotland’s currency:

And it’s position within Europe.

But Congress - whatever the outcome on 18th September, I want a Scotland that will deliver fairness for its people.

A Socially Just Scotland

An economy - where the work you do is paid at a fair rate - where the minimum wage is the Living Wage;

An economy where we have decent homes for all - and the abolition of the despicable bedroom tax;

A country that protects the most vulnerable in society;

And of course – A country that protects our public services and our beloved National Health Service.

But Congress – This UK government’s austerity measures are damaging the most vulnerable in our society and pitching one against the other:

The young against the old

The abled bodied against the disabled

And the employed versus the unemployed   

And Congress,

I am bitterly disappointed with a Labour Party which has sided with the Con-Dem government to support a cap on welfare benefits – they should hang their heads in shame

The UK government says - that its deep rapid cuts cannot be avoided – and you need to accept that.

Ministers claim this is the only way to deal with the deficit - and of course - we’ve been told there is more of the same to come, £25 billion worth to be exact.

They also want us to think that the only choice is between cutting spending and increasing tax rates. 

However the cuts that have been made have slowed the recovery.

Instead of forcing banks to lend to small businesses - which would create jobs as well as offering opportunities for young people to work - this UK Government is focusing its plans on cutting welfare benefits and public services. 

With 900,000 unemployed young people, we urgently need a strategy to prevent another lost generation. 

We need to incentivise employers to employ our young people by providing more apprenticeships and tax incentives.

We need to defend the collective bargaining agenda from further attacks by a UK Government set on reducing workers collective strength - but also to restore justice at work by halting the decline in real wages.

And we need a strategy for growth which will get Britain back to work.  But these need to be quality jobs. Not the low skill, low wage jobs we see being created.

People need job security - not zero hours contracts - with workers not knowing if they have work from one day to the next and unable to make any plans for their future.

There is only one winner in that contractual arrangement - and it’s not the workers or the economy – It’s the greedy employers.

We know only too well the individual hardships people face as they are told their job is redundant.  We see the impact this has on them and their families as they desperately look for something else in a job market which is offering low paid, insecure work. 

All of us here today will have first-hand experience of the huge increase in casework as rogue employers take advantage of the UK Government’s attacks on ordinary workers’ rights - by meting out unjustified punishments to workers, and their representatives, who are striving to do their best in very difficult times. 

Since the late 1970’s, the share of GDP going to workers’ wages has fallen from 65% to 53%, with those in the middle and the bottom hit hardest.

At the same time - the proportion going to profits and to the wealthy has risen sharply. 

As wages have stagnated - debt has soared and incomes have been squeezed further.

A recent report by the Joseph Rowntree Foundation shows that during the recession - the number of households that cannot afford a decent standard of living have increased by a fifth – from 3.8 million to 4.7 million.

That is why we are seeing more and more people using pay day loan companies and food banks to get by from one week to the next.

The Office for Budget Responsibility expects household debt in the UK to reach over £2 trillion by 2015.

But Congress - there is a better way.  One based on social justice.

As trade unionists we must galvanise the support of our sisters and brothers,

Our friends and family - and the communities we live in.

We need to ensure proposals for sustainable economic growth are delivered - which are tied to an industrial strategy based upon a trade union agenda,

One of - fairness - equality - and respect.

I move.

Congress 2014: Collective Bargaining

On the first morning of STUC Congress 2014, the following speech was delivered by STUC Vice-President June Minnery (GMB) in moving a composite motion on collective bargaining:

Congress, collective bargaining is about more than obtaining a fair day’s wage for a fair day’s work, protecting terms and conditions and safeguarding our members’ health and safety.

It is about equality. It is about building and sustaining workplace democracy. It is about the development of a society which is fairer, more equal and democratic - and where economic power is more evenly distributed.

The sorry truth is that for far too long now, successive governments have refused to acknowledge any kind of positive role for collective bargaining. It has been considered an unwelcome rigidity which prevents the otherwise flexible labour market from adjusting to meet changes in demand for labour. The wider benefits of collective bargaining have been deliberately obscured and diminished. For flexible labour market read low wage, low regulation, and low valuation of a disposable workforce.

But if politicians do indeed want to tackle economic insecurity and income inequality – and, yes, that is a big ‘if’! - then government at all levels must urgently reassess the benefits of collective bargaining.

During the referendum campaign we have heard an awful lot about the superior economic and social performance of the Nordic nations. But this rarely includes reference to the high levels of trade union membership and very wide collective bargaining coverage which are at the very centre of their models:

In Norway 72% of workers are covered by collective agreements. This rises to 82% in Demark and to 90% in Finland. In Sweden the pay, terms and conditions and pension rights of 92% of all workers are safeguarded by collective agreements. It is no accident that womens’ participation in the labour market is higher in these countries and that the gender pay gap is lower.

The income distribution in these countries is – hardly surprisingly – much more fairly distributed than in Scotland and the UK. Indeed, across all the developed nations, higher collective bargaining coverage is positively correlated with lower income inequality. More workers covered by a collective agreement leads to a fairer distribution of income; end of story.

As with the Nordic nations, few of the politicians currently in thrall to the German industrial model have talked about the collective bargaining which helps drive a long term ethos throughout the system. It appears that when studying the experiences of other countries people often see only what they want to see.

It’s also revealing to track over time how the decline in union membership and collective bargaining coverage is accompanied with the top 1% grasping an even bigger slice of the cake for themselves.

In 1970 with trade union membership and collective bargaining coverage at an all-time high in the UK, the income share of the top 1% was only 5%. As bargaining coverage declined over the following three decades the income share of the top 1% tripled. The less workers are covered by collective agreements the greater the ability of those at the top to loot the gains produced by all.

Congress, this composite includes a range of proposals which if implemented would go a long way to ensuring more people benefit from the higher pay and greater security provided by a collective agreement. The benefits of collective bargaining are confirmed by a large and accumulating body of research. Politicians, who tell us they want policy to be evidence based, should really start acting on it. The Scottish Government now has an opportunity to do exactly that through the Mather Commission in which the STUC is heavily involved.

And Congress it is essential that free, independent trade unions are at the core of any new efforts to extend and improve collective bargaining across the economy. The last thing Scottish workers need is for their pay, terms and conditions to be negotiated by ‘employee representatives’ who haven’t been democratically elected and are usually captured by management. Scotland doesn’t need ostensibly progressive but practically weak models of workplace relations imported from elsewhere.

This composite is a litmus test for Government at all levels: seek to support an agenda for collective bargaining or cease with platitudes about inequality, low wages and decent work.

But let me make clear that the STUC General Council knows that increasing the number of people in Scotland covered by a collective agreement ultimately depends on the effectiveness of trade union organising agendas. We’re not looking for anyone else to do this for us. All the measures outlined in this composite seek to achieve is the creation of a level playing field for union organisers to do what they do.

It is right that Scotland’s trade unions are at the forefront of the living wage campaign. The national minimum wage which has done so much to help the very lowest paid was also one of our great successes. However, in supporting fair wages across the economy, protecting hard won terms and conditions and underpinning a better society it is collective bargaining which really matters.

Congress, I ask you to support this composite.

Friday, 21 March 2014

The Living Wage and EU procurement law

A short Twitter exchange this morning, ended with the suggestion that I blog on the issue of Procurement and the Living Wage.  It won’t be the first time I have done this, but it’s no problem to do so again. 

Pat Kane @thoughtland tweeted:

I am interested in BoJo London living wage. In 2012, re: EU procurement, law WAS threatened:  Info on situation now?

The article in question suggested a Westminster Government view in 2012 that the London Living Wage (or at least its application through procurement contracts) might be in contravention of EU Procurement Law.  This is not a novel view, and is essentially repeated in Scotland by the Scottish Government.  Boris Johnson, Ed Miliband and others disagree.  The short answer to the twitter question would have been.  'The situation is the same as was then.  London continues to implement a number of Living Wage contracts and there has been no legal challenge'.

In 2012, the Scottish Government sought the ‘clarification’  of the European Commission on the  possibility of requiring contractors, as part of the public procurement process, to pay their staff a 'living wage', higher than the minimum wage.  It has to be said that, assuming the Scottish Government would like it to be the case that the living wage can be stipulated through public contracts, it was not a very sensible or helpful letter to write. 

The response from the European Commission enabled the Minister Alex Neil to conclude:

“This clarification confirms my understanding that it is not possible to require contractors to pay their employees a living wage as part of a public procurement process.”

First off, we should deal with one common misapprehension. The proposal to include Living Wage provisions within the Procurement Scotland Bill is not about requiring contractors to become Living Wage employers in all of their business activities – nice though that would be.  To say that (for example) SERCO, which isn’t a Living Wage employer, was barred from tendering for, or being awarded, any public contract because it isn’t a Living Wage employer in general, would be illegal under EU law.

The more interesting question is whether public bodies can stipulate as a contract performance clause that the Living Wage should be paid in the delivery of a particular contract.  This is essentially what the amendment to the Procurement Bill we have been supporting seeks to do.

To be fair to the Scottish Government, they did explore this issue to a degree with the EU Commission.  The EC response was that such actions were possible, providing that the payment of the Living Wage was compliant with the Posted Workers Directive, and in particular with interpretation following the judgment in the Ruffert case. What this judgment signifies, in a nutshell, is that in certain circumstances there are restrictions on the setting of wage levels for contracts above national minimums if the likely effect on other EU companies is to introduce “an additional economic burden that may prohibit, impede or render less attractive the provision of their services in the host Member State”.  In this respect the key issue, whether in relation to the Ruffert judgment or the more general clause 56 of the Treaty of the Functioning of the European Union, is whether companies based in other EU members states would be commercially disadvantaged by a Living Wage stipulation and , if that were the case, whether it could be justified in terms of the social provisions within EU Procurement Law.

In the Ruffert case, the action which was ruled illegal was to set a contract condition that the successful bidder should adhere to wage levels set through collective bargaining agreements in a specific part of the construction sector.  This was action was defended by Lower Saxony on three grounds, the key one being that the state measure was justified by the objective of protecting workers.

The European Court of Justice found against Lower Saxony on the grounds that the wage stipulation was not necessary to protect workers citing the fact that the provision was not necessary, was not universally applied (only to public sector construction contracts) and because the rate was higher than provided for by national legislation.

It should be said that trade unions across Europe have plenty of reasons to dislike the Ruffert case but that does not mean that its implications can be ignored and  on the face of it, it appears to pose some difficulties for Living Wage and procurement in Scotland,. But before jumping to that judgment, the following should be considered.

1)    In the Ruffert case the potential for the wage stipulation to be to the detriment of companies based in other member states was effectively agreed by all parties.  That is to say that no one questioned that the effect of the Lower Saxony approach to contracting would be to restrict the ability of companies based in other EU to member states to successfully compete.  In construction, workers are routinely paid at rates considerably higher than the minimum wage. Thus there is the potential for a company to pay posted workers above the legal minimum, but below the industry standards and still absorb other costs (travel, accommodation etc) implicit in posting workers.  As we will see, it is far more difficult to argue that a Living Wage stipulation for contracts such as in social care or cleaning is comparable.  Whilst it was difficult in Ruffert to deny that there was any protectionist element in Lower Saxony’s actions, it would be much easier so to do in respect of a Scottish Living Wage provision.

2)    There was no actual set wage rate identified by Lower Saxony in the Ruffert case.  The wage rate being set by collective sector agreements in part of the construction industry.  This makes it harder to a) judge the potential detriment to a contractor b) to argue that the different wage rate was set by “laws, regulations and/or administrative provisions” as is required by the Posted Workers Directive and c) that the wage rate was necessary for the protection of workers.

The legal opinion we have been provided with, and is a matter of public record, suggests that it is possible to legislate in Scotland in a way that avoids these problems.

Firstly an objective analysis could be undertaken to assess the potential impact on companies based in other member states of introducing a Living Wage contract performance clause.  A possible question might be.  Are there any companies from other EU member states currently delivering any Scottish procurement contracts, employing posted workers and paying less than the Living Wage?  I’m fairly certain the answer is No.  The vast majority of procurement contracts are in the field of health and social care.  Some of the Scottish based companies and voluntary organisations pay between the Minimum wage and Living Wage, and the difference between the two rates is currently £1.14 per hour.  To quote Unison's Dave Watson in his evidence to the Scottish Parliament

“Let us think about this: that directive is a European piece of legislation governing cases in which a company, presumably from a low-wage eastern European economy, posts workers to Scotland to deliver a particular public service contract. One could imagine certain high-level, high-wage areas—for example, the offshore areas where the people Pat Rafferty represents work—where a company might want to bring workers over, accommodate them and so on. Can you really see the same thing happening in a cleaning or hospitality contract, where the difference in wages will be between the national minimum wage and the living wage? Is that profit margin enough to pay for the accommodation of hundreds of Polish, Romanian or Bulgarian cleaners or hospitality workers? Clearly it is not, which is the reason why there have been no challenges.”

Secondly, the Scottish Government can go further in its justification for stipulating a Living Wage than Lower Saxony did in the Ruffert case.  It can argue that the protection it suggests is a question of ‘human dignity’.  Our legal advice says that attaching more weight to the employment protection issues such as describing the Living Wage as a matter of human rights protection makes the courts apparently more willing to accord them greater weight.  Could such a description be justified?  Of course it could.  Firstly, the Living Wage is significantly lower and 'more basic' than the likely wage rates being suggested in the Ruffert case. Also, unlike the UK Minimum Wage which is essentially a negotiated rate set by government based on the balancing of both fairness and commercial considerations, the key processes involved in setting the Living Wage (Minimum Income Standard, participatory budgeting etc) have a meaningful read across to human rights.

Thirdly, the Scottish Government could set the Living Wage rate in (probably) secondary legislation and provide a note on how the future rate would be calculated.  This would do two things.  It would avoid the ‘Ruffert problem’ of the rate not being set by ‘laws regulations and/or administrative provisions’.  It would also provide the potential to quantify any potential detriment to companies bidding from overseas on the basis of posting workers (not that we believe the need would ever arise).

Would one final problem remain?  Would a court rule as sufficient cause for overturning a contract the fact that the Living Wage rate is not universal (i.e. only applied to public sector contracts) and that the rate of pay guaranteed is greater than that provided for in the national legislation? It seems to me that this is unclear.  Firstly it is uncertain whether this would be a defining issue given that the other problems arising from Ruffert could be dealt with and particularly important in this might be the different criteria adopted for setting Minimum Wages and Living Wages  (with the second being more grounded in human dignity considerations). Secondly, and perhaps quite importantly, the Scottish Government does not have the legislative competence to change the level of the National Minimum Wage even if it wanted to.

I am certainly no legal expert.  But what I do know is that significant advances on procurement and social and environmental policy have been achieved precisely because European Governments and other public authorities have taken a proactive approach to exploring the boundaries of EU procurement law- A6.1.2 C-225/98 Nord-Pas-de-Calais Region (Commission v the French Republic) is a frequently quoted example.  It is also the case that there has never been a legal challenge to the use of Living Wage contracts in London.
So, to return to an important point. Not only, would the Scottish Government have a strong case, but it is very hard to imagine the circumstances in which its case would be tested by a commercial company in court. 
It is for these reasons that I am tempted to conclude that there are other considerations, chiefly financial ones, which are at play here. That’s a debate we should be prepared to have openly rather than relying on a single and questionable interpretation of EU law.

 Dave Moxham













Tuesday, 11 March 2014

Why so meek on Procurement and the Living Wage?

The silence from too many MSPs on the Scottish Living Wage is becoming increasingly hard to accept.  The Scottish Government has made important moves to deliver a Living Wage for directly employed public service workers but has shown little passion or even curiosity in terms of what might be possible for it to deliver through the near £10 billion spent annually on public procurement.

The Living Wage is an unusual case wherein a number of Scottish political parties are seemingly less progressive, or at least less vocal, than their UK counterparts or equivalents.

It is true to say that the position of the Scottish Greens and Scottish Labour are both consistent with those of their UK organisations and the independent MSPs have been stalwart supporters of a Living Wage. But contrast the relative quietness of the Scottish Tories with the position of Boris Johnson who loudly champions the Living Wage whenever the opportunity arises.  Or the Scottish Liberals’ reticence whilst Nick Clegg’s calls for a “compulsory Living Wage for government workers”. 

And whilst it’s hardly fair or accurate to describe Plaid Cymru as the exact Welsh equivalent of the SNP, their leader Leanne Wood has gone significantly beyond support for a Living Wage for directly employed public servants and argued for a Procurement Bill in Wales to ensure fair pay for those employed under government contracts.

Just to recap.  The Scottish Living Wage Campaign, comprising STUC, Poverty Alliance, SCVO, Oxfam, Scottish churches and public sector unions Unison, Unite, GMB, PCS, along with a whole host of care sector employers including their umbrella body CCPS, have all argued that the Scottish Government could and should include within the Procurement Reform Bill a stipulation that public contracts should pay the Living Wage.  The Scottish Government argues that it cannot do so, having sought advice from the European Union.

Our legal advice says they are wrong and STUC believes that if the Scottish Government were to ask the right question of the right people in the EU, this would become clear. A full Living Wage Campaign briefing is available here.

As long as the Bill clearly defines that the purpose of a Living Wage stipulation is to guarantee human dignity and provided that the stipulation is specific to the performance within specific contracts, the Scottish Government would be in strong position to defend its case.  Here is the amendment to the Procurement Bill we are supporting.

36 In section 8, page 3, line 33, at end insert <, and

( ) the Scottish living wage duty.>

39 After section 9, insert—

Scottish living wage duty

(1) For the purposes of this Act, the Scottish living wage duty is the duty of a contracting authority to specify in the contract notice relating to a regulated procurement that it intends to impose a condition relating to the performance of the contract that the economic operator who is the successful tenderer must pay the Scottish living wage.

(2) An economic operator pays the Scottish living wage if the remuneration of each of its employees who undertakes any activities related to the performance of the contract is at least the Scottish living wage.

(3) The Scottish Ministers must by regulations define the Scottish living wage for the purposes of this Act, and may from time to time as they see fit revise such definition.

Just for the avoidance of doubt.  The Greater London Authority which, under the leadership of Boris Johnson, is currently rolling out the Living Wage through procurement.  It said in February:

3.14. Public bodies can follow clear steps to protect themselves as they procure. To ensure compliance with European legislation, procurement decisions should be considered individually, rather than as a blanket policy. Within this context, the Mayor’s office has rightly been clear that a Living Wage standard in procurement is legally possible, and this standard is applied within the GLA group. 75 Some boroughs are confidently pursuing a proactive Living Wage commissioning policy.
3.15. Organisations need to seek their own legal advice when deciding to apply a Living Wage standard to procurement. The Mayor’s support for Living Wage contracting across the GLA group and encouragement of Living Wage procurement by others certainly helps to reassure employers that this is possible.

Just about everyone I have spoken to agrees nthat there is absolutely no prospect of the use of the Posted Workers Directive as the basis for a challenge to Living Wage contract performance clauses.  There is also absolutely no impediment under the existing powers of the Scottish Parliament to it enacting suitable legislation, nor any suggestion that independence would make it any easier or harder to pursue.

If it’s good enough for London, it’s good enough for Scotland, and it’s a time a few more of our MSPs started saying so.

 Dave Moxham