Social Partnership and Public Procurement (Wales) Act 2023

PART 1 — THE SOCIAL PARTNERSHIP COUNCIL

Establishment and purpose

Social Partnership Council for Wales

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• (1) There is to be a Social Partnership Council for Wales (“SPC”).

• (2) For the purposes of improving economic, environmental, social, and cultural well-being (including by improving public services) in Wales, the SPC may provide information and advice to the Welsh Ministers in relation to—

• (a) the social partnership duties which this Act imposes on public bodies and the Welsh Ministers (see Part 2);

• (b) the pursuit of the “A prosperous Wales” well-being goal by public bodies when carrying out sustainable development under the WFGA 2015 (see Part 2);

• (c) the functions conferred on contracting authorities and the Welsh Ministers under Part 3 (socially responsible public procurement).

• (3) The SPC may provide information or advice on a matter referred to in subsection (2) of its own accord or in response to a request made by the Welsh Ministers.

• (4) Where the SPC receives a request from the Welsh Ministers under subsection (3), the SPC must provide the information or advice as soon as reasonably practicable.

Membership of the Social Partnership Council for Wales

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• (1) The SPC is to consist of the following members—

• (a) members from the Welsh Government (“Welsh Government members”),

• (b) 9 representatives of employers in Wales (“employer representatives”), and

• (c) 9 representatives of workers in Wales (“worker representatives”).

• (2) The Welsh Government members are to include the First Minister and, where invited by the First Minister from time to time—

• (a) any other Welsh Minister;

• (b) any Deputy Welsh Minister;

• (c) the Counsel General;

• (d) any member of staff of the Welsh Government.

• (3) The First Minister must appoint all the employer representatives and worker representatives (collectively, “appointed members”).

• (4) The First Minister must take all reasonable steps to appoint the initial 9 employer representatives and the initial 9 worker representatives within 6 months beginning with the day after this subsection comes into force.

• (5) In this Act, a reference to the “Social Partnership Council for Wales” or “SPC” is a reference to the members of the SPC acting jointly; accordingly, a function expressed as a function of the SPC is a function of each member that may only be exercised jointly with the other members.

Employer representatives

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The employer representatives are to consist of individuals who the First Minister considers represent public body employers, private sector employers, voluntary organisation employers, higher education employers and further education employers.

Worker representatives

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The worker representatives are to consist of individuals who the First Minister considers represent staff working for each category of employer referred to in section 3.

Nomination of appointed members

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• (1) Before appointing employer representatives, the First Minister must seek nominations from persons or bodies who the First Minister considers represent the views of the categories of employer referred to in section 3.

• (2) Before appointing worker representatives, the First Minister must seek nominations from the body representing trade unions in Wales known as Wales TUC Cymru.

• (3) When appointing employer representatives, the First Minister must have regard to any nominations made under subsection (1).

• (4) When appointing worker representatives, the First Minister must only appoint individuals who have been nominated under subsection (2).

Duration of appointments

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• (1) Appointed members are appointed for 3 years unless—

• (a) the First Minister terminates the appointment by notifying the member in writing, or

• (b) the appointed member resigns by notifying the First Minister in writing.

• (2) The First Minister must fill any vacancies as soon as reasonably practicable.

Operation and administration

Meetings, procedures and administrative support

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• (1) The SPC must meet at least 3 times in each 12 month period beginning with the day after the First Minister has made all the initial appointments mentioned in section 2.

• (2) Where possible, the First Minister must chair the SPC’s meetings.

• (3) Where it is not possible for the First Minister to chair a meeting, the meeting must be chaired by a Welsh Minister or Deputy Welsh Minister nominated by the First Minister.

• (4) Within 6 months beginning with the day after this subsection comes into force, the Welsh Ministers must specify and publish—

• (a) the quorum for SPC meetings, and

• (b) the procedures to be followed by the SPC, in so far as they are not specified in this Act.

• (5) The Welsh Ministers may, after consulting the SPC, revise anything specified under subsection (4) and must publish any such revisions.

• (6) The SPC’s procedures must include—

• (a) the procedures for arranging meetings including notice to be given to attendees and how attendees may add items to the agenda for meetings;

• (b) the procedure for resolving a disagreement between members relating to the exercise of the SPC’s functions;

• (c) the procedures for providing information and advice to the Welsh Ministers.

• (7) The Welsh Ministers must make administrative support available to the SPC.

Subgroups

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• (1) The SPC may establish subgroups.

• (2) A subgroup may—

• (a) carry out any function delegated to it by the SPC;

• (b) help the SPC carry out its functions in any ways specified by the SPC.

• (3) A subgroup—

• (a) must be chaired by a member of the SPC, and

• (b) may include other members of the SPC and other individuals.

Public procurement subgroup

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• (1) The SPC must take all reasonable steps to establish a public procurement subgroup within 6 months beginning with the day after this subsection comes into force.

• (2) Within 6 months beginning with the day after this subsection comes into force, the Welsh Ministers must specify and publish—

• (a) the quorum for public procurement subgroup meetings, and

• (b) the procedures to be followed by the public procurement subgroup, in so far as they are not specified in this Act.

• (3) The Welsh Ministers may revise anything specified under subsection (2) and must publish any such revisions.

• (4) The public procurement subgroup’s procedures must include—

• (a) the procedures for arranging meetings including notice to be given to attendees and how attendees may add items to the agenda for meetings;

• (b) the procedure for resolving a disagreement between members relating to the exercise of the subgroup’s functions;

• (c) the procedures for providing information and advice to the SPC and the Welsh Ministers.

• (5) The Welsh Ministers must issue guidance about the composition of the public procurement subgroup (including for the purpose of achieving an appropriately representative membership), and the SPC must have regard to that guidance.

Provision of information and advice to the SPC by public procurement subgroup

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• (1) The public procurement subgroup may provide information and advice to the SPC about the functions conferred on contracting authorities and the Welsh Ministers under Part 3 (socially responsible public procurement).

• (2) The SPC may—

• (a) provide to the Welsh Ministers information or advice received from the public procurement subgroup, or

• (b) revise such information or advice and provide it as revised to the Welsh Ministers.

• (3) If the Welsh Ministers request information or advice from the SPC about a matter referred to in subsection (1), the SPC must—

• (a) seek that information or advice from the public procurement subgroup, and

• (b) provide it, or revise it and provide it as revised, as soon as reasonably practicable.

• (4) If the Welsh Ministers consult the public procurement subgroup under section 30(2)(d) or 36(2)(d), the procurement subgroup must provide the Welsh Ministers with such information and advice as it considers appropriate as soon as reasonably practicable.

• (5) If a public procurement subgroup has not yet been established under section 9(1), the SPC may nevertheless provide information and advice to the Welsh Ministers about a matter referred to in subsection (1).

Meeting remotely

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The SPC or a subgroup may hold a meeting by means of any equipment or other facility which enables persons who are not in the same place to speak to and be heard by each other (whether or not the equipment or facility enables those persons to see and be seen by each other).

Expenses

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The Welsh Ministers may meet the expenses of—

• (a) an employer representative;

• (b) a worker representative;

• (c) a member of a subgroup.

Supplementary powers

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The SPC may do anything which is calculated to facilitate, or which is conducive or incidental to, the exercise of its functions or the functions of a subgroup.

Interpretation

Interpretation of Part 1

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In this Part—

• “Deputy Welsh Minister” (“un o Ddirprwy Weinidogion Cymru”) means a person holding office under section 50 of the Government of Wales Act 2006 (c. 32);

• “employer” (“cyflogwr”) has the same meaning as in the Employment Rights Act 1996 (c. 18);

• “further education employer” (“cyflogwr addysg bellach”) means an employer in the further education sector within the meaning of section 91(3) of the Further and Higher Education Act 1992 (c. 13);

• “higher education employer” (“cyflogwr addysg uwch”) means an employer in the higher education sector within the meaning of section 91(5) of the Further and Higher Education Act 1992;

• “private sector employer” (“cyflogwr sector preifat”) means an employer that is not— a body, office or holder of an office whose functions are wholly or mainly of a public nature, a voluntary organisation employer, a further education employer, nor a higher education employer;

• “public body employer” (“cyflogwr corff cyhoeddus”) means an employer that is one of the persons listed as a “public body” in section 6(1) of the WFGA 2015, other than the Welsh Ministers;

• “voluntary organisation employer” (“cyflogwr sefydliad gwirfoddol”) means an employer that is a “relevant voluntary organisation” within the meaning of section 74(2) of the Government of Wales Act 2006 (c. 32).

PART 2 — SOCIAL PARTNERSHIP AND SUSTAINABLE DEVELOPMENT

Overview of Part and interpretation

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• (1) For the purposes of improving economic, environmental, social, and cultural well-being (including by improving public services) in Wales, this Part—

• (a) imposes new social partnership duties as part of the well-being duty in section 3(1) of the WFGA 2015;

• (b) amends the “A prosperous Wales” well-being goal to be pursued by public bodies when carrying out sustainable development under the WFGA 2015 so that securing fair work is part of the description of the goal.

• (2) For the purposes of this Part, “sustainable development” has the meaning given by section 2 of the WFGA 2015.

• (3) In this Part, a “public body” means a person listed as a “public body” in section 6(1) of the WFGA 2015, but for the purposes of sections 16 and 18 it does not include the Welsh Ministers.

Social partnership duty

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• (1) In carrying out sustainable development, a public body must, in so far as is reasonable, seek consensus or compromise with its recognised trade unions or (where there is no recognised trade union) other representatives of its staff on—

• (a) the well-being objectives to be set under section 3(2)(a) of the WFGA 2015;

• (b) decisions of a strategic nature to be made about the reasonable steps the body takes (in the exercise of its functions) to meet those objectives under section 3(2)(b) of the WFGA 2015.

• (2) For the purposes of subsection (1), in order to seek consensus or compromise a public body must include its recognised trade unions or other representatives of its staff in the process of setting objectives or making decisions, by (in particular)—

• (a) consulting them at a formative stage of the process, and

• (b) otherwise involving them throughout the process by—

• (i) providing sufficient information to enable them to properly consider what is proposed, and

• (ii) providing sufficient time to enable them to adequately consider what is proposed and respond.

• (3) In considering what is reasonable under subsection (1) a public body must take into account guidance published by the Welsh Ministers.

• (4) The Welsh Ministers must consult with the SPC before publishing the guidance referred to in subsection (3).

Social partnership duty: Welsh Ministers

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When making decisions of a strategic nature about the reasonable steps the Welsh Ministers take (in the exercise of their functions) under section 3(2)(b) of the WFGA 2015 (to meet the objectives set under section 3(2)(a) of the WFGA 2015), the Welsh Ministers must consult with the SPC.

Social partnership reports

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• (1) A public body must prepare, in respect of each financial year, a report of what it has done to comply with the duty imposed under section 16.

• (2) The report must be agreed with the public body’s recognised trade unions or (where there is no recognised trade union) other representatives of its staff, or contain a statement explaining why it was not agreed.

• (3) The public body must publish the report, and submit it to the SPC, as soon as reasonably practicable after the end of the financial year.

Social partnership reports: Welsh Ministers

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• (1) The Welsh Ministers must prepare, in respect of each financial year, a report of what they have done to comply with the duty imposed under section 17.

• (2) The report must be agreed with the SPC or contain a statement explaining why it was not agreed.

• (3) The Welsh Ministers must, as soon as reasonably practicable after the end of the financial year—

• (a) publish the report, and submit it to the SPC;

• (b) lay the report before the Senedd.

Fair work

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In section 4 (well-being goals) of the WFGA 2015, in Table 1, in the description of the “A prosperous Wales” goal, for “decent work” substitute “fair work”.

PART 3 — SOCIALLY RESPONSIBLE PUBLIC PROCUREMENT

CHAPTER 1 — INTRODUCTION

Key concepts

Public contracts

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• (1) In this Part, a “public contract” means a contract between one or more economic operators and one or more contracting authorities; and having as its object the execution of works, the supply of products or the provision of services.

• (2) For the purposes of this Part, a framework agreement is treated as a public contract (and references to “public contract” are to be construed accordingly).

Contracting authorities

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• (1) In this Part, a “contracting authority” means a body, office-holder or other person listed in Schedule 1.

• (2) But the Welsh Ministers are not a contracting authority for the purposes of sections 29, 30, 35, 36 and 41.

• (3) In this Part, a contracting authority’s area is the area by reference to which the authority primarily exercises its functions, disregarding any areas outside Wales.

• (4) The Welsh Ministers may by regulations amend this section, and Schedule 1, so as to modify the meaning of a contracting authority.

Socially responsible procurement duty

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For the purposes of this Part, references to “public procurement” are to a contracting authority—

• (a) designing and carrying out any procedure preceding the award of a public contract including, in particular, seeking bids and selecting economic operators;

• (b) drafting, negotiating and awarding a public contract;

• (c) managing a public contract after it has been awarded;

and references to “procurement” are to be construed accordingly.

CHAPTER 2 — SOCIALLY RESPONSIBLE PROCUREMENT DUTY

The socially responsible procurement duty

Socially responsible procurement duty

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• (1) A contracting authority must seek to improve the economic, social, environmental and cultural well-being of its area by carrying out public procurement in a socially responsible way.

• (2) A contracting authority carries out public procurement in a socially responsible way by taking action, in accordance with the sustainable development principle, aimed at contributing to the achievement of the well-being goals listed in section 4 of the WFGA 2015 (referred to for the purposes of this Part as the “well-being goals”).

• (3) A contracting authority must set and publish objectives (“socially responsible procurement objectives”) designed to maximise its contribution to achieving the well-being goals.

• (4) Schedule 2 makes provision about revising and reviewing socially responsible procurement objectives.

• (5) In taking action aimed at contributing to the achievement of the well-being goals, a contracting authority must—

• (a) take all reasonable steps to meet its socially responsible procurement objectives when it carries out public procurement in relation to any prescribed contract;

• (b) take the particular actions referred to in section 25 when it carries out public procurement in relation to a major construction contract;