Rights for contractors’ staff: weekly dilemma

Q My company regularly tenders for, and wins, government construction contracts. I’ve read that the government intends to make it so that staff working on government contracts should be entitled to the same conditions as central government employees. What should our HR department do to ensure we do not miss out on forthcoming contract? Is there any flexibility in the government’s guidelines?

A The intention behind the guidelines is to give staff who work on government contracts the same benefits and rights as staff employed directly by the government. This will include enhanced benefits as well as access to training and information about how to join a trade union. It is hoped that this will assist the government with its drive to improve public services overall.

At this stage these are guidelines only and not legislation, and on that basis it will not be a legal requirement that you must provide the enhanced terms and conditions before you are able to tender for government work.

These guidelines do not create additional legal rights for the employee. On that basis there is flexibility as you do not have to match the government terms and conditions or benefits. However, what has been made clear is that if you are able to match the government’s terms and conditions, this may increase your chances of winning the tender. So, although there is flexibility, in reality you may not win the contract.

Companies are permitted to tender for government contracts even if they do not or cannot match the government terms and conditions. However, it is very possible that if a contractor is able to do so, they will be the ones who win the work.

The guidelines focus on employers providing access to training, information about how to join trade unions, and information about the law and how it affects their employees’ jobs.

Also, government employees often have more favourable pensions, maternity and paternity benefits, sickness benefits and annual leave. All of this may have to be considered. Therefore, prior to tendering for work, it would be advisable for your HR department to find out exactly what terms and conditions and benefits the local government staff enjoy, how much it would cost to match those terms and conditions and benefits, and, if you cant match the existing terms and conditions or benefits, what you could provide as an equivalent. You will also need to ensure this is specifically referred to in your tender response.

If you do introduce new terms and conditions as a result of winning a tender, you will need to ensure you update your policies and contracts to reflect these changes. If you are enhancing your employee’s terms and conditions, it is usually a straight-forward exercise.

Tracy Lacey-Smith, head of employment, SA Law

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