Consultation on the draft Public Services Outsourcing and Workforce Code under the Social Partnership and Public Procurement (Wales) Act 2023

The Welsh Government is consulting on the draft Public Services Outsourcing and Workforce Code required to implement Part 3 of the Social Partnership and Public Procurement (Wales) Act 2023 (hereafter referred to as the SPPP Act), Socially Responsible Public Procurement. Welsh Ministers are seeking feedback from the Welsh public sector, employers, trade unions, social partners and any other interested parties before publishing a new code, which will replace the existing Code of Practice on Workforce Matters, published in 2014.

This consultation invites views on the new Public Services Outsourcing and Workforce Code for Wales proposed under Part 3 of the SPPP Act.

Views are not sought on the policy intent because the policy intent is settled and is grounded in the SPPP Act. This consultation invites views on whether the draft Public Services Outsourcing and Workforce Code for Wales accurately reflects the policy intent.

Respondents are asked to state whether they agree or disagree with the question posed under each section. Where respondents disagree or strongly disagree, they have the opportunity to explain their reasoning. Comments should focus on whether the policy intention has been appropriately translated into the code. In addition, there are three questions relating to the Welsh Language.

A new Public Services Outsourcing and Workforce Code for Wales

This draft code when published will supersede the existing Code of Practice on Workforce Matters (also known as the “Two-Tier Workforce Code”). Sections 32 and 33 of the SPPP Act require Welsh Ministers to publish a Public Services Outsourcing and Workforce Code (the Workforce Code) and Social Public Workforce Clauses (the clauses).

Contracting authorities, as listed in Schedule 1 of the SPPP Act, must have regard to the Workforce Code when outsourcing existing services, and will be required to notify Welsh Ministers if they do not intend to include the clauses in a relevant procurement or to put a process in place to ensure that they are implemented.

The purpose of the code is to maintain or improve the quality of public services or other functions outsourced by contracting authorities in Wales. The Workforce Code covers employment and pensions matters related to the outsourcing of services contracts in Wales.

Although the intended effect of this Workforce Code is largely unchanged from the version published as guidance in 2014, the SPPP Act places a duty on Welsh Ministers to publish a Workforce Code. It also requires contracting authorities to have regard to it, and to consider including its model clauses in all outsourcing services contracts and putting a process in place for ensuring that the clauses are implemented.

If a contracting authority does not intend to include the clauses when outsourcing services, decides not to include them or does not have a process to ensure that the clauses are implemented, they must notify Welsh Ministers as soon as reasonably practicable.

If a contracting authority notifies Welsh Ministers that it does not intend to include the clauses in a relevant contract, it must explain why and may be asked for further information.

The obligations on Welsh Ministers to publish this Workforce Code and clauses and the subsequent obligations on contracting authorities and ministers, are in sections 26 and 32 to 37 of the SPPP Act, and you may wish to familiarise yourself with this as you prepare your response to this consultation.

The list of contracting authorities in Schedule 1 of the SPPP Act is largely the same as the organisations to which the existing 2014 Code of Practice on Workforce Matters applies, but there are some differences. Some new bodies are included within the remit of this new Code, and community councils and the governing bodies of maintained schools are not listed in Schedule 1 as contracting authorities.

The Welsh Government has worked with Trade Unions, public sector stakeholders and outsourced services providers to develop the Workforce Code in a collaborative way. This process included a series of workshops and interviews.

This consultation is not on the provisions in the SPPP Act; its questions seek your views on whether the new Workforce Code and the social public workforce clauses meet the requirements set out in the legislation.

The principles outlined in this Public Services and Outsourcing Workforce Code (hereafter referred to as the Workforce Code) apply to the following circumstances, unless there are genuinely exceptional reasons they should not apply:

1. Where a Contracting Authority outsources public services or functions to a private sector entity or to a voluntary sector organisation (i.e. contracting out)
2. In relation to Second Generation Outsourcing, and any subsequent outsourcing, which results in a Subsequent Contractor undertaking the public service or function (where when the public service or function was first outsourced, staff transferred from Contracting Authority) (i.e. a retender)
3. Where a public service or function that has been outsourced under an Outsourcing Services Contract on or after the date this Workforce Code takes effect, is brought back into a Contracting Authority (where the contract when it was first awarded involved the transfer of staff from a Contracting Authority) (i.e. insourcing).

Genuinely exceptional reasons where the principles of the Workforce Code should not apply and where staff will not transfer could include but are not limited to circumstances:

1. where a contract is for the provision of goods only or goods and services, but the provision of services is ancillary in purpose to the provision of the goods, or
2. where the contracting authority is buying in one-off services of short duration.

The principles of the Transfer of Undertakings (Protection of Employment) Regulations 2008 will apply when public services or functions are outsourced.

It is a principle of the Workforce Code that staff should not be disadvantaged as a result of the transfer of their employment in association with the outsourcing of public services or functions.

Question

1. To what extent do you agree or disagree that the Workforce Code’s requirements on the transfer of staff will adequately ensure the quality of public services or other functions outsourced by contracting authorities is maintained or improved (S32 of SPPP Act)?

• Strongly agree
• Agree
• Neither agree nor disagree
• Disagree
• Strongly disagree

If you answered disagree or strongly disagree to Question 1, please explain why you do not believe the Workforce Code delivers the policy intent.

Staff whose employment transfers as a result of a Contracting Authority outsourcing public services or functions will have their pension provision protected. It is a principle of the Workforce Code that staff will have their pension provision protected as outlined in the Workforce Code in the event that their employment transfers in one of the circumstances below:

• where a contract is for the provision of goods only or goods and services, but the provision of services is ancillary in purpose to the provision of the goods, or
• where the contracting authority is buying in one-off services of short duration.

Question

2. To what extent do you agree or disagree that the Workforce Code’s requirements on pensions will adequately ensure the quality of public services or other functions outsourced by contracting authorities is maintained or improved (S32 of SPPP Act)?

• Strongly agree
• Agree
• Neither agree nor disagree
• Disagree
• Strongly disagree

If you answered disagree or strongly disagree to Question 2, please explain why you do not believe the Workforce Code delivers the policy intent.

The terms and conditions of Other Staff will be no less favourable overall than those of transferring staff and the pension arrangements offered to Other Staff will be reasonable. It is a principle of the Workforce Code that where existing staff or new joiners work alongside Transferred Staff involved in providing the services or undertaking the functions that have been outsourced, they will be employed on terms and conditions which are no less favourable than those of Transferred Staff.

Question

3. To what extent do you agree or disagree that the Workforce Code’s provisions for Other Staff will adequately ensure the quality of public services or other functions outsourced by contracting authorities is maintained or improved (S32 of SPPP Act)?

• Strongly agree
• Agree
• Neither agree nor disagree
• Disagree
• Strongly disagree

If you answered disagree or strongly disagree to Question 3, please explain why you do not believe the Workforce Code delivers the policy intent.

Contracting Authorities should take reasonable steps to ensure that the Social Public Workforce Clauses are included in any subcontract entered into between a Contractor and a Subcontractor for the provision of the services (or part of the services) or the undertaking of the functions (or part of the functions) transferred under the Outsourcing Services Contract. It is a principle of the Workforce Code that the Social Public Workforce Clauses should also apply in relation to any subcontract entered into for the provision of the services or the functions (or a part of them). The aim of this principle is to prevent any Contractor or Subsequent Contractor from circumventing the principles of the Workforce Code through a subcontracting arrangement.

Question

4. To what extent do you agree or disagree that the Workforce Code’s provisions on sub-contracting will adequately ensure the quality of public services or other functions outsourced by contracting authorities is maintained or improved (S32 of SPPP Act)?

• Strongly agree
• Agree
• Neither agree nor disagree
• Disagree
• Strongly disagree

If you answered disagree or strongly disagree to Question 4, please explain why you do not believe the Workforce Code delivers the policy intent.

The Contracting Authority should ensure that there is a process in place to ensure that the obligations in the Social Public Workforce Clauses are implemented by the Contractor or any Subsequent Contractor or Subcontractor. It is a principle of the Workforce Code that the Contracting Authority takes steps to ensure      that the obligations of the Workforce Code and the Social Public Workforce Clauses are being complied with by any Contractor or Subcontractor.

Question

5. To what extent do you agree or disagree that the Workforce Code’s provisions regarding monitoring implementation will adequately ensure the quality of public services or other functions outsourced by contracting authorities is maintained or improved (S32 of SPPP Act)?

• Strongly agree
• Agree
• Neither agree nor disagree
• Disagree
• Strongly disagree

If you answered disagree or strongly disagree to Question 5, please explain why you do not believe the Workforce Code delivers the policy intent.

A Contracting Authority should include in any Outsourcing Services Contract the Social Public Workforce Clauses set out in Appendix 1 to the Workforce Code.

Question

6. To what extent do you agree or disagree that the Social Public Workforce Clauses meet the requirements under section 33 of the SPPP Act?

• Strongly agree
• Agree
• Neither agree nor disagree
• Disagree
• Strongly disagree

If you answered disagree or strongly disagree to Question 6, please explain why you do not believe the Workforce Code delivers the policy intent.

Question

7. To what extent do you agree or disagree that the Workforce Code meets the requirements under section 32 of the SPPP Act (i.e. it will maintain or improve the quality of public services or other functions outsourced by contracting authorities)?

• Strongly agree
• Agree
• Neither agree nor disagree
• Disagree
• Strongly disagree

If you answered disagree or strongly disagree to Question 7, please explain why you do not believe the Workforce Code delivers the policy intent.

The Welsh Government has a duty when consulting to seek your views on the effects of our policy decisions on the Welsh language in line with Policy Making Standards.

Question

8: What, in your opinion, would be the likely effects of the Workforce Code on the Welsh language? We are particularly interested in any likely effects on opportunities to use the Welsh language and on not treating the Welsh language less favourably than English.

Do you think that there are opportunities to promote any positive effects?

Do you think that there are opportunities to mitigate any adverse effects?

9: In your opinion, could the Workforce Code be formulated or changed so as to:

• have positive effects or more positive effects on using the Welsh language and on not treating the Welsh language less favourably than English, or
• mitigate any negative effects on using the Welsh language and on not treating the Welsh language less favourably than English?

10: We have asked a number of specific questions. If you have any related issues which we have not specifically addressed, please use this space to report them:

Submit your comments by 3 December 2025, in any of the following ways.

• Complete our online form
• Download, complete our response form and email: sociallyresponsiblepublicprocurementconsultation@gov.wales
• Download, complete our response form and post it to:

Corporate Services and Inspectorates
Commercial Procurement Division
Procurement Legislation Team
Welsh Government
Cathays Park
Cardiff
CF10 3NQ

Please keep to the maximum character count allowed (maximum of 2,000 characters). Any additional characters received above this limit will not be considered.

Responses to consultations are likely to be made public on the internet or in a report. If you would prefer your response to remain anonymous in these circumstances, please tick the box where indicated on the consultation response form.

Next steps

Following consideration of responses to the consultation, the final version of the new Public Services Outsourcing and Workforce Code for Wales will be published and laid in the Senedd.

Under the data protection legislation, you have the right:

• to be informed of the personal data held about you and to access it
• to require us to rectify inaccuracies in that data
• to (in certain circumstances) object to or restrict processing
• for (in certain circumstances) your data to be ‘erased’
• to (in certain circumstances) data portability
• to lodge a complaint with the Information Commissioner’s Office (ICO) who is our independent regulator for data protection.

For further details about the information the Welsh Government holds and its use, or if you want to exercise your rights under the UK GDPR, please see contact details below:

UK General Data Protection Regulation (UK GDPR)

The Welsh Government will be data controller for Welsh Government consultations and for any personal data you provide as part of your response to the consultation.

Welsh Ministers have statutory powers they will rely on to process this personal data which will enable them to make informed decisions about how they exercise their public functions. The lawful basis for processing information in this data collection exercise is our public task; that is, exercising our official authority to undertake the core role and functions of the Welsh Government. (Art 6(1)(e))

Any response you send us will be seen in full by Welsh Government staff dealing with the issues which this consultation is about or planning future consultations. In the case of joint consultations this may also include other public authorities. Where the Welsh Government undertakes further analysis of consultation responses then this work may be commissioned to be carried out by an accredited third party (e.g. a research organisation or a consultancy company). Any such work will only be undertaken under contract. Welsh Government’s standard terms and conditions for such contracts set out strict requirements for the processing and safekeeping of personal data.

In order to show that the consultation was carried out properly, the Welsh Government intends to publish a summary of the responses to this document. We may also publish responses in full. Normally, the name and address (or part of the address) of the person or organisation who sent the response are published with the response. If you do not want your name or address published, please tell us this in writing when you send your response. We will then redact them before publishing.

You should also be aware of our responsibilities under Freedom of Information legislation and that the Welsh Government may be under a legal obligation to disclose some information.

If your details are published as part of the consultation response then these published reports will be retained indefinitely. Any of your data held otherwise by Welsh Government will be kept for no more than 3 years.

WG Number: WG50499

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