Sunday, 30 December 2012

On the Buses: A Tender Problem

Today there is a bus strike. As the new operator is about to take over, and Connex is ceasing on 31 December, people might be inclined to ask what is the point, especially as most of the workforce have signed up with the new operator. Well, it is a protest. Just because a marriage takes place under the threat of a shotgun, it doesn't mean that those involved like what is happening. And the signing up with the new operator CTPlus, is very much like a shotgun wedding. Drivers are mindful of the economic situation, and they have families to support. So they have sign up. But this is a protest to draw attention to some very real wrongs which have been going on behind the scenes.

As far as I can piece matters together from my sources, back in 2002 when Connex took over the running of the bus service in Jersey it was written into the tender documentation that all employees were to be transferred with their terms and conditions unchanged. Connex abided by this with the exception of the shift allowance that had been awarded as part of a pay negotiation prior to them starting the service. The Public Services Committee (the for-runner of Transport and Technical Services) overruled Connex's claim that they had no knowledge of this pay adjustment and upheld the conditions of tender that stated they had to pay this to relevant staff.

As a result of this, an enquiry was then carried out into the problems that had been caused over this pay deal - that culminated in an official response in August 2005. The findings of this were that the wording of the tender had not been clear enough and they recommended that the wording should be changed regarding the Terms and Conditions to state that all staff should be transferred "with Terms and Conditions similar or no less favourable".(1)

In its response to the 2005 report (R.C.58/2005), the Environment and Public Services Committee made a detailed response. This is the crucial area - Recommendation 4:

In the absence of "Transfer of Undertakings: Protection of Employment" Regulations such as are in force in the United Kingdom, in the event that a Committee or Minister has to give an undertaking as to future terms and conditions of employment it should be "on terms no less favourable than those in force on [the operative date]."

The Committee does not understand how the inclusion of the term 'no less favourable than' will ensure that the shift allowance experience cannot recur. If the tender documents had included this phrase, the Committee believes the issue could still have arisen and tenderers could have submitted bids on differing terms and conditions but still fulfilled the 'no less favourable than' clause.

However, the Committee does accept that absolute clarity as to employees' terms and conditions must be ensured in any future tendering process. To this end, the Committee had already amended the Conditions of Contract for Local Bus Services agreed between the current operator and the Committee (of which the Committee of Inquiry had received a copy) to include a clear statement regarding the operative date. Clause 18.3, which refers to 'Consequences of Termination', includes the following conditions -

"On expiry of the Contract . . . the Committee shall . . . . require in any tender documentation that the incoming service provider submit proposals that ensure that all of the Contractor's staff . . . . are taken on by the incoming service provider on the same terms and conditions as apply at the date of the issue of any tender documentation. . ."(1)

This  condition applied in 2010, and it appears that both Eric Le Roux of Connex and Chris Lewis of Blue Coach have confirmed in the public media (Chris Lewis on BBC Radio Jersey) that they had supplied their own tenders with those restrictions on transfer of terms and conditions.

It came as a surprise then, both to the existing operator and Chris Lewis - and the drivers to learn that the goal posts seemed to have moved, and the condition mentioned by the Environment and Public Services Committee was apparently ignored by Transport and Technical Services, who were happy to approve a tender from CT Plus which did not include that condition on the transfer of staff - "same terms and conditions". It certainly does not seem either fair or just that the preferred operator could play the tender process with a different set of constraints, which were not apparently as restrictive as those imposed on Connex.

But all these seems to have been overlooked. According to the staff, TTS were giving out bland assurances that they would be working with CT Plus to facilitate a "smooth and seamless transfer".  On 10 July 2012, TTS issued a statement confirming CT Plus would be the new operator, and also stating that:

"Over the coming months the company will be ordering the new buses, discussing transfer opportunities with the workforce currently employed by Connex Transport Jersey and making all the necessary arrangements to enable a seamless transition of service from the current operator on 1 January 2013. "(2)

It is notable that this does not make any explicit statement about transfer other than to state that it will be "seamless", which is a very vague and loose form of words, aimed clearly at reassuring the workforce that the previously accepted conditions of contract would be adhered to. But it doesn't say that explicitly, and it is clear that the employees were to a degree duped into believing that was what was meant.

What in fact was meant became apparent in September 2012 when staff representatives tried to contact CT Plus to find out how many additional staff they were recruiting and what positions were being offered to existing staff. 

It was at this point that it came to light that the promised "seamless transfer" of staff had very little to do with terms and conditions, and was more of a verbal subterfuge; it was, it appears, being "economical with the truth". It also appears that in contravention of the tender process that the other operators, like Connex, had to comply with, that the new Terms and Conditions would vary significantly from the existing ones. 

In fact, when asked for a copy of the new terms and conditions for comparison, the representatives were told that they would be posted on CT Plus's website that evening.  Although this is not illegal it certainly shows a rather callous and thoughtless disregard for the employees. And I can't find any Terms and Conditions for Guernsey drivers on the website; this does not seem to be general company practice, just a quick fix.

A very short deadline was also announced for signing up to the new terms and conditions, without any room for discussions to take place. This was the sole reason for the unofficial strike action earlier this year - to buy more time for negotiations. If there had been no strike, it is unlikely that any negotiations would have occurred at all. This again shows considerable arrogance and disregard for existing staff.

With the involvement of JACS an agreement was reached that full time staff would attend meetings with CT Plus. During this time 90% of the staff were told by CT Plus management effectively "we will employ who we want to employ, so sell yourself". Since then, despite the involvement of JACS and regardless of various statements and press releases from the Transport Minister, staff representatives had virtually no contact from CT Plus.

By Friday 21st December 2012, a ballot was taken which included all Connex staff (back office staff, mechanics, cleaners, full and part time drivers) and action had been agreed upon, because patience was running out. While staff had signed contracts, they still had seen no shift rotas or working hours and had no idea what they were supposed to be doing on 2 January 2013.

It should be pointed out that while the reduction in a working week was pushed by TTS on the grounds of excessive hours being unsafe, badly worked out rota conditions could also work out with drivers spending more time at the wheel without a long enough break, resulting in drivers becoming more tired and being a greater danger to other road users. For example (confirmed by a source) that it is possible that there could be a shift of 11 or 13 hours, with two 2 hour breaks in between, so that each part of the shift on the road is less than 13 hours, the weekly total falls within the limit, but again it is hardly conducive to safety. This should surely be investigated.

It also appears that the mechanics may also be alone in the workshop which is also in breach of Health and Safety best practice, as well as being on call (unpaid) for at least 12 hours on top of a 4 - 5 hour shift. Health and safety seems to have been an issue used where it can cut costs; it seems to have been overlooked when it suits saving money instead.

On December 24, the new shifts appeared, along with a limited number of timetables, but there was no shift rota forthcoming.  The drivers still didn't know what shifts they would be working on the 2nd January 2013. This is incredibly late in the day for nothing to have been done.

Far from being a "seamless transfer", it appears to have been a shambles, and only the economic downturn, and grumbles about drivers being lucky to have a job have managed to divert attention away from Kevin Lewis, who so far seems to have been particularly adept at avoiding giving too many straight answers in the States Chamber. As most of those questions have been posed by Deputy Southern, it is also not surprising that they have not featured very highly in the local media.

Health and safety has been flagged up vigorously when it suited TTS, and where it did not, it seems to have slid off into the shadows.

What is the future with CT Plus? How are they doing in our sister Island, where they have already been operating?

The situation in Guernsey is not as rosy. The honeymoon period appears to be over; it has been "heavily criticised by Guernsey Press readers".  In September 2012, Deputy John Gollop, a non-driver who uses the buses almost every day, was disappointed standards were slipping under Island Coachway's successor CT Plus.

Deputy Gollop who is also a member of the Bus Users' Group, spoke out after the 7a failed to turn up for passengers waiting at Torteval Church after a parish event: 'I know there was a diversion at the time, which was a special factor, but it is another example of where the company doesn't think,' he said. 'There was no notices put up and no information on its website.'(4).

Bus Users Group co-ordinator Fergus Dunlop thought the 'honeymoon' period was coming to an end for CT Plus and believed public patience was now wearing thin. The Guernsey Press leader wrote "there does seem to be a genuine, growing groundswell of customer dissatisfaction with Guernsey's new bus service, to say the very least."

In fairness, These could be teething troubles. Time will tell how matters will go in Jersey. But there are already some worrying signs. On their own website they say "CT Plus, operator of Jersey's new bus service, LibertyBus, confirmed today that the price of bus fares and bus passes will be frozen for 2013", but now they have also said recently that it "has committed to freezing prices for fares paid for by the new payment card, which can be topped up online or at Liberation Station. However, it said it could not guarantee that cash fares would remain frozen.". That's not the same as the initial promise, which had no caveats. It does not engender trust.

Goalposts changing yet again?

Links
(1) http://www.statesassembly.gov.je/AssemblyReports/2005/3558-40582-3082005.pdf
(2) http://www.channelonline.tv/channelonline_jerseynews/displayarticle.asp?id=498298
(3) http://www.gov.je/News/2012/Pages/DecisionNewBusOperator.aspx
(4) http://www.thisisguernsey.com/news/2012/09/12/buses-are-in-crisis-says-stranded-deputy/
(5) http://www.thisisguernsey.com/comment/gp-opinion/2012/09/06/reliability-not-our-problem/
(6) http://www.thisisguernsey.com/comment/gp-opinion/2012/09/03/bus-claims-are-no-joke-for-users/
(7) http://www.ctplusjersey.org/the_hct_group/ct_plus_jersey/ct_plus_jersey_news/317/LibertyBus%20announces%20year%20one%20bus%20fares%20freeze
(8) http://www.thisisjersey.com/news/2012/12/15/bus-fares-may-rise-for-those-who-pay-cash/

5 comments:

Mark Forskitt said...

Let's hope this awful decline in bus usage in Guernsey under CTPlus is not a presage of things to come here.
bus decline

Anonymous said...

No one comes out of this a winner. There are formal terms and conditions and there are informal arrangements which cannot be found in any formal contract. I hope everything is pinned down this time around.

Anonymous said...

Hi Tony
I am close to one of the un-successful companies who put in a tender for the Jersey bus contract. A major operator that in the UK runs consuderably more buses than CT Plus.

I do not wish to comment on CT Plus bid or any of their actions. I do want to say that the staff information provided by the current bus operator before and during the tender was in-adequate & fell far short of what's required under TUPE laws in England.

This made it very difficult to properly cost up the contract. I have been following developments in Jersey since that time and i have been horrified at some of the allegations made about staff earnings & the amount of overtime.

It is no surprise to me that CT Plus have felt unable to preserve pay & conditions. A lot of what has come into the open in the last 3 months was not known about during tender last year and the only company that would have known the full picture is Connex. An example: nobody else was told that bus staff are paid overtime at 1.5 x time to attend disciplinary hearings!!!

From what I can tell TTS wasn't in the know either and had there been TUPE in Jersey all the relevant information would by law have had to be made available & a more level playing field the end result.

Regards
Anon.

Annette Du Heaume said...
This comment has been removed by the author.
Annette Du Heaume said...

Hi Tony, I would like to respond to the last Anonymous comment. The info provided by Connex was what TTS requested and it would have been almost impossible for Connex to have supplied more info as the drivers all work different shift patterns over the course of the season. If the info wasn't in the the first stage tender docs then NO company would have been able to supply an accurate quote and several managed it including Chris Lewis from Tantivy, please refer to a previous radio interview on BBC Radio Jersey for more details. If the tender info was incorrect why did no one mention it or contact Connex or TTS regarding this situation. How is it possible to quote for something when you dont have all the info?? Another point to make is as we dont have TUPE law in place in Jersey we are not governed by them. The hourly rates were all published in the 1st stage documents but overtime hours couldnt be as each driver does varying amounts of overtime. The bus drivers certainly DO NOT get time and half for disciplinary hearings as these are carried out during normal working hours. TTS knew all about this situation regardless of what they are now saying the proof is on the states assembly website under subheading Hansard. You are right though TUPE would have sorted it all out straight away and we should have TUPE Law here in Jersey and several states members have been fighting for it for the last 12 years!!! If you can tell me why we still dont have it after all this time it would be much appreciated. I do understand your point of view but unless ALL information is known first you can only make assumtions