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Local Transport Bill [Lords] continued

‘“134B

Quality contracts: application of TUPE

(1)	Where subsection (2) applies, the cessation of the provision of local services to

which a quality contract relates by one person and the commencement of the

provision of those services by another (“the new operator”) shall be treated for all

purposes as a relevant transfer within the meaning of the Transfer of

Undertakings (Protection of Employment) Regulations 2006 (whether or not

those Regulations would apply apart from this section).

(2)	This subsection applies where, immediately before the date of the making of a

quality contract, one or more persons were employed by a person other than the

new operator in the provision of local services in the area to which the relevant

quality contracts scheme relates (“the old operator”).

(3)	The date on which the relevant transfer shall be deemed to take effect is the day

on which the quality contracts scheme is made.

134C	Quality contracts: compliance with guidance

(1)	Where section 134B(2) applies, a local transport authority, in making a quality

contract scheme—

(a)	must deal with matters affecting the terms and conditions of employment

of the employees of the old operator as at the date of the relevant transfer,

or the arrangements for their pensions, in accordance with any directions

given to it by the appropriate person;

(b)	shall comply with guidance issued to it by the appropriate person on

matters relating to the terms and conditions, or arrangements for their

pensions, of the employees of the old operator as at the date of the

relevant transfer;

(c)	must provide for the involvement of recognised trade unions in the tender

preparations and the evaluation process in accordance with any guidance

issued by the appropriate person;

(d)	shall comply with guidance issued to it by the appropriate person on

matters that must be taken into consideration in the award of a quality

contract, which shall include any earlier failure to comply with the

safeguards provided for employees under these provisions, including

those contained in the Transfer of Undertakings (Protection of

Employment) Regulations 2006.

(2)	In subsection (1), references to employees of the old operator are references to

persons to whom section 134B(2) relates.

(3)	The date of the relevant transfer referred to in subsection (1) shall be determined

in accordance with section 134B(3).

(4)	The “appropriate person” shall be the Secretary of State.

134D	Quality contracts: pensions

(1)	The appropriate person shall exercise his power to give directions under section

134C(1) so as to secure that where a local transport authority concludes a quality

contract with the new operator, it does so on terms—

(a)	that provide for any employee working on services governed by a quality

contract to be eligible to join the Local Government Pension Scheme;

(b)	that, for those employees who are not members of the Local Government

Pension Scheme, otherwise require the new operator to secure pension

protection for each transferring employee;

(c)	that, so far as relating to the securing of pension protection for a

transferring employee, are enforceable by the employee.

(2)	For the purpose of subsection (1)—

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Local Transport Bill [Lords] continued

(a)	“transferring employee” means an employee whose contract of

employment becomes, by virtue of section 134B(1), a contract of

employment with the new operator.

(b)	“pension protection” is secured for a transferring employee if after that

change in his employer he has, as an employee of his new employer,

rights to acquire pension benefits and those rights—

(i)	are the same as, or

(ii)	under the directions count as being broadly comparable to or

better than,

those that he had as an employee of the old operator.

(3)	The appropriate person shall exercise his power to give directions under section

134C(1) so as to secure that where—

(a)	a quality contract between a local transport authority and an operator

(“the incumbent operator”) governs the provision of services by an

operator;

(b)	the local transport authority concludes a subsequent quality contract

under a quality contract scheme with an operator (“the subsequent

operator”) other than the incumbent operator; and

(c)	the application of the TUPE Regulations results in one or more

employees (“transferring employees”) of the incumbent operator

becoming employed by the subsequent operator in relation to its

operation of the subsequent quality contract;

the local transport authority concludes the quality contract with the subsequent

operator on terms satisfying the requirements of subsection (4).

(4)	Those requirements are that the terms—

(a)	provide for any employee working on services governed by a quality

contract to be eligible to join the Local Government Pension Scheme;

(b)	require the subsequent operator to secure pension protection for each

transferring employee;

(c)	that, so far as relating to the securing of pension protection for a

transferring employee, are enforceable by the employee.

(5)	For the purposes of subsection (4) “pension protection” is secured for a

transferring employee if after that change in his employer he has, as an employee

of his new employer, rights to acquire pension benefits and those rights—

(a)	are the same as, or

(b)	under the directions count as being broadly comparable to or better than,

those that he had as an employee of the old operator.

134E	Quality contracts: consultation

(1)	The appropriate person shall exercise his power to give directions under section

134C(1) so as to secure that where a local transport authority is seeking to

introduce a quality contract scheme or to introduce a quality contract with a new

operator, it will, at the earliest opportunity, consult with recognised trade unions

as to the tender preparation and evaluation process.

(2)	The appropriate person shall, in further exercise of his power to give directions

under section 134C(1), provide guidance to local transport authorities

contemplating the award of a quality contract with a new operator as to the

matters that shall be taken into consideration, which shall include any earlier

failure to comply with the safeguards provided for employees under these

provisions.”’.

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Revised 22 April 2008