26.8.  Compliance with Code Obligations34

26.8.1.  The Authority and the Service Provider shall have regard to the Code in interpreting and applying the Code Obligations.

26.8.2.  Subject to clause 26.8.4, the Service Provider shall procure that any New Employees shall be employed on terms and conditions of employment which are, overall fair and reasonable and no less favourable than those of the Transferring Employees [or Transferring Original Employees in a subsequent contract] engaged in the provision of the Services who are working alongside and holding the same or a similar position to that of the New Employees.

26.8.3.  The Service Provider shall procure that any relevant sub-contractor shall consult with the recognised trade unions and where there is no recognised trade union any other employee representative body on the terms to be offered to the New Employees pursuant to clause 26.8.2.

26.8.4.  In addition to its obligations under clause 26.8.2 above, the Service Provider shall procure that the New Employees are offered either:

a)  membership of the LGPS where the employer has Admission Body status within the LGPS and makes the requisite contribution; or

b)  membership of a good quality employer pension scheme, being either

i)  a contracted-out final salary based defined benefit scheme, or

ii)  a defined contribution scheme under which the employer must match employee contributions up to six percent (6%); or

c)  a stakeholder pension scheme, under which the employer matches employee contributions up to at least six percent (6%).

26.8.5.  During the term of this Agreement, the Service Provider shall on request by the Authority provide or procure that the Authority is provided with such accurate and complete information [as reasonably requested by the Authority] as soon as reasonably practicable, including the terms and conditions of employment of the Transferring Employees and the New Employees, where this is required to monitor the Service Provider's compliance with its Code Obligations.

26.8.6.  The Service Provider shall and shall procure that any relevant sub-contractor shall support any central Government sponsored review and monitoring programme on the impact of the Code and on request by the Authority provide the Authority with such accurate and complete information [as reasonably requested by the Authority] as soon as reasonably practicable in order to assist the Authority in doing this.

26.8.7.  The Authority and the Service Provider shall in the first instance seek to resolve by discussions between them any complaints from any employee or any recognised trade union in relation to compliance by the Service Provider and any sub-contractor of its Code Obligations.

26.8.8.  Where it appears to the Authority or the Service Provider that it is not possible to resolve the matter by continuing discussions between them pursuant to clause 26.8.7 or where an employee of the Service Provider or any recognised trade union writes to the Authority to confirm that it has been unable to resolve its complaint directly with the Service Provider or any sub-contractor in relation to the Service Provider's Code Obligations:

a)  the Authority shall first write to the Service Provider to seek an explanation for the alleged failure by the Service Provider to comply with its Code Obligations.  The Service Provider shall or shall procure that the relevant sub-contractor provide such an explanation in writing within five (5) Business Days of receipt of the request from the Authority;

b)  if the response provided by the Service Provider or any sub-contractor satisfies the Authority that the Code Obligations have been met, then the Authority will inform the complainant of this and the matter will be deemed to have been concluded;

c)  in the event that the Authority is not satisfied with the response provided by the Service Provider or any sub-contractor the Authority shall write to the Service Provider within five (5) Business Days to require the Service Provider to take immediate action to resolve this dispute; and

d)  if, following such a request by the Authority the Service Provider still appears to the Authority not to be complying with its Code Obligations, the matter shall be dealt with in accordance with the Code Dispute Resolution Procedure in Schedule 17.

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34  The drafting takes into account of the Code of Practice on Workforce Matters in Public Sector Service Contracts issued by ODPM on 18 March 2005. Authorities should assess on a project specific basis whether the Code would apply to any given project. If the Code will not apply, the provisions of clause 26.8 can be deleted.