PPP Defense of health workers’ rights: who would have thought?

PPPs and Collective labour agreement

Readers of Decide Insight know that PPPs are inevitably on our mind at, because of our main workstream on Capital Investment in Health and our work on contracting in this area. Decide strives to regularly bring intel on this topic (see here and here for our more recently last newsletter).

One inspiring news we would like to shed a light on comes from France and pertains to concession law. Concessions are arguably one of the oldest forms of PPPs (dating back Ancient Rome!) which inspired modern lawyers in common law countries such as Australia or the UK to create innovative models of partnerships in the 1990’s.

Concessions entail the long-term operation of a public service and its assets by a private partner, based upon risk-sharing and remuneration recouped upon the service users.

 

Concessions span all sectors of activities (think museums or toll roads, but also the private operation of public health facilities in some cases).

In a nutshell, these are public-private partnerships, or complex public law contracts between public authorities and private sector contractors.

In a recent case brought before the French Council of State in October 2022, i.e. the supreme court for public law matters, judges have rescinded a concession contract on the ground that the private company which had been awarded the contract did not apply the appropriate collective labour agreement to its staff.

In other words, under French procurement law, it is the contracting authorities’ duty of care to check the regularity of bids, offers and conditions in place before they award a contract. If violations of workers’ rights are noted by the public authority, these can only prevent the award of the contract.

Far from being a surprise, this only confirms a megatrend across public procurement complex contracts such as PPPs: to ensure that public funds are used coherently to fund projects that are compliant with social values enshrined and promoted by the rule of law.

These include for instance diversity, gender equality or more commonly environmental norms. Thanks to the French administrative law judges, public procurement also includes the duty to ensure a rightful working environment for staff.