The unions appeared to be cruising for a fight in the days leading up to the Trades Union Congress. In particular, they were showing increasing intransigence on the topic of NHS staff managed under private finance initiative schemes - a central plank of government plans to build 29 new hospitals.
Unison general secretary Dave Prentis was taking a rock-hard line: in one interview, he said he was expecting a call for industrial action if the government went back on its promise to protect staff interests for those transferred.
Meanwhile prime minister Tony Blair and health secretary Alan Milburn were trying to send out slightly more reassuring messages.
In the end, a rather more significant act of aggression swept the debate away. Mr Blair's speech, due moments after the World Trade Centre was attacked, was cancelled. Instead a draft of his prepared speech was circulated.
Mr Blair would have told them:
'Let us get a few things straight.
Nobody is talking about privatising the NHS or schools. Nobody.
Nobody has said the private sector is a panacea to sort out our public services. Nobody.'
But he would have gone on to show the unions he was not for turning: 'Where use of the private sector makes sense in the provision of better public service, we will use it.'
While the debate is postponed, three pilots which will be the key to smooth progress on the remaining PFI hospital deals are also hanging in the balance.
But the delay has little to do with ideology. In June the government put forward its Retention of Employment Model proposal for a form of secondment from the NHS of support workers in services such as portering, catering, domestic and cleaning for management by the private sector contractor.
Now, government lawyers are examining whether the model proposed for PFI projects at Stoke Mandeville Hospital trust, Barking, Havering and Redbridge Hospitals trust and South West London Community trust is legal. They are expected to report imminently.
Yet there appears to be some distance between the political debate, the legal debate and the reality on the ground.
Contractors, for example, insist that far from being unwilling to reach a solution that would protect existing NHS conditions, they are willing to go one better.
Potential contractors say they have even supplied the government with a beefed-up TUPE (transfer of undertakings protection of employment) alternative that they hope would be accepted should the secondment model prove unworkable.
And the view shared by the three PFI project directors contacted by HSJ is that the shortlisted consortia are pragmatically shifting their position further than had been expected. Barking, Havering and Redbridge trust had been poised to select a bidder for its new 800bed district general hospital to be built on the Romford site at a cost of£148m (excluding VAT at current prices).
The trust's PFI director, Duane Passman, says he is among those waiting for the government's law officers to pronounce 'imminently' on the legal issue.
He adds: ' We are very close to getting an answer on that.' While admitting that the 'private sector is worried' about how it would manage staff employed by the NHS so as 'to avoid payment deduction' by the trust for poor delivery, he is adamant he has found the consortia on his shortlist 'very helpful and very pragmatic'.
There is no sign that the two consortia bidding for the£27m Stoke Mandeville scheme have 'gone cold on the deal', according to trust PFI project director Vincent Doherty. 'If we can get this sorted and name the preferred bidder before Christmas we can get a start on the site next year, ' he says optimistically.
Ann Radmore, PFI project director for the South West London Community trust scheme, says that private providers 'take on a very considerable raft of commitment under PFI and they need to understand what those commitments are'.
She thinks all the companies are 'in this business for the long term' and she 'suspects they would find ways of organising themselves and their business plans to meet whatever the NHS wants to buy'.
Catalyst Healthcare is one of the two shortlisted bidders on each of the three pilots.
Managing director Michael Davis insists that, far from being opposed, he 'understands the principle of secondment and accepts it in the round'.
He adds: 'It is what the government and the unions want to do and we support a stable workforce. The question is how do you make it work in the management structure and is it legal?'
Catalyst says its legal advice indicates that even with a change in the law to avoid the automatic transfer of employment under TUPE, the UK would, arguably, breach the European acquired rights directive, which 'does not appear to allow for a transfer to be avoided in this way'.
That would effectively seem to rule out secondment.
He also emphasises that 'the devil is in the detail'. Among the issues to be thrashed out is the definition of what constitutes a manager, and that might be different in 'very large - compared to very small - projects'.
One private sector source involved in the pilot process says that if the secondment idea can't be progressed, the government might take up a model 'we have put forward as an alternative'.
We would revert to where we are now', he says, with what would be 'deemed in law to be a TUPE transfer'. The difference would be an enhanced status - or 'super-TUPE'.
He adds: 'That would extend or go beyond the basic legal obligations - matching NHS rates of pay and giving increases in line with the NHS, pensions of equal value, and all new recruits would come in on the same terms.'
Not only that, but 'if there was a change of contractor, the trust and the project company would only go out for replacement on the basis that they met the original terms and past pension rights.'
The private sector source says the businesses he represents do not want to compete on lower wage rates and pensions. 'We are now talking about a 30-year relationship and we do not earn unless the staff perform.'
Any decision to take out 'soft' facilities management completely from the contracts would be a 'retrograde'move, he argues.
But how likely is it that unions will reach an agreement for the pilots based on an enhanced TUPE model?
There was a very cool reception to trade and industry secretary Patricia Hewitt's proposals at the TUC to boost occupational pension rights and 'strengthen' TUPE to avoid 'workers being left in limbo when a public sector contract transfers from one company to the other'.
Some suggest that the key union, Unison, is using a technical debate as a way into all-out war on PFI.
There is also the issue of whether Unison has taken a national stance not to enter negotiations.
One trust PFI project director thinks it has: 'Unison is not negotiating.' He describes an 'impasse' nationally on how to define managers and on grievance and discipline.He adds that while the trust had agreed with local union representatives that between 80 and 90 per cent of managers would stay within the NHS, 'that had not been deemed to be acceptable' to the unions nationally.
'They want 95 per cent-plus' to be retained, and they 'want all management to stay in the NHS unless they are in senior management'.
The claim made is that Unison found the original plans 'unpalatable' because 'a lot of them are activists and are in the team leader cadre' - and do not want to see their own middle-management jobs transferring out of core NHS services.
Nationally, there is concern from consortia 'that if the trust is the employer they must retain final responsibility for discipline, grievance and appeals'.
The consortium 'needs to be confident that the trust is taking on its responsibilities'.
Another vital question is the impact on risk. Under the proposed model it would be much harder for the private sector to have anywhere near the same degree of control over staff than it has in most existing PFIs.
The private sector is likely to want some sort of opt out from financial penalties if service levels fell below specification as a result of the trust's failure to act as a responsible employer.
Would the pilots then be thrown into failure by the private providers' failure to meet the value for money test (see box)?
Norman Rose is director general of the facilities management umbrella group, the Business Services Association.
He wants 'government, trade unions and the providers, to sit down and 'have a reasoned discussion about how to protect the rights of workers'.
Mr Rose says he is eager to 'pull back to the pre-May stage when the majority of members and trade unions were willing to work together'.
Gently does it: 'soft'services and PFI Director general of the Business Services Association Norman Rose says that facilities management can add 'around 3 per cent'to net profitability for a typical hospital contract'and that can be 'the difference between going out and not going out to PFI'.
The private sector must therefore be determined to hold out for a solution that firmly wraps up facilities management in the PFI package.
When it comes to the unions, a well-placed private sector source says that for Unison, any wrangles over issues such as the numbers of management staff transferring may be disguising a more fundamental goal.
'My reading is that this is not the end game'for the union.That would be 'the end of PFI'.Any protestations otherwise 'are disingenuous'.
Could it turn out to be impossible to make the secondment model meet the crucial value-for-money test?
HSJ understands the union view is that this is indeed the area that could be difficult.One source says: 'If the government finds that 'pilots do not meet the value-for-money tests the pilots will not have worked'.
But the implication of this failure 'does not automatically mean reverting to old PFI', says the source.
He says there are 'problems on how to define what is management and other issues to do with discipline', but does not expand on this.'There is a negotiation'to be had. . .
Unison head of health Bob Abberley points to the political realities.Retaining staff as NHS employees 'is a political decision and It is about how to implement it'.
He says his union is working with the government and believes it is 'extremely unlikely that the pilots will fail'.
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