We must be getting pretty close to GWR▸ failing to meet their franchise commitment by failing to run so many trains, throughout the week but especially on Sundays due to crew shortage. Perhaps a DfT» fine for every service cancelled with this excuse may concentrate a few minds & catalyse a solution. I get that GWR are happy to cancel services & inconvenience customers rather than spend money to buy out Ts & Cs, but perhaps a metaphorical kick up the backside is needed, unless they wish to look even more ridiculous come December.
I though I'd done a bit of contract gardening on this, but apparently not. The franchise agreement contains two mechanisms, breach and default, with defined levels for both. For the current period (2019/20 P6) these are:
Measure | breach | default |
Cancellation | 1.06% | 1.10% |
TOC▸ Minutes delay* | 20.34 | 21.23 |
*per 1000 train miles
Now the terms breach and default are used throughout the contract text with similar meanings - not complying with the cotract - but presumably they are distinct to the lawyers who wrote this. One imagines that a default is more serious, and perhaps might permit the SoS to cancel without any specified preliminaries, but I can't find any such words. For breach, there are preliminaries:
From schedule 1.2 Operating Obligations (Daily Operating Obligations)
1.2 The Franchisee shall ensure that its performance in each Reporting Period, calculated as a moving annual average in accordance with Schedule 7.1 (Performance Benchmarks), does not exceed (that is, is neither equal to or worse than) each Breach Performance Level in respect of that Reporting Period. It shall be a contravention by the Franchisee of the terms of the Franchise Agreement if its performance exceeds (that is, is equal to or worse than) any Breach Performance Level in any Reporting Period.
From Schedule 7 Performance Benchmarks
4 Consequences for Poor Performance
4.1 The Franchisee shall procure that in each Reporting Period the moving annual average of:
(a) Cancellations and Partial Cancellations (calculated in accordance with paragraph 2.2 of this Schedule 7.1) does not exceed (that is, is neither equal to nor worse than) the Breach Performance Levels and the Default Performance Levels specified in the cells relating to each such Reporting Period in the Cancellations Benchmark Table; and
(b) the Minutes Delay occurring in respect of the Passenger Services which are attributable to the Franchisee (including in accordance with paragraph 2.9 of this Schedule 7.1) per 1000 Train Miles actually operated (calculated in accordance with paragraph 2.5 of this Schedule 7.1) does not exceed (that is, is neither equal to nor worse than) the Breach Performance Levels and the Default Performance Levels specified in the cells relating to such Reporting Period in the TOC Minute Delay Benchmark Table.
4.2 Certain consequences of the Franchisee’s performance exceeding (that is, equalling or being worse than) the Breach Performance Levels and Default Performance Levels relating to each Benchmark are set out in Schedule 10 (Remedies, Termination and Expiry).
From Schedule 10.3 Events of Default and Termination Events
1. Provisions Relating to Events of Default
Contravention
1.1 The occurrence of an Event of Default shall constitute a contravention of the Franchise Agreement by the Franchisee.
Notification of Event of Default
1.2 The Franchisee shall notify the Secretary of State as soon as reasonably practicable on, and in any event within 24 hours of, it becoming aware of the occurrence of an Event of Default or an event which is likely to result in the occurrence of an Event of Default. The Franchisee shall take such action or steps as the Secretary of State may require to remedy any Event of Default or potential Event of Default.
Consequences of Event of Default
1.3 On the occurrence of an Event of Default, the provisions of Schedule 10.1 (Remedial Plans and Remedial Agreements) shall apply.
2. Events of Default
Each of the following is an Event of Default:
...
Passenger Service Performance
2.6 The Franchisee’s performance in relation to any Benchmark exceeds (that is, is equal to or worse than) the Default Performance Level for that Benchmark for:
(a) any three consecutive Reporting Periods;
(b) any four Reporting Periods within a period of 13 consecutive Reporting Periods; or
(c) any five Reporting Periods within a period of 26 consecutive Reporting Periods.
All of these consequences are at the SoS's discretion, and there is a load of ... stuff about remedial agreements that I'm sure would be used as an alternative in the first instance (and possibly several more times).