Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 2 of the Convention. Insertion of labour clauses in public contracts. The Committee recalls its previous observation in which it noted with regret that the Government has – for the last 35 years – not been in a position to report any concrete progress in ensuring legislative conformity and full implementation of the requirements of the Convention. In this connection, the Committee wishes to refer to paragraph 304 of its General Survey of 2008 on labour clauses in public contracts in which it noted that the Convention was adopted 60 years ago with a view to ensuring that substantial public investment in public works and the purchase of goods and services did not have the effect of depressing working conditions elsewhere in the economy. Yet today, the risk remains essentially the same, namely that the winning tender might well be the one which pays the lowest wages, fails to provide safety equipment or coverage for accidents, and which has the largest proportion of informal workers, for whom no tax or social security was paid, and who are not covered in practice by any legal or social protection. In fact, there is a persistent concern that international competition pushes bidding enterprises to compress labour costs affecting standards on wages, working hours, sanitation, accommodation and welfare facilities. It was in this sense that the Committee reaffirmed the continuing relevance of the Convention in a context where public investment via public contracts continues to represent a high proportion of formal economic activity in both developed and developing countries.

Moreover, the Committee wishes to draw the Government’s attention to paragraphs 41 and 169 of the same General Survey, in which reference is made to those countries which are bound by the Convention but have not as yet taken measures to give effect to its main requirement, that is the insertion of labour clauses in public contracts, considering that the mere fact that the general labour legislation applies without distinction to all workers suffices to absolve them from their obligation of incorporating appropriate labour clauses into all public contracts for works, supplies or services.

In addition, the Committee understands that with the assistance of the Inter-American Development Bank, the Government has been implementing since March 2006 a four-year Public Sector Management Strengthening Programme (PSMSP) that contains activities related to the procurement regulatory framework, including legislation review and the drafting of a new comprehensive procurement law. In the light of the foregoing observations, the Committee believes that the PSMSP offers a real opportunity for bringing at last the national legislation into conformity with the Convention. The Committee trusts that in preparing the new public procurement legislation in the framework of the PSMSP, the Government will not fail to take into consideration the points raised by the Committee in its previous comments and asks it to keep the Office informed of any progress made in this respect.

Finally, with a view to assisting the Government in its effort to give effect to the Convention, the Committee attaches herewith a copy of the Practical Guide on the Convention prepared by the Office in September 2008 and based principally on the findings of the abovementioned General Survey. It also recalls that the Government may draw upon the advisory services of the Office to this effect.