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

Articles 1 and 2 of the Convention. Inclusion of labour clauses in public contracts. The Committee notes the adoption of Act No. 13/2009 of 27 May 2009 issuing labour regulations. It also notes that, according to the Government’s report, sections 42–46 of this Act establish the labour clauses required by the Convention. However, these provisions regulate subcontracting, in which the head of an industrial or commercial enterprise assigns the execution of work or services to a contractor who in turn recruits the necessary workforce, and do not regulate contracts concluded with a public authority. The Committee notes with regret that, despite the comments which it has been making for many years, the recent General Survey and the Practical Guide – copies of which were sent to the Government – the Government still does not appear to fully understand the actual concept of public contracts which is the subject of the Convention. The Committee is therefore bound to repeat that a public contract pursuant to Article 1(1) of the Convention is a contract: (i) concluded by a public authority; (ii) involving the expenditure of funds by a public authority and the employment of workers by the other party to the contract; and (iii) relating to the execution of public works, the manufacture of materials or the provision of services. It is therefore clear that subcontracting in the form of the specific labour contract governed by the provisions of Chapter II, Title II, of the new Labour Code bears little relevance to public contracts and even less to the labour clauses which such contracts ought to contain.

Moreover, with regard to the 2007 Public Procurement Act, the Committee recalls that the mere fact that the general legislation applies to workers responsible for the execution of public contracts, as laid down by section 96 of this Act, is not sufficient to ensure the observance of the provisions of the Convention. The Convention seeks to ensure that public contracts are executed under conditions of labour which are not less favourable than those established by collective agreement, arbitration award or national laws or regulations for work of the same character in the trade or industry concerned in the region where the work is carried out. This in practice means the most advantageous labour conditions for the workers concerned, including pay rates, overtime pay, and other working conditions, such as work hour limits and holiday entitlement, established in the industrial sector and geographical region in question. The concrete terms of this obligation incumbent on the selected bidder and any subcontractors are to be reflected in a standard contractual clause which has to be effectively enforced, notably through a system of specific penalties. Moreover, the Committee recalls that the Convention does not only apply to construction contracts but also to contracts for supplies and services. In the light of the above, the Committee urges the Government to take all necessary steps without delay to bring national law and practice into conformity with the Convention and requests it to keep the Office informed of any developments on these matters. The Committee recalls that the Government may avail itself of technical assistance from the Office, if it so desires, in order to draw up the legislative or other provisions giving effect to the requirements of the Convention.

[The Government is asked to reply in detail to the present comments in 2010.]