Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Repetition

Application of the Convention. Part V of the report form. In its previous comments, the Committee requested the Government to provide a detailed report with full particulars on each of the provisions of the Convention, to enable it to assess the extent to which the provisions of the Convention are applied in law and practice, and to transmit copies of any relevant bidding documents adopted in accordance with existing public procurement legislation. The Committee notes the Government’s indication that the Public Procurement Act (No. 136/07), as amended, does not contain any provisions requiring the insertion of labour clauses in public contracts (article 2(1)). The Government refers instead to its general labour legislation, indicating that “the material regulations in the field of labour also apply to public procurement contracts” and that … the protection of workers is “a mandatory legal matter, regulated by the material regulations of labour area”. In addition, the Committee notes that the Government provides no precise information regarding the manner in which the provisions of the Convention are given effect. The Committee therefore wishes to once again draw the Government’s attention to the core requirements of the Convention, as set out below.

Articles 1 and 2. Insertion of labour clauses. Information to tenderers. The Committee recalls that the Convention requires the insertion of labour clauses of the type prescribed by Article 2(1) in the public contracts to which it applies, namely where: one of the parties is a public authority; the execution of the contract involves both the expenditure of funds by the public authority and the employment of workers by the other party; and the contract is one for public works, materials, supplies or equipment, or the provision of services (Article 1(a)–(d)). In its 2008 General Survey on labour clauses in public contracts, the Committee pointed out that “the mere fact of the national legislation being applicable to all workers does not release the State which has ratified the Convention from the obligation to take the necessary steps to ensure that public contracts contain the labour clauses specified in Article 2 of the Convention” (General Survey, paragraph 45). In addition, ratifying States are under the obligation to take measures to ensure that the Convention applies not only to work undertaken by contractors, but also to work undertaken under the public contract by subcontractors or assignees (Article 1(3)). The labour clauses required by the Convention – which should be established by the competent authority in consultation with the social partners – must ensure that the workers concerned receive wages (including allowances), hours of work and other conditions of labour that are not less favourable than those established for work of the same character in the trade or industry concerned [and which apply] in the district where the work is being performed (Article 2(1) of the Convention). As the Committee observed in paragraph 45 of its 2008 General Survey, the essential purpose of the Convention is to ensure that workers employed under public contracts enjoy the same conditions as workers whose conditions of employment are fixed not only by national legislation, but also by collective agreements or arbitration awards, given that in many cases the provisions of the national legislation governing wages, hours of work and other conditions of employment merely constitute minimum standards, whereas wages and conditions of work may be more favourable under a collective agreement or arbitration award (Article 1(a)–(c) of the Convention). Where more favourable conditions have been established, these should generally be applied. The Committee requests the Government to indicate the manner and extent to which effect is given to Articles 1 and 2 of the Convention. It also reiterates its request that the Government transmit copies of any relevant bidding documents that may have been adopted in accordance with existing public procurement legislation. The Committee recalls that the Government may wish to avail itself of the technical assistance of the International Labour Office with a view to bringing its legislation and practice into full conformity with the provisions of the Convention.

Articles 2(4) and 4(a)(i)–(iii) of the Convention. Notice requirements. The Convention requires that ratifying States take measures to ensure that persons (including legal persons) tendering for contracts are aware of the terms of the labour clauses (Article 4 of the Convention). The purpose of this provision is to ensure that the requirements for labour clauses are respected, as well as to ensure that the resulting costs are properly understood by the tenderers and are factored into the bid. Therefore, once the labour clauses have been properly inserted into the public contract, the contracting authority must ensure that tenderers are made aware of the contents of the clauses, for example by issuing a letter of invitation, publication in official platforms or forums, or through other means (2008 General Survey at paragraphs 44 and 125–126). In addition, Article 4(a) of the Convention requires that ratifying States take measures to require the posting of notices in conspicuous places at the establishments and workplaces concerned, to ensure that workers employed (by either contractors, subcontractors or assignees) are made aware of their conditions of work under the labour clauses. The Committee requests the Government to provide precise information on the manner in which tenderers, as well as the workers employed under the public contracts to which the Convention applies, are made aware of the terms of the labour clauses. It further requests that the Government indicate how it is ensured that information concerning the applicable laws and regulations is brought to the notice of all persons concerned and the manner in which the persons responsible for compliance with this obligation are defined.

Article 4(b) of the Convention. Adequate system of inspection. Maintenance of records. The Convention requires the ratifying State to provide for an adequate system of inspection to ensure effective enforcement, including requiring that adequate records be maintained of time worked by and wages paid to the workers concerned. The Committee notes the Government’s statement that “the inspection is supervised and enforced by the State Labour Inspectorate, through a network of labour inspectors”. The Committee requests the Government to provide precise, detailed information on the organization and activities of the inspection monitoring mechanisms and services with regard to public procurement. In particular, the Committee would appreciate receiving extracts of reports by the inspection services and information on the number of public contracts issued and any other particulars relevant to the practical application of this provision of the Convention.

Article 5 of the Convention. Effective sanctions. The Convention calls for the application of effective sanctions, such as the withholding of contracts for failure to observe and apply the provisions of labour clauses in public contracts. It also requires appropriate measures to be taken, such as the withholding of payments under the contract with a view to enabling the workers concerned to recover unpaid wages to which they are entitled. The Committee requests the Government to provide detailed and precise information on the activities of the inspection authorities with regard to public procurement, including the number and type of contraventions detected and the sanctions imposed.