Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes that the Government’s succinct report contains no reply to its previous comments. The Committee recalls that it has been drawing the Government’s attention for some time past to the absence of specific legislation or regulations giving effect to the main requirements of the Convention, in particular the use of labour clauses in public procurement to ensure that all workers engaged in the execution of public contracts receive wages and enjoy conditions of labour which are not less favourable than the most favourable practised in the area and the sector concerned.

Regrettably, the Government appears not to have fully understood the scope and purpose of the Convention by taking the view that compliance is ensured simply because public contracts are covered by general labour legislation and their execution is controlled by the labour inspection services. As it has been pointed out on several occasions, the mere fact of the labour legislation being applicable to all workers does not release governments bound by this Convention from their obligation to take the necessary measures to ensure that public contracts contain the labour clauses specified in Article 2 of the Convention.  In circumstances where the conditions of employment of workers are fixed not only by national legislation but also by collective agreements or arbitration awards, and where the provisions of the national legislation respecting wages, hours of work and other conditions of employment set out minimum standards which may be exceeded by collective agreements, the insertion of labour clauses can serve a very useful purpose in ensuring that the workers concerned enjoy wages and other labour conditions at least as good as the most favourable conditions applicable to workers performing similar work in the same area.

The Committee understands that new standard specifications for competitive bidding are now under preparation, including the general administrative clauses (CCAG) and the general technical clauses (CPS) referred to in section 9 of Presidential Decree No. 02-250 of 24 July 2002 on public procurement regulations. The Committee hopes that the Government will take the necessary action to ensure that the new specifications for public tendering are fully consistent with the provisions of Article 2(1) (insertion of labour clauses), Article 2(3) (consultation with employers’ and workers’ organizations on the terms of the labour clauses), Article 2(4) (measures to inform tenderers of the terms of the clauses), Article 4 (posting of notices and maintenance of records) and Article 5 (sanctions for failure to observe the provisions of labour clauses) of the Convention. To this end, the Committee transmits herewith a copy of an explanatory note established by the Office concerning the objectives of the Convention and the practical way in which legislative conformity may be ensured with its provisions. The Committee asks the Government to provide information in its next report on progress made in this regard.

Finally, the Committee would be grateful to the Government for supplying, in accordance with Article 6 of the Convention and Part V of the report form, up to date information on the application of the Convention in practice, including for instance specimen copies of forms of public contracts currently in use, available statistics on the number of contracts awarded and the number of workers covered by these contracts during the reporting period, extracts from official reports addressing labour-related questions in public procurement as well as information from the labour inspection services on the supervision and enforcement of relevant laws and regulations.