Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s reference to the Government Procurement Act (Chapter 120) of 1997, as amended in 2004, and the Building and Construction Industry Security of Payment Act of 2004 (Chapter 30B), as amended in 2006. It also notes the various Public Sector Standard Conditions of Contract (PSSCOC) and their supplements formulated by the Building and Construction Authority, such as the PSSCOC for construction works, design and build, and nominated subcontract. It further notes the Government’s statement that all PSSCOC include a common provision specifying that public contracts are subject to national law and that, under this clause, the provisions of the Employment Act, Industrial Relations Act, Workmen Compensation Act and the Central Provident Fund Act, which prescribe statutory minimum benefits (including normal and overtime rate of wages and hours of work), apply to employees engaged in the execution of such public contracts. The Government also indicates that some public contracts include a specific labour clause providing, for example, that the contractor must pay his/her workers promptly and observe the workers’ working hours and holidays in accordance with current laws and regulations.

The Committee is bound to recall, in this respect, that the mere fact that the labour legislation is applicable to workers engaged in the context of public contracts does not in any way exempt the Government from providing for the inclusion in public contracts of the labour clauses envisaged in the Convention. Such inclusion ensures the protection of workers in cases in which the legislation only establishes minimum conditions of work (e.g. minimum pay rates) which may be exceeded by general or sectoral collective agreements. Moreover, even if collective agreements were applicable to workers engaged in the context of the execution of public contracts, the implementation of the Convention retains its full value in so far as its provisions are designed precisely to ensure the specific protection needed by those workers. For example, the Convention requires the adoption by the competent authorities of measures, such as the advertisement of specifications, to ensure that tenderers have advance knowledge of the terms of the labour clauses. It also requires notices to be posted in conspicuous places at the workplace to inform workers of the conditions of work applicable to them. Finally, it provides for sanctions in the event of non-compliance with the terms of labour clauses, such as the withholding of contracts or the withholding of payments due to contractors, which may be more directly effective than those available for violations of the general labour legislation. The Committee therefore requests the Government to take all necessary measures to ensure the insertion of labour clauses in public contracts as required under Article 2 of the Convention. It also requests the Government to specify whether the Executive Council Resolution of 10 June 1952 providing for the inclusion of fair wages clauses in government contracts, which previously gave effect to the provisions of the Convention, is still in force. In addition, the Committee asks the Government to transmit a copy of the Government Procurement Regulations and Government Procurement (Application) Order, and also to specify whether standard conditions of contract exist for the procurement of supplies and services. Furthermore, the Committee asks the Government to indicate how it is ensured in law and practice the application of Article 2, paragraph 3 (consultations for determining the terms of labour clauses); Article 2, paragraph 4 (advertising labour clauses through specifications); Article 4(a)(iii) (informing workers of their conditions of work through posting of notices); and Article 5 (withholding of contracts and withholding of payments), of the Convention.

Finally, the Committee seizes this opportunity to refer to this year’s General Survey which contains an overview of public procurement practices and procedures in so far as labour conditions are concerned and makes a global assessment of the impact and present-day relevance of Convention No. 94.

[The Government is asked to reply in detail to the present comments in 2008.]