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Article 2 of the Convention. Inclusion of labour clauses in public contracts. With reference to its previous comment, the Committee notes that the Government essentially repeats the same explanations provided in its previous report and places emphasis on section 20(4) of Decree No. 2-99-1087 of 4 May 2000 approving the general administrative conditions applicable to contracts for work executed on behalf of the State, which provides that the wage paid to manual workers shall not be lower, for each category of worker, than the statutory minimum wage. The Government also refers to sections 25 and 26 of Decree No. 2-98-482 of 30 December 1998 which requires: (i) the registration of the bidder with the National Social Security Fund and the regular provision of wage declarations to the Fund; and (ii) the presentation of documentation issued by the Fund certifying that the bidder has complied with its requirements in relation to the Fund for his participation in the call for tenders.
In this respect, the Committee wishes to refer to paragraphs 40 and 44 of its General Survey of 2008 on labour clauses in public contracts, in which it emphasizes that the purpose of Article 2 of the Convention is to ensure that the workers employed by a contractor and paid indirectly out of public funds enjoy wages and conditions of labour which are at least as satisfactory as the wages and conditions of labour normally established for the type of work concerned, whether by collective agreement or otherwise, in the locality where the work is done. Labour costs are thus removed from competition between bidders and local standards are applied where they are higher than those of general application. 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 sanctions.
The Committee also draws the Government’s attention to paragraph 118 of the same General Survey, in which it observes that obtaining labour clearance certificates before being allowed to tender for public contracts is not sufficient for compliance with the requirements of the Convention. In this respect, the Committee has consistently taken the view that the insertion of labour clauses in public contracts under the Convention goes beyond the aims of simple certification, as its purpose is to eliminate the negative effects of competitive tendering on the workers’ labour conditions. Certification offers some proof about tenderers’ past performance and law-abiding conduct, but carries no binding commitment with regard to prospective operations as labour clauses do. The Committee therefore urges the Government to take appropriate measures to ensure that full effect is given to the Convention by requiring the inclusion of the labour clauses envisaged by the Convention in all public contracts to which it is applicable.
Finally, with a view to assisting the Government in its efforts to give effect to the provisions of the Convention, the Committee attaches a copy of the Practical Guide on the Convention drawn up by the Office and based principally on the conclusions of the abovementioned General Survey. It also reminds the Government that it may, if it so wishes, seek the Office’s technical assistance.
The Committee notes that Decree No. 2-98-482 of 30 December 1998 laying down conditions and procedures for the awarding of state contracts does not contain any provisions relating to labour clauses. It notes with regret that Decree No. 2-99-1087 of 4 May 2000 approving the general administrative conditions applicable to contracts for work executed for the State’s account does not ensure the application of the Convention either, inasmuch as section 22(1) restricts itself to stating that the full responsibility for applying all labour legislation and regulations to the contractors’ staff belongs to the contractor himself. Moreover, the Committee notes that section 20(4) of the same Decree merely states that the wage paid to workers must not be less than the legal minimum wage for each category of workers. With regard to other types of public contracts, the Committee notes that Decree No. 2-01-2332 of 4 June 2002 approving the general administrative conditions applicable to contracts providing research and management services for the State’s account does not ensure the application of the Convention either. It notes that section 19 of the Decree limits itself to stating that the contractor is subject to the obligations resulting from the laws and regulations in force concerning the protection of the workforce and conditions of work.
The Committee is bound to reiterate that, pursuant to Article 2 of the Convention, the public contracts to which the Convention applies must include clauses ensuring to the workers concerned wages, hours of work and other conditions of labour which are not less favourable than those established for work of the same character in the same area by collective agreement, arbitration award or national laws or regulations. In addition, the terms of the clauses to be included in contracts must be determined in consultation with the employers’ and workers’ organizations concerned. Hence the application of the Convention is not ensured by a provision that merely requires social legislation to be applied to workers engaged in the performance of public contracts. The inclusion of labour clauses in these contracts aims to provide protection for workers in cases where the legislation only establishes minimum conditions of work which are likely to be improved by general or sectoral collective agreements. The fundamental objective of the Convention is therefore to combat the risk of “social dumping” affecting highly competitive public contracts.
The Committee therefore asks the Government to adopt suitable measures as quickly as possible to ensure the full application of the Convention by prescribing the inclusion of labour clauses provided for by the Convention in all public contracts to which it is applicable.
Finally, the Committee draws the Government’s attention to the General Survey which it has undertaken this year on labour clauses in public contracts, which presents the law and practice of the member States in this area and also an evaluation of the impact and current relevance of Convention No. 94.
[The Government is asked to reply in detail to the present comments in 2008.]
With reference to its previous comments, the Committee notes that by virtue of Circular No. 75/IGSA of 22 January 1982, public administrations are obliged to make reference, in their contracts for supplies or services, to the clauses governing labour contracts. In this connection, the Committee recalls that the above Circular was adopted as an interim measure to extend the General Specifications approved by the Royal Decree of 18 June 1966. It also recalls that the Government indicated, in one of its previous reports, that draft legislation to make it compulsory to include labour clauses in all public contracts was under consideration. The Committee hopes that the Government will be able to report in the near future that the draft text under consideration has been adopted in order to give effect to this Convention in a definitive manner.
With reference to its previous comments, the Committee takes note of the Government's statement in its report to the effect that a new set of clauses is under examination. The Committee hopes that the draft Decree, the preparation of which was announced in a previous report, which should give full effect to the Convention and the above set of clauses, will be adopted in the near future.