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Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Central African Republic (Ratification: 1964)

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Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Article 2 of the Convention. Inclusion of labour clauses in public contracts. In its previous comments the Committee noted that Act No. 08.017 Code of 6 June 2008 issuing the Public Procurement Code contains specifications to determine the conditions under which the contract is implemented and which include general administrative clauses, as well as specific administrative clauses. The Committee requested the Government to take appropriate measures to ensure that provisions giving full effect to Article 2 of the Convention are included in the general administrative clauses set out in the specifications. The Committee expressed the hope that, when issuing implementing decrees under the Public Procurement Code, the Government would not fail to bring the legislation into conformity with the Convention. In its report, the Government recognizes the merits of labour clauses and indicates that general conditions of labour are at the heart of common concerns and should be reflected in labour clauses when drafting national legislation on public procurement. It reiterates, however, that despite the omissions observed, the labour inspection services, in conformity with the legal provisions in force, carry out monitoring missions to enterprise directors and contractors holding public contracts, to ensure that working conditions, remuneration, the safety and health of workers above all, and the verification of the clauses provided under the employment contracts, are fully respected. In this regard, the Committee refers the Government to paragraphs 41 to 45 and 110 to 113 of the 2008 General Survey on labour clauses in public contracts, in which the Committee stresses that the applicability of national labour law to work done in the execution of public contracts is not sufficient to ensure application of the Convention. The Government indicates, however, that legislative reform has been engaged with the promulgation of Act No. 19.007 of 24 June 2019, establishing a legal framework for public-private partnerships in the Central African Republic. The main purpose of the Act is to set out the fundamental principles related to the conclusion of public-private partnership contracts and to establish the legal regime for the conclusion, execution, terms, monitoring and termination of public-private partnerships. The Committee notes that the abovementioned law contains no provision for the insertion of labour clauses in public contracts, as required by Article 2(1) and (2) of the Convention. It also notes that the Government has not provided any information regarding measures taken or envisaged to give effect to the provisions of Article 2 of the Convention concerning the incorporation of labour clauses in the specifications of public contracts. The Committee draws the Government’s attention to the 2008 General Survey and to the practical guide on Convention No. 94, published by the Office in September 2008, which gives guidance and examples to follow when bringing the national legislation in line with the Convention. Noting once again that it has been commenting for several years that the Government has not given effect to the Convention, the Committee recalls that the inclusion of appropriate labour clauses in all public contracts covered by the Convention does not necessarily imply the enactment of new legislation, but may also be achieved by issuing administrative instructions or circulars. The Committee strongly expects the Government to take all necessary steps, without further ado, to bring the national legislation into full conformity with the basic requirements of the Convention. The Committee requests the Government to keep the Office informed of progress achieved and recalls once more that the Government may have recourse to ILO technical assistance in this regard, if it so wishes.

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Article 2 of the Convention. Inclusion of labour clauses in public contracts. In its previous comment, the Committee noted the adoption of Act No. 08.017 of 6 June 2008 issuing the Public Procurement Code and Decree No. 08.335 of 20 September 2008 on the organization and operation of the authority to regulate public procurement. The Committee notes that, in accordance with section 63 of Act No. 08.017, if a single evaluation criteria has to be taken into account by the contracting authority in light of the objective of the contract, it has to be the price. In this context, no reference is made to the conditions of work in the evaluation criteria. It also noted that this Act, which is aimed at ensuring free access to public procurement orders, the equality of treatment of tenderers, the economy and effectiveness of the procurement procedure and the transparency of procedures on the basis of their rationalization, modernization and traceability, does not contain any provisions on labour clauses which are to be included in public contracts, in accordance with Article 2 of the Convention. The Government indicates in its report that the terms of the labour clauses to be included in public contracts have not been determined. However, it adds that the conditions of work, hours of work, remuneration rates and registration of employees with the social security fund are still monitored by the regional labour inspection services. The Committee once again draws the Government’s attention to the fact that, in its General Survey of 2008 on labour clauses in public contracts, in paragraphs in 40–46 and 176, it emphasized that the essential purpose of the Convention is to ensure that the workers employed by a contractor and paid indirectly out of public funds, through the inclusion of appropriate labour clauses in public contracts, enjoy wages and conditions of work which are at least as satisfactory as the wages and conditions of work normally established for the type of work concerned, whether they are established by collective agreement or otherwise. In its previous comments, the Committee indicated that the Convention has a very simple structure, with all its provisions being articulated around and directly linked to the core requirements set out in Article 2(1) of the Convention, namely the requirement to adopt measures to ensure the inclusion of labour clauses guaranteeing to the workers concerned the most advantageous wages and other conditions of work established locally. While noting that Act No. 08.017 contains specifications to determine the conditions under which the contract is implemented and which include general administrative clauses, as well as specific administrative clauses, the Committee once again requests the Government to adopt without further ado all the appropriate measures to ensure that provisions giving full effect to Article 2 of the Convention are included in the general administrative clauses set out in the specifications. The Committee hopes that, when issuing implementing decrees under the Public Procurement Code, the Government will not fail to take the opportunity to bring the legislation finally into conformity with the Convention, and once again requests the Government to provide a copy of any further texts once they have been adopted. It reminds the Government that it may have recourse to ILO technical assistance if it so wishes.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Article 2 of the Convention. Inclusion of labour clauses in public contracts. The Committee notes the adoption of Act No. 08.017 of 6 June 2008 issuing the Public Contracts Act and Decree No. 08.335 of 20 September 2008 on the organization and functioning of the authority to regulate public procurement operations. However, it notes that this new Act, which is aimed at guaranteeing free access to public procurement orders, equality of treatment of tenderers, the economy and effectiveness of the procurement procedure and the transparency of procedures based on their rationalization, modernization and traceability, does not contain any provision on labour clauses which are to be included in public contracts, in accordance with this Article of the Convention. In this respect, the Committee considers it necessary to refer to its 2008 General Survey, which recalls that the essential objective of the Convention is to guarantee to workers employed by an entrepreneur and paid indirectly out of public funds, by placing appropriate labour clauses in public contracts, wages and working conditions that are not less favourable than those normally established for the same type of work, whether they are determined by collective agreement or otherwise. While noting that section 83 of Act No. 08.017 referred to above provides for the establishment of specifications determining the conditions for the execution of the contract, which will include general administrative clauses as well as specific administrative clauses, the Committee requests the Government to take any appropriate measures for the inclusion of provisions giving full effect to Article 2 of the Convention in the general administrative clauses of the specifications. The Committee hopes that, when adopting the decrees issued under the Public Contracts Act, the Government will not miss the opportunity to finally bring its legislation into conformity with the Convention, and it requests the Government to provide a copy of any new text as soon as it is adopted.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 2 of the Convention. Insertion of labour clauses into public contracts. Further to its previous observation, the Committee notes the Government’s statement that the terms of the clauses to be inserted into public contracts have not yet been determined and that there still remains much to be done to bring the national law and practice into conformity with the requirements of the Convention.

The Committee regrets that the Government is still unable to report any tangible results in implementing the Convention, despite repeated reassurances given in the last two decades. In this connection, the Committee refers to paragraphs 176 and 177 of its General Survey of 2008 on labour clauses in public contracts, in which it noted that the Convention has a very simple structure, all its provisions being articulated around and directly linked to the core requirement of Article 2, paragraph 1, i.e. the insertion of labour clauses ensuring the most advantageous wages and other working conditions established locally to the workers concerned. The Committee also considered that the Convention proposes a clear, concrete and effective solution to the problem of how to ensure that workers’ rights remain protected. By aligning contract standards to the highest prevailing standards, by excluding the lowering of those standards through subcontracting, and by incorporating those principles into the standard clauses of each and every public contract falling within its scope, the Convention guarantees that public procurement is not a terrain for socially unhealthy competition and can never be associated with poor working and wage conditions. The Committee therefore urges the Government to take all necessary action without further delay to apply the Convention in law and practice, and recalls that it may also draw upon the Office’s technical assistance should it so wish. The Committee also repeats its previous requests concerning: (i) a copy of the draft new Labour Code which, according to the Government, provides for the insertion of labour clauses into public contracts; (ii) information on the revision of the public procurement legislation which is currently in progress with the assistance of the World Bank and the African Development Bank under the Emergency Management and Governance Reform Program (EMGRG); and (iii) the amendment of Decrees Nos 61/135 and 61/137 of 1961 on public contracts for the supply of goods and services – to the extent they are still in force – so as to include clauses similar to that of section 16(3) of Decree No. 61/136 as well as references to the appropriate collective agreements.

Finally, with a view to assisting the Government in its efforts to give effect to the Convention, the Committee attaches herewith a Practical Guide prepared by the Office and based principally on the findings of the abovementioned General Survey. It hopes that the Government will make good use of this guide and will take the necessary action in the very near future.

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

Further to its previous comments, the Committee notes with regret that the Government has still not made any concrete progress in implementing the requirements of the Convention in either law or practice. The Government indicates that a new Labour Code making provision for the insertion of labour clauses in public contracts has been approved and will take effect once it is adopted by the national Parliament and enacted by the Head of State. However, the text of the new draft Labour Code has not been communicated and therefore the Committee is not in a position to evaluate the conformity of the announced new labour legislation with the terms of the Convention. The Committee therefore asks the Government to forward a copy of the draft Labour Code as it currently reads in order to enable the Committee to review and comment upon the relevant provisions referring to public contracts.

Moreover, the Committee understands that the Government has recently undertaken a review of its public procurement system and the drafting of a new public procurement code with the support and under the guidance of international financial institutions such as the World Bank, the International Monetary Fund and the African Development Bank. The Committee hopes that in pursuing the reform and modernization of its public procurement system, the Government will not fail to take into account the points raised by the Committee over the past 30 years and give full effect to the obligations arising out of the ratification of this Convention. The Committee requests the Government to keep it informed of the process of revision of the public procurement legislation and to transmit a copy of any relevant legal text as soon as it is adopted.

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.]

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

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee notes with regret that it has not been possible to make any significant progress, as the Government confines itself to noting the observations made by the Committee, while reiterating its commitment to establish the requirement in the new Labour Code for the inclusion of labour clauses in public contracts. The Committee is bound to remind the Government that it has been announcing its intention to give effect to the Committee’s suggestions for over 20 years without practical results. It therefore repeats its request concerning the amendment of the two Decrees of 1961, respecting public contracts for the supply of goods and services, insofar as they are still in force. It would be sufficient to amend these Decrees by introducing provisions similar to those of section 16(3) of Decree No. 61/136, determining the schedule of general administrative clauses applicable for the implementation of public works contracts, with references to the appropriate collective agreements. The Committee also requests the Government to keep it informed of any development in relation to the formulation and adoption of the new Labour Code.

With a view to assisting the Government in its efforts to give effect to the Convention, the Committee is providing in annex a copy of an explanatory note prepared by the Office on the objectives and provisions of the Convention. This note includes, in particular, a model legislative text to give effect to the provisions of the Convention.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s report and the attached documentation. It notes with regret that it has not been possible to make any significant progress, as the Government confines itself to noting the observations made by the Committee, while reiterating its commitment to establish the requirement in the new Labour Code for the inclusion of labour clauses in public contracts. The Committee is bound to remind the Government that it has been announcing its intention to give effect to the Committee’s suggestions for over 20 years without practical results. It therefore repeats its request concerning the amendment of the two Decrees of 1961, respecting public contracts for the supply of goods and services, insofar as they are still in force. It would be sufficient to amend these Decrees by introducing provisions similar to those of section 16(3) of Decree No. 61/136, determining the schedule of general administrative clauses applicable for the implementation of public works contracts, with references to the appropriate collective agreements. The Committee also requests the Government to keep it informed of any development in relation to the formulation and adoption of the new Labour Code.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee recalls its previous observations concerning the Government’s continued failure to provide for labour clauses in public contracts in accordance with the provisions of the Convention. In its last report, the Government refers to Constitutional Acts I and II of 15 March 2003 on the provisional organization of state powers and Order No. 007/MJI-DGET/DTLS of 27 February 1979 determining the classification and basic wage of workers in the absence of collective agreements. Even though copies of the above texts have not been made available to the Committee, the Committee estimates that these instruments bear strictly no relevance to the obligation arising from Article 2 of the Convention for the insertion of standard labour clauses in those public contracts falling within the conditions specified in Article 1 of the Convention. The Government states that the terms of the clauses to be inserted in public contracts have not been determined but takes the view that the requirements of the Convention are complied with merely because public contracts are awarded by central authorities, they are subject to the relevant provisions of the Labour Code and their execution is controlled by the regional labour inspection services. While noting the Government’s statement, the Committee regrets that no real progress has been made in the application of the Convention. The Committee recalls the Government’s repeated assurances that the 1961 decrees on public contracts for the supply of goods and services would be amended taking into account the Committee’s suggestions. The Committee also recalls that it has been requesting for years a copy of the National Collective Agreement for Public Works and Construction to which reference was made in the Government’s report submitted in June 1987 but no such text has ever been received. Under the circumstances, the Committee hopes that the Government will make a real effort to maintain a meaningful dialogue with the supervisory organs of the Organization on the application of this Convention. It once again urges the Government to take all necessary measures without further delay to bring its national law and practice into conformity with the clear terms and objectives of the Convention.

[The Government is asked to report in detail in 2005.]

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes that the Government’s report contains no reply to previous comments. It must therefore repeat its previous observation which read as follows:

With reference to the comments it has been making for a number of years, the Committee notes the statement to the effect that the Government intends to supplement Decrees Nos. 61/135 and 61/137 of 19 August 1961 relating to public contracts for the supply of goods and services, taking into account the Committee’s suggestions. Recalling that the Government has been expressing this intention since 1982, the Committee hopes that the Government will be able to adopt these texts in the very near future. In this connection, the Committee emphasizes that in accordance with the provisions of Article 2, paragraph 1, of the Convention, the contracts to which the Convention applies shall include clauses guaranteeing to the workers concerned working conditions, and not only wages, which are not less favourable than those established for work of the same character in the trade or industry concerned in the same district. The Committee hopes that the Government will be able to supply the texts adopted with its next report.

With regard to the National Collective Agreement for Public Works and Construction, the Committee requests the Government to supply a copy of this agreement since the copy referred to in its earlier report has not been received.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

With reference to the comments it has been making for a number of years, the Committee notes the statement to the effect that the Government intends to supplement Decrees Nos. 61/135 and 61/137 of 19 August 1961 relating to public contracts for the supply of goods and services, taking into account the Committee’s suggestions. Recalling that the Government has been expressing this intention since 1982, the Committee hopes that the Government will be able to adopt these texts in the very near future. In this connection, the Committee emphasizes that in accordance with the provisions of Article 2, paragraph 1, of the Convention, the contracts to which the Convention applies shall include clauses guaranteeing to the workers concerned working conditions, and not only wages, which are not less favourable than those established for work of the same character in the trade or industry concerned in the same district. The Committee hopes that the Government will be able to supply the texts adopted with its next report.

With regard to the National Collective Agreement for Public Works and Construction, the Committee requests the Government to supply a copy of this agreement since the copy referred to in its earlier report has not been received.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which reads as follows:

With reference to the comments it has been making for a number of years, the Committee notes the statement to the effect that the Government intends to supplement Decrees Nos. 61/135 and 61/137 of 19 August 1961 relating to public contracts for the supply of goods and services, taking into account the Committee’s suggestions. Recalling that the Government has been expressing this intention since 1982, the Committee hopes that the Government will be able to adopt these texts in the very near future. In this connection, the Committee emphasizes that in accordance with the provisions of Article 2, paragraph 1, of the Convention, the contracts to which the Convention applies shall include clauses guaranteeing to the workers concerned working conditions, and not only wages, which are not less favourable than those established for work of the same character in the trade or industry concerned in the same district. The Committee hopes that the Government will be able to supply the texts adopted with its next report.

With regard to the National Collective Agreement for Public Works and Construction, the Committee requests the Government to supply a copy of this agreement since the copy referred to in its earlier report has not been received.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

With reference to the comments it has been making for a number of years, the Committee notes the statement to the effect that the Government intends to supplement Decrees Nos. 61/135 and 61/137 of 19 August 1961 relating to public contracts for the supply of goods and services, taking into account the Committee's suggestions. Recalling that the Government has been expressing this intention since 1982, the Committee hopes that the Government will be able to adopt these texts in the very near future. In this connection, the Committee emphasizes that in accordance with the provisions of Article 2, paragraph 1, of the Convention, the contracts to which the Convention applies shall include clauses guaranteeing to the workers concerned working conditions, and not only wages, which are not less favourable than those established for work of the same character in the trade or industry concerned in the same district. The Committee hopes that the Government will be able to supply the texts adopted with its next report.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes that the Government's report has not been received. It must therefore repeat its previous observation on the following points:

The Committee noted the information supplied by the Government in its most recent report to the effect that a supplement to Decrees Nos. 61/135 and 61/137 of 19 August 1961 was currently under study in order to take into account the Committee's suggestions. Noting that the Government has been mentioning such intention since 1982, the Committee hopes that the Government will be able to adopt these regulations in the very near future. In this connection, the Committee recalls that in accordance with the provisions of Article 2, paragraph 1, of the Convention, the contracts to which the Convention applies shall include clauses guaranteeing to the workers concerned working conditions, and not only wages, which are not less favourable than those established for work of the same character in the trade or industry concerned in the same district. With regard to the national collective agreement for public works and construction, the Committee would be grateful if the Government would send a copy of this agreement with its next report, since the copy referred to in its earlier report has not arrived.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes the information supplied by the Government in its most recent report to the effect that a supplement to Decrees Nos. 61/135 and 61/137 of 19 August 1961 is currently under study in order to take into account the Committee's suggestions. Noting that the Government has been mentioning such intention since 1982, the Committee hopes that the Government will be able to adopt these regulations in the very near future. In this connection, the Committee recalls that in accordance with the provisions of Article 2, paragraph 1, of the Convention, the contracts to which the Convention applies shall include clauses guaranteeing to the workers concerned working conditions, and not only wages, which are not less favourable than those established for work of the same character in the trade or industry concerned in the same district.

With regard to the national collective agreement for public works and construction, the Committee would be grateful if the Government would send a copy of this agreement with its next report, since the copy referred to in its earlier report has not arrived.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes that the Government's report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee notes the information supplied by the Government in its most recent report to the effect that a supplement to Decrees Nos. 61/135 and 61/137 of 19 August 1961 is currently under study in order to take into account the Committee's suggestions. The Committee hopes that the Government will be able to adopt these regulations in the very near future. In this connection, the Committee recalls that in accordance with the provisions of Article 2, paragraph 1, of the Convention, the contracts to which the Convention applies shall include clauses guaranteeing to the workers concerned working conditions, and not only wages, which are not less favourable than those established for work of the same character in the trade or industry concerned in the same district. With regard to the national collective agreement for public works and construction, the Committee would be grateful if the Government would send a copy of this agreement with its next report, since the copy referred to in its report has not arrived.

TEXT

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Observation (CEACR) - adopted 1988, published 75th ILC session (1988)

The Committee notes the information supplied by the Government in its most recent report to the effect that a supplement to Decrees Nos. 61/135 and 61/137 of 19 August 1961 is currently under study in order to take into account the Committee's suggestions. The Committee hopes that the Government will be able to adopt these regulations in the very near future. In this connection, the Committee recalls that in accordance with the provisions of Article 2, paragraph 1, of the Convention, the contracts to which the Convention applies shall include clauses guaranteeing to the workers concerned working conditions, and not only wages, which are not less favourable than those established for work of the same character in the trade or industry concerned in the same district.