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Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Mauritius (Ratification: 1969)

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Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee examines the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

Article 1(3) of the Convention. Scope of application. Subcontractors. In its previous comments, the Committee noted that the provisions of section 46(5) of the Public Procurement Act, 2006, on the insertion of labour clauses, do not apply to subcontractors or assignees. Instead, it was left to the main contractor to ensure compliance and to submit evidence of this to the public procurement authority. Section 46(8) of the 2006 Act does not, however, place any legal responsibility on the main contractor to ensure compliance on the part of a subcontractor or to produce evidence of such compliance. Therefore, in its 2017 direct request, the Committee once again drew the Government’s attention to the 2008 General Survey on labour clauses in public contracts, paragraphs 75–81, particularly paragraph 75, which points out that Article 1(3) of the Convention requires the competent authorities to take appropriate measures to ensure that labour clauses of the type required by the Convention are applied to work carried out by subcontractors or assignees of contracts. The Committee therefore once again requested that the Government take, without further delay, all necessary measures to ensure that labour clauses in public contracts apply fully to work carried out by subcontractors and assignees. The Committee notes that the Government refers in its supplementary report to the adoption of the Workers’ Rights Act, Act No. 20 of 2019 (WRA), which repealed and replaced the Employment Rights Act 2008 (ERiA) as of 24 October 2019. The Committee notes with interest that section 29(1) of the WRA establishes the joint liability of the job contractor and the employer (principal) with regard to payment of the remuneration of the worker and the conditions of employment of the worker, including his or her safety, health and welfare. Furthermore, section 29(3) of the WRA provides that “no person who is jointly liable with a job contractor under subsection (1) may set up as a defence to a claim from a worker seeking to recover remuneration the fact that he has already paid to the job contractor any sum due under the arrangement with the job contractor.” In addition, section 29(4) of the WRA provides that “every worker employed by a job contractor shall, for securing payment of his remuneration, have the same privileges, in respect of the property of the principal, as he would have had if he had been directly employed by the principal without the intervention of the job contractor.”

The Committee notes the Government’s indication in its 2019 report that the standard bidding document for “security services, cleaning services and those for street cleaning, refuse collection and disposal services” includes provisions that govern subcontracting. The Government adds that any subcontracting component proposed by the main contractor is subject to the employer’s (the public authority’s) approval. Therefore, the conditions governing the subcontractor with respect to labour clauses will be the same as those governing the main contractor. Notwithstanding the Government’s indication, the Committee observes that the standard bidding document (SCS/RFQ-GCC18/10-13) (as revised on 18 October 2013) does not contain any clauses providing for the contractor’s responsibility to ensure observance of the terms of the labour clauses by a subcontractor. The Committee requests the Government to provide detailed information on the manner in which section 29 of the Workers’ Rights Act, Act No. 20 of 2019 (WRA) is applied in practice to public employment contracts, as well as to provide the Office with copies of standard bidding documents currently in use.

Article 2. Insertion of labour clauses. In its previous comments, the Committee noted the Government’s indication that the standard bidding documents for the procurement of goods were based on World Bank guidelines which did not contain the type of labour clauses required by the Convention. In this regard, the Committee urged the Government to take measures to ensure full implementation with the requirements of the Convention. The Government indicates that the standard bidding documents for procurement of goods do not contain labour clauses of the type required by the Convention, as the goods in question are imported and are not manufactured locally. Hence, the workers involved in the manufacturing process of these goods are outside of Mauritius and its jurisdiction. The Government adds that these workers are instead covered by legislation applicable in their home country. While the Committee notes the Government’s explanation, it wishes to stress that the Convention applies to all public contracts, whether for works (for example construction of a new highway, extension of an airport terminal), goods (for example the purchase of new uniforms for customs officers or procurement of computer hardware for a ministry) or services (for example cleaning or IT services). In this respect, the Committee draws the Government’s attention to the ILO’s 2008 Practical Guide on Convention No. 94 and Recommendation No. 84, which provides guidance in relation to the requirements of the Convention, with the aim of ultimately improving their application in law and practice (page 7). For instance, with regard to the application of the Convention to cross-border public procurement contracts, the Practical Guide points out that, while work done outside the contracting State is not covered by the provisions of the Convention, this does not mean that all contracts with a transnational dimension are excluded from its scope. Therefore, in the case of public contracts involving the use of foreign workers brought into the country for purposes of the contract, the requirements of the Convention in relation to labour clauses would fully apply and the workers would enjoy the protection of the required clauses (pages 18 and 19). The Committee once again requests the Government to take the necessary measures to ensure that the scope of application of the Public Procurement Act, 2006, are amended to cover all types of public contracts envisaged by the Convention.

Article 5(1). Adequate sanctions. In its previous comments, the Committee requested the Government to indicate the measures taken or contemplated to ensure the application of adequate penalties for failure to respect the provisions of labour clauses contained in public contracts. The Government refers to section 45(6) of the Public Procurement Act 2006, which establishes that “no contractor shall be entitled to any payment in respect of work performed in the execution of the procurement contract unless he has, together with his claim for payment, filed a certificate stating: (a) the rates of remuneration and hours of work of the various categories of workers employed in the execution of the contracts; (b) whether any remuneration payable in respect of work done is due; and (c) any other information that the public body administering the procurement contract may require to satisfy himself that this Act has been complied with.” In addition, section 46(7) provides that, in the event that remuneration is still owed to a worker employed on a public contract, the public body administering the contract “may, unless the remuneration is paid sooner by the contractor, arrange for the payment of the remuneration out of the money payable under the procurement contract.” The Committee requests the Government to provide detailed updated information on the manner in which section 46(7) of the Public Procurement Act of 2006 is given effect in practice, as well as the manner in which effect is given to Article 5(1) of the Convention more generally.

Application of the Convention in practice. While noting that the Government does not provide information on the application of the Convention in practice, the Committee once again expresses the hope that the Government will make every effort to compile and communicate detailed updated information, including statistical data disaggregated by age and sex, regarding the application of the provisions of the Convention in practice.

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

Article 1(3) of the Convention. Scope of application. Subcontractors. In its previous comments, the Committee noted the Government’s indications that, while there was initially a consensus on extending the provisions of section 46(5) of the Public Procurement Act, 2006, concerning the insertion of labour clauses to subcontractors and assignees, it was ultimately left to the main contractor to ensure compliance and to submit evidence of compliance to the public procurement authority. The Committee noted that section 46(8) of the 2006 Act does not place any responsibility on the main contractor to ensure compliance on the part of a subcontractor or to produce evidence of such compliance. The Committee once again draws the Government’s attention to the 2008 General Survey on labour clauses in public contracts, paragraphs 75–81, which provide guidance in this area. In particular, paragraph 75 points out that Article 1(3) of the Convention requires the competent authorities to take appropriate measures to ensure that labour clauses of the type required by the Convention are applied to work carried out by subcontractors or assignees of contracts. In light of the foregoing, the Committee once again requests the Government to take, without further delay, all necessary measures to ensure that labour clauses in public contracts apply fully to the work carried out by subcontractors and assignees, as required by Article 1(3) of the Convention, and to provide information on the progress achieved in this regard.

Article 2. Insertion of labour clauses. In its previous comments, the Committee requested the Government to clarify the reasons why the standard bidding documents for procurement of goods do not contain labour clauses of the type required by the Convention, while these clauses are contained in other standard bidding documents. The Committee notes the Government’s indication that the standard bidding documents for the procurement of goods is based on World Bank guidelines which do not contain the labour clauses required. The Committee wishes to draw the attention of the Government to its obligations under Article 2 and urges the Government to take measures to ensure full implementation with the requirements of the Convention.

Article 5(1). Adequate sanctions. The Committee requests the Government to indicate the measures taken or contemplated to ensure the application of adequate penalties for failure to respect the labour clauses contained in public contracts, as required under Article 5(1) of the Convention.

Application of the Convention in practice. The Committee notes the Government’s indication that the current system is not structured to capture up to date information on the practical application of the Convention, including statistics on the number and types of public contracts and activity reports of the Central Procurement Board or the Procurement Policy Office on the implementation of the public procurement legislation. The Committee hopes that the Government will make every effort to collect and provide up-to-date information, including statistical information, enabling a general appreciation of the manner in which the Convention is implemented in practice.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Article 1(3) of the Convention. Scope of application. Subcontractors. Further to its previous comment, the Committee notes the Government’s indications that although there was initially a consensus to extend the provisions of section 46(5) of the Public Procurement Act 2006 concerning the insertion of labour clauses into public contracts to subcontractors and assignees, it was felt that it should be left to the main contractor to ensure compliance and to submit evidence of compliance to the public body.

The Committee observes that regardless of what the intention might have been, section 46(8) of the Public Procurement Act as it now stands does not place any responsibility upon the main contractor to ensure compliance with the terms of the labour clauses on the part of a subcontractor, nor does it explicitly require the main contractor to produce evidence of such compliance. The Committee notes, in this respect, that the contractor’s responsibility for the observance of the terms of the labour clauses by a subcontractor is clearly established in subclause 6.30 of the user’s guide relating to the standard bidding documents for procurement of large or complex works, as revised in July 2012. However, no similar clause is to be found in the standard bidding documents for security services, cleaning services and those for street cleaning, refuse collection and disposal services, all of which have been last revised in July 2012. The Committee wishes to refer to paragraphs 75–81 of the 2008 General Survey on labour clauses in public contracts which provide guidance in this regard. The Committee accordingly requests the Government to take all necessary measures to ensure that labour clauses fully apply to the work carried out by subcontractors and assignees, as required under Article 1(3) of the Convention.

Article 2. Insertion of labour clauses. The Committee notes that contrary to the standard bidding documents for cleaning services, security services and those for street cleaning, refuse collection and disposal services, which all contain labour clauses of the type required by the Convention, the standard bidding documents for procurement of goods do not appear to contain similar clauses. The Committee would appreciate receiving the Government’s explanations in this regard.

Part V of the report form. Application in practice. The Committee requests the Government to provide up-to-date information on the practical application of the Convention, including, for instance, statistics on the number and types of public contracts and activity reports of the Central Procurement Board or the Procurement Policy Office on the implementation of the public procurement legislation.

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

Article 1, paragraph 3, of the Convention. Subcontractors. The Committee notes that section 46(8) of the Public Procurement Act states that a party to a public contract may not transfer or assign this contract without the written consent of the contracting authority, but does not state the conditions of work applicable to workers employed by the assignee in cases where such authorization is granted. It requests the Government to indicate whether the provisions of section 46(5), which prescribes the inclusion of labour clauses in all public contracts, also apply to subcontractors or assignees of these contracts, as prescribed by the Convention.

Article 5, paragraph 1. Penalties – withholding of contracts. The Committee notes that, further to its amendment by the Employment Rights Act 2008, section 46 of the Public Procurement Act 2006 states that labour clauses must be included in public contracts. It also notes that section 53(1) of the Public Procurement Act, which lists the circumstances in which a potential bidder may be prohibited from participating in a public contract, has not been the subject of a consecutive amendment aimed at extending its application to violations of such labour clauses. The Committee requests the Government to indicate whether it envisages amending section 53 of the Public Procurement Act in order to penalize, by the withholding of a contract, any violation of the labour clauses contained in public contracts, thereby giving effect to Article 5, paragraph 1, of the Convention. If not, the Government is requested to indicate the other measures taken to ensure the application of adequate penalties for failure to observe such labour clauses, as required by the Convention. The Committee also requests the Government to send a copy of the full text of the Employment Rights Act 2008.

Article 5, paragraph 2. Penalties – withholding of payments. The Committee notes that, under section 46(6) of the Public Procurement Act 2006 – which reproduces the provisions of section 14(1) of the Labour Act – the contractor will not receive the payments due under the public contract unless he provides the contracting authority with a certificate indicating the wages and working hours of the workers employed for the execution of the contract and stating whether remuneration is still due. It also notes that section 46(7) – whose provisions are identical to those of section 14(2) of the Labour Act – states that, if such is the case, the contracting authority may pay directly wages due by withholding the corresponding amounts from the amounts due to the contractor, unless the latter pays the wage arrears in the meantime. The Committee requests the Government to indicate whether it plans to make this procedure compulsory and no longer optional for the contracting authority. If not, the Government is requested to describe the other measures taken to enable the workers concerned to obtain the wages to which they are entitled, as required by this provision of the Convention.

Part V of the report form. The Committee requests the Government to supply general information on the application of the Convention in practice. In this regard, it notes that, under section 7 of the Public Procurement Act 2006, the Central Procurement Board is responsible for the collection of information on the award of public contracts to public bodies and for verifying that they observe this legislation, issuing directives, procedures, instructions and handbooks to ensure implementation of the law, and for submitting to the Minister of Finance an annual report on the functioning of the public procurement system. The Committee requests the Government to supply all available information on the implementation of the Public Procurement Act 2006, and particularly to send a copy of the annual reports drawn up by the Central Procurement Board and of any other document (directives or otherwise) which it has adopted in relation to the implementation of labour clauses in public contracts.

For all useful purposes, the Committee attaches herewith a copy of a Practical Guide, prepared by the Office principally on the basis of the General Survey of 2008 on Convention No. 94, to help better understand the requirements of the Convention and ultimately improve its application in law.

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

Article 2, paragraphs 1 and 2, of the Convention. Inclusion of labour clauses in public contracts. The Committee notes with satisfaction that section 46 of the Public Procurement Act 2006, as amended by the Employment Rights Act 2008, gives effect to the provisions of Article 2, paragraphs 1 and 2, of the Convention, which require the inclusion of labour clauses in public contracts to which the Convention is applicable.

The Committee is raising a number of other points in a request addressed directly to the Government.

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

The Committee notes the adoption of the Public Procurement Act of 2006, section 62 of which repealed the Central Tender Board Act of 2000. It notes, however, that this new legislation does not contain any provisions relating to the inclusion of labour clauses in public contracts. It also notes the Government’s indications that the provisions of section 14 of the Labour Act would be transferred into the text of the new Public Procurement Act. The Committee recalls, however, that this provision does not ensure the application of the Convention. It states that assignees of public contracts will not receive the payments corresponding to the work performed unless they supply a certificate indicating, among other things, the wages and number of working hours of the various categories of workers employed for the execution of the contract and stating in particular whether remuneration is still due in this context, but without any indication regarding the prescribed level of wages or the authorized number of working hours.

The Committee draws the Government’s attention to the essential obligation imposed by Article 2 of the Convention, namely the inclusion in public contracts to which the Convention applies of clauses – the content of which should be the subject of tripartite consultations – 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. The Committee recalls that the Labour Clauses in Public Contracts Ordinance of 1964, which was repealed by the Labour Act of 1975, gave full effect to the provisions of the Convention. It notes the information in the Government’s report to the effect that the Public Procurement Act would be amended to take account of the Committee’s comments concerning the labour clauses which formed part of the Ordinance of 1964 referred to above. The Committee asks the Government to adopt without further delay the necessary measures to bring its legislation once again into conformity with the Convention and to keep it informed of all measures taken in this respect.

In addition, the Committee notes the comments made by the Mauritius Employers’ Federation, according to which the labour clauses contained in public contracts conform to the national labour legislation, including the Occupational Safety, Health and Welfare Act. It asks the Government to supply copies of public contracts containing labour clauses of the type mentioned by the Mauritius Employers’ Federation.

Moreover, the Committee notes the Government’s information in its report with regard to the activities of the Central Tender Board. In view of the repeal of the Central Tender Board Act of 2000, the Committee asks the Government to supply up to date information on the functioning of the Central Procurement Board, established by the Public Procurement Act of 2006, and any other useful information on the application of the Convention in practice.

Finally, the Committee draws the Government’s attention to the General Survey which it undertook 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.]

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

Part V of the report form. The Committee asks the Government to provide in its next report detailed and up-to-date information on the manner in which the Convention is applied in practice, including for instance available statistics on the number of public contracts awarded and workers concerned, indications on the composition and terms of reference of the Central Tender Board, extracts from relevant inspection reports and any other particulars bearing on the implementation of the Convention.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes with regret that the Government’s report is essentially a repetition of information already submitted in previous years that confirms the continued failure of the Government to bring the national legislation into conformity with the requirements of the Convention. The Government merely indicates that discussions on the draft employment bill continue at the level of the Labour Advisory Board and that the provisions of the Convention have been duly taken into account in the course of the revision exercise. Recalling that the specific legislation enacted with a view to giving effect to the provisions of the Convention was repealed more than 25 years ago and that the Government has been announcing ever since its intention to amend the Labour Act of 1975 in order to apply again the Convention, the Committee urges the Government to take without further delay all necessary steps to ensure legislative conformity with the terms of the Convention.

In addition, the Committee notes the extract of the tender document for works, which was supplied by the Government and which contains a detailed clause on recruitment, rates of wages and hours and conditions of work in respect of the workers involved in the execution of a public contract. In this connection, the Government reports that measures will be taken by the Central Tenders Board to ensure that all tender documents contain specifications in line with the provisions of the Convention. The Committee is bound to recall, however, that a labour clause has to constitute an integral part of the actual contract signed by the selected contractor and that the insertion of labour clauses in the specifications or general conditions of tender documents, even though required under the terms of Article 2, paragraph 4, of the Convention, does not suffice to give effect to the basic requirement of the Convention as set out in Article 2, paragraph 1. The Committee takes this opportunity to recall that measures to ensure the inclusion of appropriate labour clauses in all the public contracts covered by the Convention do not necessarily call for enactment of legislation, but could also take the form of administrative instructions or circulars.

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

With reference to its previous comments, the Committee regrets to observe that the Government is still not able to report any progress concerning the implementation of the Convention. The Committee recalls that for over 20 years the Government has been indicating its intention to take action to amend the Labour Act, 1975, with a view to giving legislative expression to the requirements of the Convention.

The Committee notes from the Government’s report that the revised draft Employment Bill, elaborated with the technical assistance of the ILO, was submitted to the Government in August 1999 and is currently under consideration by a ministerial committee set up to consider its implications.

The Committee therefore again expresses the hope that the Government will soon adopt the new legislation giving effect to the provisions of the Convention and requests the Government to keep it informed of any progress achieved in this regard.

[The Government is asked to report in detail in 2003.]

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

Further to its previous observation, the Committee notes the Government's report, including information on the application of some of the provisions of the Convention. It notes the indication in the report that it embarked on a labour law reform project with the technical assistance of the ILO, and that the revision of the Labour Act included in this project, will eventually be submitted to the National Assembly.

The Committee recalls that, for a number of years, the Government has been indicating its intention to revise the 1975 labour legislation. It also recalls that the Labour Act of 1975 repealed the Labour Clauses in Public Contracts Ordinance of 1964, which had previously given effect to the provisions of the Convention. The Committee again suggests that the Government consider the possibility of taking the provisions of the above Ordinance into account in the review of the Labour Act.

The Committee can only reiterate the hope that the Government will take all necessary steps to ensure that amendments to the Labour Act are adopted in the near future in order to ensure the insertion of labour clauses in public contracts in accordance with Article 2 of this Convention, and it asks the Government to report any progress made.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

Further to its previous observation, the Committee notes that the report of the technical committee instituted to review the 1975 Labour Act is still under consideration by the Government and that the Government has recently referred the matter to the tripartite Labour Advisory Board which will advise the Minister on the amendments to be made to the Act.

The Committee can only reiterate the hope that the Government will take all necessary steps to ensure that amendments to the Labour Act are adopted in the near future in order to give effect to the provisions of this Convention, and it asks the Government to report any progress made.

[The Government is asked to report in detail in 1998.]

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

The Committee notes that the committee instituted to review the 1975 Labour Act has submitted its report which is presently under consideration by the Government.

The Committee trusts that the Government will take all necessary steps to ensure that amendments to the Labour Act are adopted in the near future in order to give effect to the provisions of this Convention, and it asks the Government to indicate any progress made.

[The Government is asked to report in detail in 1996.]

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

The Committee notes that the Government has instituted a Committee to review the 1975 Labour Act, and that that Committee's attention will be drawn to the Committee of Experts' comments on this Convention.

The Committee recalls that, for a number of years, the Government has been indicating its intention to revise the 1975 labour legislation. The Committee therefore hopes that the Government will take all necessary steps to ensure that amendments to the Labour Act are adopted in the near future in order to give effect to the provisions of this Convention. In this connection, the Committee again recalls that when the Labour Act of 1975 was adopted it repealed the Labour Clauses in Public Contracts Ordinance of 1964. The Committee again suggests that the Government consider the possibility of taking the above Ordinance into account in the review of the Labour Act. The Committee asks the Government to indicate any progress made in this regard in its next report.

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

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

With reference to its previous comments, the Committee noted that the amendments to the Labour Act, 1975, intended to apply the Convention have not yet been adopted and that the matter is still under consideration. It trusts that the necessary measures will be taken in the very near future to give effect to the Convention, and hopes that the Government will be able to indicate that progress has been made in this regard.

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