Observación (CEACR) - Adopción: 2006, Publicación: 96ª reunión CIT (2007)

The Committee notes the Government’s indication in its report that it wishes to be provided with further explanations on the reasons why Executive Directive No. 34 of 8 February 2002 is contrary to the Convention.

The Committee observes that, under the terms of Article 2 of the Convention, the public contracts to which the Convention applies shall include clauses ensuring to the workers concerned wages, hours of work and other conditions of labour which are not less favourable than the most favourable conditions established in accordance with one of the three formulae envisaged by the Convention, that is by collective agreement, by arbitration award or by national laws or regulations. The mere fact that the labour and social security legislation is applicable to workers engaged in the context of public contracts is not sufficient to give effect to the Convention. Accordingly, as the Committee already emphasized in its previous comment, Executive Directive No. 34 of 8 February 2002, the first paragraph of which is confined to requiring the inclusion of a clause establishing the obligation of the contracting enterprises to comply strictly with labour and social security obligations but does not provide that wages, etc. must be not less favourable than the most favourable conditions established in the three specified manners, is not in conformity with Article 2 of the Convention.

The inclusion of the clauses envisaged by the Convention ensures the protection of workers in cases in which the legislation only establishes minimum terms and conditions of employment but which minimum may be exceeded by general or sectoral collective agreements. Indeed, the fundamental objective of the Convention is to prevent social dumping resulting from the intense competition prevailing in the field of public tenders.

In its report, the Government also requests technical assistance for the formulation of provisions that are in accordance with the Convention. In this respect, the Committee recalls that the Government has already adopted a text on this subject, namely Decree No. 11430-TSS of 30 April 1980, following a direct contacts mission undertaken by a representative of the ILO Director-General. This Decree, which refers explicitly to the Convention and the adoption of which was noted with satisfaction by the Committee in an observation in 1981, provides that clauses should be included in public contracts explicitly requiring compliance by the tenderer with the legal provisions or those contained in collective agreements relating to wages, hours of work, occupational safety and health and, more generally, terms and conditions of employment which are not less favourable than those envisaged for work of the same nature performed in the same sector and the same geographical area. Following the adoption of this Decree, the Committee requested the Government, in a direct request in 1981, to indicate the manner in which the above terms and conditions of employment had been determined. In its report in 1982, the Government announced the establishment of a committee responsible for formulating the terms of labour clauses in collaboration with the employers’ and workers’ organizations concerned. However, since then, the Government has provided no further information on this subject and the Committee has therefore been bound to reiterate its request for information on numerous occasions.

The Committee therefore once again requests the Government to provide information on the labour clauses included in public contracts under the terms of Decree No. 11430-TSS of 30 April 1980, and to provide copies of public contracts containing such clauses. The Government is also requested to indicate whether the terms of these clauses were formulated after consultation of the employers’ and workers’ organizations concerned.

The Committee observes that the Government may once again avail itself of the assistance of the Office for appropriate technical assistance.