Observación (CEACR) - Adopción: 2009, Publicación: 99ª reunión CIT (2010)

Article 2 of the Convention. Insertion of labour clauses in public contracts. Further to its previous observation, the Committee notes with regret to note that the Government is still not in a position to report any concrete progress in giving effect to the principal obligation of the Convention, i.e. the insertion of the labour clause prescribed by Article 2 in all public contracts falling within its scope. The Government refers to three different provisions of the Public Procurement Act (SG No. 28/06.04.2004) which transpose corresponding provisions of the EU public procurement directive 2004/18/EC but which bear no or little relationship to the specific requirements of the Convention. More concretely, sections 16c and 26 of the Public Procurement Act deal with situations where States may use procurement operations as a means to pursue broader public policy objectives such as environmental protection or the promotion of employment of vulnerable groups (e.g. persons with disabilities), whereas section 56 of the same Act requires tenderers to declare that in drawing up their offer they have taken into account existing regulations concerning minimum wage levels. As the Committee has pointed out in paragraphs 242 and 248 of its 2008 General Survey on labour clauses in public contracts, even though there is no contradiction between the requirements of ILO Convention No. 94 and the principles set out in the two EU public procurement directives, these directives do not specify a level of employment protection or the working conditions required in the performance of a contract as the Convention does. The Committee further refers to paragraph 46 of the same General Survey in which it observed that Convention No. 94 calls for the insertion of labour clauses of a very specific content which should not be confused with clauses related to equal remuneration and gender equality, such as those including affirmative action measures (e.g. measures to promote the employment of women or addressing discrimination through a system of quotas), or yet other clauses requiring compliance with core labour standards (e.g. those aimed at preventing the use of child labour and anti-union practices).

In view of the Government’s continued failure to implement the basic requirement of the Convention, the Committee wishes once again to draw attention to the following: (i) the rationale of the Convention is to ensure – through the insertion of specific labour clauses in all public contracts – that workers engaged in the execution of public contracts enjoy the most advantageous wage and other working conditions among those established by law, collective agreement or arbitration award for work of the same nature in the same district; (ii) since labour laws and regulations normally set out minimum standards which are susceptible of being improved through collective bargaining, it is evident that the mere fact that the general labour legislation applies also to public contracts is not sufficient in itself to ensure to the workers concerned the most advantageous pay and working conditions established for work of the same character in the district concerned; (iii) to ensure compliance with the terms of labour clauses, the Convention requires concrete measures for adequate publicity (posting of notices) and an adequate system of sanctions (withholding of contracts or withholding of payments) that go beyond the enforcement measures often provided for in the general labour legislation. The Committee therefore urges the Government to adopt without delay the necessary measures in order to give full effect to the requirements of the Convention and recalls that the Government may draw upon the advisory services of the Office to this effect.

Moreover, while noting the statistical information provided by the Government concerning the number of public contracts awarded in the period 2006–08, the Committee would be grateful if the Government would continue to communicate up to date information regarding the practical application of the Convention, including statistical data on the number of public contracts awarded during the reporting period, the approximate number of workers involved in their execution, copies of standard bidding documents, official documents such as annual activity reports of the Public Procurement Agency, etc.

Finally, the Committee attaches herewith a copy of the Practical Guide on Convention No. 94 which was prepared by the Office in September 2008 based on the conclusions of the aforementioned General Survey to help better understand the requirements of the Convention and ultimately improve their application in law and practice.