Observación (CEACR) - Adopción: 2010, Publicación: 100ª reunión CIT (2011)

Article 2 of the Convention. Insertion of labour clauses in public contracts. The Committee has been commenting for numerous years on the Government’s persistent failure to adopt implementing legislation which would give effect to the basic requirement of the Convention, that is, the insertion of labour clauses in public contracts to ensure that the workers engaged in the execution of public procurement contracts (whether for works, goods or services) enjoy wages and other working conditions not less favourable than those fixed by collective agreements, arbitration awards or national laws or regulations for work of the same character in the same area. The Committee notes with regret that in its last report the Government does not provide any new information nor does it appear prepared to take any measures in order to bring its public procurement legislation into line with the letter and the spirit of the Convention. Under the circumstances, the Committee is bound to reiterate that the mere fact that the Labour Code and its Omnibus Rules Implementing the Code apply to workers employed in the public contracts is not sufficient to meet the level of protection required by Article 2 of the Convention. As regards other legal instruments to which the Government has been referring in its reports, these mostly seek to regulate the bidding and selection process in public procurement, but have no direct bearing on the matters dealt with by the Convention. Finally, Republic Act No. 6685, which seeks to promote the employment of local manpower, does not satisfy the requirements of the Convention either. The Committee recalls, in this respect, that, although the Convention requires the insertion of labour clauses covering wages, hours of work and other working conditions in all public contracts to which it applies, it does not preclude the application of other social criteria at either the pre-selection or the post-award stage of the tendering process, for instance, affirmative action measures with a view to promoting the employment of women or vulnerable groups or pursuing broader social policy objectives such as the promotion of employment for long-term unemployed, young persons, disabled or migrant workers, etc. The requirement in public contracts that such additional criteria be satisfied does not relieve the Government of its duty to include clauses ensuring to the workers the conditions prescribed by the Convention. The Committee therefore once again urges the Government to adopt all necessary measures without further delay in order to give full effect to the Convention. To this effect, the Government may draw upon the technical assistance of the Office and may also make use of the Committee’s General Survey of 2008 on labour clauses in public contracts and of the Office’s Practical Guide, copies of which have previously been transmitted to the Government.

[The Government is asked to reply in detail to the present comments in 2012.]