Demande directe (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

The Committee recalls its previous request in which it noted that the Presidential Decree No. 02-250 of 24 July 2002 on public contracts regulations does not make explicit provision for labour clauses ensuring to the workers concerned wages, hours of work and other labour conditions which are not less favourable than those established by collective agreement, arbitration award or national laws for work of the same character in the same area, and therefore the national legislation has not as yet given effect to the requirement of Article 2 of the Convention. The Committee has further requested the Government to provide copy of the standard specifications, such as general administrative clauses, used in competitive bidding, as provided for in section 9(1) of the abovementioned Decree. In its reply, the Government states that such specifications or copies of public contracts containing labour clauses are unavailable and adds that, in any event, the clauses contained in public contracts may not run counter to the provisions of the general labour legislation.

The Committee takes this opportunity to recall that the mere fact of the national legislation being applicable to all workers, including those employed in public works, does not release ratifying States from the obligation to draft and insert into public contracts labour clauses which are fully consistent with the letter and the spirit of the Convention. The rationale behind the Convention’s basic rule is that in making contractual commitments for the expenditure of State funds public authorities should avoid social dumping and set a standard of fairness by not applying conditions that are less favourable than the most favourable practised in the area and the sector concerned. Therefore, the sole reference to legislation that only provides for minimum standards may not be sufficient, if more favourable conditions flow from collective agreements, other recognized machinery of negotiation or arbitration.

The Committee hopes that the Government will make every effort to bring the national legislation into full conformity with the Convention and recalls that the technical assistance of the Office is available in this regard should the Government so desire.