Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee recalls that for the last 35 years it has been requesting that the General Regulations for the execution and maintenance of works, to which reference was first made in 1968 and which contained labour clauses in line with the Convention, be extended to public contracts other than those for public works. However, the Committee never received any indication of concrete progress made in this respect. On the contrary, the Committee notes that in recent reports the Government refers to the Labour Act No. 163 of 1963 as being the only legislation applicable to employment and labour matters arising in the context of public contracts.

In this connection, the Committee is obliged to point out that the fact that the general labour legislation is applicable to workers engaged in the execution of public contracts does not in any way absolve the Government from its obligation to provide for the insertion of labour clauses in public contracts falling within the scope of the Convention. Such clauses seek to ensure more favourable employment and working conditions to workers in case the labour legislation only establishes minimum standards that may be improved through collective negotiation. Moreover, even if collective agreements were applicable to workers engaged in the execution of public contracts, the implementation of the Convention would still remain relevant in so far as it affords additional protection to the workers concerned. For example, the Convention requires the adoption by the competent authorities of measures, such as the advertisement of specifications, to ensure that tenderers have advance knowledge of the terms of the labour clauses. It also requires notices to be posted in conspicuous places at the workplace to inform workers of the conditions of work applicable to them. Finally, it provides for sanctions in the event of non-compliance with the terms of labour clauses, such as the withholding of contracts or the withholding of payments due to contractors, which may be more directly effective than those prescribed by the general labour legislation. The Committee therefore requests the Government to take the necessary measures to ensure compliance with the requirements of the Convention both in law and practice.

In addition, the Committee would be grateful if the Government would supply up to date information on the practical application of the Convention including, for instance, copies of public contracts and standard tender documents, statistics on the approximate number of public contracts awarded and the number of workers involved in their execution as well as any other particulars bearing on the operation of the country’s public procurement system.

The Committee understands that the Public Sector Management Strengthening Programme is under way with the support and financing of the Inter-American Development Bank, and that new procurement regulatory framework and procedures are expected to be drafted shortly. It requests the Government to keep it informed of all future developments regarding the reform of public procurement legislation and hopes that the Government will not fail to take due account of the Committee’s comments, eventually drawing upon the expert advice and technical assistance of the International Labour Office.

Finally, the Committee seizes this opportunity to refer to this year’s General Survey which contains an overview of public procurement practices and procedures in so far as labour conditions are concerned and makes a global assessment of the impact and present-day relevance of Convention No. 94.

[The Government is asked to reply in detail to the present comments in 2008.]