Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

The Committee notes with interest the Government’s first detailed report on the application of the Convention and wishes to draw its attention to the following points.

Article 2(1) of the Convention. Insertion of labour clauses. The Committee has been unable to find any legislative provisions in the Civil Code of 1998, the Public Procurement Act of 2004, or the Labour Code of 2004 giving effect to the core requirement of the Convention, i.e. the insertion of labour clauses in public contracts ensuring to the workers engaged in the execution of public contracts wages, hours of work and other working conditions not less favourable than those locally established for work of the same character in the industry concerned by either collective agreement, arbitration award or national laws or regulations. The Committee notes, in particular, that the only provision in these texts which appears to address labour matters with relation to the public procurement process is to be found in section 5(2)(c) of the Public Procurement Act which provides that as a pre-qualification criterion, bidders must not have any outstanding debts to tax authorities and social security institutions. The Committee wishes to refer, in this respect, to paragraphs 117–118 of the 2008 General Survey on labour clauses in public contracts in which it pointed out that the Convention does not relate to some general eligibility criteria of individuals or enterprises bidding for public contracts but requires a labour clause to be expressly included in the actual contract that is finally signed by the procuring entity and the selected contractor. Similarly, certification may offer some proof about tenderers’ past performance and law-abiding conduct but carries no binding commitment with regard to prospective operations as labour clauses do. Moreover, the Committee wishes to recall paragraph 176 of the same General Survey in which it concluded that because of the very simple structure of the Convention, that is the fact that all its provisions are articulated around, and directly linked to, the core requirement of Article 2(1), i.e. the insertion of labour clauses ensuring the most advantageous working conditions to the workers concerned, in case the national legislation makes no provision for the specific type of labour clause and in the specific terms set out in Article 2(1) of the Convention, the application of the remaining Articles 3, 4 and 5 becomes without object and cannot be considered separately. Noting therefore that the public procurement legislation, as well as the general labour legislation, appear to contain no provision implementing the principal obligation of the Convention, the Committee requests the Government to specify how it has given effect to this Article of the Convention in law and practice and to transmit copies of any relevant texts which may not have been communicated previously.

In addition, the Committee notes that under section 16(2)(d) of the Public Procurement Act, the authorized body (which together with the State Procurement Agency monitor and implement the applicable procurement rules) is responsible for approving model document forms used in procurement procedure. The Committee therefore requests the Government to indicate whether any standard bidding documents containing labour clauses have so far been issued and are currently in use, and if so, to transmit copies. The Committee recalls that the Government may wish to consider drawing upon the technical assistance and expert advice of the International Labour Office with a view to bringing its legislation into full conformity with the requirements of the Convention.

For all useful purposes, the Committee attaches herewith a copy of a Practical Guide, prepared by the Office principally on the basis of the General Survey of 2008 on Convention No. 94, to help better understand the requirements of the Convention and ultimately improve its application in law.