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

Article 1 of the Convention. Scope of application. The Committee notes the information provided by the Government in its report about the new policy on sustainable procurement, in particular the policy decision that by 2010 all procurement operations of central government and most procurement operations of local and provincial governments should be environmentally and socially sustainable. Under this initiative, the Government intends to request suppliers to monitor the whole production chain and ensure that the core labour standards contained in the eight ILO fundamental Conventions are fully adhered to. The Government adds that in special cases, such as the Fair Wear Foundation, where multi-stakeholder initiatives can verify compliance, the sustainable procurement policy may not be limited to core labour standards but may also involve other important ILO standards on wages, working hours and occupational safety and health. Moreover, the Government seeks some clarification as to whether the Convention, which was drafted long before the times of globalization, can be deemed to create obligations with respect to labour conditions prevailing outside the borders of the contracting authority.

In this respect, the Committee refers to paragraphs 269–280 of its 2008 General Survey on labour clauses in public contracts where it addressed the question of cross-border procurement and global supply chains in connection with the scope of the Convention. The Committee recalled that while the Convention is silent on this point, the dominant focus at the time of adoption was clearly work carried out within the borders of the State of the contracting entity. This does not mean, however, that all contracts with a transnational dimension are excluded from the coverage of the Convention; in the case of contracts involving the use of foreign workers brought for the purpose of the contract, labour clauses would apply. On the contrary, work done outside the contracting State is, in principle, not covered by the provisions of the Convention. The Committee also noted that the issue of labour standards applied in transnational supply chains finally comes down to the understanding given by national authorities to the idea of subcontractors and that, should a member State desire to do so, contractual labour clause obligations could be applied across borders. As regards the relationship between Convention No. 94 and the 1998 ILO Declaration on Fundamental Principles and Rights at Work, the Committee suggested that the two sets of principles are complementary and stressed the importance of Convention No. 94 as a possible mechanism for promoting core labour standards. As indicated in paragraph 314 of the General Survey, at a time when the ILO core labour standards and the 1998 ILO Declaration are gaining prominence in the field of international human rights law and international trade law, Convention No. 94 offers a unique opportunity and a normative platform with a view to building a comprehensive standard for the promotion of decent labour conditions in public contracts. The Committee would appreciate if the Government would continue to provide, in future reports, up to date information concerning the implementation of the new policy on sustainable procurement and the results obtained.

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.