Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes with regret that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

Article 2 of the Convention. Insertion of labour clauses in public contracts. The Committee notes that the Government referred to Technical Note No. 0138/2002 and reiterated the view that there was no need to insert labour clauses into public contracts because the workers’ rights were protected by the general labour legislation, by the terms of the individual contracts and by the monitoring activities of the labour inspection services. The Committee would appreciate receiving a copy of the above technical note.

In view of the Government’s continued failure to implement the basic requirements of the Convention, the Committee wishes once again to draw attention to the following: (i) the rationale of the Convention is to ensure – through the insertion of specific labour clauses in all public contracts – that workers engaged in the execution of public contracts enjoy wage and other working conditions not less favourable than those established by law, collective agreement or arbitration award for work of the same nature in the same district; (ii) since labour laws and regulations normally set out minimum standards which are susceptible to being improved through collective bargaining, it is evident that the mere fact that the general labour legislation applies also to public contracts is not sufficient in itself to ensure the most advantageous pay and working conditions to the workers concerned; and (iii) to ensure compliance with the terms of labour clauses, the Convention requires concrete measures for adequate publicity (posting of notices) and an adequate system of sanctions (withholding of contracts or withholding of payments) that go beyond the enforcement measures often provided for in the general labour legislation.

The Committee has been pointing out that, even though the public procurement legislation, especially section 44 of Act No. 8666 of 1993 on public tendering and Normative Instruction No. 8 of 1994, may be considered to give partial effect to the requirements of the Convention, i.e. as regards the level of wages of the workers employed by public contractors, additional measures are needed in order to attain full legislative conformity with all the provisions of the Convention. The Committee recalls that the Government may avail itself of the technical assistance and expert advice of the Office should it so wish with a view to addressing the concerns outlined above.

Moreover, the Committee notes that the Government has not supplied in recent years any information of a practical nature concerning the application of the Convention. It therefore asks the Government to make every possible effort to collect and transmit, in accordance with Part V of the report form, up to date information on the average number of public contracts granted annually and the approximate number of workers engaged in their execution, inspection results showing the number and nature of contraventions observed, extracts from official documents or studies – such as activity reports of the Department of Logistics and General Services or of the Inspector of Contracts (fiscal de contrato) – addressing issues connected with the social dimensions of public procurement, as well as any other particulars which would enable the Committee to have a clear understanding of the manner in which the Convention is applied in practice.

Finally, the Committee takes this opportunity to refer to its 2008 General Survey on labour clauses in public contracts 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 Committee hopes that the Government will make every effort to take the necessary action in the very near future.