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

Article 2 of the Convention. Inclusion of labour clauses in public contracts. With reference to its previous comment, the Committee notes that the Government essentially repeats the same explanations provided in its previous report and places emphasis on section 20(4) of Decree No. 2-99-1087 of 4 May 2000 approving the general administrative conditions applicable to contracts for work executed on behalf of the State, which provides that the wage paid to manual workers shall not be lower, for each category of worker, than the statutory minimum wage. The Government also refers to sections 25 and 26 of Decree No. 2-98-482 of 30 December 1998 which requires: (i) the registration of the bidder with the National Social Security Fund and the regular provision of wage declarations to the Fund; and (ii) the presentation of documentation issued by the Fund certifying that the bidder has complied with its requirements in relation to the Fund for his participation in the call for tenders.

In this respect, the Committee wishes to refer to paragraphs 40 and 44 of its General Survey of 2008 on labour clauses in public contracts, in which it emphasizes that the purpose of Article 2 of the Convention is to ensure that the workers employed by a contractor and paid indirectly out of public funds enjoy wages and conditions of labour which are at least as satisfactory as the wages and conditions of labour normally established for the type of work concerned, whether by collective agreement or otherwise, in the locality where the work is done. Labour costs are thus removed from competition between bidders and local standards are applied where they are higher than those of general application. This, in practice, means the most advantageous labour conditions for the workers concerned, including pay rates, overtime pay, and other working conditions, such as work hour limits and holiday entitlement, established in the industrial sector and geographical region in question. The concrete terms of this obligation incumbent on the selected bidder and any subcontractors are to be reflected in a standard contractual clause which has to be effectively enforced, notably through a system of specific sanctions.

The Committee also draws the Government’s attention to paragraph 118 of the same General Survey, in which it observes that obtaining labour clearance certificates before being allowed to tender for public contracts is not sufficient for compliance with the requirements of the Convention. In this respect, the Committee has consistently taken the view that the insertion of labour clauses in public contracts under the Convention goes beyond the aims of simple certification, as its purpose is to eliminate the negative effects of competitive tendering on the workers’ labour conditions. Certification offers some proof about tenderers’ past performance and law-abiding conduct, but carries no binding commitment with regard to prospective operations as labour clauses do. The Committee therefore urges the Government to take appropriate measures to ensure that full effect is given to the Convention by requiring the inclusion of the labour clauses envisaged by the Convention in all public contracts to which it is applicable.

Finally, with a view to assisting the Government in its efforts to give effect to the provisions of the Convention, the Committee attaches a copy of the Practical Guide on the Convention drawn up by the Office and based principally on the conclusions of the abovementioned General Survey. It also reminds the Government that it may, if it so wishes, seek the Office’s technical assistance.