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

Article 2 of the Convention. Insertion of labour clauses in public contracts. The Committee has been commenting for a number of years on the absence of any laws or regulations implementing the provisions of the Convention. In its last report, the Government refers to new Contracts and Standard Bidding Documents and Procurement Regulations which are soon to be issued and which are expected to cover labour aspects of public procurement operations. The Committee would appreciate receiving a copy of these documents as soon as they are finalized.

The Committee notes that the Revised Handbook of Public Sector Procurement Procedures (RHPP) was issued in December 2008 and has been in use for an interim period pending formal approval by the Cabinet. It notes, however, that the RHPP does not address working conditions of workers employed under public contracts, except for subsection No. S-2120, which provides that deviations from the bidding requirements, including non-compliance with local regulations relating to labour, import taxes and duties, which do not appear at first sight to provide immediate grounds for bid rejection, may be considered further in the evaluation process. Noting that the Government is still not in a position to report any concrete progress as regards the application of the Convention, 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 indicated that the purpose of the Convention is to ensure that the workers employed for the execution of public contracts enjoy wages and other working conditions at least as satisfactory as those normally established for the type of work concerned, whether they are established by collective agreement or otherwise, in the locality where the work is done. The Convention requires that this be done through the insertion of appropriate labour clauses in public contracts. This has the effect of setting as minimum conditions for the contract standards that are already established within the locality. The further aim is that local standards higher than those of general application (this in practice means the most advantageous labour conditions) should be applied, where they exist. In fact, the type of labour clauses prescribed by this Article of the Convention seek to oblige the contractor to apply the most advantageous pay rates, including 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.

Finally, with a view to assisting the Government in its efforts to give effect to the Convention, the Committee attaches herewith a copy of the Practical Guide on the Convention prepared by the Office in September 2008 and based principally on the findings of the abovementioned General Survey. It hopes that the Government will take the necessary action without further delay in order to bring the national legislation into conformity with the Convention and recalls that the Government may draw on the expert advice of the Office to this effect.