Demande directe (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

Repetition

Article 2 of the Convention. Insertion of labour clauses in public contracts. The Committee notes the Government’s explanations that, in the absence of industry-level collective agreements in the national context, the Convention is understood as requiring contractors engaged in the execution of public contracts to provide their workers with wages and other conditions of labour not less favourable than those established by law. In this regard, the Government conducts audits on employers to ensure that they provide conditions of work which are not less favourable than those stipulated under the Employment Act, and it reserves the right to terminate the contract in situations where the standards specified in the law are not met.

The Government further explains that, in demonstration of its commitment not only to outsource responsibly but also to adopt best practices in doing so, all public contracts for cleaning and security services are awarded only to cleaning companies with at least a “Clean Mark Silver Award” under the National Environment Agency’s enhanced accreditation scheme and to security agencies that are graded “A” or “B” by the Security Industry Regulatory Department. These accreditation and grading schemes recognize companies that deliver high standards of service, such as through training of workers or exercise of good employment practices. The Government adds that it has reviewed and enhanced the criteria for cleaning services accreditation by introducing, among other criteria, a requirement that cleaners employed in accredited companies receive wages that are not less favourable than existing collective agreements, or in the absence of collective agreements, prevailing market rates. Accredited cleaning companies are also required to ensure that they do not default on any labour court orders which may have been issued in the preceding 12 months of accreditation. The Government further indicates that it is also reviewing the employment-related criteria in the security services grading scheme.

With respect to the points raised in the Government’s report, the Committee wishes to recall, first, that as it has clarified in paragraph 112 of its 2008 General Survey on labour clauses in public contracts, in those countries where the employment conditions which are laid down in the national legislation constitute both maximum and minimum standards, which may not be exceeded by more favourable collective agreements or arbitration awards, a reference in the public contracts to the relevant provisions of the national legislation would be sufficient for the purpose of giving effect to the Convention. In situations, therefore, where no arrangements exist for the effective regulation of wages and other employment conditions through collective bargaining, the Convention may not be deemed to require contractors to do more than to merely conform to the national labour legislation.

However, the Committee notes that under the revised accreditation scheme for cleaning services, cleaning companies may not aspire to obtain contracts with the Government unless they can show that the wage levels for cleaners are aligned with those in existing collective agreements. The Committee considers that this new accreditation prerequisite essentially reflects the requirement set out in Article 2 of the Convention (at least as far as wage rates are concerned), and hopes that similar conditions will be applied to all other public procurement operations whether for works, goods or services. The Committee accordingly requests the Government to take all appropriate measures to ensure that, either through a system of accreditation such as that used for cleaning companies or other method of screening tenderers, all public contracts falling within the scope of the Convention are awarded only to enterprises (including any subcontractors) which guarantee to their workers wages, hours of work and other conditions of labour (for example, holiday and sick leave entitlements) not less favourable than those set out in existing collective agreements or generally observed in the same sector or industry by employers in a similar situation. The Committee also requests the Government to transmit copies of the legal text(s) regulating the accreditation and grading systems of cleaning and security services.