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Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Türkiye (RATIFICATION: 1961)

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Observation

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Articles 1 and 2 of the Convention. Insertion of labour clauses in public contracts. The Committee once again notes that, contrary to the practice followed with respect to public procurement for construction work and services, there is no provision in Türkiye’s public procurement legislation to ensure the insertion of labour clauses in public contracts for the manufacture and assembly of materials or equipment (with the exception of section 16.5 of the Annex to the Regulation on Implementation of Goods Procurement, which requires the contractor to take all safety precautions for the duration of the work as required by laws, regulations and directives for the workers’ health and safety). In this context, the Committee notes the Government’s indication that section 16.1.2 of the Standard Form of Contract for the Procurement of Goods requires the Contractor to comply with Law No. 4735 on public procurement contracts and other applicable laws, statutes or regulations and similar legislation during the implementation phase of the contract. The Committee nevertheless notes that, despite this reference to compliance with national legislation in the Standard Forms of Contracts for the Procurement of Goods, there is still no provision in the public procurement legislation which requires the insertion in public contracts of the labour clauses specified in Article 2 of the Convention, including for construction work and services. In its previous comments, initially made in 2013, the Committee recalled that it had repeatedly requested the Government to take all necessary measures to give full effect to the Convention and to provide detailed information in future reports on any progress made in this regard. The Committee notes with regret that the Convention is still not given full effect in either law or practice. In this context, the Committee draws the Government’s attention to paragraphs 40–41 of its 2008 General Survey on labour clauses in public contracts, which clarifies that: “(…) the essential purpose 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 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. Labour costs are thus removed from competition between bidders. The further aim is that local standards higher than those of general application should be applied, where they exist. Therefore, clauses within public contracts that restate the applicability and binding nature of national laws, including those dealing with wages, hours of work and other conditions of employment, are not sufficient to meet the requirements of the Convention”. The Committee also notes that, while section 7 of Law No. 4735 on public procurement contracts enumerates the clauses to be incorporated in public procurement contracts, it does not provide for the insertion of the labour clauses required under the Convention. In this respect, the Committee recalls that the Convention “calls for the insertion of labour clauses of a very specific content. In addition, States may also include in public contracts clauses related to equal remuneration and equality, as expressly required by Convention No. 100, read with Recommendation No. 90, and Convention No. 111, read with Recommendation No. 111. Such clauses could include, for example, affirmative action measures, such as measures to promote the employment of women or of vulnerable groups, or addressing systemic discrimination through a system of quotas. In addition, Convention No. 94 does not preclude the insertion of other labour clauses, such as those requiring compliance with other core labour standards, as reflected in the ILO’s fundamental Conventions, including those aimed, for example, at preventing the use of child labour and anti-union practices. Such clauses play an important role in the protection of labour rights and enhance the application of the principles contained in Convention No. 94.” (2008 General Survey, paragraph 46.) The Committee recalls yet again that this is a long-standing issue on which little progress has been made over the years. It therefore urges the Government to take the necessary measures without delay to bring its national legislation into full conformity with the requirements of the Convention.

Article 2(4). Ensuring that tenderers are aware of labour clauses. The Committee notes the information provided by the Government in reply to its previous request concerning the inclusion of communication of the labour clauses to the tenders. The Committee takes note of this information, which responds to its previous request.

Application of the Convention in practice. The Committee notes that the information supplied by the Government does not respond to its request for specific information on the practical application of the Convention, given that the legislation referenced by the Government relates to the role of labour inspection in ensuring the application of national labour legislation generally, rather than to the application of the provisions of the Convention. The Committee therefore reiterates its request that the Government provide detailed up-to-date information on the practical application of the Convention, and copies of official documents or studies on matters dealt with in the Convention. The Committee also urges the Government to provide extracts from public procurement contracts showing the inclusion of the labour clauses required under Article 2 of the Convention.