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Article 2 of the Convention. Insertion of labour clauses in public contracts. The Committee has been in receipt of General Circular No. 8 of the Minister of Finance dated 23 June 2008. It notes with interest that the Government has for the first time taken concrete steps to give effect to the core requirement of the Convention. According to the terms of the Circular, two new bidding terms are to be added to the provisions of the Public Tenders Law No. 89/1998: (i) workers engaged in the execution of the contract must receive wages and bonuses not lower than those received by workers carrying out similar work in the same governorate; and (ii) they must enjoy the hours of work and working conditions prevailing in the region, according to a general agreement or according to custom. In addition, the Circular draws the attention of all bodies concerned to the necessity to include in detail the above two bidding terms in public contracts and indicates that the Ministry of Manpower and Migration will be responsible for the implementation of the new provisions.

The Committee welcomes the adoption of General Circular No. 8/2008 of the Minister of Finance and understands that the Government has made use of the Office’s advisory services in this respect. However, it wishes to draw the Government’s attention to the following: first, in its current wording, the Circular does not make it sufficiently clear that the wages, hours of work and other working conditions of the workers concerned have to be aligned, as a minimum, to best local standards established through collective bargaining, arbitration or legislation – whichever is the most advantageous. The Committee refers, in this respect, to paragraph 103 of the General Survey of 2008 on labour clauses in public contracts in which it pointed out that conditions not less favourable than the three alternatives offered by the Convention (i.e. collective agreement, arbitration award, legislation) would in practice, in most instances, imply the best conditions of the three. Second, the terms of the labour clauses to be included in public contracts and any variations must be determined after consultation with the organizations of employers and workers concerned, as required by Article 2(3) of the Convention, and the Committee has not received any indication whether any such consultations were held before the adoption of General Circular No. 8/2008. Third, the Convention requires specific measures for the enforcement of the provisions of the labour clauses, including the posting of notices in conspicuous places at the workplaces concerned with a view to informing the workers of the conditions applicable to them (Article 4) and adequate sanctions such as the withholding of contracts or the withholding of payments (Article 5). The Committee therefore hopes that the Government will take additional steps to ensure the effective implementation of the Convention with regard to the points raised above. It also asks the Government to provide supplementary information, including copies of any newly adopted texts, on the measures taken by the Ministry of Manpower and Migration for the practical application of General Circular No. 8/2008. Moreover, the Committee would appreciate receiving sample copies of any recently issued tender documents or public contracts which have incorporated the new bidding terms provided for in the General Circular.

Finally, the Committee attaches herewith a copy of the Practical Guide on Convention No. 94 which was prepared by the Office in September 2008 based on the conclusions of the aforementioned General Survey to help better understand the requirements of the Convention and ultimately improve their application in law and practice.

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The Committee regrets the Government’s continued failure to give effect to the Convention and to effectively apply it in practice. More than 45 years after ratification, the Government has still to adopt implementing legislation providing for the insertion of labour clauses in public contracts. Despite the Government’s statement that it has replied to all queries raised in previous comments, the Committee is obliged once again to observe that the Labour Code cannot automatically guarantee to the workers employed for the execution of public contracts labour conditions which are not less favourable than whichever is the most favourable of the three alternatives provided for in the Convention, i.e. collective negotiation, arbitration or legislation. The general labour legislation prescribes minimum standards, such as wage levels, and does not necessarily reflect the actual working conditions of workers whereas the Convention requires workers engaged in the execution of public contracts to be paid the wage that is generally paid in practice rather than the minimum wage provided for in the legislation.

With a view to assisting the Government in its effort to better understand the aims of the Convention and adapt its national legislation accordingly, the Committee attaches herewith a copy of an Explanatory Note prepared by the International Labour Office to this effect. The Note includes also a model text illustrating one of several ways in which legislative conformity with the Convention may be ensured. The Committee draws the Government’s attention in this connection to the fact that the Convention does not necessarily call for the enactment of specific legislation, but it can also be applied by means of administrative instructions or circulars. The Committee asks the Government to take without further delay all the necessary measures in order to apply effectively the Convention in both law and practice. Finally, the Committee notes the Government’s request for technical assistance with a view to obtaining detailed explanations concerning the application of the Convention. The Committee trusts that the Office will respond favourably to this request and hopes that the Government will make good use of the Office’s advisory services so as to meet at last the requirements of the Convention.

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The Committee notes the Government’s report which essentially reproduces information communicated to the Office before. The Committee recalls that it has been commenting on the application of the Convention since its ratification by Egypt and regrets that the Government is once again unable to indicate any real progress in bringing its national legislation into conformity with the requirements of the Convention.  The Government makes renewed reference to section 79 of the new Labour Code of 2003 even though the Committee has already noted that this provision, as much as section 57 of the former Labour Code of 1981, does not suffice for the application of Article 2 of the Convention which explicitly requires the insertion of labour clauses in those public procurement contracts meeting the conditions specified in Article 1 of the Convention. The Committee further considers that sections 3, 5, 34, 35 and 76 of the new Labour Code to which reference is also made in the Government’s report are not strictly relevant to the subject matter of the Convention and therefore may not be regarded as giving effect to its provisions. The general principles set out in the Labour Code regarding minimum wage fixing, maximum working hours or occupational safety and health cannot automatically guarantee to the workers concerned labour conditions which are not less favourable than whichever is the most favourable of the three alternatives provided for in the Convention, i.e. collective negotiation, arbitration or legislation.

As the Committee has stated on a number of occasions, the legislation to which the Government refers in most cases lays down minimum standards, for instance as regards wage levels, and does not necessarily reflect the actual working conditions of workers. Thus, if the legislation lays down a minimum wage but workers in a particular profession are actually receiving higher wages, the Convention would require that any workers engaged in the execution of a public contract be entitled to receive the wage that is generally paid rather than the minimum wage prescribed in the legislation. In other terms, the application of the general labour legislation is not enough in itself to ensure the application of the Convention, inasmuch as the minimum standards fixed by law are often improved upon by means of collective agreement or otherwise.

Therefore, in the interest of maintaining a constructive dialogue, the Committee would appreciate if the Government would specify in its next report any concrete measures taken or contemplated to implement the Convention in law and practice, and recalls in this respect that the inclusion of labour clauses in all the public contracts covered by the Convention does not necessarily call for legislative enactment but may also be effected by means of administrative instructions or circulars.

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The Committee recalls its previous observations concerning the Government’s continued failure to provide for the insertion of labour clauses in public contracts in accordance with the provisions of the Convention. In its last report, the Government refers to the recently promulgated - but not yet entered into force - Labour Code No. 12 of 2003, section 79 of which provides that, if an employer entrusts another employer with one of his tasks or part thereof in the area of employment, the latter is under the obligation to treat equally his employees and the workers employed by the original employer. In the view of the Government, the new labour legislation is, by virtue of this provision alone, in conformity with the requirements of the Convention. While taking note of the Government’s statement, the Committee regrets that, despite its repeated comments, no real progress has been made in the application of the Convention. The provision of section 79 of the new Labour Code, which parenthetically is identical to that of section 57 of the current Labour Code No. 137 of 1981, bears little relevance to the obligation arising from Article 2 of the Convention for the insertion of standard labour clauses in those public contracts meeting the conditions specified in Article 1 of the Convention. The Committee has pointed out on several occasions that section 57 of the Labour Code concerns the equality of treatment between a subcontractor’s own workers and those of the main contractor but cannot guarantee to the workers concerned wages and labour conditions at least as good as those normally observed for the kind of work in question, whether determined by collective agreement or otherwise. In this situation the Committee once again asks the Government to take all necessary measures without further delay to bring its national law and practice into conformity with the clear terms and objectives of the Convention.

[The Government is asked to report in detail in 2004.]

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The Committee notes the Government’s report and the adoption of the Orders of the Minister of State for Administrative Development, No. 24 of 1997, concerning the employment of national experts and No. 25 of 1997, concerning the employment of temporary workers. The Committee also notes that in reply to its previous observation the Government states that the labour relations of employees in the state administrative system are governed by the provisions of Act No. 47 of 1978 on civilian employees of the State. It notes, however, that these texts contain no provisions on labour clauses in public contracts and so are irrelevant to the objectives of this Convention.

Consequently, the Committee is bound to point out, as it did in its previous comments, the need for public contracts as defined in Article 1 of the Convention to provide for clauses which ensure to the workers concerned, wages, hours of work and other conditions of labour which are not less favourable than those established for work of the same character in the trade or industry concerned in the district where the work is carried on, either by collective agreement, arbitration award or by national laws or regulations, in accordance with Article 2, paragraph 1.

Pointing out once again that it has been commenting on the application of this Convention in Egypt for 40 years, the Committee urges the Government to take steps to ensure that labour clauses are included in public contracts, in accordance with the provisions of the Convention, and to inform the Committee of any progress in this respect in its next report.

[The Government is asked to report in detail in 2003.]

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The Committee notes that the Government’s report contains no reply to previous comments. It must therefore repeat its previous observation which reads as follows:

Further to its previous observation, the Committee notes the Government’s repeated reference to section 57 of the Labour Code (Act No. 137 of 1981) for the application of Article 2 of the Convention.

The Committee once again points out that the requirement of the Convention under Article 2 is to ensure the insertion of a labour clause in public contracts so as to guarantee to the workers employed by the contractor, the prevailing labour conditions which have been established in any of the three ways specified in Article 2(1), items (a), (b) and (c). The Committee also recalls that these three items do not stipulate the manner in which the Convention should be applied. The principal aim of a labour clause is to protect fair conditions of labour from the consequences of competitive practice of tendering for a public contract, in which firms tendering for a public contract may feel the temptation to calculate labour costs at a level lower than the prevailing conditions. In addition, the provision of penalties in the labour clauses, such as the withholding of contracts, makes it possible to impose effective sanctions directly in case of violations.

The Committee recalls that section 57 of the Labour Code concerns the equality of treatment between a subcontractor’s own workers and those of the employer. In the case of a public contract, for example, for the construction of some public works, when there is no employee of the public authority (the employer) engaged in construction work, "the equality of treatment" cannot guarantee any protection for the employees of the subcontractor. Therefore, this section 57 does not ensure the above-mentioned purposes of labour clauses in public contracts, and does not suffice for the application of Article 2 of the Convention.

The Committee recalls that the Government once indicated in its earlier report certain actions taken by the Central Body for Management and Administration to circulate instructions that a clause should be included in all public contracts in order to guarantee to the workers concerned conditions of labour not less favourable than those of other workers performing the same work. The Committee notes with regret that no further information has been supplied in this regard.

Recalling that it has been commenting on the application on the Convention since its ratification by Egypt, the Committee again expresses the hope that the Government will take appropriate measures (whether by way of legislation or administrative instructions) to provide for the insertion of a labour clause in public contracts in accordance with the provisions of the Convention.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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Further to its previous observation, the Committee notes the Government's repeated reference to section 57 of the Labour Code (Act No. 137 of 1981) for the application of Article 2 of the Convention.

The Committee once again points out that the requirement of the Convention under Article 2 is to ensure the insertion of a labour clause in public contracts so as to guarantee to the workers employed by the contractor, the prevailing labour conditions which have been established in any of the three ways specified in Article 2(1), items (a), (b) and (c). The Committee also recalls that these three items do not stipulate the manner in which the Convention should be applied. The principal aim of a labour clause is to protect fair conditions of labour from the consequences of competitive practice of tendering for a public contract, in which firms tendering for a public contract may feel the temptation to calculate labour costs at a level lower than the prevailing conditions. In addition, the provision of penalties in the labour clauses, such as the withholding of contracts, makes it possible to impose effective sanctions directly in case of violations.

The Committee recalls that section 57 of the Labour Code concerns the equality of treatment between a subcontractor's own workers and those of the employer. In the case of a public contract, for example, for the construction of some public works, when there is no employee of the public authority (the employer) engaged in construction work, "the equality of treatment" cannot guarantee any protection for the employees of the subcontractor. Therefore, this section 57 does not ensure the above-mentioned purposes of labour clauses in public contracts, and does not suffice for the application of Article 2 of the Convention.

The Committee recalls that the Government once indicated in its earlier report certain actions taken by the Central Body for Management and Administration to circulate instructions that a clause should be included in all public contracts in order to guarantee to the workers concerned conditions of labour not less favourable than those of other workers performing the same work. The Committee notes with regret that no further information has been supplied in this regard.

Recalling that it has been commenting on the application on the Convention since its ratification by Egypt, the Committee again expresses the hope that the Government will take appropriate measures (whether by way of legislation or administrative instructions) to provide for the insertion of a labour clause in public contracts in accordance with the provisions of the Convention.

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Further to its previous observation, the Committee notes the Government's repeated reference to section 57 of the Labour Code (Act No. 137 of 1981) for the application of Article 2 of the Convention. It also notes the Government's indication that a draft Labour Code is under preparation to amend provisions concerning collective bargaining and collective agreements. The Committee had previously noted that section 57 did not suffice for the application of Article 2.

The Committee once again points out that the requirement of the Convention under Article 2 is to ensure the insertion of a labour clause in public contracts so as to guarantee to the workers employed by the contractor, the prevailing labour conditions which have been established in any of the three ways there specified. The principal aim of a labour clause is to protect fair conditions of labour from the consequences of competitive practice of tendering for a public contract. The Committee recalls that section 57 of the Labour Code concerns the equality of treatment between a subcontractor's own workers and those of the employer. Therefore, it does not ensure the above-mentioned purpose of labour clauses in public contracts.

The Committee recalls that the Government once indicated in its earlier report certain actions taken by the Central Body for Management and Administration to circulate instructions that a clause should be included in all public contracts in order to guarantee to the workers concerned conditions of labour not less favourable than those of other workers performing the same work. The Committee notes with regret that no further information has been supplied in this regard.

Recalling that it has been commenting on the application of the Convention since its ratification by Egypt, the Committee again expresses the hope that the Government will take appropriate measures (whether by way of legislation or administrative instructions) to provide for the insertion of a labour clause in public contracts in accordance with the provisions of the Convention.

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The Committee has been pointing out in its comments for a number of years that the application of the general labour legislation to contracts of employment does not suffice for the application of Article 2 of the Convention. It notes that no measures have been taken to give effect to it.

The Government once indicated in its earlier reports certain actions to circulate instructions that a clause should be included in all public contracts in order to guarantee to the workers concerned conditions of labour not less favourable than those of other workers performing the same work. The Committee notes that no further information has been supplied in this regard.

In the last report, the Government again refers to section 57 of the Labour Code (No. 137 of 1981) and to section 1 of the Act No. 48 of 1978 concerning workers in the public sector. The Government considers that, because these provisions are applied, it is unnecessary to provide for a labour clause.

The Committee points out that items (a), (b) and (c) of Article 2, paragraph 1, do not stipulate the manner in which the Convention should be applied. The requirement of the Convention under this provision is to ensure to the workers employed by a contractor, the prevailing labour conditions which have been established in either of these three ways. And, as a method to attain this purpose, the Convention provides for the insertion of a labour clause in public contracts. The principal aim of a labour clause is to protect fair conditions of labour from the consequences of competitive practice of tendering for a public contract. The Committee recalls that section 57 of the Labour Code concerns the equality of treatment between a subcontractor's own workers and those of the employer. Section 1 of Act No. 48 of 1978 provides that the Labour Code remains applicable in all cases not covered by the Act. Neither of these provisions can ensure the above-mentioned purpose of labour clauses in public contracts. The Committee would again point out that the application of the general labour legislation is not enough on its own to ensure the application of the Convention, in as much as the minimum standards fixed by law are often improved upon by means of collective agreement or otherwise. The Committee would also draw the Government's attention to the provision of Article 2, paragraph 3, calling for consultation with organizations of employers and workers in determining the terms of clauses to be included. The Committee hopes that necessary measures will soon be taken to ensure the insertion of a labour clause in public contracts in accordance with the provisions of the Convention.

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Article 2 of the Convention. The Committee notes the Government's statement in its report that the public contracts comply with the legal rules set forth by the Egyptian legislature and which are provided in the Convention. It is obliged to point out, as it repeatedly did in its earlier comments, that the protection provided through labour clauses in public contracts cannot normally be ensured only through the application of the general labour standards.

The Committee recalls that the Government indicated in its earlier report that it had requested the Central Body for Management and Administration to supply it with the text of the instructions under which a clause has to be included in all public contracts guaranteeing to workers concerned conditions of work not less favourable than those of other workers performing the same work. The Committee once again requests the Government to supply a copy of these instructions and copies of contracts including this clause in compliance with these instructions.

Point V of the report form. The Committee also requests the Government to supply general information on the manner in which the Convention is applied.

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Article 2 of the Convention. With reference to its previous comments, the Committee notes that the Government has requested the Central Body for Management and Administration to supply it with the text of the instructions under which a clause has to be included in all public contracts guaranteeing to workers engaged under those contracts conditions of work not less favourable than those of other workers performing the same work. The Committee also notes the explanations given by the Government concerning the content of certain public contracts and the application of the provisions of the Labour Code in the event of these contracts not providing the necessary guarantees for workers.

The Committee hopes that the Government will be able to supply a copy of these instructions in the near future and copies of contracts including this clause.

Point V of the report form. The Committee also requests the Government to supply general information on the manner in which the Convention is applied including, for instance, information on the number of workers covered by public contracts, extracts from the reports of the inspection services and information on the number and nature of the violations that have been reported.

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The Committee notes with interest the information supplied by the Government indicating once again that the Central Body for Management and Administration has circulated to all state services instructions that a clause be included in all public contracts guaranteeing to workers engaged under those contracts conditions of work not less favourable than those of other workers performing the same work. The Government also indicates that a letter has been transmitted to the Minister of Administrative Development requesting him to issue instructions to all state services that the above clauses be included. The Committee welcomes the action taken by the Government in response to its comments concerning the application of the Convention and, in particular, of Article 2 of the Convention as set out above.

The Committee would be grateful if the Government would indicate in its next report whether contracts concluded by the state services have included the above clause. It also requests the Government to supply a copy of the instructions transmitted by the Central Body for Administration to the state services and copies of contracts which have included the above clause.