Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes the Specifications of Public Tenders (Model Articles and Conditions) supplied with the Government's report and points out the following:

1. The Government refers in its report to "Chapter III of the said Specifications on Special Conditions, Point 9 Legal Relations and Responsibilities, 9.1 Compliance with the Laws", which requires the contractor's compliance with all the laws and regulations concerned, including the Labour Code. The Committee notes this information and points out that the obligation for the contractors to comply with the legislative provisions is not sufficient to give effect to the Convention, since social or labour legislation generally provides for minimum standards only, and parties are free to agree, collectively or individually, upon more favourable conditions of work. It recalls that the purpose of the inclusion of appropriate labour clauses in public contracts (as required by Article 2 of the Convention) is to ensure that the workers concerned enjoy such higher conditions of work (including wages) as may have been established for work of the same character by collective agreements or otherwise. The Committee therefore requests the Government to indicate whether measures have been taken or envisaged to modify the terms of the above-mentioned "Specifications" in accordance with this requirement of the Convention. It also refers to Article 2(3) which calls for consultation with the organisations of employers and workers concerned before the determination or modification of the terms of the clauses to be included in contracts.

2. The Committee notes with interest the model "Guarantee of Payment" included in the above-mentioned "Specifications", which ensures the payment by the guarantor company of wages due to the workers employed for the public works concerned. It notes however that this model is designed to set up the maximum amount of guarantee and provides in its paragraph 9 that payment of sums due to the workers should be done in proportion, if their total exceeds the prescribed maximum amount of guarantee, thus giving only partial effect to Article 5(2) of the Convention.

Meanwhile the Committee notes that Point 11.15 "Final Payment" of Chapter III of the Specifications requires, before the final payment under the contract, the presentation by the contractor of proof which shows that all the cost of workforce has been recompensed on behalf of the State (item 5). It requests the Government to indicate whether this covers the payment of wages to all the workers concerned whether or not they are in an employment relation with the State.

3. The Committee notes that, while some parts of the said Specifications are written in such terms as applicable to all public tenders, other parts including the "Guarantee of Payment" noted above provide model articles and conditions in relation only to public works ("LA OBRA" as defined by Point 1.39 of Chapter III). The Committee points out that the measures to give effect to the Convention should be taken not only regarding contracts for the construction, repair or improvement of public works but also in respect of contracts for supplies or equipment and the performance of services (Article 1(1)(c)(ii) and (iii)).

4. The Committee notes, in relation to Article 4(a)(iii) of the Convention requiring the posting of notices with a view to informing the workers of their conditions of work, that Point 13 "Posters or Plates" of Chapter III of the Specifications requires the contractor to place posters at workplaces following certain specifications and the model to be provided by the Ministry of Public Works. Please indicate whether such posters simply state the fact that the work is financed by the Government or the said model poster contains also notices of the conditions of work for workers.