Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

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.