Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 2, paragraph 1, of the Convention. Inclusion of labour clauses in public contracts. The Committee notes the information provided by the Government on Decree No. 475/005 of 14 November 2005 and Act No. 18.098 of 12 January 2007. It notes that, according to the Government, some of the general conditions of contracts refer simultaneously to both these texts and a legal analysis is required to determine whether Act No. 18.098 repeals Decree No. 475/005. The Committee also notes that the Government intends to examine this matter, taking into account the General Survey concerning the labour clauses in public contracts which the ILO Conference examined in June 2008. It draws the Government’s attention to the points raised in its previous comments, when it noted with regret that Act No. 18.098 seemed to restrict the scope of Decree No. 475/005 because it dealt only with the issue of the remuneration of workers and not working hours or other conditions of work, as prescribed by the Convention. The Committee also pointed out that this Act required only the observance of wage rates fixed by the wage councils and not of those, possibly more favourable conditions, established by legislation, collective agreement or arbitration award. It further stressed that section 1 of Act No. 18.098 does not reproduce the text of section 1 of Decree No. 475/005, whereas the latter conforms fully to the provisions of Article 2 of the Convention with regard to public service contracts. The Committee requests the Government to provide information on the result of the analysis carried out on the legal relationship between Decree No. 475/005 and Act No. 18.098, and hopes that it will take account, in the context of this analysis of the abovementioned comments concerning the limited scope of this Act compared to that of Decree No. 475/005. Recalling also its previous observation, in which it pointed out that the abovementioned texts only applied to services contracts, it requests the Government to take the necessary measures to ensure that all public contracts covered by the Convention, including service and procurement contracts, incorporate labour clauses guaranteeing to the workers concerned wages and other conditions of work which are not less favourable than the most advantageous conditions established for work of the same nature in the same area by collective agreement, arbitration award or national laws or regulations. In this respect, the Committee points out that the general conditions governing service contracts and contracts issued by the National Traffic Department, of which extracts are contained in the Government’s report, only contain provisions pertaining to wages of workers employed under public contracts, and do not refer to hours of work or other working conditions.

Article 2, paragraph 3. Consultation of employers’ and workers’ organizations. The Committee notes the general information provided by the Government concerning the participation of employers’ and workers’ organizations in collective bargaining, especially in the construction sector. However, it asks the Government to submit more detailed information on the way in which these organizations are effectively consulted before the labour clauses in general conditions in public contracts are drawn up, and on the consultations that were held before the adoption of Act No. 18.098 of 12 January 2007 and Decree No. 475/005 of 14 November 2005.

Article 6 of the Convention and Part V of the report form. The Committee notes the Government’s information on the provisions applicable in the failure to respect standards, arbitration awards or collective agreements in force. It nevertheless points out that its previous comment specifically referred to the general conditions for public works, mentioned in section III, paragraph 1, of the tender attached to the Government’s last report. The Committee therefore requests the Government once again to indicate whether the text to which reference is made is that of the general conditions for the construction of public works and, if not, to send a copy of the general conditions which are currently applicable.

For all useful purposes, the Committee attaches herewith a copy of a Practical Guide on Convention No. 94, recently published by the Office, which sheds light on the scope of the provisions of the Convention.