Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 2 of the Convention. Insertion of labour clauses in public contracts. Further to its previous observation, the Committee notes the adoption of Presidential Decree No. 08-338 of 26 October 2008, section 14 of which amends section 50 of Presidential Decree No. 02-250 of 24 July 2002 on public procurement regulations to add “the labour clauses ensuring the observance of labour legislation” among the contractual provisions which need to be mentioned in every public contract. While noting that a reference to labour clauses is made for the first time in the public procurement legislation, the Committee wishes to draw the Government’s attention to the following: first, as currently worded, section 14 of the Presidential Decree of 2008 refers generally to clauses guaranteeing respect for labour legislation but fails to give effect to the core requirement of the Convention which is the insertion of labour clauses expressly providing for wages, hours of work and other working conditions of the workers concerned that need to be aligned, as a minimum, to best local standards established through collective bargaining, arbitration or legislation – whichever is the most favourable. The Committee refers, in this respect, to paragraph 41 of the General Survey of 2008 on labour clauses in public contracts in which it emphasized that the general applicability of national labour law to work done in the execution of public contracts is not the focus of the Convention since there would be very little meaning in adopting a Convention that would simply affirm that work for public contracts must comply with relevant labour legislation. It also refers to paragraph 103 of the same General Survey 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. 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).

In light of the preceding observations, the Committee hopes that the Government will take additional steps to ensure the effective implementation of the Convention. It recalls, in this respect, that such steps do not necessarily imply legislative enactment but may entail administrative instructions or circulars and asks the Government to provide supplementary information, including copies of any newly adopted texts, on measures taken or envisaged in order to bring the national legislation into conformity with the Convention. The Committee would also appreciate receiving sample copies of any recently awarded public contracts which have incorporated labour clauses in accordance with section 50 of Presidential Decree No. 02-250 of 2002, as amended by section 14 of Presidential Decree No. 08-338 of 2008.

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.