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

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.