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Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Mauritania (Ratification: 1963)

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Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee notes the Government’s reply to the previous observations of the Free Confederation of Mauritanian Workers (CLTM) and to those of the General Confederation of Workers of Mauritania (CGTM), which was sent in its report. The Committee also notes the new observations made by the CLTM, received on 12 June 2019. The Committee invites the Government to send its comments in this regard.

Article 2(1) of the Convention. Inclusion of labour clauses. In its observations of June 2019, the CLTM reiterates its previous observations concerning non-compliance with the provisions of the Convention. The CLTM emphasizes that the beneficiaries of contracts awarded by the public authorities have no official status in law and that the award of these contracts lacks transparency. Specifically, the CLTM asserts that these contracts are awarded in most cases on the basis of mutual agreement without any call for bids. The CLTM adds that the beneficiaries of these contracts have recourse to subcontracting, even though this is prohibited, and do not possess an employer number at the National Social Security Fund (CNSS), a supplier account at the Department of Taxation or working capital. Moreover, according to the CLTM, it is impossible to trace these subcontractors since they do not have an address or registered office. The Government indicates in its reply that the observations of the CLTM are baseless. The Committee notes that the Government’s report merely reiterates its previous statements regarding the inclusion of labour clauses in all bid dossiers. In this regard, the Committee notes the provisions of Decree No. 2017-226/PM repealing and replacing the regulations implementing Act No. 2010-044 of 22 July 2010, stipulating that in order to determine the conditions in which contracts are carried out, the contract terms shall include both general and specific documents, including the labour clauses document containing legal and regulatory requirements regarding the protection of workers (section 41(c) of Act No. 2010-044). It also notes that section 44 of the above-mentioned Decree obliges the Public Procurement Committee (CPMP) and the contracting authorities to stipulate explicitly in every contract that bidding enterprises, suppliers and service providers shall undertake to comply in their bids with all laws and regulations or all provisions of collective agreements relating in particular to wages, to conditions of work, safety and the environment, and to the health and well-being of the workers concerned. They also remain guarantors for the observation of conditions of work, and are responsible for their application by any subcontractors. As regards the status of employers to whom public contracts are awarded, the Government indicates that the Department of Labour only grants a certificate of conformity to an employer after an inquiry to identify the company and determine its situation with respect to the application of the labour legislation. As regards the observations of the CGTM concerning the updating of the 1974 collective labour agreement, the Government indicates that the updating of that agreement depends on determining trade union representativeness to be able to conclude the negotiations. It adds that, to this end, consultations are under way with a view to holding elections. The Government also indicates that revising or updating the whole body of labour legislation is one of the major objectives of the Ministry of Labour and that two consultants (national and international) have been recruited to work on this matter. The Committee requests the Government to provide detailed information on the manner in which observance of the provisions of the Convention is ensured. Moreover, the Committee requests the Government to indicate the manner in which it is ensured that labour clauses are brought to the attention of bidders and of workers employed under the public contracts to which the Convention applies. The Committee further requests the Government to keep the Office informed of all progress made in relation to the updating of the 1974 collective agreement and the plans to revise the labour legislation.

Part V of the report form. Application of the Convention in practice. In its previous comments, the Committee asked the Government to provide detailed information, including statistics, on the application of the Convention in practice. The Committee notes that the Government does not provide specific information on the application of the Convention, including no statistics on either public contracts or the number of workers covered by public contracts. The Committee therefore once again requests the Government to provide information, including statistics on the average number of public contracts granted annually and the approximate number of workers engaged in their execution, standard bidding documents and labour clauses, extracts from reports of the labour inspection services showing the number and nature of any offences recorded and penalties imposed, and any other information enabling the Committee to conduct a better appraisal of the manner in which the Convention is applied in practice.

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes the observations of the Free Confederation of Mauritanian Workers (CLTM), received on 25 July 2017, and of the General Confederation of Workers of Mauritania (CGTM), received on 4 September 2017, and also the Government’s reply to the observations of the CLTM, received on 6 November 2017.

Article 2(1) of the Convention. Inclusion of labour clauses. The Government indicates in its report that under the provisions of Order No. 035 of 3 June 1992, which is still in force, labour clauses are included in all bid dossiers sent to bidders. It adds that the Department of Labour issues certificates of conformity with the labour legislation at the request of bidders; if the latter are not in conformity, their dossiers are systematically rejected and they are unable to take part in the bidding process. The CLTM claims in its observations that labour clauses in public contracts, as defined in the Labour Code, are not respected. It maintains that, to engage in subcontracting, it is necessary to have working capital, an employer number registered with the National Social Security Fund (CNSS) and a taxpayer account at the Department of Taxation, and that the contract must be officially approved by the labour inspectorate to be legally valid. However, the CLTM indicates that contracts of this sort are awarded to employers who have no qualifications to perform this activity and have no registered office enabling them to be traced. The Government indicates in its reply that it is the Director of Labour who issues the certificate of conformity, after checking that the employer duly discharges his obligations, namely payment of wages at regular intervals, social contributions to the CNSS and observance of working conditions, and that the employer concerned is not involved in mediation or in any dispute being handled by the labour inspectorate. As regards taxation, the Government adds that all employers have a tax identification number at the Department of Taxation and, if they bid for a contract, they must also be able to produce a certificate of conformity with regard to taxation. The CGTM observes that the general collective labour agreement (CCGT), dating from 1974, has never been updated despite this being requested by the workers’ organizations every year. The CGTM adds that a number of clauses are now obsolete because of changes in the social and occupational environment. The CGTM maintains that, with regard to labour clauses, there is anarchy between workers and employers at several companies, including in telecommunications. The Committee requests the Government to provide its comments on the observations of the CGTM. It once again requests the Government to supply copies of recent public contracts in which labour clauses have been included, in accordance with section 2 of Order No. 035 of 3 June 1992. The Committee also requests the Government to send detailed information on the application of the Convention in practice, including statistics on public contracts and the average number of workers concerned, and to send any other information which would enable the Committee to assess whether the national legislation and practice are in conformity with the provisions of the Convention.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Article 2(1) of the Convention. Inclusion of labour clauses. The Committee refers to its previous comment and notes the Government’s indication that Order No. 035 of 3 June 1992 concerning the inclusion of labour clauses in administrative contracts of all types concluded in the name of the State and on behalf of the State, local authorities and public establishments, is still in force. It also notes the adoption of Act No. 2010-044 of 22 July 2010 issuing the Public Procurement Code. The Committee notes that the new Public Procurement Code, the main aim of which is to ensure equality of treatment for persons tendering for contracts, transparency in the process for the award of public contracts and the prevention of fraudulent practices and acts of corruption, makes no reference to Order No. 035 of 3 June 1992 and does not contain any provisions requiring the inclusion of labour clauses in public contracts. The Committee requests the Government to send to the Office, together with its next report, copies of recent public contracts in which labour clauses have been included, in accordance with section 2 of Order No. 035 of 3 June 1992.

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

Article 2(1) of the Convention. Insertion of labour clauses. The Committee notes the adoption of the Public Procurement Code, Decree No. 2002–08 of 12 February 2002, which replaces the Public Procurement Regulations, Decree No. 93–011 of 10 January 1993. The Committee understands that the Government undertook in 2007 the revision of the Public Procurement Code and that a draft text has already been prepared. In this connection, the Committee notes that the only provision on labour conditions applicable in the execution of a public contract is to be found in section 93 which requires all enterprises, contractors and service providers participating in public tendering to commit themselves at the pre-selection stage to comply with legal and regulatory provisions in force, or relevant provisions of collective agreements, especially in respect of wages, working conditions, or health and safety of the workers concerned. The Committee considers that the draft section 93 on social obligations is not entirely consistent with the Convention since it fails to provide for wages and other conditions of work at least as favourable as the most advantageous conditions established for work of the same character in the same region.

In addition, the Committee notes that draft section 73 provides that contracting authorities may reject abnormally low bids, taking into account the provisions on working conditions in force where the work is carried out. However, as the Committee has pointed out on several occasions, such clauses do not afford the level of protection required by the Convention and therefore are not sufficient to give effect to its requirements.

Furthermore, the Committee notes that in reply to comments made by the General Confederation of Workers of Mauritania (CGTM), the Government has contented itself with stating that no enterprise may participate in competitive bidding unless it is in full conformity with tax, social security and labour laws and regulations in force. However, any such “filtering” or certification mechanism at the pre-selection stage is not strictly relevant to the main obligation of the Convention since it bears no relationship – and does not guarantee – the labour standards which should be observed in the execution of the public contract that is the subject of competitive bidding.

In light of the above, the Committee is not clear whether Order No. 35 of 3 June 1992 on the insertion of labour clauses in administrative contracts of all types concluded in the name of the State and on behalf of the State, local authorities and public establishments, which used to implement the requirements of the Convention, is still in force. It therefore requests the Government to provide additional explanations in this regard. It would also appreciate receiving a copy of the new Public Procurement Code as soon as it is adopted.

Part V of the report form. The Committee would be grateful if the Government would communicate, together with its next report, up to date information on the application of the Convention in practice, including for instance the average number of public contracts granted annually and the approximate number of workers engaged in their execution, labour inspection results concerning contract performance, standard bidding documents containing labour clauses, copies of official documents such as reports of public procurement controlling authorities, etc.

For all useful purposes, the Committee attaches herewith a copy of a Practical Guide, prepared by the Office principally on the basis of the General Survey of 2008 on Convention No. 94, to help better understand the requirements of the Convention and ultimately improve its application in law.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the observations received on 3 September 2007 from the General Confederation of Workers of Mauritania (CGTM), through the International Trade Union Confederation (ITUC). It notes the CGTM’s indications that in Mauritania the labour administration, in the context of the attribution of public contracts by the National Contracts Commission, requires tendering enterprises to provide a certificate of conformity with labour regulations with a view to the acceptance of their tender. It further notes that on this occasion the labour directorate verifies the compliance by the enterprises concerned with the labour clauses contained in the regulations in force. The Committee however notes that, according to the CGTM, the adoption by Mauritania of economic liberalization policies has led to a deregulation of employment contracts and the development of fixed-term or temporary job offers. Finally, it notes that, in the view of the CGTM, supervision of compliance with labour clauses is not fully guaranteed, which leads to labour disputes within the selected enterprises, and that the labour administration should strengthen its capacities and provide upstream supervision of violations of labour regulations by these enterprises. The Committee requests the Government to provide its comments on the CGTM’s observations. The Government is also requested to reply to the direct request that the Committee made in 2005.

The Committee also draws the Government’s attention to the General Survey that it has carried out this year on labour clauses in public contracts, which gives an overview of the law and practice of member States in this field and provides an evaluation of the impact and current relevance of Convention No. 94.

[The Government is asked to reply in detail to the present comments in 2008.]

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s report and attached documentation. The Committee has been requesting the Government for a number of years to indicate how it is ensured in law and in practice that the workers engaged in the execution of public contracts are kept informed of the content of the labour clauses applicable to them. The Government was also asked to specify whether the Ministerial Order referred to in section 9 of Decree No. 93-011 of 10 January 1993 on public contracts regulations has been issued with a view to determining the manner in which the labour clauses are to be brought to the knowledge of the workers concerned. In the absence of any concrete reply on this point, the Committee is bound to draw the Government’s attention once again to Article 4(a)(iii) of the Convention which provides that the implementing legislation must require the posting of notices in conspicuous places at the establishments and workplaces concerned with a view to giving sufficient publicity to the wage and other conditions of work applicable to workers. It therefore asks the Government to take appropriate action in the very near future and to indicate in its next report any progress achieved in this regard.

In addition, the Committee notes the information provided by the Government concerning the number and total value of contracts carried out by the Mauritanian Agency for Public Works and Employment (AMEXTIPE) in the first half of 2004. The Committee requests the Government to continue to provide all available information on the practical application of the Convention, including copies of public contracts containing labour clauses, statistics on public procurement and the average number of workers concerned, and any other particulars which would enable the Committee to evaluate the conformity of national law and practice with the requirements of the Convention.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

Article 4(a)(iii) of the Convention. Further to its previous comments concerning the measures taken under section 50 of Decree No. 80.182/PG to ensure that the labour clauses are brought to the notice of the workers concerned, the Committee notes the Government’s reply to the effect that the said Decree has been repealed by Decree No. 93-011 of 10 January 1993 on public contracts regulations which was published in Official Journal No. 800 of 15 February 1993. The Committee takes note of this information. However, the Committee notes that section 9 of the new enactment provides that the manner in which the labour clauses are to be brought to the knowledge of the workers concerned shall be determined by order of the Minister of Labour. In this connection, the Committee requests the Government to indicate whether such order has been issued and, if so, to communicate a copy of that document.

Part V of the report form. The Committee recalls that under Article 6 of the Convention and Part V of the report form governments are requested to give a general appreciation of the manner in which the Convention is applied, including, for instance, extracts from official reports, information concerning the number of contracts and workers covered by relevant legislation, etc. Such information being essential for the fulfilment of the Committee’s mandate, the Committee would be grateful to the Government for supplying in its next report full particulars on the practical application of the Convention, including copies of public contracts containing labour clauses, reports and statistics from inspection services on the supervision and enforcement of relevant legislation and any other information bearing on the practical implementation of the requirements of the Convention.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which reads as follows:

In the absence of a reply to its previous comments on this point, the Committee again asks the Government to indicate whether the means whereby the labour clauses to be included in public contracts must be brought to the notice of the workers concerned have been laid down by an order of the Minister of Labour pursuant to section 50 of Decree No. 80.182/PG (Article 4(a)(iii) of the Convention).

The Committee would be grateful if the Government would provide information on the manner in which the Convention is applied in practice (Part V of the report form).

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation, which reads as follows:

Further to its previous comments the Committee notes that Interministerial Order No. 035 of 3 June 1992, which establishes the labour clauses to be included in public contracts, was published in Official Journal No. 807 of 30 May 1993.

The Committee is also addressing a request directly to the Government concerning certain points.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee would be grateful if the Government would provide information on the manner in which the Convention is applied in practice (point V of the report form).

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee is also addressing a request directly to the Government concerning certain points.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

With reference to its previous comments, the Committee notes with satisfaction that Inter-Ministerial Order No. 035 of 3 June 1992 establishes the labour clauses to be inserted in administrative contracts of all types concluded in the name of the State and on behalf of the State, public communities and public establishments.

The Committee requests the Government to state whether the Order has been published (Article 2, paragraph 4, of the Convention) and whether the measures by which these clauses are to be brought to the attention of the workers concerned have been determined by order of the Minister of Labour under section 50 of Decree No. 80.182/PG (Article 4(a)(iii)).

The Committee would be grateful if the Government would supply information on the manner in which effect is given to the Convention in practice (point V of the report form).

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

With reference to its previous comments, the Committee recalls that it requested the Government to take the necessary measures to ensure the application of the Convention, since Decree No. 75.147 of 6 May 1975 and Decree No. 80.182 of 23 July 1980 are not sufficient to give effect to the Convention.

The Committee points out that, under the relevant provisions of the above Decrees, the labour clauses to be included in public contracts awarded by public authorities are to be determined by ministerial or inter-ministerial order. The Committee notes the Government's indication in its last report that it will make every effort to take the appropriate measures to bring the national legislation into conformity with the provisions of the Convention as soon as possible. The Committee points out in this connection that, in its previous reports, the Government referred to certain draft decrees and orders which would bring the national legislation into harmony with this Convention. It also recalls that it has been requesting such measures since the ratification of the Convention in 1963. The Committee therefore hopes that the Government will be able to supply full information in its next report on the measures that have been taken in this respect.

[The Government is asked to report in detail for the period ending 30 June 1991.]

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

For a number of years, the Committee has been requesting the Government to take the necessary measures to ensure the application of the Convention, as Decree No. 75.147 of 6 May 1975 and Decree No. 80.182 on 23 July 1980 are not sufficient to ensure that full effect is given to the Convention which requires that clauses be included ensuring to the workers concerned wages (including allowances), hours of work and other conditions of labour which are not less favourable than those established for work of the same character in the trade or industry concerned in the district where the work is carried on. The Committee recalls that, under the corresponding provisions of the above Decrees, the labour clauses to be included in public contracts should be determined by ministerial or inter-ministerial order. The Committee also recalls that in previous reports, the Government has referred to certain draft decrees and resolutions which would enable the national legislation to be brought into full conformity with this Convention.

Since the Government has not submitted a report for the third consecutive year, the Committee does not have the necessary information on the progress made with regard to the above text. It therefore hopes that the Government will submit full information on the measures adopted in this respect. [The Government is asked to supply full particulars to the Conference at its 77th Session.]