Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Uruguay (Ratification: 1954)

Other comments on C094

Observation

Direct Request

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Article 2 of the Convention. Inclusion of labour clauses in public contracts. For over 14 years, the Committee has been requesting the Government to take the necessary measures to ensure that the scope of the provisions of Decree No. 475/005 on public contracts for services is extended to cover all types of public contracts envisaged by the Convention. Equally, since 2012, the Committee has been requesting the Government to amend Act No. 18.098 to bring it into full compliance with the requirements of Article 2 of the Convention, as it only requires compliance with wage rates fixed by wage boards, and not with the more favourable conditions (including working hours, holidays, and sick leave) provided for in legislation, collective agreements, or arbitration awards, in conformity with the Convention.

The Committee notes that the Government once again refers, with reference to public works contracts, to Decree No. 257/015, approving the single document setting out the regulations and general conditions of public works contracts. Section 38, on compliance with the single document labour legislation, establishes that the contractor shall comply with the legislation and regulations on risk prevention applicable to the work undertaken. In particular, the contractor is required to: respect the wage rates fixed by the wage boards; hold valid insurance for occupational accidents and diseases for workers; and comply with the provisions of Acts Nos 18.099 of 24 January 2007 and 18.251 of 6 January 2008 on occupational liability in enterprise decentralization processes. The Committee notes that section 5 of Act No. 18.099 provides that “workers supplied by temporary employment enterprises shall receive benefits no less favourable than those fixed by wage boards, collective agreements or executive decree, according to their category and in concordance with the area of activity of the enterprise by which they are employed”. The Committee notes, however, that this provision is applicable only to workers supplied by temporary employment enterprises. The Government also indicates that the above-mentioned section is included in the standard documents produced, and placed at the disposal of institutions, by the Regulatory Agency for State Procurement (ARCE). In this connection, the Government gives the example of the Framework Agreement, Proclamation and Consulting Contract.

Regarding supply and service contracts, the Government refers to the single document setting out the regulations and general conditions of supply and non-personal service contracts (Decree No. 131/014). The Government indicates that although the said single document does not include clauses on compliance with labour, social insurance, and occupational safety obligations, it is governed by the regulations in force, in particular Acts Nos 18.099 and 18.251. In this regard, the Committee recalls that the mere application of general labour law is not sufficient to guarantee the application of the Convention. The Convention requires bidders to be informed in advance, by means of standard labour clauses included in tender documents, that, if selected, they would have to observe in the performance of the contract wages and other labour conditions not less favourable than the highest minimum standards established locally by law, arbitration or collective bargaining (A practical guide to Convention No. 94, pages 15 and 20). Lastly, the Committee notes the adoption of Act No. 19.889 of 9 July 2020, which introduces sections 329 to 339 of the Labour Code, on the establishment of the Regulatory Agency for State Procurement (ARCE). The Agency’s mandate includes: providing advice on matters related to procurement or contracts involving the expenditure of public funds; and the completion, in specific circumstances, of the administrative contracting procedures for the acquisition of goods and services, in compliance with the regulations in force. The Committee once again points out that it has been commenting for a number of years on the fact that the Government has not given effect to the Convention. In this regard, it recalls that the inclusion of the labour clauses identified in Article 2 of the Convention in all contracts concluded by the public authorities covered by the Convention, does not necessarily require the enactment of new legislation, but can also be achieved through administrative instructions or circulars. The Committee hopes that the Government will adopt without delay all the necessary measures to bring its national legislation into full conformity with the fundamental requirements of the Convention. The Committee requests the Government to keep it informed of the progress achieved and again recalls that the Government may, if it so wishes, avail itself of ILO technical assistance in this respect.

The Committee noted information supplied by the following States in an answer to a direct request: Cuba, Denmark.