Observación (CEACR) - Adopción: 2010, Publicación: 100ª reunión CIT (2011)

Article 2 of the Convention. Inclusion of labour clauses in public contracts. The Committee notes the information sent by the Government in reply to its previous comment, particularly concerning the connection between Executive Decree No. 11430-TSS of 30 April 1980 and Executive Directive No. 34 of 8 February 2002. It notes the Government’s indications that the latter does not depart from the terms of Executive Decree No. 11430-TSS but actually complements it. The Committee observes that, under the terms of the Executive Decree, public contracts must contain clauses explicitly requiring the bidder to comply with legal or “conventional” provisions regarding wages, hours of work, occupational health and safety and, more generally, conditions of employment which are not less favourable than those established for work of the same character in the same sector of activity and the same geographical area. It notes the report sent to the Ministry of Labour and Social Security by the legal service of the Office of the Comptroller-General of the Republic on 2 June 2010, which confirms that the expression “conventional provisions” means collective agreements.

The Committee recalls, however, that its previous comments referred to Executive Directive No. 34, which merely requires the inclusion in public contracts of a clause establishing the obligation of contractors to comply strictly with labour and social security obligations. While noting the Government’s indications that this Directive does not restrict the scope of Executive Decree No. 11430-TSS of 30 April 1980, the Committee considers that, in order to avoid any possible misunderstanding, to guarantee legal certainty and to ensure the full application of the Convention, the wording of the Directive should be aligned to that of the aforementioned Executive Decree. The Committee therefore hopes that the Government will take steps towards this end in the very near future and requests it to keep the Office informed of any developments in this respect.

The Committee further notes that, according to the abovementioned report of the legal service of the Office of the Comptroller-General of the Republic, it is rare for labour clauses to be included in public contracts in practice, even though there are no obstacles to their inclusion, but the omission of these clauses from public contracts makes no difference to the obligation of contractors to comply with the rights established by the social legislation. In this respect, the Committee has examined, by way of example, a public contract awarded in March 2009 by the National Insurance Institute, which contained clauses regarding the responsibility of the contractor to respect the obligations incumbent on him with regard to the social rights of his workers, in conformity with Executive Decree No. 11430-TSS. These clauses, however, did not contain any further details of the legal or “conventional” provisions which had to be observed with regard to wages and other conditions of work. As the Committee emphasized in its 2008 General Survey on labour clauses in public contracts (paragraph 128), the labour clause must be included as an integral part of the public contract signed by the selected contractor. The Committee therefore urges the Government to take the necessary steps to ensure the actual inclusion in all public contracts to which the Convention applies of clauses ensuring conditions of work to the workers involved in the execution thereof which are not less favourable than those established by national laws or regulations, collective agreement or, if applicable, arbitration awards for work of the same character in the same branch of activity, in conformity with Article 2(1) of the Convention. Furthermore, the terms of these labour clauses and any variations thereof must be determined by the competent national authority after consultation with the employers’ and workers’ organizations concerned, in accordance with Article 2(3) of the Convention.