Observation (CEACR) - adoptée 2002, publiée 91ème session CIT (2003)

The Committee takes note of the Government’s report and the attached documentation. It also notes the comments made by the Inter-Trade Union Assembly - National Workers’ Convention (PIT-CNT) regarding the application of the Convention.

I.  Application of the Convention in respect of public construction contracts

1. The Committee notes the Government’s statement, in response to its previous comments, to the effect that section 34 of the Decree of 1990 should be read in its entirety, i.e. including the second sentence, according to which public works contractors are required in any contracts with subcontractors to include a clause requiring the latter to comply with all labour law provisions in force. This, according to the Government, covers any relevant laws and regulations in force, including acts, legislative and other decrees, executive decisions, international labour Conventions, collective agreements and arbitration awards. The Government also states that the adoption of Executive Decree No. 13/001 extends the collective wages agreement of 11 December 2000 to the entire construction sector. The Government notes in this regard that, since this instrument was enacted after Decree No. 8/990 of 24 January 1990 setting out the general conditions for public works tenders, it supersedes the latter.

2. The Committee recalls that it had noted in its previous observation that section 34 of Decree No. 8/990 required only that the contractor comply with "legal and regulatory provisions in force in labour matters", thus limiting the provisions of the previous Decree No. 114/982, given that section 1 of the latter required that "labour clauses should be included in the relevant contracts so that the contracting parties are obliged to comply with the provisions of arbitration awards and collective agreements in force for the branch of activities". The Committee concurs with the Government that, in the construction sector, the collective agreement that has been extended to cover the entire sector makes it possible to guarantee to workers in the sector to which it applies wages that are not less favourable than those of other workers in the same occupation. However, the Committee notes that the collective agreement in question concerns only wages in the construction sector; Article 2, paragraph 1, of the Convention, on the other hand, is broader in scope and concerns, apart from wages (including allowances), other conditions of work including working hours. The Committee therefore considers that extending the collective agreement to the entire construction sector, including for public contracts, only partially meets the concerns expressed in its previous observation. Furthermore, the collective agreement concerns only the construction sector in those areas to which, in accordance with Article 1(c)(ii) and (iii), the Convention applies - the manufacture, assembly, handling or shipment of materials, supplies or equipment, or the performance or supply of services. The PIT-CNT, referring to this question, recalls the decisions adopted by the Government to subcontract certain services in the public administration. The purpose of this, according to the PIT-CNT, is to level wages downwards and avoid the need to respect trade union activities. While taking due note of these observations, the Committee considers that they are not strictly relevant to the provisions of the Convention or its application.

3. In the light of the preceding comments, the Committee is bound to regret that the necessary measures are not being taken to ensure that section 34 of Decree No. 8/990 reproduces the text of section 1 of Decree No. 114/982, which gives full effect to the provisions of Article 2 of the Convention. The Committee accordingly requests the Government once again to take the necessary steps to do this.

II.  Application of the Convention to other contracts provided for under Article 1

4. The Government states that it is increasingly resorting to the method of awarding concessions in cases where concluding a public contract would entail investment on a scale which the state budget cannot accommodate because it would add an excessive burden to the country’s foreign debt. The Government also states that as regards the other types of contract involving smaller sums of money, it retains responsibility for concluding contracts.

5. The Committee recalls and emphasizes that, according to Article 1, paragraph 1, of the Convention, the latter applies to contracts that are awarded by a public authority and which involve the expenditure of funds by a public authority for the construction, alteration, repair or demolition of public works, the manufacture, assembly, handling or shipment of materials, supplies or equipment, or the performance or supply of services. When a public authority concludes a contract to which the Convention is applicable, the contract must, under the terms of Article 2, paragraph 1, of the Convention include clauses 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, by collective agreement, by arbitration award or by national laws or regulations. The Committee requests the Government to indicate the manner in which it ensures that public contracts under the terms of Article 1 of the Convention contain clauses ensuring to the workers concerned 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, by collective agreement, by arbitration award or by national laws or regulations. The Committee requests the Government to provide the International Labour Office with copies of the legislation giving effect to the Convention.

6. In addition, the Committee states that the central and regional authorities have carried out consultations regarding the conditions of work of public employees. The Committee recalls, however, that the Convention does not directly concern contracts of employment between a state official or agent and a public authority or institution. Nor does the Convention apply to the subcontracting of services ("servicios tercerizados") between the public administration and individuals for the provision of services which the State has decided to "privatize". The Committee thus considers that the documents supplied with the Government’s reports, which directly concern conditions of service in the public administration, are not relevant. The comments made by the PIT-CNT referring among other things to the measures adopted by the Government with a view to subcontracting public services ("tercerización de servicios") are not pertinent to the application of this Convention.

III.  Consultations with organizations of employers and workers

7. The Committee indicated in its previous observations that, under the terms of Article 2, paragraph 3, of the Convention, the Government must consult organizations of employers and workers with a view to determining the terms of the clauses to be included in contracts and any variations thereof, in accordance with national conditions.

8. The Committee takes notes of the explanations provided by the Government, in particular the information on administrative law. However, the Committee wishes to point out that the consultations envisaged under this Article of the Convention concern clauses in public contracts concluded by the public authorities, not the conditions of service of state officials or agents. Consequently, the Committee requests the Government to provide clarifications in its next report with regard to the public contracts to which the Convention applies.

IV.  Practical application of the Convention

9. Article 4(a)(iii). The Committee notes the statement of the Government to the effect that it is possible, within the public authorities, to obtain information on conditions of work from human resources departments, and that notices for display are made available to the trade union organizations within the same authorities. The Committee notes in this regard that the information for workers on their conditions of work by means of notices, as required by the Convention, does not concern the public administrations but the other party or parties to the public contract to which the Convention is applicable.

10. The Committee takes note of the detailed terminological explanations regarding the word "avisos" ("notices"). The Committee accepts the Government’s conclusion that the word should be interpreted to mean "the means by which the interested parties can be made aware of information". Consequently, the Committee requests the Government to indicate whether, in addition to providing for the means indicated in the report - the "trade union notices" ("carteleras gremials") regarding conditions of work - the law giving effect to the Convention requires also that such notices be displayed clearly in establishments and other places of work with a view to informing workers of their conditions of work.

11. Article 3, together with Article 4(b)(ii). Noting the observations of the PIT-CNT, to the effect that the problems arising from the application of this Convention and the national legislation that would give effect to it are due to inadequate monitoring by the labour inspectorate, the Committee requests the Government to supply information on the inspection system which it has established to ensure effective application of these provisions. It also requests the Government to indicate how the general labour and social security inspection authorities monitor the conditions of work of workers employed under public contracts to which the Convention is applicable.

[The Government is asked to reply in detail to the present comments in 2003.]