Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee has been requesting the Government for the last 25 years to take measures to ensure the full implementation of the basic requirement of the Convention, i.e. the insertion of labour clauses in public contracts, as set out in Article 2 of the Convention. The Committee recalls that, by Ministerial Order of February 1983, effect was given to the requirements of the Convention but the labour clauses which were subsequently included in public contracts only required contractors to comply with labour laws regarding minimum wages, hours of work and other conditions of labour. The Government later reported that, due to a shift in priorities of the legislature, no action could be taken to follow up on the Committee’s comments while, in more recent reports, the Government limited itself to stating that workers involved in the execution of public contracts were sufficiently covered by the Labour Code and its implementing rules and regulations. In addition, the Government makes reference to the public procurement legislation in force, including the Government Procurement Reform Act (Republic Act No. 9184) of 2003 and its Implementing Rules and Regulations, which however contains no provisions on the social aspects of public contracting.

The Committee is bound to recall, in this respect, that the mere fact that the general labour legislation is applicable to workers engaged in the context of public contracts does not in any way exempt the Government from providing for the inclusion in public contracts of the labour clauses envisaged in the Convention. Such inclusion ensures the protection of workers in cases in which the legislation only establishes minimum conditions of work (e.g. minimum pay rates) which may be exceeded by general or sectoral collective agreements. Moreover, even if collective agreements were applicable to workers engaged in the execution of public contracts, the implementation of the Convention retains its full value in so far as its provisions are designed precisely to ensure the specific protection needed by those workers. For example, the Convention requires the adoption by the competent authorities of measures, such as the advertisement of specifications, to ensure that tenderers have advance knowledge of the terms of the labour clauses. It also requires notices to be posted in conspicuous places at the workplace to inform workers of the conditions of work applicable to them. Finally, it provides for sanctions in the event of non-compliance with the terms of labour clauses, such as the withholding of contracts or the withholding of payments due to contractors, which may be more directly effective than those available for violations of the general labour legislation. The Committee therefore asks the Government to take without further delay all necessary measures in order to bring the national legislation into conformity with the Convention. It also requests the Government to specify whether the Ministerial Order of 16 February 1983 providing for the inclusion of labour clauses in government contracts, which previously gave effect to the provisions of the Convention, is still in force.

Finally, the Committee seizes this opportunity to refer to this year’s General Survey which contains an overview of public procurement practices and procedures in so far as labour conditions are concerned and makes a global assessment of the impact and present-day relevance of Convention No. 94.

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