Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

Articles 2 and 5 of the Convention. Inclusion of labour clauses in public contracts and sanctions for failure to comply with such clauses. In its previous comments, the Committee noted that the new Public Procurement Code, adopted by Decree No. 2006-975 of 1 August 2006, no longer gives effect to the Convention, in contrast with the Public Procurement Code of 1964. It notes the indications provided in the Government’s latest report according to which the text giving effect to the Convention in France is not and has never been the Public Procurement Code. It observes however that, in its first reports following the ratification of the Convention, the Government referred solely to the amended Decree of 10 April 1937 respecting labour conditions in contracts concluded on behalf of the State. It further notes that, in its report in 1965, the Government indicated that the above Decree had been codified in sections 117–121 of the Public Procurement Code issued by Decree No. 64-729 of 17 July 1964. The Committee considered that the Convention was fully implemented by these provisions until the adoption of the new Public Procurement Code in 2006.

The Committee notes that the Government refers in its latest report to Decree No. 51-1212 of 16 October 1951 publishing the Convention. However, it draws the Government’s attention to the fact that the mere publication of the Convention in the Official Gazette is not sufficient to give effect to its provisions. Specific measures have to be taken, particularly to require the effective inclusion of labour clauses in all public contracts to which the Convention applies, to inform those tendering for contracts and the workers concerned and to establish adequate sanctions in the event of failure to comply with these labour clauses. The Committee also wishes to point out that it never asserted that the repeal of the former Public Procurement Code had had the effect of withdrawing the Convention from the French legal order and that it merely noted that the French legislation that is currently in force no longer gives effect to the provisions of this instrument.

In this respect, the Committee notes the Government’s confirmation in its report that no specific legislation provides for the inclusion of the labour clauses required by the Convention in the public contracts to which it applies and its indication that labour legislation is binding for all employers, including those that have concluded a public contract. However, as the Committee emphasized in its observation of 2006, the fact that labour legislation is applicable to all employers and all workers, including those involved in public contracts, does not release the Government from the obligation to require the inclusion of labour clauses in such contracts. Indeed, as the Committee indicated in its General Survey of 2008 on the Convention (paragraph 41), “there would be very little meaning in adopting a Convention that would simply affirm that work for public contracts must comply with relevant labour legislation”.

The essential objective of the Convention is to ensure that workers employed in the implementation of public contracts benefit from wages, hours of work and other labour conditions that are at least as favourable as the most advantageous conditions established by collective agreement, arbitration award or national laws or regulations for work of the same character in the same region. The inclusion of labour clauses for this purpose therefore retains its full value in cases in which the legislation only establishes minimum labour conditions which may be exceeded by general or sectoral collective agreements. In this respect, the Committee recalled in the above General Survey (paragraph 104) that it was recognized when adopting the Convention “that by requiring conditions ‘not less favourable’ than those established by the three sources [namely, collective agreements, arbitration award or national laws or regulations], the automatic result would be requiring the best conditions out of the three”. In this respect, the Committee notes the Government’s indications that employers also have to take into account the wage agreements concluded at the level of occupational branches where the application of these agreements has been extended by order of the Minister of Labour under the terms of section L2261-15 of the Labour Code. The Committee however wishes to emphasize that Article 2, paragraph 1(a), of the Convention refers to collective agreements negotiated “between organizations of employers and workers representative respectively of substantial proportions of the employers and workers in the trade or industry concerned”, and not only those that have been declared generally applicable through the adoption of an extension order.

Finally, the Committee recalls that Article 5 of the Convention requires the application of adequate sanctions, such as the withholding of contracts with the contractor at fault or the withholding of payments due under the contract in the event of failure to comply with the labour clauses included in the public contract. The labour legislation does not establish sanctions of this type, which can be particularly effective and dissuasive, and does not therefore give effect to the Convention on this point.

The Committee is accordingly bound to note once again that the national legislation no longer gives effect to the Convention. It hopes that the Government will take the necessary measures in the near future to ensure the inclusion of labour clauses in all public contracts to which the Convention is applicable in accordance with the requirements of the latter and to require the application of adequate sanctions in the event of failure to comply with these clauses. In general, the Committee recalls the conclusions of its General Survey of 2008 on the Convention, in which it considered that (paragraphs 307 and 308) “labour clauses that actually set as minimum standards the most advantageous conditions where the work is being done, consistent with the notion of the State as a model employer, continue to be a valid means of ensuring fair wages and conditions of work” and that in the light “of the greater impact of globalization on an increasing number of member States and the related heightening of competitive pressures, … the objectives of the Convention” are “even more valid today than they were 60 years ago” and “ strengthen the ILO’s call for fair globalization”.

For all useful purposes, the Committee attaches herewith a copy of a Practical Guide on the Convention that was recently published by the Office, which provides clarifications on the scope of its provisions, and particularly on the inadequacy of the mere application of general labour legislation to employers parties to public contracts.

Part V of the report form. The Committee notes the Government’s indications concerning the annual programming of the activities of labour inspectors and controllers focusing on a number of priorities, including conditions of work and remuneration, which implies focusing on professional sectors and enterprises involved in public contracts. It also notes the establishment in 2007, by the General Directorate of Labour, of the Observatory of prosecutions to follow up action by the labour inspectorate. Finally, it notes the report on labour inspection in France in 2006, which the Government attached to its report on the Labour Inspection Convention, 1947 (No. 81). The Committee notes in particular that 24 per cent of enterprise inspections were carried out on construction and public works sites and that, in all sectors, 81,380 violations were reported of the legal provisions relating to the employment contract, including hours of work and wages. The Committee requests the Government to continue providing information on the results of inspections carried out in enterprises participating in public contracts, including the number and nature of the violations of labour legislation reported and the measures taken to resolve them. The Government is also requested to provide a copy of any activity report that may be published by the Observatory of prosecutions to follow up action by the labour inspectorate.

[The Government is asked to reply in detail to the present comments in 2009.]