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

Article 1, paragraph 3, of the Convention. Subcontractors. The Committee notes that section 46(8) of the Public Procurement Act states that a party to a public contract may not transfer or assign this contract without the written consent of the contracting authority, but does not state the conditions of work applicable to workers employed by the assignee in cases where such authorization is granted. It requests the Government to indicate whether the provisions of section 46(5), which prescribes the inclusion of labour clauses in all public contracts, also apply to subcontractors or assignees of these contracts, as prescribed by the Convention.

Article 5, paragraph 1. Penalties – withholding of contracts. The Committee notes that, further to its amendment by the Employment Rights Act 2008, section 46 of the Public Procurement Act 2006 states that labour clauses must be included in public contracts. It also notes that section 53(1) of the Public Procurement Act, which lists the circumstances in which a potential bidder may be prohibited from participating in a public contract, has not been the subject of a consecutive amendment aimed at extending its application to violations of such labour clauses. The Committee requests the Government to indicate whether it envisages amending section 53 of the Public Procurement Act in order to penalize, by the withholding of a contract, any violation of the labour clauses contained in public contracts, thereby giving effect to Article 5, paragraph 1, of the Convention. If not, the Government is requested to indicate the other measures taken to ensure the application of adequate penalties for failure to observe such labour clauses, as required by the Convention. The Committee also requests the Government to send a copy of the full text of the Employment Rights Act 2008.

Article 5, paragraph 2. Penalties – withholding of payments. The Committee notes that, under section 46(6) of the Public Procurement Act 2006 – which reproduces the provisions of section 14(1) of the Labour Act – the contractor will not receive the payments due under the public contract unless he provides the contracting authority with a certificate indicating the wages and working hours of the workers employed for the execution of the contract and stating whether remuneration is still due. It also notes that section 46(7) – whose provisions are identical to those of section 14(2) of the Labour Act – states that, if such is the case, the contracting authority may pay directly wages due by withholding the corresponding amounts from the amounts due to the contractor, unless the latter pays the wage arrears in the meantime. The Committee requests the Government to indicate whether it plans to make this procedure compulsory and no longer optional for the contracting authority. If not, the Government is requested to describe the other measures taken to enable the workers concerned to obtain the wages to which they are entitled, as required by this provision of the Convention.

Part V of the report form. The Committee requests the Government to supply general information on the application of the Convention in practice. In this regard, it notes that, under section 7 of the Public Procurement Act 2006, the Central Procurement Board is responsible for the collection of information on the award of public contracts to public bodies and for verifying that they observe this legislation, issuing directives, procedures, instructions and handbooks to ensure implementation of the law, and for submitting to the Minister of Finance an annual report on the functioning of the public procurement system. The Committee requests the Government to supply all available information on the implementation of the Public Procurement Act 2006, and particularly to send a copy of the annual reports drawn up by the Central Procurement Board and of any other document (directives or otherwise) which it has adopted in relation to the implementation of labour clauses in public contracts.

For all useful purposes, the Committee attaches herewith a copy of a Practical Guide, prepared by the Office principally on the basis of the General Survey of 2008 on Convention No. 94, to help better understand the requirements of the Convention and ultimately improve its application in law.