Observation (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 94) sur les clauses de travail (contrats publics), 1949 - Pays-Bas (Ratification: 1952)

Autre commentaire sur C094

Observation

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The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations of the Netherlands Trade Union Confederation (FNV), the National Federation of Christian Trade Unions (CNV) and the Trade Union Federation for Professionals (VCP), received on 29 October 2019. The Committee requests the Government to provide its comments in this respect.

Articles 1 and 2 of the Convention. Insertion of labour clauses in public contracts. For a number of years, the Committee has been requesting the Government to provide information on progress made in ensuring effective application of the core requirements of the Convention. The Committee also requested the Government to provide updated information on the Code of Responsible Market Conduct (the Code) and its impact, as well as on the number and type of sanctions imposed by the sectoral committees authorised to examine complaints alleging inefficient or inadequate application of the Code. The Government indicates that the Code provides a set of principles that call for adequate working conditions, correct payment of wages and other conditions of work and employment. It adds that, while the Code is not legally binding, it makes a moral appeal to commissioning parties, contractors, hirers, trade unions, and intermediaries to describe, accept, and carry out assignments in a socially responsible manner. The Committee notes the Government’s indication that the Code was signed by almost 1,500 parties in 2019. It further notes the information provided by the Government indicating that some 50 complaints are received annually and that such complaints can lead to sanctions. In their observations, the workers’ organizations express their concern at the position of the Government that no further adjustments are necessary regarding the implementation of the Convention. They point out that the Netherlands has never specifically implemented the Convention, but that the Public Procurement Act of 2012, as amended in 2016, provides a general legal framework for public procurement that implements the European public procurement directives but does not give effect to Article 2 of the Convention. The Committee further notes the observations made by the Dutch trade unions with regard to the provisions of section 2.115 of the Public Procurement Act, in which they express the view that this provision is purely permissive and does not ensure the application of Article of the Convention. The workers’ organizations also refer in their observations to the Wet Aanpak Schijnconstructies (WAS) of July 2015, which introduces a civil-law “chain of liability” for payment of wages owed to workers engaged under public contracts. The Committee notes that neither the Dutch Public Procurement Act 2016 (as amended), nor the WAS contain any provisions giving effect to the Convention. In relation to the Code, the FNV, CNV and VNP indicate that the application of the Code is limited to its signatories, pointing out that the Code itself is a voluntary guide to prompt more responsible market behaviour, but which does not contain any legally binding provisions. The Dutch trade unions express their disagreement with the Dutch Government’s reference to the Code as demonstrating the material implementation of Convention No. 94 in the Netherlands, observing that the Government’s own institution, the Netherlands Authority for Consumers and Markets (ACM) takes the position that the inclusion of wage standards in the Code would infringe on (EU) competition law. The workers’ organizations consider that, notwithstanding the importance of the Code, it is irrelevant to the issue of material implementation of the Convention, as it contains no provisions requiring implementation of Article 2. Therefore, the workers’ organizations consider that, notwithstanding its repeated statements to the contrary, the Government of the Netherlands has no intention of complying fully with the requirements of Convention No. 94. While noting the importance of the Code of Responsible Market Conduct as a voluntary code of conduct, the Committee nevertheless wishes to draw the attention of the Government to its 2008 General Survey on labour clauses in public contracts (paragraph 128), in which the Committee stressed that the insertion of labour clauses in the specifications or general conditions of tender documents, even though it is a means of making persons tendering for contracts aware of the terms of such clauses in line with Article 2(4), does not suffice to give effect to the basic requirement of the Convention set out in Article 2(1), which requires that the labour clause be included as an integral part of the contract actually signed by the public authority and the selected contractor. Noting once again that it has been commenting for a number of years on the Government’s failure to give effect to the Convention, the Committee trusts that the Government will take all necessary measures without further delay to bring its national legislation into full conformity with the core requirements of the Convention. In this regard, it recalls that the inclusion of appropriate labour clauses in all public contracts covered by the Convention does not necessarily require the enactment of new legislation, but can also be realised by administrative instructions or circular.

Part V of the report form. The Committee requests the Government to communicate concrete, up to date information on the practical application of the Convention in its next report. In particular, the Committee requests the Government to provide examples of public contracts issued during the reporting period containing labour clauses within the meaning of the Convention, as well as extracts of reports by the inspection services showing the number and nature of any violations and the sanctions imposed, information on the number of public contracts awarded during the reporting period, the approximate number of workers involved in their execution, and any other particulars bearing on the practical application of the Convention.