Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Article 2, paragraph 1, of the Convention. Inclusion of labour clauses in public contracts. The Committee notes with interest the adoption of Decree No. 475/005 of 14 November 2005, which refers explicitly in its preamble to the provisions of the Convention. It notes that section 1 of the Decree provides that, in the context of public contracts relating to the performance or supply of services (cleaning, surveillance, maintenance, etc.), the general and particular conditions of the contract must include clauses guaranteeing to workers of provider enterprises wages, working hours and other conditions of work which are in conformity with those laid down by the legislation, arbitration awards and/or collective agreements in force for the sector of activity concerned. The Committee understands that this provision obliges the enterprises concerned to provide wages, working hours and other conditions of work at least as favourable as the most favourable established by collective agreement, arbitration award or national laws or regulations. It requests the Government to further clarify this point. The Government is also requested to clarify whether similar provisions have been adopted for construction and supply contracts and, if so, to send copies of any relevant text.

The Committee also notes the adoption of Act No. 18.098 of 12 January 2007, section 1 of which provides that whenever a public authority concludes a contract with a third party for the performance of services for which it is responsible, the general and particular conditions of the contract must provide that the remuneration of workers to whom the performance of these tasks is assigned must be in conformity with awards made by the wage councils. However, the Committee notes with regret that this Act seems to restrict the scope of Decree No. 475/005 referred to above. It deals only with the issue of the remuneration of workers and not working hours or other conditions of work, as prescribed by the Convention. Moreover, Act No. 18.098 requires only the observance of wage rates fixed by the wage councils and not of those possibly more favourable conditions established by legislation, collective agreement or arbitration award. The Committee understands that the coexistence of Decree No. 475/005 and Act No. 18.098 poses the same problems of application of the Convention as those which were raised in its previous comments regarding the relationship between section 34 of Decree No. 8/990 and section 1 of Decree No. 114/982 (see in particular the observation made in 2000 by the Committee on this point), in as much as section 1 of Act. No. 18.098 does not reproduce the text of section 1 of Decree No. 475/005, whereas the latter conforms fully to the provisions of Article 2 of the Convention with regard to public service contracts. The Committee asks the Government to clarify this issue and to take all necessary measures to ensure that all public contracts covered by the Convention incorporate clauses guaranteeing to the workers concerned wages, hours of work and other conditions of work which are not less favourable than those established for work of the same character in the same area by collective agreement, arbitration award or national laws or regulations.

The Committee also notes the adoption of Act No. 18.099 of 24 January 2007, under the terms of which enterprises which use subcontractors or intermediaries are jointly responsible for the obligations of the latter in social matters, this responsibility also extending to public authorities resorting to such practices.

The Committee also notes the comments made by the Inter-Trade Union Assembly–National Workers’ Convention (PIT–CNT), according to which the adoption of the new texts referred to above signifies progress in the protection of workers’ wage claims. However, it notes that, according to the PIT–CNT, workers’ claims against the State, such as those made by workers of subcontracting enterprises (“empresas tercerizadas”) in cases of non-payment of wages owed to them, must now be submitted to the civil courts, thereby unduly depriving them of the protection inherent in the application of labour law. The Committee understands that the question of competent jurisdiction for dealing with wage disputes does not affect the due application of the Convention. It asks the Government to send its observations on this matter.

Article 2, paragraph 3. Consultation of employers’ and workers’ organizations. The Committee notes that the Government has not replied to its previous comment on this point and asks it to supply information on the manner in which prior consultation of employers’ and workers’ organizations is ensured with regard to the content of labour clauses, particularly tripartite consultations which were conducted before the adoption of Act No. 18.098 of 12 January 2007 and Decree No. 475/005 of 14 November 2005.

Article 4(a)(iii). Information given to workers. The Committee notes that Decree No. 392/980 was repealed by Decree No. 108/2007 of 22 March 2007. It notes that, under section 2 of the new Decree, enterprises must keep work registers (“planillas de control del trabajo”). These registers must mention in particular the wages and hours of work of the worker concerned (section 9) and must be kept within the enterprise in a place where they can be consulted by the workers (section 11).

Article 5. Penalties. The Committee notes that, under section 3 of Decree No. 475/005 and section 4 of Act No. 18.098, public contracts to which these texts apply must include a clause providing for the possibility of the contracting authority to withhold payments due under the contract, corresponding to the amount of wages claimed by workers of the contracting enterprise.

Article 6 and Part V of the report form. The Committee notes with interest the copy of the invitation to tender attached to the Government’s report, which provides in particular for the labour inspectorate to be notified if the contractor does not observe the standards, arbitration awards or collective agreements in force (section VI, paragraph 2(e)). The Committee notes that section III, paragraph 1, of this document states that the general conditions for public works are applicable to the contract. It asks the Government to indicate whether the text to which reference is made is Decree No. 8/990 of 24 January 1999 approving the official text of the “General conditions for the construction of public works”, which was the subject of previous comments made by the Committee. If not, the Government is requested to send a copy of the general conditions which are currently applicable.

Further, the Committee draws the Government’s attention to the fact that full observance of the Convention requires the inclusion of labour clauses in the contract concluded between the public authority and the enterprise to which the public contract is assigned, and not only in the invitation to tender. Consequently, the Committee asks the Government to send copies of public contracts containing the labour clauses provided for by the Convention.

In this respect, the Committee draws the Government’s attention to this year’s General Survey on labour clauses in public contracts, which presents the law and practice of member States in this area and makes an assessment of the impact and current relevance of Convention No. 94.

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