Observation (CEACR) - adoptée 2006, publiée 96ème session CIT (2007)

The Committee notes with regret that the Government’s report has not been received. It further notes that the law respecting public contracts has been the subject of successive reforms over recent years, and particularly with the adoption of new Public Contracts Codes in 2001 (Decree No. 2001-210 of 7 March 2001), 2004 (Decree No. 2004-15 of 7 January 2004) and 2006 (Decree No. 2006-975 of 1 August 2006).

The Committee notes with regret that, contrary to Decree No. 64-729 of 17 July 1964 issuing the Public Contracts Code, which was previously applicable, the more recent versions of the Public Contracts Code, and particularly that of 2006, do not envisage the inclusion of labour clauses in public contracts. Section 14 of the Public Contracts Code of 2006 provides that “the conditions for the execution of a contract or a framework agreement may include elements of a social nature (…)”. Furthermore, under the terms of section 55, the adjudicating authority may reject an offer which appears abnormally low taking into consideration, among other factors, the provisions respecting working conditions in the location in which the service is to be provided.

The Committee is bound to observe that these provisions, which are purely optional for the adjudicating authority, do not in any manner provide for compliance with the fundamental obligation imposed by Article 2 of the Convention. Under the terms of this provision, the public contracts to which the Convention applies shall include clauses ensuring to the workers concerned wages, hours of work and other conditions of labour which are not less favourable than the most favourable conditions established according to one of the three formulae envisaged by the Convention, that is by collective agreement, arbitration award or by national laws or regulations.

The Committee further notes that the provisions of the schedules of general administrative clauses for the various types of public contracts, to which no obligatory reference is to be made under the terms of section 13 of the Public Contracts Code of 2006, do not give effect to the Convention. They are confined to providing that the entrepreneur is subject to the obligations arising out of laws and regulations respecting the protection of workers and working conditions (section 9 of the Schedule of general administrative clauses applicable to public works contracts, approved by Decree No. 76-87 of 21 January 1976; section 5 of the Schedule of general administrative clauses applicable to public contracts for current supplies and services, approved by Decree No. 77-699 of 27 May 1977; section 9 of the Schedule of general administrative clauses applicable to public contracts for intellectual services, approved by Decree No. 78-1306 of 26 December 1978; and section 8 of the Schedule of general administrative clauses applicable to industrial contracts, approved by Decree No. 80-809 of 14 October 1980).

The Committee notes in this respect the Government’s contention in its previous report that taking into account the extent of the application of legislation respecting working conditions and the coverage of collective agreements, the provisions of Convention No. 94 intended to prevent distortions in working conditions to the detriment of workers performing work in the context of public contracts and on the sole grounds that they are performing such work, have lost their value.

The Committee recalls that the mere fact that the 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 by the Convention. Such inclusion ensures the protection of workers in cases in which the legislation only establishes minimum conditions of work which may be exceeded by general or sectoral collective agreements. Indeed, the fundamental principle on which the Convention is based is that, when entering into contractual commitments involving the expenditure of public funds, the public authorities shall avoid any social dumping resulting from the intense competition prevailing in the field of public tenders.

Even if collective agreements are applicable to workers engaged in the context of 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 such workers. For example, the Convention requires the adoption by the competent authority of measures, such as the advertisement of specifications, to ensure that persons tendering for contracts are aware of the terms of the labour clauses (Article 2, paragraph 4, of the Convention). Notices must be posted in conspicuous places at the workplace to inform workers of their conditions of work (Article 4(a)). Furthermore, the existence of the sanctions envisaged by the Convention, such as the withholding of contracts or payments due to contractors (Article 5), permits the imposition of sanctions on the contractor, in the event of the violation of labour clauses, which may be more directly effective than those available for violations of the general labour legislation.

Finally, the Committee wishes to emphasize that the former Public Contracts Code, adopted by Decree No. 64-729 of 17 July 1964, gave full effect to the Convention by providing in section 117 that schedules of general administrative clauses had to contain clauses under which the entrepreneur or supplier, without prejudice to compliance with the requirements of laws and regulations respecting the protection of workers, undertook to comply with a number of conditions relating, among other matters, to wages and other conditions of work.

The Committee trusts that the Government will rapidly adopt appropriate measures to once again ensure the full application of the Convention, for example by adopting provisions similar to those of sections 117 to 121 of the 1964 Public Contracts Code.