Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee notes that Decree No. 2-98-482 of 30 December 1998 laying down conditions and procedures for the awarding of state contracts does not contain any provisions relating to labour clauses. It notes with regret that Decree No. 2-99-1087 of 4 May 2000 approving the general administrative conditions applicable to contracts for work executed for the State’s account does not ensure the application of the Convention either, inasmuch as section 22(1) restricts itself to stating that the full responsibility for applying all labour legislation and regulations to the contractors’ staff belongs to the contractor himself. Moreover, the Committee notes that section 20(4) of the same Decree merely states that the wage paid to workers must not be less than the legal minimum wage for each category of workers. With regard to other types of public contracts, the Committee notes that Decree No. 2-01-2332 of 4 June 2002 approving the general administrative conditions applicable to contracts providing research and management services for the State’s account does not ensure the application of the Convention either. It notes that section 19 of the Decree limits itself to stating that the contractor is subject to the obligations resulting from the laws and regulations in force concerning the protection of the workforce and conditions of work.

The Committee is bound to reiterate that, pursuant to Article 2 of the Convention, the public contracts to which the Convention applies must include clauses ensuring to the workers concerned wages, hours of work and other conditions of labour 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. In addition, the terms of the clauses to be included in contracts must be determined in consultation with the employers’ and workers’ organizations concerned. Hence the application of the Convention is not ensured by a provision that merely requires social legislation to be applied to workers engaged in the performance of public contracts. The inclusion of labour clauses in these contracts aims to provide protection for workers in cases where the legislation only establishes minimum conditions of work which are likely to be improved by general or sectoral collective agreements. The fundamental objective of the Convention is therefore to combat the risk of “social dumping” affecting highly competitive public contracts.

The Committee therefore asks the Government to adopt suitable measures as quickly as possible to ensure the full application of the Convention by prescribing the inclusion of labour clauses provided for by the Convention in all public contracts to which it is applicable.

Finally, the Committee draws the Government’s attention to the General Survey which it has undertaken this year on labour clauses in public contracts, which presents the law and practice of the member States in this area and also an evaluation of the impact and current relevance of Convention No. 94.

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