Observation (CEACR) - adoptée 2011, publiée 101ème session CIT (2012)

Convention (n° 94) sur les clauses de travail (contrats publics), 1949 - France (Ratification: 1951)

Autre commentaire sur C094

Observation

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Article 2 of the Convention. Inclusion of labour clauses in public contracts. The Committee notes that, in reply to its previous comment, the Government asserts that the Public Procurement Code of 2006 does not provide for the formal inclusion of labour clauses in public contracts as national statutory law already establishes the requirement of compliance with such clauses. It notes the Government’s reference in this respect to the requirement placed on those concluding public contracts to comply with labour legislation. The Committee further notes the adoption of the new general administrative clause specifications (CCAG), such as those approved by the Order of 19 January 2009 approving the specifications for general administrative clauses in public contracts for ongoing supplies and services, which reiterate this obligation and place the requirement on the contractor to comply with the ILO’s eight fundamental Conventions. It notes that, according to the Government, in relation to social issues, it is in the interests of the adjudicating authority to make principal use of the executing clause in section 14 of the Public Procurement Code, which allows it to have the service performed, under certain conditions indicated in the Government’s report, with the inclusion of considerations such as the insertion of persons with few opportunities for employment, the implementation of training activities for them and the promotion of fair trade. The Committee also notes the detailed information contained in the Government’s report concerning the recommendations made in this field by the Public Procurement Advisory Commission. It also notes that, under section 55 of the Public Procurement Code, abnormally low offers can be discarded, after requesting tenderers to provide justifications relating to the working conditions applicable where the work is to be performed. In addition, the Committee notes the Government’s indications that French labour law requires compliance, by any subcontractor based in France of a principal contractor for public works, with all the collective agreements extended by ministerial order. It further notes that service providers located abroad who are covered by European Directive No. 96/71/EC concerning the posting of workers in the framework of the provision of services, are also required, for a nucleus of mandatory rules, to comply with the content of extended collective agreements. The Committee notes that, according to the Government, the objective of the Convention is achieved in French legislation and that requiring all subcontractors to comply with collective agreements that have not been extended would be contrary to Community law, as established by the case law of the Court of Justice of the European Union (CJEU), and particularly the Rüffert ruling of 3 April 2008.

With regard to the requirement for parties to public contracts to comply with labour legislation, the Committee recalls its previous observations, in which it emphasized that the fact that the labour legislation is applicable to all employers and all workers, including those involved in public contracts, does not release the Government from the obligation to require the inclusion of labour clauses in such contracts. Indeed, such clauses retain their full value in cases in which, as in France, the legislation only establishes minimum labour conditions which may be exceeded by general or sectoral collective agreements. Moreover, the Committee notes that the Government refers to section 43 of the Public Procurement Code, which provides for the exclusion from public contracts of economic operators who have been convicted for violations of the rules of the Labour Code, as well as those who are not in compliance with their social and fiscal obligations. It also notes that section 44 of the Public Procurement Code requires tenderers for public contracts to produce, when applying, a statement in which they certify that they are in compliance with their obligations in relation to labour legislation and are not covered by any of the exclusions set out in section 43 referred to above. Moreover, section 46 requires the selected contractors, when signing the contract, to produce certificates issued by the respective social institutions demonstrating that they are up-to-date with their social obligations. In this respect, the Committee wishes to emphasize, as it did in its 2008 General Survey on labour clauses in public contracts (paragraph 118), that the objective of the insertion of labour clauses in public contracts goes beyond simple certification, as its purpose is to eliminate the negative effects of competitive tendering on labour conditions. A mere indication that no violation of legislation has been recorded in relation to work already carried out by the entrepreneur is not sufficient to meet this requirement. Indeed, a certificate bears witness to the previous performance of the tenderer and the fact that the legislation has been respected but, in contrast with labour clauses, does not establish any binding requirement concerning the future work to be undertaken.

With regard to the Government’s remarks concerning collective agreements that have not been extended, the Committee emphasizes that Article 2(1)(a) of the Convention refers to all the collective agreements concluded between employers’ and workers’ organizations representative of a substantial proportion of employers and workers in the trade or industry concerned, and not solely collective agreements that have been extended. In its general observation of 1957, the Committee had already observed that it found itself unable to accept the view that, where legislation and collective agreements apply to all workers in a specific country, the Government was freed from the obligation to insert labour clauses in public contracts in accordance with the Convention. It emphasized in that respect that the insertion of labour clauses in public contracts may have positive advantages, particularly where collective agreements are not generally binding. That is the case in France, where not all collective agreements are extended by ministerial order. In the light of the above, the Committee requests the Government to keep the Office informed of any development, particularly in legislative terms, relating to the implementation of the Convention at the national level, and to provide a copy of any court decision or relevant official publication.