Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Spain (RATIFICATION: 1971)

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The Committee notes the observations of the Trade Union Confederation of Workers’ Commissions (CCOO) and the General Union of Workers (UGT), received on 11 and 17 August 2017, respectively. The Committee also notes the Government’s replies to the previous observations included in its report.

Article 2 of the Convention. Insertion of labour clauses in public contracts. Legislative developments. In its previous comments, the Committee noted that Royal Decree No. 3/2011, regarding the consolidated text of the Public Contracts Act, does not contain any provisions expressly requiring the inclusion of labour clauses in public contracts and therefore gives no effect to the Convention. The Committee therefore requested the Government to take the necessary measures to ensure that the Convention is fully implemented in law and in practice. The Committee notes that, in their observations, the workers’ organizations refer to the shortcomings in the previous legislation on public contracts in relation with the requirements under the Convention. They highlight aspects including the need to introduce legislative amendments that require the insertion of labour clauses in public contracts. In this respect, the Committee notes the adoption of Act No. 9/2017 (8 November 2017) on public sector contracts, which transposes the 2014 European Union Directive on public procurement into the Spanish legal framework. In its report, the Government indicates in general that the above Act relates to the provisions set out in the Workers Regulations in that the application of the collective agreements of the bidding enterprise prevail over that of the collective agreements governing the occupational groups carrying out the service. The UGT states in its observations that the transposition of the European Union Directive represents significant progress in socially responsible public procurement and that it could also contribute to remedying certain existing shortcomings in the previous legislation regarding public procurement. Lastly, the UGT refers to various provisions which set out limits to collective bargaining on the salaries of workers in the bidding enterprise, such as section 5 of Royal Decree No. 55/2017 (3 February 2017), which provides for the development of Act No. 2/2015 on exemptions from statutory indexation of 30 March, which provides that any revision of the cost of procurement based on an increase in the cost of labour shall be confined to any increase in public sector remuneration. In its reply, the Government indicates that this limit is intended to prevent, as a result of rulings against the administration, workers from bidding enterprises from gaining the status of public workers without going through the relevant selection procedure outside the public sector planning process. The Committee trusts that the Government is taking measures to ensure that the application of the new Act on public sector contracts is in conformity with the requirements of the Convention. The Committee requests the Government to provide information on the application in practice of the new Act, including extracts of relevant judicial decisions, summaries of inspection reports and information on the number and nature of the violations detected.

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Article 2 of the Convention. Insertion of labour clauses in public contracts. The Committee notes the Government’s explanations that the national public procurement legislation is in substantial conformity with the Convention since, first, workers engaged in the execution of public contracts are, in any event, guaranteed, wages and other working conditions not less favourable than those established by the general labour legislation, and secondly, section 60 of Royal Decree No. 3/2011 regarding the consolidated text of the Public Contracts Act ensures the screening of tenderers so that persons who may have been previously fined or sanctioned for violations of workers’ rights cannot be awarded public contracts. As the Committee has pointed out in its previous comment, the Government’s view is based on two incorrect premises, namely that the Convention offers an option to select among three different ways (collective agreement, arbitral award, law) of regulating the working conditions for its implementation, and that “certification” of tenderers has the same effect with labour clauses. The Committee is therefore obliged to reiterate that: (i) through the labour clauses the Convention seeks to guarantee that the workers concerned enjoy working conditions which are at least as advantageous as the best conditions among those established locally by collective agreement, or arbitral award or laws and regulations; and (ii) any “filtering” mechanism, such as certification of tenderers, at the pre-selection stage may be a useful tool but it is not sufficient to meet the core requirement of the Convention which is the insertion of labour clauses of the type prescribed in Article 2. Moreover, the Committee wishes to recall that with the exception of sections 118 and 119 which deal in general terms with the conditions of work relating to the performance of a public contract, Royal Decree No. 3/2011 does not contain any provisions expressly requiring the inclusion of labour clauses in public contracts and therefore gives no effect to the Convention. The Committee hopes that the Government will take timely action to ensure that the Convention is fully implemented in law and in practice.

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Article 2 of the Convention. Inclusion of labour clauses in public contracts. The Committee takes note of the observations of the Trade Union Confederation of Workers’ Committees (CC.OO.) set out in a communication of 13 August 2012. It notes that according to the CC.OO., Spanish legislation does not ensure implementation of the essential requirement set in the Convention, namely the inclusion of labour clauses in public contracts, in accordance with Article 2(1). The Committee notes that the CC.OO. refers to section 84(2) of the Workers’ Statute as amended by Royal Legislative Decree No. 3/2012 of 10 February 2012 to establish urgent measures for the reform of the labour market and by the eponymous Act of 6 July 2012, No. 3/2012. According to this provision, enterprise agreements take priority over sectoral collective agreements applying at national, autonomous community or a lower level, in respect of the amount of the wage, the payment of overtime, special remuneration for shift work, and working time and its distribution. The CC.OO. considers that application of the Convention is thus not guaranteed since an enterprise may, provided it meets the statutory minimum standards, establish conditions of work which are lower than those set in sectoral collective agreements and thus fall far short of the Convention’s requirement that they be at least as favourable as those established for work of the same character in the trade or industry concerned in the same district.

In its reply, received on 20 November 2012, the Government expresses the view that the new regulations on collective bargaining deriving from the labour law reform of 2012 do not impact on the application of Article 2(1) of the Convention. Firstly, according to the Government, the primacy of enterprise agreements over sectoral agreements does not affect at all the existence of sectoral agreements. Secondly, the Convention offers three regulatory benchmarks for evaluating the working conditions of persons employed by a contractor who has been awarded a public contract: a collective agreement covering a substantial number of employers and workers, an arbitration award, and national laws. The primacy attributed to enterprise agreements affects, therefore, only one of these benchmarks. The Government also indicates that all contractors, with respect to their employees, have to comply with obligations laid down by the labour legislation. This obligation is set out in most of the administrative specifications approved by the competent organs of the State, autonomous communities and local entities. Moreover, the Government refers to Royal Legislative Decree No. 3/2011 of 14 November 2011 regarding the consolidated text of the Public Contracts Act, section 60 of which prohibits persons who have been convicted for offences against workers’ rights or who have been sanctioned for very serious violations in social matters to be parties to a public contract. The Government concludes that there is no special social legislation for enterprises which conclude contracts with the public administration, as the general legislation applies to them in all matters.

The Committee notes the adoption of Royal Legislative Decree No. 3/2011 which repeals in particular Act No. 30/2007 of 30 October 2007 on public contracts, to which the Committee referred in its previous comment. It observes, however, that this text, just like the previous legislation, does not give effect to the main provisions of the Convention, and, in particular, it does not require the insertion of labour clauses of the type prescribed by Article 2(1) of the Convention in all public contracts to which it applies. In fact, contrary to what the Government maintains, this provision does not offer an option to select among three different ways of regulating the working conditions for its implementation. In reality, what the Convention requires is that enterprises must provide workers engaged in the execution of public contracts with wages and other conditions of work which are at least as favourable as the highest standards established in the same region by collective agreement, arbitration award or legislation. When, as in the case of Spain, labour legislation only fixes minimum standards that are improved through collective bargaining, the application of the general labour legislation to the conditions of execution of public contracts is not sufficient to ensure the application of the Convention.

Furthermore, the collective agreements referred to in Article 2(1) of the Convention are those established for work of the same character in the district where work is carried on for the execution of the public contract, and applied to a substantial proportion of the employers and workers in the trade or industry concerned. In this regard, the Committee notes that under section 84(2) of the Workers’ statute, as amended by Royal Legislative Decree No. 3/2012 and by Act No. 3/2012 of 6 July 2012, enterprise agreements may derogate from sectoral agreements with respect to, among others, wages and working time. The collective bargaining reform adopted in 2012 does not appear, therefore, to ensure the implementation of the Convention, in so far as an enterprise party to a public contract may conclude an enterprise agreement providing for less favourable working conditions than those fixed under collective agreements applicable to a substantial proportion of employers and workers in the sector of economic activity concerned.

The Committee also notes that under section 73 of Royal Legislative Decree No. 3/2011, contractors may, by means of a declaration before a judge or an administrative certificate, prove that they are not banned from being parties to a public contract by virtue of section 60 of the same Decree. It observes that this provision, even though it may be a useful tool to fight against infringements of the labour legislation, is not sufficient to ensure full conformity with the Convention. Firstly, as indicated above, labour clauses seek to ensure compliance not only with the labour legislation, but also with applicable collective agreements and arbitration awards. In addition, as the Committee has pointed out in its 2008 General Survey on labour clauses in public contracts (paragraph 118), the insertion of labour clauses in public contracts under the Convention goes beyond the aims of simple certification, as its purpose is to eliminate the negative effects of competitive tendering on the workers’ labour conditions. The mere indication that the contractor concerned has no record of labour law violation in previously completed works is not sufficient to meet its requirements. In fact, certification offers some proof about tenderers’ past performance and law-abiding conduct but carries no binding commitment with regard to prospective operations as labour clauses do.

In light of the foregoing, the Committee is bound to conclude that the national legislation does not give effect to Article 2(1) of the Convention, and urges the Government to take without delay the necessary measures in order to bring the national legislation into conformity with the Convention. It requests the Government to keep the Office informed of any decision it intends to take in this regard.

[The Government is asked to reply in detail to the present comments in 2013.]

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Article 2(1) of the Convention. Inclusion of labour clauses in public contracts. The Committee refers to new Act 30/2007 of 30 October 2007 concerning public sector contracts, to which the Government referred in its last report but which could not be examined in detail owing to its date of adoption. The Committee notes that, with the exception of sections 102, 103 and 134, which deal in general terms with the conditions of work relating to the performance of a public contract, the Act in question does not contain any provisions requiring the inclusion of labour clauses in public contracts and therefore gives no effect to the Convention. In this regard, the Committee draws the Government’s attention to its General Survey of 2008 on labour clauses in public contracts, particularly paragraphs 98–121, describing in detail the nature and content of the principal obligations imposed by Article 2, paragraph 1, of the Convention. According to this provision, public contracts to which the Convention applies must contain clauses ensuring to the workers concerned wages, hours of work, and other conditions of labour which are not less favourable than the most advantageous conditions established for work of the same character in the same area by collective agreement, arbitration award or national laws or regulations. The Committee hopes that the Government will take the necessary measures to give full effect to the provisions of the Convention. In this regard, it attaches a Practical Guide drawn up by the Office largely on the basis of the conclusions of the abovementioned General Survey. Furthermore, the Committee requests the Government to reply to its previous comment concerning the following points: applicability of clause 11 of Decree No. 3854/1970, the adoption of general administrative clauses of a social nature by the local authorities and the practical application of the Convention (Part V of the report form).

For all useful purposes, the Committee attaches herewith a copy of a Practical Guide, prepared by the Office principally on the basis of the General Survey of 2008 on Convention No. 94, to help better understand the requirements of the Convention and ultimately improve its application in law.

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Article 2, paragraph 1, of the Convention. Inclusion of labour clauses in public contracts. The Committee notes the Government’s report, which mentions the adoption of a new Act on public sector employment and a collective agreement covering the staff of the central administration of the State. However, it draws the Government’s attention to the fact that the Convention does not deal with the working conditions of civil servants, but prescribes the inclusion of labour clauses in contracts relating to the execution of public contracts for works, supplies or services.

The Committee recalls that, in its previous comments, it found that clause 11 of Decree No. 3854/1970 of 31 December 1970 approving the Schedule of general clauses for the conclusion by the State of works contracts, relating to the contractor’s social and labour obligations, ensured the application of Article 2 of the Convention.

The Committee notes that public contracts have been the subject of new national regulations. It notes the adoption of Royal Legislative Decree No. 2/2000 of 16 June 2000, approving the consolidated text of the Act on contracts awarded by public administrations, as well as the adoption of Royal Decree No. 1098/2001 of 12 October 2001, approving the general regulations implementing this Act. The Committee notes in particular the single repealing provision contained in this Decree, which does not explicitly provide for the repeal of Decree No. 3854/1970 of 31 December 1970 mentioned above. It also notes paragraph 3 of this provision, under which all the provisions which rank on a par with or lower than Decree No. 1098/2001 are repealed, in so far as they are contrary to that provision and have not been repealed by the Act on contracts awarded by public administrations. The Committee observes that certain provisions of Decree No. 3854/1970 have been incorporated in Decree No. 1098/2001, in some cases with variations, so it would appear that the corresponding clauses of the first Decree ought to be taken as repealed. However, it notes that Decree No. 1098/2001 does not contain any provisions similar to those of clause 11 of Decree No. 3854/1970, which ensured the application of Article 2 of the Convention. The Committee therefore requests the Government to confirm that this clause is still in force.

Moreover, the Committee notes with interest the Schedule of general administrative clauses of a social nature for public contracts, adopted by the municipal authorities of Seville on 24 May 2007. It notes, in particular, section 4, paragraph 1 of this document, under which every contractor undertakes to comply, during the execution of the contract, with the labour standards in particular, whether these are contained in a branch- or enterprise-level collective agreement, in the Act issuing the conditions of service of workers or in the General Social Security Act. The Committee further notes that this document also requires contractors to comply with other social obligations concerning the employment of persons with disabilities; the prevention of occupational hazards; the integration of persons encountering particular difficulties in accessing employment; the access of women to employment on an equal footing in sectors where they are under-represented by comparison with men; stability of employment; and the adoption of measures to facilitate the reconciliation of working and family life. The Committee requests the Government to indicate whether other local or regional authorities have adopted regulations of this type and, if so, to send a copy and to provide any useful information on this subject.

Furthermore, the Committee notes the adoption of Act No. 30/2007 of 30 October 2007 on public sector contracts, which the Committee intends to examine at its next session.

Part V of the report form. The Committee requests the Government to provide general information on the manner in which the Convention is applied in practice, including, for example, extracts from the reports of the inspection services, as well as details of the number and nature of the contraventions reported.

Finally, the Committee seizes this opportunity to refer to this year’s General Survey which contains an overview of public procurement practices and procedures in so far as labour conditions are concerned and makes a global assessment of the impact and present-day relevance of Convention No. 94.