Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Algeria (RATIFICATION: 1962)

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Article 2 of the Convention. Inclusion of labour clauses in public contracts. In its previous comment, the Committee requested the Government to take the necessary additional measures in the near future to ensure the full application of the Convention and to keep the Office informed of any further developments in this respect. The Committee notes that the Government has approved new regulations for public contracts implemented by Presidential Decree No. 15-247, of 16 September 2015, governing public contracts and public service delegation contracts, which entered into force on 20 December 2015. The Committee notes that these new regulations do not give full effect to Article 2 of the Convention, which provides that public contracts shall include clauses specifically ensuring to the workers concerned wages, hours of work and other conditions of labour which are not less favourable than those established either by collective agreement, by arbitration award or by national laws or regulations. Furthermore, the “internal regulations” to which the Government refers in its report, under which the employer is required to set out the rules regarding the technical organization of the work, occupational safety and health and discipline, are not sufficient to ensure the full application of Article 2 of the Convention. In this context, the Committee recalls its previous comments, in which it emphasized that the Convention also requires the fulfilment of other obligations, namely consultation of the employers’ and workers’ organizations concerned with respect to the terms of the labour clauses (Article 2(3)); the posting of the applicable conditions of work in the workplace, including the wages paid, and not only, as indicated in the Government’s report, the hours of work, periods of closure for leave and safety instructions, all with a view to duly informing the workers involved (Article 4); and, in the event of failure to observe and apply the labour clauses, adequate penalties such as the withholding of public contracts or payments to the enterprises concerned (Article 5). In this respect, the Committee notes that the Decree of 19 December 2015, to which the Government refers in its report, does not give effect to Article 5 of the Convention and concerns corruption rather than the working conditions of workers. The Committee therefore once again requests the Government to take the necessary measures to give full effect to the Convention with particular attention to the requirements of consultation, adequate notice and dissuasive sanctions, as mentioned above and to provide the Office with information on any further developments.

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Article 2 of the Convention. Inclusion of labour clauses in public contracts. The Committee notes the Government’s indications that steps have been taken to ensure the application of the provisions of section 14 of the Presidential Decree of 26 October 2008 obliging all public operators to incorporate in all public contracts a clause requiring observance of national labour law. It notes that correspondence describing the terms of this obligation was sent to the General Secretary of the Ministry of Finance and also to the President of the Procurement Board at the Ministry of Labour, Employment and Social Security. However, the Committee pointed out in its previous comment that the inclusion in public contracts of clauses simply requiring compliance with the labour legislation is insufficient to give effect to the core requirement of the Convention. The Convention states that public contracts must include clauses ensuring that workers employed in the execution of the contracts receive wages and enjoy other conditions of work which are not less favourable than those established for work of the same character in the same region and the same sector of activity by national law or regulations, collective agreement or arbitration award. In other words, the workers concerned must have conditions of work not less favourable than the best conditions provided by the three aforementioned alternatives. Hence it often happens that minimum conditions relating to wages or hours of work are improved either for the whole economy or for a given sector of activity through a collective agreement. In this case, the mere application of the labour legislation in the context of public contracts would be insufficient to provide these workers with the best conditions of work that exist.

The Government also indicates in its report that bidders are required, at the time they submit their tenders, to provide a certificate that they are up to date with their contributions to the National Social Security Fund. However, as the Committee emphasized in its 2008 General Survey on labour clauses in public contracts (paragraph 118), certification that the contractor concerned has complied with labour law and paid the appropriate social security contributions offers some proof of his past performance but, unlike labour clauses, offers no binding commitment with respect to the performance of future work.

The Committee also recalls that in its previous observation it emphasized that the Convention also requires the fulfilment of other obligations, namely consultation of the employers’ and workers’ organizations concerned with respect to the terms of the labour clauses (Article 2(3)); the posting of notices in conspicuous places at the establishments concerned with a view to duly informing the workers (Article 4); and, in the event of failure to observe and apply the labour clauses, adequate penalties such as the withholding of contracts or the withholding of payments to the enterprises concerned (Article 5).

The Committee again expresses the hope that the Government will take the additional measures in the near future that are needed to ensure the full application of the Convention. It requests the Government to keep the Office informed of any further developments in this respect.

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Article 2 of the Convention. Insertion of labour clauses in public contracts. Further to its previous observation, the Committee notes the adoption of Presidential Decree No. 08-338 of 26 October 2008, section 14 of which amends section 50 of Presidential Decree No. 02-250 of 24 July 2002 on public procurement regulations to add “the labour clauses ensuring the observance of labour legislation” among the contractual provisions which need to be mentioned in every public contract. While noting that a reference to labour clauses is made for the first time in the public procurement legislation, the Committee wishes to draw the Government’s attention to the following: first, as currently worded, section 14 of the Presidential Decree of 2008 refers generally to clauses guaranteeing respect for labour legislation but fails to give effect to the core requirement of the Convention which is the insertion of labour clauses expressly providing for wages, hours of work and other working conditions of the workers concerned that need to be aligned, as a minimum, to best local standards established through collective bargaining, arbitration or legislation – whichever is the most favourable. The Committee refers, in this respect, to paragraph 41 of the General Survey of 2008 on labour clauses in public contracts in which it emphasized that the general applicability of national labour law to work done in the execution of public contracts is not the focus of the Convention since there would be very little meaning in adopting a Convention that would simply affirm that work for public contracts must comply with relevant labour legislation. It also refers to paragraph 103 of the same General Survey in which it pointed out that conditions not less favourable than the three alternatives offered by the Convention (i.e. collective agreement, arbitration award, legislation) would in practice, in most instances, imply the best conditions of the three.

Second, the terms of the labour clauses to be included in public contracts and any variations must be determined after consultation with the organizations of employers and workers concerned, as required by Article 2(3) of the Convention. Third, the Convention requires specific measures for the enforcement of the provisions of the labour clauses, including the posting of notices in conspicuous places at the workplaces concerned with a view to informing the workers of the conditions applicable to them (Article 4) and adequate sanctions such as the withholding of contracts or the withholding of payments (Article 5).

In light of the preceding observations, the Committee hopes that the Government will take additional steps to ensure the effective implementation of the Convention. It recalls, in this respect, that such steps do not necessarily imply legislative enactment but may entail administrative instructions or circulars and asks the Government to provide supplementary information, including copies of any newly adopted texts, on measures taken or envisaged in order to bring the national legislation into conformity with the Convention. The Committee would also appreciate receiving sample copies of any recently awarded public contracts which have incorporated labour clauses in accordance with section 50 of Presidential Decree No. 02-250 of 2002, as amended by section 14 of Presidential Decree No. 08-338 of 2008.

Finally, the Committee attaches herewith a copy of the Practical Guide on Convention No. 94 which was prepared by the Office in September 2008 based on the conclusions of the aforementioned General Survey to help better understand the requirements of the Convention and ultimately improve their application in law and practice.

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The Committee notes that the Government’s succinct report contains no reply to its previous comments. The Committee recalls that it has been drawing the Government’s attention for some time past to the absence of specific legislation or regulations giving effect to the main requirements of the Convention, in particular the use of labour clauses in public procurement to ensure that all workers engaged in the execution of public contracts receive wages and enjoy conditions of labour which are not less favourable than the most favourable practised in the area and the sector concerned.

Regrettably, the Government appears not to have fully understood the scope and purpose of the Convention by taking the view that compliance is ensured simply because public contracts are covered by general labour legislation and their execution is controlled by the labour inspection services. As it has been pointed out on several occasions, the mere fact of the labour legislation being applicable to all workers does not release governments bound by this Convention from their obligation to take the necessary measures to ensure that public contracts contain the labour clauses specified in Article 2 of the Convention.  In circumstances where the conditions of employment of workers are fixed not only by national legislation but also by collective agreements or arbitration awards, and where the provisions of the national legislation respecting wages, hours of work and other conditions of employment set out minimum standards which may be exceeded by collective agreements, the insertion of labour clauses can serve a very useful purpose in ensuring that the workers concerned enjoy wages and other labour conditions at least as good as the most favourable conditions applicable to workers performing similar work in the same area.

The Committee understands that new standard specifications for competitive bidding are now under preparation, including the general administrative clauses (CCAG) and the general technical clauses (CPS) referred to in section 9 of Presidential Decree No. 02-250 of 24 July 2002 on public procurement regulations. The Committee hopes that the Government will take the necessary action to ensure that the new specifications for public tendering are fully consistent with the provisions of Article 2(1) (insertion of labour clauses), Article 2(3) (consultation with employers’ and workers’ organizations on the terms of the labour clauses), Article 2(4) (measures to inform tenderers of the terms of the clauses), Article 4 (posting of notices and maintenance of records) and Article 5 (sanctions for failure to observe the provisions of labour clauses) of the Convention. To this end, the Committee transmits herewith a copy of an explanatory note established by the Office concerning the objectives of the Convention and the practical way in which legislative conformity may be ensured with its provisions. The Committee asks the Government to provide information in its next report on progress made in this regard.

Finally, the Committee would be grateful to the Government for supplying, in accordance with Article 6 of the Convention and Part V of the report form, up to date information on the application of the Convention in practice, including for instance specimen copies of forms of public contracts currently in use, available statistics on the number of contracts awarded and the number of workers covered by these contracts during the reporting period, extracts from official reports addressing labour-related questions in public procurement as well as information from the labour inspection services on the supervision and enforcement of relevant laws and regulations.

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The Committee recalls its previous request in which it noted that the Presidential Decree No. 02-250 of 24 July 2002 on public contracts regulations does not make explicit provision for labour clauses ensuring to the workers concerned wages, hours of work and other labour conditions which are not less favourable than those established by collective agreement, arbitration award or national laws for work of the same character in the same area, and therefore the national legislation has not as yet given effect to the requirement of Article 2 of the Convention. The Committee has further requested the Government to provide copy of the standard specifications, such as general administrative clauses, used in competitive bidding, as provided for in section 9(1) of the abovementioned Decree. In its reply, the Government states that such specifications or copies of public contracts containing labour clauses are unavailable and adds that, in any event, the clauses contained in public contracts may not run counter to the provisions of the general labour legislation.

The Committee takes this opportunity to recall that the mere fact of the national legislation being applicable to all workers, including those employed in public works, does not release ratifying States from the obligation to draft and insert into public contracts labour clauses which are fully consistent with the letter and the spirit of the Convention. The rationale behind the Convention’s basic rule is that in making contractual commitments for the expenditure of State funds public authorities should avoid social dumping and set a standard of fairness by not applying conditions that are less favourable than the most favourable practised in the area and the sector concerned. Therefore, the sole reference to legislation that only provides for minimum standards may not be sufficient, if more favourable conditions flow from collective agreements, other recognized machinery of negotiation or arbitration.

The Committee hopes that the Government will make every effort to bring the national legislation into full conformity with the Convention and recalls that the technical assistance of the Office is available in this regard should the Government so desire.

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The Committee notes the report provided by the Government and the adoption of Presidential Decree No. 02-250 of 24 July 2002 issuing regulations respecting public contracts. It notes that these new regulations, and particularly section 50, do not appear to give effect to Article 2 of the Convention which requires that public contracts explicitly include clauses ensuring to the workers concerned wages, hours of work and other conditions of labour which are not less favourable than those established by means of one of the three alternative means specified in the Convention, namely collective agreement, arbitration award or national laws or regulations. The Committee therefore requests the Government to provide with its next report copies of the public contracts in force in Algeria so that it can determine whether they contain clauses giving effect to Article 2 of the Convention. In practical terms, the Committee wishes to be provided with copies of the schedules of general administrative clauses and of common requirements, as well as the related ministerial orders envisaged in section 9 of the Decree issuing regulations respecting public contracts.

The Committee recalls in this respect that the fundamental objective of the Convention is to ensure to workers employed by an entrepreneur and paid indirectly through public funds, through the inclusion of appropriate labour clauses in public contracts, wages and conditions of labour that are at least as satisfactory as the wages and conditions normally established for the type of work in question, whether they are determined by collective agreement or otherwise. Noting that the Government has continued to refer for over ten years to Act No. 90-11 of 21 April 1990 respecting labour relations and Act No. 88-07 of 25 January 1988 respecting health, safety and occupational medicine, as if their application sufficed in itself to give effect to the provisions of the Convention, the Committee is bound to reiterate its previous comments on this matter. It recalls that the labour clauses which have to be explicitly included in public contracts must not be less favourable than those established for workers performing similar work. As a consequence, when the wages and other conditions of labour applicable to a substantial proportion of the workers in a trade or industry are established by collective agreement, the Committee is of the opinion that effect would not be given to the Convention in the event that the conditions of labour applicable to workers in enterprises that have concluded public contracts were less favourable than those deriving from the above collective agreements. The Committee also considers that the application to workers in the contracting enterprises of conditions of labour corresponding to the statutory minimum levels is not such as to comply with Article 2 of the Convention unless such conditions are also those applicable to workers performing work of the same character. The Committee hopes that the Government will take all the necessary measures to give full effect to this provision of the Convention without further ado and that it will provide detailed information in this respect.

[The Government is asked to reply in detail to the present comments in 2004.]

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

1. Further to its previous comments, the Committee notes the Government’s repeated reference in its report to Act No. 90-11 of 21 April 1990 concerning labour relations, which applies to both public and private sectors and Act No. 88-07 of 26 January 1988 concerning health, safety and occupational medicine as well as the texts issued under these two Acts. The Government states that the labour clauses which must be mentioned in public contracts are those set out in these Acts and regulations.

The Committee notes, however, that the standards prescribed by these Acts are minimum standards and that the parties are free to agree, collectively or individually, on more favourable conditions. The Committee points out that the fact that the provisions of these Acts are included in public contracts does not release the Government from the obligation to take the necessary steps to ensure that public contracts contain the labour clause guaranteeing the workers concerned conditions of labour (including wages) which are not less favourable than those established for work of the same character in the trade or industry concerned in the same district in accordance with Article 2 of the Convention. The Committee hopes that measures will be taken to give effect to this provision of the Convention and requests the Government to provide information in this regard.

2. The Committee, in its earlier comments, noted the Government’s indication that new provisions had been adopted concerning the Public Contracting Code and requested the Government to provide the text of them. Noting that the Government’s report does not contain information on this matter, the Committee once again requests the Government to supply a copy of the text and information on any other measures taken or envisaged to ensure the application of the Convention.

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which reads as follows:

1.  Further to its previous comments, the Committee notes the Government’s repeated reference in its report to Act No. 90-11 of 21 April 1990 concerning labour relations, which applies to both public and private sectors and Act No. 88-07 of 26 January 1988 concerning health, safety and occupational medicine as well as the texts issued under these two Acts. The Government states that the labour clauses which must be mentioned in public contracts are those set out in these Acts and regulations.

The Committee notes, however, that the standards prescribed by these Acts are minimum standards and that the parties are free to agree, collectively or individually, on more favourable conditions. The Committee points out that the fact that the provisions of these Acts are included in public contracts does not release the Government from the obligation to take the necessary steps to ensure that public contracts contain the labour clause guaranteeing the workers concerned conditions of labour (including wages) which are not less favourable than those established for work of the same character in the trade or industry concerned in the same district in accordance with Article 2 of the Convention. The Committee hopes that measures will be taken to give effect to this provision of the Convention and requests the Government to provide information in this regard.

2.  The Committee, in its earlier comments, noted the Government’s indication that new provisions had been adopted concerning the Public Contracting Code and requested the Government to provide the text of them. Noting that the Government’s report does not contain information on this matter, the Committee once again requests the Government to supply a copy of the text and information on any other measures taken or envisaged to ensure the application of the Convention.

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The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following matters raised in its previous direct request:

1. Further to its previous comments, the Committee noted the Government's reference in the previous report to Act No. 90-11 of 21 April 1990 respecting labour relations, which applies to both public and private sector and sets forth standards of employment relationships including the statutory hours of work and procedures for minimum wage fixing. The Committee, however, noted that what is prescribed by this Act is minimum standards and that parties are free to agree, collectively or individually, upon more favourable conditions. The Committee therefore points out that the fact of this Act being applicable to all workers does not release the Government from the obligation to take the necessary steps to ensure that public contracts contain the labour clause guaranteeing the workers concerned conditions of labour (including wages) which are not less favourable than those established for work of the same character in the trade or industry concerned in the same district in accordance with Article 2 of the Convention. The Committee hopes that measures will be taken to give effect to this provision of the Convention and requests the Government to keep it informed.

2. The Committee, in its earlier comments, noted the Government's indication that new provisions had been adopted concerning the Public Contracting Code and requested for their text. Noting that the Government's latest report does not contain information in this regard, the Committee once again requests the Government to supply information on any measures taken or envisaged to ensure the application of the Convention.

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1. Further to its previous comments, the Committee notes the Government's repeated reference in its report to Act No. 90-11 of 21 April 1990 concerning labour relations, which applies to both public and private sectors and Act No. 88-07 of 26 January 1988 concerning health, safety and occupational medicine as well as the texts issued under these two Acts. The Government states that the labour clauses which must be mentioned in public contracts are those set out in these Acts and regulations.

The Committee notes, however, that the standards prescribed by these Acts are minimum standards and that the parties are free to agree, collectively or individually, on more favourable conditions. The Committee points out that the fact that the provisions of these Acts are included in public contracts does not release the Government from the obligation to take the necessary steps to ensure that public contracts contain the labour clause guaranteeing the workers concerned conditions of labour (including wages) which are not less favourable than those established for work of the same character in the trade or industry concerned in the same district in accordance with Article 2 of the Convention. The Committee hopes that measures will be taken to give effect to this provision of the Convention and requests the Government to provide information in this regard.

2. The Committee, in its earlier comments, noted the Government's indication that new provisions had been adopted concerning the Public Contracting Code and requested the Government to provide the text of them. Noting that the Government's report does not contain information on this matter, the Committee once again requests the Government to supply a copy of the text and information on any other measures taken or envisaged to ensure the application of the Convention.

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1. Further to its previous comments, the Committee notes the Government's reference in the report to Act No. 90-11 of 21 April 1990 respecting labour relations, which applies to both public and private sector and sets forth standards of employment relationships including the statutory hours of work and procedures for minimum wage fixing. The Committee, however, notes that what is prescribed by this Act is minimum standards and that parties are free to agree, collectively or individually, upon more favourable conditions. The Committee therefore points out that the fact of this Act being applicable to all workers does not release the Government from the obligation to take the necessary steps to ensure that public contracts contain the labour clause guaranteeing the workers concerned conditions of labour (including wages) which are not less favourable than those established for work of the same character in the trade or industry concerned in the same district in accordance with Article 2 of the Convention. The Committee hopes that measures will be taken to give effect to this provision of the Convention and requests the Government to keep it informed.

2. The Committee, in its earlier comments, noted the Government's indication that new provisions had been adopted concerning the Public Contracting Code and requested for their text. Noting that the Government's latest report does not contain information in this regard, the Committee once again requests the Government to supply information on any measures taken or envisaged to ensure the application of the Convention.

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1. With reference to its previous comments, the Committee notes the Government's statement in its report that the contracts to which this Convention applies contain clauses ensuring to the workers concerned remuneration and conditions of work identical to that of other workers employed to work of the same character. The Government also indicates in its report that the majority of contracts to which the Convention applies are issued by the State and that the provisions of the legislation and national regulations that are in force are applied to all workers.

2. The Committee recalls that Article 2 of the Convention ensures for workers engaged under public contracts, conditions of labour (including wages) which are not less favourable than those established for other workers performing the same work in the trade or industry concerned in the same district. The fact of guaranteeing to workers engaged under these contracts the application of the relevant provisions of the labour legislation does not necessarily ensure the application of this Article of the Convention. The Committee recalls that the Decree of 10 April 1937, amending the Decree of 10 August 1899 respecting conditions of work in public contracts concluded by the Departments, which was repealed by Ordinance No. 73 of 29 July 1973, contained provisions that fulfilled the requirements of Article 2 of the Convention, namely making compulsory the wages and conditions of work in force in the locality or district where the work is carried on and requiring that these conditions of work are not less favourable than the general level observed for employers belonging to the same trade or industry. Furthermore, the Government indicates in its report that examples of public contracts in use in Algeria were not available when the report was written. Consequently, the Committee is not able to determine whether such contracts contain clauses which would give effect to the provisions of Article 2 of the Convention. The Committee requests the Government to indicate measures in the form of legislation that have been taken or are envisaged to give effect to this provision of the Convention.

3. The Committee recalls that the Government indicated in its previous reports that new provisions had been adopted concerning the Public Contracting Code. The Committee once again hopes that the Government will supply the text of any new measure that is in force to ensure the application of the Convention.

4. The Committee notes, from the Government's report, that examples of contracts in use in Algeria and data on the number of workers covered by them and the number of contracts concluded were not available when the report was written and that this information will be supplied once it is transmitted by the departments concerned. The Committee hopes that the Government will be able to transmit this information with its next report.