Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Türkiye (Ratification: 1961)

With reference to its previous observation, the Committee notes the Government's report, including the provisions of the attached "General Specifications for Public Works", as well as the comments made by the Confederation of Turkish Trade Unions (TURK-IS) and the Turkish Confederation of Employers' Association (TISK).

Road, building and construction sector

In its previous observation, the Committee noted the comments made by the TURK-IS, with reference to the spreading practice of subcontracting, that the collective labour agreement concluded by the General Directorate of Highways and the Road, Building and Construction Workers' Union of Turkey (YOL-IS) was not applied to the employees of the contractors and subcontractors of the General Directorate. The Committee notes that, according to TURK-IS, there has been no positive steps taken to ensure the implementation of the Convention in this sector.

The Government refers, in response, to the provisions of Decree No. 88/13168 dated 1 November 1988 concerning general principles governing working conditions (labour clause) to be included in public contracts, and in particular to its section 2(b) stipulating that a contractor must secure to the workers employed wages and other conditions of work that are not less favourable than those established by legislation or collective agreement for work of the same character in the trade or industry concerned. In addition, the "General Specifications for Public Works" contains provisions in its section 33 on the application of penal provisions in the case of violation by contractors of the required labour conditions. The TISK also refers to the provisions of the same Decree and the "General Specifications for Public Works" in its comments.

The Committee recalls that it noted the above Decree already in 1989. It further notes that the text of the "General Specifications" provided with the Government's report indeed contains provisions corresponding to the labour clauses in line with Article 2(1) of the Convention (section 33(13) reads: "the contractor shall ensure to the workers he employs wages and other conditions of work that are not less favourable than those established by legislation or collective agreement for work of the same character in the trade or industry concerned ..."), and also stipulates the application of penal provisions in the case of violation (section 33(14)) as well as a system of supervision by the control body (section 33(3) and the following).

The Committee notes from the above information that the existing legislative provisions and the "General Specifications" are in conformity with the requirements of the Convention. It points out that the present issue relates to the application in practice of the national provisions that give effect to the Convention. The Government however indicates in the report that there are no difficulties regarding the application of the Convention in practice. The Committee therefore urges the Government to supply full information on the measures taken or envisaged to ensure that, in accordance with the above provisions of the Decree and the "General Specifications", the workers employed by public contractors enjoy wages and other conditions of work that are not less favourable than those established by the existing collective agreement for work of the same character in the sector of road, building and construction. It asks the Government to indicate, in particular, the functioning of the control body under section 33 of the "General Specifications" and the inspection under section 4 of Decree No. 88/13168, including the number and nature of the cases in which violations are observed and penal sanctions are actually applied in accordance with the provisions referred to.

Contracts for the manufacture and assembly of materials

The TURK-IS also points out that Decree No. 88/13168 covers only contracts concerning construction, services, earth-moving and transportation of materials, and that the alteration, repair or demolition of public works and the manufacture and assembly of materials, supplies or equipment are excluded from the obligation of labour clauses under this Decree. The Committee notes this observation and recalls that it has raised the point under the previous direct requests, asking the Government to take the necessary measures to ensure that the labour clauses referred to in Article 2 of the Convention are included in public contracts for all the activities covered by the Convention.

The Committee notes that the Government again states, in the report, that the activities that are outside the scope of Decree No. 88/13168 are covered by Labour Act No. 1475. The Committee points out that the fact of the general labour legislation being applicable to the activities concerned does not release the Government from the obligation to take the necessary measures to ensure the inclusion of labour clauses in public contracts for the said activities. This is because the minimum standards fixed by law are often improved upon by means of collective bargaining or otherwise and also because the provision of penalties, such as the withholding of payments to the contractor make it possible to impose more directly effective sanctions in case of infringements.

The Committee therefore requests the Government to supply information on the measures taken or envisaged to ensure the insertion of labour clauses in accordance with Article 2 in all contracts covered by Article 1(c)(i) and (ii) by means of extending the application of Decree No. 88/13168 or otherwise.

Awareness raising

The Committee also notes the comment of the TURK-IS on the non-observance of Article 2(4) of the Convention under which the competent authority should take measures by advertising specifications or otherwise, to ensure that persons tendering for contracts are aware of the terms of the labour clauses. It asks the Government to indicate measures taken or envisaged to bring the relevant provisions of the Decree and the "General Specifications" to the attention of tenderers for public contracts.

[The Government is asked to report in detail in 1997.]