Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

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

With reference to its previous observation, the Committee notes the Government's report, as well as the comments attached to it made by the Confederation of Turkish Trade Unions (TURK-IS) and the Turkish Confederation of Employers' Association (TISK). It notes that the comments of TURK-IS supplied with the Government's report is identical to the one received by a letter dated 17 June 1996.

The Committee recalls that the Governing Body at its 270th Session noted an interim report of its Officers concerning a representation made by the Confederation of Turkish Trade Unions (TURK-IS) by a letter dated 17 June 1996, which referred to article 24 of the ILO Constitution, and which alleged non-observance by Turkey of the Convention. According to paragraph 5 of this report of its Officers, the Governing Body considers that the receivability of the representation should be established in the light of further developments in the ongoing procedure initiated by TURK-IS, i.e. the examination by the Committee of Experts of the same information received by a letter also dated 17 June 1996 and its follow-up.

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 Government again refers, regarding this point, to the existing legislative provisions, such as Decree No. 88/13168 concerning general principles governing working conditions (labour clause) to be included in public contracts, and the "General Specifications for Public Works", the text of which was supplied with the Government's previous report, and which indeed contain provisions corresponding to the labour clauses in line with Article 2(1) of the Convention. According to the Government, the "General Specifications" are always enclosed in the public contract falling within their scope. The Government further declares in the report that the relevant national provisions should be presumed to have been applied in practice since the competent administrative authorities are responsible for compliance. It adds that in case of a breach, the case can always be brought to court by the employees and three examples of court decisions are attached to the report.

The Committee recalls that the existing legislative provisions and the "General Specifications" are in conformity with the requirements of the Convention. It again points out that the present issue relates to the application in practice of the national provisions that give effect to the Convention.

The Committee recalls that the "General Specifications" include provisions (section 33 (paragraph 14)) stipulating the application of penal provisions under section 47, which implies the possibility of the public administration terminating the contract in the case of failure to comply with the working conditions prescribed in the labour clause contained in the preceding paragraph of the same section. It notes that this provision itself is in conformity with Article 5 of the Convention, which calls for adequate sanctions by withholding of contracts or otherwise for failure to observe and apply the provisions of the labour clause. The Committee notes, however, the Government's indication in the report that there has been no recourse to termination of a contract for reasons of non-compliance with labour clauses during the reporting period (1 July 1996 to 31 May 1997). It recalls that one of the reasons for using labour clauses in public contracts to protect working conditions is that the provision of penalties, such as the withholding of payments to the contractor, makes it possible to impose more directly effective sanctions in case of infringements. The Committee therefore asks the Government to continue to supply information on the application of the above provisions in practice.

The Committee also requests the Government to supply information on 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 actually applied in accordance with the provisions referred to. It also asks the Government to continue to indicate any further 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.

Contracts for the manufacture and assembly of materials

The TURK-IS also pointed out that Decree No. 88/13168 covered 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 that the Government refers to section 4 of Act No. 2886/1983 concerning public tender, which defines "service" to include "research, drilling, manufacture, prototype manufacture, exploration, study, map planning, project making, supervision, counselling and all kinds of similar services contracted out to a natural or legal person"; "construction" is also defined to include "all kinds of construction, preparation, manufacturing, drilling, installation, restoration, demolition, alteration, improvement, renovation and assembly works"; and "transportation" to include "loading, moving, unloading, storing and packing". The Government also indicates that Decree No. 88/13168 covers contracts relating to construction, services, earth-moving and transportation of materials, while the "General Specifications" embraces within its scope only construction and service activities as defined in article 4 of Act No. 2886.

The Committee notes that according to these definitions under article 4 of Act No. 2886, Decree No. 88/13168 is applicable to all contracts covered by Article 1(c)(i) and (ii). It asks the Government to supply information on its application in practice to the public contracts for the manufacture and assembly of materials.

Awareness raising

As regards 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, the Government indicates that the Decree and the "General Specifications" are the standard appendices to the public contracts, of which the contractors are undoubtedly aware. The Committee asks the Government to supply information on measures taken or envisaged to bring the relevant provisions of the Decree and the "General Specifications" to the attention of tenderers for public contracts, at the stage of tendering before the public contract is awarded.