Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Aruba

The Committee has been requesting the Government for many years to take the necessary measures to give effect to the requirements of the Convention, especially with regard to the insertion of express labour clauses in all public contracts ensuring to the workers concerned, wages, hours of work and other conditions of labour not less favourable than those established for work of the same character in the trade or industry concerned in the same district. In its reply to the Committee’s previous observation, the Government reiterates that, the general labour legislation being applicable to all public contracts, there is no need for additional terms to be included in those contracts. It also refers to the Uniform General Instructions (UAV) which regulate all agreements concluded between the Government and a contractor, and which explicitly provide for the application of Aruban law to those agreements. The Government further indicates that it has no authority to dictate how much contractors pay their workers, and that if the contractor abides by the laws and pays at least the minimum wage, the contractor is operating within lawful parameters.

In the absence of any concrete indication on the part of the Government that steps are being taken to ensure compliance with the Convention, the Committee is obliged to recall that the mere fact of the national legislation being applicable to all workers does not release a ratifying State from its obligation to take the necessary measures to ensure that public contracts contain the labour clauses specified in Article 2 of the Convention. The Committee once again points out that 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 provide merely for 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 are entitled to wages and labour conditions at least as good as those normally observed for the kind of work in question, whether determined by collective agreements or otherwise. The Committee urges therefore the Government to take appropriate measures to bring its legislation into conformity 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 persons tendering for contracts 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). The Committee asks the Government to provide information in its next report on progress made in this regard.