Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

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

Article 2 of the Convention. Insertion of labour clauses in public contracts. The Committee notes the Government’s succinct report and regrets that no clear replies have so far been provided to the issues that the Committee has been raising for over 20 years. The Committee recalls that the Government has been making reference to the Labour Ordinance, the Civil Code and the Uniform General Instructions (UAV) as giving effect to the requirements of the Convention despite the Committee’s repeated observations 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 (see also paragraphs 110–113 of the General Survey of 2008 on labour clauses in public contracts). On other instances, the Government stated that it had no authority to dictate how much contractors should pay their workers in so far as they complied with the minimum wage legislation in force while more recently it indicated that discussions had been initiated between the Labour Department and the Department of Public Works on how to ensure compliance with the provisions of the Convention. Finally, in its last report, the Government refers to the General Administrative Rules, which include an express reference to ILO Convention No. 94, without being clear whether these rules are specific to public procurement contracts and how they relate to the abovementioned UAV. In light of the fragmented and unclear information provided by the Government in successive reports, the Committee requests the Government to give in its next report a detailed account on any measures taken or planned in order to implement the basic requirements of the Convention. It would appreciate receiving copies of all legal instruments, such as laws, regulations or administrative circulars, which relate to the labour conditions applicable to those engaged in the execution of public contracts and thus may have an impact on the application of the Convention.

Finally, the Committee wishes to draw the Government’s attention to the General Observation of 2009 on wages in which reference was made to the Global Jobs Pact, adopted by the International Labour Conference in June 2009 in response to the global economic crisis, that places particular emphasis on the need to strengthen respect for international labour standards and expressly identifies ILO instruments on wages and labour conditions on public contracts as being relevant in order to prevent a downward spiral in labour conditions and build recovery (paragraph 14). The Global Jobs Pact further suggests that governments as employers and procurers should respect and promote negotiated wage rates (paragraph 12), thus recognizing Convention No. 94 as one of the ILO instruments in the crisis that can help ensure that investments financed by public stimulus packages generate jobs with decent pay and working conditions.

[The Government is asked to reply in detail to the present comments in 2012.]