Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Belgium (Ratification: 1952)

Articles 1 and 2 of the Convention. Labour clauses in public contracts. The Committee notes the Government’s indication that the Act of 15 June 2006 concerning public procurement and certain contracts for work, supplies and services (Act of 2006), which repeals the Act of 24 December 1993 concerning public procurement (Act of 1993) and which is at the basis of a comprehensive reform of public procurement regulations, should come into force in 2012. It notes that section 42 of the Act of 2006 imposes the same obligations on any public works contractor as those laid down by section 12 of the Act of 1993, which gave full effect to Article 2 of the Convention as regards public procurement. The Committee requests the Government to indicate whether similar provisions are applicable to public contracts for supplies and services, which are also covered by Article 1(1)(c) of the Convention. The Committee further notes that section 25 of the Act of 2006, like section 16 of the Act of 1993, includes labour-related considerations among the criteria for identifying the most economically advantageous regular bids. It also notes that section 40 of the Act of 2006 allows the contracting authority to impose conditions relating to performance of the contract which take account of objectives such as the obligation to observe, in substance, the provisions of the core ILO Conventions, should these not already have been transposed into the national law of the country of production. The Committee notes that, in reply to its previous direct request on this point, the Government explains that the ILO Conventions concerned are enumerated in the preamble to the Act, namely eight core Conventions relating to freedom of association and the right to collective bargaining, the abolition of forced labour and child labour, and non-discrimination in employment and occupation.

Article 4. Obligation to inform the workers. The Committee notes that section 36 of the General Terms and Conditions, attached to the Royal Order of 26 September 1996 establishing general rules for the execution of public contracts and public works concessions, provides for informing the workers with regard to the conditions of work applicable in the context of public contracts and public works concessions. It notes in particular that the text of collective agreements applicable at the work site must be made available to all interested parties by the contractor. The Committee requests the Government to indicate the manner in which it is ensured that information is given to the workers employed in the execution of the other categories of public contracts to which the Convention applies.

Article 5(1). Penalties. The Committee notes that, under section 48(4) of the General Terms and Conditions, the contracting authority automatically withholds from the sums due to the contractor the amount of wages and/or social security contributions which are unpaid in respect of the staff employed at the work site and makes direct payment of the outstanding amounts. The Committee requests the Government to indicate whether identical measures are applicable in the context of public contracts for supplies and services. Moreover, the Committee notes that section 17(2) of the Act of 8 January 1996 concerning public procurement for work, supplies and services and public works concessions allows a contractor to be excluded from participation in a public contract, especially if he has not fulfilled his obligations concerning social security contributions. However, the Committee understands that this section does not provide for this possibility of exclusion where the contractor has failed to comply with the labour clauses that cover wages and other conditions of work to be enjoyed by the workers concerned. The Committee requests the Government to provide further information on the penalties that apply in the aforementioned circumstances.

Part V of the report form. Application in practice. The Committee notes with interest the information sent by the Government regarding the campaign undertaken in 2010 by the regional directorate of the Occupational Welfare Department concerning public contracts for construction work concluded by local public services. It notes that this campaign was mainly concerned with the implementation of occupational safety and health plans and requests the Government to indicate whether similar initiatives have been launched to evaluate the extent to which the provisions applicable to individual conditions of work (especially wages and hours of work) are observed. The Government is also requested to provide information on the application of the Convention in practice, including the outcome of inspections made, the number of infringements reported and the corrective measures taken.