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

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Finland (Ratification: 1951)

Articles 1(1) and 2 of the Convention. Inclusion of labour clauses in public contracts. The Committee notes the adoption of the Public Procurement Act (No. 348/07) and of the Contractor’s Liability Act No. 1233/2006. More concretely, the Committee notes that under section 49(2) of the Public Procurement Act, public works contracts concluded by a central public authority must include a clause specifying that tenderers must comply with the minimum terms of employment determined by national legislation and collective agreements applicable to similar work. The Committee notes the comments made by the Central Organization of Finnish Trade Unions (SAK), according to which the scope of this provision is limited to public works contracts and therefore fails to give full effect to the Convention. If the Government accepts this comment as accurate, the Committee would draw the Government’s attention to the fact that the Convention applies to public contracts concluded for the construction of public works, the manufacture of goods or the supply of services (Article 1(1)(c)). The Committee therefore requests the Government to indicate the measures, taken or envisaged, to ensure the inclusion of labour clauses in all public contracts falling within the scope of the Convention.

Article 2(4). Keeping tenderers informed. The Committee notes that under section 50(1) of the Public Procurement Act, contracting authorities may state, in the contract notice, the bodies from which tenderers may obtain the appropriate information on their obligations regarding, inter alia, the working conditions or terms of employment applicable, and must request that tenderers indicate, in their tender, that they have taken account of these obligations. Noting that, pursuant to this provision, informing tenderers of the labour clauses seems to be left to the discretion of the contracting authority, the Committee requests the Government to provide additional information on how it is ensured in law and in practice that the persons tendering for contracts actually have advanced knowledge of the terms of the labour clauses, as required under Article 2(4) of the Convention.

Article 4. Posting of notices. The Committee notes that neither the Public Procurement Act nor the Contractor’s Liability Act seem to provide for the posting of notices in conspicuous places at the workplace with a view to informing the workers engaged in the execution of public contracts of their conditions of work, as required under this Article of the Convention. In this regard, the Committee notes the comments made by SAK according to which no regulation exists that would provide employees with the right to be informed whether a labour clause has been included in a public contract and, consequently, employees do not have the opportunity to access information on the detailed content of a possible labour clause if the state employer or private business does not wish to provide this information. The Committee requests the Government to indicate the measures, taken or envisaged, to ensure that the workers engaged in the execution of public contracts are informed of the working conditions applicable to them through the posting of notices at the workplace, as prescribed by Article 4(a)(iii) of the Convention.

Article 5. Penalties. The Committee notes the Government’s indication that under section 9 of the Contractor’s Liability Act, a contractor failing to comply with his duties as an employer is liable to a fine, also called “negligence fee”, ranging from €1,600 to €16,000. The Committee requests the Government to provide further information on all measures and sanctions applicable in case of infringement of the relevant legislation, and to indicate in particular whether the withholding of contracts and/or the withholding of payments under the contract may be imposed, as provided for under this Article of the Convention.

Article 4(b)(ii) and Part V of the report form. System of inspection. Application in practice. In its report, the Government indicates that supervision of the application of the Contractor’s Liability Act is entrusted to the Regional State Administrative Agency and that, in 2010, this Agency planned 900 inspection visits, mainly in public administrations. The Committee notes, however, that in its comments, SAK questions the effectiveness of the monitoring mechanism in place. The Committee requests the Government to provide additional information on the measures taken to ensure the effective implementation of the national legislation giving effect to the Convention. It would also be grateful if the Government would communicate, together with its next report, up to date information on the manner in which the Convention is applied in practice, including, for example, extracts from reports of the inspection services, statistics on the average number of public contracts granted annually and the approximate number of workers engaged in their execution, as well as any other particulars which would enable the Committee to have a clear understanding of the manner in which the Convention is applied in practice.