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

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

Article 2 of the Convention. Inclusion of labour clauses in public contracts. The Committee notes with regret that the Government has not replied to any point in its previous direct request, merely stating that it is not possible to reply to all of the Committee’s comments. It further notes that, according to the Government’s report, public contracts contain labour clauses designed to ensure the optimum pay and working conditions for those working under these public contracts, and that these clauses stipulate that the parties to these contracts must know, respect and implement the provisions of the New Caledonian Labour Code, especially those concerning workers’ safety and health.

The Committee draws the Government’s attention to the fact that merely applying social legislation to workers engaged in the context of public contracts is not enough to ensure observance of the Convention. According to the Convention, public contracts must contain clauses ensuring that the workers concerned enjoy wages, hours of work and other conditions of labour that are not less favourable than those established for work of the same nature in the same region by the national legislation, by collective agreement or by arbitration award. The Committee requests the Government to indicate the measures envisaged to ensure the inclusion of labour clauses in public contracts for ordinary supplies and services, such as those referred to under section 8 of the General Administrative Clauses Book applying to public contracts for works.

The Committee also notes that under section 8 of Decision No. 63/CP of 10 May 1989 amending the regulations on public contracts, section 37 of the amended Decision No. 136 of 1 March 1967 regulating all forms of administrative contracts concluded in the name of New Caledonia and its public establishments has been amended; it now provides that the specifications (general documents and specific documents) must stipulate the conditions under which contracts are performed, and that the specific documents should contain a reference to the articles of any general documents from which they might deviate. The Committee requests the Government to indicate whether, and to what extent, the specific documents might deviate from section 8 of the General Administrative Clauses Book that applies to public contracts for works.

The Committee also notes the adoption of the Basic Act No. 99-209 of 19 March 1999 concerning New Caledonia. It notes in this connection that the metropolitan authorities retain competence for public contracts of the State and its public establishments (section 21(9)), while the authorities of New Caledonia have responsibility for the “regulation of pubic contracts and delegation of public service” (section 22(17)), without this responsibility being confined to public contracts concluded by municipalities and public establishments in New Caledonia. The Committee requests the Government to provide more specific information on the types of public contracts to which the amended Decision No. 136 of 1 March 1967 regulating all forms of administrative contracts concluded in the name of New Caledonia and its public establishments henceforth apply.

Part V of the report form. Practical application. The Committee notes the Government’s reference in its report to the text of a service agreement concerning the security and surveillance of institutions and administrative services in New Caledonia, but that the Government did not include a copy in the report. The Committee requests the Government to provide a copy of this contract or any other public contract concluded by the authorities of New Caledonia and including labour clauses, and to send, as soon as it is available, information on the application of the Convention in practice, especially data on the number and nature of the infringements reported, as well as the most recent progress report of the Territorial Observatory for Public Contacts, established by Decision No. 75 of 21 August 1997.