Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Bosnia and Herzegovina (Ratification: 2010)

Articles 1 and 2 of the Convention. Insertion of labour clauses in public contracts. The Committee notes the Government’s indication that it encountered difficulties in preparing the first report on the application of the Convention, in particular as regards the identification of appropriate national legislation and the competent authorities through which this international instrument is to be implemented. It also notes the Government’s request for technical assistance from the Office in terms of explanations and best practices for an adequate implementation of the Convention. The Committee recalls that when submitting the first report following the entry into force of a ratified Convention, a government is expected to collect and communicate to the ILO full particulars on each of the provisions of the Convention and on each of the questions contained in the report form to enable the Committee to assess the extent to which the provisions of the Convention are given effect both in law and in practice. The Committee therefore looks forward to the results of the technical assistance that the Office is expected to provide.

Nonetheless, the Committee considers it useful to draw the Government’s attention to the core requirements of the Convention which may be summarized as follows: (i) the insertion in all public contracts falling within the scope of Article 1 of the Convention of labour clauses – drafted after consultation with employers’ and workers’ organizations – ensuring to the workers concerned wages and other working conditions not less favourable than those established for work of the same character in the same area by collective agreement, arbitration award or national laws or regulations; (ii) the notification of the terms of the clauses, by advertising specifications or otherwise; (iii) the posting of notices in conspicuous places at the workplaces with a view to informing the workers of their conditions of work; and (iv) the effective enforcement through a system of inspection and adequate sanctions, including the withholding of contracts and the withholding of payments for failure to observe and apply the provisions of labour clauses.

In this connection, the Committee wishes to refer to its General Survey of 2008 concerning labour clauses in public contracts (paragraphs 2 and 40), in which it indicated that the idea behind the adoption of minimum labour standards in the field of public procurement is that public authorities should concern themselves with the working conditions under which the operations in question are carried out. The concern stems from the fact that government contracts are usually awarded to the lowest bidder and that contractors may be tempted, in view of the competition involved, to economize on labour costs. The Committee also indicated that the insertion of appropriate labour clauses has the effect of setting as minimum conditions for the contract, standards that are already established within the locality, and that labour costs are thus removed from competition between bidders.

The Committee notes that the Public Procurement Act (Official Gazette of BiH No. 49/04 of 2 November 2004) and Implementing Regulations (Official Gazette of BiH No. 03/05 of 24 January 2005), which largely follow relevant EU Directives, seek to promote efficiency, transparency and fair competition in public procurement operations. The Committee stresses that under this Convention, the Government is also under the obligation to ensure that workers employed by a contractor and paid indirectly out of public funds enjoy wages and conditions of labour which are at least as satisfactory as the wages and conditions of labour normally established for the type of work concerned, which implies that local standards higher than those of general application should be applied, where they exist. The Committee accordingly requests the Government to submit a detailed report on the state of law and practice in the different entities of the country and to transmit copies of any relevant bidding documents, which may have been adopted in accordance with existing public procurement legislation.

Finally, the Committee attaches herewith a copy of a Practical Guide on Convention No. 94 which was prepared by the Office in September 2008 based on the conclusions of the aforementioned General Survey in order to help member States better understand the requirements of the Convention, and in so doing, promote its implementation.