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

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

Article 2 of the Convention. Insertion of labour clauses in public contracts. For the last five years, the Committee has been drawing the Government’s attention to the fact that public procurement legislation does not contain any provisions giving effect to the specific requirements of the Convention. Over the same period, the Committee has been in receipt of a number of observations made by the Netherlands Trade Union Confederation (FNV) raising the same point. The Committee recalls that in its report submitted in 2008 the Government had admitted that the Convention was not fully implemented and had indicated that it was examining means for improving compliance with the Convention. In its latest report, however, the Government states that the Convention is fully complied with through existing measures, namely the system of universally binding collective agreements and the minimum requirements of the labour legislation which would apply if no universally binding collective agreements apply. The Government also states that its system of universally binding collective agreements is fully consonant with recent jurisprudence of the European Court of Justice, in particular the Rüffert case (C-346/06), and concludes that there is no specific reason for further adjustments of the implementation of Convention No. 94. The Committee notes that in a communication dated 31 August 2012, the Confederation of Netherlands Industry and Employers (VNO-NCW) has expressed its full support for the Government’s position in this matter.

In addition, the Committee notes the new observations of the FNV dated 30 August 2012 according to which the Government, although it has ratified Convention No. 94 a long time ago, has no intention whatsoever to fully comply with its requirements. The FNV points out that draft section 2.8 of the Public Procurement Bill, which is now before the Senate, essentially reproduces the purely permissive provision of section 26 of the Order of July 2005 implementing the EU Public Procurement Directive of 2004 and therefore does not ensure the observance of Article 2 of the Convention under which public contracts to which the Convention applies must include in all circumstances clauses ensuring to the workers concerned, wages, hours of work and other working conditions which are not less favourable than those established for work of the same nature in the same area by collective agreement, arbitration award or national laws or regulations. The FNV also reiterates earlier comments on the system of declaring collective agreements generally applicable under the Collective Labour Agreements Act and on the implications of the Rüffert case basically denouncing the Government’s contradictory statements and attitude on this subject.

While noting the latest exchange of views, the Committee feels obliged to recall that the manner in which the Convention is purportedly implemented through Order of 16 July 2005 on procedures for the award of public works, supply and service contracts, has been thoroughly examined in the comment that was addressed to the Government in 2007. As the Committee explained in that comment, section 26 of the Order of 16 July 2005 provides that the contracting authority may attach particular social or environmental conditions to public contracts, whereas the Convention requires the inclusion of labour clauses of the type provided for in Article 2 in all circumstances. The Committee further explained that, apart from this core requirement, the Convention also calls for other measures, including appropriate publicity to be given to the terms of labour clauses, the posting of notices at the workplace and adequate sanctions for failure to observe the provisions of labour clauses, as well as effective measures to enable workers who have been underpaid to recover any sums due to them. The Committee is, therefore, of the view that, as it currently stands, the national public procurement legislation is not consistent with the specific requirements of the Convention and accordingly the Government should consider appropriate steps in order to bring national law and practice in line with its provisions. The Committee firmly hopes that in the ongoing process of elaboration of the Public Procurement Bill, the Government will seize the opportunity to introduce the necessary provisions to ensure full compliance with the Convention. The Committee requests the Government to keep the Office informed of any progress made in this regard and to transmit a copy of the new public procurement legislation once it has been adopted.