Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Spain (Ratification: 1971)

Article 2 of the Convention. Insertion of labour clauses in public contracts. The Committee notes the Government’s explanations that the national public procurement legislation is in substantial conformity with the Convention since, first, workers engaged in the execution of public contracts are, in any event, guaranteed, wages and other working conditions not less favourable than those established by the general labour legislation, and secondly, section 60 of Royal Decree No. 3/2011 regarding the consolidated text of the Public Contracts Act ensures the screening of tenderers so that persons who may have been previously fined or sanctioned for violations of workers’ rights cannot be awarded public contracts. As the Committee has pointed out in its previous comment, the Government’s view is based on two incorrect premises, namely that the Convention offers an option to select among three different ways (collective agreement, arbitral award, law) of regulating the working conditions for its implementation, and that “certification” of tenderers has the same effect with labour clauses. The Committee is therefore obliged to reiterate that: (i) through the labour clauses the Convention seeks to guarantee that the workers concerned enjoy working conditions which are at least as advantageous as the best conditions among those established locally by collective agreement, or arbitral award or laws and regulations; and (ii) any “filtering” mechanism, such as certification of tenderers, at the pre-selection stage may be a useful tool but it is not sufficient to meet the core requirement of the Convention which is the insertion of labour clauses of the type prescribed in Article 2. Moreover, the Committee wishes to recall that with the exception of sections 118 and 119 which deal in general terms with the conditions of work relating to the performance of a public contract, Royal Decree No. 3/2011 does not contain any provisions expressly requiring the inclusion of labour clauses in public contracts and therefore gives no effect to the Convention. The Committee hopes that the Government will take timely action to ensure that the Convention is fully implemented in law and in practice.