Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Türkiye (Ratification: 1961)

The Committee notes the observations of the Confederation of Turkish Trade Unions (TÜRK-IṢ), received on 20 September 2017. The Government is requested to provide its comments in this respect.

Articles 1 and 2 of the Convention. Insertion of labour clauses in public contracts. In its previous comments, the Committee noted that, contrary to the practice followed with regard to public procurement for construction work and services, no provision has been made in the public procurement legislation to ensure the insertion of labour clauses in public contracts for the manufacture and assembly of materials or equipment (with the exception of section 16.5 of the Annex to the Regulation on Implementation of Goods Procurement, which requires the contractor to take all safety precautions for the duration of the work as required by laws, regulations and directives for the workers’ health and safety). The Committee therefore requested the Government to take the necessary measures to ensure that the national legislation in respect of public contracts for the manufacture and assembly of materials or equipment is brought into full conformity with the requirements of the Convention (Article 2). The Committee notes the Government’s indication that the Labour Law (Act No. 4857/2003) sets minimum and maximum limits in terms of working conditions and wages with a view to protecting all workers without discrimination. The Government adds that Act No. 6552 of 10 September 2014, known as “the Omnibus Law”, amended the Labour Law to regulate subcontracting employment practices in the public sector. The Committee notes that Act No. 6552/2014 introduced additional protections for workers of contractors and subcontractors in the public sector, including in relation to the payment of wages, periods of leave and termination indemnities. The Committee notes, however, that the amended legislation still contains no provisions requiring the insertion of labour clauses of the type prescribed in Article 2(1)–(2) of the Convention into public contracts to which the Convention applies. In this regard, the Committee notes the observations made by TÜRK-IṢ, indicating that legal provisions implementing the Convention have still not been introduced. It adds that subcontractor practices bring about extremely negative consequences for workers and calls for legislative amendments to be introduced urgently to implement the Convention. TÜRK-IṢ further indicates that discussions to find a solution to this issue are still ongoing. In its 2008 General Survey on labour clauses in public contracts, paragraph 40, the Committee highlighted that “the essential purpose of Convention No. 94 and Recommendation No. 84 is to ensure that the 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, whether they are established by collective agreement or otherwise, in the locality where the work is done. The Convention requires that this be done through the insertion of appropriate labour clauses in public contracts.” Recalling once again that this is a long-standing issue on which little progress has been made over the years, the Committee urges the Government to take the necessary measures without delay to bring its national legislation into full conformity with the requirements of the Convention.

Article 2(4). Information for tenderers. The Committee notes the information provided by the Government in its previous report regarding the manner in which it ensures that the workers concerned are informed of their conditions of work at their workplaces. The Government does not, however, indicate the manner in which it ensures that tenderers for public contracts are made aware of the terms of the relevant labour clauses, in accordance with this Article of the Convention. In addition, the Committee recalls that the terms of the required labour clauses must be brought to the attention of tenderers at the pre-selection stage. The Committee once again requests the Government to indicate whether the labour clauses provided for in the standard forms of contract and the General Specifications are included in the Announcement for Procurement referred to in Annex 1 of the Regulation on Implementation of Services Procurement and the Regulation on Implementation of Works Procurement. It further requests the Government to provide copies of the abovementioned documents.

Application in practice. The Committee notes the information provided by the Government regarding the inspections carried out by the Labour Inspection Board from 2015 to May 2017. These inspections and the fines imposed concern the violation of section 3 of the Labour Law (Act No. 4857). The Committee notes, however, that this information does not fully respond to its request for specific information on the practical application of the Convention, given that the inspections conducted and the fines imposed concern violations of general labour law relating to the establishment and operation of sham businesses, rather than the failure to respect labour clauses in public contracts within the meaning of the Convention. Taking account once more of these current initiatives, the Committee hopes that the Government will make every effort to collect and provide up-to-date information on the practical application of the Convention, including inspection results, and copies of official documents or studies on matters dealt with in the Convention, such as annual reports of the Public Procurement Authority (PPA).