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

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Morocco (Ratification: 1956)

The Committee notes the observations made by the Moroccan Labour Union (UMT) and those of the Democratic Confederation of Labour (CDT), received on 17 August 2017. The Government is requested to provide its comments in this regard.

Article 2 of the Convention. Inclusion of labour clauses in public contracts. In its previous comments, the Committee requested the Government to take the necessary measures without further delay to bring the national legislation into compliance with the Convention. The Government indicates in its report that in 2013 it adopted the legal and technical measures governing public procurement in light of the developments in the world of business and its commitments within the context of international agreements. In this context, the Government adopted Decree No. 2-12-349 of 20 March 2013 on public procurement. The Government indicates that the Decree calls for major innovations in the processes of the management of public contracts, such as unity in their regulation, the simplification and clarification of procedures, the improvement of the business climate and the reinforcement of competition. The Government adds that, in the context of the establishment of the technical file by competitors, section 25(B) of the Decree requires competitors to indicate the human and technical resources which will enable them to provide the services covered by the public procurement contract. It also refers to section 23 of Decree No. 2-14-394, of 13 May 2016, approving the list of general administrative clauses applicable to contracts for works (CCAG-T), published in the Official Bulletin on 2 June 2016. This Decree requires the entrepreneur to comply with the requirements of laws and regulations that are in force governing the recruitment and payment of workers, including the payment of a wage that is higher or equal to the statutory minimum wage established by the texts issued under the Labour Code. The Committee notes that, in accordance with section 25(A)(1)(b) of Decree No. 2-12-349 respecting public procurement, and section 519 of the Labour Code, securities are established for each participant in tenders in order to compel them to comply with their commitments. The Committee notes the observations of the CDT indicating that the principles and provisions of the Convention are not set out in national law, and that the Decree of 20 March 2013 does not include the required provisions. In this context, emphasis is not placed on the rights of workers covered by public contracts, as Decree No. 2-12-349 of 20 March 2013 does not contain the provisions that are to be included in national laws and regulations on public procurement. The UMT observes that the legislation respecting public procurement does not contain sufficient guarantees for workers during the implementation of the transaction and after its conclusion, and that public contracts do not contain labour clauses. The UMT also refers to the absence of mechanisms for the automatic resolution of disputes arising out of the execution of public contracts. Although it recognizes the efforts made by the Government to improve the transparency of public contracts, the UMT calls on the Government to bring them into conformity with the provisions of the Convention and those of the Labour Code, to include all the unions in all workshops covering the reform of the regulations on public procurement and to include clauses on labour matters in all public contracts. The Committee once again notes that the provisions set out in the two texts referred to above are not adequate to ensure the application of the Convention, as they merely remind bidders that they are required to comply with the labour legislation. They are in practice pre-qualification criteria that contractors and suppliers must meet in order to comply with the requirements in force in Morocco. In its previous comments, the Committee referred to paragraphs 117 and 118 of its 2008 General Survey on labour clauses in public contacts, in which it emphasized that the Convention does not relate to some general eligibility criteria or pre-qualification requirements for individuals or enterprises bidding for public contracts. Furthermore, certification offers proof of the past performance and compliance with the legislation of bidders but, in contrast with labour clauses, it carries no binding commitment with regard to the work to be performed. The Committee reiterates that the requirement imposed by the Convention is to inform tenderers in advance, through model labour clauses in the tendering documents that, if they succeed in obtaining the contract, they will be required to apply wages and other working conditions that are at least as favourable as the highest standards established in the same district by collective agreement, arbitration award or national laws or regulations. Accordingly, noting that the regulation on public contracts still falls short of the requirements of the Convention, the Committee once again requests the Government to take the necessary steps without delay to bring the national legislation into conformity with the Convention. It reminds the Government that it may have recourse to ILO technical assistance, if it so wishes.