Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Malaysia - Sarawak (Ratification: 1964)

The Committee notes that the Government’s report contains no reply to its previous comments. It hopes that the next report will contain full information on the matters raised in its previous comments.

Repetition

Article 2 of the Convention. Insertion of labour clauses in public contracts. The Committee notes that the general terms of public contracts for public works currently in use (first published in 2006) – a copy of which was attached to the Government’s report – no longer contain a clause on fair wages and labour conditions requiring contactors to pay wages and observe hours of work and conditions of labour not less favourable than those established for the trade or industry in the district where the work is carried out by machinery of negotiation or arbitration to which the parties are organizations of employers and trade unions representative respectively of substantial proportions of the employers and workers engaged in the trade or industry in the district. The Committee also notes the Government’s statement that the general terms apply only to public contracts for construction works and do not cover contracts for the manufacture of goods or the supply of services thus covering only partially public procurement contracts as defined in Article 1(1) of the Convention.

The Committee wishes to recall that sections 15.1 and 17.1 of the general terms, which merely require contractors to comply with the provisions of the Labour Ordinance (Chapter 76), fall short of giving effect to the core requirement of Article 2 of the Convention. The Committee also observes that section 15.3 of the general terms, which provides for the withholding of payments due to the contractor or his/her subcontractors for the purpose of recovering any unpaid workers’ wages, may be in line with the type of sanctions provided for in Article 5(2) of the Convention, but is not sufficient to fully implement that provision in the absence of labour clauses of the type prescribed in Article 2 of the Convention. As the Committee has pointed out on numerous occasions, the Convention aims at ensuring that workers employed in the execution of public contracts enjoy working conditions that are not less favourable than those established by collective agreement, arbitration award, or by national legislation for work of the same type carried out in the same region. In practice, this means that contractors have to offer to the workers concerned wages and working conditions that are not less favourable than the highest standards prevailing locally and established through collective bargaining, arbitration or law. The Committee therefore requests the Government to indicate the measures it intends to take in order to bring the national legislation into full conformity with the requirements of the Convention.