Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Jamaica (Ratification: 1962)

Article 2 of the Convention. Insertion of labour clauses in public contracts. Application of the Convention. Part V of the report form. The Committee refers to its observations since 2009, recalling that it has been commenting for a number of years on the absence of any laws, regulations or practices giving effect to the provisions of the Convention. In its previous comments, initially made in 2014, the Committee expressed the hope that the Government would take prompt action to ensure the effective implementation of the Convention both in law and in practice. The Committee notes the Government’s response, indicating that there is at present no general law or regime in place that mandates particular labour clauses to be included in public contracts, as defined by the Convention. With respect to the application of Article 2 of the Convention, the Government reports that there is currently no policy or practice of including clauses in public contracts which guarantee basic protections such as wages (including allowances), hours of work and other conditions of labour, which are not less favourable than those established. The Committee notes the Government’s indication that it is presently making legislative changes to insert labour clauses in public contracts. In this respect, the Committee notes from the material available on the Jamaican Ministry of Finance and Public Service website that the Public Procurement Act of 2015, the Public Procurement Regulation of 2018 and the Revised Handbook of Public Sector Procurement Procedures (March 2014) contain no reference to labour clauses and do not require the insertion of any clauses of the type prescribed by Article 2(1) in the public contracts to which the Convention applies. Once again, the Committee draws the Government’s attention to its 2008 General Survey on labour clauses in public contracts, paragraph 45, which makes clear that “the mere fact of the national legislation being applicable to all workers does not release the State which has ratified the Convention from the obligation to take the necessary steps to ensure that public contracts contain the labour clauses specified in Article 2 of the Convention”. As the Committee observed in the 2008 General Survey, “the Convention has a very simple structure, all its provisions being articulated around and directly linked to the core requirement of Article 2(1), i.e. the insertion of labour clauses ensuring favourable wages and other working conditions to the workers concerned. As a result, in case the national legislation makes no provision for the specific type of labour clause and in the specific terms set out in Article 2(1) of the Convention, the application of the remaining Articles 3, 4 and 5 becomes without object” (2008 General Survey, paragraph 176). The Committee observes that the labour clauses required by the Convention – which should be established by the competent authority in consultation with the social partners – are clauses of a very specific content (2008 General Survey, paragraph 46). The required clauses must ensure to the workers employed under public contracts, as these are defined under Article 1(a) through (d) of the Convention, the payment of wages (including allowances), hours of work and other conditions of labour that are not less favourable than those established for work of the same character in the trade or industry concerned [and which apply] in the district where the work is being performed (Article 2(1) of the Convention). Noting once again that it has been commenting for several years on the Government’s failure to give effect to the Convention, the Committee recalls that the inclusion of appropriate labour clauses in all public contracts covered by the Convention does not necessarily require the enactment of new legislation, but can also be realized by administrative instructions or circulars, the Committee expects that the Government will take all necessary measures without further delay to bring its national legislation into full conformity with the core requirements of the Convention. The Committee requests the Government to keep the Office informed of progress made and recalls that the Government can avail itself of the technical assistance of the ILO in this regard, should it wish to do so.