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

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

Articles 1 and 2 of the Convention. Insertion of labour clauses in public contracts. The Committee once again notes that, contrary to the practice followed with respect to public procurement for construction work and services, there is no provision in Türkiye’s 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). In this context, the Committee notes the Government’s indication that section 16.1.2 of the Standard Form of Contract for the Procurement of Goods requires the Contractor to comply with Law No. 4735 on public procurement contracts and other applicable laws, statutes or regulations and similar legislation during the implementation phase of the contract. The Committee nevertheless notes that, despite this reference to compliance with national legislation in the Standard Forms of Contracts for the Procurement of Goods, there is still no provision in the public procurement legislation which requires the insertion in public contracts of the labour clauses specified in Article 2 of the Convention, including for construction work and services. In its previous comments, initially made in 2013, the Committee recalled that it had repeatedly requested the Government to take all necessary measures to give full effect to the Convention and to provide detailed information in future reports on any progress made in this regard. The Committee notes with regret that the Convention is still not given full effect in either law or practice. In this context, the Committee draws the Government’s attention to paragraphs 40–41 of its 2008 General Survey on labour clauses in public contracts, which clarifies that: “(…) the essential purpose of the Convention 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. This has the effect of setting as minimum conditions for the contract standards that are already established within the locality. Labour costs are thus removed from competition between bidders. The further aim is that local standards higher than those of general application should be applied, where they exist. Therefore, clauses within public contracts that restate the applicability and binding nature of national laws, including those dealing with wages, hours of work and other conditions of employment, are not sufficient to meet the requirements of the Convention”. The Committee also notes that, while section 7 of Law No. 4735 on public procurement contracts enumerates the clauses to be incorporated in public procurement contracts, it does not provide for the insertion of the labour clauses required under the Convention. In this respect, the Committee recalls that the Convention “calls for the insertion of labour clauses of a very specific content. In addition, States may also include in public contracts clauses related to equal remuneration and equality, as expressly required by Convention No. 100, read with Recommendation No. 90, and Convention No. 111, read with Recommendation No. 111. Such clauses could include, for example, affirmative action measures, such as measures to promote the employment of women or of vulnerable groups, or addressing systemic discrimination through a system of quotas. In addition, Convention No. 94 does not preclude the insertion of other labour clauses, such as those requiring compliance with other core labour standards, as reflected in the ILO’s fundamental Conventions, including those aimed, for example, at preventing the use of child labour and anti-union practices. Such clauses play an important role in the protection of labour rights and enhance the application of the principles contained in Convention No. 94.” (2008 General Survey, paragraph 46.) The Committee recalls yet again that this is a long-standing issue on which little progress has been made over the years. It therefore 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). Ensuring that tenderers are aware of labour clauses. The Committee notes the information provided by the Government in reply to its previous request concerning the inclusion of communication of the labour clauses to the tenders. The Committee takes note of this information, which responds to its previous request.

Application of the Convention in practice. The Committee notes that the information supplied by the Government does not respond to its request for specific information on the practical application of the Convention, given that the legislation referenced by the Government relates to the role of labour inspection in ensuring the application of national labour legislation generally, rather than to the application of the provisions of the Convention. The Committee therefore reiterates its request that the Government provide detailed up-to-date information on the practical application of the Convention, and copies of official documents or studies on matters dealt with in the Convention. The Committee also urges the Government to provide extracts from public procurement contracts showing the inclusion of the labour clauses required under Article 2 of the Convention.

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

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).

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

Articles 1 and 2 of the Convention. Inclusion of labour clauses in public contracts for manufacture of goods. The Committee has been drawing the Government’s attention for a number of years to the fact that with respect to public contracts concerning the manufacture of goods, materials or equipment, the public procurement legislation does not provide for the insertion of labour clauses of the type referred to in Article 2 of the Convention. In its latest report, the Government acknowledges that, contrary to the practice followed as regards public procurement for construction works and services, no provision is made in the public procurement legislation for labour clauses in contracts for the manufacture and assembly of materials or the procurement of equipment (except for 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 determined by laws, regulations and directives for the workers’ health and safety). The Government indicates, in this connection, that in accordance with sections 12, 13 and 15 of the Regulation on Implementation of Goods Procurement and section 44 of the Standard Contract for Procurement of Goods, it is possible to include labour clauses in contracts on the condition that public procurement legislation is not opposed and Standard Contract provisions are not changed. Recalling that this is a long-standing issue and that little progress has been made over the years, the Committee hopes that the Government will take the necessary measures very shortly 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.

In addition, the Committee notes the comments made by the Turkish Confederation of Employers’ Associations (TISK) and the Confederation of Turkish Trade Unions (TÜRK-IS). TISK maintains that the public procurement legislation is in conformity with the Convention and refers to the General Specifications for Construction Works which are annexed to the 2009 Regulation on Implementation of Works Procurement, in particular section 43(8) that gives full effect to the provisions of Article 2(1) and (2) of the Convention. For its part, TÜRK-IS indicates that the Government has yet to put in place domestic regulations implementing the Convention and adds that subcontracting, often associated with unfair treatment of workers, is increasingly common in public procurement operations. TÜRK-IS accordingly requests the Government to align the national legislation with the requirements of the Convention as a matter of urgency. The Committee requests the Government to transmit any comments it may wish to make in reply to the observations of TISK and TÜRK-IS.

Article 2(4). Information for tenderers. The Committee recalls its previous comments in which it requested the Government to specify how it is ensured that the terms of labour clauses are brought to the attention of tenderers at the pre-selection stage, as required under this Article of the Convention. As the Government’s report does not contain any new information on this point, the Committee 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.

Part V of the report form. Application in practice. The Committee notes the Government’s statement that there are no inspection reports or statistical data available concerning inspections of procurement operations for services, works and goods. The Committee understands, however, that the Government has been receiving technical assistance from the ILO International Training Centre (ITC–ILO) for the reinforcement of administrative capacity and good governance in the public procurement sector and also capacity-building assistance from the World Bank to implement sustainable public works programmes. Noting these current initiatives, and recalling that the Government has previously provided statistical information concerning the number of enterprises inspected and the number of infringements imposed, the Committee hopes that the Government will make an effort to collect and provide up-to-date information on the practical application of the Convention, including for instance 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).

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Repetition

The Committee notes the adoption of the Public Procurement Law (Act No. 4734 of 4 January 2002) and the Public Procurement Contracts Law (Act No. 4735 of 5 January 2002). It notes that the Public Procurement Law, which applies to procurement contracts for goods, services and construction work, defines and describes the entire public procurement procedure, except for the execution of public contracts while the Public Procurement Contracts Law defines the types and forms of public contracts and contains provisions concerning contract implementation and management, performance security and termination of contracts. The Committee also notes that under the Public Procurement Law, an agency known as the Public Procurement Authority (PPA) and comprising a ten-member Public Procurement Board, was established to elaborate guidelines for implementation of the public procurement legislation, issue secondary legislation, circulars and interpretative decisions, and also to rule on complaints filed by dissatisfied tenderers.

Article 2(1) and (2) of the Convention. Insertion of labour clauses in public contracts. The Committee notes that section 38 of the General Specification for Services, which is annexed to the Regulation on Implementation of Services Procurements, and section 35 of the General Specification for Works, which is annexed to the Regulation on Implementation of Works Procurements, are fully consonant with the basic requirement of the Convention, providing for wages and other working conditions at least as favourable as those established by collective agreement or legislation for work of the same character in the trade or industry concerned. The Committee further notes that under section 23 of the Standard Contract for Procurement of Services and section 29 of the Standard Contract for Works, the labour clause contained in the General Specifications is binding on the contractor and may therefore be deemed to form an integral part of the standard contract.

The Committee notes, however, that no similar provisions are to be found in the legislative or regulatory texts concerning procurement of goods. Recalling that the question of the insertion of labour clauses to contracts for the manufacture and assembly of materials or equipment has been raised on numerous occasions in connection with the application of Decree No. 88/13168 of July 1988, the Committee would appreciate receiving additional clarifications on this point.

Article 2(4). Information for tenderers. The Committee 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.

Part V of the report form. The Committee would appreciate if the Government would continue to provide all available information on the practical application of the Convention, including inspection results, copies of official documents or studies on matters dealt with in the Convention, such as annual reports of the PPA or the Public Procurement Board, etc.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

Repetition

Articles 1 and 2 of the Convention. Labour clauses in public contracts. The Committee notes the comments made by the Turkish Confederation of Employer Associations (TISK) and the Confederation of Turkish Trade Unions (TÜRK-IŞ) concerning the application of the Convention. TISK refers to some new provisions introduced in section 2 of Labour Act No. 4857 by virtue of Act No. 5538 of 1 July 2006, according to which workers employed in the execution of a public contract may not be appointed to a position of the contracting public authority or have access to any benefits and entitlements provided to the employees of the contracting public authority. Under the same provisions, public contracts for services may not contain provisions which empower the contracting public authority to recruit or terminate the employment of workers or which guarantee continued employment to workers engaged in the performance of a public contract. In this connection, TISK admits that the new provisions were introduced in order to prevent the malpractices experienced under the previous Labour Act No. 1475, but considers the provisions in question to be unconstitutional and to have rendered the system of public contracting impossible to manage. For its part, TÜRK-IŞ states that the newly added paragraphs in section 2 of the Labour Act contravene the standards set out in the Convention without further elaborating. The Committee requests the Government to transmit any comments it may wish to make in reply to the observations of TISK and TÜRK-IŞ.

The Committee is raising other points in a request addressed directly to the Government.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes with interest the adoption of the Public Procurement Law (Act No. 4734 of 4 January 2002) and the Public Procurement Contracts Law (Act No. 4735 of 5 January 2002). It notes that the Public Procurement Law, which applies to procurement contracts for goods, services and construction work, defines and describes the entire public procurement procedure, except for the execution of public contracts while the Public Procurement Contracts Law defines the types and forms of public contracts and contains provisions concerning contract implementation and management, performance security and termination of contracts. The Committee also notes that under the Public Procurement Law, an agency known as the Public Procurement Authority (PPA) and comprising a ten-member Public Procurement Board, was established to elaborate guidelines for implementation of the public procurement legislation, issue secondary legislation, circulars and interpretative decisions, and also to rule on complaints filed by dissatisfied tenderers.

Article 2(1) and (2) of the Convention. Insertion of labour clauses in public contracts. The Committee notes that section 38 of the General Specification for Services, which is annexed to the Regulation on Implementation of Services Procurements, and section 35 of the General Specification for Works, which is annexed to the Regulation on Implementation of Works Procurements, are fully consonant with the basic requirement of the Convention, providing for wages and other working conditions at least as favourable as those established by collective agreement or legislation for work of the same character in the trade or industry concerned. The Committee further notes that under section 23 of the Standard Contract for Procurement of Services and section 29 of the Standard Contract for Works, the labour clause contained in the General Specifications is binding on the contractor and may therefore be deemed to form an integral part of the standard contract.

The Committee notes, however, that no similar provisions are to be found in the legislative or regulatory texts concerning procurement of goods. Recalling that the question of the insertion of labour clauses to contracts for the manufacture and assembly of materials or equipment has been raised on numerous occasions in connection with the application of Decree No. 88/13168 of July 1988, the Committee would appreciate receiving additional clarifications on this point.

Article 2(4). Information for tenderers. The Committee 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.

Part V of the report form. The Committee notes the statistical information provided by the Government concerning the number of enterprises inspected in the period 2001–06 and the number of infringements observed and fines imposed. The Committee would appreciate if the Government would continue to provide all available information on the practical application of the Convention, including inspection results, copies of official documents or studies on matters dealt with in the Convention, such as annual reports of the PPA or the Public Procurement Board, etc.

For all useful purposes, the Committee attaches herewith a copy of a Practical Guide, prepared by the Office principally on the basis of the General Survey of 2008 on Convention No. 94, to help better understand the requirements of the Convention and ultimately improve its application in law.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Articles 1 and 2 of the Convention. Labour clauses in public contracts. The Committee notes the comments made by the Turkish Confederation of Employer Associations (TISK) and the Confederation of Turkish Trade Unions (TÜRK-IŞ) concerning the application of the Convention. TISK refers to some new provisions introduced in section 2 of Labour Act No. 4857 by virtue of Act No. 5538 of 1 July 2006, according to which workers employed in the execution of a public contract may not be appointed to a position of the contracting public authority or have access to any benefits and entitlements provided to the employees of the contracting public authority. Under the same provisions, public contracts for services may not contain provisions which empower the contracting public authority to recruit or terminate the employment of workers or which guarantee continued employment to workers engaged in the performance of a public contract. In this connection, TISK admits that the new provisions were introduced in order to prevent the malpractices experienced under the previous Labour Act No. 1475, but considers the provisions in question to be unconstitutional and to have rendered the system of public contracting impossible to manage. For its part, TÜRK-IŞ states that the newly added paragraphs in section 2 of the Labour Act contravene the standards set out in the Convention without further elaborating. The Committee requests the Government to transmit any comments it may wish to make in reply to the observations of TISK and TÜRK-IŞ.

The Committee is raising other points in a request addressed directly to the Government.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee takes note of the Government’s report and of the observations made by the Confederation of Turkish Trade Unions (TÜRK-IS) and the Turkish Confederation of Employer Associations (TISK). It once again notes that the comments made by TÜRK-IS are identical to those attached to the Government’s reports of 1996 and 1997 and to those contained in the communication of TÜRK-IS dated 17 June 1996. The Government has already provided its response to the questions raised by TÜRK-IS following which the Committee has drawn up its own comments.

The Committee recalls its previous observation in which it requested the Government to supply information on the functioning of the control body under section 33 of the "General specifications for public works" and the inspection under section 4 of Decree No. 88/13168, including the number and nature of infringements observed and sanctions applied. In its reply, the Government refers to the conditions under which the Council of Ministers may issue an order extending the terms of a collective agreement. The Committee notes this information but considers it irrelevant with reference to its request for specific information on the functioning of labour inspection or other enforcement machinery relating to the execution of public contracts. The Committee is obliged to recall that by ratifying an international labour Convention governments undertake to ensure not only legislative conformity with its provisions but also effective application of the implementing legislation in practice. The Committee therefore reiterates its request for detailed information bearing on the supervision and enforcement of the relevant legislation and hopes that the Government will make every effort to obtain and supply such information in accordance with Article 6 of the Convention and Part V of the report form.

With reference to public contracts for the manufacture and assembly of materials, the Committee recalls its previous comments in which it noted that such contracts appear to fall outside the scope of application of Decree No. 88/13168. In the absence of any concrete reply on this point, the Committee is bound to repeat its request for information on the measures taken or envisaged to ensure the insertion of labour clauses in accordance with Article 2 of the Convention in all contracts covered by Article 1(c)(ii) of the Convention by means of extending the application of Decree No. 88/13168 or otherwise.

As regards measures to ensure that persons tendering for public contracts are aware of the terms of the labour clauses, as set out in Article 2(4) of the Convention, the Committee notes the Government’s reference to section 6 of Decree No. 88/13168 which provides that in order to furnish the contractors with beforehand information concerning working conditions, it shall be cited in the specifications of the tender that provisions such as those to be included in the contract have been enclosed in the file concerned. The Committee also notes the Government’s indication that the Decree and the "General Specifications" are the standard appendices to the public contracts, and thus the contractors are undoubtedly aware of the labour clauses. The Committee would be grateful to the Government for confirming whether in practice all invitations to tender for public contracts contain specific information on the labour conditions to be observed by the prospective contractor, as section 6 of Decree No. 88/13168 seems to require, and would appreciate receiving copies of such invitations.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

With reference to its previous observation, the Committee notes the Government's report, as well as the comments attached to it made by the Confederation of Turkish Trade Unions (TURK-IS) and the Turkish Confederation of Employers' Association (TISK). It notes that the comments of TURK-IS supplied with the Government's report is identical to the one received by a letter dated 17 June 1996.

The Committee recalls that the Governing Body at its 270th Session noted an interim report of its Officers concerning a representation made by the Confederation of Turkish Trade Unions (TURK-IS) by a letter dated 17 June 1996, which referred to article 24 of the ILO Constitution, and which alleged non-observance by Turkey of the Convention. According to paragraph 5 of this report of its Officers, the Governing Body considers that the receivability of the representation should be established in the light of further developments in the ongoing procedure initiated by TURK-IS, i.e. the examination by the Committee of Experts of the same information received by a letter also dated 17 June 1996 and its follow-up.

Road, building and construction sector

In its previous observation, the Committee noted the comments made by the TURK-IS, with reference to the spreading practice of subcontracting, that the collective labour agreement concluded by the General Directorate of Highways and the Road, Building and Construction Workers' Union of Turkey (YOL-IS) was not applied to the employees of the contractors and subcontractors of the General Directorate.

The Government again refers, regarding this point, to the existing legislative provisions, such as Decree No. 88/13168 concerning general principles governing working conditions (labour clause) to be included in public contracts, and the "General Specifications for Public Works", the text of which was supplied with the Government's previous report, and which indeed contain provisions corresponding to the labour clauses in line with Article 2(1) of the Convention. According to the Government, the "General Specifications" are always enclosed in the public contract falling within their scope. The Government further declares in the report that the relevant national provisions should be presumed to have been applied in practice since the competent administrative authorities are responsible for compliance. It adds that in case of a breach, the case can always be brought to court by the employees and three examples of court decisions are attached to the report.

The Committee recalls that the existing legislative provisions and the "General Specifications" are in conformity with the requirements of the Convention. It again points out that the present issue relates to the application in practice of the national provisions that give effect to the Convention.

The Committee recalls that the "General Specifications" include provisions (section 33 (paragraph 14)) stipulating the application of penal provisions under section 47, which implies the possibility of the public administration terminating the contract in the case of failure to comply with the working conditions prescribed in the labour clause contained in the preceding paragraph of the same section. It notes that this provision itself is in conformity with Article 5 of the Convention, which calls for adequate sanctions by withholding of contracts or otherwise for failure to observe and apply the provisions of the labour clause. The Committee notes, however, the Government's indication in the report that there has been no recourse to termination of a contract for reasons of non-compliance with labour clauses during the reporting period (1 July 1996 to 31 May 1997). It recalls that one of the reasons for using labour clauses in public contracts to protect working conditions is that the provision of penalties, such as the withholding of payments to the contractor, makes it possible to impose more directly effective sanctions in case of infringements. The Committee therefore asks the Government to continue to supply information on the application of the above provisions in practice.

The Committee also requests the Government to supply information on the functioning of the control body under section 33 of the "General Specifications" and the inspection under section 4 of Decree No. 88/13168, including the number and nature of the cases in which violations are observed and penal sanctions actually applied in accordance with the provisions referred to. It also asks the Government to continue to indicate any further measures taken or envisaged to ensure that, in accordance with the above provisions of the Decree and the "General Specifications", the workers employed by public contractors enjoy wages and other conditions of work that are not less favourable than those established by the existing collective agreement for work of the same character in the sector of road, building and construction.

Contracts for the manufacture and assembly of materials

The TURK-IS also pointed out that Decree No. 88/13168 covered only contracts concerning construction, services, earth-moving and transportation of materials, and that the alteration, repair or demolition of public works and the manufacture and assembly of materials, supplies or equipment are excluded from the obligation of labour clauses under this Decree.

The Committee notes that the Government refers to section 4 of Act No. 2886/1983 concerning public tender, which defines "service" to include "research, drilling, manufacture, prototype manufacture, exploration, study, map planning, project making, supervision, counselling and all kinds of similar services contracted out to a natural or legal person"; "construction" is also defined to include "all kinds of construction, preparation, manufacturing, drilling, installation, restoration, demolition, alteration, improvement, renovation and assembly works"; and "transportation" to include "loading, moving, unloading, storing and packing". The Government also indicates that Decree No. 88/13168 covers contracts relating to construction, services, earth-moving and transportation of materials, while the "General Specifications" embraces within its scope only construction and service activities as defined in article 4 of Act No. 2886.

The Committee notes that according to these definitions under article 4 of Act No. 2886, Decree No. 88/13168 is applicable to all contracts covered by Article 1(c)(i) and (ii). It asks the Government to supply information on its application in practice to the public contracts for the manufacture and assembly of materials.

Awareness raising

As regards the comment of the TURK-IS on the non-observance of Article 2(4) of the Convention under which the competent authority should take measures, by advertising specifications or otherwise, to ensure that persons tendering for contracts are aware of the terms of the labour clauses, the Government indicates that the Decree and the "General Specifications" are the standard appendices to the public contracts, of which the contractors are undoubtedly aware. The Committee asks the Government to supply information on measures taken or envisaged to bring the relevant provisions of the Decree and the "General Specifications" to the attention of tenderers for public contracts, at the stage of tendering before the public contract is awarded.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

With reference to its previous observation, the Committee notes the Government's report, including the provisions of the attached "General Specifications for Public Works", as well as the comments made by the Confederation of Turkish Trade Unions (TURK-IS) and the Turkish Confederation of Employers' Association (TISK).

Road, building and construction sector

In its previous observation, the Committee noted the comments made by the TURK-IS, with reference to the spreading practice of subcontracting, that the collective labour agreement concluded by the General Directorate of Highways and the Road, Building and Construction Workers' Union of Turkey (YOL-IS) was not applied to the employees of the contractors and subcontractors of the General Directorate. The Committee notes that, according to TURK-IS, there has been no positive steps taken to ensure the implementation of the Convention in this sector.

The Government refers, in response, to the provisions of Decree No. 88/13168 dated 1 November 1988 concerning general principles governing working conditions (labour clause) to be included in public contracts, and in particular to its section 2(b) stipulating that a contractor must secure to the workers employed wages and other conditions of work that are not less favourable than those established by legislation or collective agreement for work of the same character in the trade or industry concerned. In addition, the "General Specifications for Public Works" contains provisions in its section 33 on the application of penal provisions in the case of violation by contractors of the required labour conditions. The TISK also refers to the provisions of the same Decree and the "General Specifications for Public Works" in its comments.

The Committee recalls that it noted the above Decree already in 1989. It further notes that the text of the "General Specifications" provided with the Government's report indeed contains provisions corresponding to the labour clauses in line with Article 2(1) of the Convention (section 33(13) reads: "the contractor shall ensure to the workers he employs wages and other conditions of work that are not less favourable than those established by legislation or collective agreement for work of the same character in the trade or industry concerned ..."), and also stipulates the application of penal provisions in the case of violation (section 33(14)) as well as a system of supervision by the control body (section 33(3) and the following).

The Committee notes from the above information that the existing legislative provisions and the "General Specifications" are in conformity with the requirements of the Convention. It points out that the present issue relates to the application in practice of the national provisions that give effect to the Convention. The Government however indicates in the report that there are no difficulties regarding the application of the Convention in practice. The Committee therefore urges the Government to supply full information on the measures taken or envisaged to ensure that, in accordance with the above provisions of the Decree and the "General Specifications", the workers employed by public contractors enjoy wages and other conditions of work that are not less favourable than those established by the existing collective agreement for work of the same character in the sector of road, building and construction. It asks the Government to indicate, in particular, the functioning of the control body under section 33 of the "General Specifications" and the inspection under section 4 of Decree No. 88/13168, including the number and nature of the cases in which violations are observed and penal sanctions are actually applied in accordance with the provisions referred to.

Contracts for the manufacture and assembly of materials

The TURK-IS also points out that Decree No. 88/13168 covers only contracts concerning construction, services, earth-moving and transportation of materials, and that the alteration, repair or demolition of public works and the manufacture and assembly of materials, supplies or equipment are excluded from the obligation of labour clauses under this Decree. The Committee notes this observation and recalls that it has raised the point under the previous direct requests, asking the Government to take the necessary measures to ensure that the labour clauses referred to in Article 2 of the Convention are included in public contracts for all the activities covered by the Convention.

The Committee notes that the Government again states, in the report, that the activities that are outside the scope of Decree No. 88/13168 are covered by Labour Act No. 1475. The Committee points out that the fact of the general labour legislation being applicable to the activities concerned does not release the Government from the obligation to take the necessary measures to ensure the inclusion of labour clauses in public contracts for the said activities. This is because the minimum standards fixed by law are often improved upon by means of collective bargaining or otherwise and also because the provision of penalties, such as the withholding of payments to the contractor make it possible to impose more directly effective sanctions in case of infringements.

The Committee therefore requests the Government to supply information on the measures taken or envisaged to ensure the insertion of labour clauses in accordance with Article 2 in all contracts covered by Article 1(c)(i) and (ii) by means of extending the application of Decree No. 88/13168 or otherwise.

Awareness raising

The Committee also notes the comment of the TURK-IS on the non-observance of Article 2(4) of the Convention under which the competent authority should take measures by advertising specifications or otherwise, to ensure that persons tendering for contracts are aware of the terms of the labour clauses. It asks the Government to indicate measures taken or envisaged to bring the relevant provisions of the Decree and the "General Specifications" to the attention of tenderers for public contracts.

[The Government is asked to report in detail in 1997.]

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

With reference to its previous comments, the Committee notes the information provided by the Government concerning Article 5 of the Convention and point V of the report form.

Article 1, paragraph 1. In its earlier comments, the Committee noted that the provisions of Decree No. 88/13168, of 18 July 1988, cover contracts awarded by public establishments for construction, services, earth-moving and for the transport of materials, and that, as regards the manufacture and assembly of materials (referred to in Article 1, paragraph 1(c)(ii)), these activities lie within the scope of Labour Law No. 1475. The Committee therefore asked the Government to take the necessary measures to ensure that the labour clauses referred to in Article 2 of the Convention are included in public contracts for all the activities laid down in Article 1, paragraph 1(c)(ii) of the Convention.

The Committee notes that the Government again refers, as a reply, to the coverage of the manufacture and assembly of materials by the Labour Act No. 1475. It points out that the fact of the general labour legislation being applicable to the activities concerned does not release the Government from the obligation to take the necessary measures to ensure the inclusion of labour clauses in public contracts for the said activities. This is because the minimum standards fixed by law are often improved upon by means of collective bargaining or otherwise and also because the provision of penalties, such as the withholding of payments to the contractor make it possible to impose more directly effective sanctions in case of infringements.

The Committee therefore requests the Government to indicate whether there exist public contracts for the manufacture or assembly of materials, supplies or equipment involving the employment of workers by the contractor, and if so to supply information on the measures taken or envisaged to ensure the insertion of labour clauses in such contracts, by means of extending the application of Decree No. 88/13168 or otherwise.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the observations communicated in August 1994 by the Confederation of Turkish Trade Unions (TURK-IS). TURK-IS considers that the provisions of Decree No. 88/13168 concerning general principles governing working conditions (labour clause) to be included in public contracts have not been given effect. Referring to the spreading practice of subcontracting, TURK-IS points out that the collective labour agreement concluded by the General Directorate of Highways and the Road, Building and Construction Workers' Union of Turkey (YOL-IS) is not applied to the employees of the contractors and subcontractors of the General Directorate.

The Committee notes that the Government's report was received only in February 1995, including further observations made by TURK-IS and observations by the Turkish Confederation of Employers' Association (TISK). The Committee will therefore examine the report, as well as any comments that the Government wishes to make on the points raised by TURK-IS and TISK, at its next session.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

In its previous observation, the Committee noted the comments communicated in August 1994 by the Confederation of Turkish Trade Unions (TURK-IS). TURK-IS considers that the provisions of Decree No. 88/13168 concerning general principles governing working conditions (labour clause) to be included in public contracts have not been implemented. Referring to the spreading practice of subcontracting, TURK-IS points out that the collective labour agreement concluded by the General Directorate of Highways and the Road, Building and Construction Workers' Union of Turkey (YOL-IS) is not applied to the employees of the contractors and subcontractors of the General Directorate.

The Committee further notes that additional observations made by TURK-IS and observations by the Turkish Confederation of Employers' Association (TISK), both concerning the difficulties encountered in the application of the Convention in practice, have been received with the Government's report.

The Committee notes that the Government refers in the addendum to its report received on 24 November 1995 to the provisions of the above-mentioned Decree No. 88/13168, and in particular to its section 4 stipulating that appropriate inspection should be carried out to ensure its enforcement. The Government states in addition that the "General Specifications for Public Works" contains provisions corresponding to the labour clause in line with the Convention, and its section 33 stipulates the application of penal provisions in the case of violation by contractors of the given labour conditions. The Government therefore considers that such problems as mentioned by TURK-IS can be solved in the context of these existing legislative measures and inspection system.

The Committee notes the above information and recalls that the existing legislative provisions are in conformity with the requirements of the Convention. It points out that the present issue relates to the application in practice of the national provisions that give effect to the Convention. The Committee therefore requests the Government to supply full information on the functioning of the inspection in this regard and the cases in which violations are observed and penal sanctions are actually applied in accordance with the provisions referred to. It asks the Government to provide a copy of the relevant provisions of the above-mentioned "General Specifications", and to include, for example, extracts from official reports.

The Committee is also addressing a direct request to the Government on other points.

[The Government is asked to report in detail in 1996.]

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

With reference to its previous comments, the Committee notes the explanations provided by the Government concerning Article 1, paragraph 4, and Article 2, paragraph 3, of the Convention.

Article 1, paragraph 1. The Committee notes that, according to the Government, the provisions of Decree No. 88/13168, of 18 July 1988, cover contracts awarded by public establishments for construction, services, earth-moving and for the transport of materials, supplies or equipment and the performance and supply of services, as set out in Article 1, paragraph 1(c)(ii) and (iii). However, as regards the manufacture and assembly of materials (activities referred to in Article 1, paragraph 1(c)(ii)), these activities lie within the scope of Labour Law No. 1475. The Committee recalls that the provisions of the Convention apply to all contracts to which at least one of the parties is a public authority in respect of the activities mentioned in Article 1, paragraph 1(c). The Committee therefore hopes that the Government will take the necessary measures to ensure that the labour clauses referred to in Article 2 of the Convention are included in public contracts for all the activities laid down in Article 1, paragraph 1(c)(ii) and (iii) of the Convention.

Article 5. The Committee notes the information concerning the various sanctions laid down in Labour Law No. 1475 in the event of violations of provisions concerning conditions of labour in general. The Committee also notes that section 5 of Decree No. 88/13168 provides for the application of sanctions to employers who do not respect the general conditions of labour set out by this Decree. Nevertheless, the Government has not indicated the sanctions laid down for violations of the labour clauses in public contracts. The Committee therefore hopes that the Government will examine the adoption of sanctions such as the refusal to enter into contracts in the event of violations in the application of labour clauses included in public contracts.

Point V of the report form. The Committee notes that the Government is not able to supply information concerning the number of public contracts and the number of workers covered by these contracts since such information is not available. The Committee hopes that the Government will soon be able to gather this information and transmit it.

The Committee also notes the comments made by the Confederation of Employers' Associations indicating that there have been no particular problems to report as regards the application of the Convention.

Direct Request (CEACR) - adopted 1989, published 76th ILC session (1989)

Article 1, paragraph 1, of the Convention. By virtue of section 1 of Decree No. 19970, the activities covered by public contracts which have to contain labour clauses are the activities of construction, earth-moving and the transport of materials. The Committee requests the Government to indicate the measures taken or envisaged to insert labour clauses into public contracts covering the other types of activity set out in Article 1, paragraph 1(c), (ii) and (iii) of the Convention.

Article 1, paragraph 4. Section 1 of the above Decree lays down that public contracts of which the value is not less than an amount to be determined annually by the Ministry of Public Works and Settlement, taking into account the views of the Ministries of Finance, Labour and Social Security, shall contain labour clauses. The Committee requests the Government to indicate how consultation with the organisations of employers and workers concerned is organised for the fixing of this amount and to indicate the amounts that are fixed.

Article 2, paragraph 3. The Committee requests the Government to indicate the manner in which the organisations of employers and workers concerned were consulted when the above Decree was adopted regarding the terms of the labour clauses to be included in labour contracts.

Article 5, paragraph 1. The Committee notes that, by virtue of section 5 of the above Decree, sanctions shall be applied for failure to observe the labour clauses in public contracts. It requests the Government to indicate the sanctions laid down in this case.

Part V of the report form. With reference to its previous comments, the Committee requests the Government to supply information on the number of public contracts and the number of workers covered by them.

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee notes with satisfaction the adoption of Decree No. 19970, which came into force on 1 November 1988, respecting the general specifications concerning conditions of employment on public works contracted out. It requests the Government to supply information on the points raised in a request that is being addressed directly to it.