Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Uruguay (Ratification: 1954)

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Article 2 of the Convention. Inclusion of labour clauses in public contracts. For over 14 years, the Committee has been requesting the Government to take the necessary measures to ensure that the scope of the provisions of Decree No. 475/005 on public contracts for services is extended to cover all types of public contracts envisaged by the Convention. Equally, since 2012, the Committee has been requesting the Government to amend Act No. 18.098 to bring it into full compliance with the requirements of Article 2 of the Convention, as it only requires compliance with wage rates fixed by wage boards, and not with the more favourable conditions (including working hours, holidays, and sick leave) provided for in legislation, collective agreements, or arbitration awards, in conformity with the Convention.

The Committee notes that the Government once again refers, with reference to public works contracts, to Decree No. 257/015, approving the single document setting out the regulations and general conditions of public works contracts. Section 38, on compliance with the single document labour legislation, establishes that the contractor shall comply with the legislation and regulations on risk prevention applicable to the work undertaken. In particular, the contractor is required to: respect the wage rates fixed by the wage boards; hold valid insurance for occupational accidents and diseases for workers; and comply with the provisions of Acts Nos 18.099 of 24 January 2007 and 18.251 of 6 January 2008 on occupational liability in enterprise decentralization processes. The Committee notes that section 5 of Act No. 18.099 provides that “workers supplied by temporary employment enterprises shall receive benefits no less favourable than those fixed by wage boards, collective agreements or executive decree, according to their category and in concordance with the area of activity of the enterprise by which they are employed”. The Committee notes, however, that this provision is applicable only to workers supplied by temporary employment enterprises. The Government also indicates that the above-mentioned section is included in the standard documents produced, and placed at the disposal of institutions, by the Regulatory Agency for State Procurement (ARCE). In this connection, the Government gives the example of the Framework Agreement, Proclamation and Consulting Contract.

Regarding supply and service contracts, the Government refers to the single document setting out the regulations and general conditions of supply and non-personal service contracts (Decree No. 131/014). The Government indicates that although the said single document does not include clauses on compliance with labour, social insurance, and occupational safety obligations, it is governed by the regulations in force, in particular Acts Nos 18.099 and 18.251. In this regard, the Committee recalls that the mere application of general labour law is not sufficient to guarantee the application of the Convention. The Convention requires bidders to be informed in advance, by means of standard labour clauses included in tender documents, that, if selected, they would have to observe in the performance of the contract wages and other labour conditions not less favourable than the highest minimum standards established locally by law, arbitration or collective bargaining (A practical guide to Convention No. 94, pages 15 and 20). Lastly, the Committee notes the adoption of Act No. 19.889 of 9 July 2020, which introduces sections 329 to 339 of the Labour Code, on the establishment of the Regulatory Agency for State Procurement (ARCE). The Agency’s mandate includes: providing advice on matters related to procurement or contracts involving the expenditure of public funds; and the completion, in specific circumstances, of the administrative contracting procedures for the acquisition of goods and services, in compliance with the regulations in force. The Committee once again points out that it has been commenting for a number of years on the fact that the Government has not given effect to the Convention. In this regard, it recalls that the inclusion of the labour clauses identified in Article 2 of the Convention in all contracts concluded by the public authorities covered by the Convention, does not necessarily require the enactment of new legislation, but can also be achieved through administrative instructions or circulars. The Committee hopes that the Government will adopt without delay all the necessary measures to bring its national legislation into full conformity with the fundamental requirements of the Convention. The Committee requests the Government to keep it informed of the progress achieved and again recalls that the Government may, if it so wishes, avail itself of ILO technical assistance in this respect.

The Committee noted information supplied by the following States in an answer to a direct request: Cuba, Denmark.

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

Article 2 of the Convention. Inclusion of labour clauses in public contracts. In response to previous comments, the Government reports that the limitations on the scope of Decree No. 475/005 and Act No. 18.098 to public contracts for services are in line with the special characteristics of this type of contract, which often take longer to fulfil, necessitating the establishment of labour relationships that require the recognition of special rights. On the other hand, contracts for goods include requirements that are immediately fulfilled when the provider delivers the goods or products. With regard to contracts for public works, the Government indicates that, as this type of contract involves the delivery of both goods and services, the abovementioned legislation also applies to all aspects of the contract that involve the provision of services. In this regard, the Government refers to the adoption of Decree No. 257/015 of 23 September 2015 approving the single document setting out the regulations and general conditions of public works contracts and the manual for public contracts and procurement procedures for goods, works and services, which incorporates Act No. 18.098 among the regulations governing public contracts. The Committee notes the clarification provided by the Government and recalls that, as explained in the Practical Guide prepared by the Office in 2008 (page 17), the Convention applies to all public contracts, whether for works (for example construction of a new highway, extension of an airport terminal), goods (for example the purchase of new uniforms for customs officers or procurement of computer hardware for a ministry) or services (for example cleaning or IT services). Furthermore, the Committee observes that the Government does not provide information on the steps taken to amend Act No. 18.098 with a view to bringing it into line with the requirements of this Article of the Convention, as the Act only requires compliance with wage rates fixed by wage boards, and not the more favourable conditions provided for in laws, regulations, collective agreements or arbitration awards. The Committee therefore once again requests the Government to take the necessary measures to ensure that the scope of the provisions of Decree No. 475/005 are extended to cover all types of public contracts envisaged by the Convention. The Committee reiterates its request to the Government to amend Act No. 18.098 to bring it fully into line with the requirements of Article 2 of the Convention.

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

Article 2 of the Convention. Inclusion of labour clauses in public contracts. Further to its previous comment, the Committee notes the Government’s indication that Decree No. 475/005 of 14 November 2005, which the Committee has previously found to conform fully to the provisions of Article 2 of the Convention, is the main legal text implementing the Convention. The Government adds that Act No. 18.098 of 12 January 2007, which narrows the scope of labour clauses to only the observance of wage rates fixed by wage councils, should not be deemed to supersede Decree No. 475/005.

While noting these clarifications, the Committee once again draws the Government’s attention to the fact that both the abovementioned texts apply only to public contracts for services whereas the Convention requires labour clauses to be inserted in all procurement contracts whether for works, goods or services. Recalling that the scope of the Convention is not in any manner limited to services contracts, the Committee asks the Government to take the necessary measures to ensure that the scope of the provisions of Decree No. 475/005 are extended to cover all types of public contracts. The Committee also asks the Government to amend Act No. 18.098 so as to bring it fully into line with the requirements of this Article of the Convention.

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

Article 2, paragraph 1, of the Convention. Inclusion of labour clauses in public contracts. The Committee notes the information provided by the Government on Decree No. 475/005 of 14 November 2005 and Act No. 18.098 of 12 January 2007. It notes that, according to the Government, some of the general conditions of contracts refer simultaneously to both these texts and a legal analysis is required to determine whether Act No. 18.098 repeals Decree No. 475/005. The Committee also notes that the Government intends to examine this matter, taking into account the General Survey concerning the labour clauses in public contracts which the ILO Conference examined in June 2008. It draws the Government’s attention to the points raised in its previous comments, when it noted with regret that Act No. 18.098 seemed to restrict the scope of Decree No. 475/005 because it dealt only with the issue of the remuneration of workers and not working hours or other conditions of work, as prescribed by the Convention. The Committee also pointed out that this Act required only the observance of wage rates fixed by the wage councils and not of those, possibly more favourable conditions, established by legislation, collective agreement or arbitration award. It further stressed that section 1 of Act No. 18.098 does not reproduce the text of section 1 of Decree No. 475/005, whereas the latter conforms fully to the provisions of Article 2 of the Convention with regard to public service contracts. The Committee requests the Government to provide information on the result of the analysis carried out on the legal relationship between Decree No. 475/005 and Act No. 18.098, and hopes that it will take account, in the context of this analysis of the abovementioned comments concerning the limited scope of this Act compared to that of Decree No. 475/005. Recalling also its previous observation, in which it pointed out that the abovementioned texts only applied to services contracts, it requests the Government to take the necessary measures to ensure that all public contracts covered by the Convention, including service and procurement contracts, incorporate labour clauses guaranteeing to the workers concerned wages and other conditions of work which are not less favourable than the most advantageous conditions established for work of the same nature in the same area by collective agreement, arbitration award or national laws or regulations. In this respect, the Committee points out that the general conditions governing service contracts and contracts issued by the National Traffic Department, of which extracts are contained in the Government’s report, only contain provisions pertaining to wages of workers employed under public contracts, and do not refer to hours of work or other working conditions.

Article 2, paragraph 3. Consultation of employers’ and workers’ organizations. The Committee notes the general information provided by the Government concerning the participation of employers’ and workers’ organizations in collective bargaining, especially in the construction sector. However, it asks the Government to submit more detailed information on the way in which these organizations are effectively consulted before the labour clauses in general conditions in public contracts are drawn up, and on the consultations that were held before the adoption of Act No. 18.098 of 12 January 2007 and Decree No. 475/005 of 14 November 2005.

Article 6 of the Convention and Part V of the report form. The Committee notes the Government’s information on the provisions applicable in the failure to respect standards, arbitration awards or collective agreements in force. It nevertheless points out that its previous comment specifically referred to the general conditions for public works, mentioned in section III, paragraph 1, of the tender attached to the Government’s last report. The Committee therefore requests the Government once again to indicate whether the text to which reference is made is that of the general conditions for the construction of public works and, if not, to send a copy of the general conditions which are currently applicable.

For all useful purposes, the Committee attaches herewith a copy of a Practical Guide on Convention No. 94, recently published by the Office, which sheds light on the scope of the provisions of the Convention.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Article 2, paragraph 1, of the Convention. Inclusion of labour clauses in public contracts. The Committee notes with interest the adoption of Decree No. 475/005 of 14 November 2005, which refers explicitly in its preamble to the provisions of the Convention. It notes that section 1 of the Decree provides that, in the context of public contracts relating to the performance or supply of services (cleaning, surveillance, maintenance, etc.), the general and particular conditions of the contract must include clauses guaranteeing to workers of provider enterprises wages, working hours and other conditions of work which are in conformity with those laid down by the legislation, arbitration awards and/or collective agreements in force for the sector of activity concerned. The Committee understands that this provision obliges the enterprises concerned to provide wages, working hours and other conditions of work at least as favourable as the most favourable established by collective agreement, arbitration award or national laws or regulations. It requests the Government to further clarify this point. The Government is also requested to clarify whether similar provisions have been adopted for construction and supply contracts and, if so, to send copies of any relevant text.

The Committee also notes the adoption of Act No. 18.098 of 12 January 2007, section 1 of which provides that whenever a public authority concludes a contract with a third party for the performance of services for which it is responsible, the general and particular conditions of the contract must provide that the remuneration of workers to whom the performance of these tasks is assigned must be in conformity with awards made by the wage councils. However, the Committee notes with regret that this Act seems to restrict the scope of Decree No. 475/005 referred to above. It deals only with the issue of the remuneration of workers and not working hours or other conditions of work, as prescribed by the Convention. Moreover, Act No. 18.098 requires only the observance of wage rates fixed by the wage councils and not of those possibly more favourable conditions established by legislation, collective agreement or arbitration award. The Committee understands that the coexistence of Decree No. 475/005 and Act No. 18.098 poses the same problems of application of the Convention as those which were raised in its previous comments regarding the relationship between section 34 of Decree No. 8/990 and section 1 of Decree No. 114/982 (see in particular the observation made in 2000 by the Committee on this point), in as much as section 1 of Act. No. 18.098 does not reproduce the text of section 1 of Decree No. 475/005, whereas the latter conforms fully to the provisions of Article 2 of the Convention with regard to public service contracts. The Committee asks the Government to clarify this issue and to take all necessary measures to ensure that all public contracts covered by the Convention incorporate clauses guaranteeing to the workers concerned wages, hours of work and other conditions of work which are not less favourable than those established for work of the same character in the same area by collective agreement, arbitration award or national laws or regulations.

The Committee also notes the adoption of Act No. 18.099 of 24 January 2007, under the terms of which enterprises which use subcontractors or intermediaries are jointly responsible for the obligations of the latter in social matters, this responsibility also extending to public authorities resorting to such practices.

The Committee also notes the comments made by the Inter-Trade Union Assembly–National Workers’ Convention (PIT–CNT), according to which the adoption of the new texts referred to above signifies progress in the protection of workers’ wage claims. However, it notes that, according to the PIT–CNT, workers’ claims against the State, such as those made by workers of subcontracting enterprises (“empresas tercerizadas”) in cases of non-payment of wages owed to them, must now be submitted to the civil courts, thereby unduly depriving them of the protection inherent in the application of labour law. The Committee understands that the question of competent jurisdiction for dealing with wage disputes does not affect the due application of the Convention. It asks the Government to send its observations on this matter.

Article 2, paragraph 3. Consultation of employers’ and workers’ organizations. The Committee notes that the Government has not replied to its previous comment on this point and asks it to supply information on the manner in which prior consultation of employers’ and workers’ organizations is ensured with regard to the content of labour clauses, particularly tripartite consultations which were conducted before the adoption of Act No. 18.098 of 12 January 2007 and Decree No. 475/005 of 14 November 2005.

Article 4(a)(iii). Information given to workers. The Committee notes that Decree No. 392/980 was repealed by Decree No. 108/2007 of 22 March 2007. It notes that, under section 2 of the new Decree, enterprises must keep work registers (“planillas de control del trabajo”). These registers must mention in particular the wages and hours of work of the worker concerned (section 9) and must be kept within the enterprise in a place where they can be consulted by the workers (section 11).

Article 5. Penalties. The Committee notes that, under section 3 of Decree No. 475/005 and section 4 of Act No. 18.098, public contracts to which these texts apply must include a clause providing for the possibility of the contracting authority to withhold payments due under the contract, corresponding to the amount of wages claimed by workers of the contracting enterprise.

Article 6 and Part V of the report form. The Committee notes with interest the copy of the invitation to tender attached to the Government’s report, which provides in particular for the labour inspectorate to be notified if the contractor does not observe the standards, arbitration awards or collective agreements in force (section VI, paragraph 2(e)). The Committee notes that section III, paragraph 1, of this document states that the general conditions for public works are applicable to the contract. It asks the Government to indicate whether the text to which reference is made is Decree No. 8/990 of 24 January 1999 approving the official text of the “General conditions for the construction of public works”, which was the subject of previous comments made by the Committee. If not, the Government is requested to send a copy of the general conditions which are currently applicable.

Further, the Committee draws the Government’s attention to the fact that full observance of the Convention requires the inclusion of labour clauses in the contract concluded between the public authority and the enterprise to which the public contract is assigned, and not only in the invitation to tender. Consequently, the Committee asks the Government to send copies of public contracts containing the labour clauses provided for by the Convention.

In this respect, the Committee draws the Government’s attention to this year’s General Survey on labour clauses in public contracts, which presents the law and practice of member States in this area and makes an assessment of the impact and current relevance of Convention No. 94.

[The Government is asked to reply in detail to the present comments in 2008.]

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the information provided by the Government in reply to its previous comments.

Article 2, paragraph 1, of the Convention. The Committee notes the Government’s intention to amend section 34 of Decree No. 8/990, as the Committee has been suggesting for several years, and to reintroduce the wording of section 1 of Decree No. 114/982 which was fully consonant with the provisions of this Article of the Convention. The Government indicates that the Ministry of Labour and Social Security has already prepared a text to this effect and states that a copy of the draft Decree was annexed to its report. Since no such document has been received by the Office, the Committee would be grateful if the Government would forward another copy of the draft text and report on any further developments regarding its adoption.

In addition, the Committee has been requesting the Government to indicate how it is ensured in law and in practice the insertion of labour clauses in all public contracts other than those related to construction of public works. In its reply, the Government indicates that all contractors, and not only those who have been awarded contracts for the construction of public works, are under the obligation to apply the wage rates and other working conditions as may be established by collective agreements in their respective sectors. The Committee requests the Government to specify whether all categories of workers who may be employed for the execution of public contracts, whether with respect to construction work, supply of services or procurement of goods, are effectively covered by sectoral collective agreements and, if not, to indicate the manner in which these workers are guaranteed wages, hours of work and other labour conditions at least as favourable as the most favourable established for work of the same character in the same area.

Article 2, paragraph 3. The Committee notes the Government’s statement to the effect that the social partners actively participate through collective bargaining to the determination of the working conditions applicable to each sector or branch of economic activity. However, the Committee feels obliged to point out that this Article of the Convention only relates to consultations bearing exclusively on the specific terms of the clauses to be included in the contracts. It therefore once again asks the Government to take appropriate action to ensure that any decision as to the scope and content of the labour clauses is taken after real and effective consultations with employers’ and workers’ representatives.

Moreover, the Committee recalls its previous comments in which it drew attention to the need for sufficient publicity to be given to the working conditions applicable to workers concerned, for instance by posting of notices in conspicuous places at the workplace, as required under Article 4(a)(iii) of the Convention. The Committee notes the Government’s reference to Decree No. 392/80 which requires a Work Register (Planilla de Trabajo) containing full particulars on hours of work performed and wages paid to be kept at all times at a place that is reasonably accessible to the workers. The Government further refers to the recent Decree No. 186/004 of 8 June 2004 which qualifies and punishes as a serious breach of the labour legislation the failure to display the Work Register in a visible place in the work establishment. The Committee would appreciate receiving a copy of the text of Decree No. 392/80.

Finally, the Committee would be grateful to the Government for supplying, in accordance with Article 6 and Part V of the report form, up-to-date information on the practical application of the Convention, including for instance copies of public contracts containing labour clauses, available statistics on the number of contracts awarded and the number of workers employed under these contracts during the reporting period, as well as information from labour inspection services on the supervision of the national laws and regulations regarding public procurement.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

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

The Committee notes the comments made by the Inter-Trade Union Assembly - National Workers’ Convention (PIT-CNT) regarding the application of the Convention.

I. Application of the Convention in respect of public construction contracts

1. The Committee notes the Government’s statement, in response to its previous comments, to the effect that section 34 of the Decree of 1990 should be read in its entirety, i.e. including the second sentence, according to which public works contractors are required in any contracts with subcontractors to include a clause requiring the latter to comply with all labour law provisions in force. This, according to the Government, covers any relevant laws and regulations in force, including acts, legislative and other decrees, executive decisions, international labour Conventions, collective agreements and arbitration awards. The Government also states that the adoption of Executive Decree No. 13/001 extends the collective wages agreement of 11 December 2000 to the entire construction sector. The Government notes in this regard that, since this instrument was enacted after Decree No. 8/990 of 24 January 1990 setting out the general conditions for public works tenders, it supersedes the latter.

2. The Committee recalls that it had noted in its previous observation that section 34 of Decree No. 8/990 required only that the contractor comply with "legal and regulatory provisions in force in labour matters", thus limiting the provisions of the previous Decree No. 114/982, given that section 1 of the latter required that "labour clauses should be included in the relevant contracts so that the contracting parties are obliged to comply with the provisions of arbitration awards and collective agreements in force for the branch of activities". The Committee concurs with the Government that, in the construction sector, the collective agreement that has been extended to cover the entire sector makes it possible to guarantee to workers in the sector to which it applies wages that are not less favourable than those of other workers in the same occupation. However, the Committee notes that the collective agreement in question concerns only wages in the construction sector; Article 2, paragraph 1, of the Convention, on the other hand, is broader in scope and concerns, apart from wages (including allowances), other conditions of work including working hours. The Committee therefore considers that extending the collective agreement to the entire construction sector, including for public contracts, only partially meets the concerns expressed in its previous observation. Furthermore, the collective agreement concerns only the construction sector in those areas to which, in accordance with Article 1(c)(ii) and (iii), the Convention applies - the manufacture, assembly, handling or shipment of materials, supplies or equipment, or the performance or supply of services. The PIT-CNT, referring to this question, recalls the decisions adopted by the Government to subcontract certain services in the public administration. The purpose of this, according to the PIT-CNT, is to level wages downwards and avoid the need to respect trade union activities. While taking due note of these observations, the Committee considers that they are not strictly relevant to the provisions of the Convention or its application.

3. In the light of the preceding comments, the Committee is bound to regret that the necessary measures are not being taken to ensure that section 34 of Decree No. 8/990 reproduces the text of section 1 of Decree No. 114/982, which gives full effect to the provisions of Article 2 of the Convention. The Committee accordingly requests the Government once again to take the necessary steps to do this.

II. Application of the Convention to other contracts provided for under Article 1

4. The Government states that it is increasingly resorting to the method of awarding concessions in cases where concluding a public contract would entail investment on a scale which the state budget cannot accommodate because it would add an excessive burden to the country’s foreign debt. The Government also states that as regards the other types of contract involving smaller sums of money, it retains responsibility for concluding contracts.

5. The Committee recalls and emphasizes that, according to Article 1, paragraph 1, of the Convention, the latter applies to contracts that are awarded by a public authority and which involve the expenditure of funds by a public authority for the construction, alteration, repair or demolition of public works, the manufacture, assembly, handling or shipment of materials, supplies or equipment, or the performance or supply of services. When a public authority concludes a contract to which the Convention is applicable, the contract must, under the terms of Article 2, paragraph 1, of the Convention include clauses ensuring to the workers concerned wages (including allowances), hours of work and other conditions of labour which are not less favourable than those established for work of the same character in the trade or industry concerned in the district where the work is carried on, by collective agreement, by arbitration award or by national laws or regulations. The Committee requests the Government to indicate the manner in which it ensures that public contracts under the terms of Article 1 of the Convention contain clauses ensuring to the workers concerned conditions of labour which are not less favourable than those established for work of the same character in the trade or industry concerned in the district where the work is carried on, by collective agreement, by arbitration award or by national laws or regulations. The Committee requests the Government to provide the International Labour Office with copies of the legislation giving effect to the Convention.

6. In addition, the Committee states that the central and regional authorities have carried out consultations regarding the conditions of work of public employees. The Committee recalls, however, that the Convention does not directly concern contracts of employment between a state official or agent and a public authority or institution. Nor does the Convention apply to the subcontracting of services ("servicios tercerizados") between the public administration and individuals for the provision of services which the State has decided to "privatize". The Committee thus considers that the documents supplied with the Government’s reports, which directly concern conditions of service in the public administration, are not relevant. The comments made by the PIT-CNT referring among other things to the measures adopted by the Government with a view to subcontracting public services ("tercerización de servicios") are not pertinent to the application of this Convention.

III. Consultations with organizations of employers and workers

7. The Committee indicated in its previous observations that, under the terms of Article 2, paragraph 3, of the Convention, the Government must consult organizations of employers and workers with a view to determining the terms of the clauses to be included in contracts and any variations thereof, in accordance with national conditions.

8. The Committee takes notes of the explanations provided by the Government, in particular the information on administrative law. However, the Committee wishes to point out that the consultations envisaged under this Article of the Convention concern clauses in public contracts concluded by the public authorities, not the conditions of service of state officials or agents. Consequently, the Committee requests the Government to provide clarifications in its next report with regard to the public contracts to which the Convention applies.

IV. Practical application of the Convention

9. Article 4(a)(iii). The Committee notes the statement of the Government to the effect that it is possible, within the public authorities, to obtain information on conditions of work from human resources departments, and that notices for display are made available to the trade union organizations within the same authorities. The Committee notes in this regard that the information for workers on their conditions of work by means of notices, as required by the Convention, does not concern the public administrations but the other party or parties to the public contract to which the Convention is applicable.

10. The Committee takes note of the detailed terminological explanations regarding the word "avisos" ("notices"). The Committee accepts the Government’s conclusion that the word should be interpreted to mean "the means by which the interested parties can be made aware of information". Consequently, the Committee requests the Government to indicate whether, in addition to providing for the means indicated in the report - the "trade union notices" ("carteleras gremials") regarding conditions of work - the law giving effect to the Convention requires also that such notices be displayed clearly in establishments and other places of work with a view to informing workers of their conditions of work.

11. Article 3, together with Article 4(b)(ii). Noting the observations of the PIT-CNT, to the effect that the problems arising from the application of this Convention and the national legislation that would give effect to it are due to inadequate monitoring by the labour inspectorate, the Committee requests the Government to supply information on the inspection system which it has established to ensure effective application of these provisions. It also requests the Government to indicate how the general labour and social security inspection authorities monitor the conditions of work of workers employed under public contracts to which the Convention is applicable.

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

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee takes note of the Government’s report and the attached documentation. It also notes the comments made by the Inter-Trade Union Assembly - National Workers’ Convention (PIT-CNT) regarding the application of the Convention.

I.  Application of the Convention in respect of public construction contracts

1. The Committee notes the Government’s statement, in response to its previous comments, to the effect that section 34 of the Decree of 1990 should be read in its entirety, i.e. including the second sentence, according to which public works contractors are required in any contracts with subcontractors to include a clause requiring the latter to comply with all labour law provisions in force. This, according to the Government, covers any relevant laws and regulations in force, including acts, legislative and other decrees, executive decisions, international labour Conventions, collective agreements and arbitration awards. The Government also states that the adoption of Executive Decree No. 13/001 extends the collective wages agreement of 11 December 2000 to the entire construction sector. The Government notes in this regard that, since this instrument was enacted after Decree No. 8/990 of 24 January 1990 setting out the general conditions for public works tenders, it supersedes the latter.

2. The Committee recalls that it had noted in its previous observation that section 34 of Decree No. 8/990 required only that the contractor comply with "legal and regulatory provisions in force in labour matters", thus limiting the provisions of the previous Decree No. 114/982, given that section 1 of the latter required that "labour clauses should be included in the relevant contracts so that the contracting parties are obliged to comply with the provisions of arbitration awards and collective agreements in force for the branch of activities". The Committee concurs with the Government that, in the construction sector, the collective agreement that has been extended to cover the entire sector makes it possible to guarantee to workers in the sector to which it applies wages that are not less favourable than those of other workers in the same occupation. However, the Committee notes that the collective agreement in question concerns only wages in the construction sector; Article 2, paragraph 1, of the Convention, on the other hand, is broader in scope and concerns, apart from wages (including allowances), other conditions of work including working hours. The Committee therefore considers that extending the collective agreement to the entire construction sector, including for public contracts, only partially meets the concerns expressed in its previous observation. Furthermore, the collective agreement concerns only the construction sector in those areas to which, in accordance with Article 1(c)(ii) and (iii), the Convention applies - the manufacture, assembly, handling or shipment of materials, supplies or equipment, or the performance or supply of services. The PIT-CNT, referring to this question, recalls the decisions adopted by the Government to subcontract certain services in the public administration. The purpose of this, according to the PIT-CNT, is to level wages downwards and avoid the need to respect trade union activities. While taking due note of these observations, the Committee considers that they are not strictly relevant to the provisions of the Convention or its application.

3. In the light of the preceding comments, the Committee is bound to regret that the necessary measures are not being taken to ensure that section 34 of Decree No. 8/990 reproduces the text of section 1 of Decree No. 114/982, which gives full effect to the provisions of Article 2 of the Convention. The Committee accordingly requests the Government once again to take the necessary steps to do this.

II.  Application of the Convention to other contracts provided for under Article 1

4. The Government states that it is increasingly resorting to the method of awarding concessions in cases where concluding a public contract would entail investment on a scale which the state budget cannot accommodate because it would add an excessive burden to the country’s foreign debt. The Government also states that as regards the other types of contract involving smaller sums of money, it retains responsibility for concluding contracts.

5. The Committee recalls and emphasizes that, according to Article 1, paragraph 1, of the Convention, the latter applies to contracts that are awarded by a public authority and which involve the expenditure of funds by a public authority for the construction, alteration, repair or demolition of public works, the manufacture, assembly, handling or shipment of materials, supplies or equipment, or the performance or supply of services. When a public authority concludes a contract to which the Convention is applicable, the contract must, under the terms of Article 2, paragraph 1, of the Convention include clauses ensuring to the workers concerned wages (including allowances), hours of work and other conditions of labour which are not less favourable than those established for work of the same character in the trade or industry concerned in the district where the work is carried on, by collective agreement, by arbitration award or by national laws or regulations. The Committee requests the Government to indicate the manner in which it ensures that public contracts under the terms of Article 1 of the Convention contain clauses ensuring to the workers concerned conditions of labour which are not less favourable than those established for work of the same character in the trade or industry concerned in the district where the work is carried on, by collective agreement, by arbitration award or by national laws or regulations. The Committee requests the Government to provide the International Labour Office with copies of the legislation giving effect to the Convention.

6. In addition, the Committee states that the central and regional authorities have carried out consultations regarding the conditions of work of public employees. The Committee recalls, however, that the Convention does not directly concern contracts of employment between a state official or agent and a public authority or institution. Nor does the Convention apply to the subcontracting of services ("servicios tercerizados") between the public administration and individuals for the provision of services which the State has decided to "privatize". The Committee thus considers that the documents supplied with the Government’s reports, which directly concern conditions of service in the public administration, are not relevant. The comments made by the PIT-CNT referring among other things to the measures adopted by the Government with a view to subcontracting public services ("tercerización de servicios") are not pertinent to the application of this Convention.

III.  Consultations with organizations of employers and workers

7. The Committee indicated in its previous observations that, under the terms of Article 2, paragraph 3, of the Convention, the Government must consult organizations of employers and workers with a view to determining the terms of the clauses to be included in contracts and any variations thereof, in accordance with national conditions.

8. The Committee takes notes of the explanations provided by the Government, in particular the information on administrative law. However, the Committee wishes to point out that the consultations envisaged under this Article of the Convention concern clauses in public contracts concluded by the public authorities, not the conditions of service of state officials or agents. Consequently, the Committee requests the Government to provide clarifications in its next report with regard to the public contracts to which the Convention applies.

IV.  Practical application of the Convention

9. Article 4(a)(iii). The Committee notes the statement of the Government to the effect that it is possible, within the public authorities, to obtain information on conditions of work from human resources departments, and that notices for display are made available to the trade union organizations within the same authorities. The Committee notes in this regard that the information for workers on their conditions of work by means of notices, as required by the Convention, does not concern the public administrations but the other party or parties to the public contract to which the Convention is applicable.

10. The Committee takes note of the detailed terminological explanations regarding the word "avisos" ("notices"). The Committee accepts the Government’s conclusion that the word should be interpreted to mean "the means by which the interested parties can be made aware of information". Consequently, the Committee requests the Government to indicate whether, in addition to providing for the means indicated in the report - the "trade union notices" ("carteleras gremials") regarding conditions of work - the law giving effect to the Convention requires also that such notices be displayed clearly in establishments and other places of work with a view to informing workers of their conditions of work.

11. Article 3, together with Article 4(b)(ii). Noting the observations of the PIT-CNT, to the effect that the problems arising from the application of this Convention and the national legislation that would give effect to it are due to inadequate monitoring by the labour inspectorate, the Committee requests the Government to supply information on the inspection system which it has established to ensure effective application of these provisions. It also requests the Government to indicate how the general labour and social security inspection authorities monitor the conditions of work of workers employed under public contracts to which the Convention is applicable.

[The Government is asked to reply in detail to the present comments in 2003.]

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information contained in the report and asks the Government to supply information on the following points.

Article 2(3) of the Convention.  The Committee recalls that under this Article of the Convention, the Government should consult with the organizations of employers and workers when determining the clauses to be included in contracts and any variations thereof, as appropriate to the national conditions.

Article 4(a)(iii).  The Committee recalls that it has for many years been requesting the Government to adopt the measures necessary to provide for the posting of notices in conspicuous places at the establishments and workplaces concerned, with a view to informing the workers of their conditions of work, as provided under this Article of the Convention. The Government hopes that the Government will take the necessary measures to give effect to this provision of the Convention.

[The Government is asked to report in detail in 2002.]

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the Government’s report as well as the documentation accompanying it.

The Committee takes note of the different legal texts attached to the report as well as of the arguments contained in them. However, the Committee regrets to observe that the legal texts sent with the report are, strictly speaking, irrelevant as regards the substance of the Convention.

The Committee follows the legal arguments contained in the report. However, it regrets to note that the allegation does not resolve the problem of the failure of the legislation in force to apply the Convention. The Committee agrees with the Government that "the law should be an organic or systematic whole …". The Committee therefore reiterates that Decree No. 8/990 has a limitative effect on the provisions of Decree No. 114/982, of 24 March 1982. Section 1 of this Decree establishes that "labour clauses should be included in the relevant contracts so that the contracting parties are obliged to comply with the provisions of arbitration awards and collective agreements in force for the branch of activities". In principle, the text of section 1 of this Decree implements the provisions of Article 2 of the Convention, which establishes that the public contracts referred to by the Convention "shall include clauses ensuring to the workers concerned wages (including allowances), hours of work and other conditions of labour which are not less favourable than those established for work of the same character in the trade or industry concerned in the district where the work is carried on". Section 34 of Decree No. 8/990, of 24 January 1990, limits the provisions of above Decree No. 114/982, by only requiring the compliance by the contractor with "legal and regulatory provisions in force in labour matters". It is consequently clear that this provision fails to apply Article 2 of the Convention.

In consideration of the provisions of Article 2, the Committee hopes that the Government will take the necessary measures to ensure that the legislation is a systematic, unified organic whole, thus giving full effect to the Convention.

The Committee also wishes to reiterate that international labour Conventions are not normally automatically executory and that therefore the ratifying governments must adopt the legislative or regulatory measures necessary for their application within the country concerned, independently of their automatic inclusion in the internal legal structure on ratification, under the Constitution of the country. The Committee thus hopes that the Government will take the steps necessary to give full application to the provisions of this Convention.

The Committee is addressing a request concerning other questions related to the Convention directly to the Government.

[The Government is asked to report in detail in 2002.]

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

Further to its previous direct request, the Committee notes the Government's report as well as the extensive documentation attached to it, including a court decision upholding the claim against a public authority by the contractor of the payment to cover the holiday pay for the workers and the increase in their wages.

The Committee however notes that none of the decrees attached to the report directly responds to its previous comments concerning the determination of the labour clauses to be included in public contracts. It recalls that Decree No. 114/982 of 24 March 1982 stipulates in its section 1, in conformity with the provisions of the Convention, that labour clauses should be included in the relevant contracts so that the contracting parties are obliged to comply with the provisions of "arbitration awards and collective agreements in force for the branch of activities". The Committee pointed out that Decree No. 8/990 of 24 January 1990 approving the regulated text of the Articles of General Conditions for the Construction of Public Works was not exactly in accordance with Decree No. 114/982, because its section 34 only requires the compliance by the contractor with "legal and regulatory provisions in force on the labour matters". The Committee therefore considers it desirable that the provisions of section 34 of Decree No. 8/990 should be modified in line with sections 1 and 2 of Decree No. 114/982. It also notes that none of the decrees referred to by the Government determines the clauses to be included in public contracts other than for public works (i.e. of the types referred to in Article 1(1)(c)(ii) and (iii) of the Convention).

The Committee hopes that measures will be taken, in consultation with the organizations of employers and workers concerned (Article 2(3)), to modify the terms of clauses concerning public works and to determine appropriate labour clauses regarding other public contracts.

Article 4(a)(iii). The Committee notes the Government's statement of its intention to suggest the possibility of regulations to the legislative commissions with regard to posting of notices. It hopes that measures will be taken to require the postings of notices so as to inform the workers of their conditions of work. Please report any progress made in this regard.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

Article 2 of the Convention. The Committee takes note of Decree No. 8/990 of 24 January 1990 approving the regulated text of the Articles of General Conditions for the Construction of Public Works, and of Decree No. 9/990 of 24 January 1990 approving the regulated text of the Articles of Conditions of the National Department of Viability for the Construction of Bridges and Highroads, which are supplied by the Government with its report. The Committee notes that the above Decree No. 8/990 sets forth clauses to which all the public works contracts are understood to be subject (section 1 of the Decree) and that its section 34 requires the contractor to comply with legal and regulatory provisions in force on the labour matters. It recalls that Decree No. 114/982 of 24 March 1982 which gives effect to this provision of the Convention stipulates that labour clauses should be included in the relevant contracts so that the contracting parties are obliged to comply with the provisions of arbitration awards and collective agreements in force for the branch of activities. The Committee would, therefore, point out that the provisions of section 34 of Decree No. 8/990 should be modified in accordance with sections 1 and 2 of Decree No. 114/982 so as to be brought into conformity with this provision of the Convention.

The Committee hopes that consultation will be made with the organisations of employers and workers concerned before such modification of the terms of the clause, in pursuance of Article 2, paragraph 3, of the Convention.

The Committee also requests the Government to provide information on measures taken to determine the clauses to be included in public contracts other than for public works (i.e. of the types referred to in Article 1(1)(c)(ii) and (iii) of the Convention).

Article 4(a)(iii). The Committee notes that section 27 of Decree No. 8/990 to which the Government refers in its report stipulates that the contractor should respect the orders of service and other written instructions by the director of the work, but that this provision does not require the posting of notices so as to inform the workers of their conditions of work. It therefore requests the Government to specify the provisions giving effect to this requirement of the Convention.

Articles 4(b)(i) and 5(2). The Committee notes the information supplied by the Government in reply to its previous comments regarding these points.

Direct Request (CEACR) - adopted 1987, published 74th ILC session (1987)

The Committee notes that the Government's report contains no reply to its comments. It hopes that the next report will include full information on the matters raised in its previous direct request, which read as follows:

Article 2(2) and (3) of the Convention. The Committee notes that the Ministry of Transport and Public Works has drafted a clause to be included in public contracts, and that the Ministry of Labour and Social Security has approved it. Please indicate whether any consultation has taken place with the organisations of employers and workers concerned on the terms of the clause. Please also forward a copy of the approved clause and samples of public contracts of the types referred to in Article 1(1)(c) of the Convention.

Articles 4(a)(ii). Please indicate that provisions require the posting of notices informing the workers of their conditions of work.

Article 4(b)(i). Please provide in the next report copies of the Work Control Form introduced by Decree No. 392/980 of 16 June 1980, which was not received with the report.

Article 5(2). The Committee would be grateful if the Government would indicate what measures have been taken to enable the workers concerned to obtain the wages to which they are entitled.