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

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

Articles 1 and 2 of the Convention. Insertion of labour clauses in public contracts. In its previous comments, the Committee recalled that it has been commenting on the Government’s failure to implement the basic requirements of the Convention for over 30 years. In this regard, the Government refers to section 44 of Law No. 13/2009 of 27 May 2009, which provides that the subcontract must contain a guarantee of payment of salary and provide respect of general conditions of work, health and safety in the workplace and other obligations of the employer in regard to the worker. The Committee once again recalls that the mere application of the general labour legislation to public procurement contracts does not produce the same legal effects as the insertion of the labour clauses expressly required under Article 2 of the Convention. Moreover, as the Committee has pointed out on a number of occasions, the legislation to which the Government refers in most cases lays down minimum standards, for instance as regards wage levels, and does not necessarily reflect the actual working conditions of workers. Thus, if the legislation establishes a minimum wage, but workers in a particular profession are actually receiving higher wages, the Convention would require that any workers engaged in the execution of a public contract – in the same area and for work of the same character – be entitled to receive the prevailing wage rather than the minimum wage prescribed in the legislation. In other terms, the application of the general labour legislation is not sufficient to ensure the application of the Convention, inasmuch as the minimum standards fixed by law are often improved upon by means of collective agreement or otherwise. The Government indicates in its report that Law No. 13/2009 of 27 May 2009 regulating labour in Rwanda is currently under review. The Committee takes note of the assurances given by the Government that the revision of the national labour legislation will provide for the insertion of labour clauses into public contracts to ensure that the workers concerned benefit from wages, hours of work and other conditions of labour, and in so doing bring the national legislation into conformity with the provisions of the Convention. The Committee hopes that the Government will take the opportunity presented by the revision of Law No. 13/2009 of 27 May 2009 to bring its national legislation into full conformity with the provisions of the Convention, particularly as regards: the determination of the terms of the labour clauses to be included in public contracts to which the Convention applies, after consultation with the organizations of employers and workers concerned (Article 2(3)); the dissemination of those clauses, by advertising specifications or otherwise, so that tenderers are aware of the terms of the clauses (Article 2(4)); the posting of notices in conspicuous places to ensure that the workers concerned are informed of the conditions of work applicable to them (Article 4(a)(iii)); and the establishment and implementation of a system of inspection and adequate sanctions, by the withholding of contracts or of payments due, for failure to apply the provisions of labour clauses (Article 5). Moreover, noting that under the Public Procurement Act of 2007, the Rwanda Public Procurement Authority (RPPA) is responsible for regulating and monitoring all public procurement operations, the Committee requests the Government to provide detailed information on any measures taken or planned by the RPPA with a view to ensuring fair labour conditions for those engaged in the execution of public contracts.

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments initially made in 2012.

Repetition

Articles 1 and 2 of the Convention. Insertion of labour clauses in public contracts. The Committee has been commenting for over 30 years on the Government’s failure to enact legislation or adopt other measures with a view to implementing the basic requirements of the Convention. In its last report, the Government refers to Ministerial Order No. 5 of 13 July 2010 concerning written contracts of employment, which, however, bears little relevance to public contracts within the meaning of Article 1(1) of the Convention or to the labour clauses that public contracts should include as required under Article 2(1) of the Convention. The Committee once again recalls that the fact that the general labour legislation applies to workers engaged in the execution of public contracts, as provided for in section 96 of the Public Procurement Act of 2007, does not in itself give effect to Article 2 of the Convention which requires the insertion, in all public contracts to which the Convention applies, of labour clauses ensuring that the workers concerned benefit from wages, hours of work and other conditions of labour 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.

As the Committee has pointed out on a number of occasions, the legislation to which the Government refers in most cases lays down minimum standards, for instance as regards wage levels, and does not necessarily reflect the actual working conditions of workers. Thus, if the legislation lays down a minimum wage but workers in a particular profession are actually receiving higher wages, the Convention would require that any workers engaged in the execution of a public contract – in the same area and for work of the same character – be entitled to receive the prevailing wage rather than the minimum wage prescribed in the legislation.

In other terms, the application of the general labour legislation is not sufficient to ensure the application of the Convention, in as much as the minimum standards fixed by law are often improved upon by means of collective agreement or otherwise. The Committee therefore asks the Government once more to take steps without further delay in order to bring the national legislation into conformity with the provisions of the Convention, especially as regards: the determination of the terms of the labour clauses to be included in contracts after consultation with organizations of employers and workers concerned (Article 2(3)); the dissemination of those clauses, by advertising specifications or otherwise, so that tenderers are aware of the terms of the clauses (Article 2(4)); the posting of notices in conspicuous places to ensure that workers are informed of the conditions of work applicable to them (Article 4(a)(iii)); and the system of adequate sanctions, by the withholding of contracts or of payments due, for failure to apply the provisions of labour clauses (Article 5). Moreover, noting that under the Public Procurement Act of 2007, the Rwanda Public Procurement Authority (RPPA) is responsible for regulating and monitoring all public procurement operations, the Committee requests the Government to provide detailed information on any measures taken or planned by the RPPA with a view to ensuring fair labour conditions for those engaged in the execution of public contracts.

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

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

Articles 1 and 2 of the Convention. Insertion of labour clauses in public contracts. The Committee has been commenting for over 30 years on the Government’s failure to enact legislation or adopt other measures with a view to implementing the basic requirements of the Convention. In its last report, the Government refers to Ministerial Order No. 5 of 13 July 2010 concerning written contracts of employment, which, however, bears little relevance to public contracts within the meaning of Article 1(1) of the Convention or to the labour clauses that public contracts should include as required under Article 2(1) of the Convention. The Committee once again recalls that the fact that the general labour legislation applies to workers engaged in the execution of public contracts, as provided for in section 96 of the Public Procurement Act of 2007, does not in itself give effect to Article 2 of the Convention which requires the insertion, in all public contracts to which the Convention applies, of labour clauses ensuring that the workers concerned benefit from wages, hours of work and other conditions of labour 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.

As the Committee has pointed out on a number of occasions, the legislation to which the Government refers in most cases lays down minimum standards, for instance as regards wage levels, and does not necessarily reflect the actual working conditions of workers. Thus, if the legislation lays down a minimum wage but workers in a particular profession are actually receiving higher wages, the Convention would require that any workers engaged in the execution of a public contract – in the same area and for work of the same character – be entitled to receive the prevailing wage rather than the minimum wage prescribed in the legislation.

In other terms, the application of the general labour legislation is not sufficient to ensure the application of the Convention, in as much as the minimum standards fixed by law are often improved upon by means of collective agreement or otherwise. The Committee therefore asks the Government once more to take steps without further delay in order to bring the national legislation into conformity with the provisions of the Convention, especially as regards: the determination of the terms of the labour clauses to be included in contracts after consultation with organizations of employers and workers concerned (Article 2(3)); the dissemination of those clauses, by advertising specifications or otherwise, so that tenderers are aware of the terms of the clauses (Article 2(4)); the posting of notices in conspicuous places to ensure that workers are informed of the conditions of work applicable to them (Article 4(a)(iii)); and the system of adequate sanctions, by the withholding of contracts or of payments due, for failure to apply the provisions of labour clauses (Article 5). Moreover, noting that under the Public Procurement Act of 2007, the Rwanda Public Procurement Authority (RPPA) is responsible for regulating and monitoring all public procurement operations, the Committee requests the Government to provide detailed information on any measures taken or planned by the RPPA with a view to ensuring fair labour conditions for those engaged in the execution of public contracts.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes with regret 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. Insertion of labour clauses in public contracts. The Committee notes the adoption of Act No. 13/2009 of 27 May 2009 issuing labour regulations. It also notes that, according to the Government’s last report, sections 42–46 of this Act establish the labour clauses required by the Convention. However, these provisions regulate subcontracting, in which the head of an industrial or commercial enterprise assigns the execution of work or services to a contractor who in turn recruits the necessary workforce, and do not regulate contracts concluded with a public authority. The Committee notes with regret that, despite the comments which it has been making for many years, the recent General Survey and the Practical Guide – copies of which were sent to the Government – the Government still does not appear to fully understand the actual concept of public contracts which is the subject of the Convention. The Committee is therefore bound to repeat that a public contract pursuant to Article 1(1) of the Convention is a contract: (i) concluded by a public authority; (ii) involving the expenditure of funds by a public authority and the employment of workers by the other party to the contract; and (iii) relating to the execution of public works, the manufacture of materials or the provision of services. It is therefore clear that subcontracting in the form of the specific labour contract governed by the provisions of Chapter II, Title II, of the new Labour Code bears little relevance to public contracts and even less to the labour clauses which such contracts ought to contain.

Moreover, with regard to the 2007 Public Procurement Act, the Committee recalls that the mere fact that the general legislation applies to workers responsible for the execution of public contracts, as laid down by section 96 of this Act, is not sufficient to ensure the observance of the provisions of the Convention. The Convention seeks to ensure that public contracts are executed under conditions of labour which are not less favourable than those established by collective agreement, arbitration award or national laws or regulations for work of the same character in the trade or industry concerned in the region where the work is carried out. This in practice means the most advantageous labour conditions for the workers concerned, including pay rates, overtime pay, and other working conditions, such as limits on hours of work and paid leave entitlement, established in the industrial sector and geographical region in question. The concrete terms of this obligation incumbent on the selected bidder and any subcontractors are to be reflected in a standard contractual clause which has to be effectively enforced, notably through a system of specific penalties. Moreover, the Committee recalls that the Convention does not only apply to construction contracts but also to contracts for supplies and services. In the light of the above, the Committee urges the Government to take all necessary steps without delay to bring national law and practice into conformity with the Convention, and requests it to keep the Office informed of any developments on these matters.

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

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

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

Articles 1 and 2 of the Convention. Insertion of labour clauses in public contracts. The Committee notes the adoption of Act No. 13/2009 of 27 May 2009 issuing labour regulations. It also notes that, according to the Government’s report, sections 42–46 of this Act establish the labour clauses required by the Convention. However, these provisions regulate subcontracting, in which the head of an industrial or commercial enterprise assigns the execution of work or services to a contractor who in turn recruits the necessary workforce, and do not regulate contracts concluded with a public authority. The Committee notes with regret that, despite the comments which it has been making for many years, the recent General Survey and the Practical Guide – copies of which were sent to the Government – the Government still does not appear to fully understand the actual concept of public contracts which is the subject of the Convention. The Committee is therefore bound to repeat that a public contract pursuant to Article 1(1) of the Convention is a contract: (i) concluded by a public authority; (ii) involving the expenditure of funds by a public authority and the employment of workers by the other party to the contract; and (iii) relating to the execution of public works, the manufacture of materials or the provision of services. It is therefore clear that subcontracting in the form of the specific labour contract governed by the provisions of Chapter II, Title II, of the new Labour Code bears little relevance to public contracts and even less to the labour clauses which such contracts ought to contain.

Moreover, with regard to the 2007 Public Procurement Act, the Committee recalls that the mere fact that the general legislation applies to workers responsible for the execution of public contracts, as laid down by section 96 of this Act, is not sufficient to ensure the observance of the provisions of the Convention. The Convention seeks to ensure that public contracts are executed under conditions of labour which are not less favourable than those established by collective agreement, arbitration award or national laws or regulations for work of the same character in the trade or industry concerned in the region where the work is carried out. This in practice means the most advantageous labour conditions for the workers concerned, including pay rates, overtime pay, and other working conditions, such as limits on hours of work and paid leave entitlement, established in the industrial sector and geographical region in question. The concrete terms of this obligation incumbent on the selected bidder and any subcontractors are to be reflected in a standard contractual clause which has to be effectively enforced, notably through a system of specific penalties. Moreover, the Committee recalls that the Convention does not only apply to construction contracts but also to contracts for supplies and services. In the light of the above, the Committee urges the Government to take all necessary steps without delay to bring national law and practice into conformity with the Convention, and requests it to keep the Office informed of any developments on these matters.

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

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Articles 1 and 2 of the Convention. Inclusion of labour clauses in public contracts. The Committee notes the adoption of Act No. 13/2009 of 27 May 2009 issuing labour regulations. It also notes that, according to the Government’s report, sections 42–46 of this Act establish the labour clauses required by the Convention. However, these provisions regulate subcontracting, in which the head of an industrial or commercial enterprise assigns the execution of work or services to a contractor who in turn recruits the necessary workforce, and do not regulate contracts concluded with a public authority. The Committee notes with regret that, despite the comments which it has been making for many years, the recent General Survey and the Practical Guide – copies of which were sent to the Government – the Government still does not appear to fully understand the actual concept of public contracts which is the subject of the Convention. The Committee is therefore bound to repeat that a public contract pursuant to Article 1(1) of the Convention is a contract: (i) concluded by a public authority; (ii) involving the expenditure of funds by a public authority and the employment of workers by the other party to the contract; and (iii) relating to the execution of public works, the manufacture of materials or the provision of services. It is therefore clear that subcontracting in the form of the specific labour contract governed by the provisions of Chapter II, Title II, of the new Labour Code bears little relevance to public contracts and even less to the labour clauses which such contracts ought to contain.

Moreover, with regard to the 2007 Public Procurement Act, the Committee recalls that the mere fact that the general legislation applies to workers responsible for the execution of public contracts, as laid down by section 96 of this Act, is not sufficient to ensure the observance of the provisions of the Convention. The Convention seeks to ensure that public contracts are executed under conditions of labour which are not less favourable than those established by collective agreement, arbitration award or national laws or regulations for work of the same character in the trade or industry concerned in the region where the work is carried out. This in practice means the most advantageous labour conditions for the workers concerned, including pay rates, overtime pay, and other working conditions, such as work hour limits and holiday entitlement, established in the industrial sector and geographical region in question. The concrete terms of this obligation incumbent on the selected bidder and any subcontractors are to be reflected in a standard contractual clause which has to be effectively enforced, notably through a system of specific penalties. Moreover, the Committee recalls that the Convention does not only apply to construction contracts but also to contracts for supplies and services. In the light of the above, the Committee urges the Government to take all necessary steps without delay to bring national law and practice into conformity with the Convention and requests it to keep the Office informed of any developments on these matters. The Committee recalls that the Government may avail itself of technical assistance from the Office, if it so desires, in order to draw up the legislative or other provisions giving effect to the requirements of the Convention.

[The Government is asked to reply in detail to the present comments in 2010.]

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

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 adoption of the Public Procurement Act No. 12/2007 of 27 March 2007. With regard to the conditions of work applicable to staff employed within the framework of the execution of public contracts, it notes that under section 96 of this Act, the contractor is required to apply the laws and regulations in force. The Committee also notes that, in the context of services contracts, section 170 of the Act provides that staff placed at the disposal of the contracting authority shall keep to the working hours which apply to the service to which they are attached and benefit from holidays in accordance with the legislation in force, unless the terms of reference provide otherwise. The Committee also notes that Act No. 51/2001 of 30 December 2001 issuing the Labour Code does not contain any provisions on the inclusion of labour clauses in public contracts.

The Committee notes with regret that, despite the recent adoption of new public procurement legislation, the Government is still not able to report on any real progress made in meeting the fundamental requirements of the Convention. In this respect, the Committee recalls once again that the fact that general legislation, including labour law, also applies to workers responsible for the execution of public contracts, as stipulated by section 96 of the Public Procurement Act of 2007, is not enough to ensure the fulfilment of the obligation placed on the Government by Article 2 of the Convention to require the inclusion, in all the public contracts to which the Convention applies, of labour clauses ensuring that the workers concerned benefit from wages, hours of work and other conditions of labour which are not less favourable than those established for work of the same character in the same area by collective agreement, by arbitration award or by national laws or regulations.

Recalling that it has been commenting for 30 years on the failure to apply the Convention, the Committee trusts that the Government will take, without further delay, all the measures necessary to ensure the inclusion of the labour clauses provided for by the Convention in all public contracts to which the Convention applies. The Committee also requests the Government to indicate whether a ministerial order determining the general conditions of contracts has been adopted pursuant to section 5, paragraph 2, of the Public Procurement Act of 2007 and, if so, to provide a copy.

The Committee takes this opportunity to draw the Government’s attention to its 2008 General Survey on labour clauses in public contracts, which reviews the legislation and practices of member States in this respect and makes an assessment of the impact and current relevance of Convention No. 94.

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

For all useful purposes, the Committee attaches herewith a copy of a Practical Guide, prepared by the Office principally on the basis of the abovementioned General Survey, to help better understand the requirements of the Convention and ultimately improve its application in law.

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

The Committee notes the adoption of the Public Procurement Act No. 12/2007 of 27 March 2007. With regard to the conditions of work applicable to staff employed within the framework of the execution of public contracts, it notes that under section 96 of this Act, the contractor is required to apply the laws and regulations in force. The Committee also notes that, in the context of services contracts, section 170 of the Act provides that staff placed at the disposal of the contracting authority shall keep to the working hours which apply to the service to which they are attached and benefit from holidays in accordance with the legislation in force, unless the terms of reference provide otherwise. The Committee also notes that Act No. 51/2001 of 30 December 2001 issuing the Labour Code does not contain any provisions on the inclusion of labour clauses in public contracts.

The Committee notes with regret that, despite the recent adoption of new public procurement legislation, the Government is still not able to report on any real progress made in meeting the fundamental requirements of the Convention. In this respect, the Committee recalls once again that the fact that general legislation, including labour law, also applies to workers responsible for the execution of public contracts, as stipulated by section 96 of the Public Procurement Act of 2007, is not enough to ensure the fulfilment of the obligation placed on the Government by Article 2 of the Convention to require the inclusion, in all the public contracts to which the Convention applies, of labour clauses ensuring that the workers concerned benefit from wages, hours of work and other conditions of labour which are not less favourable than those established for work of the same character in the same area by collective agreement, by arbitration award or by national laws or regulations.

Recalling that it has been commenting for 30 years on the failure to apply the Convention, the Committee trusts that the Government will take, without further delay, all the measures necessary to ensure the inclusion of the labour clauses provided for by the Convention in all public contracts to which the Convention applies. The Committee also requests the Government to indicate whether a ministerial order determining the general conditions of contracts has been adopted pursuant to section 5, paragraph 2, of the Public Procurement Act of 2007 and, if so, to provide a copy.

The Committee takes this opportunity to draw the Government’s attention to the General Survey that it has carried out this year on labour clauses in public contracts, which reviews the legislation and practices of member States in this respect and makes an assessment on 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 2000, published 89th ILC session (2001)

The Committee notes the statement by the Government in its report that a Bill on Public Markets is at present before the Council of Ministers for examination and adoption. In this connection, the Committee requests the Government to explain the relation between this Bill on Public Markets and public contracts, which is the subject matter of the Convention. It also recalls that this Convention obliges the Government to take steps to ensure that the public contracts included under Article 1(1) of the Convention contain the appropriate labour clauses, in conformity with Article 2, so as to guarantee that the conditions of employment (including wages) of workers employed under public contracts 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.

The Committee hopes that this new legislation will be adopted in the very near future and will contain the provisions to apply the Convention. The Committee asks the Government to supply a copy of this Act as soon as it is adopted.

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

The Committee notes that the Government's report has not been received. It must therefore repeat its previous observation on the following points:

In its previous comments, the Committee noted that the proposed legislation regulating public contracts had not been adopted. As regards sections 2 and 3 of the Labour Code (Act of 28 February 1967) defining, respectively, "the worker" and "the employer", the Committee pointed out in its earlier comments that the fact that general labour legislation applies without distinction to all workers does not release a government from the obligation under this Convention to ensure the inclusion in the public contracts specified in Article 1, paragraph 1, of the Convention of appropriate labour clauses so as to guarantee that the conditions of work (including wages) of workers employed by public contractors are not less favourable than those established for work of the same character in that trade or industry in the same region, in accordance with Article 2.

The Committee hopes that the Government will take the necessary action through legislation or otherwise in the very near future to ensure the application of the Convention on this point.

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

The Committee notes the Government's statement in its report that the situation of officials under contract in the state administrations is regulated by the Labour Code and that in accordance with the model employment contract used such a contract must comply with the laws and regulations in force.

The Committee stresses once again that the fact that general labour legislation applies without distinction to all workers does not release a government from the obligation incumbent on it under this Convention to ensure the inclusion in the public contracts specified in Article 1, paragraph 1, of the Convention of appropriate labour clauses so as to guarantee that the conditions of work (including wages) of workers employed by public contractors are not less favourable than those established for work of the same character in that trade or industry in the same region, in accordance with Article 2.

The Committee hopes that the Government will be able to indicate in the very near future the measures which have been taken, through legislation or otherwise, to ensure the application of the Convention on this point.

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

Further to its previous comments, the Committee notes with regret that no progress has been made towards the adoption of proposed legislation regulating public contracts, the Bill of which the Government's report first mentioned in 1983.

It also notes that the Government refers in its latest reports to sections 2 and 3 of the Labour Code (Act of 28 February 1967) defining, respectively, "the worker" and "the employer". As the Committee has already pointed out in its earlier comments, the fact that general labour legislation applies without distinction to all workers does not release a government from the obligation under this Convention to ensure the inclusion in the public contracts specified in Article 1, paragraph 1, of the Convention of appropriate labour clauses so as to guarantee that the conditions of work (including wages) of workers employed under public contracts are not less favourable than those established for work of the same character in that trade or industry in the same region, in accordance with Article 2.

The Committee therefore requests the Government to take necessary measures to ensure the application of the Convention, through legislation or otherwise, and to report on any progress made.

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

The Committee notes that the Bill for a law to revise contracts awarded by the public authorities has not yet been adopted. The Committee recalls that it has been requesting the adoption of these measures since 1964 and that a Bill was submitted in 1983. The Committee once again hopes that the Government will take the necessary measures for the enactment into law of this Bill in order to give effect to this Convention, on which it has been commenting for many years.

[The Government is asked to report in detail for the period ending 30 June 1991.]

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

The Committee takes note of the information supplied by the Government to the effect that the adoption of the Bill governing public contracts by the competent bodies is still awaited. The Committee hopes that the above Bill will be adopted in the near future and that a copy of the new provisions will be transmitted.