Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Morocco (Ratification: 1956)

Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the observations made by the National Union of Moroccan Workers (UNTM), received on 29 August 2019, and the Government’s reply in this regard, received in 2019.

Article 2 of the Convention. Inclusion of labour clauses in public contracts. In its previous comments, the Committee requested the Government to respond to the observations made by the Moroccan Labour Union (UMT), as well as those of the Democratic Confederation of Labour (CDT), received on 17 August 2017. The Committee further requested the Government to take all necessary measures without further delay to bring its national legislation into conformity with the Convention. In its report, the Government reiterates its previous comments concerning the legislation in force, namely, the two decrees No. 2.12.349 of 20 March 2013 and No. 2.14.394 of 13 May 2016 on governing public contracts and the provisions of article 519 of the Labour Code. The Committee notes, however, that these texts do not contain any reference concerning the insertion of a labour clause in public procurement contracts. It further notes that, while recognizing the efforts made by the Government to make public procurement more transparent, the UNTM observes that the law on public procurement does not provide adequate guarantees for the protection of employees, whether during or after the execution of the transaction, nor do they include provisions relating to the insertion of a social clause in public procurement contracts. In addition, the UNTM maintains that there is an incompatibility between the provisions of the Labour Code and the law on public procurement. The Committee notes the Government’s two responses to the observations of the trade union centres concerning the report on the implementation of Convention No. 94, received in 2017 (UMT and CDT) and 2019 (UMT), respectively. The Committee notes in particular that the Government recognizes that there is a difference of perspective with regard to the interpretation of national regulatory provisions and their conformity with the Convention. In this regard, the Government requests ILO technical assistance in order to bring its law and practice into line with the requirements of the Convention. In this context, the Committee wishes to recall paragraph 176 of its 2008 General Survey on labour clauses in public contracts which indicates that all the provisions of the Convention are articulated around and directly linked to the “core requirement” of Article 2, paragraph 1, the insertion of labour clauses ensuring favourable wages and other working conditions to the workers engaged in the execution of public contracts. In addition, in paragraph 117 of the same General Survey, the Committee observes that a labour clause must constitute an integral part of the actual contract signed by the selected contractor and that the insertion of labour clauses in tender documents, such as the general conditions or specifications, even though required under the terms of Article 2, paragraph 4, of the Convention, does not suffice to give effect to the “basic requirement” of the Convention set out in Article 2, paragraph 1. The Committee hopes that the Office will be able to provide the requested technical assistance in the near future. The Committee urges the Government to take all appropriate measures without further delay (legislative, administrative or others) for the inclusion in all public contracts to which the Convention is applicable of labour clauses consistent with the requirements of Article 2 of the Convention and for the enforcement of such clauses in the manner prescribed by Articles 4 and 5 of the Convention. The Committee further requests the Government to provide updated information on progress achieved in this respect.

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

The Committee notes the observations made by the Moroccan Labour Union (UMT) and those of the Democratic Confederation of Labour (CDT), received on 17 August 2017. The Government is requested to provide its comments in this regard.

Article 2 of the Convention. Inclusion of labour clauses in public contracts. In its previous comments, the Committee requested the Government to take the necessary measures without further delay to bring the national legislation into compliance with the Convention. The Government indicates in its report that in 2013 it adopted the legal and technical measures governing public procurement in light of the developments in the world of business and its commitments within the context of international agreements. In this context, the Government adopted Decree No. 2-12-349 of 20 March 2013 on public procurement. The Government indicates that the Decree calls for major innovations in the processes of the management of public contracts, such as unity in their regulation, the simplification and clarification of procedures, the improvement of the business climate and the reinforcement of competition. The Government adds that, in the context of the establishment of the technical file by competitors, section 25(B) of the Decree requires competitors to indicate the human and technical resources which will enable them to provide the services covered by the public procurement contract. It also refers to section 23 of Decree No. 2-14-394, of 13 May 2016, approving the list of general administrative clauses applicable to contracts for works (CCAG-T), published in the Official Bulletin on 2 June 2016. This Decree requires the entrepreneur to comply with the requirements of laws and regulations that are in force governing the recruitment and payment of workers, including the payment of a wage that is higher or equal to the statutory minimum wage established by the texts issued under the Labour Code. The Committee notes that, in accordance with section 25(A)(1)(b) of Decree No. 2-12-349 respecting public procurement, and section 519 of the Labour Code, securities are established for each participant in tenders in order to compel them to comply with their commitments. The Committee notes the observations of the CDT indicating that the principles and provisions of the Convention are not set out in national law, and that the Decree of 20 March 2013 does not include the required provisions. In this context, emphasis is not placed on the rights of workers covered by public contracts, as Decree No. 2-12-349 of 20 March 2013 does not contain the provisions that are to be included in national laws and regulations on public procurement. The UMT observes that the legislation respecting public procurement does not contain sufficient guarantees for workers during the implementation of the transaction and after its conclusion, and that public contracts do not contain labour clauses. The UMT also refers to the absence of mechanisms for the automatic resolution of disputes arising out of the execution of public contracts. Although it recognizes the efforts made by the Government to improve the transparency of public contracts, the UMT calls on the Government to bring them into conformity with the provisions of the Convention and those of the Labour Code, to include all the unions in all workshops covering the reform of the regulations on public procurement and to include clauses on labour matters in all public contracts. The Committee once again notes that the provisions set out in the two texts referred to above are not adequate to ensure the application of the Convention, as they merely remind bidders that they are required to comply with the labour legislation. They are in practice pre-qualification criteria that contractors and suppliers must meet in order to comply with the requirements in force in Morocco. In its previous comments, the Committee referred to paragraphs 117 and 118 of its 2008 General Survey on labour clauses in public contacts, in which it emphasized that the Convention does not relate to some general eligibility criteria or pre-qualification requirements for individuals or enterprises bidding for public contracts. Furthermore, certification offers proof of the past performance and compliance with the legislation of bidders but, in contrast with labour clauses, it carries no binding commitment with regard to the work to be performed. The Committee reiterates that the requirement imposed by the Convention is to inform tenderers in advance, through model labour clauses in the tendering documents that, if they succeed in obtaining the contract, they will be required to apply wages and other working conditions that are at least as favourable as the highest standards established in the same district by collective agreement, arbitration award or national laws or regulations. Accordingly, noting that the regulation on public contracts still falls short of the requirements of the Convention, the Committee once again requests the Government to take the necessary steps without delay to bring the national legislation into conformity with the Convention. It reminds the Government that it may have recourse to ILO technical assistance, if it so wishes.

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

Article 2 of the Convention. Inclusion of labour clauses in public contracts. For several years the Committee has been drawing the Government’s attention to the fact that Moroccan legislation lays down no requirement to include labour clauses – as prescribed by the Convention – in public contracts. In its latest report the Government refers to section 12 of the general administrative clauses for public contracts (CCAG-T), approved by Decree No. 2-99-1087 of 4 May 2000, which stipulates that in the conclusion of public contracts, performance bonds are established in an amount determined in the specifications to be produced by each bidder. The Government states that the purpose of requiring such a bond is to ensure that bidders fulfil their commitments, otherwise the contracting authority shall make a deduction from the bond to compensate workers adversely affected, in accordance with section 20(5) of the CCAG-T. The Government again refers to section 20 of the CCAG-T, which sets out the formalities and prescriptions applying to the hiring of workers and under which the contractor must show that the wages paid to the workers are not lower than the statutory minimum wage. The Government also refers to section 25 of Decree No. 2-98-482 of 30 December 1998 laying down the conditions and forms of government procurement contracts, and to provisions requiring bidders to be members of the National Social Security Fund, to which they must submit regular statements of wages.

The Committee notes, in this connection, that the abovementioned provisions of two decrees mentioned above are not sufficient to ensure application of the Convention, since they merely remind bidders that they are required to comply with the labour legislation. They are in fact pre-qualification criteria that contractors and suppliers must meet in order to comply with the prescriptions in force in Morocco. The Committee refers in this context to paragraphs 117 and 118 of its General Survey of 2008 on labour clauses in public contracts, in which it pointed out that the Convention does not relate to some general eligibility criteria or pre-qualification requirements of individuals or enterprises bidding for public contracts. Furthermore, certification offers some proof about tenderers’ past performance and law-abiding conduct but carries no binding commitment with regard to prospective operations as labour clauses do.

What the Convention does require is that tenderers be informed in advance, through standard labour clauses in the tendering documents that, if they succeed in obtaining the contract, they will have to apply wages and other working conditions that are at least as favourable as the highest standards established for the same district by collective agreement, arbitration award or national laws or regulations. Noting therefore that the legislation on public contracts still falls short of the requirements of the Convention, the Committee again asks the Government to take the necessary steps without further delay to bring the national legislation into line with the Convention.

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

Article 2 of the Convention. Inclusion of labour clauses in public contracts. With reference to its previous comment, the Committee notes that the Government essentially repeats the same explanations provided in its previous report and places emphasis on section 20(4) of Decree No. 2-99-1087 of 4 May 2000 approving the general administrative conditions applicable to contracts for work executed on behalf of the State, which provides that the wage paid to manual workers shall not be lower, for each category of worker, than the statutory minimum wage. The Government also refers to sections 25 and 26 of Decree No. 2-98-482 of 30 December 1998 which requires: (i) the registration of the bidder with the National Social Security Fund and the regular provision of wage declarations to the Fund; and (ii) the presentation of documentation issued by the Fund certifying that the bidder has complied with its requirements in relation to the Fund for his participation in the call for tenders.

In this respect, the Committee wishes to refer to paragraphs 40 and 44 of its General Survey of 2008 on labour clauses in public contracts, in which it emphasizes that the purpose of Article 2 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 by collective agreement or otherwise, in the locality where the work is done. Labour costs are thus removed from competition between bidders and local standards are applied where they are higher than those of general application. 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 sanctions.

The Committee also draws the Government’s attention to paragraph 118 of the same General Survey, in which it observes that obtaining labour clearance certificates before being allowed to tender for public contracts is not sufficient for compliance with the requirements of the Convention. In this respect, the Committee has consistently taken the view that the insertion of labour clauses in public contracts under the Convention goes beyond the aims of simple certification, as its purpose is to eliminate the negative effects of competitive tendering on the workers’ labour conditions. Certification offers some proof about tenderers’ past performance and law-abiding conduct, but carries no binding commitment with regard to prospective operations as labour clauses do. The Committee therefore urges the Government to take appropriate measures to ensure that full effect is given to the Convention by requiring the inclusion of the labour clauses envisaged by the Convention in all public contracts to which it is applicable.

Finally, with a view to assisting the Government in its efforts to give effect to the provisions of the Convention, the Committee attaches a copy of the Practical Guide on the Convention drawn up by the Office and based principally on the conclusions of the abovementioned General Survey. It also reminds the Government that it may, if it so wishes, seek the Office’s technical assistance.

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

The Committee notes that Decree No. 2-98-482 of 30 December 1998 laying down conditions and procedures for the awarding of state contracts does not contain any provisions relating to labour clauses. It notes with regret that Decree No. 2-99-1087 of 4 May 2000 approving the general administrative conditions applicable to contracts for work executed for the State’s account does not ensure the application of the Convention either, inasmuch as section 22(1) restricts itself to stating that the full responsibility for applying all labour legislation and regulations to the contractors’ staff belongs to the contractor himself. Moreover, the Committee notes that section 20(4) of the same Decree merely states that the wage paid to workers must not be less than the legal minimum wage for each category of workers. With regard to other types of public contracts, the Committee notes that Decree No. 2-01-2332 of 4 June 2002 approving the general administrative conditions applicable to contracts providing research and management services for the State’s account does not ensure the application of the Convention either. It notes that section 19 of the Decree limits itself to stating that the contractor is subject to the obligations resulting from the laws and regulations in force concerning the protection of the workforce and conditions of work.

The Committee is bound to reiterate that, pursuant to Article 2 of the Convention, the public contracts to which the Convention applies must include clauses ensuring to the workers concerned 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. In addition, the terms of the clauses to be included in contracts must be determined in consultation with the employers’ and workers’ organizations concerned. Hence the application of the Convention is not ensured by a provision that merely requires social legislation to be applied to workers engaged in the performance of public contracts. The inclusion of labour clauses in these contracts aims to provide protection for workers in cases where the legislation only establishes minimum conditions of work which are likely to be improved by general or sectoral collective agreements. The fundamental objective of the Convention is therefore to combat the risk of “social dumping” affecting highly competitive public contracts.

The Committee therefore asks the Government to adopt suitable measures as quickly as possible to ensure the full application of the Convention by prescribing the inclusion of labour clauses provided for by the Convention in all public contracts to which it is applicable.

Finally, the Committee draws the Government’s attention to the General Survey which it has undertaken this year on labour clauses in public contracts, which presents the law and practice of the member States in this area and also an evaluation of the impact and current relevance of Convention No. 94.

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

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

With reference to its previous comments, the Committee notes that by virtue of Circular No. 75/IGSA of 22 January 1982, public administrations are obliged to make reference, in their contracts for supplies or services, to the clauses governing labour contracts. In this connection, the Committee recalls that the above Circular was adopted as an interim measure to extend the General Specifications approved by the Royal Decree of 18 June 1966. It also recalls that the Government indicated, in one of its previous reports, that draft legislation to make it compulsory to include labour clauses in all public contracts was under consideration. The Committee hopes that the Government will be able to report in the near future that the draft text under consideration has been adopted in order to give effect to this Convention in a definitive manner.

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

With reference to its previous comments, the Committee takes note of the Government's statement in its report to the effect that a new set of clauses is under examination. The Committee hopes that the draft Decree, the preparation of which was announced in a previous report, which should give full effect to the Convention and the above set of clauses, will be adopted in the near future.