Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Belgium (Ratification: 1952)

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

Articles 1 and 2 of the Convention. Labour clauses in public contracts. In its previous comment, the Committee noted that section 42 of the Act of 15 June 2006 on public procurement and certain contracts for works, supplies and services imposes the same obligations on all public works contractors as those laid down in section 12 of the Act of 1993, which gave full effect to Article 2 of the Convention regarding public works contracts. The Committee therefore requested the Government to indicate whether similar provisions are applicable to public contracts for supplies and services, which are also covered by Article 1(1)(c) of the Convention. The Government reports that there are no similar provisions applicable to public contracts for supplies. The Committee notes that the Circular of 16 May 2014 provided by the Government, “Incorporation of sustainable development, including social clauses and measures to benefit small and medium-sized enterprises, in the framework of public procurement contracts published by federal contracting authorities”, provides in section 4(1)(b)(2) that the federal contracting authorities shall examine the possibility of integrating social considerations when awarding contracts, including taking into account acceptable wages in conformity with Convention No. 94, particularly in the application of the “price” selection criterion and the monitoring of abnormal prices. Taking into account the non-binding nature of this provision, the Committee requests the Government to provide information on the measures taken or envisaged to give full effect to Article 1(1)(c)(ii) and (iii) of the Convention regarding public contracts for supplies and services, and to keep the Office informed of any developments in this respect. The Committee also requests the Government to provide information on the application in practice of section 25 of the Act of 2006.

Article 4. Obligation to inform the workers. The Government indicates that workers’ information is covered by section 78 of the Royal Order of 14 January 2013. However, it clarifies that section 78 does not apply to public contracts for supplies and services, and specifies that the Act of 8 April 1965 establishing labour regulations, particularly section 15 on publicizing labour regulations, tends to apply to public contracts for supplies and services. The Committee requests the Government to indicate the manner in which it ensures that information is provided to workers employed in the execution of other categories of public contracts to which the Convention applies, and to provide a copy of the notice used to inform workers of their applicable wage and other conditions of work, in accordance with Article 4(a)(iii) of the Convention.

Article 5(1). Penalties. The Committee noted in its previous comments that, under section 48(4) of the General Terms and Conditions, the contracting authority automatically withholds from the sums due to the contractor the amount of wages and/or social security contributions which are unpaid in respect of the workers employed at the work site and makes direct payment of the outstanding amounts. The Committee requested the Government to indicate whether identical measures to those established under section 48(4) are also applicable in the context of public contracts for supplies and services. The Government indicates that section 88 of the Royal Order of 14 January 2013, which reproduces the content of section 48(4) of the General Terms and Conditions, is only applicable to labour contracts. The Committee notes that the Act of 12 April 1965 on the protection of workers’ remuneration also includes provisions on joint liability for wage arrears (section 35(1) and (6)). Nevertheless, these provisions are only applicable to labour and service contracts, and not to contracts for supplies. Moreover, the scope of application of the Act is limited to clearly defined sectors which are considered susceptible to fraud. As section 17(2) of the Royal Order of 8 January 1996 allows the exclusion of a contractor from participation in a public tender, especially if the contractor has not fulfilled the respective obligations concerning social security contributions, the Committee requested the Government to provide further information on the penalties that apply where the contractor is not in compliance with the labour clauses applicable in respect of wages and other conditions of work for the workers concerned. The Committee notes the Government’s indication that section 17(2) allows the exclusion of a contractor from participation in a public tender, for example where the contractor has committed serious professional misconduct. The Government adds that, although it is not explicitly indicated in the Royal Order of 15 July 2011, which reiterates the content of section 17 referred to above, non-compliance with the obligation to pay workers’ wages must be considered as serious misconduct which may lead to the exclusion of a tenderer or candidate. The Committee requests the Government to provide information on the measures taken or envisaged to give full effect to Article 5(1) of the Convention and to keep the Office informed of any development in this respect. It also requests the Government to provide copies of decisions to exclude an entrepreneur from participating in a public contract due to non-compliance with the obligation to pay workers’ wages.

Application of the Convention in practice. The Government indicates that, during the period 2011–16, the regional directorates of the Occupational Welfare Department did not organize campaigns intended for public bodies. Regarding the results of inspections carried out, the Government indicates that the registration system does not allow for inspections carried out on public bodies to be disaggregated from all the inspections undertaken. The Committee requests the Government to provide general information on the manner in which the Convention is applied, including the number of violations reported and the penalties imposed.

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

Articles 1 and 2 of the Convention. Labour clauses in public contracts. The Committee notes the Government’s indication that the Act of 15 June 2006 concerning public procurement and certain contracts for work, supplies and services (Act of 2006), which repeals the Act of 24 December 1993 concerning public procurement (Act of 1993) and which is at the basis of a comprehensive reform of public procurement regulations, should come into force in 2012. It notes that section 42 of the Act of 2006 imposes the same obligations on any public works contractor as those laid down by section 12 of the Act of 1993, which gave full effect to Article 2 of the Convention as regards public procurement. The Committee requests the Government to indicate whether similar provisions are applicable to public contracts for supplies and services, which are also covered by Article 1(1)(c) of the Convention. The Committee further notes that section 25 of the Act of 2006, like section 16 of the Act of 1993, includes labour-related considerations among the criteria for identifying the most economically advantageous regular bids. It also notes that section 40 of the Act of 2006 allows the contracting authority to impose conditions relating to performance of the contract which take account of objectives such as the obligation to observe, in substance, the provisions of the core ILO Conventions, should these not already have been transposed into the national law of the country of production. The Committee notes that, in reply to its previous direct request on this point, the Government explains that the ILO Conventions concerned are enumerated in the preamble to the Act, namely eight core Conventions relating to freedom of association and the right to collective bargaining, the abolition of forced labour and child labour, and non-discrimination in employment and occupation.

Article 4. Obligation to inform the workers. The Committee notes that section 36 of the General Terms and Conditions, attached to the Royal Order of 26 September 1996 establishing general rules for the execution of public contracts and public works concessions, provides for informing the workers with regard to the conditions of work applicable in the context of public contracts and public works concessions. It notes in particular that the text of collective agreements applicable at the work site must be made available to all interested parties by the contractor. The Committee requests the Government to indicate the manner in which it is ensured that information is given to the workers employed in the execution of the other categories of public contracts to which the Convention applies.

Article 5(1). Penalties. The Committee notes that, under section 48(4) of the General Terms and Conditions, the contracting authority automatically withholds from the sums due to the contractor the amount of wages and/or social security contributions which are unpaid in respect of the staff employed at the work site and makes direct payment of the outstanding amounts. The Committee requests the Government to indicate whether identical measures are applicable in the context of public contracts for supplies and services. Moreover, the Committee notes that section 17(2) of the Act of 8 January 1996 concerning public procurement for work, supplies and services and public works concessions allows a contractor to be excluded from participation in a public contract, especially if he has not fulfilled his obligations concerning social security contributions. However, the Committee understands that this section does not provide for this possibility of exclusion where the contractor has failed to comply with the labour clauses that cover wages and other conditions of work to be enjoyed by the workers concerned. The Committee requests the Government to provide further information on the penalties that apply in the aforementioned circumstances.

Part V of the report form. Application in practice. The Committee notes with interest the information sent by the Government regarding the campaign undertaken in 2010 by the regional directorate of the Occupational Welfare Department concerning public contracts for construction work concluded by local public services. It notes that this campaign was mainly concerned with the implementation of occupational safety and health plans and requests the Government to indicate whether similar initiatives have been launched to evaluate the extent to which the provisions applicable to individual conditions of work (especially wages and hours of work) are observed. The Government is also requested to provide information on the application of the Convention in practice, including the outcome of inspections made, the number of infringements reported and the corrective measures taken.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

Article 2 of the Convention. Labour clauses. The Committee notes with interest the amendments to the Law of 24 December 1993 on public procurement, which was already in conformity with Article 2 of the Convention. It notes, in particular, that a criterion based on social considerations was added to section 16 of the Law containing a non-exhaustive list of criteria to be taken into account in selecting the most favourable tender. The Committee also notes the adoption of section 18bis, which provides that, “in accordance with the principles of the Treaty establishing the European Community, the contracting authority may require conditions for the execution of the contract which would be in line with social and ethical objectives regarding the vocational training for the unemployed or young workers, or with the obligation to respect, in substance, the provisions of basic ILO Conventions, in case these Conventions would not already apply in the tenderer’s country of origin”. The Government may wish to amend this section in order to specify the ILO Conventions referred to therein.

Article 4. Obligation to keep the workers informed. The Committee requests the Government to provide information on the measures taken to ensure the posting of notices at the workplace with a view to informing the workers engaged in the execution of public contracts of the working conditions applicable to them.

Article 5, paragraph 1. Sanctions. The Committee notes that under section 12, paragraph 5, of the Law of 24 December 1993 on public procurement, “without prejudice to the application of sanctions provided for in other legal, or regulatory instruments or collective agreements”, the failure to fulfil the obligations arising from applicable legal or regulatory instruments or collective agreements in respect of safety and health, working conditions, taxation and social security, and the failure to ensure the observance of the same obligations by subcontractors, are considered to be violations of contractual clauses and give rise to measures and sanctions as such. The Committee requests the Government to provide explanations on all measures and sanctions applicable in case of infringement, and to indicate in particular whether the withholding of contracts and/or the withholding of payments under the contract may be imposed, as provided for under this Article of the Convention.

Part V of the report form. The Committee requests the Government to provide a general appreciation of the manner in which the Convention is applied in practice, including, for instance, extracts from reports of the inspection services and details on the number and nature of contraventions reported.