Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Suriname (Ratification: 1976)

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

Article 2 of the Convention. Insertion of labour clauses in public contracts. Further to its previous comments regarding the absence of legislation implementing the Convention, the Committee notes the Government’s reference to the standards for the procurement of works (AWS, 1996) and the standards for the administrative execution of works (UWS, 1996). The Government reports that, in July 2017, referring to the Committee’s comments, the Minister of Labour recommended to the Vice-President of Suriname and the Minister of Public Works, Transport and Communication that an article be included in the UWS and/or the AWS stating that the national labour legislation will be applicable to all public contracts and calling for a clause to be included in all public contracts regarding the applicability of the national labour legislation in the execution of such contracts. Moreover, the Committee notes the Government’s statement with regard to the Public Capital Expenditure Management Programme financed by the Inter-American Development Bank that no legislative proposal has yet been submitted to the National Assembly to unify and consolidate in law the principles and key regulations developed in the framework of the Programme. The Committee wishes to draw the Government’s attention once again to the main purpose of the Convention, which is to ensure the insertion in public contracts of labour clauses of a very specific content. In its 2008 General Survey on labour clauses in public contracts, paragraph 45, the Committee noted that “… the essential purpose of the Convention is to ensure that workers employed under public contracts shall enjoy the same conditions as other workers whose conditions of employment are fixed not only by national legislation but also by collective agreements or arbitration awards, and that in many cases the provisions in the national legislation respecting wages, hours of work and other conditions of employment provide merely for minimum standards which may be exceeded by collective agreements. The Committee therefore feels that the mere fact of the national legislation being applicable to all workers does not release the States which have ratified the Convention from the obligation to take the necessary steps to ensure that public contracts contain the labour clauses specified in Article 2 of the Convention.” Through the insertion of appropriate labour clauses in public contracts, workers employed on such contracts enjoy wages and other working conditions that are at least as satisfactory as those normally established for the type of work concerned, whether they are established by collective agreement or otherwise, in the locality where the work is being done (2008 General Survey, paragraph 40). The idea behind the Convention is that public authorities contracting for the execution of public works or the supply of goods and services should concern themselves with the working conditions under which these operations are carried out, due to the fact that government contracts are typically award to the lowest bidder and contractors may be tempted, in light of the competition involved, to economize on labour costs (2008 General Survey, paragraph 2). In paragraph 308 of its 2008 General Survey, the Committee notes that that in the light of the greater impact of globalization on an increasing number of member States and the related heightening of competitive pressures, the objectives of the Convention are even more valid today than they were 60 years ago and strengthen the ILO’s call for fair globalization. The Committee therefore urges the Government to take steps without delay to bring its law and regulations into full conformity with the Convention. The Committee also requests the Government to provide information on the progress achieved in this regard.

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

Article 2 of the Convention. Insertion of labour clauses in public contracts. Further to its previous observations drawing attention to the absence of implementing legislation, the Committee notes the Government’s reference to the standards for the procurement of works (AWS 1996), the standards for the administrative execution of works (UWS 1996), and the standards for the procurement of services (ADS 1996). These rules address in part the working conditions applicable to workers engaged in the execution of public contracts, but, as the Government’s report indicates, they do not expressly provide for the inclusion of labour clauses such as those prescribed by the Convention. The rules merely confirm the applicability of the general labour legislation to public procurement operations, which in itself is not sufficient to meet the requirements of this Article of the Convention, as the Committee has been pointing out for a number of years.

In this connection, the Committee notes the loan contract concluded in 2011 with the Inter-American Development Bank to assist the reform effort in the area of, among others, public procurement. The Committee also notes that the programme is planned to address identified weaknesses of the public procurement system, such as an outdated, disperse and incomplete legal framework characterized by a multiplicity of legal instruments and lack of clarity. The programme aims at the adoption of a new institutional framework in accordance with best international practices, the development of standardized procurement processes and procedures, including regulations, guidelines and handbooks, and the preparation of a legislative proposal to be submitted to the National Assembly to unify and consolidate in law the principles and key regulations developed during the programme. Considering that this reform process offers a clear opportunity to adopt laws and regulations giving full effect to the provisions of the Convention, the Committee hopes that the Government will take all the necessary measures in a timely manner to ensure that the legislative text to be developed through the Public Capital Expenditure Management Programme financed by the Inter-American Development Bank complies with the standards set out in the Convention.

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

Article 2 of the Convention. Insertion of labour clauses in public contracts. The Committee recalls its previous observation in which it noted with regret that the Government has – for the last 35 years – not been in a position to report any concrete progress in ensuring legislative conformity and full implementation of the requirements of the Convention. In this connection, the Committee wishes to refer to paragraph 304 of its General Survey of 2008 on labour clauses in public contracts in which it noted that the Convention was adopted 60 years ago with a view to ensuring that substantial public investment in public works and the purchase of goods and services did not have the effect of depressing working conditions elsewhere in the economy. Yet today, the risk remains essentially the same, namely that the winning tender might well be the one which pays the lowest wages, fails to provide safety equipment or coverage for accidents, and which has the largest proportion of informal workers, for whom no tax or social security was paid, and who are not covered in practice by any legal or social protection. In fact, there is a persistent concern that international competition pushes bidding enterprises to compress labour costs affecting standards on wages, working hours, sanitation, accommodation and welfare facilities. It was in this sense that the Committee reaffirmed the continuing relevance of the Convention in a context where public investment via public contracts continues to represent a high proportion of formal economic activity in both developed and developing countries.

Moreover, the Committee wishes to draw the Government’s attention to paragraphs 41 and 169 of the same General Survey, in which reference is made to those countries which are bound by the Convention but have not as yet taken measures to give effect to its main requirement, that is the insertion of labour clauses in public contracts, considering that the mere fact that the general labour legislation applies without distinction to all workers suffices to absolve them from their obligation of incorporating appropriate labour clauses into all public contracts for works, supplies or services.

In addition, the Committee understands that with the assistance of the Inter-American Development Bank, the Government has been implementing since March 2006 a four-year Public Sector Management Strengthening Programme (PSMSP) that contains activities related to the procurement regulatory framework, including legislation review and the drafting of a new comprehensive procurement law. In the light of the foregoing observations, the Committee believes that the PSMSP offers a real opportunity for bringing at last the national legislation into conformity with the Convention. The Committee trusts that in preparing the new public procurement legislation in the framework of the PSMSP, the Government will not fail to take into consideration the points raised by the Committee in its previous comments and asks it to keep the Office informed of any progress made in this respect.

Finally, with a view to assisting the Government in its effort to give effect to the Convention, the Committee attaches herewith a copy of the Practical Guide on the Convention prepared by the Office in September 2008 and based principally on the findings of the abovementioned General Survey. It also recalls that the Government may draw upon the advisory services of the Office to this effect.

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

The Committee recalls that for the last 35 years it has been requesting that the General Regulations for the execution and maintenance of works, to which reference was first made in 1968 and which contained labour clauses in line with the Convention, be extended to public contracts other than those for public works. However, the Committee never received any indication of concrete progress made in this respect. On the contrary, the Committee notes that in recent reports the Government refers to the Labour Act No. 163 of 1963 as being the only legislation applicable to employment and labour matters arising in the context of public contracts.

In this connection, the Committee is obliged to point out that the fact that the general labour legislation is applicable to workers engaged in the execution of public contracts does not in any way absolve the Government from its obligation to provide for the insertion of labour clauses in public contracts falling within the scope of the Convention. Such clauses seek to ensure more favourable employment and working conditions to workers in case the labour legislation only establishes minimum standards that may be improved through collective negotiation. Moreover, even if collective agreements were applicable to workers engaged in the execution of public contracts, the implementation of the Convention would still remain relevant in so far as it affords additional protection to the workers concerned. For example, the Convention requires the adoption by the competent authorities of measures, such as the advertisement of specifications, to ensure that tenderers have advance knowledge of the terms of the labour clauses. It also requires notices to be posted in conspicuous places at the workplace to inform workers of the conditions of work applicable to them. Finally, it provides for sanctions in the event of non-compliance with the terms of labour clauses, such as the withholding of contracts or the withholding of payments due to contractors, which may be more directly effective than those prescribed by the general labour legislation. The Committee therefore requests the Government to take the necessary measures to ensure compliance with the requirements of the Convention both in law and practice.

In addition, the Committee would be grateful if the Government would supply up to date information on the practical application of the Convention including, for instance, copies of public contracts and standard tender documents, statistics on the approximate number of public contracts awarded and the number of workers involved in their execution as well as any other particulars bearing on the operation of the country’s public procurement system.

The Committee understands that the Public Sector Management Strengthening Programme is under way with the support and financing of the Inter-American Development Bank, and that new procurement regulatory framework and procedures are expected to be drafted shortly. It requests the Government to keep it informed of all future developments regarding the reform of public procurement legislation and hopes that the Government will not fail to take due account of the Committee’s comments, eventually drawing upon the expert advice and technical assistance of the International Labour Office.

Finally, the Committee seizes this opportunity to refer to this year’s General Survey which contains an overview of public procurement practices and procedures in so far as labour conditions are concerned and makes a global assessment of the impact and present-day relevance of Convention No. 94.

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

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

The Committee notes the explanations provided by the Government in relation to the point previously raised by the Suriname Trade and Industry Association (VSB) as to the applicability of the general labour legislation to workers engaged in the execution of public contracts. The Government states in its report that, what is referred to as "contracting of work" in section 1613 of the Civil Code may be taken to describe the employment relationship between the Government and the public contractor, whereas the relationship between the public contractor and his employees is regulated by a labour contract (contract of employment). Accordingly, the labour legislation is always applicable to workers engaged in the execution of public contracts. The Committee takes note of this information but must again stress that the additional protection afforded by the labour clauses in public contracts cannot normally be ensured through the application of the general labour legislation and therefore the Government is not freed from its obligation to insert labour clauses in all public contracts covered by Article 1 of the Convention.

Article 1, paragraph 1(c)(ii) and (iii). The Committee has been drawing attention for several years to the "General regulations for the execution and maintenance of works under the control of the Department for Constructional Works, Transport and Waterways in Suriname", which provide for the insertion of labour clauses in contracts for public works, requesting the Government to take the necessary steps in order to extend the scope of those regulations to public contracts for the manufacture, assembly, handling or shipment of materials, supplies or equipment as well as to contracts for the performance or supply of services. In its reply to the Committee’s previous direct request, the Government acknowledges that the mere fact of the national legislation being applicable to all workers does not fulfil the basic requirement of the Convention specified in Article 2 of the Convention but states that no measures have as yet been taken to include labour clauses in public contracts other than those for public works. The Committee hopes that the Government will make every effort to take the necessary action in the very near future and asks the Government to keep it informed of any progress achieved in this respect.

Part V of the report form. The Committee notes that for many years the Government has not provided any information on the practical application of the Convention. In this connection, the Committee recalls that under Part V of the report form governments are requested to give a general appreciation of the manner in which the Convention is applied, including, for instance, extracts from official reports, information concerning the number of contracts and workers covered by relevant legislation, etc. This form, which was adopted by the Governing Body of the ILO, is the main channel through which the Committee may obtain all the necessary information in order to follow the evolution of national laws and practice in matters covered by the Convention. The Committee would therefore be grateful if the Government would provide in its next report detailed and up-to-date information on the practical application of the Convention, including copies of public contracts, the model text of the labour clause currently in use, information from inspection services on the supervision and enforcement of national legislation and any other particulars bearing on the practical fulfilment of the conditions prescribed in the Convention.

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

The Committee notes the Government's reference to the granting of government contracts by public tender and prequalifications, the absence of influence of the Government on the workers who have a contract of employment with the employer, which is covered by the existing labour legislation. The Government also indicates that legislation on collective labour agreements for a certain branch is not a priority in the tripartite advisory board.

The Committee points out that the essential purpose of the Convention is to ensure that, through the insertion of appropriate labour clauses in public contracts, the workers employed by a contractor and paid indirectly out of public funds enjoy wages and conditions of labour which are not less favourable than those of other workers doing similar work. The additional protection afforded by these labour clauses in public contracts is deemed to be necessary because this category of workers is often more exposed than others because of the competition between firms tendering for public contracts.

The Committee recalls that the "General Regulations for the execution and maintenance of works under the control of the Department for Constructional Workers, Transport and Waterways in Suriname" requires the inclusion of necessary labour clauses in contracts for public works, in accordance with Article 1(1)(c)(i) of the Convention. The Committee previously noted the Government's reference in its earlier reports to a proposal to extend this General Regulation to public contracts other than those for public works. In the absence of the Government's reply on this point, it again requests the Government to indicate any measures taken or envisaged to require the inclusion of labour clauses in public contracts for the manufacture, assembly, handling or shipment of materials, supplies or equipment and in public contracts for the performance or supply of services (Article 1(1)(c)(ii) and (iii)), either by extending the scope of the above-mentioned General Regulations or by other means.

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

The Committee notes the comments made by the Suriname Trade and Industry Association (VSB), which was transmitted by the Government in its communication dated 24 November 1994.

With reference to the Government's indication in its report that all existing labour legislation is applicable to the contract of employment between the public contractor and the employee, the VSB points out that such legislation is applicable only in the case of a series of similar contracts, which form a kind of one work agreement, and refers to section 1613, paragraph 2, of the Civil Code.

In the absence of the Government's comment on the point raised by the VSB, the Committee requests the Government to supply detailed information on the applicability of the labour legislation to workers engaged in the execution of public contracts.

The Committee however recalls that the application of the general labour legislation does not normally fulfil on its own the principal requirement of the Convention to ensure the insertion of labour clauses in public contracts. It is also addressing a direct request to the Government in this regard.

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

The Committee noted previously the Government's statement that a proposal to extend the General Regulations to public contracts other than those for public works would be presented to the Ministry responsible for public works. As the most recent report contains no information on this point, the Committee again expresses the hope that the Government will be able to indicate in its next report that measures have been taken to ensure the application of the Convention to all the kinds of public contracts covered by Article 1 (1)(c) of the Convention.

In addition, the Committee noted from the Government's previous report that in 1986 the Minister of Labour had asked the tripartite Labour Advisory Board for advice on the adoption of legislation with respect to the possibility of extending certain minimum provisions of collective labour agreements to a comparable economic branch, sector or category of undertakings. The Government's most recent report states that the Labour Advisory Board has not yet advised the Minister. The Committee hopes that the Government will take the necessary measures to obtain the Board's advice and to implement the Convention more fully.

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

The Committee notes the Government's statement that a proposal to extend the General Regulations to public contracts other than those for public works will be presented to the Ministry responsible for public works. The Committee hopes that the Government will be able to indicate in its next report that measures have been taken to ensure the application of the Convention to all kinds of public contracts covered by Article 1(1)(c) of the Convention.

In addition, the Committee notes from the Government's report that in 1986 the Minister of Labour asked the tripartite Labour Advisory Board for advice on the adoption of legislation with respect to the possibility of extending certain minimum provisions of collective labour agreements to a comparable economic branch, sector or category of undertakings, but that the Labour Advisory Board has not yet advised the Minister. The Committee hopes that the Government will keep it informed of any progress made in this connection.