Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - French Polynesia

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

Article 2 of the Convention. Inclusion of labour clauses in public contracts. In its previous comments, the Committee asked the Government to keep the Office informed of any developments relating to the revision of the Public Procurement Code, especially concerning the revision of section 42(3) of the Code. The Committee notes the entry into force on 1 January 2018 of the new legal corpus which marks the completion of the reform of the regulations relating to public procurement in French Polynesia, in particular Order No. 1455 CM of 24 August 2017 and Act No. 2017-14 of 13 July 2017 issuing the Public Procurement Code of French Polynesia. It also notes the information provided by the Government concerning the modifications made in the legal provisions or practice applicable to public procurement. The Government indicates in its report that the new Public Procurement Code sets out the rules relating to the drawing up, award and execution of public contracts for French Polynesia and for the communes and their subdivisions (public establishments and groupings). As regards the revision of section 42(3) of the Public Procurement Code, the Committee notes the Government’s indication that this section has been repealed at the national level. However, regarding the effective application of the fundamental requirements of the Convention, consisting of the inclusion of labour clauses of the type stipulated in Article 2 of the Convention, the Government indicates that the provisions of the new Public Procurement Code of French Polynesia oblige public purchasers to ensure that co-contractors of the administration respect their obligations with regard to the labour regulations prior to the award of the contract and during its execution. The Government also refers to Annexes 1 and 2 of the new Code which define the general terms and conditions of contract (CCAG) establishing administrative provisions applicable to public contracts. The Committee notes that these cannot deviate from mandatory provisions such as the labour legislation applicable to any public or private contract (section 6 of Order No. 1455 CM of 24 August 2017 – Public Procurement Code of French Polynesia). However, the Committee notes that the new legislation governing public procurement does not contain any provision requiring the inclusion of labour clauses in public contracts, as provided for by Article 2(1) and (2) of the Convention. In this regard, the Committee draws the Government’s attention to the 2008 General Survey on labour clauses in public contracts and to the 2008 practical guide relating to the present Convention and the Labour Clauses (Public Contracts) Recommendation, 1949 (No. 84), which put forward guidance and examples to follow to ensure that the application of the national legislation is in conformity with the provisions of the Convention. Recalling that the Convention does not necessarily require the adoption of new legislation but may be applied through administrative instructions or circulars, the Committee hopes that the Government will take the opportunity provided by the transposition of the new Public Procurement Code of French Polynesia to bring its national legislation fully into line with the provisions of the Convention, particularly regarding determination of the terms of the labour clauses to be included in the public contracts to which the Convention applies, after consultation of the employers’ and workers’ organizations concerned (Article 2(3)) and the publication of a notice regarding the specifications or any other measure to ensure that persons tendering for contracts are aware of the terms of the clauses (Article 2(4)). The Committee also requests the Government to provide detailed, up-to-date information on any measures taken or contemplated to give full effect to the essential requirements of the Convention, namely the inclusion of labour clauses of the type required by Article 2 of the Convention in public contracts, and to keep the Office informed of all progress made in this regard. The Committee also reminds the Government that, if it wishes, it may avail itself of ILO technical assistance in this regard.

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

Articles 1 and 2 of the Convention. Inclusion of labour contracts in public contracts. The Government indicates in its report that the legislation applicable in the area covered by the Convention remains unchanged. Further to its previous comments, the Committee notes that the revision of the Public Procurement Code of French Polynesia planned by the authorities has not yet been concluded. As regards the exemptions from the obligation to include labour clauses in public contracts, the Government indicates that the revision of section 42(3) of the Public Procurement Code remains non-essential in view of section Lp. 5611-8 of the Labour Code of French Polynesia, which forbids a contracting entity to evade its obligations regarding employees’ wages or conditions of work, and section Lp. 5611-9, which penalizes any failure to observe these provisions. In this regard, the Committee recalls paragraph 45 of its General Survey of 2008 on labour clauses in public contracts, in which it observed 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(1) of the Convention, whether for construction work, the manufacture of goods or the provision of services, since the general labour legislation only establishes minimum standards, which are often improved through collective agreements or arbitration awards. The Committee recalls that all public contracts coming within the scope of Article 1 of the Convention must contain labour clauses, whether or not these contracts are assigned through a bidding process. The Committee requests the Government once again to keep the Office informed of any developments relating to the revision of the Public Procurement Code and reiterates the hope that the new Public Procurement Code which may be adopted will continue to ensure the application of the Convention. Moreover, the Committee hopes that the Government will consider revising section 42(3) of the Public Procurement Code in order to align it to the provisions of the Convention.

Direct Request (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 indications that the adoption of Organic Act No. 2004-192 of 27 February 2004 establishing the autonomous status of French Polynesia, which, inter alia, distributes competence for public contracts between the French State and French Polynesia, does not exempt enterprises from application of the Convention or from labour regulations and collective agreements. It further notes that the competent authorities are contemplating a review of the Public Procurement Code of French Polynesia. The Committee requests the Government to keep the Office informed of any new developments in the process of revision of the Public Procurement Code, and hopes that any new code adopted will continue to implement the Convention. Furthermore, as regards the exemptions permitted from the obligation to include labour clauses in public contracts, the Committee hopes that, in the context of such a revision, the Government will consider amending section 42(3) of the Public Procurement Code in order to align its wording with the interpretation given by the Government, as requested by the Committee in its previous direct request.

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

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Repetition

The Committee notes that the legislation giving effect to the Convention has not been amended and that Decision No. 84-20 AT of 1 March 1984 approving the Code respecting all forms of public contracts concluded in the name of French Polynesia and its public establishments is therefore still in force. It also notes that this text is to a large extent based on France’s Public Contracts Code of 1964, which gave effect to the Convention but which has been replaced by new provisions, the most recent being Decree No. 2006-975 of 1 August 2006 issuing the Public Contracts Code.

The Committee also notes the adoption of Basic Act No. 2004-192 of 27 February 2004 concerning the autonomous status of French Polynesia. It notes in this connection that the authorities of metropolitan France retain competence for public contracts of the State and its public establishments (section 14(11) of the Act), whereas the authorities of French Polynesia establish the rules on public contracts of municipalities, their groupings and their public establishments (section 49 of the Act). The Committee requests the Government to provide information on any impact the distribution of authority established by the Basic Act of 27 February 2004 may have on the regulations on public contracts in French Polynesia and, consequently, on the application of the Convention.

Article 1 of the Convention. Scope. The Committee notes that section 42(3) of the Public Contracts Code of French Polynesia, under which the inclusion of labour clauses is optional for certain types of public contracts, only allows exemption of the holder of the contract from the obligations on hiring established by section 42, paragraph 1, of the Code (notice at the Labour Office and reception of candidates presented by this Office) and so has no effect on the application of the Convention. It also notes that, at all events, the relevant sectoral collective agreements apply to holders of public contracts. The Committee observes, however, that section 42(3) of the Code appears to be much broader in scope and is not confined to provisions on the hiring of labour, since in specific cases it provides that “the incorporation of the abovementioned clauses and conditions is optional”. The Government may wish to amend this provision in due course to align the wording with the interpretation given by the Government in its last report. It asks the Government to keep it informed of all developments in this matter.

Part V of the report form. Application in practice. The Committee requests the Government to provide information on the effect given in practice to the Convention including, for instance, extracts of reports by the inspection services containing information on the number and nature of infringements reported. The Government is also asked to provide a copy of the minutes of the tripartite meeting at which its report was presented.

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

The Committee notes that the legislation giving effect to the Convention has not been amended and that Decision No. 84-20 AT of 1 March 1984 approving the Code respecting all forms of public contracts concluded in the name of French Polynesia and its public establishments is therefore still in force. It also notes that this text is to a large extent based on France’s Public Contracts Code of 1964, which gave effect to the Convention but which has been replaced by new provisions, the most recent being Decree No. 2006-975 of 1 August 2006 issuing the Public Contracts Code.

The Committee also notes the adoption of Basic Act No. 2004-192 of 27 February 2004 concerning the autonomous status of French Polynesia. It notes in this connection that the authorities of metropolitan France retain competence for public contracts of the State and its public establishments (section 14(11) of the Act), whereas the authorities of French Polynesia establish the rules on public contracts of municipalities, their groupings and their public establishments (section 49 of the Act). The Committee requests the Government to provide information on any impact the distribution of authority established by the Basic Act of 27 February 2004 may have on the regulations on public contracts in French Polynesia and, consequently, on the application of the Convention.

Article 1 of the Convention. Scope. The Committee notes the Government’s reply to its previous comments. It notes that section 42(3) of the Public Contracts Code of French Polynesia, under which the inclusion of labour clauses is optional for certain types of public contracts, only allows exemption of the holder of the contract from the obligations on hiring established by section 42, paragraph 1, of the Code (notice at the Labour Office and reception of candidates presented by this Office) and so has no effect on the application of the Convention. It also notes that, at all events, the relevant sectoral collective agreements apply to holders of public contracts. The Committee observes, however, that section 42, paragraph 3, of the Code appears to be much broader in scope and is not confined to provisions on the hiring of labour, since in specific cases it provides that “the incorporation of the abovementioned clauses and conditions is optional”. The Government may wish to amend this provision in due course to align the wording with the interpretation given by the Government in its report. It asks the Government to keep it informed of all developments in this matter.

Part V of the report form. The Committee requests the Government to provide information on the effect given in practice to the Convention including, for instance, extracts of reports by the inspection services containing information on the number and nature of infringements reported. The Government is also asked to provide a copy of the minutes of the tripartite meeting at which its report was presented.

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

The Committee notes the Government’s indication that the reference to section 41, paragraphs 1 and 2 of the Public Contracts Code of 20 June 1984, made in section 42(3) of the same Code, is probably erroneous and that reference should rather be made to section 32, paragraphs 1 and 2 of the Code. The provision in question states that, in the case public procurement proceeds without competitive bidding either because it involves the use of a patent, licence or exclusive rights of a single provider, or because it may only be awarded to a specific entrepreneur for reasons related to technical specifications, prior investment, special equipment or know-how, the insertion of the clauses and conditions required by section 42 is optional. In this respect, the Committee wishes to point out that all public contracts coming under the scope of Article 1(1) of the Convention must include labour clauses irrespective of whether or not they are awarded through tendering. The Committee recalls that under Article 1, paragraphs 4 and 5, of the Convention, exemption from the application of the Convention is only possible in case of contracts involving the expenditure of public funds of an amount not exceeding a fixed limit, or in respect of certain categories of workers such as persons occupying positions of management or of a technical, professional or scientific character, whose conditions of employment are not regulated by national laws or regulations, collective agreement or arbitration award and who do not ordinarily perform manual work. The Committee therefore asks the Government to provide additional information on this matter and specify whether any use of the permissive provision of section 42(3) of the Public Contracts Code is made in practice.

In addition, the Committee notes that for several years the reports communicated by the Government have failed to contain information on the practical application of the Convention as requested in Parts III, IV and V of the report form. The Committee therefore asks the Government to supply all available information on the manner in which the Convention is applied in practice, including, for instance, extracts from inspection reports, statistics on the number of workers covered by relevant legislation, the number and nature of violations observed and penalties imposed, etc.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

Article 2, paragraph 1, of the Convention. In its previous comments, the Committee noted that section 42(3) of the Public Contracts Code of 20 June 1984, which provides for optional inclusion of the clauses and conditions set out in the said section, refers to section 31 as amended, and not to section 41 as previously indicated. The Committee notes that, in its last report, the Government cites section 42(3) of the above-mentioned Code and again refers to section 41 and not to section 31. It hopes that the Government will clarify this matter.

The Committee asks the Government to provide information on the manner in which the Convention is applied including, for instance, extracts from the reports of the inspection services and on the number and nature of reported violations, in accordance with point V of the report form.

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

The Committee notes with regret that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following matters raised in its previous direct request:

Article 2, paragraph 1, of the Convention. With reference to its previous comments, the Committee noted that section 42(3) of the Public Contracts Code of 20 June 1984, which provides for the inclusion of the clauses and conditions set out in the first two subsections of section 42 of the above Code, refers to section 31 as amended, and not to section 41 as previously indicated.

The Committee recalls that it requested the Government to indicate whether the consultations with the organisations of employers and workers concerned, which are required by Article 2, paragraph 3, were carried out before the adoption of the terms of these clauses. The Committee notes that, according to the Government, formal cooperation with the organisations of employers and workers was difficult, but that the consultations required by the Convention were carried out progressively. The Committee hopes that the Government will continue to supply general information on the consultations that have been held concerning the application of this Convention and on the manner in which the Convention is applied including, for instance, extracts from the reports of the inspection services and on the number and nature of reported violations, as requested in point V of the report form.

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

The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following matters raised in its previous direct request:

Article 2, paragraph 1, of the Convention. With reference to its previous comments, the Committee noted that section 42(3) of the Public Contracts Code of 20 June 1984, which provides for the inclusion of the clauses and conditions set out in the first two subsections of section 42 of the above Code, refers to section 31 as amended, and not to section 41 as previously indicated.

The Committee recalls that it requested the Government to indicate whether the consultations with the organisations of employers and workers concerned, which are required by Article 2, paragraph 3, were carried out before the adoption of the terms of these clauses. The Committee notes that, according to the Government, formal cooperation with the organisations of employers and workers was difficult, but that the consultations required by the Convention were carried out progressively. The Committee hopes that the Government will continue to supply general information on the consultations that have been held concerning the application of this Convention and on the manner in which the Convention is applied including, for instance, extracts from the reports of the inspection services and on the number and nature of reported violations, as requested in point V of the report form.

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

Article 2, paragraph 1, of the Convention. With reference to its previous comments, the Committee notes that section 42(3) of the Public Contracts Code of 20 June 1984, which provides for the inclusion of the clauses and conditions set out in the first two subsections of section 42 of the above Code, refers to section 31 as amended, and not to section 41 as previously indicated.

The Committee recalls that it requested the Government to indicate whether the consultations with the organisations of employers and workers concerned, which are required by Article 2, paragraph 3, were carried out before the adoption of the terms of these clauses. The Committee notes that, according to the Government, formal co-operation with the organisations of employers and workers was difficult, but that the consultations required by the Convention were carried out progressively. The Committee hopes that the Government will continue to supply general information on the consultations that have been held concerning the application of this Convention and on the manner in which the Convention is applied including, for instance, extracts from the reports of the inspection services and on the number and nature of reported violations, as requested in point V of the report form.

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, paragraph 1, of the Convention. The Committee notes that the last sentence of section 42(3) of the Public Contracts Code (as published in Journal Officiel de le Polynesie franóaise of 20 June 1984) states that in the cases indicated in section 41(1) and (2), the insertion of the clauses and conditions required by section 42 is optional. The Committee considers that the reference to section 41 could be erroneous and requests the Government to indicate the circumstances in which the insertion of the labour clauses required by this Article of the Convention are optional.

Article 2, paragraph 3. The Committee would be grateful if the Government would indicate whether the consultations with the organisations of employers and workers concerned, which are required by this provision, were carried out before the adoption of the terms of the clauses.