Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Egypt (Ratification: 1960)

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

Article 2 of the Convention. Insertion of labour clauses in public contracts. The Committee notes the information provided by the Government regarding amendments to the Financial and Administrative Regulation (Ministerial Decision No. 162 of 2019) for the employment and protection of informal workers (contractors, agricultural, seasonal and temporary workers and similar) and Act No. 182 of 2018 on Agreements Concluded by Public Entities, which regulates the conclusion of public contracts. The Government refers in its report to sections 21, 29 and 32 of Ministerial Decision No. 162 of 2019 regulating the wages and conditions of work of informal workers, as well as to section 32 of the Labour Code, No. 12 of 2003 regarding the terms and conditions of employment contracts for all workers (wages, hours of work, etc.). The Committee nevertheless notes that none of the above-mentioned legislation contains any provisions ensuring the application of the core requirement of the Convention, namely the insertion in public contracts of labour clauses of the type prescribed by Article 2. In this regard, the Committee refers to its 2009 comments on the application of the Convention, in which it noted the concrete steps taken by the Government of Egypt to give effect to the core requirement of the Convention under General Circular No. 8 issued by the Minister of Finance (23 June 2008). That Circular added two new bidding terms to the Public Tenders Law (No. 89/1998), stipulating that: (i) workers engaged in the execution of the (public) contract must receive wages and bonuses not lower than those received by workers carrying out similar work in the same governorate; and (ii) they must enjoy the same working hours and conditions prevailing in the region, according to a general agreement or custom. Noting the Government's expressed commitment to take the necessary measures to ensure the full application of the Convention, the Committee reiterates its hope that the necessary measures will be taken by the Ministry of Manpower and Migration to ensure that the two bidding terms set out in the General Circular No. 8 of 2008 will be incorporated as standard clauses into all future public procurement contracts.The Committee requests the Government to communicate, together with its next report, copies of standard bidding documents currently in use, sample tender letters and concession agreements used in public procurement procedures, to enable the Committee to more fully appreciate and assess the manner in which the Convention is implemented in both law and practice. The Committee reminds the Government that it may avail itself of technical assistance in this regard.

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

Article 2 of the Convention. Insertion of labour clauses in public contracts. In its previous comments, the Committee requested the Government to make every effort to take all appropriate measures to ensure the effective application of the Convention in practice. It also expressed the hope that the Ministry of Manpower and Migration would provide the necessary instructions so that the two new bidding terms set out in General Circular No. 8 of 2008 could be incorporated as standard clauses into all future public procurement contracts (whether for construction works, supply of goods or performance of services) concluded between public authorities and private contractors. The Committee notes the Government’s indication that, in 2015, the Ministry of Manpower and Migration promulgated Decision No. 329 which issued the Financial and Administrative Regulation for the employment and welfare of informal workers, including those employed in construction work and similar workers. The Government indicates that all government entities, as well as public and private bodies, are required to comply with the provisions of the Regulation, including by adopting all measures necessary to protect and ensure the welfare of such workers, especially with respect to wages, health care and a safe working environment. The Committee requests the Government to provide a copy of the Financial and Administrative Regulation issued by Decision No. 329 of 2015, and to indicate the manner in which this Regulation is applied. The Committee further requests the Government to continue to provide updated information on measures taken and envisaged to ensure the effective application of the Convention.

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

Article 2 of the Convention. Insertion of labour clauses in public contracts. The Committee recalls its previous comment in which it welcomed the issuance of General Circular No. 8 of the Minister of Finance dated 23 June 2008, which adds two new bidding terms to the provisions of the Public Tenders Act No. 89/1998 and its executive decree thus giving effect to the core requirement of the Convention. The Committee notes the Government’s explanations that, in the absence of collective agreements, wages are fixed according to the prevailing custom in each region. It also notes the Government’s statement that, prior to the issuance of the circular, the matter had been discussed within the Tripartite Consultative Committee and that it was only on that basis that the Ministry of Manpower and Migration requested the Ministry of Finance to issue the circular. Moreover, the Committee notes the Government’s indication that all additional steps to ensure the effective implementation of the Convention, particularly as regards the posting of notices with a view to informing the workers of the conditions applicable to them (Article 4) and adequate sanctions such as the withholding of contracts or the withholding of payments (Article 5), are currently under consideration. The Committee hopes that the Government will make every effort to take all appropriate action in the very near future to ensure the effective application of the Convention in practice. It also hopes that the Ministry of Manpower and Migration will give the necessary instructions so that the two new bidding terms set out in General Circular No. 8 of 2008 are incorporated as standard clauses into all future public procurement contracts (whether for construction works, supply of goods or performance of services) concluded between public authorities and private contractors.

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

Article 2 of the Convention. Insertion of labour clauses in public contracts. The Committee has been in receipt of General Circular No. 8 of the Minister of Finance dated 23 June 2008. It notes with interest that the Government has for the first time taken concrete steps to give effect to the core requirement of the Convention. According to the terms of the Circular, two new bidding terms are to be added to the provisions of the Public Tenders Law No. 89/1998: (i) workers engaged in the execution of the contract must receive wages and bonuses not lower than those received by workers carrying out similar work in the same governorate; and (ii) they must enjoy the hours of work and working conditions prevailing in the region, according to a general agreement or according to custom. In addition, the Circular draws the attention of all bodies concerned to the necessity to include in detail the above two bidding terms in public contracts and indicates that the Ministry of Manpower and Migration will be responsible for the implementation of the new provisions.

The Committee welcomes the adoption of General Circular No. 8/2008 of the Minister of Finance and understands that the Government has made use of the Office’s advisory services in this respect. However, it wishes to draw the Government’s attention to the following: first, in its current wording, the Circular does not make it sufficiently clear that the wages, hours of work and other working conditions of the workers concerned have to be aligned, as a minimum, to best local standards established through collective bargaining, arbitration or legislation – whichever is the most advantageous. The Committee refers, in this respect, to paragraph 103 of the General Survey of 2008 on labour clauses in public contracts in which it pointed out that conditions not less favourable than the three alternatives offered by the Convention (i.e. collective agreement, arbitration award, legislation) would in practice, in most instances, imply the best conditions of the three. Second, the terms of the labour clauses to be included in public contracts and any variations must be determined after consultation with the organizations of employers and workers concerned, as required by Article 2(3) of the Convention, and the Committee has not received any indication whether any such consultations were held before the adoption of General Circular No. 8/2008. Third, the Convention requires specific measures for the enforcement of the provisions of the labour clauses, including the posting of notices in conspicuous places at the workplaces concerned with a view to informing the workers of the conditions applicable to them (Article 4) and adequate sanctions such as the withholding of contracts or the withholding of payments (Article 5). The Committee therefore hopes that the Government will take additional steps to ensure the effective implementation of the Convention with regard to the points raised above. It also asks the Government to provide supplementary information, including copies of any newly adopted texts, on the measures taken by the Ministry of Manpower and Migration for the practical application of General Circular No. 8/2008. Moreover, the Committee would appreciate receiving sample copies of any recently issued tender documents or public contracts which have incorporated the new bidding terms provided for in the General Circular.

Finally, the Committee attaches herewith a copy of the Practical Guide on Convention No. 94 which was prepared by the Office in September 2008 based on the conclusions of the aforementioned General Survey to help better understand the requirements of the Convention and ultimately improve their application in law and practice.

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

The Committee regrets the Government’s continued failure to give effect to the Convention and to effectively apply it in practice. More than 45 years after ratification, the Government has still to adopt implementing legislation providing for the insertion of labour clauses in public contracts. Despite the Government’s statement that it has replied to all queries raised in previous comments, the Committee is obliged once again to observe that the Labour Code cannot automatically guarantee to the workers employed for the execution of public contracts labour conditions which are not less favourable than whichever is the most favourable of the three alternatives provided for in the Convention, i.e. collective negotiation, arbitration or legislation. The general labour legislation prescribes minimum standards, such as wage levels, and does not necessarily reflect the actual working conditions of workers whereas the Convention requires workers engaged in the execution of public contracts to be paid the wage that is generally paid in practice rather than the minimum wage provided for in the legislation.

With a view to assisting the Government in its effort to better understand the aims of the Convention and adapt its national legislation accordingly, the Committee attaches herewith a copy of an Explanatory Note prepared by the International Labour Office to this effect. The Note includes also a model text illustrating one of several ways in which legislative conformity with the Convention may be ensured. The Committee draws the Government’s attention in this connection to the fact that the Convention does not necessarily call for the enactment of specific legislation, but it can also be applied by means of administrative instructions or circulars. The Committee asks the Government to take without further delay all the necessary measures in order to apply effectively the Convention in both law and practice. Finally, the Committee notes the Government’s request for technical assistance with a view to obtaining detailed explanations concerning the application of the Convention. The Committee trusts that the Office will respond favourably to this request and hopes that the Government will make good use of the Office’s advisory services so as to meet at last the requirements of the Convention.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s report which essentially reproduces information communicated to the Office before. The Committee recalls that it has been commenting on the application of the Convention since its ratification by Egypt and regrets that the Government is once again unable to indicate any real progress in bringing its national legislation into conformity with the requirements of the Convention.  The Government makes renewed reference to section 79 of the new Labour Code of 2003 even though the Committee has already noted that this provision, as much as section 57 of the former Labour Code of 1981, does not suffice for the application of Article 2 of the Convention which explicitly requires the insertion of labour clauses in those public procurement contracts meeting the conditions specified in Article 1 of the Convention. The Committee further considers that sections 3, 5, 34, 35 and 76 of the new Labour Code to which reference is also made in the Government’s report are not strictly relevant to the subject matter of the Convention and therefore may not be regarded as giving effect to its provisions. The general principles set out in the Labour Code regarding minimum wage fixing, maximum working hours or occupational safety and health cannot automatically guarantee to the workers concerned labour conditions which are not less favourable than whichever is the most favourable of the three alternatives provided for in the Convention, i.e. collective negotiation, arbitration or legislation.

As the Committee has stated 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 be entitled to receive the wage that is generally paid rather than the minimum wage prescribed in the legislation. In other terms, the application of the general labour legislation is not enough in itself 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.

Therefore, in the interest of maintaining a constructive dialogue, the Committee would appreciate if the Government would specify in its next report any concrete measures taken or contemplated to implement the Convention in law and practice, and recalls in this respect that the inclusion of labour clauses in all the public contracts covered by the Convention does not necessarily call for legislative enactment but may also be effected by means of administrative instructions or circulars.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee recalls its previous observations concerning the Government’s continued failure to provide for the insertion of labour clauses in public contracts in accordance with the provisions of the Convention. In its last report, the Government refers to the recently promulgated - but not yet entered into force - Labour Code No. 12 of 2003, section 79 of which provides that, if an employer entrusts another employer with one of his tasks or part thereof in the area of employment, the latter is under the obligation to treat equally his employees and the workers employed by the original employer. In the view of the Government, the new labour legislation is, by virtue of this provision alone, in conformity with the requirements of the Convention. While taking note of the Government’s statement, the Committee regrets that, despite its repeated comments, no real progress has been made in the application of the Convention. The provision of section 79 of the new Labour Code, which parenthetically is identical to that of section 57 of the current Labour Code No. 137 of 1981, bears little relevance to the obligation arising from Article 2 of the Convention for the insertion of standard labour clauses in those public contracts meeting the conditions specified in Article 1 of the Convention. The Committee has pointed out on several occasions that section 57 of the Labour Code concerns the equality of treatment between a subcontractor’s own workers and those of the main contractor but cannot guarantee to the workers concerned wages and labour conditions at least as good as those normally observed for the kind of work in question, whether determined by collective agreement or otherwise. In this situation the Committee once again asks the Government to take all necessary measures without further delay to bring its national law and practice into conformity with the clear terms and objectives of the Convention.

[The Government is asked to report in detail in 2004.]

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

The Committee notes the Government’s report and the adoption of the Orders of the Minister of State for Administrative Development, No. 24 of 1997, concerning the employment of national experts and No. 25 of 1997, concerning the employment of temporary workers. The Committee also notes that in reply to its previous observation the Government states that the labour relations of employees in the state administrative system are governed by the provisions of Act No. 47 of 1978 on civilian employees of the State. It notes, however, that these texts contain no provisions on labour clauses in public contracts and so are irrelevant to the objectives of this Convention.

Consequently, the Committee is bound to point out, as it did in its previous comments, the need for public contracts as defined in Article 1 of the Convention to provide for clauses which ensure 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 trade or industry concerned in the district where the work is carried on, either by collective agreement, arbitration award or by national laws or regulations, in accordance with Article 2, paragraph 1.

Pointing out once again that it has been commenting on the application of this Convention in Egypt for 40 years, the Committee urges the Government to take steps to ensure that labour clauses are included in public contracts, in accordance with the provisions of the Convention, and to inform the Committee of any progress in this respect in its next report.

[The Government is asked to report in detail in 2003.]

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes that the Government’s report contains no reply to previous comments. It must therefore repeat its previous observation which reads as follows:

Further to its previous observation, the Committee notes the Government’s repeated reference to section 57 of the Labour Code (Act No. 137 of 1981) for the application of Article 2 of the Convention.

The Committee once again points out that the requirement of the Convention under Article 2 is to ensure the insertion of a labour clause in public contracts so as to guarantee to the workers employed by the contractor, the prevailing labour conditions which have been established in any of the three ways specified in Article 2(1), items (a), (b) and (c). The Committee also recalls that these three items do not stipulate the manner in which the Convention should be applied. The principal aim of a labour clause is to protect fair conditions of labour from the consequences of competitive practice of tendering for a public contract, in which firms tendering for a public contract may feel the temptation to calculate labour costs at a level lower than the prevailing conditions. In addition, the provision of penalties in the labour clauses, such as the withholding of contracts, makes it possible to impose effective sanctions directly in case of violations.

The Committee recalls that section 57 of the Labour Code concerns the equality of treatment between a subcontractor’s own workers and those of the employer. In the case of a public contract, for example, for the construction of some public works, when there is no employee of the public authority (the employer) engaged in construction work, "the equality of treatment" cannot guarantee any protection for the employees of the subcontractor. Therefore, this section 57 does not ensure the above-mentioned purposes of labour clauses in public contracts, and does not suffice for the application of Article 2 of the Convention.

The Committee recalls that the Government once indicated in its earlier report certain actions taken by the Central Body for Management and Administration to circulate instructions that a clause should be included in all public contracts in order to guarantee to the workers concerned conditions of labour not less favourable than those of other workers performing the same work. The Committee notes with regret that no further information has been supplied in this regard.

Recalling that it has been commenting on the application on the Convention since its ratification by Egypt, the Committee again expresses the hope that the Government will take appropriate measures (whether by way of legislation or administrative instructions) to provide for the insertion of a labour clause in public contracts in accordance with the provisions of the Convention.

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

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

Further to its previous observation, the Committee notes the Government's repeated reference to section 57 of the Labour Code (Act No. 137 of 1981) for the application of Article 2 of the Convention.

The Committee once again points out that the requirement of the Convention under Article 2 is to ensure the insertion of a labour clause in public contracts so as to guarantee to the workers employed by the contractor, the prevailing labour conditions which have been established in any of the three ways specified in Article 2(1), items (a), (b) and (c). The Committee also recalls that these three items do not stipulate the manner in which the Convention should be applied. The principal aim of a labour clause is to protect fair conditions of labour from the consequences of competitive practice of tendering for a public contract, in which firms tendering for a public contract may feel the temptation to calculate labour costs at a level lower than the prevailing conditions. In addition, the provision of penalties in the labour clauses, such as the withholding of contracts, makes it possible to impose effective sanctions directly in case of violations.

The Committee recalls that section 57 of the Labour Code concerns the equality of treatment between a subcontractor's own workers and those of the employer. In the case of a public contract, for example, for the construction of some public works, when there is no employee of the public authority (the employer) engaged in construction work, "the equality of treatment" cannot guarantee any protection for the employees of the subcontractor. Therefore, this section 57 does not ensure the above-mentioned purposes of labour clauses in public contracts, and does not suffice for the application of Article 2 of the Convention.

The Committee recalls that the Government once indicated in its earlier report certain actions taken by the Central Body for Management and Administration to circulate instructions that a clause should be included in all public contracts in order to guarantee to the workers concerned conditions of labour not less favourable than those of other workers performing the same work. The Committee notes with regret that no further information has been supplied in this regard.

Recalling that it has been commenting on the application on the Convention since its ratification by Egypt, the Committee again expresses the hope that the Government will take appropriate measures (whether by way of legislation or administrative instructions) to provide for the insertion of a labour clause in public contracts in accordance with the provisions of the Convention.

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

Further to its previous observation, the Committee notes the Government's repeated reference to section 57 of the Labour Code (Act No. 137 of 1981) for the application of Article 2 of the Convention. It also notes the Government's indication that a draft Labour Code is under preparation to amend provisions concerning collective bargaining and collective agreements. The Committee had previously noted that section 57 did not suffice for the application of Article 2.

The Committee once again points out that the requirement of the Convention under Article 2 is to ensure the insertion of a labour clause in public contracts so as to guarantee to the workers employed by the contractor, the prevailing labour conditions which have been established in any of the three ways there specified. The principal aim of a labour clause is to protect fair conditions of labour from the consequences of competitive practice of tendering for a public contract. The Committee recalls that section 57 of the Labour Code concerns the equality of treatment between a subcontractor's own workers and those of the employer. Therefore, it does not ensure the above-mentioned purpose of labour clauses in public contracts.

The Committee recalls that the Government once indicated in its earlier report certain actions taken by the Central Body for Management and Administration to circulate instructions that a clause should be included in all public contracts in order to guarantee to the workers concerned conditions of labour not less favourable than those of other workers performing the same work. The Committee notes with regret that no further information has been supplied in this regard.

Recalling that it has been commenting on the application of the Convention since its ratification by Egypt, the Committee again expresses the hope that the Government will take appropriate measures (whether by way of legislation or administrative instructions) to provide for the insertion of a labour clause in public contracts in accordance with the provisions of the Convention.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee has been pointing out in its comments for a number of years that the application of the general labour legislation to contracts of employment does not suffice for the application of Article 2 of the Convention. It notes that no measures have been taken to give effect to it.

The Government once indicated in its earlier reports certain actions to circulate instructions that a clause should be included in all public contracts in order to guarantee to the workers concerned conditions of labour not less favourable than those of other workers performing the same work. The Committee notes that no further information has been supplied in this regard.

In the last report, the Government again refers to section 57 of the Labour Code (No. 137 of 1981) and to section 1 of the Act No. 48 of 1978 concerning workers in the public sector. The Government considers that, because these provisions are applied, it is unnecessary to provide for a labour clause.

The Committee points out that items (a), (b) and (c) of Article 2, paragraph 1, do not stipulate the manner in which the Convention should be applied. The requirement of the Convention under this provision is to ensure to the workers employed by a contractor, the prevailing labour conditions which have been established in either of these three ways. And, as a method to attain this purpose, the Convention provides for the insertion of a labour clause in public contracts. The principal aim of a labour clause is to protect fair conditions of labour from the consequences of competitive practice of tendering for a public contract. The Committee recalls that section 57 of the Labour Code concerns the equality of treatment between a subcontractor's own workers and those of the employer. Section 1 of Act No. 48 of 1978 provides that the Labour Code remains applicable in all cases not covered by the Act. Neither of these provisions can ensure the above-mentioned purpose of labour clauses in public contracts. The Committee would again point out that the application of the general labour legislation is not enough on its own 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 would also draw the Government's attention to the provision of Article 2, paragraph 3, calling for consultation with organizations of employers and workers in determining the terms of clauses to be included. The Committee hopes that necessary measures will soon be taken to ensure the insertion of a labour clause in public contracts in accordance with the provisions of the Convention.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

Article 2 of the Convention. The Committee notes the Government's statement in its report that the public contracts comply with the legal rules set forth by the Egyptian legislature and which are provided in the Convention. It is obliged to point out, as it repeatedly did in its earlier comments, that the protection provided through labour clauses in public contracts cannot normally be ensured only through the application of the general labour standards.

The Committee recalls that the Government indicated in its earlier report that it had requested the Central Body for Management and Administration to supply it with the text of the instructions under which a clause has to be included in all public contracts guaranteeing to workers concerned conditions of work not less favourable than those of other workers performing the same work. The Committee once again requests the Government to supply a copy of these instructions and copies of contracts including this clause in compliance with these instructions.

Point V of the report form. The Committee also requests the Government to supply general information on the manner in which the Convention is applied.

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

Article 2 of the Convention. With reference to its previous comments, the Committee notes that the Government has requested the Central Body for Management and Administration to supply it with the text of the instructions under which a clause has to be included in all public contracts guaranteeing to workers engaged under those contracts conditions of work not less favourable than those of other workers performing the same work. The Committee also notes the explanations given by the Government concerning the content of certain public contracts and the application of the provisions of the Labour Code in the event of these contracts not providing the necessary guarantees for workers.

The Committee hopes that the Government will be able to supply a copy of these instructions in the near future and copies of contracts including this clause.

Point V of the report form. The Committee also requests the Government to supply general information on the manner in which the Convention is applied including, for instance, information on the number of workers covered by public contracts, extracts from the reports of the inspection services and information on the number and nature of the violations that have been reported.

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

The Committee notes with interest the information supplied by the Government indicating once again that the Central Body for Management and Administration has circulated to all state services instructions that a clause be included in all public contracts guaranteeing to workers engaged under those contracts conditions of work not less favourable than those of other workers performing the same work. The Government also indicates that a letter has been transmitted to the Minister of Administrative Development requesting him to issue instructions to all state services that the above clauses be included. The Committee welcomes the action taken by the Government in response to its comments concerning the application of the Convention and, in particular, of Article 2 of the Convention as set out above.

The Committee would be grateful if the Government would indicate in its next report whether contracts concluded by the state services have included the above clause. It also requests the Government to supply a copy of the instructions transmitted by the Central Body for Administration to the state services and copies of contracts which have included the above clause.