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

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Brazil (Ratification: 1965)

The Committee notes the observations of the General Union of Workers (UGT) and the National Confederation of Liberal Professions (CNPL), received on 1 September 2016 and 15 September 2016, respectively. The Committee requests the Government to provide its reply in this respect.

Articles 2 and 5 of the Convention. Inclusion of labour clauses in public contracts. Control measures and sanctions. In reply to the Committee’s previous comments, the Government reports that Act No. 8.666 of 1993 contains provisions which ensure that workers indirectly employed by the public administration to perform services, enjoy conditions of labour which are not less favourable than those established by collective agreement, arbitration award or national laws or regulations for identical or similar work performed by a worker of the same professional category, in a particular area. In this context, the Government indicates that Normative Instruction No. 2/2008, as amended, includes a series of provisions which reproduce the Convention in relation to public procurement. The Government reiterates that section 19(IX) requires that calls for tender must indicate, where applicable, the agreements or collective agreements governing the occupational groups involved in the performance of the service. The Government also refers, inter alia, to section 22 of the Normative Instruction, which provides that the submission of bids is subject to the requirement to comply with the provisions contained therein during the provision of the services by the bidder. The Government therefore indicates, on the basis of the above provisions, that bidders are required to comply with the conditions of work established by collective bargaining, including those provisions not explicitly included in contracts in the form of labour clauses. The Government also refers to the publication of regulations and booklets with a view to providing guidance on the methodology for procurement, supervision and the criteria to estimate the value of the contract, based on the requirement to comply with the labour clauses of the collective agreements for the professional categories involved in the performance of the service. In this respect the Government again provides in its report, among other regulatory texts, the “Guide to the supervision of contracts for services, focusing on labour” (Annex IV of Normative Instruction No. 2/2008, as amended) which establishes in point 1.4 that the wage may not be lower than that specified in the administrative contract and the collective agreements of the professional categories involved in the performance of the services. In relation to the penalties applicable in the event of failure to comply with the labour clauses in administrative contracts for the indirect provision of services, the Government emphasizes, by way of illustration, section 19(XXVI) and section 34-A of Normative Instruction No. 2/2008, as amended, which provide for the termination of the contract without prejudice to the imposition of financial penalties and exclusion from bidding for contracts. In this regard, the CNPL refers in its observations to several court decisions, in which it was ruled that, under Article 5 of the Convention, among other legal instruments, due to its failure to ensure appropriate inspection, the public administration was responsible for the payment of the workers’ remuneration by the contractor. However, the Government indicates that, under the provisions of section 19(XIX) of Normative Instruction No. 2/2008, as amended, the contractor is required to pay a guarantee which shall be held for three years following the expiry of the contract and which shall only be recovered following confirmation of the payment of all the liabilities included in the severance clauses in the contract. However, the Committee recalls that a labour clause has to constitute an integral part of the actual contract signed by the selected contractor (see General Survey on labour clauses in public contracts, 2008, paragraph 117). Lastly, the Committee notes the UGT’s acknowledgement of the efforts made by the Government in relation to the application of the Convention. However, the UGT indicates that additional efforts are needed in this respect and that the excessive outsourcing of public services has undermined the right to strike and the role of the workers’ organizations. The Committee encourages the Government to consider the possibility of adopting specific measures, such as legislative provisions, administrative instructions or circulars, with a view to ensuring the inclusion of adequate labour clauses in all the public contracts covered by the Convention. The Committee requests the Government to provide examples of contracts concluded by public authorities which contain the labour clauses prescribed by the “Guide to the supervision of contracts for services, focusing on labour”. The Committee also requests the Government to provide updated information on the application in practice of the Convention, including relevant court decisions, summaries of labour inspection reports and information on the number and nature of the violations reported.