Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Mauritius (Ratification: 1969)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee examines the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

Article 1(3) of the Convention. Scope of application. Subcontractors. In its previous comments, the Committee noted that the provisions of section 46(5) of the Public Procurement Act, 2006, on the insertion of labour clauses, do not apply to subcontractors or assignees. Instead, it was left to the main contractor to ensure compliance and to submit evidence of this to the public procurement authority. Section 46(8) of the 2006 Act does not, however, place any legal responsibility on the main contractor to ensure compliance on the part of a subcontractor or to produce evidence of such compliance. Therefore, in its 2017 direct request, the Committee once again drew the Government’s attention to the 2008 General Survey on labour clauses in public contracts, paragraphs 75–81, particularly paragraph 75, which points out that Article 1(3) of the Convention requires the competent authorities to take appropriate measures to ensure that labour clauses of the type required by the Convention are applied to work carried out by subcontractors or assignees of contracts. The Committee therefore once again requested that the Government take, without further delay, all necessary measures to ensure that labour clauses in public contracts apply fully to work carried out by subcontractors and assignees. The Committee notes that the Government refers in its supplementary report to the adoption of the Workers’ Rights Act, Act No. 20 of 2019 (WRA), which repealed and replaced the Employment Rights Act 2008 (ERiA) as of 24 October 2019. The Committee notes with interest that section 29(1) of the WRA establishes the joint liability of the job contractor and the employer (principal) with regard to payment of the remuneration of the worker and the conditions of employment of the worker, including his or her safety, health and welfare. Furthermore, section 29(3) of the WRA provides that “no person who is jointly liable with a job contractor under subsection (1) may set up as a defence to a claim from a worker seeking to recover remuneration the fact that he has already paid to the job contractor any sum due under the arrangement with the job contractor.” In addition, section 29(4) of the WRA provides that “every worker employed by a job contractor shall, for securing payment of his remuneration, have the same privileges, in respect of the property of the principal, as he would have had if he had been directly employed by the principal without the intervention of the job contractor.”

The Committee notes the Government’s indication in its 2019 report that the standard bidding document for “security services, cleaning services and those for street cleaning, refuse collection and disposal services” includes provisions that govern subcontracting. The Government adds that any subcontracting component proposed by the main contractor is subject to the employer’s (the public authority’s) approval. Therefore, the conditions governing the subcontractor with respect to labour clauses will be the same as those governing the main contractor. Notwithstanding the Government’s indication, the Committee observes that the standard bidding document (SCS/RFQ-GCC18/10-13) (as revised on 18 October 2013) does not contain any clauses providing for the contractor’s responsibility to ensure observance of the terms of the labour clauses by a subcontractor. The Committee requests the Government to provide detailed information on the manner in which section 29 of the Workers’ Rights Act, Act No. 20 of 2019 (WRA) is applied in practice to public employment contracts, as well as to provide the Office with copies of standard bidding documents currently in use.

Article 2. Insertion of labour clauses. In its previous comments, the Committee noted the Government’s indication that the standard bidding documents for the procurement of goods were based on World Bank guidelines which did not contain the type of labour clauses required by the Convention. In this regard, the Committee urged the Government to take measures to ensure full implementation with the requirements of the Convention. The Government indicates that the standard bidding documents for procurement of goods do not contain labour clauses of the type required by the Convention, as the goods in question are imported and are not manufactured locally. Hence, the workers involved in the manufacturing process of these goods are outside of Mauritius and its jurisdiction. The Government adds that these workers are instead covered by legislation applicable in their home country. While the Committee notes the Government’s explanation, it wishes to stress that the Convention applies to all public contracts, whether for works (for example construction of a new highway, extension of an airport terminal), goods (for example the purchase of new uniforms for customs officers or procurement of computer hardware for a ministry) or services (for example cleaning or IT services). In this respect, the Committee draws the Government’s attention to the ILO’s 2008 Practical Guide on Convention No. 94 and Recommendation No. 84, which provides guidance in relation to the requirements of the Convention, with the aim of ultimately improving their application in law and practice (page 7). For instance, with regard to the application of the Convention to cross-border public procurement contracts, the Practical Guide points out that, while work done outside the contracting State is not covered by the provisions of the Convention, this does not mean that all contracts with a transnational dimension are excluded from its scope. Therefore, in the case of public contracts involving the use of foreign workers brought into the country for purposes of the contract, the requirements of the Convention in relation to labour clauses would fully apply and the workers would enjoy the protection of the required clauses (pages 18 and 19). The Committee once again requests the Government to take the necessary measures to ensure that the scope of application of the Public Procurement Act, 2006, are amended to cover all types of public contracts envisaged by the Convention.

Article 5(1). Adequate sanctions. In its previous comments, the Committee requested the Government to indicate the measures taken or contemplated to ensure the application of adequate penalties for failure to respect the provisions of labour clauses contained in public contracts. The Government refers to section 45(6) of the Public Procurement Act 2006, which establishes that “no contractor shall be entitled to any payment in respect of work performed in the execution of the procurement contract unless he has, together with his claim for payment, filed a certificate stating: (a) the rates of remuneration and hours of work of the various categories of workers employed in the execution of the contracts; (b) whether any remuneration payable in respect of work done is due; and (c) any other information that the public body administering the procurement contract may require to satisfy himself that this Act has been complied with.” In addition, section 46(7) provides that, in the event that remuneration is still owed to a worker employed on a public contract, the public body administering the contract “may, unless the remuneration is paid sooner by the contractor, arrange for the payment of the remuneration out of the money payable under the procurement contract.” The Committee requests the Government to provide detailed updated information on the manner in which section 46(7) of the Public Procurement Act of 2006 is given effect in practice, as well as the manner in which effect is given to Article 5(1) of the Convention more generally.

Application of the Convention in practice. While noting that the Government does not provide information on the application of the Convention in practice, the Committee once again expresses the hope that the Government will make every effort to compile and communicate detailed updated information, including statistical data disaggregated by age and sex, regarding the application of the provisions of the Convention in practice.