Solicitud directa (CEACR) - Adopción: 2015, Publicación: 105ª reunión CIT (2016)

Convenio sobre las cláusulas de trabajo (contratos celebrados por las autoridades públicas), 1949 (núm. 94) - República Árabe Siria (Ratificación : 1957)

Article 2 of the Convention. Inclusion of labour clauses in public contracts. The Committee notes that the Government’s report refers once again to section 29(b) of Legislative Decree No. 450 of 9 December 2004 promulgating the general conditions applicable within the framework of the uniform system of contracts for public bodies. Section 29 of the above Decree provides that the conditions of recruitment for workers engaged in the execution of public contracts must be consistent with the provisions of the Labour Code and Convention No. 94. The Government’s report further indicates the forms and types of employment contracts applicable between employers and workers and provides a copy of a model employment contract.

In this regard, the Committee notes that despite the detailed explanations provided in its previous comments regarding the scope and purpose of the Convention as well as the steps required for its practical implementation, the Government continues to refer to legislative texts which have little relevance to the Convention as they do not provide for the type of labour clauses prescribed in Article 2 of the Convention. Particularly, the obligation provided for under Article 2 of the Convention is directed at the State and not at contractors, and the Government accordingly has to ensure that the national legislation provides that public contracts will contain labour clauses as prescribed by this Article. Therefore, the Convention provides that a labour clause be inserted in a public contract concluded between the public authorities and an enterprise that won a bid, and not in the employment contract between an employer and a worker. The idea behind the adoption of an ILO standard on labour clauses in public contracts is that public authorities, in contracting for the execution of construction works, or for the supply of goods and services, should concern themselves with the working conditions under which the operations in question are carried out. The concern stems from the fact that government contracts are usually awarded to the lowest bidder and that contractors may be tempted, in view of the competition involved, to save on labour costs. In such contexts, it is generally recognized that governments should not be seen as entering into contracts involving the employment of workers under conditions below a certain level of social protection, but, on the contrary, as setting an example by acting as model employers. In other words, the objective of a labour clause is first to prevent the use of labour costs as an element of competition among bidders for public contracts, by requiring that all bidders respect as a minimum certain locally established standards. Second, to ensure that public contracts do not exert a downward pressure on wages and working conditions, by placing a standard clause in the public contract to the effect that workers employed to execute the contract shall receive wages and shall enjoy working conditions that are not less favourable than those established for work in the same area carried by a collective agreement, an arbitration award or national laws and regulations. It is precisely because employment and working conditions set out in general labour legislation are often improved through collective bargaining that the Committee has consistently taken the view that the mere fact of the national legislation being applicable to all workers does not release the government concerned from its obligation to provide for the insertion of labour clauses in all public contracts in accordance with Article 2(1) and (2) of the Convention. Recalling that the Convention does not necessarily require the adoption of new legislation but may also be applied through administrative instructions or circulars, the Committee once again expresses the hope that the Government will take prompt action to ensure the effective implementation of the Convention both in law and in practice.