Observation (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 94) sur les clauses de travail (contrats publics), 1949 - Espagne (Ratification: 1971)

Article 2 of the Convention. Inclusion of labour clauses in public contracts. The Committee takes note of the observations of the Trade Union Confederation of Workers’ Committees (CC.OO.) set out in a communication of 13 August 2012. It notes that according to the CC.OO., Spanish legislation does not ensure implementation of the essential requirement set in the Convention, namely the inclusion of labour clauses in public contracts, in accordance with Article 2(1). The Committee notes that the CC.OO. refers to section 84(2) of the Workers’ Statute as amended by Royal Legislative Decree No. 3/2012 of 10 February 2012 to establish urgent measures for the reform of the labour market and by the eponymous Act of 6 July 2012, No. 3/2012. According to this provision, enterprise agreements take priority over sectoral collective agreements applying at national, autonomous community or a lower level, in respect of the amount of the wage, the payment of overtime, special remuneration for shift work, and working time and its distribution. The CC.OO. considers that application of the Convention is thus not guaranteed since an enterprise may, provided it meets the statutory minimum standards, establish conditions of work which are lower than those set in sectoral collective agreements and thus fall far short of the Convention’s requirement that they be at least as favourable as those established for work of the same character in the trade or industry concerned in the same district.

In its reply, received on 20 November 2012, the Government expresses the view that the new regulations on collective bargaining deriving from the labour law reform of 2012 do not impact on the application of Article 2(1) of the Convention. Firstly, according to the Government, the primacy of enterprise agreements over sectoral agreements does not affect at all the existence of sectoral agreements. Secondly, the Convention offers three regulatory benchmarks for evaluating the working conditions of persons employed by a contractor who has been awarded a public contract: a collective agreement covering a substantial number of employers and workers, an arbitration award, and national laws. The primacy attributed to enterprise agreements affects, therefore, only one of these benchmarks. The Government also indicates that all contractors, with respect to their employees, have to comply with obligations laid down by the labour legislation. This obligation is set out in most of the administrative specifications approved by the competent organs of the State, autonomous communities and local entities. Moreover, the Government refers to Royal Legislative Decree No. 3/2011 of 14 November 2011 regarding the consolidated text of the Public Contracts Act, section 60 of which prohibits persons who have been convicted for offences against workers’ rights or who have been sanctioned for very serious violations in social matters to be parties to a public contract. The Government concludes that there is no special social legislation for enterprises which conclude contracts with the public administration, as the general legislation applies to them in all matters.

The Committee notes the adoption of Royal Legislative Decree No. 3/2011 which repeals in particular Act No. 30/2007 of 30 October 2007 on public contracts, to which the Committee referred in its previous comment. It observes, however, that this text, just like the previous legislation, does not give effect to the main provisions of the Convention, and, in particular, it does not require the insertion of labour clauses of the type prescribed by Article 2(1) of the Convention in all public contracts to which it applies. In fact, contrary to what the Government maintains, this provision does not offer an option to select among three different ways of regulating the working conditions for its implementation. In reality, what the Convention requires is that enterprises must provide workers engaged in the execution of public contracts with wages and other conditions of work which are at least as favourable as the highest standards established in the same region by collective agreement, arbitration award or legislation. When, as in the case of Spain, labour legislation only fixes minimum standards that are improved through collective bargaining, the application of the general labour legislation to the conditions of execution of public contracts is not sufficient to ensure the application of the Convention.

Furthermore, the collective agreements referred to in Article 2(1) of the Convention are those established for work of the same character in the district where work is carried on for the execution of the public contract, and applied to a substantial proportion of the employers and workers in the trade or industry concerned. In this regard, the Committee notes that under section 84(2) of the Workers’ statute, as amended by Royal Legislative Decree No. 3/2012 and by Act No. 3/2012 of 6 July 2012, enterprise agreements may derogate from sectoral agreements with respect to, among others, wages and working time. The collective bargaining reform adopted in 2012 does not appear, therefore, to ensure the implementation of the Convention, in so far as an enterprise party to a public contract may conclude an enterprise agreement providing for less favourable working conditions than those fixed under collective agreements applicable to a substantial proportion of employers and workers in the sector of economic activity concerned.

The Committee also notes that under section 73 of Royal Legislative Decree No. 3/2011, contractors may, by means of a declaration before a judge or an administrative certificate, prove that they are not banned from being parties to a public contract by virtue of section 60 of the same Decree. It observes that this provision, even though it may be a useful tool to fight against infringements of the labour legislation, is not sufficient to ensure full conformity with the Convention. Firstly, as indicated above, labour clauses seek to ensure compliance not only with the labour legislation, but also with applicable collective agreements and arbitration awards. In addition, as the Committee has pointed out in its 2008 General Survey on labour clauses in public contracts (paragraph 118), the insertion of labour clauses in public contracts under the Convention goes beyond the aims of simple certification, as its purpose is to eliminate the negative effects of competitive tendering on the workers’ labour conditions. The mere indication that the contractor concerned has no record of labour law violation in previously completed works is not sufficient to meet its requirements. In fact, certification offers some proof about tenderers’ past performance and law-abiding conduct but carries no binding commitment with regard to prospective operations as labour clauses do.

In light of the foregoing, the Committee is bound to conclude that the national legislation does not give effect to Article 2(1) of the Convention, and urges the Government to take without delay the necessary measures in order to bring the national legislation into conformity with the Convention. It requests the Government to keep the Office informed of any decision it intends to take in this regard.

[The Government is asked to reply in detail to the present comments in 2013.]