Demande directe (CEACR) - adoptée 2017, publiée 107ème session CIT (2018)

Convention (n° 94) sur les clauses de travail (contrats publics), 1949 - Belgique (Ratification: 1952)

Articles 1 and 2 of the Convention. Labour clauses in public contracts. In its previous comment, the Committee noted that section 42 of the Act of 15 June 2006 on public procurement and certain contracts for works, supplies and services imposes the same obligations on all public works contractors as those laid down in section 12 of the Act of 1993, which gave full effect to Article 2 of the Convention regarding public works contracts. The Committee therefore requested the Government to indicate whether similar provisions are applicable to public contracts for supplies and services, which are also covered by Article 1(1)(c) of the Convention. The Government reports that there are no similar provisions applicable to public contracts for supplies. The Committee notes that the Circular of 16 May 2014 provided by the Government, “Incorporation of sustainable development, including social clauses and measures to benefit small and medium-sized enterprises, in the framework of public procurement contracts published by federal contracting authorities”, provides in section 4(1)(b)(2) that the federal contracting authorities shall examine the possibility of integrating social considerations when awarding contracts, including taking into account acceptable wages in conformity with Convention No. 94, particularly in the application of the “price” selection criterion and the monitoring of abnormal prices. Taking into account the non-binding nature of this provision, the Committee requests the Government to provide information on the measures taken or envisaged to give full effect to Article 1(1)(c)(ii) and (iii) of the Convention regarding public contracts for supplies and services, and to keep the Office informed of any developments in this respect. The Committee also requests the Government to provide information on the application in practice of section 25 of the Act of 2006.

Article 4. Obligation to inform the workers. The Government indicates that workers’ information is covered by section 78 of the Royal Order of 14 January 2013. However, it clarifies that section 78 does not apply to public contracts for supplies and services, and specifies that the Act of 8 April 1965 establishing labour regulations, particularly section 15 on publicizing labour regulations, tends to apply to public contracts for supplies and services. The Committee requests the Government to indicate the manner in which it ensures that information is provided to workers employed in the execution of other categories of public contracts to which the Convention applies, and to provide a copy of the notice used to inform workers of their applicable wage and other conditions of work, in accordance with Article 4(a)(iii) of the Convention.

Article 5(1). Penalties. The Committee noted in its previous comments that, under section 48(4) of the General Terms and Conditions, the contracting authority automatically withholds from the sums due to the contractor the amount of wages and/or social security contributions which are unpaid in respect of the workers employed at the work site and makes direct payment of the outstanding amounts. The Committee requested the Government to indicate whether identical measures to those established under section 48(4) are also applicable in the context of public contracts for supplies and services. The Government indicates that section 88 of the Royal Order of 14 January 2013, which reproduces the content of section 48(4) of the General Terms and Conditions, is only applicable to labour contracts. The Committee notes that the Act of 12 April 1965 on the protection of workers’ remuneration also includes provisions on joint liability for wage arrears (section 35(1) and (6)). Nevertheless, these provisions are only applicable to labour and service contracts, and not to contracts for supplies. Moreover, the scope of application of the Act is limited to clearly defined sectors which are considered susceptible to fraud. As section 17(2) of the Royal Order of 8 January 1996 allows the exclusion of a contractor from participation in a public tender, especially if the contractor has not fulfilled the respective obligations concerning social security contributions, the Committee requested the Government to provide further information on the penalties that apply where the contractor is not in compliance with the labour clauses applicable in respect of wages and other conditions of work for the workers concerned. The Committee notes the Government’s indication that section 17(2) allows the exclusion of a contractor from participation in a public tender, for example where the contractor has committed serious professional misconduct. The Government adds that, although it is not explicitly indicated in the Royal Order of 15 July 2011, which reiterates the content of section 17 referred to above, non-compliance with the obligation to pay workers’ wages must be considered as serious misconduct which may lead to the exclusion of a tenderer or candidate. The Committee requests the Government to provide information on the measures taken or envisaged to give full effect to Article 5(1) of the Convention and to keep the Office informed of any development in this respect. It also requests the Government to provide copies of decisions to exclude an entrepreneur from participating in a public contract due to non-compliance with the obligation to pay workers’ wages.

Application of the Convention in practice. The Government indicates that, during the period 2011–16, the regional directorates of the Occupational Welfare Department did not organize campaigns intended for public bodies. Regarding the results of inspections carried out, the Government indicates that the registration system does not allow for inspections carried out on public bodies to be disaggregated from all the inspections undertaken. The Committee requests the Government to provide general information on the manner in which the Convention is applied, including the number of violations reported and the penalties imposed.