Observation (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention (n° 94) sur les clauses de travail (contrats publics), 1949 - Maroc (Ratification: 1956)

The Committee notes the observations made by the National Union of Moroccan Workers (UNTM), received on 29 August 2019, and the Government’s reply in this regard, received in 2019.

Article 2 of the Convention. Inclusion of labour clauses in public contracts. In its previous comments, the Committee requested the Government to respond to the observations made by the Moroccan Labour Union (UMT), as well as those of the Democratic Confederation of Labour (CDT), received on 17 August 2017. The Committee further requested the Government to take all necessary measures without further delay to bring its national legislation into conformity with the Convention. In its report, the Government reiterates its previous comments concerning the legislation in force, namely, the two decrees No. 2.12.349 of 20 March 2013 and No. 2.14.394 of 13 May 2016 on governing public contracts and the provisions of article 519 of the Labour Code. The Committee notes, however, that these texts do not contain any reference concerning the insertion of a labour clause in public procurement contracts. It further notes that, while recognizing the efforts made by the Government to make public procurement more transparent, the UNTM observes that the law on public procurement does not provide adequate guarantees for the protection of employees, whether during or after the execution of the transaction, nor do they include provisions relating to the insertion of a social clause in public procurement contracts. In addition, the UNTM maintains that there is an incompatibility between the provisions of the Labour Code and the law on public procurement. The Committee notes the Government’s two responses to the observations of the trade union centres concerning the report on the implementation of Convention No. 94, received in 2017 (UMT and CDT) and 2019 (UMT), respectively. The Committee notes in particular that the Government recognizes that there is a difference of perspective with regard to the interpretation of national regulatory provisions and their conformity with the Convention. In this regard, the Government requests ILO technical assistance in order to bring its law and practice into line with the requirements of the Convention. In this context, the Committee wishes to recall paragraph 176 of its 2008 General Survey on labour clauses in public contracts which indicates that all the provisions of the Convention are articulated around and directly linked to the “core requirement” of Article 2, paragraph 1, the insertion of labour clauses ensuring favourable wages and other working conditions to the workers engaged in the execution of public contracts. In addition, in paragraph 117 of the same General Survey, the Committee observes that a labour clause must constitute an integral part of the actual contract signed by the selected contractor and that the insertion of labour clauses in tender documents, such as the general conditions or specifications, even though required under the terms of Article 2, paragraph 4, of the Convention, does not suffice to give effect to the “basic requirement” of the Convention set out in Article 2, paragraph 1. The Committee hopes that the Office will be able to provide the requested technical assistance in the near future. The Committee urges the Government to take all appropriate measures without further delay (legislative, administrative or others) for the inclusion in all public contracts to which the Convention is applicable of labour clauses consistent with the requirements of Article 2 of the Convention and for the enforcement of such clauses in the manner prescribed by Articles 4 and 5 of the Convention. The Committee further requests the Government to provide updated information on progress achieved in this respect.