Observation (CEACR) - adopted 2024, published 113rd ILC session (2025)

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Jamaica (Ratification: 1962)

Article 2 of the Convention. Insertion of labour clauses in public contracts. For many years, the Committee has been requesting the Government to take all necessary measures without further delay to bring its national legislation into full conformity with the core requirements of the Convention. The Committee notes from the Government’s report that, since 1 April 2019, all public procurement proceedings must be conducted in accordance with the Public Procurement Act 2015, along with the Public Procurement Regulations 2018 and the Public Procurement Reconsideration and Review Regulations 2018, and that solicitations of all bids must be done by use of Standard Bidding Documents (SBD) issued by the Ministry of Finance and Public Service (MOFPS). The Government reports that SBDs, specifically section 6 of Annex 8 (Procurement of Works), now incorporate the clauses contained in Article 2 of the Convention. The report also indicates that, in June 2023, the MOFPS convened workshops with the aim of reviewing and updating the SBDs. The Committee notes with interest that, pursuant to this section, a contractor is obliged to observe labour clauses on wages, working hours and other conditions of labour, and comply with labour laws applicable to the workers concerned. It notes, in particular, that wages and other labour conditions shall not be lower than those established for the trade or industry where the work is carried out. Nonetheless, the Committee wishes to draw the Government’s attention to the fact that the Convention also requires that the conditions to be ensured by labour clauses in public contracts need to be aligned with the highest conditions fixed either by national law or by collective agreements or arbitration awards, in view of the fact that, in many cases, minimum standards set by national legislation regarding wages and conditions of work may be exceeded by collective agreements or otherwise. The Committee also wishes to recall that the Convention requires labour clauses to be expressly included in the actual contract that is finally signed by the public authority and the selected contractor. In view of the above, the Committee asks the Governmentto provide information on:(i) the manner in which it guarantees that the labour conditions for employees employed in the framework of public contracts are not less favourable than the highest conditions applicable in the same industry and district, considering that the Convention refers to three potential sources, that is collective agreements, arbitration awards, or national laws or regulations; (ii) whether the employers’ and workers’ organizations concerned have been consulted on the terms of the labour clauses under section 6 of Annex 8 (Procurement of Works) of Standard Procurement Documents prior to their inclusion therein, as required by Article 2(3) of the Convention; (iii) whether Standard Procurement Documents include labour clauses related to procurement of goods and services, as required by Article 2(1) of the Convention; and (iv)the measures taken to ensure that the core requirements of Article 2 of the Convention are fully included in all public contracts.

Application in practice. Part V of the report form. The Committee notes the Government’s indication that, following the 2022 Supreme Court judgment in National Housing Trust v. Marksman Limited and Robert Epstein, which recognized security guards as having the status of employees, all procurement contracts for security guard services must be negotiated and amended accordingly. The Committee notes that, pursuant to the MOFPS Circular 4, effective 1 April 2023, and its accompanying guidance note (GN 1/23), amendments to procurement contracts shall provide security guards with remuneration and other conditions of work that are not less favourable than those applicable to employees. The Committee observes in this respect that the sole requirement that security guards need to be treated as employees does not suffice to give effect to Article 2 of the Convention. It draws the Government’s attention to the fact that, under public procurement contracts, wages and labour conditions for security guards shall not be less favourable than the highest minimum standards established locally by law, arbitration or collective agreement, for work of the same character in the trade or industry concerned in the district where the work is carried on. The Committee therefore requests the Government to provide detailed up-to-date information on how the application of the Convention is ensured with respect to public contracts concluded between a security company and a public authority for the supply of security services, as per Article 1(1) of the Convention. The Committee also requests the Government to provide information on the practical application of the Convention, in particular, copies of public contracts in which labour clauses have been inserted in conformity with the requirements of Article 2 of the Convention, as well as extracts from inspection reports of the competent services showing the number and nature of violations and the sanctions imposed.