Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Brazil (Ratification: 1965)

With reference to its previous observations, the Committee notes the Government’s detailed report and attached documents, including Decree No. 2271/97 and Directive (Instrução Normativa) IN/Mare No. 18/97 relating to procedures preparatory to tendering and subcontracted services.

The Committee has been drawing the Government’s attention for some years to Article 2(1) of the Convention under which the labour clauses in public contracts should ensure to the workers concerned not only wages but also hours of work and other labour conditions not less favourable than those established for similar work, in the trade or industry concerned, in the same district, whether by collective agreements or by arbitration awards or by national legislation. In its report, the Government states that labour legislation is of general application and mandatory and therefore the inclusion of labour clauses directly related to hours of work and labour conditions other than wages is superfluous.

The Committee wishes to emphasize that the insertion of labour clauses covering all the employment conditions of persons engaged in the execution of public contracts constitutes the basic requirement of the Convention and the best guarantee that such workers enjoy conditions as favourable as those which may have been collectively negotiated and obtained by workers employed in similar work in the same district. It should therefore be clear that where collective agreements grant additional benefits or provide for higher standards than those established under labour laws in general, or where collective agreements are not generally binding, a mere reference to the relevant provisions of the national legislation would be insufficient for the purpose of giving effect to the Convention. The Committee hopes that the Government will soon take steps to bring its legislation into full conformity with the requirements of the Convention in this regard. It also reiterates its suggestion that in addressing these matters, the Government might wish to have recourse to the Office’s technical advice.

Moreover, the Committee once again requests the Government to provide in accordance with Article 6 of the Convention and Part V of the report form all available information on the application of the Convention in practice, including for instance copies of public contracts containing labour clauses, official reports or statistics bearing on the enforcement of relevant legislation (e.g. number and nature of infringements observed and penalties imposed) and any other particulars regarding the practical fulfilment of the conditions prescribed by the Convention.