Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Norway (Ratification: 1996)

Article 2 of the Convention. Insertion of labour clauses in public contracts. The Committee refers to its previous comments, in which it noted with interest the adoption of Regulation No. 112/2008 of 8 February 2008 regarding wages and working conditions in public contracts, which gives effect to the Convention. It notes that the Surveillance Authority of the European Free Trade Association (EFTA) sent to the Norwegian Government, on 29 June 2011, a reasoned opinion in which it referred to the Rüffert decision delivered by the European Court of Justice (ECJ) on 3 April 2008. On the basis of this case law, the EFTA Surveillance Authority alleged that, by maintaining Regulation No. 112/2008 in force, Norway was in breach of the Agreement on the European Economic Area (EEA) and Directive No. 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, this directive being applicable to Norway as a State party to the EEA. The Committee notes that, in the reply that it sent to the EFTA Surveillance Authority on 15 November 2011, the Government emphasized the importance of Regulation No. 112/2008 in its plan to combat social dumping and recalled that this instrument gives effect to Convention No. 94. Nevertheless, in order to guarantee better compliance with EEA law, the Government introduced a number of amendments to the Regulation, which came into force on 15 November 2011. The Regulation, as amended, in essence provides that the minimum wage rates which must be respected are those resulting from collective agreements concluded at the national level. For the sectors covered by regulations extending the application of collective agreements, Regulation No. 112/2008 henceforth refers to the wages and working conditions derived from these regulations. There is no longer any reference to wages and working conditions prevailing in the region and the occupation concerned. The amended Regulation also specifies which types of wages and working conditions are to be applied, namely minimum rates of pay, working time and compensation for travel, board and lodging. Furthermore, the contracting authorities have to make it clear in the call for tenders and in the contract documents that these conditions are to be complied with. Finally, the Committee notes the report prepared by the company KPMG on social dumping in public contracts awarded by municipalities, a copy of which was attached to the Government’s report and which examines in particular Regulation No. 112/2008 and the procedure initiated by the EFTA Surveillance Authority against Norway, and which explicitly refers to the Convention.

The Committee also notes the comments made respectively by the Norwegian Confederation of Trade Unions (LO) and the Confederation of Norwegian Business and Industry (NHO), supported by the Enterprise Federation of Norway (VIRKE), which were attached to the Government’s report. The LO considers that the Government’s report on the application of the Convention is satisfactory. The NHO, however, considers that the amended Regulation does not apply to the private sector, as noted by the EFTA Surveillance Authority, and that it is therefore still not in compliance with the EEA Agreement. The NHO adds that including information on the contract clauses in the call for tenders and other documents is not sufficient, as the contracting authorities must also specify which collective agreement and which specific parts of the agreement shall apply.

The Committee notes the efforts made by the Government to continue to implement the Convention, despite the procedure initiated against it by the EFTA Surveillance Authority. While noting that it is not its role to comment on decisions of the ECJ on the compatibility of national legislation with Community law, the Committee recalls that the Rüffert decision, to which the EFTA Surveillance Authority referred in its reasoned opinion, concerned Germany, which has not ratified Convention No. 94. The situation of Norway is therefore different in legal terms as it is bound by the Convention.

The Committee understands that, in November 2011, the Office contacted the EFTA Surveillance Authority expressing its willingness to engage in discussions on the issues raised in the reasoned opinion relating to Norway’s commitments deriving from the ratification of the Convention, but that the EFTA Surveillance Authority has not up to now taken up this opportunity. The Committee also notes that, in its resolution of 25 October 2011 on modernization of European Union public procurement policy, the European Parliament called for an explicit statement in the directives on public procurement that they do not prevent any country from complying with ILO Convention No. 94, and it called on the European Commission to encourage all European Union Member States to comply with the Convention. Moreover, the Committee notes with interest the terms of Regulation No. 112/2008, as amended, which aims to improve the information provided to applicants for tenders and co-contractors on the labour clauses which have to be complied with when executing public contracts. With regard to the terms of the labour clauses, however, the Committee recalls that the collective agreements referred to in Article 2(1) of the Convention are those concluded between organizations of employers and workers representative respectively of substantial proportions of the employers and workers in the trade or industry concerned, and not only collective agreements declared to be of general application. In light of the above considerations, the Committee requests the Government to keep the Office informed of any new developments in the procedure initiated by the EFTA Surveillance Authority against Norway and to provide information on the manner in which Regulation No. 112/2008, as amended, gives effect to the Convention, particularly concerning compliance with the wage rates and other working conditions set out in the collective agreements which have not been declared of general application.