Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - France (Ratification: 1951)

Article 2 of the Convention. Inclusion of labour clauses in public contracts. In its previous comment, the Committee requested the Government to keep the Office informed of any developments, particularly in terms of legislation, with regard to the application of the Convention at the national level. The Committee notes that the Government has adopted several legislative texts to transpose European Directives on public procurement (European Directives 2014/24/EU and 2014/25/EU) and concession contracts (European Directive 2014/23/EU). The Government indicates in its report that Ordinances Nos 2015-899 of 23 July 2015 on public procurement and 2016-65 of 29 January 2016 on concession contracts, and their implementing decrees, constitute progress towards compliance with labour standards by holders of public contracts and their subcontractors. The Government adds, however, that these new provisions are not sufficient to give full effect to the obligations of the Convention, for the same reasons as those indicated in its previous reports. It points out that it is impossible to amend these rules to bring them into conformity with the obligations of the Convention, unless measures are adopted that are contrary to the law of the European Union. For example, the new legislative texts did not reintroduce measures that would require the formal insertion of labour clauses in public contracts. The Government specifies, however, that French domestic positive law provides for similar obligations offering sufficient protection which is comparable to that established by the Convention. In its General Survey of 2008 concerning labour clauses (public contracts), paragraph 40, the Committee recalled that the essential purpose of the Convention and its Recommendation is to ensure that the workers employed by a contractor and paid indirectly out of public funds enjoy wages and conditions of labour which are at least as satisfactory as the wages and conditions of labour normally established for the type of work concerned, whether they are established by collective agreement or otherwise, in the locality where the work is done. The Convention requires that this be done through the insertion of appropriate labour clauses in public contracts. This has the effect of setting as minimum conditions for the contract standards that are already established within the locality. Labour costs are thus removed from competition between bidders. The further aim is that local standards higher than those of general application should be applied, where they exist. In its previous comment, the Committee emphasized that Article 2(1)(a) of the Convention refers to all the collective agreements concluded between employers’ and workers’ organizations representing a substantial proportion of employers and workers in the trade or industry concerned, and not only collective agreements that have been extended. The Government indicates in this regard that the compliance with collective agreements that have not been extended cannot be imposed on all public contract holders and subcontractors. Only the implementation of collective agreements declared to be of general application, following the adoption of an extension order, can be required of subcontractors that are not domiciled in France. Furthermore, the Government recalls that the Court of Justice of the European Union has found that national legislation cannot require public procurement contractors and their subcontractors to respect the provisions of collective agreements when they have not been declared of general application. The Committee once again recalls that the fundamental requirement of Article 2 of the Convention is that public contracts to which the Convention applies must include clauses ensuring to the workers concerned wages, hours of work and other conditions of labour which are not less favourable than those established for work of the same character in the trade or industry concerned in the district where the work is carried out. The Convention provides that these clauses may be established by collective agreement, arbitration award or national legislation. Article 18(2) of Directive 2014/24/EU provides, with regard to the principles of procurement, that “Member States shall take appropriate measures to ensure that in the performance of public contracts economic operators comply with applicable obligations in the fields of environmental, social and labour law established by Union law, national law, collective agreements or by the international environmental, social and labour law provisions listed in Annex X”. The Committee observes that the eight fundamental ILO Conventions are listed in the Annex. In box 5 of its 2008 General Survey, the Committee emphasized that the ILO Declaration of 1998 on Fundamental Principles and Rights at Work and the Convention proceed along parallel lines and emphasized the complementarity of the two sets of principles and the importance of the Convention as a possible mechanism for promoting core labour standards. Furthermore, the Committee observes that the Court of Justice of the European Union found in 2015 that the European Directives do not prevent the exclusion from public procurement of bidders who do not undertake to pay minimum wages to the workers concerned. Moreover, the Committee observes that, as noted by the European Committee of the Regions in Opinion No. 2016/C 051/04 on standards of remuneration in employment in the European Union, an interpretation of legislative texts transposing European Directives allowing for the unequal treatment of bidders could lead to social dumping. The Committee once again requests the Government to continue providing more detailed information on any legislative changes that could have an impact and the application in practice of the Convention at the national level. It also requests the Government to provide a copy of any court decision or official publication involving questions of principle related to the application of the Convention.