Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

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 comments, the Committee requested the Government to continue providing information on any legislative changes that could have an impact, and on the application in practice of the Convention at the national level. The Committee notes the detailed information provided by the Government on developments in public procurement law since 2016, in particular the entry into force on 1 April 2019, of the Public Procurement Code, which brings together in a single legal corpus all rules governing public procurement contracts. It also notes the modernization of the general administrative clause specifications applicable to public procurement (CCAGs). There are now six CCAGs, approved by Orders of 30 March 2021 with simultaneous entry into force on 1 April 2021. However, with regard to the effective application of the fundamental requirements of the Convention, which consists in the inclusion of labour clauses of the type provided under Article 2 of the Convention, the Government indicates that the essential requirement provided under Article 2 of the Convention is met under the legislative provisions and regulations in force. In any event, these provisions require that any enterprise must comply with the labour law applicable where the contract is performed and allow a public authority, through application of the CCAG clauses, to terminate a public contract in case of violation of a worker’s labour rights. Nevertheless, the Committee draws the Government’s attention to paragraph 45 of its 2008 General Survey on labour clauses in public contracts, which specifies that “… the mere fact of the national legislation being applicable to all workers does not release the States which have ratified the Convention from the obligation to take the necessary steps to ensure that public contracts contain the labour clauses specified in Article 2 of the Convention”. The Committee also specified that, “as regards the content of labour clauses, the Convention provides that they should ensure to the workers concerned wages, hours of work and other conditions of labour which are not less favourable than those established by collective agreement, arbitration award, or national laws, for work of the same character in the trade or industry concerned in the district where the work is performed. Where the conditions of labour are not regulated by any of these means in the district where the contract is executed, reference must be made to the nearest appropriate district where such means are used, or the general level of conditions of work observed in the trade or industry in which the contractor is engaged by employers whose general circumstances are similar” (paragraph 21). Recalling that the Convention requires that labour clauses with very specific content be expressly included in public contracts effectively signed between the public authority and the selected entrepreneur, the Committee expects the Government to take all measures necessary to bring the national legislation into full conformity with the essential requirements of the Convention without further ado. The Committee requests the Government to keep the Office informed of progress made and reminds the Government that it can, if it so wishes, avail itself of the technical assistance of the ILO in this regard.