Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Malaysia - Sarawak (Ratification: 1964)

Article 2 of the Convention. Insertion of labour clauses in public contracts. In its previous comments, initially made in 2013, the Committee requested the Government to indicate the measures it intended to take to bring its national legislation into full conformity with the requirements of the Convention. The Government reports that the provisions of the Convention are given effect through the general terms of contracts issued by the Public Works Department, which is the main implementer of public projects in Sarawak. It adds that the contracts specify, among other things, the engagement of workers and labour, the removal of workers and other personnel, days and hours of work and insurance for workers. The Government further indicates that requirements governing the payment of wages, hours of work and other working conditions are provided under the Labour Ordinance of Sarawak (Amendment) Act 2005. The Committee notes that the Labour Ordinance does not address public contracts and that the Government does not provide specific information regarding the manner in which Article 2 of the Convention is given effect. In this respect, the Committee draws the Government’s attention to paragraph 45 of the 2008 General Survey on labour clauses in public contracts, in which it pointed out that the essential purpose of the Convention is to ensure that workers employed under public contracts shall enjoy the same conditions as workers whose conditions of employment are fixed not only by national legislation but also by collective agreements or arbitration awards, and that in many cases the provisions of the national legislation respecting wages, hours of work and other conditions of employment provide merely for minimum standards which may be exceeded by collective agreements. Therefore, the Committee emphasized 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. Recalling that it has been commenting for a number of years on the Government’s failure to fully implement the core requirements of the Convention, the Committee reiterates its request that the Government clarify whether the public procurement legislation currently in force addresses in any manner the question of labour clauses in public contract. The Committee urges the Government to take all necessary measures without delay to bring its national legislation into full conformity with Article 2 of the Convention. It further requests the Government to keep the Office informed of progress made and recalls that the Government may avail itself of the technical assistance of the ILO in this regard, should it wish to do so.

Application of the Convention. Part V of the report form. The Committee requests the Government to provide a detailed report with full particulars on each of the provisions of the Convention, to enable the Office to assess the extent to which the provisions of the Convention are applied in law and practice, and to transmit copies of any relevant bidding documents currently in use.