Solicitud directa (CEACR) - Adopción: 2012, Publicación: 102ª reunión CIT (2013)

Convenio sobre las cláusulas de trabajo (contratos celebrados por las autoridades públicas), 1949 (núm. 94) - Macedonia del Norte (Ratificación : 2010)

Articles 1 and 2 of the Convention. Insertion of labour clauses in public contracts. The Committee notes the Government’s reference to the Public Procurement Act (Official Gazette No. 136/07), as amended, and the indication that the Public Procurement Act is fully aligned with relevant European Union legislation. The Committee notes, however, that the Government’s report is silent on the specific provisions implementing the basic requirements of this Convention. The Committee recalls that when submitting the first report following the entry into force of a ratified Convention, a government is expected to collect and communicate to the ILO full particulars on each of the provisions of the Convention and on each of the questions contained in the report form to enable the Committee to assess the extent to which the provisions of the Convention are given effect both in law and in practice.

Under the circumstances, the Committee considers it useful to draw the Government’s attention to the core requirements of the Convention which may be summarized as follows: (i) the insertion in all public contracts falling within the scope of Article 1 of the Convention of labour clauses – drafted after consultation with employers’ and workers’ organizations – ensuring to the workers concerned wages and other working conditions not less favourable than those established for work of the same character in the same area by collective agreement, arbitration award or national laws or regulations; (ii) the notification of the terms of the clauses, by advertising specifications or otherwise; (iii) the posting of notices in conspicuous places at the workplaces with a view to informing the workers of their conditions of work; and (iv) the effective enforcement through a system of inspection and adequate sanctions, including the withholding of contracts and the withholding of payments for failure to observe and apply the provisions of labour clauses.

In this connection, the Committee wishes to refer to its General Survey of 2008 concerning labour clauses in public contracts (paragraphs 2 and 40), in which it indicated that the idea behind the adoption of minimum labour standards in the field of public procurement is that public authorities should concern themselves with the working conditions under which the operations in question are carried out. The concern stems from the fact that government contracts are usually awarded to the lowest bidder and that contractors may be tempted, in view of the competition involved, to economize on labour costs. The Committee also indicated that the insertion of appropriate labour clauses has the effect of setting minimum conditions for the contract standards that are already established within the locality, and that labour costs are thus removed from competition between bidders.

The Committee notes that under section 2 of the Public Procurement Act, this legislation seeks to promote fair competition in public procurement operations, equal treatment and non-discrimination among economic operators, transparency and integrity in awarding public contracts, and rational and efficient utilization of funds in contract award procedures. The Committee stresses that under this Convention, the Government is also under the obligation to ensure that 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, which implies that local standards higher than those of general application should be applied, where they exist. The Committee accordingly requests the Government to submit a detailed report on the state of law and practice and to transmit copies of any relevant bidding documents, which may have been adopted in accordance with existing public procurement legislation.

Finally, the Committee attaches herewith a copy of a Practical Guide on Convention No. 94 which was prepared by the Office in September 2008 based on the conclusions of the aforementioned General Survey in order to help member States better understand the requirements of the Convention, and in so doing, promote its implementation.