Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Anguilla

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Previous comments

Previous comments

Articles 2 to 5 of the Convention. Insertion of labour clauses in public contracts. The Committee notes the Government’s indication that section 181 of the Labour (Relations) Act, 2018 regulates the use of labour clauses in public employment contracts. The Committee notes with interest that, according to section 181(1), “[e]very public employment contract shall be deemed to include and to incorporate the provisions, conditions or stipulations contained in the rules set out in Schedule 3, to all intents and purposes as if it were expressly set out as conditions or covenants therein to be observed and performed on the part of either or both of the parties to the contract.” In this respect, section 1 of Schedule 3 of the Act provides that “[T]he contractor shall pay rates of wages and observe hours and conditions of labour not less favourable than those established in the trade or industry in the district where the work is carried out, by agreement, machinery of negotiation or arbitration to which the parties are organizations of employers and trade unions representative respectively of substantial proportions of the employers and employees engaged in the trade or industry in the district (hereinafter referred to as “established rates and conditions”), or failing such, established rates and conditions in the trade or industry district, established rates and conditions in other districts where the trade or industry is carried on under similar general circumstances.” The Committee further notes that, according to section 2 of Schedule 3, in the absence of any such agreement or established rates and conditions, “(…) the contractor shall pay rates and wages and observe hours and other conditions of labour not less favourable than those which are or would be paid and observed by Government in the trade in the district where the work is carried out.” Moreover, section 3 of Schedule 3 provides that “[b]efore being placed on any list of Government contractors, the contractors shall certify that to the best of his knowledge and belief the wages, hours of work and conditions of labour of all employees employed by him in the trade or industry in which he is offering himself as a contractor are fair and reasonable having regard to section 1”. With regard to the adoption of measures to give effect to Article 4(a)(iii) of the Convention, the Committee notes that section 181(2) of the Labour Act establishes that “[E]very contractor shall keep displayed in a conspicuous place in his establishment and workplaces for the information of the employees a notice containing the conditions of their work and so printed that it may easily be read by all employees.” Lastly, the Committee notes that section 11 of Schedule 3 establishes that “Any contractor or subcontractor who fails to comply with any of these rules shall cease to be approved as a contractor or subcontractor for such period as the Commissioner may determine.” The Committee requests the Government toprovide examples of public contracts containing the labour clauses prescribed in section 181 of theLabour (Relations) Act, 2018. In addition, the Committee requests the Government to provide updated information on the application in practice of the Convention, including summaries of inspection reports, as well as information on the number and nature of infringements reported;andany other information which would enable to the Committee to more fully assess the manner in which the Convention is applied in practice.

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Article 2 of the Convention. Insertion of labour clauses in public contracts. The Committee notes that, for a number of years, the Government has been indicating that discussions were continuing with respect to the adoption of a draft Labour Code, which was expected to consolidate, among other laws, the Fair Labour Standards Act, the legislation which currently gives effect to the Convention. It also noted the Government’s indication in its 2012 report that the draft Labour Code would no longer exclude casual workers from its scope and that it would not specify a minimum value threshold for public contracts. The Government indicates in its report that the adoption of the draft Labour Code is targeted for 2017. The Committee once again requests the Government to keep the Office informed of any progress concerning the adoption of the new Labour Code, in particular the provisions in the new Code giving effect to the provisions of the Convention, as well as the Labour Clauses in Public Contracts Rules, appended to the Government’s 2009 report. It also requests the Government to provide copies of the relevant legislative texts, as soon as these are adopted.

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Article 2 of the Convention. Insertion of labour clauses in public contracts. Further to its previous comment, the Committee notes the Government’s indication that discussions on the draft Labour Code, which is expected to consolidate, among others, the Fair Labour Standards Act that currently implements the Convention, are still ongoing, and that the new Code is likely to be enacted by the end of 2013. It also notes the Government’s statement that the new labour legislation will no longer exclude casual workers from its scope and will not specify a minimum value threshold for public contracts. The Committee requests the Government to keep the Office informed of any progress concerning the adoption of the new Labour Code, in particular draft section 173, and the appended Labour Clauses in Public Contracts Rules.

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Article 2 of the Convention. Insertion of labour clauses in public contracts. Further to its previous comment, the Committee notes that the Convention continues to be implemented through the provisions of the Fair Labour Standards Ordinance, 1988, as amended by the Fair Labour Standards (Amendment) Ordinance, 1990. However, since the adoption of the above Ordinance, the Government has never communicated general information on the manner in which the Convention is applied in practice. It therefore requests once again the Government to supply up to date information in this respect, including samples of public contracts or other tender documents referring to labour clauses, statistics on the number of public contracts awarded and the number of workers concerned, labour inspection results showing the number and type of  infringements observed as well as the sanctions imposed, etc.

In addition, the Committee recalls that it has been commenting on the exclusion of casual workers – defined as workers whose employment is irregular, of short duration and sporadic – from the scope of application of the Fair Labour Standards Ordinance, in response to which the Government had indicated that the necessary amendments were being considered. In this connection, the Committee understands that a draft Labour Code had been prepared in 2003, section 4(2) and (3) of which no longer excluded casual workers from the application of the Code, while draft section 173 essentially reproduced the existing provisions of the Fair Labour Standards Ordinance with regard to labour clauses in public contracts, with the exception that it no longer specified a minimum value threshold for public contracts (currently set at 5,000 Eastern Caribbean dollars). The Committee would appreciate if the Government would indicate any progress made in the process of adoption of the draft Labour Code, in particular as regards the points mentioned above.       

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The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee understands that a draft Labour Code is under consideration, section 173 of which would appear to follow closely the existing provisions of the Fair Labour Standards Ordinance 1988 in respect of labour clauses in public contracts. The Committee requests the Government to keep the Office informed of any further developments in this respect and to supply a copy of the new legislation, including the Schedule, as soon as it is adopted.

Part V of the report form. The Committee notes that for many years the Government has been indicating that there are no legislative changes or other major developments to be reported and consequently no information has been provided on the practical application of the Convention. In this connection, the Committee recalls that under Article 6 of the Convention and Part V of the report form governments are required to give a general appreciation of the manner in which the Convention is applied, including, for instance, extracts from official reports, information concerning the approximate number of workers covered by relevant legislation, etc. The report form, which was adopted by the Governing Body of the ILO, is the main channel through which the Committee may obtain all the necessary information in order to follow the evolution of the national law and practice in matters covered by the Convention. The Committee would therefore be grateful if the Government would supply in its next report detailed information on the practical application of the Convention, including samples of public contracts, information from inspection services on the supervision and enforcement of national legislation, and any other particulars bearing on the measures designed to implement the Convention.

Finally, the Committee takes this opportunity to refer to its 2008 General Survey on labour clauses in public contracts which contains an overview of public procurement practices and procedures in so far as labour conditions are concerned and makes a global assessment of the impact and present-day relevance of Convention No. 94.

For all useful purposes, the Committee attaches herewith a copy of a Practical Guide, prepared by the Office principally on the basis of the abovementioned General Survey, to help better understand the requirements of the Convention and ultimately improve its application in law.

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee understands that a new draft Labour Code is currently under consideration, section 173 of which would appear to follow closely the existing provisions of the Fair Labour Standards Ordinance 1988 in respect of labour clauses in public contracts. The Committee requests the Government to keep it informed of any further developments in this respect and to supply a copy of the new legislation, including the Schedule, as soon as it is adopted.

Part V of the report form. The Committee notes that for many years the Government has been indicating that there are no legislative changes or other major developments to be reported and consequently no information has been provided on the practical application of the Convention. In this connection, the Committee recalls that under Article 6 of the Convention and Part V of the report form governments are required to give a general appreciation of the manner in which the Convention is applied, including, for instance, extracts from official reports, information concerning the approximate number of workers covered by relevant legislation, etc. The report form, which was adopted by the Governing Body of the ILO, is the main channel through which the Committee may obtain all the necessary information in order to follow the evolution of the national law and practice in matters covered by the Convention. The Committee would therefore be grateful if the Government would supply in its next report detailed information on the practical application of the Convention, including samples of public contracts, information from inspection services on the supervision and enforcement of national legislation, and any other particulars bearing on the measures designed to implement the Convention.

Finally, the Committee seizes this opportunity to refer to this year’s General Survey which contains an overview of public procurement practices and procedures in so far as labour conditions are concerned and makes a global assessment of the impact and present-day relevance of Convention No. 94.

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The Committee understands that a new draft Labour Code is currently under consideration, section 173 of which would appear to follow closely the existing provisions of the Fair Labour Standards Ordinance 1988 in respect of labour clauses in public contracts. The Committee requests the Government to keep it informed of any further developments in this respect and to supply a copy of the new legislation, including the Schedule, as soon as it is adopted.

Part V of the report form. The Committee notes that for many years the Government has been indicating that there are no legislative changes or other major developments to be reported and consequently no information has been provided on the practical application of the Convention. In this connection, the Committee recalls that under Article 6 of the Convention and Part V of the report form governments are required to give a general appreciation of the manner in which the Convention is applied, including, for instance, extracts from official reports, information concerning the approximate number of workers covered by relevant legislation, etc. The report form, which was adopted by the Governing Body of the ILO, is the main channel through which the Committee may obtain all the necessary information in order to follow the evolution of the national law and practice in matters covered by the Convention. The Committee would therefore be grateful if the Government would supply in its next report more detailed information on the practical application of the Convention, including samples of public contracts, information from inspection services on the supervision and enforcement of national legislation, and any other particulars bearing on the measures designed to implement the Convention.

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Further to its previous direct request, the Committee notes the Government’s statement that every effort is being made to ensure that casual workers are not excluded from coverage by the Fair Labour Standards Ordinance and that amendments are currently being made to the Ordinance. It hopes that the amendment will be accomplished in the near future so as to give effect to the Convention in relation to the casual workers who are excluded from the scope of the above Ordinance under its present section 3(1)(d).

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which reads as follows:

Further to its previous direct request, the Committee notes the Government’s statement that every effort is being made to ensure that casual workers are not excluded from coverage by the Fair Labour Standards Ordinance and that amendments are currently being made to the Ordinance. It hopes that the amendment will be accomplished in the near future so as to give effect to the Convention in relation to the casual workers who are excluded from the scope of the above Ordinance under its present section 3(1)(d).

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Further to its previous direct request, the Committee notes the Government's statement that every effort is being made to ensure that casual workers are not excluded from coverage by the Fair Labour Standards Ordinance and that amendments are currently being made to the Ordinance. It hopes that the amendment will be accomplished in the near future so as to give effect to the Convention in relation to the casual workers who are excluded from the scope of the above Ordinance under its present section 3(1)(d).

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Further to its previous direct request, the Committee notes with interest that the Fair Labour Standards Ordinance (No. 16 of 1988) as amended by the Fair Labour Standards (Amendment) Ordinance (No. 10 of 1990), section 18 and the Second Schedule ensures the inclusion of labour clauses as required by Article 2 of the Convention in the public employment contracts including those covered by Article 1, paragraph 1(c)(ii) and (iii).

The Committee, however, notes that the above Ordinance does not apply to a casual worker (section 3(1)(d)) who is defined as "a worker whose employment is irregular, or short duration and sporadic" (section 2). It would point out that the Convention does not provide for the exclusion of categories of workers other than those covered by Article 1, paragraph 5 (i.e. managers, technical, professional or scientific personnel who do not ordinarily perform manual work). The Committee requests the Government to supply information on measures taken or envisaged to give effect to the Convention in relation to the casual workers.

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Article 1, paragraph 1(c)(ii) and (iii) of the Convention. The Committee notes from the Government's report that it will take the Committee's comments into account in a proposed review of its labour laws. Recalling that it has requested that measures be taken to include labour clauses in the public contracts covered by these provisions since 1968, the Committee expresses its hope that the Government will be able to indicate in its next report that the necessary measures have been taken, and that it will supply copies of the relevant legislation.