Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

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

The Committee notes that article 8 of the General Administrative Clauses Book (CCAG) applying to public contracts for works contains provisions on protection of the workforce and working conditions that meet the requirements of the Convention. It notes, however, that pursuant to article 8 of Decision No. 63/CP of 10 May 1989 amending the regulations on public contracts, article 37 of amended Decision No. 136 of 1 March 1967 regulating all forms of administrative contracts concluded in the name of New Caledonia and its public establishments has been amended and now provides that the specifications (general documents and specific documents) shall lay down the conditions in which contracts are performed and that the specific documents must bear a reference to the articles of any general documents from which they deviate. The Committee requests the Government to indicate whether, and to what extent, the specific documents may deviate from article 8 of the CCAG that applies to public contracts for works.

The Committee also notes that article 5.1 of the CCAG applying to public contracts for ordinary supplies and services provides only that “the holder is subject to the obligations deriving from the laws and regulations on the protection of labour and working conditions”. The Committee points out that applying labour legislation only to workers engaged in the context of public contracts is not enough to ensure observance of the Convention. According to the Convention, public contracts must contain clauses ensuring to the workers concerned wages, hours of work and other conditions of labour which are not less favourable than the most favourable established for work of the same character in the trade or industry concerned in the district where the work is carried on, by the national legislation, by collective agreement or by arbitration award. The Committee requests the Government to indicate the measures envisaged to ensure the inclusion of labour clauses in public contracts for ordinary supplies and services such as those referred to in article 8 of the CCAG that applies to public contracts for works.

The Committee also notes the adoption of Basic Act No. 99-209 of 19 March 1999 concerning New Caledonia. It notes in this connection that the metropolitan authorities retain competence for public contracts of the State and its public establishments (section 21(9)), while the authorities of New Caledonia have responsibility for “regulation of public contracts and delegation of public service” (section 22(17)), and that their responsibility does not appear to be confined to public contracts concluded by municipalities and public establishments in New Caledonia. The Committee requests the Government to provide information on any impact the distribution of authority established by the Basic Act of 1998 may have on public contracts in New Caledonia and, consequently, on the application of the Convention.

Part V of the report form. The Committee notes the decisions by the Paris Administrative Court of Appeals, a copy of which is attached to the Government’s report, and the information on pay scales, holidays and paid leave for public servants. It reminds the Government, however, that the Convention concerns not the status of public servants but the inclusion of labour clauses to ensure the best possible working conditions and remuneration for persons employed to carry out contracts concluded by the public authorities. The Committee therefore once again asks the Government to provide information on the effect given in practice to the Convention, including, for instance, extracts of reports by the inspection services containing information on the number and nature of the infringements reported, and the most recent progress report of the Territorial Observatory for Public Contracts, established by Decision No. 75 of 21 August 1997.