Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Netherlands (Ratification: 1952)

The Committee notes the adoption of the Order of 16 July 2005 laying down rules concerning procedures for the award of public works, supply and service contracts. It notes that section 26 of the Order reproduces the substance of Article 26 of EU Directive No. 2004/18/EC of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts. Under this provision, contracting authorities may lay down special conditions relating to the performance of a public contract, provided that these are compatible with Community law and are indicated in the contract notice or in the specifications. These conditions may relate to social and environmental considerations. The Committee also notes that the Government refers in its report to paragraph 34 of the Preamble of the abovementioned Directive, which states that “the laws, regulations and collective agreements, at both national and Community level, which are in force in the areas of employment conditions and safety at work apply during performance of a public contract, providing that such rules, and their application, comply with Community law”. The Committee notes the Government’s indications that it is authorized under Community law to impose certain stipulations regarding the conditions of employment of workers in the context of the performance of public contracts, the contractor being obliged, moreover, to comply with the provisions of national law and of the relevant collective agreements.

The Committee draws the Government’s attention to the fact that section 26 of the Order of 16 July 2005 is purely permissive, inasmuch as it authorizes the contracting authority to require the contractor to observe certain conditions, particularly in the social field. Such a provision does not ensure the observance of Article 2 of the Convention, under which public contracts to which the Convention applies must include clauses ensuring to the workers concerned wages, hours of work and other conditions of labour which are 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.

With regard to paragraph 34 of the Preamble to Directive No. 2004/18/EC, the Committee recalls that the mere fact that the social legislation and the relevant collective agreements are applicable to workers engaged for the performance for public contracts in no way releases the Government from the obligation to provide for the inclusion of labour clauses in public contracts as required by the Convention. Even if workers employed for the execution of public contracts are covered by collective agreements, the whole point of implementation of the Convention is to ensure the specific protection that these workers need. Hence the Convention requires in particular the adoption by the competent national authority of measures such as the publication of a notice relating to the specifications to ensure that tenderers are aware of the terms of the labour clauses (Article 2, paragraph 4, of the Convention). Notices must be posted in conspicuous locations at workplaces in order to inform the workers of their conditions of work (Article 4(a)). In addition, the existence of penalties laid down by the Convention, such as the withholding of contracts or the withholding of payments due to the tenderer (Article 5), make it possible, in cases where labour clauses are violated, to impose penalties on the contractor which may be more directly effective than penalties applicable to breaches of general labour legislation.

Consequently, the Committee asks the Government to take all necessary measures to ensure the inclusion of labour clauses in all public contracts as required by the Convention and to keep it informed of all developments in this respect. The Committee also asks the Government to supply copies of the general conditions which are currently applicable to the execution of public contracts.

The Committee also draws the Government’s attention to the General Survey which it has undertaken this year on labour clauses in public contracts, which presents the law and practice of the member States in this field and also an evaluation of the impact and current relevance of Convention No. 94.

[The Government is asked to reply in detail to the present comments in 2008.]