Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

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

Article 2 of the Convention. Insertion of labour clauses into public contracts. The Committee notes with regret that the Government’s report essentially reproduces information which had been previously communicated to the Office. While noting the adoption of the Employment Act 2000, which sets out minimum employment standards and establishes an Employment Tribunal to adjudicate on claims, the Committee observes that the information provided by the Government bears strictly no relevance to the procedure for the award or execution of public contracts. The Committee recalls that it has repeatedly requested the Government to clarify whether the administrative instructions which had been adopted on 29 December 1962 and which gave effect to the requirements of the Convention, still remained in force or whether they had been amended or replaced by new texts. In the absence of a clear response on this point, the Committee once again asks the Government to specify how it ensures the application of the Convention both in law and in practice.

The Committee recalls that the Convention requires the insertion of labour clauses into all public contracts falling within its scope as well as sufficient publicity for the terms of those clauses and appropriate sanctions in case of non-observance. In this respect, the Committee refers to paragraphs 41–45 and
110–113 of the General Survey of 2008 on labour clauses in public contracts in which it pointed out that the applicability of the general labour legislation to the conditions under which public contracts are carried out is insufficient to ensure the implementation of the Convention. Indeed, the Convention aims at ensuring that workers employed in public contracts enjoy working conditions that are not less favourable than those established by collective agreement, arbitration award or by national labour legislation. Even if collective agreements were applicable to workers engaged in the context of the execution of public contracts, the implementation of the Convention would retain its full value in so far as its provisions are designed precisely to ensure the specific protection needed by those workers. For example, the Convention requires the adoption by the competent authorities of measures, such as the advertisement of specifications, to ensure that tenderers have advance knowledge of the terms of the labour clauses (Article 2, paragraph 4, of the Convention and paragraph 7 of the 1962 administrative instructions). It also requires notices to be posted in conspicuous places at the workplace to inform workers of the conditions of work applicable to them (Article 4(a) of the Convention and paragraph 9(a)(iii) of the administrative instructions). Finally, it provides for sanctions in the event of non-compliance with the terms of labour clauses, such as the withholding of contracts or the withholding of payments due to contractors (Article 5 of the Convention, and paragraphs 10 and 11 of the administrative instructions), which may be more directly effective than those available for violations of the general labour legislation.

Part V of the report form. Further to its previous comments, the Committee requests the Government to provide up to date information concerning the matters dealt with in the Convention, including for instance the approximate number of public contracts awarded during the reporting period and the number of workers engaged in their execution, extracts from labour inspection reports showing the number and nature of any infringements of the relevant legislation observed, copies of official studies concerning the social aspects of public contracting, etc.

For all useful purposes, the Committee attaches herewith a copy of a Practical Guide, prepared by the Office principally on the basis of the General Survey of 2008 on Convention No. 94, to help better understand the requirements of the Convention and ultimately improve its application in law.