Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Costa Rica (Ratification: 1960)

Articles 2 and 5 of the Convention. Inclusion of labour clauses in public contracts – Measures of supervision and sanctions. Following its previous comment on the scope of the provisions of Executive Decree No. 11430-TSS of 30 April 1980 compared with that of Executive Directive No. 34 of 8 February 2002, the Committee notes the detailed information communicated by the Government concerning the hierarchy of sources in national administrative law. It particularly notes that a directive is an administrative act of general application with no legislative function and that the provisions of Executive Directive No. 34 are incorporated into the requirements of Executive Decree No. 11430-TSS, which is a higher ranking rule of law. The Committee notes the Government’s assurances that an amendment of this Directive for reasons of legal certainty does not seem necessary.

In its previous observation, the Committee also raised matters concerning the inclusion of labour clauses in public contracts, which, according to a Government report, are rare. On this point, it notes the Government’s comments to the effect that national legislation clearly and specifically establishes the rights of all workers and that any failure to include labour clauses in a public contract does not undermine the obligation to respect labour and social security legislation. The Committee nevertheless recalls the importance of including labour clauses not only in the contract concluded with the contractor selected, but also in the specifications given to the persons tendering for contracts, in accordance with Article 2(4) of the Convention. Informing the persons tendering for contracts in advance is intended to make them aware of their social obligations when drawing up their tenders. Furthermore, including labour clauses in the actual contract makes it possible to apply sanctions inherent in public contracts if there is failure to comply with these clauses. In this respect, Article 5(1) of the Convention specifically states that adequate sanctions should be applied, by the withholding of future contracts, for failure to observe these labour clauses. Furthermore, under Article 5(2), measures such as the withholding of payments under the contract should be taken to ensure the workers concerned obtain the wages of which they are unduly deprived. The Committee therefore reiterates its previous observation, when it urged the Government to take the necessary steps to ensure the actual inclusion of the labour clauses provided for under Executive Decree No. 11430-TSS in all public contracts to which the Convention applies. It notes, in this context, that the Government has contacted the ILO Decent Work Technical Support Team and Country Office for Central America in San José with a view to jointly examining its report on the application of the Convention and, if necessary, to discussing measures that would enable it to ensure the contractors’ respect of social legislation in public procurement. The Committee hopes that the Office will provide the Government with all the necessary technical assistance to ensure the effective implementation of the Convention in practice.