Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Djibouti (Ratification: 1978)

Article 2 of the Convention. Insertion of labour clauses in public contracts. In its previous comment, the Committee asked the Government to submit a detailed report on the state of national law and practice regarding labour clauses in public contracts in the light of the public procurement legislation, including Act No. 53/AN/09/6th L of 1 July 2009 establishing the Public Procurement Code and Decrees Nos 2010-0083/PRE, 2010-349/PRE and 2010-0085/PRE, all dated 8 May 2010. The Committee notes that section 13.1.1 of the abovementioned Code excludes individuals or entities that have not submitted the applicable declarations regarding direct and indirect taxation and employers’ contributions or have not made payments to the competent revenue collection services for concluding contracts or obtaining orders from the State. Furthermore, the Committee notes that clause 9.1 of the General Administrative Terms and Conditions applicable to public procurement, adopted by Decree No. 2010-0084/PRE of 8 May 2010, provides that, unless the contract states otherwise, the entrepreneur is responsible for the recruitment of staff and workers, nationals or otherwise, and also for their remuneration, board, lodging and transport, in strict compliance with the regulations in force, particularly the labour regulations (especially regarding hours of work and rest days), the social regulations and all the applicable safety and health regulations. The Committee notes that this clause and the exclusion provided for in section 13.1.1 of the Public Procurement Code are insufficient to give effect to the key requirements of the Convention, namely the insertion of labour clauses in all public contracts coming within the scope of Article 1 of the Convention – drawn up after consultation of the employers’ and workers’ organizations – ensuring to the workers concerned conditions of remuneration and other conditions of labour which are not less favourable than those established by national laws or regulations, collective agreements or arbitration awards for work of the same character in the same sector. It is precisely because conditions of employment and work established in the national labour legislation are often improved by collective bargaining that the Committee has systematically considered that the mere fact that the legislation applies to all workers does not release the government concerned from its obligation to include labour clauses in all public contracts, in accordance with Article 2(1) and (2) of the Convention. Recalling that the Convention does not necessarily require the adoption of new legislation but may be applied by means of administrative instructions or circulars, the Committee again requests the Government to take prompt steps to ensure the effective implementation of the Convention and recalls that the Government may avail itself of ILO technical assistance if it so wishes.