Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Spain (Ratification: 1971)

The Committee notes the observations of the Trade Union Confederation of Workers’ Commissions (CCOO) and the General Union of Workers (UGT), received on 11 and 17 August 2017, respectively. The Committee also notes the Government’s replies to the previous observations included in its report.

Article 2 of the Convention. Insertion of labour clauses in public contracts. Legislative developments. In its previous comments, the Committee noted that Royal Decree No. 3/2011, regarding the consolidated text of the Public Contracts Act, does not contain any provisions expressly requiring the inclusion of labour clauses in public contracts and therefore gives no effect to the Convention. The Committee therefore requested the Government to take the necessary measures to ensure that the Convention is fully implemented in law and in practice. The Committee notes that, in their observations, the workers’ organizations refer to the shortcomings in the previous legislation on public contracts in relation with the requirements under the Convention. They highlight aspects including the need to introduce legislative amendments that require the insertion of labour clauses in public contracts. In this respect, the Committee notes the adoption of Act No. 9/2017 (8 November 2017) on public sector contracts, which transposes the 2014 European Union Directive on public procurement into the Spanish legal framework. In its report, the Government indicates in general that the above Act relates to the provisions set out in the Workers Regulations in that the application of the collective agreements of the bidding enterprise prevail over that of the collective agreements governing the occupational groups carrying out the service. The UGT states in its observations that the transposition of the European Union Directive represents significant progress in socially responsible public procurement and that it could also contribute to remedying certain existing shortcomings in the previous legislation regarding public procurement. Lastly, the UGT refers to various provisions which set out limits to collective bargaining on the salaries of workers in the bidding enterprise, such as section 5 of Royal Decree No. 55/2017 (3 February 2017), which provides for the development of Act No. 2/2015 on exemptions from statutory indexation of 30 March, which provides that any revision of the cost of procurement based on an increase in the cost of labour shall be confined to any increase in public sector remuneration. In its reply, the Government indicates that this limit is intended to prevent, as a result of rulings against the administration, workers from bidding enterprises from gaining the status of public workers without going through the relevant selection procedure outside the public sector planning process. The Committee trusts that the Government is taking measures to ensure that the application of the new Act on public sector contracts is in conformity with the requirements of the Convention. The Committee requests the Government to provide information on the application in practice of the new Act, including extracts of relevant judicial decisions, summaries of inspection reports and information on the number and nature of the violations detected.