Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

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

The Committee notes with deep concern that the Government’s report has not been received. It expects that the next report will contain full information on the matters raised in its previous comments. The Committee informs the Government that, if it has not supplied replies to the points raised by 1 September 2021, then it may proceed with the examination of the application of the Convention on the basis of the information at its disposal at its next session.

Repetition

Article 2 of the Convention. Insertion of labour clauses in public contracts. Further to its previous observations, the Committee notes the Government’s indication that changes have been introduced for the specific inclusion of labour provisions in bidding documents issued by the Public Works Department. The Government explains that according to established procedure, it publishes specifications for a specific project and interested parties submit their bids following which a tender letter is awarded to which the Uniform General Instructions (UAV) apply. The Government also refers to a copy of a project specification containing labour provisions and to two sample tender letters as being attached to the report but no such documents have been received. The Committee once again recalls that the Convention requires bidders to be informed in advance, by means of standard labour clauses included in tender documents, not simply of relevant provisions of the national labour legislation but also of their obligation, if selected, to observe in the performance of the contract wages and other labour conditions not less favourable than the highest minimum standards established locally by collective agreement, arbitration award or laws and regulations.

Although the Committee has had in the past limited indications of such clauses possibly being used in certain contracts (for instance, circular letter of 1959 in connection with the building industry), it has never been in a position to verify whether a standard clause of the type prescribed by Article 2 of the Convention, and drafted after consultation with the organizations of employers and workers concerned, has effectively been included in a competitive bidding operation, whether for construction work or the supply of goods or services. The Committee once more asks the Government to take the necessary measures to give effect to the core requirement of the Convention which seeks to ensure that workers employed by a contractor and paid indirectly out of public funds enjoy wages and conditions of labour which are at least as favourable as those prevailing in the locality where the work is done, for the type of work concerned, whether they are established by collective agreement or otherwise. The Government is also requested to transmit copies of standard bidding documents currently in use, sample tender letters and concession agreements as well as the tender instructions used in recent procurement operations, such as the “Green Corridor” project and the Barcadera project launched by the Aruba Port Authority, to enable the Committee to better understand the manner in which the Convention is implemented in law and in practice.