Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

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

Article 2 of the Convention. Inclusion of labour clauses in public contracts. In its previous comments, the Committee requested the Government to indicate the measures contemplated to ensure the inclusion of labour clauses in public contracts for supplies and services. The Committee notes the entry into force on 1 January 2020 of Decision No. 424 of 20 March 2019 issuing regulations on public procurement, replacing Decision No. 136 of 1 March 1967 issuing regulations on public procurement. However, the Committee notes that Decision No. 424 and sections 5 and 8 of the General Administrative Terms and Conditions (CCAG) do not require the inclusion of labour clauses in public contracts and do not specify the terms of these clauses. If not, it is the provisions of the Labour Code of New Caledonia which apply. In this regard, the Committee refers the Government to paragraphs 110 and 117 of the 2008 General Survey on labour clauses in public contracts, in which it emphasizes that the essential element required by the Convention is the inclusion in the text of the public contract of a labour clause drawn up in the terms prescribed in Article 2(1) and (2) of the Convention. The Committee observes that a labour clause has to constitute an integral part of the actual contract signed by the selected contractor and that the inclusion of labour clauses in the general conditions or specifications of tender documents, even though required by Article 2(4) of the Convention, does not suffice to give effect to the basic requirement of the Convention set out in Article 2(1). The Government also indicates that there are no specific legislative provisions preventing particular documents from deviating from section 8 of the CCAG, even though certain provisions of section 8 of the CCAG (concerning hours of work, pay or conditions of work) which form part of the Labour Code of New Caledonia are fully binding on employers, who cannot depart from them. The Government is planning to transpose into law six new CCAGs applicable to public procurement, approved by inter-ministerial orders and published in the Official Journal of 1 April 2021, including the CCAG applicable to public contracts for ordinary supplies and services, section 6 of which establishes provisions on protection of the labour force and conditions of work, which every contractor must respect. Recalling that the Convention does not necessarily require the adoption of new legislation but can be applied through administrative instructions or circulars, the Committee hopes that the Government will take the opportunity afforded by the legal transposition of new CCAGs applicable to state procurement to bring the national legislation into full conformity with the provisions of the Convention, particularly with regard to: the terms of the labour clauses to be included in public contracts to which the Convention applies, after consultation with the organizations of employers and workers concerned (Article 2(3)) and advertising specifications or otherwise, to ensure that persons tendering for contracts are aware of the terms of the clauses (Article 2(4)). The Committee also requests the Government to provide detailed, up-to-date information in its next report on any measures taken or envisaged to give concrete effect to the essential provisions of the Convention, namely the inclusion of labour clauses in public contracts, as provided for by Article 2 of the Convention, and to provide the Office with information on any progress made in this respect.

Application of the Convention in practice. The Committee notes the information provided by the Government on the application of the Convention, particularly the indication that the Government has implemented a number of awareness-raising actions for public stakeholders and enterprises regarding changes in the regulations. The Government adds that in July 2018 a “Guide to the labour-related aspects of public procurement” was published and made available to public procurement stakeholders. However, the Committee notes that this guide does not contain any reference to conditions of work for workers engaged in the performance of public contracts and also does not address the incorporation of labour clauses of the type prescribed by Article 2 of the Convention. It also notes the Government’s indication that the summaries of the reports of the inspection services are not refined enough to enable the extraction of information on violations relating to labour clauses in public contracts. Recalling paragraphs 22, 98 and 99 of the 2008 General Survey referred to above, the Committee draws the Government’s attention to the fact that Article 5 of the Convention requires the establishment and maintenance of an adequate system of inspection, as well as the imposition of specific remedies and sanctions as means of ensuring the implementation of the terms of labour clauses. The Committee once again requests the Government to send copies of public contracts which contain labour clauses and to provide information on the application of the Convention in practice, including on the establishment and use of an adequate system of inspection and sanctions, by the withholding of contracts or otherwise, in the event of failure to observe and apply the provisions of labour clauses (Article 5).