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

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

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).

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

Article 2 of the Convention. Inclusion of labour clauses in public contracts. In its previous comments, the Committee asked the Government to indicate the measures contemplated to ensure the inclusion of labour clauses in public contracts for ordinary supplies and services, such as those referred to under section 8 of the General Administrative Terms and Conditions (CCAG) applicable to public works contracts. The Committee notes the Government’s indications that a restructuring of its departments has begun, which provides for the establishment of a directorate responsible for the regulation and management of public procurement, including the modernization thereof. The Committee notes that this department, which is also due to set up an observation unit, has not yet begun to operate. With regard to section 37 of amended Decision No. 136 of 1 March 1967, the Committee also asked the Government to indicate whether, and to what extent, specific documents might deviate from the provisions of section 8 of the CCAG applicable to public works contracts. In this regard, the Government refers to an example of CCAG provisions, attached to its report, and points out that none of these exemptions relate to hours or conditions of work or employees’ wages. The Committee requests the Government once again to indicate the measures contemplated to ensure the inclusion of labour clauses in public contracts for supplies and services. It also requests the Government to indicate the legislative provisions which prevent specific documents from deviating from section 8 of the CCAG applicable to public works contracts. Referring to its previous comments, the Committee requests the Government once again to provide more specific information on the types of public contracts to which amended Decision No. 136 of 1 March 1967 regulating all forms of administrative contracts concluded in the name of New Caledonia and its public establishments now applies.

Application of the Convention in practice. The Committee notes the Government’s indication that it does not have any documents which would provide further information on the application of the Convention in practice. The Committee requests the Government once again to send a copy of any public contract concluded by the authorities of New Caledonia which includes labour clauses, and to send information without further delay on the application of the Convention in practice, including extracts of reports of the inspection services containing details of the number and nature of infringements reported, as well as the most recent report on the work of the public procurement observation unit.

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

Article 2 of the Convention. Inclusion of labour clauses in public contracts. The Committee notes with regret that the Government has not replied to any point in its previous direct request, merely stating that it is not possible to reply to all of the Committee’s comments. It further notes that, according to the Government’s report, public contracts contain labour clauses designed to ensure the optimum pay and working conditions for those working under these public contracts, and that these clauses stipulate that the parties to these contracts must know, respect and implement the provisions of the New Caledonian Labour Code, especially those concerning workers’ safety and health.

The Committee draws the Government’s attention to the fact that merely applying social legislation to workers engaged in the context of public contracts is not enough to ensure observance of the Convention. According to the Convention, public contracts must contain clauses ensuring that the workers concerned enjoy wages, hours of work and other conditions of labour that are not less favourable than those established for work of the same nature in the same region by the national legislation, by collective agreement or by arbitration award. The Committee requests the Government to indicate the measures envisaged to ensure the inclusion of labour clauses in public contracts for ordinary supplies and services, such as those referred to under section 8 of the General Administrative Clauses Book applying to public contracts for works.

The Committee also notes that under section 8 of Decision No. 63/CP of 10 May 1989 amending the regulations on public contracts, section 37 of the amended Decision No. 136 of 1 March 1967 regulating all forms of administrative contracts concluded in the name of New Caledonia and its public establishments has been amended; it now provides that the specifications (general documents and specific documents) must stipulate the conditions under which contracts are performed, and that the specific documents should contain a reference to the articles of any general documents from which they might deviate. The Committee requests the Government to indicate whether, and to what extent, the specific documents might deviate from section 8 of the General Administrative Clauses Book that applies to public contracts for works.

The Committee also notes the adoption of the Basic Act No. 99-209 of 19 March 1999 concerning New Caledonia. It notes in this connection that the metropolitan authorities retain competence for public contracts of the State and its public establishments (section 21(9)), while the authorities of New Caledonia have responsibility for the “regulation of pubic contracts and delegation of public service” (section 22(17)), without this responsibility being confined to public contracts concluded by municipalities and public establishments in New Caledonia. The Committee requests the Government to provide more specific information on the types of public contracts to which the amended Decision No. 136 of 1 March 1967 regulating all forms of administrative contracts concluded in the name of New Caledonia and its public establishments henceforth apply.

Part V of the report form. Practical application. The Committee notes the Government’s reference in its report to the text of a service agreement concerning the security and surveillance of institutions and administrative services in New Caledonia, but that the Government did not include a copy in the report. The Committee requests the Government to provide a copy of this contract or any other public contract concluded by the authorities of New Caledonia and including labour clauses, and to send, as soon as it is available, information on the application of the Convention in practice, especially data on the number and nature of the infringements reported, as well as the most recent progress report of the Territorial Observatory for Public Contacts, established by Decision No. 75 of 21 August 1997.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes that article 8 of the General Administrative Clauses Book (CCAG) applying to public contracts for works contains provisions on protection of the workforce and working conditions that meet the requirements of the Convention. It notes, however, that pursuant to article 8 of Decision No. 63/CP of 10 May 1989 amending the regulations on public contracts, article 37 of amended Decision No. 136 of 1 March 1967 regulating all forms of administrative contracts concluded in the name of New Caledonia and its public establishments has been amended and now provides that the specifications (general documents and specific documents) shall lay down the conditions in which contracts are performed and that the specific documents must bear a reference to the articles of any general documents from which they deviate. The Committee requests the Government to indicate whether, and to what extent, the specific documents may deviate from article 8 of the CCAG that applies to public contracts for works.

The Committee also notes that article 5.1 of the CCAG applying to public contracts for ordinary supplies and services provides only that “the holder is subject to the obligations deriving from the laws and regulations on the protection of labour and working conditions”. The Committee points out that applying labour legislation only to workers engaged in the context of public contracts is not enough to ensure observance of the Convention. According to the Convention, public contracts must contain clauses ensuring to the workers concerned wages, hours of work and other conditions of labour which are not less favourable than the most favourable established for work of the same character in the trade or industry concerned in the district where the work is carried on, by the national legislation, by collective agreement or by arbitration award. The Committee requests the Government to indicate the measures envisaged to ensure the inclusion of labour clauses in public contracts for ordinary supplies and services such as those referred to in article 8 of the CCAG that applies to public contracts for works.

The Committee also notes the adoption of Basic Act No. 99-209 of 19 March 1999 concerning New Caledonia. It notes in this connection that the metropolitan authorities retain competence for public contracts of the State and its public establishments (section 21(9)), while the authorities of New Caledonia have responsibility for “regulation of public contracts and delegation of public service” (section 22(17)), and that their responsibility does not appear to be confined to public contracts concluded by municipalities and public establishments in New Caledonia. The Committee requests the Government to provide information on any impact the distribution of authority established by the Basic Act of 1998 may have on public contracts in New Caledonia and, consequently, on the application of the Convention.

Part V of the report form. The Committee notes the decisions by the Paris Administrative Court of Appeals, a copy of which is attached to the Government’s report, and the information on pay scales, holidays and paid leave for public servants. It reminds the Government, however, that the Convention concerns not the status of public servants but the inclusion of labour clauses to ensure the best possible working conditions and remuneration for persons employed to carry out contracts concluded by the public authorities. The Committee therefore once again asks the Government to provide information on the effect given in practice to the Convention, including, for instance, extracts of reports by the inspection services containing information on the number and nature of the infringements reported, and the most recent progress report of the Territorial Observatory for Public Contracts, established by Decision No. 75 of 21 August 1997.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the information contained in the Government’s report and the attached documentation, in particular Deliberation No. 74 of 21 August 1997 amending Deliberation No. 136/CP of 1 March 1967 on public contracts regulations, and Deliberation No. 75 of 21 August 1997 establishing a public contracts observatory for the construction and public works sector.

However, the Committee notes that for several years the reports communicated by the Government have failed to contain information on the practical application of the Convention as requested in Parts III, IV and V of the report form. The Committee therefore asks the Government to supply all available information on the manner in which the Convention is applied in practice, including, for instance, extracts from inspection reports and reports of the newly established public contracts observatory, statistics on the number of workers covered by relevant legislation, the number and nature of violations recorded and penalties imposed, etc.