Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Eswatini (Ratification: 1981)

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Article 2 of the Convention. Inclusion of labour clauses in public contracts. The Committee notes the information provided by the Government in response to its previous comments. In particular, it notes that tripartite consultations between the Government and social partners concerning the draft Employment Bill, 2017, which took place within the Labour Advisory Board (LAB), were completed in July 2019. The draft Bill was subsequently reviewed by the ILO, whose comments were taken into consideration in the final draft of the Bill. The Government adds that the final draft Bill will be forwarded to the Cabinet for approval and to the Parliament for adoption. With regard to the implementation of the Convention, the Government reports that the Convention is effectively implemented in all public procurement processes and that the Eswatini Public Procurement Regulatory Authority (ESPPRA) has developed a Standard Tendering Document for Procurement of Goods in respect of all national and international open tendering. It further indicates that public contracts in the country contain clauses requiring the tenderer to comply with basic labour law. The Committee notes that Part XIII of the draft Employment Bill, 2017 contains substantive provisions regarding the obligation established under Article 2(1) of the Convention concerning the insertion of labour clauses in public procurement contracts. The Committee notes that section 126 of the draft Employment Bill stipulates that “Every public contract is deemed to include and to incorporate the provisions contained in this Part as if they were expressly set out as conditions to be observed and performed on the part of either or both of the parties to the contract”, whereas section 127 requires that contractors “pay rates of wages and observe hours and conditions of employment (referred to as established rates and conditions) that are not less favourable than those established by any collective agreement covering a substantial proportion of employees and employers in the trade or industry concerned in the contract”. On the other hand, the Committee notes that the examples of public contracts provided by the Government in its report do not contain labour clauses of the type required by Article 2. The Committee considers that the provisions of Part XIII of the draft Employment Bill, 2017 are aligned with the core requirements of Article 2 of the Convention. The Committee requests the Government to notify the Office once the draft Bill is adopted and to provide a copy. In addition, the Committee requests the Government, once the draft Bill is adopted, to provide detailed updated information on the manner in which its provisions are applied in practice to ensure the effective implementation of Article 2 of the Convention, in all public contracts to which the Convention is applicable.

Article 4(a)(iii). Posting of notices. The Committee notes the information provided by the Government in reply to its previous request.

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

Article 2 of the Convention. Inclusion of labour clauses in public contracts. The Committee notes the Government’s indication that the new Employment Bill (Part XVIII) replicates Part XIII of the current Employment Act, with a view to ensuring continued compliance with the Convention. The Government also indicates that the Public Procurement Bill, which was previously submitted to the Committee, is now an enforceable Act of Parliament. The Committee notes that Part 5, section 40(1) and (2), of the Act provides that in order to be eligible to participate in public procurement, a tenderer shall attest that it complies with labour legislation. In this respect, the Government indicates that, presently, all invitations for tenders at the instance of Government and all Public Enterprises require the tenderer to acquire a valid Labour Compliance Certificate issued by the Commissioner of Labour after a labour inspection has been conducted by labour inspectors and a report has been prepared confirming that the particular tenderer complies with applicable labour or employment standards. The Committee notes that the Commissioner of Labour has made an effort to ensure that all public enterprises and the Government Tender Board systematically require tenderers to submit Labour Compliance Certificates and to safeguard against abuse in their issuance by unscrupulous individuals. The Committee requests the Government to take all necessary measures to ensure that the Convention continues to be effectively implemented. It also requests the Government to keep the Office informed of further developments and to transmit a copy of the Employment Bill once it has been adopted.

Article 4(a)(iii). Posting of notices. The Committee welcomes the copy of the Wages Regulation Order (Building and Construction Industry), Legal Notice No. 184 of 2010 and the revised Wages Regulation Order (Building and Construction Industry), Legal Notice No. 114 of 2013, which contain a sample of the notices that employers are required to keep displayed at the workplace under section 142 of the Employment Act, 1980. The Committee requests the Government to continue to supply copies of the notices and forms of records mentioned in Article 4.

Practical application. The Committee requests the Government to provide a general appreciation of the manner in which the Convention is applied in practice including, for instance, examples of public contracts containing labour clauses, extracts from inspection service reports and details of the number and nature of contraventions reported.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Article 2 of the Convention. Insertion of labour clauses into public contracts. The Committee notes that the Employment Act, 1980, Part XIII of which gives full effect to the requirements of the Convention, is currently in the process of being revised. The Committee also notes the Public Procurement Bill, 2010 and the draft Public Procurement Regulations, which aim at modernizing public procurement institutions and practices, ensuring transparency and accountability, achieving efficiency and promoting fair and non-discriminatory treatment of tenderers, but do not contain any provisions regulating the working conditions applicable to those engaged in the execution of public contracts. The Committee requests the Government to take all necessary measures to ensure that the Convention continues to be effectively implemented either through the revised Employment Act or the new public procurement legislation. It also requests the Government to keep the Office informed of further developments and to transmit a copy of the new legislative texts once they have been adopted.

Article 4(a)(iii). Posting of notices. The Committee notes the Government’s reference to the Wages Regulation Order (Building and Construction Industry), Legal Notice No. 184 of 2010, which contains a sample of the notices that employers are required to keep displayed at the workplace under section 142 of the Employment Act, 1980. As this document was not attached to the Government’s report, the Committee would appreciate receiving a copy.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

Article 2(2) of the Convention. No established rates or conditions in the district concerned. The Committee has been noting for some years that no schedules have yet been prepared under section 135 of the Employment Act 1980, in case there are no rates established by collective agreement in the trade or industry concerned in the contract. Considering that collective agreements might not cover all categories of workers engaged in performing public contracts, the Committee requests the Government to keep it informed in future reports of measures to adopt such schedules, for instance on the occasion of current discussions on the draft employment bill.

Article 4(a)(iii). Posting of notices. The Committee has been requesting the Government to supply a specimen notice used to inform workers of the wage and other labour conditions applicable to them, in accordance with section 142 of the Employment Act. In the absence of response on this point, the Committee again requests the Government to communicate the model text, if any, of the notice that contractors have to keep displayed at the workplace for the information of their employees, as required under this Article of the Convention.

Part V of the report form. The Committee notes that the Government has not provided since ratification any general information concerning the application of the Convention in practice. It therefore requests the Government to transmit in its next report up to date statistics on the number of public contracts awarded and the approximate number of workers engaged in their execution, sample copies of public contracts or standard tender documents containing labour clauses, extracts from labour inspection reports showing the number of visits conducted, contraventions observed and sanctions imposed, etc.

Finally, the Committee seizes this opportunity to refer to this year’s General Survey which contains an overview of public procurement practices and procedures in so far as labour conditions are concerned and makes a global assessment of the impact and present-day relevance of Convention No. 94.

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

Article 2(2) of the Convention. The Committee recalls its earlier comments in which it requested the Government to indicate whether schedules of wages and conditions of employment to be observed in the execution of public contracts in the absence of collective agreements had in fact been prepared, as set out in section 135 of the Employment Act, 1980. The Committee requests the Government to provide information in its next report on any progress achieved in this respect.

Article 4(a)(iii). Further to its previous comments, the Committee notes the Government’s continued reference to section 142 of the Employment Act regarding the posting of notices at the workplace containing information on the labour conditions applicable to workers engaged in the execution of public contracts. The Committee recalls that whereas section 142 of the Employment Act appears consistent with the Convention, the sample notice communicated by the Government in its first report (Legal Notice No. 112 of 1982) did not contain the information required by this provision of the Convention. The Committee again expresses the hope that the necessary measures will soon be taken to fully apply this provision of the Convention on which the Committee has been commenting for many years. The Committee would appreciate receiving a copy of the notice currently in use with respect to work carried out under public contracts.

Part V of the report form. The Committee would be grateful if the Government would provide detailed information on the manner in which the Convention is applied in practice, including copies of public contracts containing labour clauses, extracts from official reports, information concerning the number of public contracts awarded, the number of workers covered by relevant legislation, the number and nature of contraventions reported, etc.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the Government's indication that the draft Bill for the Employment Act of 1980 has been submitted to Parliament and that discussions are still going on. It hopes that the Bill which, according to the Government's earlier report, is taking into consideration the comments made by the Committee of Experts, will be adopted soon. It requests the Government to continue to supply information on any development in this regard.

Article 4(a)(iii). The Committee recalls that the notices required by this provision of the Convention should include information on the special conditions applicable under public contracts in compliance with Part XIII of the Employment Act. It hopes that the Government will take the necessary measures to require the posting of such notices and that it will supply a sample notice which contains the required information.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes that the Government is considering reviewing the Employment Act of 1980, taking into consideration the comments made by the Committee of Experts. It requests the Government to continue to supply information on any development in this regard.

Article 4(a)(iii). The Committee recalls that the notices required by this provision of the Convention should include information on the special conditions applicable under public contracts in compliance with Part XIII of the Employment Act. It hopes that the Government will take the necessary measures to require the posting of such notices and that it will supply a sample notice which contains the required information.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

Article 1, paragraph 3, of the Convention. The Committee notes the explanations supplied by the Government in reply to its previous request concerning the term "assignees".

Article 2, paragraph 2. The Committee notes that no schedules have yet been prepared under section 135 of the Employment Act. It hopes that the Government will keep it informed in future reports of measures to adopt such schedules if this should become appropriate.

Article 4(a) (iii). The Committee notes that there is no change in respect of the application of this Article. The Committee once again expresses the hope that the Government will take the necessary measures to apply this provision of the Convention, and that it will supply a sample notice which contains the information required by this provision (information on the conditions applicable to all employees, and on the special conditions applicable under public contracts in compliance with Part XIII of the Employment Act).

Direct Request (CEACR) - adopted 1987, published 74th ILC session (1987)

Article 1, paragraph 3, of the Convention. The Committee notes the information supplied by the Govenment in reply to its previous request. As explained in its previous direct request, the term "assignees" in this provision of the Convention refers to other contractors to which the prinicipal contractor may assign a contract, transferring all rights and duties under the contract to these other contractors. In that sense, the Committee observes that it is not necessarily clear that assignees are included in the definition of contractors in section 2 of the Employment Act. The Committee would be accordingly glad if the Government would consider appropriate measures to make clear the applicability of the Convention to assignees.

Article 2, paragraph 2. The Committee notes the Government's statement that no schedules have yet been prepared under section 135 of the Employment Act. It would be grateful if the Government would keep it informed of any changes made in this respect.

Article 4(a)(iii). The Committee notes the Government's statement that the conditions of work contained in the notices displayed under section 142 of the Employment Act are the conditions applicable to all employees. It recalls, however, that the notices required by this provision of the Convention should contain information not only on the conditions applicable generally to all employees but also on the special conditions applicable under public contracts in compliance with Part XIII of the Act. It therefore reiterates the hope that the Government will take the measures necessary to apply this provision of the Convention, and that it will supply a sample notice which contains the information required by this provision.