Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Costa Rica (Ratification: 1960)

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

Articles 2 and 5 of the Convention. Inclusion of labour clauses in public contracts. Supervisory measures and sanctions. In reply to the Committee’s previous comments, the Government indicates that a sworn declaration is required from all bidders involved in the procurement of goods and services for the Ministry of Finance. In the sworn declaration, contractor undertakes to ensure decent work and comply with fundamental rights and principles at work in line with the provisions of the ILO fundamental Conventions. In particular, the contractor undertakes to respect the principles regarding freedom of association and collective bargaining, the abolition of forced labour, the elimination of child labour and the elimination of discrimination in employment and occupation. Such conditions must be maintained throughout the duration of the contract. The Government provides a list of contracts awarded in 2019 which included the above-mentioned terms. The Government also indicates that other types of contract include other social and sustainable criteria such as an admissibility requirement or evaluation factors. For example, with regard to the rental of property by the Administration, such property must meet the requirements of the Act on equal opportunities for persons with disabilities regarding measures to eliminate physical obstacles in order to ensure accessibility for persons with disabilities. However, the Committee notes that the Government does not provide any examples of public contracts that include clauses ensuring to the workers concerned wages (including allowances), hours of work and other conditions of labour which are not less favourable than those established for work of the same character in the trade or industry concerned in the district where the work is carried on (Article 2(1) of the Convention). As regards the implementation of the “National policy on sustainable public procurement”, the Government states that the Directorate of Supplies and Administrative Contracting at the Ministry of Finance is responsible for coordinating the necessary actions for implementing this policy, and also for establishing the National Steering Committee on Sustainable Procurement. The Government adds that, in line with the principle of regulatory centralization and operational decentralization, each contracting administration is responsible for carrying out its administrative procurement procedures and for evaluating them, in line with the legislation in force and the guidelines established by the above-mentioned Directorate. The Committee also notes the adoption of Executive Decree No. 42709 of 9 October 2020, which provides for the adoption of measures to encourage the participation of enterprises, including small and medium-sized enterprises (SMEs) and enterprises in the social economy, in government procurement, according to location and sustainability criteria. In this regard, section 3 of the Executive Decree establishes the following criteria to be followed with respect to public works: “(a) encourage the participation of enterprises and formally constituted organizations in the social economy as individual bidders or as a consortium in public procurement; (b) promote procurement through enterprises or organizations in the social economy located in socio-economically disadvantaged areas or located in or close to geographical areas where the services to be provided by the contract are required; and (c) foster, through public procurement, the creation of employment for social groups in vulnerable situations, such as persons with disabilities, women and young adults, with the purpose of creating greater social inclusion”. Lastly, the Committee notes that the Government has attached to its report an inspection and prevention record from the inspectorate of the Central-Pacific region (Puntarenas office), which includes information on offences recorded at an enterprise which was carrying out public works for the Ministry of Health. However, the Committee notes that the Government does not provide any statistical information on the number and type of offences detected at the national level. The Committee requests the Government to send examples of contracts concluded by the public authorities that contain the labour clauses prescribed by the “Guide to labour criteria in contracting procedures in Costa Rica”, in particular those which establish the obligation to ensure to the workers concerned wages (including allowances), hours of work and other conditions of labour which are not less favourable than those established for work of the same character in the trade or industry concerned in the district where the work is carried on (Article 2(1) of the Convention). The Committee also requests the Government to send detailed, up-to-date information on the impact of Executive Decree No. 42709 of 9 October 2020 on contracts concluded by the public authorities, including the rate of participation of SMEs and social enterprises in government procurement. It also requests the Government to provide up-to-date information on the application of the Convention in practice, including extracts of inspection reports and information on the number and type of offences recorded throughout the country.

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

Articles 2 and 5 of the Convention. Inclusion of labour clauses in public contracts. Supervisory measures and sanctions. In its previous comments, the Committee requested the Government to provide information on the results of its review of the national legislation on public procurement to assess the need for measures to ensure the effective inclusion of labour clauses in all public contracts. The Committee notes with interest the steps taken by the Government to give effect to these provisions of the Convention. The “Guide to Social Criteria in Procurement Processes in Costa Rica” prepared by the Ministry of Labour and Social Security (MTSS) and the Ministry of Finance was published in 2014 as part of the Capacity-Building for Sustainable Public Procurement Programme promoted by the United Nations Environment Programme. This guide establishes the obligation to include labour clauses in all public contracts, including subcontracts, ensuring to the workers’ wages, hours of work and other conditions of labour which are not less favourable than those established for work of the same character in the trade or industry concerned. It also establishes sanctions for non-observance of labour clauses by the contractor or his or her staff, which range from fines to termination of the contract. Moreover, the Government refers in its report to the assistance provided by the ILO Office for Central America, Haiti, Panama and the Dominican Republic in relation to the harmonization of the national legislation with the provisions of the Convention. In this context, the national policy on sustainable public procurement was approved and the National Steering Committee on Sustainable Procurement was established to oversee its coordination and implementation, by virtue of Executive Decree No. 39310-MH-MINAE-MEIC-MTSS of 21 July 2015. Section 4 of the national policy establishes the criteria that the public sector must take into consideration when procuring goods, services and work, which include observance of the labour and social security legislation and guarantees that protect the workers involved in every stage of the development of the products purchased or services contracted by the administration. Section 5(6) provides that this national policy will be based on the promotion of procurement processes for goods, work and services that foster a culture of compliance with labour legislation so as to ensure adequate conditions and workers’ labour rights. The Committee requests the Government to provide examples of public contracts containing the labour clauses prescribed in the “Guide to Social Criteria in Procurement Processes in Costa Rica”. The Committee also requests the Government to provide updated information on the application in practice of the Convention, including summaries of inspection reports, as well as information on the number and nature of infringements reported.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Articles 2 and 5 of the Convention. Inclusion of labour clauses in public contracts – Measures of supervision and sanctions. For a number of years the Committee has been encouraging the Government to take the necessary steps to clarify the legal framework regarding the labour conditions applicable to the execution of public procurement contracts and ensure the actual inclusion of the labour clauses provided for under Executive Decree No. 11430-TSS of 1980 in all public contracts to which the Convention applies. In its previous comment, the Committee noted that the Government had contacted the ILO Decent Work Technical Support Team and Country Office for Central America in San José with a view to discussing possible measures for enhancing the contractors’ respect of labour legislation in public procurement operations. In its latest report, the Government indicates that it is currently reviewing the national legislation on public procurement in order to assess the need to take measures to ensure the effective insertion of labour clauses in all public contracts. For this purpose, a meeting between the Deputy Minister of Labour and the Ministry of Finance in collaboration with the ILO Country Office in San José has been planned in order to consider improvements to the content of tender documents and public contracts. The Government also refers to Circular OMC-011-2011 of the Ministry of Labour and Social Security of 5 May 2011 which is aimed at enhancing the efficiency of ministerial management of public procurement, including the supervision of the execution of public contracts. The Committee requests the Government to keep the Office informed on the outcome of the abovementioned technical discussions and requests the Government to transmit a copy of any new legal instrument that might be adopted to ensure the effective implementation of the Convention in practice.

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

Articles 2 and 5 of the Convention. Inclusion of labour clauses in public contracts – Measures of supervision and sanctions. Following its previous comment on the scope of the provisions of Executive Decree No. 11430-TSS of 30 April 1980 compared with that of Executive Directive No. 34 of 8 February 2002, the Committee notes the detailed information communicated by the Government concerning the hierarchy of sources in national administrative law. It particularly notes that a directive is an administrative act of general application with no legislative function and that the provisions of Executive Directive No. 34 are incorporated into the requirements of Executive Decree No. 11430-TSS, which is a higher ranking rule of law. The Committee notes the Government’s assurances that an amendment of this Directive for reasons of legal certainty does not seem necessary.

In its previous observation, the Committee also raised matters concerning the inclusion of labour clauses in public contracts, which, according to a Government report, are rare. On this point, it notes the Government’s comments to the effect that national legislation clearly and specifically establishes the rights of all workers and that any failure to include labour clauses in a public contract does not undermine the obligation to respect labour and social security legislation. The Committee nevertheless recalls the importance of including labour clauses not only in the contract concluded with the contractor selected, but also in the specifications given to the persons tendering for contracts, in accordance with Article 2(4) of the Convention. Informing the persons tendering for contracts in advance is intended to make them aware of their social obligations when drawing up their tenders. Furthermore, including labour clauses in the actual contract makes it possible to apply sanctions inherent in public contracts if there is failure to comply with these clauses. In this respect, Article 5(1) of the Convention specifically states that adequate sanctions should be applied, by the withholding of future contracts, for failure to observe these labour clauses. Furthermore, under Article 5(2), measures such as the withholding of payments under the contract should be taken to ensure the workers concerned obtain the wages of which they are unduly deprived. The Committee therefore reiterates its previous observation, when it urged the Government to take the necessary steps to ensure the actual inclusion of the labour clauses provided for under Executive Decree No. 11430-TSS in all public contracts to which the Convention applies. It notes, in this context, that the Government has contacted the ILO Decent Work Technical Support Team and Country Office for Central America in San José with a view to jointly examining its report on the application of the Convention and, if necessary, to discussing measures that would enable it to ensure the contractors’ respect of social legislation in public procurement. The Committee hopes that the Office will provide the Government with all the necessary technical assistance to ensure the effective implementation of the Convention in practice.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Article 2 of the Convention. Inclusion of labour clauses in public contracts. The Committee notes the information sent by the Government in reply to its previous comment, particularly concerning the connection between Executive Decree No. 11430-TSS of 30 April 1980 and Executive Directive No. 34 of 8 February 2002. It notes the Government’s indications that the latter does not depart from the terms of Executive Decree No. 11430-TSS but actually complements it. The Committee observes that, under the terms of the Executive Decree, public contracts must contain clauses explicitly requiring the bidder to comply with legal or “conventional” provisions regarding wages, hours of work, occupational health and safety and, more generally, conditions of employment which are not less favourable than those established for work of the same character in the same sector of activity and the same geographical area. It notes the report sent to the Ministry of Labour and Social Security by the legal service of the Office of the Comptroller-General of the Republic on 2 June 2010, which confirms that the expression “conventional provisions” means collective agreements.

The Committee recalls, however, that its previous comments referred to Executive Directive No. 34, which merely requires the inclusion in public contracts of a clause establishing the obligation of contractors to comply strictly with labour and social security obligations. While noting the Government’s indications that this Directive does not restrict the scope of Executive Decree No. 11430-TSS of 30 April 1980, the Committee considers that, in order to avoid any possible misunderstanding, to guarantee legal certainty and to ensure the full application of the Convention, the wording of the Directive should be aligned to that of the aforementioned Executive Decree. The Committee therefore hopes that the Government will take steps towards this end in the very near future and requests it to keep the Office informed of any developments in this respect.

The Committee further notes that, according to the abovementioned report of the legal service of the Office of the Comptroller-General of the Republic, it is rare for labour clauses to be included in public contracts in practice, even though there are no obstacles to their inclusion, but the omission of these clauses from public contracts makes no difference to the obligation of contractors to comply with the rights established by the social legislation. In this respect, the Committee has examined, by way of example, a public contract awarded in March 2009 by the National Insurance Institute, which contained clauses regarding the responsibility of the contractor to respect the obligations incumbent on him with regard to the social rights of his workers, in conformity with Executive Decree No. 11430-TSS. These clauses, however, did not contain any further details of the legal or “conventional” provisions which had to be observed with regard to wages and other conditions of work. As the Committee emphasized in its 2008 General Survey on labour clauses in public contracts (paragraph 128), the labour clause must be included as an integral part of the public contract signed by the selected contractor. The Committee therefore urges the Government to take the necessary steps to ensure the actual inclusion in all public contracts to which the Convention applies of clauses ensuring conditions of work to the workers involved in the execution thereof which are not less favourable than those established by national laws or regulations, collective agreement or, if applicable, arbitration awards for work of the same character in the same branch of activity, in conformity with Article 2(1) of the Convention. Furthermore, the terms of these labour clauses and any variations thereof must be determined by the competent national authority after consultation with the employers’ and workers’ organizations concerned, in accordance with Article 2(3) of the Convention.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 2, paragraph 1, of the Convention. Inclusion of labour clauses in public contracts. Further to its previous comments, the Committee notes with regret that the Government makes no reference to any progress made with regard to bringing its legislation into line with the provisions of the Convention. It regrets this in particular because in 2006 it supplied the additional explanations which the Government had requested with regard to Executive Directive No. 34 of 8 February 2002, as well as specific information on a possible formulation which would be in conformity with the Convention based on the draft Decree of 1980 drawn up following an ILO direct contacts mission that year. Noting that the situation remains practically unchanged since then, the Committee reiterates that clauses in public contracts which merely recall the applicability and binding nature of the national legislation, particularly with regard to wages, hours of work and other working conditions, are not sufficient to ensure conformity with the provisions of the Convention. The Committee refers to paragraph 44 of the General Survey of 2008 on labour clauses in public contracts, in which it emphasizes that the Convention seeks to ensure that public contracts are executed under conditions of labour which are not less favourable than those established by collective agreement, arbitration award or national laws or regulations for work of the same character in the trade or industry concerned in the region where the work is carried out. This obliges the contractor to apply the most advantageous pay rates, including overtime pay, and other working conditions, such as work hour limits and holiday entitlement, established in the industrial sector and geographical region in question.

The Committee attaches a copy of the Practical Guide prepared by the Office in September 2008, based principally on the conclusions of the abovementioned General Survey, which contains an analysis of national law and practice in this field and also legislative examples giving full effect to the requirements of the Convention. The Committee hopes that the Government will be able to draw on the information contained in both the General Survey and the Practical Guide and that it will soon be in a position to report on progress made in this area.

Finally, with regard to the comments of 17 May 2008 made by the Union of Workers of the Ministry of Finance and the National Customs Service (SITRAHSAN) – previously called the Union of Customs Workers – the Committee requests the Government to refer to its comments under the Protection of Wages Convention, 1949 (No. 95).

[The Government is asked to reply in detail to the present comments in 2010.]

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

The Committee notes the Government’s indication in its report that it wishes to be provided with further explanations on the reasons why Executive Directive No. 34 of 8 February 2002 is contrary to the Convention.

The Committee observes that, under the terms of Article 2 of the Convention, the public contracts to which the Convention applies shall include clauses ensuring to the workers concerned wages, hours of work and other conditions of labour which are not less favourable than the most favourable conditions established in accordance with one of the three formulae envisaged by the Convention, that is by collective agreement, by arbitration award or by national laws or regulations. The mere fact that the labour and social security legislation is applicable to workers engaged in the context of public contracts is not sufficient to give effect to the Convention. Accordingly, as the Committee already emphasized in its previous comment, Executive Directive No. 34 of 8 February 2002, the first paragraph of which is confined to requiring the inclusion of a clause establishing the obligation of the contracting enterprises to comply strictly with labour and social security obligations but does not provide that wages, etc. must be not less favourable than the most favourable conditions established in the three specified manners, is not in conformity with Article 2 of the Convention.

The inclusion of the clauses envisaged by the Convention ensures the protection of workers in cases in which the legislation only establishes minimum terms and conditions of employment but which minimum may be exceeded by general or sectoral collective agreements. Indeed, the fundamental objective of the Convention is to prevent social dumping resulting from the intense competition prevailing in the field of public tenders.

In its report, the Government also requests technical assistance for the formulation of provisions that are in accordance with the Convention. In this respect, the Committee recalls that the Government has already adopted a text on this subject, namely Decree No. 11430-TSS of 30 April 1980, following a direct contacts mission undertaken by a representative of the ILO Director-General. This Decree, which refers explicitly to the Convention and the adoption of which was noted with satisfaction by the Committee in an observation in 1981, provides that clauses should be included in public contracts explicitly requiring compliance by the tenderer with the legal provisions or those contained in collective agreements relating to wages, hours of work, occupational safety and health and, more generally, terms and conditions of employment which are not less favourable than those envisaged for work of the same nature performed in the same sector and the same geographical area. Following the adoption of this Decree, the Committee requested the Government, in a direct request in 1981, to indicate the manner in which the above terms and conditions of employment had been determined. In its report in 1982, the Government announced the establishment of a committee responsible for formulating the terms of labour clauses in collaboration with the employers’ and workers’ organizations concerned. However, since then, the Government has provided no further information on this subject and the Committee has therefore been bound to reiterate its request for information on numerous occasions.

The Committee therefore once again requests the Government to provide information on the labour clauses included in public contracts under the terms of Decree No. 11430-TSS of 30 April 1980, and to provide copies of public contracts containing such clauses. The Government is also requested to indicate whether the terms of these clauses were formulated after consultation of the employers’ and workers’ organizations concerned.

The Committee observes that the Government may once again avail itself of the assistance of the Office for appropriate technical assistance.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the information contained in the Government’s report in reply to its previous comments and the adoption of the General Act (No. 7762, of 2 April 1998) respecting the award of public works and public services contracts. The Committee notes Executive Directive No. 34, of 8 February 2002, and observes that it is not in conformity with Article 2 of the Convention, as its first paragraph only requires the entity issuing the contract to include a clause establishing the absolute obligation of contracting enterprises to comply strictly with labour and social security obligations, thereby distancing itself from the provisions of section 2 of Decree No. 11430-TSS, of 30 April 1980.

The Committee regrets to note that the Government has not provided any information on the clauses currently included in public contracts, nor has it provided a relevant sample of a public contract including such clauses. Moreover, it has not indicated whether the terms of the clauses were determined upon prior consultation with the organizations of employers and workers concerned. The Committee notes that it has been making requests to the Government for over 20 years in practically identical terms without ever having been provided with concrete and precise replies on the points raised. The Committee therefore urges the Government to provide the requested information and, as soon as possible, to take the necessary measures to bring national law and practice into full conformity with the provisions of the Convention.

The Committee also requests the Government to provide, in accordance with Article 6 and Part V of the report form, any information available on the application of the Convention in practice, including, for example, the measures adopted or envisaged to ensure the application of the Convention to subcontractors or assignees of contracts, possible exceptions to the application of the Convention, official reports or statistics on enforcement mechanisms (violations reported, sanctions imposed, etc.) and any other information concerning compliance with the conditions set out in the Convention.

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

The Committee notes that the Government’s report contains no reply to previous comments. It hopes that the next report will include full information on the matters raised in its previous direct request, which read as follows:

The Committee notes the detailed explanations of the protection of labour conditions in Costa Rica, provided in reply to its previous comments concerning the application of Article 2 of the Convention.

The Committee recalls that the essential purpose of the Convention is to eliminate negative consequences of tendering for a public contract on the workers concerned by ensuring that, through the insertion of appropriate labour clauses in public contracts, the workers employed by a contractor enjoy wages and other conditions of labour which are not less favourable than those of other workers doing similar work.

The Committee further recalls that, by virtue of sections 1 and 2 of Decree No. 11430-TSS of 30 April 1980, clauses should be included in all public contracts covered by this Convention and that such clauses should refer in an express manner the tenderer’s compliance with the legal and contractual standards relating to wages and other employment conditions, not less favourable than those established for work of the same nature. The Committee therefore asked the Government in its earlier comments whether the terms of clauses to be included in public contracts had been determined after consultation with the organizations of employers and workers concerned (Article 2(3)), and whether measures were taken to ensure that persons tendering for contracts are aware of such terms of clauses (Article 2(4)).

The Committee notes that the Government’s report does not include information on these points, and indicates simply that the provisions of Decree No. 11430-TSS are complemented by the other labour legislation. The Committee asks the Government to supply information on the clauses actually included in public contracts by virtue of the provisions of the said Decree and to provide a specimen copy of the relevant part of a public contract including such clauses. It also asks the Government to indicate measures taken to make the requirements under this Decree known to persons tendering for public contracts.

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

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee notes the comments made by the Association of Customs Officers (ASEPA) in a communication dated 12 October 1995. It notes that, although the ASEPA mentions Convention No. 94 among others, there is no information in the communication that would allow the Committee to judge whether there has been any infringement of the provisions of the Convention. The Committee recalls that the Convention applies to public contracts which involve the employment of workers by the party other than the public authority (Article 1(1)(b)(ii) of the Convention), and that the employment contracts between a public authority and its employees are outside the scope of this Convention.

The Committee hopes the Government will make every effort to take the necessary action in the very near future.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes that the Government’s report contains no reply to previous comments. It hopes that the next report will include full information on the matters raised in its previous direct request, which reads as follows:

The Committee notes the detailed explanations of the protection of labour conditions in Costa Rica, provided in reply to its previous comments concerning the application of Article 2 of the Convention.

The Committee recalls that the essential purpose of the Convention is to eliminate negative consequences of tendering for a public contract on the workers concerned by ensuring that, through the insertion of appropriate labour clauses in public contracts, the workers employed by a contractor enjoy wages and other conditions of labour which are not less favourable than those of other workers doing similar work.

The Committee further recalls that, by virtue of sections 1 and 2 of Decree No. 11430-TSS of 30 April 1980, clauses should be included in all public contracts covered by this Convention and that such clauses should refer in an express manner the tenderer’s compliance with the legal and contractual standards relating to wages and other employment conditions, not less favourable than those established for work of the same nature. The Committee therefore asked the Government in its earlier comments whether the terms of clauses to be included in public contracts had been determined after consultation with the organizations of employers and workers concerned (Article 2(3)), and whether measures were taken to ensure that persons tendering for contracts are aware of such terms of clauses (Article 2(4)).

The Committee notes that the Government’s report does not include information on these points, and indicates simply that the provisions of Decree No. 11430-TSS are complemented by the other labour legislation. The Committee asks the Government to supply information on the clauses actually included in public contracts by virtue of the provisions of the said Decree and to provide a specimen copy of the relevant part of a public contract including such clauses. It also asks the Government to indicate measures taken to make the requirements under this Decree known to persons tendering for public contracts.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes that the Government’s report contains no reply to previous comments. It must therefore repeat its previous observation which reads as follows:

The Committee notes the comments made by Association of Customs Officers (ASEPA) in a communication dated 12 October 1995. It notes that, although the ASEPA mentions Convention No. 94 among others, there is no information in the communications that would allow the Committee to judge whether there has been any infringement of the provisions of the Convention. The Committee recalls that the Convention applies to public contracts which involve the employment of workers by the party other than the public authority (Article 1(1)(b)(ii) of the Convention), and that the employment contracts between a public authority and its employees are outside the scope of this Convention.

The Committee hopes the Government will make every effort to take the necessary action in the very near future.

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

The Committee notes the detailed explanations of the protection of labour conditions in Costa Rica, provided in reply to its previous comments concerning the application of Article 2 of the Convention.

The Committee recalls that the essential purpose of the Convention is to eliminate negative consequences of tendering for a public contract on the workers concerned by ensuring that, through the insertion of appropriate labour clauses in public contracts, the workers employed by a contractor enjoy wages and other conditions of labour which are not less favourable than those of other workers doing similar work.

The Committee further recalls that, by virtue of sections 1 and 2 of Decree No. 11430-TSS of 30 April 1980, clauses should be included in all public contracts covered by this Convention and that such clauses should refer in an express manner the tenderer's compliance with the legal and contractual standards relating to wages and other employment conditions, not less favourable than those established for work of the same nature. The Committee therefore asked the Government in its earlier comments whether the terms of clauses to be included in public contracts had been determined after consultation with the organizations of employers and workers concerned (Article 2(3)), and whether measures were taken to ensure that persons tendering for contracts are aware of such terms of clauses (Article 2(4)).

The Committee notes that the Government's report does not include information on these points, and indicates simply that the provisions of Decree No. 11430-TSS are complemented by the other labour legislation. The Committee asks the Government to supply information on the clauses actually included in public contracts by virtue of the provisions of the said Decree and to provide a specimen copy of the relevant part of a public contract including such clauses. It also asks the Government to indicate measures taken to make the requirements under this Decree known to persons tendering for public contracts.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the comments made by Association of Customs Officers (ASEPA) in a communication dated 12 October 1995. It notes that, although the ASEPA mentions Convention No. 94 among others, there is no information in the communications that would allow the Committee to judge whether there has been any infringement of the provisions of the Convention. The Committee recalls that the Convention applies to public contracts which involve the employment of workers by the party other than the public authority (Article 1(1)(b)(ii) of the Convention), and that the employment contracts between a public authority and its employees are outside the scope of this Convention.

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

With reference to its previous comments, the Committee notes the explanations provided by the Government concerning the application of Article 2 of the Convention.

The Committee wishes to point out that by virtue of section 2 of Decree No. 11430-TSS, of 30 April 1980, clauses should be included in all public contracts covered by this Convention which ensure conditions of labour, including wages, which are not less favourable than those established for work of the same character in the trade or industry concerned in the same zone. The Committee requested the Government in 1981 to indicate in what manner the established conditions of employment which have to be complied with according to section 2 of the Decree and the terms of the clauses to be included in public contracts are determined, in what manner the organisations of employers and workers are consulted and how the terms of the clauses are made known to those responsible for complying with them.

The Committee wishes to point out once again that Article 2 of the Convention, and in consequence section 2 of the Decree, cannot be considered to be applied merely because they are in the same terms as the provisions of section 24 of the Labour Code, which sets out the clauses to be contained in individual contracts, nor because they are widely disseminated and applied in practice, nor because employers and workers are left free to establish by collective agreement the labour clauses that correspond to their interests.

The Committee therefore hopes that the Government will be able to inform it in the near future of the measures that have been adopted or are contemplated to give full effect to Article 2, paragraphs 2 and 3, of the Convention, taking into account the Committee's previous comments. In this connection, the Committee suggests that the Government might consider requesting technical assistance from the ILO in order to find an appropriate solution to the questions that are pending.

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

The Committee notes from the Government's latest report that the committee which was to have determined the terms of clauses to be included in contracts concluded by the public authorities, reached no final agreement. The Committee hopes that the Government will take all the necessary steps to give full effect to Article 2, paragraphs 3 and 4 of the Convention, which provide, respectively, that the terms of clauses to be included in public contracts shall be determined after consultation with the organisations of employers and workers concerned and that measures shall be taken to ensure that persons tendering for contracts are aware of the terms of the clauses.