Observation (CEACR) - adoptée 2011, publiée 101ème session CIT (2012)

Convention (n° 94) sur les clauses de travail (contrats publics), 1949 - Algérie (Ratification: 1962)

Article 2 of the Convention. Inclusion of labour clauses in public contracts. The Committee notes the Government’s indications that steps have been taken to ensure the application of the provisions of section 14 of the Presidential Decree of 26 October 2008 obliging all public operators to incorporate in all public contracts a clause requiring observance of national labour law. It notes that correspondence describing the terms of this obligation was sent to the General Secretary of the Ministry of Finance and also to the President of the Procurement Board at the Ministry of Labour, Employment and Social Security. However, the Committee pointed out in its previous comment that the inclusion in public contracts of clauses simply requiring compliance with the labour legislation is insufficient to give effect to the core requirement of the Convention. The Convention states that public contracts must include clauses ensuring that workers employed in the execution of the contracts receive wages and enjoy other conditions of work which are not less favourable than those established for work of the same character in the same region and the same sector of activity by national law or regulations, collective agreement or arbitration award. In other words, the workers concerned must have conditions of work not less favourable than the best conditions provided by the three aforementioned alternatives. Hence it often happens that minimum conditions relating to wages or hours of work are improved either for the whole economy or for a given sector of activity through a collective agreement. In this case, the mere application of the labour legislation in the context of public contracts would be insufficient to provide these workers with the best conditions of work that exist.

The Government also indicates in its report that bidders are required, at the time they submit their tenders, to provide a certificate that they are up to date with their contributions to the National Social Security Fund. However, as the Committee emphasized in its 2008 General Survey on labour clauses in public contracts (paragraph 118), certification that the contractor concerned has complied with labour law and paid the appropriate social security contributions offers some proof of his past performance but, unlike labour clauses, offers no binding commitment with respect to the performance of future work.

The Committee also recalls that in its previous observation it emphasized that the Convention also requires the fulfilment of other obligations, namely consultation of the employers’ and workers’ organizations concerned with respect to the terms of the labour clauses (Article 2(3)); the posting of notices in conspicuous places at the establishments concerned with a view to duly informing the workers (Article 4); and, in the event of failure to observe and apply the labour clauses, adequate penalties such as the withholding of contracts or the withholding of payments to the enterprises concerned (Article 5).

The Committee again expresses the hope that the Government will take the additional measures in the near future that are needed to ensure the full application of the Convention. It requests the Government to keep the Office informed of any further developments in this respect.