Observation (CEACR) - adoptée 2017, publiée 107ème session CIT (2018)

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

Articles 1, 2, 4 and 5 of the Convention. Insertion of labour clauses in public contracts. Notice. Sanctions. In its previous comments, the Committee requested the Government to take the necessary legislative, administrative or other measures to ensure the insertion in all public contracts specified in Article 1 of the Convention of the labour clauses required under paragraph 1 of Article 2 of the Convention and for the enforcement of such clauses in the manner prescribed by Articles 4 and 5 of the Convention. The Government indicates in its report that the Standard Tendering Documents are in effect and available for use by the procuring entities, in the procurement of works through medium and large contracts through national and international competitive tendering procedures. The Committee notes that section 20.1 of the General Conditions of Contract in the Standard Tendering Document for Medium and Large Works provide that a contractor is duty-bound to comply with all the relevant labour laws applicable in the country, including laws relating to workers’ employment, working hours, health, safety, welfare and immigration, and shall allow them all their legal rights. Pursuant to section 20.2 of these General Conditions of Contract, the contractor is also required to take all reasonable precautions to maintain the health and safety of personnel. The Committee notes, however, that the Standard Tendering Documents for the procurement of works for medium and large contracts do not refer to or contain any labour clauses to ensure that workers engaged under such contracts enjoy conditions of labour, including wages and hours of work, which are not less favourable than those established for work of the same character in the same district, as required under this provision of the Convention. Similar provisions are included in the General Conditions of Contract for the Standard Tendering Document for the procurement of smaller works (sections 21.1 and 21.2). Moreover, neither the Standard Tendering Documents for the procurement of goods or those for the procurement of consultancy services provide for application for either the general labour law or for the insertion of appropriate labour clauses. The Committee is once again compelled to draw the Government’s attention to its 2008 General Survey on labour clauses in public contracts, paragraph 45, in which the Committee emphasized that the mere fact that contractors under public contracts are required to adhere to general labour legislation does not release the Government from its obligation to draft and include appropriate labour clauses of the type required in Article 2(1) of the Convention in public contracts, whether for construction works, manufacture of goods or supply of services. As the Committee pointed out in its previous comments, this is because general labour legislation establishes only minimum standards, which are often improved through collective bargaining or arbitration awards. If this is the case, under the Convention, the workers concerned must enjoy working conditions which are at least aligned to the most advantageous conditions set through collective agreement or arbitral award. Moreover, Article 2 establishes that the terms of the labour clauses to be included in public contracts must be determined after consultation with the employers’ and workers’ organizations concerned (Article 2(3)) and brought to the knowledge of tenderers in advance of the selection process (Article 2(4)). In addition, notices informing the workers of their conditions of work must be posted at the workplace (Article 4(a)(iii)). The Committee therefore once again requests the Government to take the necessary measures – legislative, administrative or others – for the insertion in all public contracts covered by this Convention of labour clauses that comply with the requirements of Article 2 of the Convention and for the enforcement of such clauses in the manner prescribed by Articles 4 and 5 of the Convention. It also requests the Government to provide information on the manner in which effect is given to the central requirement of the Convention under Article 2. The Committee also requests the Government to indicate the relevant provisions establishing that the obligations under the Convention apply also to subcontractors or assignees, as required under Article 1(3) of the Convention.

Articles 4 and 5. Notice of working conditions. Sanctions. In its previous comments, the Committee requested the Government to take measures to ensure the enforcement of labour clauses in the manner prescribed by Articles 4 and 5 of the Convention. Moreover, notices informing the workers concerned of their conditions of work must be posted in conspicuous places at the establishments and workplaces concerned (Article 4(a)(iii)). The Committee requests the Government to indicate the measures taken or envisaged to give effect to Articles 4 and 5 of the Convention.